972 F. Supp. 2d 409
E.D.N.Y2013Background
- Plaintiff incurred a debt with Household Finance for an Ameritech Gold MasterCard in 2004–2005; debt later assigned to Main Street Acquisitions which hired RPM to collect.
- RPM obtained plaintiff's cell number from Trans Union on July 16, 2010, without confirming it was a cell line.
- RPM dialed the plaintiff using an ATDS to the cell number for months, totaling 284 calls between July 2010 and January 2011.
- The number RPM dialed was plaintiff's current cell number (from 2007), not the number listed on his initial MasterCard application.
- Plaintiff never provided the new cell number to RPM or Household; RPM received it from Trans Union, and no consent to call the new number was given in writing.
- RPM argues plaintiff consented by listing a number on the initial application or by his later calls, but the Court finds no evidence of such consent for the number dialed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA liability attaches to autodialed debt calls to a cell phone | Levy contends RPM used an ATDS to call his cell without prior express consent | RPM argues prior express consent existed (via debtor’s number on original application or later updates) | Yes, TCPA liability exists; summary judgment for Levy on liability. |
| Whether prior express consent was shown for the specific dialed number | No evidence Levy provided that specific cell number to RPM or Household | Providing a former number on an application constitutes consent for subsequent calls | No genuine issue; no consent for the number dialed; summary judgment for Levy on liability. |
| Whether the debt-collection calls to a cell phone fall within TCPA exemptions | Exemption does not apply to cell phones when debt calls are involved | Existing business relationship exemptions may apply | Exemption applicable only to landlines; not applicable to cell phones; liability remains. |
| Whether treble damages can be resolved on summary judgment | Courts should award treble damages for knowing/willful violations | Knowingly/willfully disputed; facts require trial credibility | Issues of knowledge/willfulness unresolved; treble damages denied at summary judgment. |
| Whether spoliation or related evidence issues affect the TCPA ruling | Destroyed recordings could prove willfulness | Recordings not proven to exist; merits not decided at this stage | Spoliation issue noted; no impact on TCPA liability ruling at this stage. |
Key Cases Cited
- Castro v. Green Tree Servicing LLC, 959 F. Supp. 2d 698 (S.D.N.Y. 2013) (prior express consent evidence in debt collection TCPA claims)
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) (no established business relationship exemption for cell phone calls)
- Saunders v. NCO Financial Systems, 910 F. Supp. 2d 464 (E.D.N.Y. 2012) (consent by providing cell number to creditor often found; practical considerations)
- Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999 (N.D. Ill. 2010) (TCPA applicability to cell phones; no charged-for-call requirement)
- Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012) (prior express consent requirement scope)
- Chavez v. Advantage Group, 959 F. Supp. 2d 1279 (D. Colo. 2013) (FCC TCPA consent interpretations binding in district courts)
- Meadows v. Franklin Collection Serv., 414 F. App’x 230 (11th Cir. 2011) (established business relationship exemptions for debt-related calls)