A federal judge recently dismissed a plaintiff's Telephone Consumer Protection Act ("TCPA") claim, holding that the consumer had given prior express consent to be contacted by her creditor's collection agents regarding the underlying credit card debt.
Ashley Schwartz-Earp provided her cell phone number to a JC Penney cashier as part of a store credit card application. She did not disclose whether the phone number was her cellular number. Schwartz-Earp was approved for the card immediately and made purchases on the credit card over the next several months. After she fell behind on her payments, the credit card issuer, Synchrony Financial, passed the account to a separate collections company, Advanced Call Center Technologies, LLC.
Schwartz-Earp claimed that the collections company violated the TCPA by placing calls to her cell phone using an automated dialing system. She also claimed that the company violated other federal and state debt collection laws as well as invaded her privacy. Advanced Call Center Technologies moved for summary judgment on all claims.
The judge agreed on the TCPA claim, holding that Schwartz-Earp knowingly released her number to JC Penney. The judge held that Schwartz-Earp provided prior express consent to be contacted "about matters related to her credit card" on the cell phone number she provided during the application. The judge also held that her prior express consent passed to the credit card issuer and to the third-party collections company acting on its behalf. She clarified that calls placed by a third party debt collector on behalf of a creditor are treated as though the creditor placed the call.
The judge also granted summary judgment as to the § 1692f FDCPA (unfair or unconscionable collection) and invasion of privacy claims, but declined to grant the motion on the §1692d FDCPA (harassing or abusive conduct) and Rosenthal Act claims.
Troutman Sanders monitors current court decisions on the TCPA and other consumer protection statutes and will continue to provide updates on this area of developing case law.
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