Judge Grants MSJ in TCPA Case Over Collection Calls

A District Court judge in North Carolina has granted a defendant’s motion for summary judgment in a Telephone Consumer Protection Act case after it was sued for allegedly placing “several” hundred calls to the plaintiff’s cell phone in an effort to attempt to collect a debt, ruling that the technology used by the defendant did not meet the definition of an automatic telephone dialing system, but also that the plaintiff consented to receiving the calls in the first place.

A copy of the ruling in the case of Barnett v. Bank of America can be accessed by clicking here.

The plaintiff applied for a credit card with the defendant and listed his cell phone number on the application. As well, the plaintiff later consented to receiving calls and pre-recorded messages on his cell phone during a conversation with a representative from the defendant. When the plaintiff fell behind on his payments, the defendant made more than 300 calls to attempt to collect during a five-month span.

First, Judge Robert Conrad of the District Court for the Western District of North Carolina, tackled the claim that the defendant used an ATDS to place its calls to the plaintiff. In looking at how the Supreme Court defined an ATDS in Facebook v. Duguid, Judge Conrad ruled that the defendant’s technology did not use random or sequential number generators. While the plaintiff attempted to use deposition testimony to make his case, Judge Conrad determined that the testimony in question actually did the opposite, because the numbers to be called were chosen from pre-existing lists, and not random or sequential number generators.

The plaintiff also attempted to argue that he revoked consent to be contacted when, during one conversation he asked for the representative to “put it in the mail for me” and said he would contact the defendant when he could make a payment. But Judge Conrad ruled the statements made by the plaintiff were too “ambiguous” and that in order for consent to be revoked, the words must “clearly” do so.

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