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Infinitely More Likely Plaintiff Provided Her Number While Taking Out the Loan

  • Written by Steel Rose

In or around November 2018, Plaintiff Emy Franco began receiving calls from individuals seeking to collect on a debt that Plaintiff allegedly owed. Plaintiff alleged that between November 2018 and March 2019, she was called approximately one-hundred and fifty times from over fifty different phone numbers.  When she answered the phone, Plaintiff claimed that she would hear a short pause before the person on the other end of the line began to speak, which, she alleged, indicated the use of an automated telephone dialing system. The kicker here though is that Plaintiff had a pre-existing relationship with Defendant: Plaintiff owed a debt to Defendant, and Defendant was calling to collect.

In evaluating Plaintiff’s TCPA claim, the Court noted that post-the Supreme Court’s decision in Facebook, “district courts have been split in applying Facebook’s definition of an ATDS in cases where the plaintiff and the defendant had a pre-existing relationship.”  Id. at *5-6. The Court then summarized the Northern District of California’s recent decision in Hufnus v. DoNotPay, Inc., which had found that a system is not an ATDS if it calls sequentially from a non-random (i.e. voluntarily provided) list of numbers.  Even better, the Court disagreed with a recent ruling in Miles v. Medicredit, Inc., 2021 U.S. Dist. LEXIS 131128 (E.D. Mo. July 14, 2021), where, in that case, the court did not grant defendant’s motion for judgment on the pleadings as to plaintiff’s TPCA claim, even though plaintiff merely alleged defendant “upload[ed] telephone numbers”—numbers that were voluntarily provided—to a database and a dialer randomly selected the number.

Going back to Franco, the Court adopted the Hufnus approach, and determined that when a defendant randomly makes calls from a curated list, it is not randomly or sequentially generating phone numbers as is required under the Supreme Court’s ATDS definition.  As it would be “wildly implausible” (Court’s words, not mine) for the Defendant to randomly or sequentially generate phone numbers to reach Plaintiff to collect on a debt, it was infinitely more likely that Plaintiff provided her number while taking out the loan she now owed on, and Defendant called that number to collect. To read more click here.