- Case Type:
- Case Status:
- Affirmed in part and Reversed in part
- 18-13841 (11th Circuit, May 01,2020) Published
- The 11th Circuit reversed summary judgment in favor of DISH as to the FCCPA claims because the district court failed to determine whether DISH possessed actual knowledge that its debt had been discharged in bankruptcy and that the debtor was represented by counsel. In affirming the district court's grant of summary judgment to DISH on the TCPA claims, the 11th Circuit rejected the debtor's arguments that she unilaterally revoked consent to receive electronic communications from DISH. The court also held that contract between debtor and DISH was deemed rejected even though it was not scheduled.
- Procedural context:
- Appeal from the United States District Court for the Middle District of Florida affirmed in part and reversed in part and remanded.
- The debtor entered an agreement with DISH Network for satellite television services in exchange for a monthly fee. Prior to the petition date, the debtor elected to suspend service under the agreement, as the cost of suspending services was less than the fee to cancel the 24-month contract. Thereafter, the debtor filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. She listed DISH as a creditor in her bankruptcy schedules, but did not list the agreement as an executory contract on Schedule G. The debtor received her chapter 7 discharge. DISH continued to attempt to collect fees associated with the debtor's election to suspend services under the agreement. DISH continued to bill the debtor for the "pause fees" and sent the debtor multiple emails in an effort to collect the fees. In response, the debtor, through counsel, sent three facsimiles to DISH informing DISH that the debtor was represented by counsel with regard to her debts generally and noted the Telephone Consumer Practices Act's prohibition against make calls to the debtor using an automatic telephone dialing system or an artificial or pre-recorded voice to a cell phone without prior consent and that the debtor revoked any consent previously given to DISH. After receiving the first facsimile, DISH made six more automated calls to the debtor. Ultimately, the debtor filed an action in district court against DISH, asserting claims under the Florida Consumer Collection Practices Act and the Telephone Consumer Practices Act.
- Jill Pryor and Grant, Circuit Judges, and Royal, District Judge
Margaret Kinney v. HSBC Bank USA
Summarizing by Lars Fuller
3285 in the system
2 Being Processed