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TCPAWorld remains a dangerous place for folks trying to communicate with their customers using text messages. This is true even in an era when P2P texting is finding increasing favor as a preferred contact channel. In Greiner v. Cadillac Accounts Receivable Mgmt., Case No. 2:19-cv-12479, 2020 U.S. Dist. LEXIS 234221 (E.D. Mich. November 9, 2020) for instance a Defendant was just denied summary judgment—i.e. the case is headed to a jury—in a case where the Defendant debt collector claimed it sent the texts at issue manually.
Defendant submitted three declarations from witnesses purporting that the texts at issue—debt collection messages—were sent manually. However, the declarations did not explain what “manual” meant and, apparently, just declared in a conclusory manner that the messages went manually. The Court reasoned that the assertion of manual texting in this context was merely a legal conclusion and rejected the evidence outright. Without the evidence, the motion for summary judgment falls flat.
It is unclear whether Defendant would have won the case had it introduced proper evidence, but the answer is probably yes.
Adding salt to the wound here, this case started off as a small claims matter. Defendant removed it to federal court and spent time and money to bring a summary judgment motion.
To a pro per.
Editor's Note: A pro per or pro se plaintiff is one that is not represented by counsel.
Greiner has a couple of takeaways:
One, defense lawyers need to submit proper evidence. And its quality, not quantity. These folks submitted three declarations, but none of them addressed the heart of the issue—what does “manual” mean? A single, properly worded and supported declaration could have probably won the case.
Two, the risk remains high in cases involving text messages. Even though the messages were sent “manually” and were plainly targeted to collect a debt—i.e. likely tailored to specific consumers and not mass blasted—the court still sent the issue to a jury to decide. The risk is real, folks. Be cautious and seek consent.