Put care into what you say on the phone and in your complaint
- Peter Schneider
- Aug 25
- 7 min read
Experienced TCPA plaintiffs know to mindful when speaking to telemarketers and writing their complaint, and recent TCPA lawsuit Clemens v. Consumer Sol. Ctr., No. 1:21-cv-1002 (RDA/LRV), 2025 LX 351094 (E.D. Va. Aug. 22, 2025) illustrates why.
First, some background. Mr. Clemens is the user of a cell phone registered to his wife and registered on the FTC's NDNC list. On August 30, 2019, a "Jason" called and asked for Mr. Clemens' wife.
Mr. Clemens played along, and Jason said he was with "Credit Solutions". Mr. Clemens put in his complaint that he “feigned interest” in the debt reduction services being offered by “Jason,” purportedly to obtain evidence “to use against the underlying participators.”
Plaintiff was transferred to Estrada, who introduced himself as a representative of Consumersolutioncenter.com. Estrada informed Plaintiff that he met “some of the basic criteria for interest rate payment reduction” and explained how Consumer Solution Center’s debt reduction program works. According to Estrada, program participants cease “paying the monthly credit card bill(s) to the creditor” and instead pay into “a FDIC insured dedicated savings/holding account in the participant’s name.” “Once account reserves build up . . . to an amount able to settle one of the accounts entered into the program, it is settled after first being approved by the participant at an average settlement of 39%.” [This is a risky strategy. Debt reduction firms assure clients it will work, but there are two risks. The first risk is that the creditors begin suing the consumer, and when that happens the the debt reduction firm won't help the consumer. The second risk is that many debt reduction firms pocket a substantial amount of the "account reserves" and even when a creditor is willing to play ball, there isn't near as much money in the pot as the consumer thought] Estrada further informed Plaintiff that the “FDIC insured dedicated savings/holding account” is “set up through CounselorChen’s law firm in association with Global Client Solutions.” (Id.) Estrada referenced “our attorneys” throughout the call and told Plaintiff he would need to meet face to face with a representative of CounselorChen “before the program effectuated.” Following the call, Estrada emailed Plaintiff the contact information for CounselorChen and additional information about Consumer Solution Center.
Consumer Solution Center then continued to call and Mr. Clemens certainly got an A for playing along, physically going and having a meeting with a CounselerChen representative. and then doing some digging, finding out that Consumer Solutions Center wasn't registered to do business in California. On September 12 Mr. Clemens asked them to not call again, receiving two more calls after that. In total Mr. Clemens received 28 calls between August 30, 2019 and September 25, 2019.
Eventually Mr. Clemens moved for a default judgment against Consumer Solutions Center.
Mr. Clemens put a loose ball on the ground and the Court picked it up and ran with it
The Court had no trouble finding the first call was an uninvited solicitation - from Credit Solutions:
Based on these allegations [in the complaint], the undersigned finds that the August 30, 2019 call was a telephone solicitation by “Jason” on behalf of Credit Solutions, and that Plaintiff had not entered into an established business relationship with “Jason” or Credit Solutions prior to the August 30, 2019 call. Plaintiff does not allege that Credit Solutions and Consumer Solution Center are the same company, or that “Jason” was calling on behalf of Consumer Solution Center or any of the other Defaulting Defendants. Thus, the undersigned finds that the August 30, 2019 telephone solicitation is not actionable against any of the Defaulting Defendants. [Doh! Write your complaint such that if any defendant defaults - happens more than you think - you can tag them for a default judgment]
But Mr. Clemens' choice of language was open to interpretation and the court interpreted the language against Mr. Clemens:
During the August 30, 2019 call, Plaintiff “feigned interest in the service” offered by “Jason” to “fully identify and obtain documentary evidence to use against underlying participators.” After Plaintiff “feigned interest,” “Jason” transferred Plaintiff to Estrada because Plaintiff met “some of the basic criteria for interest rate payment reduction.” “Jason” described Estrada as a “Senior Debt Specialist,” and Estrada told Plaintiff “his company was Consumersolutioncenter.com.” Estrada explained the debt reduction services offered by Consumer Solution Center, including the involvement of CounselorChen, P.C., a Virginia law firm, and Plaintiff continued to express interest in the services. During or shortly after the call, at 3:28 p.m. on August 30, 2019, Estrada sent Plaintiff an email with additional information about Consumer Solution Center and a link to CounselorChen’s website. Based on these allegations, the undersigned finds that Plaintiff engaged in “a voluntary two-way communication” with Estrada on August 30, 2019. 47 C.F.R. § 64.1200(f)(5). The undersigned further finds that Plaintiff “inquir[ed] . . . regarding [Consumer Solution Center’s] products or services,” and thus entered into an established business relationship with Consumer Solution Center during the August 30, 2019 call.
The TCPA plaintiff is the master of his or her complaint, and I can't really think of any reason why a TCPA plaintiff needs to allege in their own complaint that they played along or feigned interest. A complaint should be heavy on certain facts - what calls were received and why the defendants are responsible - and light on open to interpretation 'facts' like playing along or feigning interest that don't move the TCPA plaintiff's ball forward at all.
Including the dialog of the telemarketing call can be a powerful tool, but even there I often would recommend stripping out the plaintiff's side of the conversation except perhaps for portions setting forth jurisdiction.
Mr. Clemens put a loose ball on the ground and the Court picked it up and ran a touchdown for the other side, but all was not lost I suppose. At least the court supported the premise that cell phones can be residential telephone subscribers.
“The Fourth Circuit has not addressed whether cell phone owners are considered ‘residential telephone subscribers,’” and “[c]ourts that have addressed the issue are split as to whether the TCPA extends to wireless telephone numbers.” Gaker v. Q3M Ins. Sols., No. 3:22-cv-00296-RJCDSC, 2023 WL 2472649, at *2 (W.D.N.C. Feb. 8, 2023) (finding the current language of the TCPA does not include cell phones); but see Boger v. Citrix Sys., Inc., No. PX-19-1234, 2020 WL 1033566, at *4 (D. Md. Mar. 3, 2020) (declining to rule at motion to dismiss stage whether plaintiff’s cell phone functioned as a residential number for TCPA purposes); Boardman v. Green Dot Corp., No. 3:21-cv-174-FDW-DSC, 2021 WL 3699856, at *3 (W.D.N.C. Aug. 19, 2021) (finding “a cellphone may plausibly be alleged as residential for purposes of the TCPA”). The undersigned agrees with the courts in Boger v. Citrix Sys., Inc. and Boardman v. Green that a cell phone may plausibly be alleged as residential for purposes of the TCPA. Stated differently, the undersigned does not find that Plaintiff fails to state a claim under section 227(c) of the TCPA because a cell phone is not “residential” for purposes of the TCPA.
Then the district court judge came along and rubber stamped the magistrate judge's report and recommendations. I recommend to our clients maintaining a polite coldness. Yes there are times that doesn't work and a stronger feigning interest is called for but we recommend only moving to that step when polite coldness doesn't work, and then after identifying the culprit, immediately following up with a do-not-call request.
this Court will determine whether Plaintiff entered into an established business relationship with any of the Defaulting Defendants between the relevant dates of August 30, 2019, and September 25, 2019 . . . After Plaintiff “feigned interest” in the August 30 phone call made by “Jason,” “Jason” transferred Plaintiff to Defendant Estrada. Defendant Estrada explained over the phone various debt reduction services offered by the Consumer Solution Center, including the involvement of CounselorChen, P.C., a Virginia law firm, and Plaintiff continued to express interest in the services. Based on these allegations, this Court finds that because Plaintiff “inquir[ed]” about Consumer Solution Centers “products or services,” Plaintiff entered into an established business relationship with Consumer Solution Center during the August 30, 2019 call. See Charvat v. Southard Corp., 2019 WL 13128407, at *5 (S.D. Ohio Sept. 30, 2019) (“Plaintiff moved from inquiries geared towards discovering [defendant’s] identity to a seeming legitimate question about what was being marketed. This was sufficient to create an EBR . . . .”); Morris v. Copart, 2016 WL 6608874, at *9 (E.D. Tex. Nov. 9, 2016) (stating that “the [p]laintiff’s false affirmation that he had a vehicle to donate established a business relationship, excusing subsequent calls made in furtherance of that business relationship and for the stated purpose of that relationship—to effectuate [the p]laintiff’s donation of a car”). This relationship was only terminated when the Plaintiff made a do-not-call request during a September 12, 2019 phone call.
Many judges are looking for a reason to give TCPA clients nothing, and this case illustrates that ambiguity in your words will often be used against you so be mindful of what you say on the phone and in your complaint.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington, Oregon, or Montana?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
Comments