South Florida consumers aggravated by annoying "robo calls" on their cellphones from debt collectors are fighting back – suing the companies that make the calls and often collecting cash settlements from the lenders.
Fort Lauderdale lawyer Scott D. Owens has filed dozens of civil lawsuits against lenders and debt collection agencies. He says they have been violating the federal Telephone Consumer Protection Act by using "autodialers" – services that automatically store and call phone numbers, then play a pre-recorded message that says something like "This is Debt Collector X calling for John Jones. If this is John Jones, please press 1, if not, press 2."
If the companies don't play by the rules, the law says they can be forced to pay the consumer $500 in damages per call or $1,500 per call for "knowing or willful" violations.
"One young female client was getting calls from a major credit card company and they settled [her lawsuit] in the six-figure range. They called her 180 times," Owens said. "People just put up with it because they figure 'it's a bank, they must know what they're doing.'"
The law prohibits any auto-dialed or pre-recorded message made to a cellphone caller without prior permission. Federal lawmakers said such calls are a nuisance and unfair because they can cost consumers money – people with limited minutes in their cellphone plans could end up paying extra charges for the received calls or voicemails and people with unlimited calls often pay premium rates for that service.
Different, and much more complicated, rules apply to calls to land lines and lawsuits there are less common.
Among the South Floridians who have filed court cases is a 15-year-old boy from Aventura who received dozens of calls from a major bank trying to collect on an alleged consumer debt.
Owens said the teen, identified in the lawsuit only as "R.B." had no debt -- or any relationship at all – with the bank. The family figures the boy was unlucky when he got his first cellphone and inherited a phone number from the real debtor.
The boy, an A-student, received numerous phone calls to his cellphone while he was trying to do his homework and study assignments. His parents said he eventually changed his phone number because the calls became a "constant annoyance and frustration."
Another of Owens' clients, Christine Suarez, 26, a teacher who lives in southern Palm Beach County, said she settled some credit card debts from her student days but was still being pursued for a debt that she said was cleared and no longer legally collectable. She thinks the company got her phone number when she provided it to another organization when applying for a debit card.
"I got calls to my cellphone every day for many, many years for money that I don't owe," Suarez said. "I think people should know they don't have to put up with it."
Owens filed two federal lawsuits on her behalf against two companies. In the lawsuits, he wrote that the companies were trying to collect alleged debts totaling $2,000. If Suarez wins, the allegations could reap damages of about $51,000. "It's totally ironic if they end up having to pay me," Suarez said. "I guess it serves them right."
Most lawyers, including Owens, file the lawsuits on contingency, which means they pay the initial costs and receive a percentage of the settlement only if they win.
Barbara Fernandez, a Miami lawyer who represents lenders or collection callers in many of these cases, said the law has created a "cottage industry" of plaintiffs' lawyers filing suit because the damages can add up to a lot of money very quickly.
"One of the main issues that comes up in these cases is – at the end of the day, there's not a lot of actual damages. They might be frustrated but no one was physically hurt," Fernandez said.
In many cases, she said, lawsuits are filed by people who provided their cellphone number and express consent to call it – often the best defense for the caller.
Not surprisingly, the debt collection industry thinks the legislation is outdated and is lobbying for change, arguing that it's unfair to let people who owe money avoid attempts to contact them by cellphone.
Some 40 percent of U.S. households now rely primarily on cellphones, a number that's growing every year, and consumers play less per minute for mobile phone services than they did in 1991, when the first version of the law was enacted, said Mark Schiffman, a spokesman for ACA International, the Association of Credit and Collection Professionals.
"Wireless phones are now ubiquitous … consumers are including this number as their preferred contact information," said Schiffman.
The industry association wants lawmakers to consider "the increasing evidence that repeat plaintiffs and class action counsel are abusing the private rights of action that the [law] establishes for violations."
The rules covering cellphone calls and spam texts evolved from earlier versions of the law that were intended to stop old-fashioned "fax blasts" where companies used to send unsolicited advertisements to fax machines.
Owens said he doesn't have much sympathy for the collection industry because it has other options. It is perfectly legal for a human to manually dial a debtor's cellphone number and have a conversation, he said, or for the company to write to the person who owes them money. One major debt collector has acknowledged it places more than a million automated calls a month, many of which go to cellphones.
Simply providing a cellphone number when applying for a loan or opening an account implies the lender has permission to call it, but Owens said he advises clients to revoke that permission in writing by certified mail – an action some courts agree is valid, and others have said has no effect.
The law also applies to other kinds of unwanted cellphone contact from companies – including spam text messages from a gym trying to recruit members or sales calls from a night club using a cellphone number gleaned from a contest entry.
"The value of the cellphone [to these callers] is it's the one piece of technology you have in arm's reach at all times – it's of extreme value to them to be able to bother you on it," Owens said.
firstname.lastname@example.org or 954-356-4533.
HOW TO AVOID UNWANTED PHONE CALLS
Don't give your phone number – cell or land line – to any company or individual you may not want to call you in the future.
Telemarketers are not allowed to make automated sales calls without written permission in advance from consumers, though there are exemptions -- including some for debt collectors.
Increase your chances of avoiding unwanted phone calls from businesses by signing up for the federal and state do-not-call registries.
Putting your cellphone number on the federal list is free. Register at 888-382-1222 or donotcall.gov. Florida's list has a $10 enrollment fee and a $5 annual renewal fee. Call 800-435-7352 or go to 800helpfla.com. Both websites have more tips and information on how to file a complaint.
If you are receiving unwanted calls, you can file an online complaint with the FTC here with the state agency here or download a form to send by mail here. Download a federal guide on how to complain by mail here.
The U.S. Telephone Consumer Protection Act protects consumers from receiving auto-dialed or pre-recorded messages, as well as text message spam, on their cellphones unless the consumer has provided prior consent. You can try to withdraw consent by writing to the caller and sending it by certified mail.
Debt collectors can call your cellphone if a live person dials the number and speaks to you but the call may be forbidden if you hear an audible click before the caller starts talking or the incoming call starts with an artificial voice asking you to hold while you're connected to a representative.