A District Court judge in New York has imposed a $190,000 judgment against a defendant that was accused of violating the Telephone Consumer Protection Act by making nearly 400 calls — to the wrong individual — to collect on a delinquent credit card account.
A copy of the ruling in the case of Jimenez v. Credit One Bank can be accessed by clicking here.
The plaintiff received 380 calls from the defendant. The defendant had consent to call the number, but from the number’s previous owner. The number was reassigned to the plaintiff who had no relationship with the defendant and never provided consent to be contacted on his cell phone using an automated telephone dialing system.
The judge had granted the plaintiff’s motion for summary judgment back in May, but allowed the defendant to submit a motion for modification and clarification. That motion was denied and the judge ordered the defendant to show cause why the full judgment — $500 per call for 380 calls — should not be entered against it. Ultimately, the judge awarded the full amount to the plaintiff.
The defendant attempted to argue that 43 of the calls should not be counted toward the total because those attempts did not reach a working number, likely because the plaintiff’s phone was temporarily disconnected because he did not pay his bill on time. But the judge ruled that “it is the making of the call, not its receipt,” that governs the applicability of damages under the TCPA.
Attempting to use the prior consent of the individual who owned the phone number prior to the plaintiff as a defense also did not work.
“The reassignment of a number creates no relationship between the prior, consenting holder and the new holder,” wrote Judge Laura Taylor Swain of the District Court for the Southern District of New York in granting the plaintiff’s motion for summary judgment. “Thus, there is no reasonable basis for reliance on the original holder’s consent as indicative of consent by the new user.”
