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Judge Denies MTD in TCPA Case Over Use of ATDS

A District Court judge in Arizona has denied a defendant’s motion to dismiss after it was accused of violating the Telephone Consumer Protection Act by making collection calls to the plaintiff using an automated telephone dialing system.

A copy of the ruling in McCullough v. Maximum Title Loans LLC can be accessed by clicking here.

The plaintiff took out a loan with the defendant for $10,000. The plaintiff alleges that, almost immediately, the defendant started making calls and sending text messages attempting to collect on the debt. The plaintiff alleges that when he answered the phone, there was a pause of “several seconds” during which he repeatedly said “hello” before he was connected to a live operator. The plaintiff revoked consent to be contacted because the payments on the loan were not yet due, but the defendant allegedly made 30 more calls after consent was revoked.

The plaintiff filed suit, alleging the defendant violated the TCPA by willfully making calls after consent had been revoked.

Since Arizona resides within the Ninth Circuit, Marks v. Crunch San Diego is the law of the land, which means an ATDS is defined as any device that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. Without specifically referencing Marks, the judge looked at other precedents to decide that it was “reasonable to infer” that the defendant used an ATDS to contact the plaintiff.

The judge did agree with the defendant that it is “not plausible” that any TCPA violation was willful or negligent on the part of the defendant.

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