Author Topic: Mais v. Gulf Coast - 11th Circuit Sides with Debt Collector  (Read 237 times)

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BellEbutton

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Mais v. Gulf Coast - 11th Circuit Sides with Debt Collector
« on: September 30, 2014 08:47:06 PM »
Excerpts:

"Plaintiff Mark Mais filed a claim in federal district court against a hospital-based radiology provider and debt collection agent for making autodialed or prerecorded calls in violation of the Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 120-243, 105 Stat. 2394 (codified at 47 U.S.C. § 227).  Defendant Gulf Coast Collection Bureau, Inc. ("Gulf Coast") argued that the calls fell within the statutory exception for "prior express consent," as interpreted in a 2008 declaratory ruling from the Federal Communications Commission (the "FCC" or "Commission").  See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2008 FCC Ruling), 23 FCC Rcd. 559, 564.  The district court granted Mais partial summary judgment against Gulf Coast for alternative reasons:  the FCC's interpretation was inconsistent with the language of the TCPA and, regardless, the 2008 FCC Ruling did not apply on the facts of this case.

As we see it, the district court lacked the power to consider in any way the validity of the 2008 FCC Ruling and also erred in concluding that the FCC's interpretation did not control the disposition of the case."


"And Mais's claim falls squarely within the scope of the FCC order, which covers medical debts.  The 2008 FCC Ruling "concluded[d] that the provision of a cell phone number to a creditor, e.g., as part of a credit application reasonably evidences prior express consent to be contacted at that number regarding the debt."

"There is no dispute that Mais's wife listed his cell phone number on a hospital admissions form and agreed to the hospital's privacy practices, which allowed the hospital to release his health for the billing creditor.  As a result, the TCPA exception for prior express consent--as interpreted in the 2008 FCC Ruling--entitles Gulf Coast to judgment as a matter of law."



http://www.insidearm.com/wp-content/uploads/Mais-v-Gulf-Coast-11th-Circuit.pdf?8b505b

HarryC

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Re: Mais v. Gulf Coast - 11th Circuit Sides with Debt Collector
« Reply #1 on: Yesterday at 01:45:17 AM »
That's no big surprise.  A district court in Florida ruled a while back that providing your number to a creditor was implied consent, not express consent.  Was probably this case, but could have been a different one.

I didn't expect the appeals court to agree with that finding, although it would have been nice.
I'm not a lawyer and I'm not even very smart.  You'd be well advised not to listen to anything I have to say.

HeadsUp

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Re: Mais v. Gulf Coast - 11th Circuit Sides with Debt Collector
« Reply #2 on: Yesterday at 02:13:10 PM »
What if the debtor had revoked consent in writing?
Finally a collector admits it...

"The reality is that there are people who can't pay and the job of an agency in my opinion is to separate those who can and those who cant and to not waste resources and efforts on those who cant." -- Dr. Evil.

All this nonsense about aggressive judgment enforcement against someone with no assets is just that-- utter nonsense.

http://www.debtorboards.com/index.php?topic=13309.msg100303#msg100303

kevinmanheim

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Re: Mais v. Gulf Coast - 11th Circuit Sides with Debt Collector
« Reply #3 on: Yesterday at 02:32:28 PM »
What if the debtor had revoked consent in writing?
Only the 3rd Circuit has addressed the issue of revoking consent. Gager v. Dell. The court said consent could be revoked.

hamsalad

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Re: Mais v. Gulf Coast - 11th Circuit Sides with Debt Collector
« Reply #4 on: Yesterday at 04:44:52 PM »
Only the 3rd Circuit has addressed the issue of revoking consent. Gager v. Dell. The court said consent could be revoked.

The 11th Circuit ruled that consent can be revoked both in writing and orally.  See Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014).

http://www.lexology.com/library/detail.aspx?g=9956722b-0a73-48fc-84d8-f6637a5ba0c5

Brunothe JDBKiller

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Re: Mais v. Gulf Coast - 11th Circuit Sides with Debt Collector
« Reply #5 on: Yesterday at 05:38:52 PM »
•   27. 27 TCPA & the FDCPA – Revoking Prior Express Consent • Revocation of Consent- Writing Required Where FDCPA Applies – Some courts hold revocation of consent in debt collection by consumer is governed by the FDCPA, not the TCPA, and must be in writing because it is a “cease & desist” request per 1692c(c). Starkey v. Firstsource Advantage, 2010 WL 2541756 (W.D.N.Y. Mar. 11, 2010); Cunningham v. Credit Management, L.P., 2010 WL 3791104 (N.D. Tex. Aug. 30, 2010) Moore v. Firstsource Advantage, LLC, 2011 U.S. Dist. LEXIS 104517 (W.D.N.Y. Sept. 15, 2011); Moltz v. Firstsource Advantage, LLC, 2011 U.S. Dist. LEXIS 85196 (W.D.N.Y. Aug. 1, 2011) • Revocation – Oral Ok - No Writing Required Even When FDCPA applies. – Other courts say oral revocation is ok and no writing required. Gutierrez v. Barclays Group, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011) (holding Starkey does not address whether a called party may orally revoke its prior express consent to receive certain automated calls); See Adamcik v. CCS, 2011 U.S. Dist. LEXIS 150107 (W.D. Tex 2011) (holding TCPA and FDCPA are two separate statutes; because TCPA silent on how consent can be revoked, oral revocation is effective).

•   28. 28 TCPA & the FDCPA – Revoking Prior Express Consent • Timing of Revocation – Revocation at Time Application Executed – Letter by debtor to creditor does not revoke prior express consent to call cell phone because revocation must be made at time person "knowingly release(s)" her telephone number. Gager v. Dell Fin. Servs., LLC, 2012 U.S. Dist. LEXIS 73752 (M.D. Pa. May 29, 2012) (hearing on appeal held on 5/13/13 ). • Court held that FCC’s 1992/2008 Orders imply that the "instructions to the contrary" to revoke consent must be made at time person "knowingly releases " her telephone number. (Id. at *15,16) • Saunders v. NCO Fin. Sys., 2012 U.S. Dist. LEXIS 181174 (E.D.N.Y. Dec. 19, 2012) (following Gager and stating when consumer opens an account he cannot complain about being called at number given); • Cardoso v. Suncoast Schs., FCU, 2012 U.S. Dist. LEXIS 173168 (M.D. Fla. Dec. 6, 2012) (acknowledging argument that a verbal revocation would be insufficient to revoke "prior express consent" under the TCPA) • Kenny v. Mercantile Adjustment Bureau, LLC, 2013 U.S. Dist. LEXIS 62415 (W.D.N.Y. Apr. 29, 2013)(holds under either Starkey or Gager line of cases, consent was not revoked)




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