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As pointed out by TCPAland.com, a District Court in the Northern District of Alabama has granted summary judgment in favor of a plaintiff alleging that a mortgage servicer violated the Telephone Consumer Protection Act by using a predictive dialer to make automated calls to the plaintiff.
What is significant about the case is that the judge in this case ruled that the system used by the defendant met the definition for an automated telephone dialing system because it “stored” the plaintiff’s phone number even if the system did not produce or generate numbers on a random or sequential basis.
A copy of the ruling in Heard v. Nationstar Mortgage can be accessed by clicking here.
The judge points out that no debt collector would ever seek to generate random or sequential numbers in an attempt to collect a debt because the calls will always be made from a list provided by whatever company is operating the system.
“But this fact does not prevent the TCPA from applying to Nationstar’s predictive collection calls,” writes Judge Madeleine Haikala.
Judge Haikala ruled that the system used by the defendant met the statutory definition of an ATDS even without looking at any of the guidance or rules issued by the Federal Communications Commission, including rules that were issued in 2003, 2008, and 2015.
Even though the plaintiff’s mobile phone number was provided as part of a contractual relationship between the plaintiff and the company that was refinancing his mortgage, when the plaintiff revoke consent, the defendant was required to oblige because “[w]hile parties may contract to limit the means of revoking consent, Nationstar has not cited a contractual provision limiting Mr. Heard’s common law right to orally revoke his consent to be called, so nothing prohibited Mr. Heard’s unilateral revocation of consent.”
