United States: Debt Collector Not Liable Under The TCPA For Post-Revocation Calls Made On Behalf Of A Different Creditor

Last Updated: August 29 2017
Article by Henry Pietrkowski, Abraham J. Colman and Raymond Y. Kim

Most Read Contributor in United States, October 2017

In an important decision for the collection industry, the court in Michel v. Credit Protection Ass'n L.P., No. 14-cv-8452, 2017 WL 3620809 (N.D. Ill. Aug. 23, 2017), refused to find a debt collection company liable under the TCPA for cell phone calls made on behalf of one creditor (ComEd) when the plaintiff's oral revocation of consent related to a different creditor (Comcast).  The Michel court reasoned that obtaining consent under the TCPA is creditor-specific and so revocation should be creditor-specific as well.

The FCC has held that "the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt." In the Matter of Rules & Regs. Implementing the TCPA, 23 F.C.C. Rcd. 559, 564, ¶ 9 (Jan. 4, 2008). In that same ruling, the FCC found that, "[c]alls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call." Id. at ¶ 10. Based on this ruling, the Michel court held that when the plaintiff "allegedly provided his cell phone number to Comcast and ComEd to set up accounts with these creditors, he granted each creditor prior express consent to call his cell phone regarding that creditor's specific debt." Id. at *4. Thus, when Comcast placed an account with the debt collector, the debt collector "acquired consent to call Plaintiff, but only regarding the Comcast account." Id. The court then reasoned that because the plaintiff revoked his consent while he was returning a collection call on the Comcast account, he "revoked his consent only for calls made on behalf of Comcast." Id. "Plaintiff's revocation was creditor-specific, just as the consent was creditor-specific." Id. The court further held that simply because a debt collector has the technical capacity to cross-code all of a consumer's accounts as "do not call" does not mean it was required to do so.  Id. at *5.

The Michel court further distinguished the Michigan federal court's decision in Harris v. World Fin. Network Nat'l Bank, 867 F. Supp. 2d 888 (E.D. Mich. 2012), which held the defendant liable for not cross-coding three separate accounts in response to a do-not-call request.  The Michel court explained that Harris was a wrong number case where the defendant never had consent to call the plaintiff on any of the accounts.  Thus, when the plaintiff complained that the defendant was calling the wrong number, the defendant was obligated to stop all further calls to that number no matter what account they were associated with.  Michel, 2017 WL 3620809, at *5.  That fact pattern is distinguishable from a situation where the plaintiff previously gave his consent to be called to each particular creditor and therefore must revoke consent as to each creditor.  Id.

But there is a particular fact in the Michel case that made it easier for the court to reject the plaintiff's cross-coding argument:  the plaintiff's ComEd account was not placed with the defendant debt collector until after the plaintiff already had revoked his consent on the first Comcast account.  Id. at *1, 6.  The court used this "temporal separation between the creditor accounts" as a secondary basis for distinguishing the Harris decision:

Here, the ComEd account was placed with CPA after Plaintiff's alleged revocation of consent for his Comcast account. Thus, at the time of Plaintiff's alleged revocation, CPA did not yet have consent to call Plaintiff on behalf of ComEd. And Plaintiff could not have clearly expressed a desire revoke consent that CPA did not yet have. In contrast, the debt collector in Harris had the third-party debtor's consent for each of the three separate creditor accounts when the plaintiff put the debt collector on notice that it was calling the wrong number.

Id. at *6.

It remains to be seen whether Michel will harken a new era of cross-coding defenses across the country or whether it will be confined to its specific facts – where the second account has not yet been placed with the collector when the consumer revoked consent to receive calls on the first account.  It also will be interesting to see whether courts expand the rationale of this case to a situation where the defendant acts as a single creditor on multiple customer accounts rather than as a debt collector for multiple creditors. But for now, the Michel decision is a step in the right direction for debt collectors and other financial institutions that collect on behalf of multiple creditors.

A copy of the underlying decision can be found here.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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