Court Rules Revocation of Consent for One Creditor Does Not Revoke Consent for Another

Last Wednesday a federal judge in Illinois ruled that a consumer who had two accounts assigned to a debt collector did not effectively revoke consent to be called on a second account when he revoked consent to be called on the first one. The case is Michel v. Credit Protection Association L.P. (Case No. 14-cv-8452, U.S.D.C., Northern District of Illinois, Eastern Division).

A copy of the court’s Memorandum Opinion and Order can be found here. 

Background 

Between January 5, 2013 and January 3, 2014, Credit Protection Association (CPA), a debt collection agency, placed multiple calls to plaintiff’s cell phone seeking to collect debts for two separate creditors—Comcast and Commonwealth Edison (ComEd)—both of which had accounts with CPA. 

In early January 2013, after receiving a call that turned out to be related to his Comcast debt, plaintiff allegedly called CPA and orally advised CPA to stop calling him. When CPA called plaintiff, it frequently left pre-recorded voicemails stating that the call was from a debt collector and that plaintiff should return the call. The pre-recorded messages identified the debt through an eleven-digit reference number but did not state the name of the creditor (i.e., whether the call was related to plaintiff’s debt with Comcast or ComEd). 

CPA used a system operated by Dial Connection. The parties dispute whether Dial Connection is an automated telephone dialing system (“ATDS”), as required for TCPA liability. 

In his complaint, plaintiff alleges that he continued to receive calls from CPA in January and February 2013. CPA closed its Comcast account in February 2013, and contends that it stopped calling plaintiff on behalf of Comcast at that time. It is undisputed that plaintiff did not receive any calls from CPA in March 2013. 

In April 2013, CPA received a second, different account for plaintiff, this time from ComEd. Also in April 2013, plaintiff began receiving calls from CPA again, which continued until January 2014. CPA contends that the calls to plaintiff between April 2013 and January 2014 were on behalf of ComEd. 

Plaintiff alleged that CPA did not advise him that it was seeking to collect debts for two separate creditors. CPA, for its part, contended that it sent letters to plaintiff on each account and thus plaintiff was put on notice of its attempts to collect for both Comcast and ComEd. CPA also contended that plaintiff could have determined which creditor a call referred to by calling CPA back or by cross-referencing the eleven-digit account reference number stated in the voicemail with the letters CPA allegedly sent to plaintiff. 

Plaintiff filed suit in October of 2014 alleging that CPA’s calls to plaintiff violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), and the Fair Debt Collection Practice Act, 15 U.S.C. §§ 1692 et seq. (FDCPA). 

On June 30, 2016, the parties filed a joint status report with the court explaining that a summary determination on one issue would help streamline the disposition of this case. Both parties filed motion for partial summary judgment. The single issue in both motions was whether plaintiff’s alleged revocation of consent in early January 2013 means that CPA violated the TCPA for the calls made on behalf of ComEd. 

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 Court’s Decision 

The court summarized the parties' respective positions as follows: 

“Plaintiff argues that he should be able to recover for all calls made by CPA after he allegedly instructed CPA to stop calling his cell phone. In Plaintiff’s view, his call to CPA revoked any prior express consent CPA had to call him, whether on behalf of Comcast or ComEd. Defendants argue that even if Plaintiff revoked consent to receive calls on the Comcast account, that revocation does not apply to the later placed ComEd account, and thus Defendants did not violate the TCPA by calling Plaintiff on behalf of ComEd. 

Plaintiff argues that when he alleged instructed CPA to stop calling him, this instruction revoked any prior express consent CPA might have had, and this revocation applied to all matters for which CPA was attempting to contact him. Plaintiff contends that since the voicemails left by CPA only state an account reference number and not the name of the creditor, he “could not have deciphered that he was being pursued by CPA on” two separate creditor accounts, Comcast and ComEd. 

Plaintiff focuses on the fact that CPA has the ability to perform searches to determine whether a debtor is already in its database and whether a debtor has multiple accounts with CPA, as well as the capacity to mark a number in a “do not call list.” Plaintiff argues that when he allegedly revoked consent, CPA should have placed his cell phone number on a “do not call list” to prevent him from being called on all present and future creditor accounts placed with CPA.

Defendants, for their part, argue that when Plaintiff called CPA in early January 2013, he was calling solely about his Comcast account, as Defendants had not yet placed the ComEd account. Defendants contend that even if Plaintiff revoked his prior express consent for Comcast, the revocation does not apply to the later placed ComEd account.”

The Honorable Robert M. Dow, United States District Court Judge, agreed with CPA. He wrote: 

“The Court agrees with Defendants that revocation of consent for one creditor is not revocation of consent for all creditors, and thus even if Plaintiff can prove that he revoked his consent for CPA to call on behalf of Comcast when he called CPA in January 2013, he did not revoke his consent for calls from ComEd or from CPA on behalf of ComEd.

When Plaintiff called CPA in January 2013 and allegedly asked CPA to stop calling his cell phone, he was returning a call that CPA made regarding the Comcast account, and therefore revoked his consent only for calls made on behalf of Comcast. That is, Plaintiff’s revocation was creditor-specific, just as the consent was creditor-specific. Plaintiff could not anticipatorily revoke consent for all calls to be placed by CPA on behalf of potential future creditors, such as ComEd.

Although it may have been tedious for Plaintiff to discern that CPA was calling on behalf of two different creditors, this does not change the fact that CPA obtained Plaintiff’s prior express consent separately through each creditor. Plaintiff still must revoke his consent separately for each creditor. 

For these reasons, the Court concludes that Plaintiff’s alleged revocation of consent in January 2013 revoked consent only for CPA’s calls on behalf of Comcast and did not revoke any alleged consent stemming from Plaintiff’s debt with ComEd. Therefore, CPA cannot be held liable for calls to Plaintiff on behalf of ComEd.”

insideARM Perspective 

This case should be closely examined by all members of the ARM industry. It is not at all unusual for a debt collector to have multiple accounts for the same consumer. insideARM would suggest that this decision, while positive for this particular fact scenario, should not be read too broadly. In this case, the fact that the second account was not yet placed with CPA when the consumer revoked consent is a significant distinction.

While the court discusses creditor-specific consent and revocation of consent, would the result be different if the facts were tweaked slightly? For instance, if CPA had both accounts in house at the time the revocation of consent was given, would the court have ruled differently. Would the court then agree with plaintiff’s argument that CPA should have marked the number in some sort of internal “do not call” list? 

Industry best practices to avoid TCPA litigation might suggest that any revocation of consent be construed as broadly as possible and that any revocation of consent apply to all accounts currently handled and also those accounts with the same consumer and same phone number that might be placed in the future. 

insideARM polled members of the Compliance Professionals Forum on this issue.  Most responders indicated that, to the extent their clients will allow them to systematically link accounts for the same consumer, they will look at any revocation of consent as a revocation of consent on all accounts. However, most agreed that when a second (or multiple other accounts) are subsequently placed for the same consumer, the issue becomes murkier. All agree that account documentation is critical when a consumer might revoke consent to be called on one account and specifically allow calls on a second account.