If you’ve got a problem paying your mortgage, the bank is allowed to call you about collecting that debt. But after you’ve repeatedly told the bank — verbally and in writing — to stop robocalling your cellphone, it should do so. And if a recent ruling by a federal court in Florida holds up, Bank of America will have to fork over more than $1 million to a couple who say the bank spent five years ignoring their demands for the calls to cease.
Like many homeowners who’d gotten a mortgage from Countrywide during the peak of the housing bubble, the Tampa-area couple suddenly had trouble making loan payments when that bubble burst, especially when the amount of those payments doubled after Bank of America — which acquired Countrywide when it collapsed — took over the loan.
According to the complaint [PDF] filed in a U.S. District Court in July, BofA began robocalling the homeowners in the spring of 2009 on both their home phone and cellphones.
That summer the couple brought in a third-party mitigation service to hopefully arrange for a loan modification. And in Aug. 2009, they sent BofA a letter requesting that the bank cease all contact with the homeowners but deal instead with the mitigators. The bank subsequently replied that it had received this letter, but the calls allegedly continued.
In Sept. 2011, a lawyer for the couple wrote BofA, again instructing the bank to cease all debt collection communications with his clients. And again, the bank acknowledged receipt of this request.
But according to the complaint, the calls continued, sometimes several times a day. In fact, the automated calls from BofA would sometimes come within minutes of each other, but to different numbers. The calls were allegedly still coming in as the couple filed their suit, meaning BofA ignored their request for more than five years.
In total, the couple allege that they received around 700 collections calls to their cellphones, plus another 350 or so to their home phones, after having demanded an end to the communications.
The complaint accused BofA of violating the federal Telephone Consumer Protection Act, which requires that a business gain the express consent of a consumer before contacting them via robocalls. The bank was also accused to violating the Florida Consumer Collection Practices Act, “by willfully engaging in other conduct which can reasonably be expected to abuse or harass the Plaintiffs.”
(Note: The original complaint also alleged violation of the federal Fair Debt Collections Practices Act, but that only applies to third-party debt collectors and not to businesses attempting to collect a debt that is owed directly to them. Thus, that allegation was dropped in an amended complaint.)
Bank of America failed to respond to the complaint in a timely manner, so the couple filed a motion for a default judgement against the bank and were successful.
In October, the court issued that judgement [PDF] and awarded the couple $1.051 million dollars.
Realizing they screwed up, BofA then asked the court to set aside the default judgement, arguing that the statute of limitations had already passed on the allegations, that the bank didn’t use a robocalling system to make these calls, that the plaintiffs had indeed given their consent to the calls, and that it was all just a big mistake.
But the judge disagreed [PDF] with BofA on most of its claims.
The bank had tried to argue that it only made calls to the plaintiffs between Aug. 2007 and Sept. 2009, so the 4-year statute of limitations had expired. But the judge points out that the plaintiffs presented evidence — which the bank didn’t attempt to refute — showing that they had received multiple calls per month through the summer of 2014.
BofA claimed that its automated calling system doesn’t fall within the definition of a “automatic telephone dialing system” as described in the TCPA because it doesn’t just call numbers at random, but uses a specific list of numbers for calling. But the judge maintained that a machine isn’t exempted from TCPA regulations just because the numbers are programmed into it.
As for the bank’s argument that the husband had indeed given his consent for calls to his cellphone by using it on mortgage documents, the judge ruled that that consent was taken away by the multiple cease-and-desist letters sent by the plaintiffs. Since the complaint only deals with the robocalls made after that request was made, the bank can’t claim he gave his consent to some of the calls.
The judge also found that BofA failed to provide any support for why the continued robocalls should be excused for being a bona fide error. This defense, wrote the judge, is “without merit.”
And so he denied the bank’s motion to set aside the judgement.
The plaintiff’s lawyer tells the Tampa Bay Times that he intends to attempt to collect the damages immediately.
“Unlike Bank of America,” he said, “we’re only going to call them once.”
However, this week the bank filed a motion [PDF] to stay execution of the judgement pending appeal, so it could be a while before the couple ever sees a dime from BofA.
by Chris Morran via Consumerist
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