A judge in the United States District Court for the Eastern District of California last week established a limit to what constitutes “reasonable means” for a consumer to revoke his or her consent to be contacted by lenders under the Telephone Consumer Protection Act. Granting defendants’ motion for summary judgment in Wright v. USAA Savings Bank; USAA Federal Savings Bank, the Court found that mailing a letter to an obscure corporate address, rather than the address provided to the borrower for regular account correspondence, was not sufficient revocation of consent.
Customer/plaintiff Mr. Wright opened a credit card account with USAA Savings Bank, listing his cell phone number on his application. Mr. Wright received monthly statements from USAA for nearly 18 years, each one listing an address in San Antonio, Texas, as the appropriate address to send payments and any other account correspondence. After nearly 18 years, he developed financial trouble and was unable to make his scheduled payments, and USAA began mailing him additional reminders listing the same San Antonio address to send payments or inquiries. Also, from July 16, 2018 through January 30, 2019, USAA made regular calls to Mr. Wright’s cell phone to contact him regarding the account.
Mr. Wright consulted with an attorney, who prepared a letter meant to communicate revocation of consent to call, and the attorney then mailed that letter to a USAA Savings Bank corporate address in Las Vegas, Nevada. When USAA continued calling Mr. Wright after he had sent the revocation letter, his attorney filed suit alleging, among other things, violation of the TCPA based on the post-revocation calls.
Under the TCPA, consumers may revoke consent to be called through any reasonable means using any reasonable method. When evaluating the reasonableness of a consumer’s revocation, however, courts are expected to evaluate the totality of the facts and circumstances, including whether the consumer had a reasonable expectation that his or her means or method of communication would effectively reach the caller, and whether the caller could be expected to act on that revocation without incurring undue burdens. USAA defended on the grounds that Mr. Wright’s means of communicating his revocation was unreasonable, and the Court agreed.
The key circumstances cited by the Court in its decision included the fact that Mr. Wright received over 200 statements and payment reminders which listed the San Antonio address as the proper address for account-related correspondence. Each of those documents also listed USAA’s website as an additional source of information about how to contact USAA, and the website listed only the San Antonio address for consumer correspondence. The United States Postal Service delivery confirmation could only show that Mr. Wright’s letter was delivered to the front desk at the Las Vegas address, which USAA does not even control. In its defense, USAA cited this lack of control over the mail service as one of the reasons why it does not give the Las Vegas address to the public for account correspondence.
Beyond these facts, however, the Court also found (based on statements at oral argument) that it was Mr. Wright’s counsel, not Mr. Wright himself, who drafted the revocation letter and decided to send it to the Las Vegas address, and that he did so not with a genuine expectation that USAA would stop calling Mr. Wright, but simply to “create a record for litigation.” The Court noted that Mr. Wright’s attorney had filed over 90 TCPA cases in the Eastern District of California alone and, thus, should have known how to contact a lender. The Court further noted that this particular attorney had filed suits against USAA in the past using similar tactics, without success. The Court observed that the choice of the Las Vegas address appeared to be a calculated litigation strategy, rather than a genuine attempt to communicate revocation of consent to USAA, and by the time he sent the letter on behalf of Mr. Wright, his attorney was on notice that his strategy was unlikely to succeed.
The Court found that a reasonable person, after receiving hundreds of statements and other notices pointing account holders to the San Antonio address, could not have expected to effectively communicate with USAA by sending a letter to the corporate office in Las Vegas. As a result, Mr. Wright’s method of communicating his revocation of consent was not reasonable and, thus, his revocation was not effective. The Court awarded summary judgment in favor of USAA on the TCPA claim.
Although the reasonableness of each plaintiff’s alleged revocation must be evaluated individually, this case provides at least one limiting principle for consideration: a letter sent to an obscure, non-public address, rather than the address published by the lender for regular account communication, may not be considered effective by itself.