956 F. Supp. 2d 962
W.D. Wis.2013Background
- Terri Beal bought timeshare points from Wyndham on July 9, 2009, financed the purchase, then stopped paying; Wyndham kept a security interest and collection rights under the contract.
- Wyndham’s in-house collectors placed autodialed calls to numbers Beal provided, including a cell phone (ending 4507); records show at least 112 calls Nov 19, 2009–Feb 25, 2010 and 19 calls Feb 26–July 9, 2010; Beal spoke to an agent and asked the calls to stop on January 8, 2010.
- Wyndham filed a state-court action (June 20, 2011) without attaching the contract and (according to the state court) without giving the statutorily required pre-suit notice; the state court granted Beal summary judgment on the notice ground.
- Beal sued in federal court alleging: TCPA violations (autodialed/prerecorded calls to her cell), Wisconsin Consumer Act (WCA) and Wis. Stat. ch. 428 violations based on calls, credit reporting and state litigation conduct, and common-law invasion of privacy and private nuisance based on calls and service of process.
- Cross-motions for summary judgment resolved: (1) WCA claims based on credit reporting, state-litigation pleading defects, false allegations, and attorney-fee requests were dismissed for Beal; (2) invasion-of-privacy/nuisance claims based on service of process were dismissed; (3) invasion-of-privacy/nuisance claims based on the pattern of calls (Nov 2009–July 2010) survive as timely under the continuing-violation doctrine; (4) TCPA: calls before Jan 8, 2010 dismissed because Beal initially consented by providing her cell number; calls after Jan 8, 2010 (27 calls + 2 prerecorded messages) judged TCPA violations because Beal revoked consent on Jan 8, 2010 — Beal awarded $14,500 in statutory damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WCA liability attaches for collection calls | Beal: WCA claims for collection calls proceed (not moved for summary judgment) | Wyndham: previously raised SOL defense then withdrew it for some calls | WCA claim based on calls remains for trial (not resolved on summary judgment) |
| Whether WCA/state-law claims can be based on defects in Wyndham’s state-court pleading and pre-suit notice | Beal: filing without contract attachment and without proper right-to-cure notice violated WCA/§427.104 | Wyndham: pleading/notice errors are procedural and remedy is dismissal of state action, not separate WCA liability | Court: procedural defects are not an independent WCA/private-law tort basis; summary judgment for Wyndham on these theories |
| Whether Beal’s invasion-of-privacy and private-nuisance claims based on collection calls are time-barred | Beal: pattern of repeated calls is a continuing violation; last call (July 2010) makes claim timely | Wyndham: calls before Feb 26, 2010 are barred by SOL; continuing-violation inapplicable | Court: continuing-violation doctrine applies; claims based on Nov 2009–July 2010 calls survive trial |
| Whether Beal revoked prior express consent to autodialed calls and is entitled to TCPA damages for post-revocation calls | Beal: she revoked consent orally on Jan 8, 2010 when she told collector to stop calling; thus calls after that date violated TCPA | Wyndham: provided number constituted irrevocable consent; revocation must be written or is unavailable for debt-collection calls | Court: under common-law meaning of consent, revocation is permitted orally; Beal revoked on Jan 8, 2010; Wyndham liable under TCPA for 27 calls + 2 prerecorded messages after that date; statutory damages awarded $14,500; treble damages denied on undeveloped record |
Key Cases Cited
- Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir. 2000) (limits on permissible errata changes to deposition transcripts)
- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (U.S. 2002) (continuing violation doctrine vs. discrete acts)
- Kovacs v. United States, 614 F.3d 666 (7th Cir. 2010) (describing continuing-violation doctrine effect on accrual)
- Hukic v. Aurora Loan Services, 588 F.3d 420 (7th Cir. 2009) (continuing-violation as defense to limitations; distinction for discrete reporting acts)
- Sunnyside Feed Co., Inc. v. City of Portage, 222 Wis.2d 461 (Wis. Ct. App. 1998) (continuing nuisance theory under Wisconsin law)
- Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1 (Wis. 1991) (distinguishing single negligent acts from a continuing course of conduct)
- Rosendale State Bank v. Schultz, 123 Wis.2d 195 (Wis. Ct. App. 1985) (purpose of notice of right to cure to preserve customer‑merchant relationship)