Another Positive TCPA “Prior Express Consent” Case

Yesterday insideARM reported on an Eleventh Circuit Court of Appeals Decision confirming the validity of prior express consent in a TCPA case. Today we report on another, similar case.

On Friday, the Court of Appeals for the Sixth Circuit, in the case of  Hill v. Homeward Residential Inc., No. 2:13–CV–00388, 2015 WL 4978464, affirmed the lower court jury decision determining that a person gives “prior express consent” when he gives a creditor his cell phone number in connection with a debt.

The debt involved a mortgage that the plaintiff, Stephen M. Hill (Hill) had obtained in 2003. The mortgage was obtained through another company not a party to the lawsuit. The loan was ultimately transferred to Homeward Residential Inc. (Homeward). Hill had fallen behind in his mortgage payments and had significant interaction with Homeward as he attempted to resolve the delinquency and keep his home.

The court found that Hill had filled out at least 10 different forms with Homeward as he tried to mitigate his losses. He provided his cell phone number on all these forms. The court also found that Hill had provided express written consent for Homeward to call his cell phone on one of those forms. That consent read:  “I consent to being contacted concerning this request for mortgage assistance at any cellular or mobile telephone number I have provided [,] . . . includ[ing] . . . telephone calls to my cellular or mobile telephone.”

To collect from Hill and in other matters regarding his loan, Homeward called Hill on the number he provided: his cellphone. In all, Homeward called him an alleged 482 times from 2009 to 2013. For 176 of these calls the company used a device “capable of autodialing a phone number.”

The 11 page opinion discusses a number of procedural issues that occurred throughout the life of the case.  However, the crux of the opinion was that Hill did give Homeward “prior express consent” to call him on his cell phone.

insideARM Perspective

This case and the Murphy case we reported on yesterday should be read together for an excellent discussion on the issue of “prior express consent.” Unfortunately, in light of the FCC’s July Declaratory Ruling and Order, this issue may become secondary to the issue of when “prior express consent” is revoked by a consumer.