Now, a recent decision by the US Court of Appeals, Eleventh Circuit places the issue into the brighter light of clarity.
The case in question is Osorio v. State Farm Bank FSB, F.S.B., 2014, US App. LEXIS 5709 (11th Circuit March 28, 2014). In the matter, a consumer had provided a third-party number in association with an application for insurance. When the policyholder failed to pay the balance due in a timely manner, the insurer started making autodialed calls to the third party.
Such calls are regulated under the Telephone Consumer Protection Act (TCPA), insomuch as debt collectors are regulated under the Fair Debt Collection Practices Act (FDCPA). The existence of such statutes has not stopped bill collector harassment, and many an allegedly harassed consumer has filed a debt collector lawsuit.
However, the opinion of the Eleventh Circuit may make it easier for plaintiffs to file lawsuits, and may provide increased headaches for debt collectors bound by the TCPA.
The Court held that it’s okay for the third party to be called, due to an assumed prior express consent deemed to have been provided as the result of the third party having an agency relationship with the subscriber, or in other words the individual who took out the policy in the first place.
However, where it gets sticky - and the basis for additional lawsuits under the TCPA - is the area that addresses revocation of consent. Under the FDCPA currently, debt collector harassment can stop provided the consumer being harassed directs that such harassment be stopped in writing. In other words, the debt collector can keep attempting to collect by way of phone calls and written correspondence - within reason, and within the guidelines set forth governing the conduct of the collector - until a party receiving the calls and correspondence asks that the bill collector harassment stop. That request has to be made in writing. At that point, it is incumbent on the bill collector to stop, take a breath, and officially verify the existence of the debt and its status.
The trail can be murky at best
This is an important point in the debt collector harassment arena, due to the constant swapping, horse trading, vending and purchasing of existing debts by a myriad of collection agencies. Debts that often change hands in this way suffer from watered-down data. Addresses can change. People move. Debts may have actually been paid off in full, and yet the calls keep coming. Hence the need for a way in which the debtor can ask for the debt collector harassment to stop, at least until the collector can verify the status of the account. It just may happen that the debt has changed hands so many times, the collector can’t verify it.
Now we get to the TCPA. In Osorio, the district court found that revocation of consent under the TCPA has to be undertaken in writing, in tune with the FDCPA. But the Eleventh Circuit overruled that finding, noting that there is actually no provision in the TCPA for a revocation of consent to be in writing. Thus, an oral revocation would suffice.
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What about robocalls or automated calls? Same thing. The Eleventh Circuit holds that a consumer can orally revoke consent to receive autodialed calls as well.
Will this reduce the incidence of a debt collector lawsuit? Hardly. Rather, this decision is expected to motivate consumers subjected to bill collector harassment to litigate. It also is expected to make it tougher for debt collector harassment defendants to seek summary judgment.
It could even threaten the entire automated calling industry, and spell an end to robocalls, especially if the Eleventh Circuit upholds a lower court ruling in another case.
Either way, it spells a “win” for those who have ever been subjected to debt collector harassment.