Judge Denies Defendant’s MSJ in FDCPA Case Over Third-Party Disclosure

In a case that was first spotlighted by TCPAWorld, a District Court judge in New York has denied a defendant’s motion for summary judgment after it was accused of violating the Fair Debt Collection Practices Act because the defendant left a voicemail message on a cell phone that did not belong to the plaintiff and the owner of the cell phone heard the message. But the wrinkle in this case is that the cell phone number was provided when the plaintiff received medical services at a hospital and the plaintiff signed a form consenting to be contacted by the hospital or its agents and contractors.

A copy of the ruling in the case of Russo v. POM Recoveries can be accessed by clicking here.

The defendant attempted to use the ruling in Reyes v. Lincoln Automotive Financial Services, which ruled that under the Telephone Consumer Protection Act, an individual can not revoke consent to be contacted when the consent is part of a contract.

But, as Judge Joan Azrack of the District Court for the Eastern District of New York notes in her ruling, this is not a TCPA case. Under the FDCPA’s third-party disclosure provision, a collector can not discuss an account with a third party unless the collector directly receives prior consent from the consumer. In this case, the plaintiff did not provide any consent to the collector. The only consent that was provided, Judge Azrack noted, was between the plaintiff and the hospital.

But the judge did question whether there was an FDCPA violation in leaving the message.

“While the Court is not necessarily convinced that there was an FDCPA violation here (or, if there was, that no affirmative defenses apply), the Court cannot grant summary judgment on the basis presented by Defendant,” she wrote.

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