The Sixth Circuit Court of Appeals has ruled that a debtor providing a cell phone number to a creditor has consented to receiving calls and thus the creditor doesn't violate the TCPA by making repeated, automated calls to that number seeking payment.

In Hill v. Homeward Residential Inc., the Sixth Circuit affirmed a lower court's jury decision, determining that a person gives prior express consent when providing a creditor a cell phone number in connection with a debt.

Stephen Hill brought the suit in federal court, claiming he received 482 unsolicited calls to his cell phone from creditor Homeward Residential, seeking to recover payment for his mortgage. Hill alleged that the repeated calls violated the TCPA. 

Hill originally supplied his home phone number to a lender in connection with a mortgage obtained in 2003. Three years later he canceled his home phone line and provided his mortgage company, now Homeward, with his cell phone number as his primary phone number. Hill fell behind on his mortgage and worked out a loan modification with Homeward, when he again provided his mobile number. 

When Hill failed to make timely mortgage payments after the modification, Homeward called his work number in an effort to collect payment. In July 2010, Hill told Homeward not to call him at work, instructing the company to call his cell phone instead.

The case went to a jury trial to determine whether Hill offered his cell phone number to Homeward or whether Homeward "… called Hill outside the scope of his consent.” 

The district court relied on the definition of "prior express consent" promulgated by Federal Communications Commission rulings stating that a creditor doesn't violate the TCPA when it calls a debtor who has "provided [his number] in connection with an existing debt.” 

The jury found in favor of Homeward. Hill appealed.

The Sixth Circuit ultimately deemed the district court’s definition of "prior express consent' was proper, adding that while the FCC hadn’t explicitly addressed the issue, a debtor consents to calls about an existing debt when he gives his number in connection with that debt. 

By providing his cell phone number, in writing, in connection with his credit application, Hill thus granted general consent to the creditor to call his cell phone, including automated calls, as part of an attempt to collect on the debt, according to the court decision.

The TCPA restricts telephone solicitations, prohibits the use of automated telephone dialing systems to place calls to a cellphone without an individual’s prior express consent and provides for statutory damages of $500 per violation.

A copy of the court’s opinion in Hill v. Homeward Residential, Inc. can be found here.

The Federal Communications Commission issued a Declaratory Ruling and Order in July regarding the TCPA. 

Industry expert Joann Needleman, in a column for Collections & Credit Risk, recently discussed the FCC's ruling and provided insight for collectors and creditors

 

  

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