Multiple accounts and the question of spousal revocation kept a Telephone Consumer Protection Act (TCPA) action alive in California federal court when the court denied cross motions for summary judgment in the suit.
Arnoldo and Maria Jara, husband and wife, had multiple credit card accounts. Maria incurred debts to Synchrony Bank on three accounts (for JCPenney Rewards, Lowe’s and Home Design Furniture cards), while Arnoldo incurred a debt to the same bank on his Lowe’s credit card account. Maria is the only authorized user on her accounts, and Arnoldo is the only authorized user on his.
For all four accounts, the Jaras identified the same contact phone number, and in all their credit card applications, the Jaras each consented to being contacted at that number via an automatic telephone dialing system (ATDS) and/or a prerecorded voice.
Synchrony Bank retained GC Services Limited Partnership to collect on all four accounts. As part of its efforts, GC Services called the number 87 times over a nine-day period. The parties agreed that GC Services never spoke with Arnoldo; but in some instances, the representative would call intending to speak with him and then pursue Maria’s debt when she answered the phone.
Alleging that GC Services harassed them in violation of the TCPA and the Fair Debt Collection Practices Act, the Jaras filed suit. They claimed that Maria revoked consent to be called regarding all three of her accounts as well as Arnoldo’s account.
GC Services denied that it violated the statutes in its attempts to collect debts from the Jaras and stopped its collection efforts with respect to each particular account after Maria requested it. For example, on Feb. 14, 2017, GC Services called Maria about her JCPenney account. The transcript included Maria stating, “I don’t have money to pay. But as soon as I get better, I’d gladly pay you. … I would really want you to stop calling me and as soon—about my debts.” The GC representative responded, “Then you are telling me that you don’t want us to call you on this number?” to which Maria confirmed, “Yes.” During other calls, she again asked that GC stop contacting her, making reference to “debts” and “accounts,” always in the plural.
At the summary judgment stage, a factual dispute regarding the alleged revocation of consent cannot be properly resolved, U.S. District Judge Otis D. Wright II noted, and Maria’s use of the plural raised a question.
“A reasonable jury could construe Mrs. Jara’s directive to stop calling her about her ‘accounts,’ and ‘debts’ on several occasions as her revoking her consent with respect to all of her outstanding accounts,” the court said. “Here, the GC Services representative, confirmed, on at least one occasion, that Mrs. Jara never wanted GC Services to call her again on the number she provided. This evidence is sufficient for a reasonable jury to find that GC Services ‘knew or ha[d] reason to know that [Mrs. Jara] [was] no longer willing’ to receive calls on any of her accounts. Her references to ‘debts’ and ‘accounts’ combined with her request that GC Services stop calling her create issues of fact regarding whether she revoked consent for all three of her accounts.”
The court denied summary judgment to both parties.
What about Arnoldo’s account? He claimed that Maria revoked consent on his behalf when she spoke to GC Services.
The TCPA does not address whether a person’s spouse can revoke consent on his or her behalf, and courts have looked to the common law of consent. The Jaras cited a case where the court found a spouse had “common authority” over a cellphone in order to provide consent to receive calls and another where a husband was permitted to revoke his wife’s prior express written consent because they were agents for each other.
GC attempted to distinguish the cases. But the court found the reasoning employed in finding that a spouse could provide consent applies equally to revoking it and that it “would be logically inconsistent to allow the spouse authority for one, but not the other.” In his deposition testimony, Arnoldo said that “[b]ecause my wife is with the phone more often, she is completely free to speak for me when talking to GC Services” and that he would have communicated the same message—to stop calling—had he spoken to the representative.
“Whether Mr. Jara’s testimony is sufficient to establish Mrs. Jara as his agent for purposes of revoking consent is a question for the jury,” the court concluded. “On some of the occasions GC Services called, it initially requested to speak with Mr. Jara, and then pivoted when Mrs. Jara explained that he was away. The jury could interpret these facts to show Mrs. Jara revoked consent for Mr. Jara’s account because GC Services initially placed the call intending to reach Mr. Jara.”
Given the factual dispute, the court again denied summary judgment for both parties.
To read the order in Jara v. GC Services Limited Partnership, click here.
Why it matters: Demonstrating the challenges of TCPA compliance, the court found that questions of fact remained given the many factors at play. The plaintiffs had separate accounts but used the same phone number as their contact, and Maria’s use of the plural “debts” and “accounts” could be interpreted to apply to all three of her credit card accounts or the specific account the defendant called about. Spousal revocation should also be decided by the jury, the court said, which could determine whether Maria revoked consent for calls made to Arnoldo.