• Florida District Courts Determine Collector Had Consent Under TCPA to Call Debtor
  • December 7, 2012 | Authors: Avanti D. Bakane; Barbara Fernandez
  • Law Firms: Hinshaw & Culbertson LLP - Chicago Office ; Hinshaw & Culbertson LLP - Coral Gables Office
  • Two Florida district courts recently granted summary judgment in favor of debt collector defendants, where plaintiff debtors claimed that the collectors did not have consent to call the cellular telephones despite the fact that debtors had provided the cellular numbers to creditor.

    In Sherone Johnson v. Credit Protection Association, LP, No. 11-80604, slip op. (S.D. Fla. Nov. 20, 2012), the debtor claimed that debt collector violated the Telephone Consumer Protection Act (TCPA) because the debtor claimed that he gave permission to a creditor, which was a cable company, to call his cell only with respect to installation but not subsequent collection calls. The court observed that the debtor put forth no evidence that he told the creditor it could only contact him for purposes of installing his cable services when he gave his cell number. Judgment was therefore entered in defendant’s favor on the TCPA claim.

    In Jordan v. ER Solutions, Inc., No. 10-CV-62409-WPD, slip op. (S.D. Fla. Oct. 18, 2012), the district court granted summary judgment in the debt collector’s favor, finding that because the debtor had provided her cellular number to the creditor, the debt collector had consent to call it. The debtor argued that a modified contract with the creditor revoked the debtor’s consent. The district court disagreed, concluding that the modification of the contract, even if applicable, did not revoke debtor’s consent because, as pronounced by the Federal Communications Commission (FCC), the collectors’ calls are treated as if the creditor made them, and the creditor had express consent to call debtor.

    Other districts courts have similarly found that consent was given to a debt collector when the debtor provided a cellular number to the creditor. Greene v. DirecTV, Inc., No. 10-C-117, slip op. (N.D. Ill. Nov. 8, 2010) (debtor consented to be contacted by potential creditors on her cell phone number when she voluntarily released her number to potential creditors); Cavero v. Franklin Collection Srvc., No. 11-22630, slip op. (S.D. Fla. Jan. 31 2012) (where debtor did not dispute he provided number to creditor court granted summary judgment in favor of defendant debt collector); Mitchem v. Illinois Collection Serv., Inc., No. 09-C-7274, slip op. (N.D. Ill. Jan. 20, 2012) (court concluded the record established that debtor consented to receiving calls about the medical debt on his cell phone by giving the cell phone number to a medical provider).