Last week, in Russo v. POM Recoveries, Inc., the United States District Court for the Eastern District of New York denied summary judgment and allowed a suit to proceed against a debt collector for an alleged violation of Section 1692c of the Fair Debt Collection Practices Act. Plaintiff John Paul Russo alleged that POM violated the FDCPA by communicating with a third party about a medical debt that he owed. The Court ruled that the debt collector needed direct consent from Russo to leave a voicemail for him at the telephone number that he provided to the hospital, which turned out to no longer be his cell phone number when the message was left; thus, leading to an improper communication about Russo’s debt with the current subscriber.

Russo’s claim stems from defaulted consumer debt incurred for medical services. When Russo was admitted for the medical services, he signed a form that, in relevant part, authorized the hospital and “its agents and contractors” to contact Russo using “an automated telephone dialing system or prerecorded or artificial voice.”

When Russo defaulted on his obligation to make payment, the hospital hired POM to collect the amount owed. POM called the cell phone number that Russo provided on his admission form and left a voicemail regarding the debt. However, the number turned out not to belong to Russo.

Based on these facts, Russo sued POM claiming he had not given consent directly to POM to discuss his debt with a third party, as required by 15 U.S.C. § 1692c(b). In pertinent part, Section 1692c(b) states that “without the prior consent of the consumer given directly to the debt collector…a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer.” (emphasis added).

In support of the summary judgment motion, POM argued that the voicemail did not violate the FDCPA because Russo expressly consented to contact on his cell phone by “agents and contractors” of the hospital. Relying on Reyes v. Lincoln Auto. Fin. Servs., POM further argued that Russo was not permitted to unilaterally revoke his contractually granted consent based on the Second Circuit’s decision that for purposes of the TCPA, a consumer may not unilaterally revoke consent to be called when the consent is provided as part of a bargained-for exchange.

In denying POM’s motion for summary judgment, the Court noted that Russo had not alleged he withdrew consent, only that he had not given consent directly to POM. Accordingly, the Court explained that the interpretation of “consent” as addressed by Reyes was irrelevant to the present case because Russo “did not provide any consent, in connection with the collection of a debt, directly to [POM], the debt collector.”

Russo demonstrates the potential exposure for debt collectors relying on consent granted directly to the original creditor. Companies face potential liability not only under the TCPA to the called party for calls placed without consent, but also under the FDCPA to the consumer for communicating with a third party without the consent of the consumer given directly to the debt collector. In light of Russo, it is vital that debt collectors verify that the numbers dialed by their telephony systems belong to the consumers who incurred the debt, not to third parties, in particular before leaving messages about the debt.