On June 20, 2013, Bank of America (“BOA”) was sued for allegedly violating the Telephone Consumer Protection Act (“TCPA”) and the Florida Consumer Collection Practices Act (“FCCPA”).

Factual Allegations

According to the Class Action Complaint, the background of this action is premised on a separate action between the parties.  The plaintiff, Marc Katz (“Katz”), had a residential mortgage with BOA that was allegedly in arrears.  BOA instituted an action in Florida state court for foreclosure on the mortgage approximately three (3) years before the instant action was initiated (the “Foreclosure Action”).  Katz hired counsel to defend him in the Foreclosure Action, who filed a Notice of Appearance and Objection to Ex Parte Communication with Client, informing BOA that Katz was represented by counsel and directing BOA to cease all further communications with Katz.  Thereafter, Katz’s counsel sent a letter to BOA, again informing BOA that Katz was represented by counsel.  BOA confirmed receipt of that letter.  Despite these two notices, BOA still proceeded to attempt to collect the debt by directly communicating with Katz.  These communications were allegedly comprised of autodialed calls to Katz’s mobile telephone.  When Katz answered these calls, a machine-operated voice requested that he “please hold for the next available representative.”

Legal TCPA and FCCPA Allegations

Katz alleges that these calls (which allegedly were “numerous”) violated the TCPA because he revoked any prior express consent he may have given to BOA to call him through two separate notifications from his counsel.  Therefore, Katz maintains, BOA did not have his express consent to call him – and each call to his mobile telephone was a violation of the TCPA, as it allegedly was made with the use of an automatic telephone dialing system.

Katz further alleges that BOA violated the FCCPA, which prohibits communications with a debtor when that person knows the debtor is represented by counsel (unless the debtor initiates the communication or the debtor’s attorney consents to the direct communication).  This is akin to ethical rules governing the conduct of attorneys (e.g., counsel may not communicate directly with a party that (s)he knows is represented by counsel).

Katz seeks statutory damages under both the TCPA and the FCCPA, a permanent injunction prohibiting BOA from placing non-emergency calls to mobile, or cellular, telephones by use of an automatic telephone dialing system, and associated attorneys’ fees and costs.

Status of the TCPA Action and Further Considerations

Katz filed a motion for class certification less than one month after the complaint was filed.  BOA has not yet had a chance to respond to the complaint – by motion or answer.   On July 18, 2013, the Court denied the motion without prejudice.

The strategy behind the filing of this motion was likely to prevent BOA from “picking off” Katz.  What this means is that in a putative class action, if the defendant provides an offer of settlement comprising the full relief sought by the individual plaintiff, the case is moot.  That means that the case will be dismissed following the filing of the appropriate motion by the defendant.  Courts have held that an offer of full relief to the named plaintiff moots a putative class action, as long as it is made before a motion for class certification is filed.  (The Court noted that Katz filed the motion so early in the action to prevent BOA from attempting a “buy off” to moot Katz’s claims.)

Two TCPA points of interest:

  1. BOA may have been entirely “off the hook” under the TCPA if the calls were made to Katz’s residential landline phone.  Debt collection calls have been found to fall under a TCPA exception which provides that it is unlawful to initiate “any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call . . . is made for a commercial purpose but does not include or introduce an unsolicited advertisement or constitute a telephone solicitation.”
  2. Depending on the information revealed in the discovery process (if the case survives dismissal in the early stages), class certification may be extremely difficult here because of, among other reasons, the numerosity requirement.  One of the requirements for class certification is that the “class is so numerous that joinder of all members is impractical.”  Here, Katz seeks to certify a class consisting of Florida residents who were the subject of BOA’s debt collection with respect to their residential property located in Florida, and who are represented by counsel, yet continued to receive prerecorded or auto-dialed calls to their cell phones during the last four years.  It is difficult to fathom that this class is so numerous so as to warrant the certification of a class.  However, Katz’s premature motion for class certification claims that the class consists of thousands of Floridians – basing this allegation on calls with foreclosure defense attorneys throughout Florida, who “all confirm that [BOA’s] practice of repeatedly robodialing their clients is commonplace and widespread.”

Of course, we presently only have Katz’s version of the facts.  BOA’s may differ entirely, in which case BOA may file a motion to dismiss the action or, perhaps, a motion for summary judgment.