Author Topic: TCPA Violation? -- Avant Credit  (Read 762 times)

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BellEbutton

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Re: TCPA Violation? -- Avant Credit
« Reply #15 on: August 15, 2014 08:04:18 PM »
I don't see where you have to make an agency argument. You have custody and control of the phone, and it's you who revoked consent to call. They called anyway. That's a violation.

Osorio, as I recall, was about a man and woman living together (not married) where the woman gave the number to someone. The argument was about whether or not she had the authority to do so.

In this case, nobody else seems to be involved. I would say 7 x 1500 is the starting point.

I believe the TCPA was violated, but I brought up the issue about a company-issued phone because can't find any cases about it.  I just thought it was something that people need to think about before automatically suing.

I've known people who have company phones but were not allowed to use those phones for personal use or give out that number as a personal contact number.  If a company has those rules but a person uses the phone for personal use anyway, they would want to be careful about suing because it could get back to their employer.  If through discovery the debt collector finds out that a business is the subscriber to the cell phone plan, that could lead to getting the employer involved.

Brunothe JDBKiller

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Re: TCPA Violation? -- Avant Credit
« Reply #16 on: August 15, 2014 08:39:42 PM »
I think one affidavit from the employer would dispense with this issue. This has nothing to do with business, the employer should not be involved. As long as the employer says the phone can be used for personal use, he's in the clear.
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 Violation? -- Avant Credit
« Reply #17 on: August 15, 2014 08:50:29 PM »
I think one affidavit from the employer would dispense with this issue. This has nothing to do with business, the employer should not be involved. As long as the employer says the phone can be used for personal use, he's in the clear.

I agree with you.  But my point is that some people may not want to take a chance on getting the employer involved at all even with just an affidavit.  A debt collector who wants to pursue the issue could request proof that the user of the business cell phone had the right to give consent in the first place.   That proof could require something from the employer. 

Brunothe JDBKiller

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Re: TCPA Violation? -- Avant Credit
« Reply #18 on: August 15, 2014 08:56:00 PM »
It may be necessary to establish who had control of the phone. Maybe the employer could be named as a co-plaintiff, that would be fun. Either that or the affidavit could be worth a percentage of the damages received. Privately, of course.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

JujuNola

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Re: TCPA Violation? -- Avant Credit
« Reply #19 on: August 15, 2014 09:29:46 PM »
Oh my.  Well, this certainly gives me something to think about.  I certainly wouldn't want to get my employer involved.  I'm not worried about whether I could use the phone for personal use, because it's pretty standard practice across the company, I just don't care for them to know my financial business/mess.

So, there's probably no way getting around having to involve my employer.  And honestly, I wouldn't even know who to go to for an affidavit.  I work for a pretty large corporation.

I did reach out to my attorney and she did say that if we pursued this, according to the contract arbitration is the only way to go.  From what I've read, I can choose between AAA and JAMS.  Avant would pay my fees upfront and if I lost, I'd just have to pay arbitration cost not exceeding state court costs.

BellEbutton

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Re: TCPA Violation? -- Avant Credit
« Reply #20 on: August 15, 2014 09:33:57 PM »
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Avant would pay my fees upfront and if I lost, I'd just have to pay arbitration cost not exceeding state court costs.

I thought that in JAMS, consumers don't have to pay arbitration costs except for $250.00?

JujuNola

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Re: TCPA Violation? -- Avant Credit
« Reply #21 on: August 15, 2014 09:39:11 PM »
Here's part of the contract...

Quote
1. Who arbitrates?

AAA, JAMS, or an agreed Arbiter. You may select the American Arbitration Association (“AAA”) (1-800-778-7879) http://www.adr.org or JAMS (1-800-352-5267) http://www.jamsadr.com. The parties may also agree in writing to a local attorney, retired judge, or Arbiter in good standing with an arbitration group. The Arbiter must arbitrate under AAA or JAMS consumer rules. You may get a copy of these rules from such group.  Any rules that conflict with any of our agreements with you, don't apply.  If these options aren't available, and the parties can't agree on another, a court may choose the Arbiter. Such Arbiter must enforce
your agreements with us, as they are written.

2. Will you ever pay Arbitration Fees?   

Yes.    If the Arbiter doesn't award you funds, then you must repay the Arbitration Fees. If you must pay Arbitration Fees, the amount won't  exceed state court costs.

kevinmanheim

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Re: TCPA Violation? -- Avant Credit
« Reply #22 on: August 15, 2014 09:59:18 PM »
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If you must pay Arbitration Fees, the amount won't  exceed state court costs.

That's a good deal.

JujuNola

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Re: TCPA Violation? -- Avant Credit
« Reply #23 on: August 15, 2014 10:09:40 PM »
As for whether I have authorization to use the phone for personal calls, I just reread our policy and it says, "Personal usage of company issued devices should be kept to a reasonable level".  I guess I've been doing a good job of that since I never got yelled at.  :D

If there's a way around having to involve my employer, I'd gladly move forward with this thing.

BellEbutton

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Re: TCPA Violation? -- Avant Credit
« Reply #24 on: August 15, 2014 10:25:11 PM »
As for whether I have authorization to use the phone for personal calls, I just reread our policy and it says, "Personal usage of company issued devices should be kept to a reasonable level".  I guess I've been doing a good job of that since I never got yelled at.  :D

If there's a way around having to involve my employer, I'd gladly move forward with this thing.

Not getting yelled at is good.  :)

The only way I could see the employer getting involved is because you won't be able to claim that you're the subscriber.  You can only claim that you're a "user" of the phone.  If the debt collector notices that distinction and doesn't settle right off the bat, that's what could possibly involve the employer.