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Reyes v. Lincoln Automotive Financial Services

United States Court of Appeals, Second Circuit

August 21, 2017

Alberto Reyes, Jr., Plaintiff-Appellant,
v.
Lincoln Automotive Financial Services, Defendant-Appellee.

          Argued: April 4, 2017

         Appeal from the United States District Court for the Eastern District of New York. No. 15 Civ. 560 - Leonard D. Wexler, Judge.

         Plaintiff-appellant Alberto Reyes, Jr., appeals a judgment of the United States District Court for the Eastern District of New York (Leonard D. Wexler, J.). Judgment was entered following the grant of summary judgment to the defendant-appellee, Lincoln Automotive Financial Services ("Lincoln"), on Reyes's claim for damages stemming from Lincoln's alleged violation of the Telephone Consumer Protection Act ("TCPA"), Pub. L. No. 102-243, 105 Stat. 2394 (1991) codified at 47 U.S.C. § 227. Reyes leased an automobile from Lincoln and, as a condition of the lease agreement, consented to receive manual or automated telephone calls from Lincoln. Lincoln called Reyes regularly after he defaulted on his lease obligations, and continued to do so after Reyes allegedly revoked his consent to be called. Reyes sued for damages under the TCPA. The district court granted summary judgment for Lincoln, on the basis that (1) the evidence of consent revocation was insufficient, and (2) in any event the TCPA does not permit revocation when consent is provided as consideration in a binding contract. We hold that (1) Reyes did introduce sufficient evidence from which a jury could conclude that he revoked his consent, but that (2) the TCPA does not permit a consumer to revoke its consent to be called when that consent forms part of a bargained-for exchange. We therefore AFFIRM the judgment of the district court.

          Yitzchak Zelman, Marcus & Zelman, LLC, Ocean, NJ, for Plaintiffs-Appellees.

          Jessica L. Ellsworth (Morgan L. Goodspeed, on the brief), Hogan Lovells U.S. LLP, Washington, DC, for Defendants-Appellants.

          Before: Walker, Jacobs, and Parker, Circuit Judges.

          JOHN M. WALKER, JR., CIRCUIT JUDGE

         Plaintiff-appellant Alberto Reyes, Jr., appeals a judgment of the United States District Court for the Eastern District of New York (Leonard D. Wexler, J.). Judgment was entered following the grant of summary judgment to the defendant-appellee, Lincoln Automotive Financial Services ("Lincoln"), on Reyes's claim for damages stemming from Lincoln's alleged violation of the Telephone Consumer Protection Act ("TCPA"), Pub. L. No. 102-243, 105 Stat. 2394 (1991) codified at 47 U.S.C. § 227. Reyes leased an automobile from Lincoln and, as a condition of the lease agreement, consented to receive manual or automated telephone calls from Lincoln. Lincoln called Reyes regularly after he defaulted on his lease obligations, and continued to do so after Reyes allegedly revoked his consent to be called. Reyes sued for damages under the TCPA. The district court granted summary judgment for Lincoln, on the basis that (1) the evidence of consent revocation was insufficient, and (2) in any event the TCPA does not permit revocation when consent is provided as consideration in a binding contract. We hold that (1) Reyes did introduce sufficient evidence from which a jury could conclude that he revoked his consent, but that (2) the TCPA does not permit a consumer to revoke its consent to be called when that consent forms part of a bargained-for exchange. We therefore AFFIRM the judgment of the district court.

         BACKGROUND

         In 2012, Reyes leased a new Lincoln MKZ luxury sedan from a Ford dealership.[1] Lincoln financed the lease. In his lease application, Reyes provided several personal details, including his cellular phone number. The lease itself contained a number of provisions to which Reyes assented when finalizing the agreement. One provision permitted Lincoln to contact Reyes, and read as follows:

You [Reyes] also expressly consent and agree to Lessor [Ford], Finance Company, Holder and their affiliates, agents and service providers may use written, electronic or verbal means to contact you. This consent includes, but is not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems. You agree that Lessor, Finance Company, Holder and their affiliates, agents and service providers may use any email address or any telephone number you provide, now or in the future, including a number for a cellular phone or other wireless device, regardless of whether you incur charges as a result.

         At some point after the lease was finalized, Reyes stopped making his required payments. As a result, on multiple occasions, Lincoln called Reyes in an attempt to cure his default.

         Reyes disputed his balance on the lease, and also claims that he requested that Lincoln cease contacting him. Reyes asserts that on June 14, 2013, he mailed a letter to Lincoln in which he wrote: "I would also like to request in writing that no telephone contact be made by your office to my cell phone." Lincoln contends that it never received Reyes's letter, or any other request to cease its calls. At his deposition, Reyes testified to mailing the letter to the P.O. box listed on Lincoln's invoices and produced a copy of the letter that did not bear an address or postmark and referenced an incorrect account number. Despite his alleged revocation of consent, Lincoln continued to call Reyes. Following the close of discovery, Lincoln's attorney confirmed that Lincoln had called him 141 times with a customer representative on the line, and had called him with pre- recorded messages an additional 389 times.

         On February 6, 2015, Reyes filed a complaint against Lincoln in the Eastern District of New York, alleging violations of the TCPA and seeking $720, 000 in damages.[2] On June 20, 2016, Judge Wexler granted summary judgment to Lincoln, holding that (1) Reyes had failed to produce sufficient evidence from which a reasonable jury could conclude that he had ever revoked his consent to be contacted by Lincoln, and (2) that, in any event, the TCPA does ...


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