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Judge Denies Summary Judgment Request From Both Sides in TCPA Consent & Revocation Case

A federal judge in Florida has denied requests from both a plaintiff and the defendant who were seeking partial summary judgment rulings dealing with consent to be contacted and revocation of consent in a Telephone Consumer Protection Act case.

An individual purchased a car from a dealership in November 2013. The purchase was financed by Ally Financial. The individual, who is know the plaintiff in this case, fell behind on his payments and Ally began trying to contact him to collect on the unpaid debts. When he signed the financing contract, the plaintiff, Eugene Patterson, provided his cell phone number and agreed to a condition of the contract which granted Ally permission to use an automated telephone dialing system (ATDS) to contact him on any phone number provided on the contract, including a cell phone.

During a 29-month period between 2014 and 2016, Ally made 1,244 calls to Patterson trying to collect on the unpaid debt. Patterson subsequently sued, alleging Ally violated the TCPA.

A copy of the ruling can be accessed here.

In looking a somewhat conflicting rulings at the Appeals Court level, the judge in this case, Judge Timothy Corrigan from the District Court for the Middle District of Florida, looked at rulings in other recent TCPA cases, including Reyes v. Lincoln Automotive Financial Services, which ruled that an individual does not have the right to revoke consent when consent is granted as part of a binding contract.

But Florida is in the Eleventh Circuit, which has favored a Third Circuit ruling that allows for an individual to revoke consent under the TCPA because it is “is consistent with the government interest articulated in the legislative history of the Act [that] enabl[es] the recipient to contact the caller to stop future calls.”

Judge Corrigan also looked at a recent ruling that allowed an individual to partially revoke consent to be contacted at certain times before ruling that Ally’s claims that the TCPA does not permit oral revocation of consent to be “meritless.”

Patterson said he revoked consent three times during separate conversations, a claim that Ally denies. Judge Corrigan ruled that is not a matter to be determined in a summary judgment ruling.

 

 

 

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