Judge Denies MTD in FDCPA, TCPA Class Action Over Orally Made Cease Request

A District Court judge in Florida has denied a defendant’s motion to dismiss a class-action after it was sued for violating the Fair Debt Collection Practices Act, the Telephone Consumer Protection Act, and the Florida Consumer Collection Practices Act for making calls to the plaintiff’s cell phone and leaving voicemails using pre-recorded messages after the plaintiff had asked for the calls to stop.

A copy of the ruling in the case of Nieves v. Preferred Collection & Management Services can be accessed by clicking here.

The plaintiff incurred a medical debt that was placed with the defendant for collection. During one of the calls, the plaintiff claims to have informed the defendant that he did not have the money to repay the debt and asked the defendant to stop calling him. The defendant allegedly continued to make calls and leave prerecorded voicemails for the plaintiff. The plaintiff filed suit, seeking to include anyone in the country who received a call on his or her cell phone from the defendant where an artificial or pre-recorded voice was used without the individual’s consent.

The defendant argued that the TCPA claim should be dismissed because it did not use an automated telephone dialing system to place the calls to the plaintiff and because the plaintiff’s claim that he did not consent to be contacted on his cell phone was insufficient, allowing the judge to assume that the plaintiff provided the defendant with his cell phone number and forgot he gave his consent. Judge Virginia M. Hernandez Covington of the District Court for the Middle District of Florida pointed out that a TCPA violation may have occurred either when the caller uses an ATDS or when it uses an artificial or pre-recorded voice. It’s not that both conditions need to be met, but one or the other. As to the issue of consent, on a motion to dismiss, the Court needs to infer that any facts stated in the complaint are true, and there was nothing to infer that the plaintiff consented to receiving the calls. Even if he had, he then revoked consent, the judge wrote.

As to the FDCPA claim, the defendant argued that consent was revoked orally and was not sufficient. But, Judge Hernandez Covington noted, revocation of consent only has to be in writing when an individual wants all communication to be ceased.

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