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Court Rules Consumers May Sue Over Commonly Used Debt Collector Telephone System - Nelson v. Santander Consumer USA

June 7, 2013

At Howard Law, P.C., our Riverside debt collection attorneys frequently represent people who have been harassed or deceived by unscrupulous debt collectors. There are laws in place to protect consumers from overreaching by collection agencies, but the agencies break the law fairly often, and consumers have to sue to stop the harassment. Most often, non-bankrupt consumers in California use the Fair Debt Collection Practices Act and the similar Rosenthal FDCPA here in California. But when the collection uses multiple, auto-dialed phone calls, debt collectors may also sue under the federal Telephone Consumer Protection Act. In a Wisconsin case, Nelson v. Santander Consumer USA et al, a federal court recently ruled that the TCPA applies to debt-collection calls originated by a system capable of auto-dialing, even if the calls themselves were not auto-dialed.

The lawsuit was brought by Heather Nelson, the user of a cell phone number called 1,026 times in 13 months by Santander Consumer USA. The phone was in the name of her husband and paid for by him. Santander was attempting to collect a debt on two auto loans refinanced in 2007. To make the calls, it used a system that enables predictive dialing, in which the system times dialing to coincide with the next free time a live person is predicted to have. The system also uses preview dialing, in which live people click on a phone number on a computer screen, and the number is dialed. It is not disputed that Nelson requested in writing that Santander stop calling the number, or that Santander did not stop. In total, it left 119 voice mails on her phone. After one of the vehicles was repossessed, Nelson sued under the TCPA, the FDCPA, the Wisconsin Consumer Act and Wisconsin common law, then moved for summary judgment on the TCPA and Wisconsin Act claims.

The district court surprised the debt collection world by granting summary judgment on the TCPA. In relevant part, the TCPA makes it illegal to call a cell phone without the called party's consent using "any automatic telephone dialing system or an artificial or prerecorded voice." In relevant part, the court ruled that it was irrelevant whether Santander used "a random or sequential number generator" when it called Nelson. The FCC, in its regulations, has included predictive dialers as prohibited by the TCPA. Santander argued that this should be ignored because it's inconsistent with the statute and not expressly authorized by Congress. The district court rejected this as perilously close to frivolous. Finally, the court rejected an argument that Nelson should show which calls to her were made by predictive dialing, saying the law only requires that the system has the capacity for predictive dialing. It then awarded $571,000 in statutory damages.

Vincent Howard and our Santa Ana unfair debt collection lawyers are very pleased by this result. The district court's interpretation is not binding outside this case, but it could guide other courts that will consider the issue. That's one reason debt collection industry websites are now talking about this case--they may be concerned that their current practices are now illegal and vulnerable to lawsuits. From a consumer protection standpoint, this is great news; it gives consumers more ways to fight back when their cell phones are bombarded by obnoxious, illegal automated calls. Vincent Howard and our San Bernardino County illegal debt collection attorneys will be pleased to use this law when appropriate to protect our clients' rights.

If you have been harassed, lied to or otherwise mistreated by a debt collector, Vincent Howard and the team at Howard Law can help you fight back. Call us today at 1-800-872-5925 to tell us your story or send us an email.

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