In a split with other circuits, the U.S. Court of Appeals for the Second Circuit ruled Thursday that the TCPA does not allow consumers to demand that they stop receiving automated calls if they agreed to provisions opting them in.

In Reyes v. Lincoln Automotive Financial Services, 16-2104-cv, the panel affirmed summary judgment by Eastern District Judge Leonard Wexler in a suit by a car lessee who demanded to no longer be phoned by the car financing company after defaulting on his lease.

The 2nd circuit pointed to the lack of clarity in the TCPA as to "whether a party that has so consented can subsequently revoke that consent." They noted that two other circuits, the Third and Eleventh, had found that consumers can revoke consent because doing so is allowed under common law, and permitting consumers to do so advanced the purpose of the act.

The decisions underpinned a ruling by the Federal Communications Commission in 2015 that consumers who "freely and unilaterally" gave their consent can revoke it. The panel, on which Walker was joined by Judges Dennis Jacobs and Barrington Parker, found that Reyes presents a different question, not addressed by the FCC, over whether a consumer can revoke consent that was given "not gratuitously, but as bargained-for consideration in a bilateral contract."

The panel found that Alberto Reyes' argument, relying largely on the other circuit views on common law and the FCC's rule, was reading too much into the act and declined to do the same. Relying on contract rather than common law theory, the panel found that Reyes' consent was not gratuitous, and was, instead, bound to the contract he signed. Absent an agreement by the leasing company to release him of his contractual obligation, Reyes would continue to be subject to those terms, the panel found.

"It is black-letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty," Walker wrote. Given the absence of "express statutory language" in the TCPA that allows for a changing of the contractual understanding of "consent," the panel declined to "conclude that Congress intended to alter the common law of contracts in this way," regardless of how unimportant the provision on receiving calls is to whatever good or service is being agreed to.

Consumers are taking a beating in Federal Courts this year...

FYI....

from their site

JH Capital Group, a diversified specialty finance company with operations spanning across seven states, provides a wide array of solutions for consumers and businesses across a broad range of assets. The company is a national leader in purchasing charged off consumer debt from major financial institutions....

I would give them a "reasonable" amount of time to respond to your DV letter; maybe two weeks tops.  The problem with validation is twofold; one, they don't have to respond. (they can't continue collection tho) Two, the standard is low....all they have to provide is the name of the OC and the amount. There isn't anything in the FDCPA that requires them to verify the accuracy of the debt; that's for a court to decide.

As for suing QVC, I don't see how you have any standing to sue them for selling your account. There is no law against being stupid.They may come up with some clause in the agreement that says you have to dispute any balances with them within a certain time frame.

JAMS should get their attention, although they can and may ignore the arb request.

If I thought I had a valid SOL defense, I would go with that.

The action has commenced, so I would request discovery and not worry about writing letters.

Many on this forum report success against JDBs with a MTC private contractual arbitration.

Hi, I am a new member. My question; First I am aware that a summons is not an initial communication, but I learned that after I sent a request for validation. I do not remember getting any communication from this CA, but I was very ill and have a pile of unopened mail. Can I use that request as a request for discovery instead? The Collection agency refuses to send any information about the debts and whether they have standing to sue or  if their license is valid. I want to do a motion to dismiss based on these grounds and SOL, Lack of venue as two claims are from Washington and one is from Oregon. Thank you. I have had one case against Portfolio dismissed with prejudice for SOL and lack of standing.

Did you elect arbitration in your DV letter?

If not, it might be wise to fire off a fax with the arb demand.

I don't think their settlement discussion offer is serious at this point. I think they are testing you to see how skilled you are, how much you are willing to talk.

I would respond that I will settle for a mutual walk-away. Give them 10 days to decide. Say nothing more. If they are serious, they will accept. Otherwise, I would fall silent and let them spend $250,000 on an arb and appeal.