Court: District Court, M.D. Florida; December 12, 2017; Federal District Court
Marguerite Miller has filed a Motion for Summary Judgment against Ginny's, Inc., alleging violations of the Telephone Consumer Protection Act (TCPA) and the Florida Consumer Collection Practices Act (FCCPA) due to repeated calls made to her cellular phone after she orally requested them to stop. Miller opened a credit account with Ginny's on June 18, 2013, and provided her cellular phone number as part of the account setup. The credit terms allowed Ginny's to contact her using automated technology and to call her mobile phone. After failing to make payments, Ginny's began calling Miller's cell phone using an automatic dialing machine starting July 31, 2013. Miller did not keep records of these calls as she expected them to cease following her oral request. Ginny's policy dictated that collection calls would continue unless a written cease-and-desist request was provided. The Court has reviewed the parties' submissions and has decided to deny Miller's motion for summary judgment.
Ginny's maintained a Collection Correspondence Log that recorded customer interactions via action codes and narratives summarizing conversations. One action code, "313," was designated for calls where the answering party did not identify themselves, while Miller disputed its exclusive application based on Ginny's policy manual. According to the policy, code 313 should also be used when the agent speaks to someone at the dialed number but cannot leave a message, or when a customer does not promise to pay without fitting the defined "No Pay" categories, which include personal illness, family illness, or financial inability due to unemployment.
Another action code, "317," was used when a customer refused to pay without dispute or requested to cease communications. Ginny's also kept Dialer Records tracking all attempted calls, including duration and connection status, which were separate from the Collection Correspondence Log. Miller acknowledged the accuracy of Ginny's call logs regarding the number of calls, dates, and contact indications but disputed the content of recorded conversations.
The logs indicated that Miller’s first answered call occurred on November 21, 2013, lasting 125 seconds, and was logged with the 313 code, noting that the answering party used profanity. Following this call, 145 attempts were made to reach Miller, with additional answered calls logged under the 313 code, detailing brief conversations where Miller hung up or the call was of short duration.
Between October 17, 2014, and April 13, 2015, Miller received 79 calls from Ginny's, with only three answered calls lasting one second, indicating disconnection upon answering. Ginny's records lacked any action code for Miller's request to cease calls or any indication that she would not make payments on her account. Consequently, Miller filed a lawsuit alleging violations of the Telephone Consumer Protection Act (TCPA) and the Florida Consumer Collection Practices Act (FCCPA).
Summary judgment is warranted when there are no genuine disputes regarding material facts, allowing the moving party to claim legal judgment based on the pleadings, deposits, and affidavits. The moving party must initially demonstrate the absence of material fact issues; if successful, the burden shifts to the nonmoving party to identify specific facts that indicate such issues exist. The court must view evidence favorably towards the nonmoving party, but cannot allow summary judgment to be defeated by conclusory statements.
The TCPA aims to protect consumers from unwanted calls, prohibiting the use of automatic dialing systems or prerecorded voices to cellular numbers without prior express consent. Violations allow for recovery of actual damages or a minimum of $500 per violation, with potential treble damages for willful violations. Providing a mobile number generally constitutes consent to receive such calls unless explicitly restricted.
A consumer has the right to revoke consent for calls made using an Automatic Telephone Dialing System (ATDS), which can be done orally. In this case, Miller consented to receive calls from Ginny's by agreeing to the Credit Terms and providing her cell phone number. The central issue is whether Miller effectively revoked her consent. Miller's affidavit states that she requested Ginny's to stop calling and preferred written communication during every interaction. In contrast, Ginny's submitted an affidavit from its credit compliance consultant, asserting that Miller never indicated she wanted calls to cease or that she would not make payments, nor did she ask to be contacted in writing. The consultant noted that requests to stop calls would be recorded in the system if made. Judicial precedent indicates that if evidence conflicts regarding the oral revocation of consent, summary judgment is inappropriate. Cases such as Walker v. Transworld Sys. Inc. and Osorio v. State Farm Bank demonstrate that disputes over whether consent was revoked must be resolved at trial rather than through summary judgment. In similar circumstances, courts have ruled that conflicting statements from the plaintiff and the defendant's records create material issues of fact that preclude summary judgment.
In Watkins v. Wells Fargo Bank, N.A., the court denied the defendant's motion for summary judgment based on the plaintiff's sworn testimony indicating he had revoked consent for calls, alongside evidence of the defendant's policies requiring documentation of such revocations. This established a genuine dispute over material facts. Miller's argument regarding the 313 action code was deemed unpersuasive as it did not counter Ginny's evidence that alternative codes or comments would also indicate a request to cease calls. Miller's challenge to the credibility of Ginny's records and her request for the court to favor her statement over Ginny's documentation was rejected, as credibility assessments are reserved for the jury. Consequently, the court found that the evidence surrounding Miller's alleged oral revocation of consent remained contested, denying her summary judgment on the TCPA claim.
Under the FCCPA, a "debtor" is defined as any individual obligated or allegedly obligated to pay a debt. Miller qualifies as a debtor. The FCCPA prohibits harassing communication from debt collectors, specifically noting that calls made with the intent to abuse or harass are prohibited. Courts assess violations based on the purpose and frequency of calls, with no strict threshold established; however, typically, one or two calls per day do not constitute harassment unless accompanied by other egregious behavior.
Calls made in a harassing pattern, such as during late-night or early morning hours, can indicate a violation of the Florida Consumer Collection Practices Act (FCCPA). A creditor's calls may not constitute a violation if they are made solely to inform the debtor about the debt, inquire about nonpayment reasons, negotiate, or persuade the debtor to pay without litigation. However, if calls continue after all necessary information has been communicated and reasonable persuasion efforts have failed, they may be deemed harassing. Courts give significant weight to federal court interpretations of the Fair Debt Collection Practices Act (FDCPA) in applying FCCPA standards.
In a specific case, Ginny's placed 145 calls to Miller's phone over a period, with evidence of multiple calls on several days and calls occurring from 7:11 a.m. to 7:32 p.m. Miller's claim of harassment was primarily supported by her statement of orally revoking consent and indicating she would not make payment. However, conflicting evidence regarding whether Miller requested an end to the calls prevents summary judgment on her claim under section 559.72(7) of the FCCPA.
Section 559.72(9) prohibits debt collectors from asserting legal rights they know do not exist. Miller argues that Ginny's claimed a legal right to continue calls using an automatic telephone dialing system (ATDS) after she revoked consent, which is a violation of the Telephone Consumer Protection Act (TCPA). The determination of whether Ginny's asserted a non-existent right hinges on the factual issue of Miller's alleged revocation of consent. Thus, summary judgment on this claim is also denied.
A genuine factual dispute exists regarding whether Miller revoked her consent for calls, preventing a resolution via summary judgment. As a result, Miller’s motion for summary judgment is denied. Additionally, the court has identified undisputed facts based on the parties' submissions but has not addressed the statute of limitations defense raised by the defendant, as it did not move for summary judgment on that issue.
