Court Rules Express Consent Passes from Creditor to Collector

Yesterday, a United States District Court Judge in California granted Defendant’s motion for summary judgment on a TCPA claim where a plaintiff had provided a cell phone number as part of an in-store application for a credit card. The court ruled that Plaintiff provided her telephone number at the time she applied for the credit card that gave rise to the underlying debt, and she therefore consented to being contacted at that number by credit card issuer and collections companies acting on its behalf.

The case, Schwartz-Earp v. Advanced Call Center Technologies, LLC, from the United States District Court for the Northern District of California (Case No. 15-cv-01582-MEJ) involved claims for violation of the FDCPA, California’s Rosenthal Fair Debt Collection Practices Act, the TCPA, and invasion of privacy.

Background

In February 2014, Plaintiff applied in-store for a JC Penney-branded credit card, issued by Synchrony Financial (“Synchrony”). As part of the application process, the cashier asked Plaintiff for her telephone number, and Plaintiff provided her number. Plaintiff did not indicate it was for a cell phone. Plaintiff’s application was immediately approved, and she received a temporary bar code, which she used to make purchases. Eventually, Plaintiff received a permanent credit card in the mail, which she used to make additional purchases.

After Plaintiff stopped making payments on the account.  Synchrony placed Plaintiff’s credit card account with Defendant, Advanced Call Center Technologies, LLC (“ACCT”) for collections on January 17, 2015.

Between January 17, 2015 and February 22, 2015, ACCT placed at least 134 calls to Plaintiff at the number she provided. ACCT placed up to five calls to Plaintiff in a single day, but allowed at least 90 minutes to elapse between each call. ACCT maintained it never intentionally left voicemails for Plaintiff. However, its dialing software uses a voice recognition algorithm to distinguish live people from answering machines, and in the event that the algorithm mistakes an answering machine for a live person, a brief message may be left unintentionally.

For the first 119 calls, ACCT contended that Plaintiff did not answer. However, Plaintiff maintained she would answer calls, but a live agent would not respond and she would eventually hang up. It is undisputed that Plaintiff answered a call placed on February 13, 2015. During that call, Plaintiff asked the agent, “And who do I talk to about . . . being called six times a day?” ACCT contended the remaining 14 calls it placed to Plaintiff were not answered, while Plaintiff contends she would answer calls but a live agent would not respond. The last call from ACCT to Plaintiff was placed on February 22, 2015.

On February 22, 2015 Plaintiff called ACCT and agreed to a payment plan to bring her credit card account current. On February 23, 2015, Plaintiff called ACCT and asked to modify the payment plan she had previously agreed to. On February 25, 2015, Plaintiff again called ACCT and asked to cancel the payment plan. During that February 25, 2015 call, Plaintiff also asked for ACCT to stop calling her, and the agent stated that the calls would cease.

The Litigation

Plaintiff filed a Complaint on April 7, 2015, alleging four causes of action:

1. violations of two sections of the Fair Debt Collection Practice Act (“FDCPA”), 15 U.S.C. §§ 1692(d) and (f);
2. violation of California’s Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), Cal. Civ. Code §§ 1788-1788.32;
3. violation of the Telephone Consumer Protection Act (“TCPA”); and
4. invasion of privacy.

ACCT moved for summary judgment on all claims.

(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. This, summary judgment is appropriate when the court determines there no factual issues remain 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 Order

As noted above, ACCT had moved for summary judgment on all claims. In the Order, United States Magistrate Judge Maria-Alena James reviews and discusses each claim.  Judge James denied ACCT’s Motion for Summary Judgment as to Plaintiff’s § 1692d FDCPA and Rosenthal Act claims, but granted their Motion as to Plaintiff’s § 1692f FDCPA, TCPA, and invasion of privacy claims.

insideARM Perspective

The court’s discussion of the TCPA claim was quite interesting.  It was, in essence, approval of a multi-step process for “prior express consent” to the collection agent.

First, in the case of an in-store application for a credit card the court found that merely providing a cell phone number to a cashier when asked for her telephone number constituted “prior express consent.”

Second, the store-branded credit card was issued by Synchrony. The court ruled that the express consent given to the cashier was express consent for Synchrony, stating:

“No reasonable consumer could believe that consenting to be contacted for a store credit card requires that all communications be made by direct employees of the store, but never by the company that issued the card.  When a consumer provides a cellular telephone number to a creditor as part of the underlying transaction, the provision of the number constitutes express consent for the creditor to contact the consumer about the debt.”

Third, the court deemed that “prior express consent” to the creditor was also prior express consent to agents of the creditor.  The court wrote:

“An individual may indirectly provide a third party with express consent to be called under TCPA. …calls placed by a third-party debt collector on behalf of the creditor are treated as if the creditor itself placed the call.”

The court’s discussion of the invasion of privacy claim was also interesting.  Plaintiff had argued that this claim was not ripe for summary judgment since there was a factual issue in dispute; whether the volume of phone calls could be deemed highly offensive to a reasonable person.

On this issue the court wrote:

“Here, Defendant made all calls during a reasonable time of day, never intentionally left voicemails, Defendant’s collections agents clearly identified themselves at the outset of the call anytime they spoke with Plaintiff, and Defendant discontinued all efforts to contact Plaintiff after explicitly asked for the calls to stop. Thus, as Plaintiff fails to set forth facts establishing offensive conduct necessary to establish an invasion of privacy claim, summary judgment is appropriate.”

A copy of the complete Order can be found here.

It should be noted that that this Order may be subject to a future appeal.