Author Topic: TCPA case winnable?  (Read 2408 times)

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LightBearer1307

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Re: TCPA case winnable?
« Reply #15 on: May 20, 2017 07:58:17 AM »
I am working with an attorney against an original creditor that called my cell phone over 4000 times, averaging at least 10 calls per day. I consistently told the creditor to stop calling and even put all 9's in as my phone number. The case just went to arbitration, so I'm curious if you think I will get a decent settlement. It is on a $400 debt, so I'm pretty sure that will be wiped out and removed from my CR.



In terms of evidence/proof, if you have MP3 recordings of those 4000+ calls, along with screenshots from your phone showing the number [i.e. their number, a number you can prove they own], along with your own phone records, I would never arbitrate.

Bruno the JDB Killer

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Re: TCPA case winnable?
« Reply #16 on: May 20, 2017 12:20:04 PM »
What else does Mr. Lawyer say, other than give me half  your money?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

backpack

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Re: TCPA case winnable?
« Reply #17 on: June 18, 2017 04:18:10 AM »
Van Patten v. Vertical Fitness Group LLC seems to me to be trying to narrow the definition of revocation of consent.

In the 2015 FCC Ruling the FCC said we "have a right to revoke consent, using any reasonable method including orally or in writing.”

The Van Patten court looks at the 2015 FCC ruling, finds it reasonable, but then says "Revocation of consent must be clearly made and express a desire not to be called or texted."

It seems to me they are trying to narrow the "any reasonable method" language.  Wonder if anyone else has a take on this?

Here is a link to the case  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/30/14-55980.pdf

BellEbutton

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Re: TCPA case winnable?
« Reply #18 on: June 18, 2017 06:30:46 AM »
Van Patten v. Vertical Fitness Group LLC seems to me to be trying to narrow the definition of revocation of consent.

In the 2015 FCC Ruling the FCC said we "have a right to revoke consent, using any reasonable method including orally or in writing.”

The Van Patten court looks at the 2015 FCC ruling, finds it reasonable, but then says "Revocation of consent must be clearly made and express a desire not to be called or texted."

It seems to me they are trying to narrow the "any reasonable method" language.  Wonder if anyone else has a take on this?

Here is a link to the case  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/30/14-55980.pdf

It's common sense that revocation must be clear.  How is that narrowing the "any reasonable method" language?   

backpack

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Re: TCPA case winnable?
« Reply #19 on: June 18, 2017 09:23:47 PM »
I truly am not sure. 

What if I spoke on the phone with a debt collector and said I "would rather" communicate in writing?

One court might find that reasonable and another might find that it is not an express revocation of consent.

Bruno the JDB Killer

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Re: TCPA case winnable?
« Reply #20 on: June 18, 2017 09:34:00 PM »
Send a letter CMRRR and make sure.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: TCPA case winnable?
« Reply #21 on: June 18, 2017 09:39:59 PM »
I truly am not sure. 

What if I spoke on the phone with a debt collector and said I "would rather" communicate in writing?

One court might find that reasonable and another might find that it is not an express revocation of consent.

"Rather communicate" is not clear. It does not specifically convey that you do not want to be contacted by phone.

If a message is specific, there's no question about the intent.
« Last Edit: June 18, 2017 09:46:43 PM by BellEbutton »

BellEbutton

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Re: TCPA case winnable?
« Reply #22 on: June 18, 2017 09:41:12 PM »
Send a letter CMRRR and make sure.

It's not about whether or not the message was received. It's about whether or not the message clearly indicates that the consumer does not want to be contacted by phone.

CleaningUp

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Re: TCPA case winnable?
« Reply #23 on: June 18, 2017 10:11:53 PM »

ex·press
ikˈspres
verb



1.convey (a thought or feeling) in words or by gestures and conduct. "he expressed complete satisfaction"
synonyms:  communicate, convey, indicate, show, demonstrate, reveal, make manifest, put across/over, get across/over; More

2. squeeze out (liquid or air).
synonyms:  squeeze out, press out, extract "all the juice is expressed"

And,


de·sire
dəˈzī(ə)r
noun


1. a strong feeling of wanting to have something or wishing for something to happen.
"a desire to work in the dirt with your bare hands"

synonyms:  wish, want, aspiration, fancy, inclination, impulse;...



These definitions are from Google Dictionary.


Why is there any confusion about the term "express desire".


backpack

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Re: TCPA case winnable?
« Reply #24 on: June 19, 2017 12:14:45 AM »
What if the "rather" message is done in conjunction with a consumer refusing calls from a creditor and the consumer making sure all of their future comms are in writing?  Does the behavior pattern of the consumer matter?

backpack

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Re: TCPA case winnable?
« Reply #25 on: June 19, 2017 12:18:17 AM »
Not looking for a definite answer -- just think that on DB we can argue different views and we can all learn more about how to approach our different cases.
« Last Edit: June 19, 2017 01:37:55 AM by backpack »

CleaningUp

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Re: TCPA case winnable?
« Reply #26 on: June 19, 2017 01:41:50 AM »
The point is that the plain language definitions provide the exact answer...No debate is required....

BellEbutton

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Re: TCPA case winnable?
« Reply #27 on: June 19, 2017 02:07:01 AM »
What if the "rather" message is done in conjunction with a consumer refusing calls from a creditor and the consumer making sure all of their future comms are in writing?  Does the behavior pattern of the consumer matter?

"Rather" leaves room for a "but" to follow.  Example:  "I'd rather go to ABC Restaurant, but the other restaurant is fine". 

In a previous post, you said:

The Van Patten court looks at the 2015 FCC ruling, finds it reasonable, but then says "Revocation of consent must be clearly made and express a desire not to be called or texted."

It seems to me they are trying to narrow the "any reasonable method" language.  Wonder if anyone else has a take on this?


Actually, it was the FCC, not the court, that made that distinction.

"We, therefore, find that the consumer may revoke his or her consent in any reasonable manner that clearly expresses his or her desire not to receive further calls...".

Pages 38 - 39 of the following:

https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1.pdf

Which of the following is clear?   "I would rather you not call me" or "Do not call me again".  If I don't want someone to call me, "rather" is not going to be part of the demand.

backpack

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Re: TCPA case winnable?
« Reply #28 on: June 19, 2017 02:37:37 AM »
Send a letter CMRRR and make sure.

I am troubled by the fact that I agree with you on this.  😱

Bruno the JDB Killer

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Re: TCPA case winnable?
« Reply #29 on: June 19, 2017 02:37:01 PM »
Those receipts come in handy when a lawyer lies in court and says he never received what you sent.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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