Court Determines Consumer Did Not Prove Revocation of Consent in TCPA Case

On June 20, 2016 the U.S. District Court for the Eastern District of New York granted a creditor’s motion for summary judgment and dismissed a Telephone Consumer Protection Act (TCPA) claim because the plaintiff had provided prior express consent to be contacted on his cellular telephone when he entered into a contract with the creditor, AND did not provide sufficient proof that the prior consent was revoked.

The case, is Reyes, Jr. v. Lincoln Automotive Financial Services, Case No. 15-0560, (Eastern District of New York, June 20, 2016).

Background

On June 29, 2012, Plaintiff, Alberto Reyes, Jr. (Reyes), leased a new 2012 Lincoln MKZ luxury sedan through Defendant Ford Motor Credit Company LLC (Ford Credit) Note: Ford Credit was named in the complaint as Lincoln Automotive Financial Services. In connection with this transaction, Plaintiff executed a written New York Lease Contract dated June 29, 2012.

As part of the Lease Contract, Plaintiff expressly consented to receive telephone calls from Ford Credit, “including but not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails, and/or automatic telephone dialing systems.”  Plaintiff further consented to Ford Credit using “any telephone number” provided by Plaintiff in order to contact him, “including a number for a cellular phone or other wireless device, regardless of whether [Plaintiff] incurs charges as a result.”

Plaintiff failed to make several payments under the Lease Contract when due, thereby defaulting on his obligation. Ford Credit then began telephoning Plaintiff at the phone number provided by Plaintiff in the Lease Contract. Plaintiff failed to cure his default and Ford Credit repossessed the vehicle.

Plaintiff filed this lawsuit on February 6, 2015, alleging violations of both the TCPA and the Fair Debt Collection Practices Act (FDCPA). Plaintiff requested damages in the amount of $720,000. After Discovery, Ford Credit filed a motion for Summary Judgment.

Editor’s note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

The Honorable Leonard D. Wexler authored the Memorandum and Order granting Summary Judgment in favor of the Defendant. First, Judge Wexler determined that Plaintiff had abandoned his FDCPA claim,

“Defendant has moved for summary judgment with respect to Plaintiff’s FDCPA claim on the grounds that the statute is inapplicable to Ford Credit since it is a creditor, not a debt collector. Plaintiff failed to offer any argument in opposition to Defendant’s contention and, in fact, there is no mention of his FDCPA claim whatsoever in his opposition to the within motion. Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way.”

Judge Wexler next moved to discussion of the TCPA claim.  Wexler wrote:

“It is undisputed that Plaintiff provided express consent to be contacted by Ford Credit, in accordance with the TCPA, when he voluntarily provided his cellular telephone number on the Lease Contract. The issue, however, is whether or not Plaintiff subsequently revoked that consent.

Plaintiff argues that although he did provide prior express consent to be contacted on his cellular telephone, he revoked that consent by letter dated June 14, 2013. However, a review of the letter (the Letter) Plaintiff purports to have sent Defendant reveals that it is merely addressed to “Lincoln Credit,” with nothing more, and it is not signed by Plaintiff. During his deposition, Plaintiff testified that the Letter is a form letter, that he does not recall the address that he mailed the Letter to, and that he has no record that the Letter was actually sent to Defendant. The foregoing is insufficient to demonstrate that Plaintiff revoked his consent to receive telephone calls from Ford Credit on his cellular telephone.

For the foregoing reasons, Defendant’s motion for summary judgment is granted in its entirety. Plaintiffs Complaint is dismissed and judgment as a matter of law is granted in favor of Defendant.”

insideARM Perspective

This is a positive case for the ARM industry.  First, the court determined the language in the Lease Contract was sufficient to grant consent for the Plaintiff to be called on his cell phone. Second, the court deemed there was no proof presented of revocation of that consent.

insideARM believes that the issue of “revocation of consent” is going to be a major battleground in TCPA cases going forward. Credit grantors have modified agreements with consumers to include much better language regarding “consent” to call cell phones. As a result, consumers and their attorneys are going to need to argue that “consent” was revoked.  In this case the court put the burden of proving revocation of the consent on the consumer and was unimpressed by a form letter and no evidence that the letter was sent and what address it was sent to.