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Judge Dismisses TCPA Claim Because Plaintiff Couldn’t Prove Consent was Revoked

Saying you revoked consent to be contacted on your cell phone by an automated telephone dialing system is not going to be enough to keep your claims that someone violated the Telephone Consumer Protection Act from being dismissed, at least in Ohio, following a ruling from a District Court judge.

A copy of the ruling in Whitacre v. Nations Lending Corporation can be accessed by clicking here.

The plaintiff lost his job and contacted his mortgage servicer to request a forbearance plan, which was granted. The plaintiff obtained a new job, at which time the defendant stopped the forbearance agreement. The plaintiff fell behind on his payments and the defendant requested the balance due, which the plaintiff paid. But the payment was allegedly not applied to the balance due, leaving a remaining balance that the defendant sought to recover. The plaintiff claims the defendant contacted him six times per week using an ATDS, even though he never provided consent to be contacted and subsequently revoked consent.

In contacting the defendant to request forbearance and to work out issues relating to the mis-applied payment, the plaintiff gave his permission to be contacted on his mobile phone, Judge Benita Pearson of the District Court for the Northern District of Ohio, Eastern Division, ruled. In applying the precedent from Baisden v. Credit Adjustments, Inc., which the Sixth Circuit Court of Appeals ruled “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called and the number which they have given, absent instructions to the contrary,” Judge Pearson determined that because the plaintiff did not allege, and because it was implausible to infer that the he did not provide his phone number, that consent was therefore provided.

As well, because the plaintiff provided no proof that he revoked consent to be contacted the judge dismissed the TCPA claim associated with the case.

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