Judge Outside Ninth Circuit Denies Motion to Dismiss TCPA Suit Based on Marks Ruling

The lawyers from Womble Bond Dickinson who maintain TCPAland.com broke the news yesterday about a court outside the Ninth Circuit Court of Appeals that applied the ruling in Marks v. Crunch San Diego regarding what defines an automatic telephone dialing system. A judge in the Southern District of Florida yesterday denied a motion to dismiss a lawsuit alleging that a defendant violated the Telephone Consumer Protection Act by allegedly contacting an individual more than 300 times after the individual revoked consent to be contacted.

A copy of the ruling in Adams v. Ocwen Loan Servicing can be accessed by clicking here.

The defendant is alleged to have attempted to contact the plaintiff using an ATDS in relation to collecting on the individual’s mortgage. The case was originally filed in a state court before the defendant removed the case to federal court and sought to have it dismissed. The defendant argued that the plaintiff did not sufficiently prove that an ATDS was used and that debt collection calls are not covered under the TCPA.

By making more than 300 calls and ignoring the “numerous demands” made by the plaintiff to stop calling, the defendant must have been using an autodialer, the judge ruled.

Upon the Court’s independent review of the relevant case law, the Court agrees with the reasoning and conclusions of post-ACA decisions which hold that “the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.”

The judge also rejected the argument that collection calls are exempt from the TCPA.



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