Judge Denies MSJ For Defendant in TCPA Case Over Whether Consent was Revoked

A District Court judge in Kentucky has partially granted — and partially denied — a defendant’s motion for summary judgment in a Telephone Consumer Protection Act case, ruling that a plaintiff’s request to have information sent to him via the mail rather then delivered over the phone, coupled with refusing to talk to a collector and hanging up the phone on a subsequent call and not answering the phone when the defendant called after that raises a genuine issue of whether the plaintiff revoked consent to be contacted, even if he never specifically said so.

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

The plaintiff fell behind on his credit card payments and the defendant started making collection calls to recover the unpaid debt. During a 17-month period, the defendant allegedly attempted 574 communications via phone call, prerecorded messages, or text messages — an average of 3.2 times every day, excluding Sundays. The plaintiff claims that on several occasions, he asked the defendant to send him any information via mail and appeared to hang up on representatives that were calling him, while also claiming to have instructed them to stop calling him at some point.

The plaintiff filed suit, alleging the defendant violated the TCPA by contacting him using an automated telephone dialing system before and after he allegedly revoked consent to be contacted.

Judge Claria Horn Boom of the District Court for the Western District of Kentucky used the Supreme Court’s ruling in Facebook v. Duguid to find that the defendant did not use an ATDS to contact the plaintiff, and then turned to the claim that calls were made after consent had been revoked.

Of the 574 communications, 111 were made using prerecorded messages or sent via text message. The defendant attempted to argue that the plaintiff never specifically revoked consent to be contacted. The defendant has recordings from 24 of the calls between itself and the plaintiff and submitted seven recordings for the record.

Judge Boom looked at the “totality” of the circumstances to determine that there was enough additional evidence for a jury to potentially corroborate that the plaintiff had revoked consent to be contacted.

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