Frausto v IC System | Litigation against collectors, debt buyers and their attorneys | Litigation Forum

DIEGO FRAUSTO, Plaintiff, v. IC SYSTEM, INC., Defendant.

The dispositive issue here is the application of the "prior express consent" defense to the facts of this case. Defendant claims the defense applies because Plaintiff provided his mobile phone number in applying for his PayPal account, that that number is the one used to pursue the debt, and that for purposes of pursuing the debt they step into the shoes of PayPal. Plaintiff counters that the terms of PayPal's agreement only authorize PayPal itself to use his number to contact him regarding the debt. He further argues that he revoked his consent.

Plaintiff's first argument is plainly off the mark, because even if I assume that the contract limited use of his number to PayPal, the FCC's ruling makes it clear that Defendant is, for purposes of the TCPA "PayPal" when it calls Plaintiff. See In re: Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. at ¶ 9 (F.C.C. 2007).

As to Plaintiff's argument that he revoked his consent, he cites my ruling in Sengenberger v. Credit Control Servs., Inc., 2010 WL 1791270, *4 (N.D. Ill. May 5, 2010). In that case, plaintiff debtor sued a collection agency for its use of auto-dialed, pre-recorded calls. Id. at *3. In disputing the defendant's "prior express consent" argument, the plaintiff argued that even if he had consented to the calls in the first instance, he revoked his consent by sending a letter via certified mail in which he disputed the debt and demanded the defendant to seek its calls. Id. at *4. Specifically the plaintiff argued that the letter invoked the following provision of the Fair Debt Collection Practices Act:

If the consumer notifies the debt collector in writing within the thirty-day period [after receiving the initial communication] that the debt, or any portion thereof, is disputed..., the debt collector shall cease collection of the debt, or any disputed portion thereof, is disputed..., the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification or judgment and a copy of such verification is mailed to the consumer by the debtor.

15 U.S.C. § 1692g(b). Interpreting that provision, I found that the plaintiff had effectively revoked his consent for calls placed after defendant received the letter, which was duly shown by plaintiff's certified mail receipt. Sengenberger, 2010 WL 1791270 at *4.

The problem for Plaintiff here is that he has sent no such letter. Tellingly, though Plaintiff cites to Sengenberger and the relevant FDCPA provision in his brief, he points to no facts on the record in this case that support their application here. With no evidence of written notification to the debtor after receiving calls, I find that Plaintiff did not revoke his consent pursuant to 15 U.S.C. § 1692g(b).^[2]

So there -- make sure you can PROVE that you revoked your consent.