A District Court judge in Oregon has granted a defendant’s motion to dismiss a claim it violated a state collection law while also ruling that revocation of consent must be made to all parties instead of assuming that if consent is revoked to one party, then all other parties will be notified and also revoke consent.
A copy of the ruling in the case of Miler v. TD Bank USA, National Association; and Target Enterprise, Inc., can be accessed by clicking here.
The plaintiff took out an unsecured personal loan with one of the defendants that, in fact, may have been a retail credit card for the other defendant, and used the loan to buy merchandise. The plaintiff became unable to repay the debt and the defendants began to contact him to collect it. Through an attorney, the plaintiff sent TD Bank a letter of revocation, but the calls did not stop. The plaintiff’s attorney sent another letter of revocation, which also did not stop the calls from coming. The plaintiff filed suit, alleging the defendants violated the Telephone Consumer Protection Act and Oregon’s Unlawful Debt Collection Practices Act (UDCPA).
Target filed a motion to dismiss the UDCPA claim because it was never notified of the revocation by TD Bank and could not have known that consent had been revoked. In fact, the defendant alleges that rather than contact the credit card servicing department to revoke consent, the letters were sent to the bank’s corporate headquarters. The revocation did not indicate the retailer associates with the account and only provided a partial account number.
Judge Anna J. Brown of the District Court for the District of Oregon, made short work of granting Target’s motion to dismiss it violated the UDCPA, but also made some interesting comments about revocation of consent in general, which may apply to the TCPA.
In Oregon, notice of facts flow upwards to a principal rather than downwards to an agent under what is known as as the “imputed-knowledge rule.”
“As noted, Plaintiff has alleged only that he sent letters of revocation to TD Bank and that TD Bank received those letters,” Judge Brown wrote. “TD Bank states in its Answer that it did not inform Target about Plaintiff’s letters of revocation. Thus, even if Target was an agent of TD Bank, the Court concludes TD Bank’s knowledge of Plaintiff’s revocation cannot be imputed to Target under the imputed-knowledge rule.”
Nicole Su of Womble Bond Dickinson provided the following insights:
“Often times, Plaintiffs and their attorneys attempt to revoke consent using ‘gotcha’ tactics that in reality are very unlikely to inform the caller that the Plaintiffs no longer wishes to receive calls. Indeed, if the Plaintiff in Miler genuinely wished to notify both Target and TD Bank of his revocation request, it would have taken no more than extra stamp to get that message across. The Miler case presents a good example of a TCPA case based upon a rather disingenuous attempt to revoke consent that fell apart at the pleading stage.”
