TCPAWorld After Dark: Key Ruling in Multi-Account Debt Collection TCPA Case — Revocation on One Account Does Not Revoke Consent for Calls on Another Account
It’s 9:36 pm on the East Coast but the party is just getting started here in TCPAWorld. So pour yourself an espresso shot and let’s talk multi-account revocation TCPA suits all through the evening.
One of the most common tactics of TCPA consumer lawyers these days is to convince a would-be client—sometimes a consumer on the verge of BK—to respond to a debt collector’s phone calls by requesting that calls stop using unclear language and then to hang up before the collector can inquire further. Many times this occurs without the debtor informing the collector that an attorney has been retained. And when calls continue the debtor turns around and sues the collector claiming revocation under the TCPA.
While this tactic is problematic enough standing alone, it becomes downright terrible when the collector holds multiple accounts for the same debtor and is asked to cease calls during an interaction involving only one of several accounts. Indeed, sometimes the collector is asked to stop calls regarding one account and is only later assigned a wholly different debt to service, yet the consumer still sues contending that the purported revocation was effectuated before the debt being called about was ever assigned to the collector. Wild stuff.
Last year’s Central District of California ruling in Jara v. Gc Servs., Case No 2:17-cv-04598-ODW-RAO, 2018 U.S. Dist. LEXIS 83522 (C.D. Cal. May 17, 2018) only added fuel to the fire when the Court held that an instruction by a consumer to cease calls on “my accounts”—plural—was sufficient to raise a jury question on the issue of revocation in TCPA suits involving the multi-account scenario. What a nightmare.
But that same Court just issued a ruling that dials back the scope of Jara and demonstrates that common sense may ultimately prevail in these suits.
In Henry Mendoza v. Allied Interstate LLC, et al., Case No. SACV 17-885 JVS, Doc. No. 64 (C.D. Cal. Oct. 22, 2019) the Court held definitively that a request for calls to cease during a discussion of one account serviced by a collector did not require the collector to cease calls on a wholly unrelated account that was not discussed during the call. The ruling is available here–Mendoza Order on MSJ
The facts of Mendoza are fairly common, but with a twist. Plaintiff owed credit card debt on cards branded with several major retailers but issued by a single card issuer. All of the accounts went delinquent and were assigned to the same collector to service. Before the accounts were assigned for collection, however, the Plaintiff called the card issuer to dispute a debt. During that call the card issuer was allegedly asked not to call again. Subsequently, the card issuer sent the remaining accounts—but not the account the debtor had called about—to a collector. The collector called the debtor regarding the balanced owed on the remaining cards.
Plaintiff sued the collector contending that it never had consent to call her. The Plaintiff’s theory was that the request to the card issuer to cease calls was a monolithic instruction that applied regardless of the account about which the call was being placed. Hence, the Plaintiff argued, when the card issuer transferred the remaining debts to the collector to service any consent that had previously been given by the card issuer had been revoked.
The Court disagreed, relying on the evidence. The recordings submitted to the Court established that the Plaintiff called the card issuer to discuss the balance on only one of her accounts. It was on that call that Plaintiff asked for calls to stop and Plaintiff’s other credit card accounts were never mentioned. The Court found that fact dispositive, concluding that the failure to mention the other accounts necessarily limited the revocation to only the single account Plaintiff called into discuss.
Interestingly, the Court ruled in favor of the collector even though the credit card issuer’s notes indicated that a revocation took place and that the debtor should only be called manually under the credit issuer’s policies and procedures. The Court found this issue irrelevant, however, as the key evidence was the request not to be called and—as noted above—that request took place on a call during which only one account was ever discussed.
Best of all, the Court distinguished Jara as a case involving a debtor who has used “specific language to revoke her consent, and mentioned all of her accounts…” That’s a pretty solid ruling for the collection industry—not only is summary judgment granted in favor of the collector, the Court narrowly reads Jara as only applying where a Plaintiff mentions multiple accounts.