832 F. Supp. 2d 744
W.D. Tex.2011Background
- Adamcik funded a student loan in 2008; first payment due February 14, 2010, and she made no payments.
- Wachovia referred the account to CCS on March 1, 2010 to facilitate payment or obtain a forbearance form.
- CCS used an automatic dialing system to repeatedly call Adamcik on home and cellular numbers; the parties dispute default vs delinquency.
- Trial occurred November 7–9, 2011; claims included TDCPA, FDCPA, and TCPA; jury answered questions on each statute.
- Jury found no TDCPA liability, no FDCPA liability for calls at work or disclosures, but found FDCPA harassment liability for which $300 was awarded.
- Jury found Adamcik revoked consent to autodialed calls; CCS placed 39 autodialed calls after revocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA harassment requirement proof | Adamcik argues CCS's calling pattern harassed her under §1692d. | CCS contends insufficient evidence of intent to harass. | Jury's harassment finding stands; evidence supports intent to annoy. |
| Revocation of TCPA consent—oral sufficiency | Adamcik orally revoked consent to autodialed calls; TCPA permits oral revocation. | CCS argues revocation must be written per Starkey line of cases. | Oral revocation is effective under the TCPA. |
| TCPA damages for post-revocation autodialer calls | Post-revocation autodialer calls violated §227(b)(3). | No actual monetary loss; damages limited to statutory amount per violation. | Awarded $500 per violation for 39 violations; total $19,500. |
| Willful or knowing violation and treble damages | CCS willfully violated TCPA; treble damages may be appropriate. | No willful/knowing violation proven; treble damages not warranted. | No treble damages awarded; no willful/knowingly established. |
Key Cases Cited
- Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277 (5th Cir. 2007) (JMOL standard—not granted unless verdict utterly unsupported)
- Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (Supreme Court 1994) (statutory construction principle; harmony with related statutes)
- Ruckelshaus v. Monsanto Co., 467 U.S. 986 (Supreme Court 1984) (statutory interpretation: coexisting statutes should be harmonized)