Written by Nicole Su
In Miler v. Td Bank United States, No. 3:20-cv-00340-BR, 2020 U.S. Dist. LEXIS 184658 (D. Or. Oct. 6, 2020), the District Court of Oregon granted Target’s motion to dismiss on the grounds that Plaintiff failed to allege facts sufficient to establish that Target received notice of Plaintiff’s written revocation notice, and that sending that notice to TD Bank was not sufficient to impute knowledge of the attempted revocation to Target.
In Miler, Plaintiff alleged that he had taken out a loan with Defendant TD Bank in order to purchase goods from Defendant Target. He was unable to financially keep up with the monthly payments and Defendants allegedly began to call him to collect on the payments. Plaintiff contends that on June 20, 2019 and again on September 14, 2019, his counsel sent letters to TD Bank revoking any consent Plaintiff may have previously given to be called on his cellular telephone.
Plaintiff then filed a complaint against Defendants TD Bank and Target alleging violations of the TCPA and Oregon’s Unlawful Debt Collection Practices Act (“UDCPA”).
In granting Target’s motion to dismiss, the court held:
- Plaintiff did not allege facts sufficient to establish that Plaintiff sent a letter of revocation to Target, that Target received a letter of revocation or that Target was aware of Plaintiff’s letter. In fact, TD Bank’s answer stated that it did not inform Target about the letters because the letters were sent to TD’s headquarters, and the letters did not identify which retailer’s card Plaintiff had an account with. As a result, TD could not identify which servicer to which it could direct the letter.
- TD’s notice of Plaintiff’s revocation could not be imputed to Target. Even assuming that Target was an agent of TD Bank, under Oregon law notice of facts flows upwards to a principal rather than downwards to an agent under the "imputed-knowledge rule." Additionally, because the letters were never sent to Target, and TD’s answer stated that it did not inform Target about Plaintiff’s revocation letters, TD Bank’s knowledge of Plaintiff’s revocation could not be imputed to Target under the imputed-knowledge rule.
- Finally, the Court found that Plaintiff did not plead any facts to support his allegation that Target had intended to harass or annoy him in violation of the UDCPA because the Complaint lacked allegations Target was aware of Plaintiff’s revocation letters.
Often times, Plaintiffs and their attorneys attempt to revoke consent using “gotcha” tactics that in reality are very unlikely to inform the caller that the Plaintiffs no longer wishes to receive calls. Indeed, if the Plaintiff in Miler genuinely wished to notify both Target and TD Bank of his revocation request, it would have taken no more than extra stamp to get that message across. The Miler case presents a good example of a TCPA case based upon a rather disingenuous attempt to revoke consent that fell apart at the pleading stage.
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