Author Topic: Cases or laws to cite for ability to revoke consent via TCPA  (Read 5279 times)

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KFMAN

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #30 on: June 12, 2011 05:38:28 AM »
I think TCPA cases are easy.  You either have them or you don't.  How cut and dry does it need to be?

silverzgirl

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #31 on: June 13, 2011 12:27:35 PM »
No one here can prove you wrong, because we are not your opponent in court. We have no idea what you did or didn't provide to your opponent in the way of express consent. 

The burden of proving express consent existed is upon your opponent. If you didn't provide it to them, you haven nothing to worry about. If you did provide it to them, and you revoked it in recorded calls, what else do you need?

This isn't a case in which you are going to go to trial or collect $50,000. It's a matter of writing a good complaint and then dancing around the ring with your opponent for a while, eventually settling for a few grand. Don't think too much into it.

THis.

“Know your enemy and know yourself and you can fight a hundred battles without disaster.”  - Sun-Tzu

I am not a lawyer, nor do I play one on TV. I once thought I was a lawyer when I was litigating in a courtroom, but turns out I just had Patron induced bed spins and dreamed it all. Take my posts with a grain of salt...and a shot of Patron. But not so much you think you are a lawyer.

CAVU

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #32 on: June 16, 2011 02:11:25 AM »
GAConsumer,
As I suggested if you read back through the posts you might have a better handle on the conversation before you jump in.   I am not picking on you specifically so don't take direct offense.  There seems to be a lot of erroneous info on this thread. 

1st, I've tried to find a lawyer in my state who will take the case.  However the two lawyers in my area who do TCPA cases have both declined the case for the same reason.  They do not believe I have the ability to revoke consent to an auto dialer.  As I implied in my last statement to you, if you read back through the history you'll see that I mentioned that not only in this thread but others as well.  Nothing would please me more than to hand this over to an attorney but as I have repeatedly pointed out they do not believe I have a case due to the question of if I can revoke consent. 

2nd, Attorneys while useless wastes of space do have some experience in these matters.  They have vastly more experience than you or I have when it comes to the law.  In point of fact I actually have a legal background but I am not a lawyer and do not have experience in this particular area of the law.  So I tend to defer to their judgment.  I am willing to give it a go given all the "evidence to the contrary" here on Debtor Boards.  As I have said before, if it looks like I am going to lose I just file for bankruptcy.  Given that I have yet to have uncovered a case that closely matches the particulars of mine I do want to make sure I do it right because if I lose it ruins it for all of us. 

3rd, Many people here think they won because they have a case.  Often this is purely a financial decision on the part of the creditor.  Not because they have a strong case. 

I asked repeatedly for a answer to my question.  What I got back repeatedly (With one exception, thanks KM) was "So and So thinks its ok to do this" but so and so didn't back up his/her opinion with any concrete evidence.   That's not going to work for me.  I am looking for something, anything which clearly states that a debtor can revoke consent.  Everything I've seen so far says otherwise. 

At the end of the day it is my neck on the line.  I am not going to go into a fight without all the proper tools.  We here on Debtor boards are already handicapped by our Pro Se status and lack of legal representation.  Judges HATE Pro Se litigants.  So we've already got one hand tied behind our backs.  Add to it not having a good grasp of the law and process will really make life difficult playing a game where the rules are not only unknown to you but also stacked against you. Further I need to educate a judge on the TCPA.  That is going to take some work.  I want to have all those answers in hand before I start the education process.  "Can I revoke consent" seems to be a logical question the judge (or anyone else) might ask.

I've reviewed the document you suggested and nowhere in it does it say anything about the ability for a established business relationship to be revoked before the contractual agreement is completed.  In point of fact it seems to imply the opposite which does allow the creditor to contact the consumer.  I had hoped to find evidence to the contrary but alas I have not.  Thankfully this case was overturned due to jurisdiction so the "Jury" is still out as it were. 

Someone posted earlier " It is not a difficult argument to make that if express consent can be given, it can be taken away. To say otherwise would be absurd and lead to absurd legal conclusions; the law eschews absurdity"  In theory I agree, however in my (granted limited) experience this is not the case.  While it makes sense that I can revoke consent it does not make sense that I can do so before the contract is completed. 

Someone else " I don't think you need much of an argument on withdrawing any "alleged" permission.  I would use everyday examples.  I know it is court, but a common sense approach could still be used.  What possible legitimate argument could somebody make that a person cannot withdraw permission for somebody calling them. "  A logical argument would be that Debtor agreed to let creditor call until debtor paid off owed amount.  Since debtor has not paid off the amount owed, Creditor can call as often as creditor wants until the debt is paid off.  That is a simple statement to an agreed contract.  I agreed to borrow X amount, therefore until I pay back X amount you can still call.  Same thing as collateral.  If I agree to borrow X amount and put my car up as collateral, you can keep the car until I pay off the debt.  To use the cited example would suggest, that I could get the car back before I complete my contract. 

Further someone else suggested "The EBR exemption does not apply to cell phones".  I challenge that poster to support this claim.  You cannot pick and choose which part of the law applies here.  As I read the law nowhere does it create an exemption for Cell Phones and an established business relationship". 

Same poster also says I "kept asking for specific authority on the ability to revoke consent, and it was right there in front on you in the 2008 Declaratory Ruling".  I must be reading a different ruling because I can find nothing in it which says I can revoke consent.  I challenge said poster to point out the "Obvious" that I am missing.  Nothing would please me more to be wrong here as it is the smoking gun in my case.

So lets make sure we are all on the same page here.  I am trying to file suit for violations of the TCPA for using a auto dialer to call a debtors cell phone. 

There are many cases where people have successfully sued for junk faxes.  I have been provided many examples where this is the case.  There are not many cases for which someone has successfully sued for a creditor calling a cell phone in violation of the TCPA.  With what has been provided to date I would have to undergo a significant education effort for the judge presiding over my case.  I would prefer not to do so. 

So now in summary just in case anyone didn't understand the above
Don't have a lawyer willing to take the case, must file "Pro Se".  As a "Pro Se" litigant going in to court I want to have all the best ammo at my disposal to fight this.  I am looking for cases which a individual has successfully sued for a creditor calling a cell phone in violation of the TCPA.  Not one that has settled without a verdict, and not one suing over junk faxes.  I am looking for one where the ability to revoke consent is clearly spelled out.  If that exists it would be in the best interest of all here on Debtorboards to post a link.
What the heck do I know?  If I were a lemming I would be #2 in the pile at the bottom of the cliff.

Shadowbuddha

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #33 on: June 16, 2011 02:28:58 AM »
http://scholar.google.com/scholar_case?case=1644430459266593369&q=TCPA+revoke+consent&hl=en&as_sdt=2003

Consent revoked simply by sending a DV letter.  They didn't validate.  So while not exactly the same, it shows that consent can be revoked.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

CAVU

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #34 on: June 16, 2011 02:49:43 AM »
http://scholar.google.com/scholar_case?case=1644430459266593369&q=TCPA+revoke+consent&hl=en&as_sdt=2003

Consent revoked simply by sending a DV letter.  They didn't validate.  So while not exactly the same, it shows that consent can be revoked.

In my particular case I am dealing with the OC so the FDCPA does not apply.  The Defendant in the Sengenberger v. CREDIT CONTROL SERVICES case is a Debt Collector.  And thus exposed to the FDCPA, which is the law cited in the judges ruling on revoking consent.  That can't be applied to a OC.  The FDCPA is very clear on this issue, the TCPA is not.  Thus the struggle.

So I am still looking for a TCPA case with an OC as the defendant.  If we can answer this question we will really put a major hurt on the credit industry. 
What the heck do I know?  If I were a lemming I would be #2 in the pile at the bottom of the cliff.

Shadowbuddha

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #35 on: June 16, 2011 03:11:17 AM »
While the DV is an FDCPA device, summary judgment was granted on TCPA grounds that the DV letter revoked consent.  The issue is whether consent can be revoked.  This case says that at least in this particular manner it can be revoked.  While I suppose one could (and D will) argue that consent can be revoked via a DV letter, it cannot be revoked by simply expressly revoking it, I doubt a court would agree.

"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

KFMAN

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #36 on: June 16, 2011 03:22:31 AM »
IN the above case, SEE CREDITOR= OC:

("To ensure that creditors and debt collectors call only those consumers who have consented to receive autodialed and prerecorded message calls, we conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent. The creditors are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications.") The TCPA authorizes recovery of either the actual monetary loss or statutory damages of $500 for each violation, whichever is greater. 47 U.S.C. § 227(b)(3).


You're making this way too hard. 
« Last Edit: June 16, 2011 03:34:55 AM by KFMAN »

BigCrawley

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #37 on: June 16, 2011 04:03:09 AM »
Collector A calls 1-2 times a day to my cell phone, attempting to collect a debt (not an OC). Leaves prerecorded messages to call, complete with mini-miranda, etc.

Am I correct in reading that the onus is on the collector to prove expressed consent to receive the calls? Would that consent follow from an OC credit agreement?

Not trying to thread jack, but if I am, mods please move this post to wherever is best
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A lot of debtors don't care about getting sued, a few really sick ones look forward to it. -coltfan1972

CAVU

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #38 on: June 16, 2011 04:32:43 AM »
BigCrawley,
That seems to be the consensus.  Both here and by legal opinion.  The open question is what constitutes express consent.  If you put down your cell phone number on the credit card agreement that implies that you consent to calls to your cell phone.  However since you are dealing with a collection agency the FDCPA clearly says you can revoke consent.  Continued calls to your cell phone would then be a violation of the TCPA and FDCPA.  LOTS of case law to support that.   
What the heck do I know?  If I were a lemming I would be #2 in the pile at the bottom of the cliff.

Shadowbuddha

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #39 on: June 16, 2011 04:41:32 AM »
Cite me the case law that FDCPA grants the right to revoke TCPA mandated express consent please.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

CAVU

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #40 on: June 16, 2011 04:46:01 AM »
Cite me the case law that FDCPA grants the right to revoke TCPA mandated express consent please.

Didn't you just post a case that says exactly that?  http://scholar.google.com/scholar_case?case=1644430459266593369&q=TCPA+revoke+consent&hl=en&as_sdt=2003

The judge cited the FDCPA in his ruling.

Defendant argues that as a matter of policy, Sengenberger's consent allowing Dr. Munoz to call his cell phone should extend to Quest and Defendant. Plaintiff contends that the consent given to Dr. Munoz should not extend to Defendant because the plain language of the statute states that consent must be express. Plaintiff further argues that even if the Court finds that he did give Defendant consent, this consent was explicitly revoked by his December 26th letter. In his letter, Plaintiff acknowledged a December 23, 2008 collection call and explicitly disputed the debt. Pursuant to the Fair Debt Collection Practices Act ("FDCPA"):

f the consumer notifies the debt collector in writing within the thirty-day period [][after receiving the initial communication] that the debt, or any portion thereof, is disputed [], the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification or judgment [] and a copy of such verification is mailed to the consumer by the debt collector.
15 U.S.C. 1692(f) § 809(b).

Accordingly, after the receipt of Plaintiff's letter, Defendant should have ceased all collection calls and verified the debt. Plaintiff sent his letter via certified mail and the letter was signed for by Troy Delgado. While Defendant states that it has no independent record of receipt, delivery confirmation records indicate that the letter was delivered on December 29, 2008. Defendant further argues that Plaintiff's letter was insufficient to revoke consent because it did not contain any information as to the specific account number and because Plaintiff's zip code was incorrect. Defendant fails to assert how either of these facts are relevant to the revocation of Plaintiff's consent, particularly because the statute does not explicitly name either of those criterion as necessary to halt collection calls regarding disputed debts. Accordingly, I find that Defendant did not have consent to make collection phone calls to Plaintiff after December 29, 2008.
What the heck do I know?  If I were a lemming I would be #2 in the pile at the bottom of the cliff.

Shadowbuddha

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #41 on: June 16, 2011 04:53:25 AM »
The case is properly read to understand that consent could be withdrawn/revoked.  The plaintiff in that case won on summary judgment on TCPA claims, not FDCPA claims.  The FDCPA just happened to be the route revocation occurred.

Yes, it doesn't say "TCPA express consent can be revoked in X manner" but it is up to you to use logic and reason and show how this is applicable to your case.

To argue otherwise would somehow mean that one statute requires express consent to do an action, but only via AN UNRELATED STATUTE could consent be revoked.  Highly illogical and unreasonable.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

CAVU

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #42 on: June 16, 2011 05:14:16 AM »
But it isn't unrealted.  The case in discussion is dealing with a Collection agency NOT an Original Creditor.  The FDCPA does not apply to orgininal creditors (In my particular case).  In the case of BigCrawley he/she is dealing with a Collection Agency, thus the FDCPA would apply.

"Plaintiff filed his forty-count complaint alleging violations of the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act." CREDIT CONTROL SERVICES, INC. d/b/a CREDIT COLLECTION SERVICES is a collection agency.

So the FDCPA clause to revoke consent would apply as the judge opined.  Specifically the plaintiff under the FDCPA sent a letter to the defendant stating not to call his phone number as allowed by the FDCPA.  It doesn't matter that it is a cell phone or land line.  The cease and desist applies to the collection agency under the FDCPA regardless of the method of delivery.   Anything after that would be a violation.  It reads to me as a double violation since not only has a cease and desist been submitted the calls are also placed to a cell phone.  So one could easily apply both the TCPA and the FDCPA.  Probably the reason the defendant settled. 

Again you guys seem to miss the part about the collection agency and original creditor.  The FDCPA does not apply to the original creditor.  It does apply to a collection agency. 
What the heck do I know?  If I were a lemming I would be #2 in the pile at the bottom of the cliff.

Shadowbuddha

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #43 on: June 16, 2011 05:48:09 AM »
So your argument is that this court said consent for TCPA can only be revoked via an FDCPA DV letter?  Fine.  Take that reading and run with it.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

CAVU

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Re: Cases or laws to cite for ability to revoke consent via TCPA
« Reply #44 on: June 16, 2011 06:54:01 AM »
I don't understand why you guys are getting so bent out of shape on this stuff.  It's not personal for you, yet some of you seem to be taking it that way.  I don't agree with your opinion so I continue to go to the well and drink.  Yet some of you seem to think your answer is the only answer that can ever be right.  I am just asking you to show your work (just like your math teacher probably did in elementary school).

This back and forth questioning is what good lawyers do all the time.  You've heard the term "devil's advocate".  All good lawyers (Humor me with the idea that they do exist) will sit with other council and discuss these very types of potential arguments and prepare counter argument well in advance of a court date.  (I've sat in many of those types of meetings.)  The very arguments I have suggested in this thread have all been presented by opposing council shown in the court cases cited by the members here on Debtor Boards.  Some of them were even accepted by the judge.

I am presenting logical arguments.  These are things I am sure the opposing council will present.  Yeah, it probably won't hold water in front of a knowledgeable judge but how many TCPA knowledgeable judges are there.  I can't find a knowledgeable attorney in my state so I expect I significant amount of educating the judge on TCPA law.  All the more reason for me to prepare for any potential argument raised by opposing council.  I've got one (1) single issue that is still ambiguous in my argument.  Once I have that I've got my defendant dead in my sights.  And so will anyone else who comes later to fight the same fight.  Clarifying this issue will help everyone who comes to Debtorboards. 

I am also not asking for any of you to provide any legal advice.  I've asked for a very specific thing here.  I haven't seen it yet.  So it's possible it does not exist.  I am not looking for a 70 page scholarly thesis on exactly my point.  I am looking solely for a court opinion on specific revocation of consent.  As I said, it may not exist.

So some posters in this thread got a little bent out of shape being challenged over their opinion (something they readily point out is "Only their opinion, not legal advice").  Big deal.  Everyone has an opinion.  Some you will agree with, some you won't.  You don't have to post in my threads if you don't want to.  Relax.  We are all just posting our "Opinions" on an anonymous Internet forum.  There is no reason to get bent out of shape because someone disagreed with your "Opinion".
What the heck do I know?  If I were a lemming I would be #2 in the pile at the bottom of the cliff.