Financial institutions may telephone consumers to try to collect debts. What they may not do is call consumers’ cell phones using automatic dialing systems, unless they obtain prior express written consent. So says the Telephone Consumer Protection Act (TCPA). The complaint for this class action claims that Bank of America Corporation did indeed use automatic dialing systems to contact consumer cell phones, even after a consumer’s lawyer told it to stop.
The class for this action is all persons in the US who received a call on their cell phones from Bank of America or its agents that was made using an automatic dialing system or a prerecorded voice between September 3, 2015 and September 3, 2019.
The TCPA aimed to give consumers some choice over which companies may contact them. Calls to cell phones were a particular concern because cell phone owners pay for incoming as well as outgoing calls.
The TCPA forbids companies from making calls to consumer cell phones using automated dialing systems or artificial or prerecorded voices unless the consumers give their prior express written consent to receive such calls. The term “calls” includes regular voice calls, voicemails, and text messages. Debt collectors are not excused from this provision.
Plaintiff Lisa Nagy at some point allegedly incurred a debt of Bank of America. After that, she engaged an attorney to represent her.
On or about April 30, 2018, her attorney faxed Bank of America a cease-and-desist letter, telling the bank that he was her representative and requesting that it stop all communications with her. This letter should have revoked any previous consent the bank thought it had to make calls to Nagy’s numbers, and in particular to her cell phone number.
Despite this, Bank of America called Nagy’s cell phone “at least six times” in the period between April 30 and June 7 of that year.
In response, on June 7, her attorney again sent Bank of America a cease-and-desist letter, through both a fax and regular mail, revoking any consent the bank may have thought it had to continue to contact her.
Even so, the bank continued to contact her. She received calls made using an automatic dialing system and a prerecorded voice on June 8, 2018, August 8, 2018; August 9, 2018; August 16, 2018; August 20, 2018; August 21, 2018; August 23, 2018; and August 24, 2018; August 27, 2018; August 28, 2018; September 7, 2018; September 10, 2018; and September 12, 2018.
The complaint alleges both negligent and willful and knowing violations of the TCPA.