Author Topic: Kohn TCPA Defense Claim  (Read 1003 times)

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arand

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Kohn TCPA Defense Claim
« on: June 27, 2017 03:08:35 AM »
Kohn Law Firm claims it does not and never has autodialed cell phones. It claims legal assistants make all calls to debtor cell phones. Putting aside nuanced definitions of a dialer, does anyone know whether this claim is true?

LightBearer1307

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Re: Kohn TCPA Defense Claim
« Reply #1 on: June 27, 2017 04:28:47 AM »
It doesn't matter if Joe Smith on this website says, "it isn't true, they do indeed use ATDS" because that doesn't really help you.

You can't go to court with, "some guys online said they actually use ATDS..."

This is what discovery is for and why your attorney should be doing discovery on them to find out what sort of dialing they engage in.

aaabbb

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Re: Kohn TCPA Defense Claim
« Reply #2 on: June 27, 2017 05:48:03 AM »
Kohn Law Firm claims it does not and never has autodialed cell phones. It claims legal assistants make all calls to debtor cell phones. Putting aside nuanced definitions of a dialer, does anyone know whether this claim is true?
Often you can just call them and ask one of their "legal assistants" if they use an autodialer or not.

Bruno the JDB Killer

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Re: Kohn TCPA Defense Claim
« Reply #3 on: June 27, 2017 12:04:24 PM »
It is your burden to prove. I assume you are from Wisconsin, since Kohn is involved. Here are two 7th circuit cases for you.


DONNA MUDGETT, individually and on behalf of all others similarly situated, Plaintiff,
v. NAVY FEDERAL CREDIT UNION, Defendant.


Case No. 11-C-0039.
United States District Court, E.D. Wisconsin.

March 13, 2012.

"However, the Phone Skills Manual does not allow a reasonable fact-finder to conclude that the collections agents' phones are connected to Navy Federal's computer system. Rather, as far as the Manual indicates, the collections agents' phones are ordinary desk phones that operate independently of Navy Federal's computer system. Although the Manual seems to assume that collections agents will have computers at their desks in addition to phones, it does not suggest that the phones and the computers are interconnected. Thus, on this record, no fact-finder could reasonably conclude that Martin and Owens made calls from telephones that were connected to autodialers.

Accordingly, IT IS ORDERED that Navy Federal's motion for summary judgment is GRANTED. The Clerk of Court shall enter final judgment."

TAMMY DOBBIN, COLLEEN DOBBIN, and DOLORES HART, Plaintiffs,
v. WELLS FARGO AUTO FINANCE, INC., SILICON VALLEY RECOVERY, INC., F-3 SOLUTIONS, LLC, and RELIABLE RECOVERY SERVICES, Defendants.

Case No. 10 C 268.
United States District Court, N.D. Illinois, Eastern Division.

"To summarize, there is no evidence that the calls to plaintiffs' cell phones were autodialed. Rather, the evidence is that the calls were dialed manually. Plaintiffs concede that the desk phones can be used independently of the predictive dialing technology and thus are not necessarily connected to the Conversations System when an agent manually dials a call. Plaintiffs have offered no evidence from which a reasonable jury could find that such a connection existed when the calls at issue here were made. Given these circumstances, no jury reasonably could find based on the evidence presented to the Court that Wells Fargo employees called plaintiffs' cell phones "using" equipment which has the capacity to autodial."
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: Kohn TCPA Defense Claim
« Reply #4 on: June 27, 2017 03:09:32 PM »
Reading those two opinion leads me to the conclusion that the debtor asked the wrong questions in discovery, allowing the plaintiff to cloud the real issue which is THE CAPABILITY of the system to autodial.

Bruno the JDB Killer

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Re: Kohn TCPA Defense Claim
« Reply #5 on: June 27, 2017 06:56:23 PM »
They probably did absolutely nothing to prove an autodialer was used other than just claiming in court that they did, with absolutely no admissible evidence to support their claim. No phone manual produced by a debt collector will be self incriminating.

 These cases illustrate that in the 7th, judges require evidence. Isn't that a novel concept?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: Kohn TCPA Defense Claim
« Reply #6 on: June 28, 2017 01:49:30 AM »
And the defendants went after THE WRONG EVIDENCE.

If I were doing discovery, I would request the make, model and serial number of their telephone system.  Research would show what that system is "capable"...statutory language...of doing.


Bruno the JDB Killer

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Re: Kohn TCPA Defense Claim
« Reply #7 on: June 28, 2017 12:13:40 PM »
It will be darn near impossible to prove they actually used an autodialer or a capable system. They usually lie and say they had somebody sit there with a handset and dial the number. Absent a recording, it's your word against theirs. This is why TCPA cases are so hard to win.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

arand

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Re: Kohn TCPA Defense Claim
« Reply #8 on: June 28, 2017 03:00:26 PM »
Thanks for the comments. I appreciate them.

aaabbb

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Re: Kohn TCPA Defense Claim
« Reply #9 on: June 28, 2017 03:35:04 PM »
It will be darn near impossible to prove they actually used an autodialer or a capable system. They usually lie and say they had somebody sit there with a handset and dial the number. Absent a recording, it's your word against theirs. This is why TCPA cases are so hard to win.
TCPA suits have never been easier to win. At the moment you only have to prove that they COULD have used their system to autodial. It doesn't currently matter if they actually autodialed or not. It does not matter if they "had someone sit there with a handset and dial the number" if the system used had the capacity to autodial in any way. That's probably going to change by the end of the year, unfortunately, but there's a reason TCPA cases are being filed 100x more frequently than they were in the past.

Bruno the JDB Killer

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Re: Kohn TCPA Defense Claim
« Reply #10 on: June 28, 2017 03:48:02 PM »
"To summarize, there is no evidence that the calls to plaintiffs' cell phones were autodialed. Rather, the evidence is that the calls were dialed manually."

This is from one of the two cases I gave you. It is clear that the court requires proof that an autodialer was used. Anybody can claim it could have been used, but that doesn't satisfy the statute. Here's another case from your circuit.

At the end of December 2015, in Norman v. Allianceone Receivables Mgmt., Inc., No. 15-1780 (7th Cir.), the Court of Appeals for the Seventh Circuit upheld a lower court’s award of summary judgment in favor of the defendant company in a TCPA autodialer lawsuit. The plaintiff alleged that the defendant company used an autodialer to place an uninvited telemarketing call to his home; the defendant company insisted, however, that no autodialers were used.

Previously, the district court granted summary judgment to the defendant, holding that no reasonable jury could find in favor of the plaintiff given the evidence provided. Indeed, the defendant provided a call log and a declaration from its vice president saying that the calls were not placed using an autodialer. The court held that this evidence was admissible as a business record.

The plaintiff, however, explained, that when he answered calls from the defendant, he heard a pause, clicking, and dead air. The plaintiff submitted a Federal Communication Commission (“FCC”) guide explaining that autodialers “often” result in “hang ups” and “dead air.” The district court refused to admit the FCC guide into evidence, ruling that the excerpt was hearsay not within any exception. The court granted the defendant’s motion for summary judgment.

The Seventh Circuit agreed and affirmed the award of summary judgment. It held that the district court’s evidentiary rulings were appropriate and further noted that, even if the FCC guide was allowed into evidence, it would not be sufficient to create a dispute of fact because “the guide said only that autodialers often produce dead air; it did not say the converse – that dead air means that a call was autodialed.”
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

aaabbb

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Re: Kohn TCPA Defense Claim
« Reply #11 on: June 28, 2017 04:08:14 PM »
Quote
This is from one of the two cases I gave you. It is clear that the court requires proof that an autodialer was used. Anybody can claim it could have been used, but that doesn't satisfy the statute. Here's another case from your circuit.
The FCC was very clear in July 2015. Any device with the "capacity" to autodial constitutes use of an "autodialer" even if the autodial function wasn't used.

Quote
The plaintiff, however, explained, that when he answered calls from the defendant, he heard a pause, clicking, and dead air. The plaintiff submitted a Federal Communication Commission (“FCC”) guide explaining that autodialers “often” result in “hang ups” and “dead air.” The district court refused to admit the FCC guide into evidence, ruling that the excerpt was hearsay not within any exception. The court granted the defendant’s motion for summary judgment.
The Plaintiff clearly didn't do anything to prove that the system had the capacity to autodial. He basically argued "it kinda seemed like an autodialer to me", so of course he lost. Anecdotal evidence isn't "proof" that a phone system has the capacity to autodial. If he had instead proved that the system in question is used by other businesses to place autodialed calls he would have won.

Bruno the JDB Killer

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Re: Kohn TCPA Defense Claim
« Reply #12 on: June 29, 2017 11:52:27 AM »
Not necessarily. The 7th seems to be a bit more strict on this. Many cases have been lost when the caller claimed to have used a separate handset to place the call and the plaintiff couldn't prove otherwise. A handset or cell does not have the "capability" you describe. I posted 3 cases that basically say this, I don't know what else you need.

The Plaintiff clearly didn't do anything to prove that the system had the capacity to autodial.


I don't see where he even proved that they used the system, so what difference does it make?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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