FYI: 9th Cir Holds CA Law Does Not Permit Pre-Foreclosure Challenges to Ability to Foreclose

The U.S. Court of Appeals for the Ninth Circuit recently held that California law does not permit preemptive actions to challenge a party's authority to pursue foreclosure before a foreclosure has taken place.

 

A copy of the opinion is available at:  Link to Opinion

 

Husband and wife homeowners (Homeowners) owned two properties in California and executed deeds of trust for both in 2006. Both deeds of trust identified the lenders and MERS as the beneficiary for lender's successors and assigns. Each mortgage loan was bought and sold multiple times.

 

In 2009 a notice of default and a notice of trustee's sale were issued against homeowners for failure to make payments on one of their loans. A sale was scheduled, but it did not take place. There were no allegations that any foreclosure proceedings had been initiated against homeowners relating to the other property.

 

The Homeowners sued MERS and the entities currently holding the two loans seeking declaratory relief, cancellation of instruments, and quiet title as to the holders and MERS.

 

Homeowners sought declarations that the holders had no legal rights in the underlying notes or deeds of trust or to initiate foreclosure proceedings. Homeowners sought unencumbered titles to their properties and permanent injunctions to prevent the holders from collecting mortgage payments or foreclosing on the properties. Homeowners base their claims for relief on alleged defects in the assignments of the underlying deeds of trust, such that, the Homeowners asserted, the holders never received any beneficial interest in the loans.

 

Both actions were removed to federal court based on diversity jurisdiction, and were dismissed for failure to state plausible claims for relief under California law.  This appeal followed.

 

Homeowner's claims were premised on the theory that they can preemptively challenge the holders' authority to foreclose on their properties by filing judicial actions before any nonjudicial foreclosure has taken place. Thus, the controlling question before the Ninth Circuit was whether such preemptive, preforeclosure actions are viable under California law.

 

The Ninth Circuit began its review noting the California Supreme Court has not directly answered the question of whether preemptive, pre-foreclosure actions are viable under California law.

 

As you may recall, in Yvanova v. New Century Mortg. Corp., 365 P.3d 845, 858-59 (Cal. 2016), the California Supreme Court held that, in an action for wrongful foreclosure, borrowers have standing to challenge prior assignments of the note if they allege the assignment was void, as compared to voidable. The California Supreme Court expressly limited its holding to post-foreclosure actions for wrongful foreclosure, explaining that the holding did not apply to borrowers who "attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party's right to proceed," id. at 848, or to borrowers who bring "action[s] for injunctive or declaratory relief to prevent a foreclosure sale from going forward,"  id. at 855.

 

The Ninth Circuit next turned its analysis to relevant decisions of the California intermediate appellate courts, first examining Gomes v. Countrywide Home Loans, Inc., 121 Cal. Rptr. 3d 819, 822 (Cal. Ct. App. 2011), where a defaulting borrower challenged whether the defendants were authorized to foreclose on his property. The Court of Appeal held that California's comprehensive statutory scheme for nonjudicial foreclosures did not permit a borrower to bring a judicial action before a foreclosure had taken place to challenge whether a foreclosing party was authorized to foreclose. Id. at 824. The intermediate appellate court reasoned that allowing borrowers to bring such pre-foreclosure actions would impermissibly interject courts into California's "comprehensive nonjudicial scheme" of foreclosure and "fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures." Id.

 

The Ninth Circuit next examined Jenkins v. JP Morgan Chase Bank, N.A., 156 Cal. Rptr. 3d 912, 923 (Cal. Ct. App. 2013), in which the Court of Appeal held that the borrower lacked a legal basis to bring her preemptive action under California's statutory scheme for nonjudicial foreclosure; and Saterbak v. JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 793 (Cal. Ct. App. 2016), which examined Yvanova and held that Yvanova did not alter prior California precedent barring pre-foreclosure suits because Yvanova was "expressly limited to the post-foreclosure context." Id. at 796. Accordingly, the appellate court dismissed the action, holding that preemptive, pre-foreclosure actions were still not viable under California law. Id. at 795.

 

However, in Brown v. Deutsche Bank National Trust Co., 201 Cal. Rptr. 3d 892, 896 (Cal. Ct. App. 2016), the Court of Appeal, although not deciding the question of whether pre-foreclosure actions are viable after Yvanova, noted that the California Supreme Court could decide to extend its limited holding in Yvanova to cover some pre-foreclosure cases. The appellate court in Brown explained that the reasoning in Yvanova "raises the distinct possibility that [the California] Supreme Court would conclude that borrowers have a sufficient injury [from the initiation of foreclosure proceedings], even if less severe [than the injury from wrongful foreclosure], to confer standing to bring similar allegations before the [foreclosure] sale." Id.

 

The Ninth Circuit noted "existing California appellate cases demonstrate that, both before and after Yvanova, California appellate courts have dismissed preemptive, pre-foreclosure actions. There is no convincing evidence the California Supreme Court would break with that precedent."  Thus, the Ninth Circuit held that California law does not permit preemptive actions to challenge a party's authority to pursue foreclosure before a foreclosure has taken place.

 

In the present matter, it was "undisputed that no foreclosures [had] taken place."  Accordingly, Homeowners' claims were pre-foreclosure judicial actions that preemptively challenge the holders' authority to foreclose on their properties in the future and thus not viable under California law. 

 

Furthermore, the Ninth Circuit held that the trial court did not abuse its discretion by denying Homeowners leave to amend, as the proposed amendments "would not have changed the determination that the action was a preemptive, pre-foreclosure action seeking to challenge the [holders'] authority to foreclose, and that such an action is impermissible under California law."

 

Accordingly, the Ninth Circuit affirmed the trial court's dismissal of the Homeowners' claims.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: Ill App Ct (1st Dist) Holds TILA "Failure to Rescind After Notice" Claims Subject to 1-Yr Statute of Limitations

The Appellate Court of Illinois, First District, recently affirmed a trial court order dismissing a foreclosure counterclaim by two borrowers seeking rescission under the federal Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq.) holding that section 1640(e)'s one-year statute of limitation for legal damages applied to bar the borrower's section 1635 equitable claim, when the borrowers demanded rescission within three years of closing but did not file suit within one year after the lender failed to respond.

 

A copy of the opinion is available at:  Link to Opinion

 

On July 2, 2007, two borrowers refinanced their mortgage. On August 14, 2009, after an alleged default, their mortgage lender Bank filed a complaint to foreclose the mortgage.

 

In response, on November 16, 2011 the borrowers filed a counterclaim alleging that "the initial lender violated TILA by materially changing the terms and type of the loan on the date of closing and also failing to provide [one borrower] with a Real Estate Settlement Procedures Act of 1974 (12 U.S.C. § 2601 et seq.) statement at the closing." The borrowers alleged that they "rescinded the loan, in writing, on June 28, 2010," but the Bank did not respond to the rescission request. 

 

The borrowers claimed that this alleged violation allowed them to rescind their loan under "section 1635(f) of TILA (15 U.S.C. § 1635(f)), within three years from the date the loan was executed." On June 30, 2010, borrowers' counsel allegedly mailed the notice of rescission to the Bank and to the original lender.  The borrowers also sought a "termination of the security interest, return of money given by them in connection with the transaction, and reasonable attorney fees."

 

The Bank moved to dismiss the counterclaim for failure to commence the action "within the time limited by law." The trial court granted the motion finding that the TILA claim was untimely and dismissed the counterclaim with prejudice. This appeal followed.

 

The Appellate Court initially examined sections 1635 and 1640 of TILA. As you may recall, section 1635 provides an equitable remedy of rescission "under certain circumstances including where, as alleged here, the lender failed to deliver certain notices or disclosures." Under section 1635, after a borrower timely notifies a lender that it is exercising its right to rescind the loan, the lender must within 20 days return to the borrower any earnest money held and "take any action necessary or appropriate to reflect the termination of any security interest created under the transaction." 15 U.S.C. § 1635(b).

 

In contrast, section 1640 allows a borrower to recover "legal damages where the lender has failed to comply with the requirements of section 1635."  Specifically, the lender may be "liable for, inter alia, the costs of suit to enforce the rescission rights and attorney fees." 15 U.S.C. § 1640(a) (2006).

 

As the Appellate Court noted, "section 1640 explicitly states that an action brought under it must be commenced within one year from the date of the occurrence of the violation." 15 U.S.C. § 1640(e).  The Appellate Court held that the borrowers' claim under section 1640 was untimely because they filed it on November 16, 2011, over one year after the Bank allegedly let the 20-day notice of rescission sent on June 30, 2010 lapse without responding.

 

The Appellate Court next examined the Bank's argument that section 1640's one-year limitations period should also apply to the borrower's section 1635 "failure to rescind after notice" claim even though section 1635 itself contains no such limitations period.

 

The Appellate Court observed that before the Supreme Court of the United States's ruling in Jesinoski v. Countrywide Home Loans, Inc., 574 U.S. 259, 135 S. Ct. 790 (2015), many lower courts applied a three-year limitations period to rescission claims brought under section 1635 meaning that a borrower had three years from the consummation of the loan to file suit.  Jesinoski eliminated this approach, holding that after a borrower notifies the lender of their intent to rescind within three years of consummation, the borrower does not have file suit to enforce the rescission within the three year period. 

 

After Jesinoski, courts have been split on the limitations period to apply to a section 1635 rescission claim.

 

In Hoang v. Bank of America, 910 F.3d 1096 (9th Cir. 2018), the Ninth Circuit examined a TILA rescission claim and borrowed the limitations period for a breach of contract claim from state law instead of using section 1640(e)'s one-year limitations period because TILA provides for legal damages and equitable relief, but only included limitations period for legal damages. The Ninth Circuit concluded that nothing in TILA suggests that the limitations period for legal damages also applies to equitable remedy claims. Further, if Congress had intended the limitations period to apply to equitable remedies, then it would have drafted TILA to achieve this. 

 

However, in a number of federal trial court cases, the courts borrowed section 1640(e)'s one-year limitations period and applied it to section 1635 equitable remedy claims. See, e.g. U.S. Bank National Ass'n v. Gerber, 380 F. Supp. - 10 - 1-19-1029 3d 429, 438 (M.D. Pa. 2018).

 

The Appellate Court found the application of section 1640(e)'s one-year limitations period to be the more persuasive approach. 

 

Illinois has a 10-year statute of limitation for a breach of a written contract claim.  Permitting a borrower to "sit on a claim" for such a lengthy period before seeking "to enforce a rescission of the mortgage while keeping both the property and the loan proceeds" made little sense to the Appellate Court. In the event that a rescission is enforced, "the lender will be entitled to no interest for this period."  This result is more generous to borrowers than is required to enforce TILA's purpose.

 

Moreover, 20 days after sending the notice of rescission, the borrower should know if the lender will honor the notice.  The Appellate Court found no justification for such "a lengthy statute of limitations, where the accrual of a claim is so straight forward."  This is especially true because in the Appellate Court's view the equitable rescission claim "is inextricably intertwined" with the legal damage claims which has a one-year statute of limitation.  Congress could not have intended for a borrower to sue for rescission after their ability to obtain their costs and attorneys' fees expired.

 

Finally, the Appellate Court found that it was not proper to apply the state's breach of contract statute of limitation because TILA's rescission remedy has little in common with common law contract rights.

 

In Illinois, a party may only rescind a contract under an equitable theory in certain limited situations like where "there has been some fraud or misconduct in the contract formation." This common law framework is unlike TILA's statutory scheme where a borrower with a valid claim that submits a timely notice has an absolute right to rescind regardless of whether the lender engaged in any fraud or misconduct.

 

Thus, the Appellate Court held, "section 1640(e) provides a closer analogy for a statute of limitations for actions to enforce a rescission than the 10-year statute for written contracts in Illinois." Applying this one-year statute of limitation here bars the borrowers' untimely TILA claim for "rescission after notice".

 

Therefore, the Appellate Court affirmed the judgment of the trial court.

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia  |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

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FYI: 11th Cir Holds TCPA Consent Cannot Be Unilaterally Revoked, But Allows Unrelated FCCPA Claim to Proceed

The U.S. Court of Appeals for the Eleventh Circuit recently reversed entry of summary judgment in favor of a satellite television provider against a consumer on claims that it violated the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. ("FCCPA"), by attempting to collect a debt it knew had been discharged in bankruptcy and directly contacting the plaintiff consumer knowing she was represented by counsel.

 

However, the Eleventh Circuit also affirmed summary judgment in the provider's favor on the consumer's claims that it violated the federal Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA"), by contacting the plaintiff consumer via an automated dialing system after she revoked her consent to receive such calls.

 

The Eleventh Circuit determined that the debt at issue, though not listed on the consumer plaintiff's bankruptcy schedules, was in fact discharged, because it arose from a services agreement that was deemed rejected deemed rejected as a matter of law under the Bankruptcy Code, and any prepetition breach of contract claim the provider maintained for the debt was discharged when the bankruptcy court entered the discharge order.  Thus, the Court held, the satellite provider attempted to collect debt it had no legal right to collect because the debt had been discharged in bankruptcy, and directly contacted plaintiff after having received notice that she was represented by counsel, in violation of the FCCPA.  The Court remanded to consider whether the provider possessed requisite actual knowledge that the charges were invalid and the consumer was represented by counsel and any potential bona fide error defense. 

 

The Court affirmed the entry of judgment in the provider's favor on the consumer's TCPA claims, holding that the TCPA does not allow unilateral revocation of consent given in a bargained-for contract, and agreeing with the Second Circuit's reasoning on the same issue in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2nd Cir. 2017).

 

A copy of the opinion is available at:  Link to Opinion

 

A consumer ("Consumer") entered into a 24-month contract with a satellite television provider (the "Satellite Provider") for services (the "Agreement").  The Agreement called for monthly payments and an option to participate in the  "Pause Program" which allowed customers to temporarily suspend their satellite services and the charges for those services, for up to nine months during the term of the Agreement for a monthly fee that would also extend the term of the 24-month commitment by the amount of time the service was suspended.  Under the Agreement, the Consumer expressly authorized the Satellite Provider "to contact [her] regarding [her].. account or to recover any unpaid portion of [her] obligation to [the Satellite Provider], through an automated or predictive dialing system or prerecorded messaging system" on her cell phone.

 

Eleven months into the contract, the Consumer entered the Pause Program, and approximately two months later, filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Florida. The Consumer listed her Satellite Provider account and amount of $831.74 on Schedule F, the schedule requiring petitioners to list outstanding debt to unsecured creditors, but did not list the Agreement on Schedule G, the schedule requiring petitioners to list all executory contracts and unexpired leases of real or personal property. 

 

The amounts listed on Schedule F were discharged by the bankruptcy court, and written off by the Satellite Provider, but the Satellite Provider continued to charge the Consumer $5 per month for the Pause Program, which the Consumer did not pay.

 

Over a month after the Consumer's debts were discharged, the Satellite Provider sent an email directly to the Consumer to collect the Pause Program fees.  In response, her counsel sent the Satellite Provider three faxes instructing that they represented the Consumer with regard to her debts, including any debt owed under the Agreement, and also expressly stating that "[t]o the extent any such prior express consent existed, if any, to call the above person using an [automatic telephone dialing system] (ATDS), such consent is hereby forever revoked consistent with the Florida and federal law."

 

Subsequently, the Satellite Provider sent four more emails directly to the Consumer seeking payment of the monthly Pause charges and placed six automated calls to the Consumer's cell phone after receiving the first fax. In response, the Consumer's attorneys twice re-sent the same facsimile.

 

The Consumer filed suit in federal court alleging violations of the FCCPA for purportedly continuing to contact her directly knowing she was represented by counsel about a debt it knew had been discharged in bankruptcy and the TCPA by using an ATDS or prerecorded voice to call the Consumer on her cell phone after Consumer revoked her consent to receive such calls.

 

The Satellite Provider moved for summary judgment, which was granted in its favor on all claims. 

 

The trial court reasoned that the Consumer's FCCPA claims failed because the debt for services under the Agreement and the Pause Program were two separate debts, the latter of which was not listed on the Consumer's Schedule G of her bankruptcy schedules and not discharged in the bankruptcy.  Thus, the Satellite Provider did not attempt to collect an illegitimate in debt in violation subsection § 559.72(9) of the FCCPA because its conduct was related only to the Pause Program debt that was not discharged, and did not violate subsection § 559.72(18)'s prohibition on directly contacting a debtor it knows to be represented by counsel because the communications from the Consumer's attorneys to the Satellite Providers stated that they represented her concerning the discharged services debt.  The trial court further rejected the Consumer's TCPA claims because the TCPA does not authorize unilateral revocation of consent to receive automated calls when such consent is given in a bargained-for contractual provision. 

 

This appeal followed.

 

On appeal, the Eleventh Circuit first examined the effect of the bankruptcy, and whether the trial court erred in finding the Pause Program debt was not discharged. 

 

The Eleventh Circuit noted that the Satellite Provider's claim for the Pause debt was derived from the Agreement, which specifies the terms of the program and its fee for participation.  The parties do not dispute the district court's characterization of the Agreement as an executory contract, governed by Section 365 of the Bankruptcy Code.  As you may recall, under § 365, a trustee may assume or reject any executory contract of the debtor. In a Chapter 7 bankruptcy case, "if the trustee does not assume or reject an executory contract . . . of the debtor within 60 days after the order for relief . . . then such contract . . . is deemed rejected." Id. §365(d)(1).

 

Here, it was undisputed that the trustee neither assumed nor rejected the Agreement, and the trial court held that the Agreement was not deemed rejected under § 365 because the Consumer failed to disclose it as an executory contract on Schedule G.  However, the Eleventh Circuit found that the failure to list the Agreement on her Schedule G did not prevent its deemed rejection because: (i) the Consumer disclosed the Satellite Provider as an unsecured creditor on Schedule F, thus providing the trustee notice of their relationship; (ii) the Satellite Provider clearly had notice of the bankruptcy and could have objected to the dischargeability of its breach of contract claim, but it did not do so, and; (iii) no evidence indicates that the Consumer intentionally concealed the Agreement. See In re the Matter of Provider Meds, LLC, 907 F.3d 845, 858 (5th Cir. 2018) ("At a minimum, the statutory presumption of rejection after sixty days is conclusive where there is no suggestion that the debtor intentionally concealed a contract from the estate's trustee.").

 

Because the trustee neither assumed nor rejected the Agreement, Consumer disclosed her relationship with the Satellite Provider on the petition, and no evidence indicates Consumer attempted to conceal the Agreement from the trustee, the Eleventh Circuit found that the Agreement was deemed rejected pursuant to § 365(d)(1) of the Bankruptcy Code.

 

As a result, the Satellite Provider maintained a prepetition breach of contract claim for the Pause Program debt as a general unsecured creditor under § 365(g), but failed to timely make any such claim before the discharge order was entered.  Accordingly, the Court reasoned that Satellite Provider's claim for the Pause Program debt was discharged when the bankruptcy court entered the discharge order.  11 U.S.C. § 727(b) (a discharge in a Chapter 7 case "discharges the debtor from all debts" and "any liability on a claim" that arose or are determined to arise before the petition is filed); In re Edgeworth, 993 F.2d 51, 53 (5th Cir. 1993) ("A discharge in bankruptcy does not extinguish the debt itself, but merely releases the debtor from personal liability for the debt.").

 

Having determined that the Satellite Provider's claim for the Pause Program debt was, indeed discharged, the Eleventh Circuit turned to analysis of the Consumer's FCCPA and TCPA claims.

 

First addressing the FCCPA claims, the Appellate Court noted that the trial court's ruling in the Satellite Provider's favor was based on its threshold finding that the Pause Program debt had not been discharged in the Consumer's bankruptcy.  Because the Eleventh Circuit reached a different result and determined that the Satellite Provider's claim to the Pause Program debt was discharged in bankruptcy, it agreed with the Consumer that the Satellite Provider attempted to collect debt it had no legal right to collect in violation of subsection § 559.72(9) because the debt had been discharged in bankruptcy, and directly contacted the Consumer after having received notice that she was represented by counsel in violation of § 559.72(18).

 

Accordingly, the entry of summary judgment in the Satellite Provider's favor on the Consumer's FCCPA claims was reversed, and remanded to the trial court to consumer whether the Satellite Provider possessed actual knowledge that the Pause Program dents were invalid and that the Consumer was represented by counsel with regards to the debt, as required to establish a claim under the FCCPA, and any defense that such errors were unintentional and the result of a bona fide error.

 

Next reviewing the Consumer's TCPA claims, the Eleventh Circuit noted that the parties do not dispute that the Consumer expressly consented to be contacted by a prerecorded voice or ATDS in the Agreement, and unilaterally attempted to revoke that consent via the faxes her attorneys sent to the Satellite Provider, yet the Satellite Provider continued to contact her.

 

Thus, the issue before the Court was whether the TCPA allows unilateral revocation of consent given in a bargained-for contract.

 

In granting summary judgment in the Satellite Provider's favor, the trial court followed the Second Circuit's reasoning in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2nd Cir. 2017) — the only Circuit to specifically address whether the TCPA allows a consumer to unilaterally revoke consent to receive automated calls when such consent is given as part of a bargained-for exchange. 

 

Here, like the plaintiff in Reyes, the Consumer expressly consented to receive automated telephone calls to collect a debt as part of a bilateral agreement and expressly revoked his consent to receive such calls.  Acknowledging that the TCPA is silent as to consent and "evidences no intent to deviate from common law rules defining consent," it applied common law contract rules to conclude that "the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent," and affirmed summary judgment for the defendant.  Id. at 56.

 

The Eleventh Circuit agreed with the Second Circuit's reasoning, noting prior interpretations of contract law, stating that "an 'agreement is a manifestation of mutual assent on the part of two or more persons,' [and thus] it is black-letter contract law that one party to an agreement cannot, without the other party's consent, unilaterally modify the agreement once it has been executed." Kuhne v. Fla. Dep't of Corrs., 745 F.3d 1091, 1096 (11th Cir. 2014) (internal citations omitted). 

 

It further rejected the Consumer's claims that this determination is at odds with its decision in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) or the Federal Communication Commission's ("FCC") landmark 2015 Ruling, In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7994-7999 (2015) (the "2015 FCC Ruling"), because neither addressed consent given in a legally binding agreement, instead addressing consent given generally and relying on common law tort principles to find that consent is revocable under the TCPA. See Osorio, 746 F.3d at 1253 (citing to RESTATEMENT (2D) OF TORTS); 2015 FCC Ruling, 30 F.C.C. Rcd. at 7994 n.223 (citing to the RESTATEMENT (2D) OF TORTS § 892A, cmt. i. (1979)). 

 

The Eleventh Circuit was similarly unpersuaded by the Consumer's argument that unilateral revocation of consent given in a legally binding agreement is permissible because it comports with the consumer-protection purposes of the TCPA, agreeing with the Second Circuit that "[i]t was well-established at the time that Congress drafted the TCPA that consent becomes irrevocable when it is integrated into a binding contract, and we find no indication in the statute's text that Congress intended to deviate from this common-law principle in its use of the word 'consent.'" Reyes, 861 F.3d at 58.

 

Accordingly, summary judgment in the Satellite Provider's favor on the Consumer's TCPA claim was affirmed, and the matter was remanded to the trial court as to the reversed FCCPA claims.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia  |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

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and

 

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