A summary of recent top cases from ACA. Editor’s note: This content is available for members only.
10/9/2020 15:00
Each week, ACA International’s Compliance Analysts Betsy Clarke, Laura Dadd and Andrew Pavlik compile relevant case summaries for ACA members. Here is a recap of the cases this week. Members may also submit cases for consideration to our compliance team at [email protected].
District Court Declares Entire TCPA Unconstitutional During Five-Year Period from 2015 – 2020
In a putative class action, a consumer claimed Charter Communications Inc. violated the Telephone Consumer Protection Act by transmitting autodialed calls and text messages to the consumer at least 130 times without consent to do so.
The viability of the consumer’s claims hung on the meaning of the court’s recent decision in Barr v. Am. Ass’n of Political Consultants (Barr). Barr considered the validity of a 2015 amendment to the TCPA whereby Congress created an exception to the general call restriction, thereby permitting robocalls used to collect debts owed to the federal government. On July 6, 2020, the U.S. Supreme Court (a) struck down the government debt exception as an unconstitutional content-based restriction on speech, and (b) severed the offending provision, leaving the rest of the statute intact.
In the case at hand, all but one of the calls were made during the time between the date Congress passed the government debt exception and the date the Supreme Court struck down the exception in Barr. The consumer alleged one offending text message occurred on July 11, 2020, shortly after the Supreme Court’s July 6, 2020 decision in Barr.
In its defense arguments, Charter asserted that the Supreme Court’s decision in Barr effectively found the entire TCPA unconstitutional, and so unenforceable, for the limited time period in which Congress modified the TCPA to permit calls related to government debt. The consumer responded by arguing the Supreme Court’s decision created the opposite result, and that by severing the offending government debt exception the court preserved the original, general ban against robocalls from the inception of the TCPA to the present, including during the time period when the exception for government debt was in place.
Ninth Circuit Holds Debt Collector Proved its Bona Fide Error Defense
Consumers who filed this case were charged more than their hospital bill after having a child. After the child’s birth, the hospital received payment for the bill from the consumers’ insurance provider. The hospital then sent the consumers a bill for the remainder of the costs and charged them $5,000 more than they owed. The billing error resulted from the way the hospital and the insurance company handled the billing and payments. The consumers’ account was sent to a debt collector, where it accrued interest at 12%. The hospital ultimately determined that the consumers were billed the $5,000 in error and refunded the amount the consumers paid and wrote off a $400 copay.
The consumers sued the hospital and the debt collector for violating the Fair Debt Collection Practices Act as well as the Washington Consumer Protection Act. In a prior appeal, the U.S. Court of Appeals for the 9th Circuit affirmed the district court’s summary judgment for the hospital and remanded the case against the debt collector back to the district court. On remand, the court dismissed the case against the debt collector. The consumers appealed.
Court Finds Multiple Addresses Did Not Violate the FDCPA
In a putative class action, a consumer claimed a collection letter violated the Fair Debt Collection Practices Act because it listed two addresses and also “buried” the required FDCPA validation notice within its text. The letter stated, in part:
“ADVANCED CALL CENTER TECHNOLOGIES, LLC
PO Box 9091
Gray, TN 37615-9091
886-312-8374
TTY#: 844-252-5490 [*2]
ACCOUNT #: ENDING IN 2244
TOTAL ACCOUNT BALANCE: $9,351.21
AMOUNT NOW DUE: $1,258.00
STATEMENT DATE: August 15, 2018 RE: Gap Visa® Card Account.”
The third paragraph of the letter stated, among other things, that “[a]ll payments should be made directly to Synchrony Bank using the enclosed envelope. Do not send payments to this office.” Below that, the letter’s sixth paragraph contained the following FDCPA validation notice:
“Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.”
Finally, above a perforated line at the bottom of the letter appeared the statement: “PLEASE DETACH AND RETURN BOTTOM PORTION WITH YOUR PAYMENT.” The letter also provided a detachable payment slip and an envelope which included the address, “PO Box 960017, Orlando, FL 32896-0017.”
The consumer alleged that the letter violated the FDCPA because it included both the Tennessee and Florida addresses, and therefore the least sophisticated consumer would be confused as to where to send written disputes
Court Reaffirms TCPA Consent Transfers from Creditor to Debt Collector
A consumer sued a debt collector pro se for a host of alleged violations of the Fair Debt Collection Practice Act, as well as claims under the Telephone Consumer Protection Act, Health Insurance Portability and Accountability Act and state law. The debt collector moved for summary judgment and the consumer failed to file a response to the motion.
Based on evidence provided by the debt collector in its summary judgment motion and the consumer’s lack of response, the court quickly dispensed with all the consumer’s claims. However, the court’s analysis on the TCPA claim provided a helpful reminder that consent under the TCPA to call wireless phones with an automatic telephone dialing system transfers from a creditor to a debt collector.
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