Osorio v. State Farm Bank, F.S.B.
859 F. Supp. 2d 1326
S.D. Fla.2012Background
- Osorio sues State Farm Bank under TCPA for calls to his cellular number using an autodialer or prerecorded voice without express consent.
- Betancourt listed 8626 as her cellular number on a State Farm credit card application and later updated contact records to reflect changes to 8626 and 5645.
- Betancourt and Osorio live together and share a MetroPCS family plan that includes 8626 and 5645; MetroPCS records do not specify ownership of numbers.
- State Farm relied on Betancourt’s consent as prior express consent to call 8626; Betancourt’s consent covered the number she supplied.
- The court applies FCC rules and related case law to determine whether Betancourt could provide express consent on Osorio’s behalf; the court ultimately finds consent valid for contacting Osorio’s number.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can Betancourt’s express consent authorize calls to Osorio’s number | Osorio argues only he can consent to calls to his number | State Farm contends Betancourt’s consent covers the number | Yes; Betancourt could provide consent on Osorio’s behalf |
| Whether verbal revocation of consent suffices to revoke prior consent | Osorio/Betancourt orally told to stop calling | Verbal revocation is insufficient under TCPA when no writing | Verbal revocation is insufficient; consent not revoked |
| Does Osorio have standing to pursue TCPA claim if Betancourt provided consent | Osorio is the called party and should control consent | Betancourt’s consent suffices; Osorio lacks standing to sue | Osorio cannot prevail; consent validly given by Betancourt |
| Are the calls subject to TCPA given it involved debt collection and third-party consent | Calls were made to collect Betancourt’s debt using autodialed system | FDCPA-like debt-collection context may fall outside TCPA protections per FCC ruling | Calls fall under consent framework; TCPA claim failed on merits |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard; material fact disputes must be genuine)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (burden-shifting on summary judgment)
- Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590 (11th Cir.1995) (non-movant must show genuine issues for trial; evidence must be credible)
- Mize v. Jefferson City Bd. of Educ., 93 F.3d 739 (11th Cir.1996) (standard for genuine disputes of material fact in summary judgment)
- Pace v. Capobianco, 283 F.3d 1275 (11th Cir.2002) (requires showing genuine dispute of material fact to defeat summary judgment)