TCPA lawsuit: She says artificial or pre-recorded voice, he says no
- Peter Schneider
- 5 days ago
- 3 min read
Most folks know a robocall when they hear it. The Telephone Consumer Protection Act regulates calls utilizing artificial or pre-recorded voice, so many TCPA defendants try to argue that they didn't place calls using it. So what happens when the listener knows what they heard, but the telemarketer denies it? Such is the case of Suarez v. Portfolio Recovery Associates, 2025 WL 1191119 (April 8, 2025).
Ms. Suarez believes the callers used artificial or pre-recorded voice hundreds of times, and Portfolio Recovery Associates says they investigated themselves and didn't find any evidence that they did. Based on that, they filed a motion for summary judgment to dismiss the count. I don't know all the procedural history of this case, but apparently the issues involved a lot of people because it was transferred by the Judicial Panel on Multidistrict Litigation (“JPML”) to the Southern District of California (“MDL Court”) for consolidated pretrial proceedings to determine if the calls were initiated by an automatic telephone dialing system (“ATDS”) [hint, your ATDS claim in a ninth circuit court is probably not long for this world].
Eventually the case went back to Florida, and Portfolio moved for summary judgment using their own internal 'evidence':
Defendant’s evidence relies upon its software programs that maintains and tracks customer account information. Its software programs do not reflect that any prerecorded messages were left for Plaintiff. Ms. Suarez testified, however, that she received hundreds of calls from Defendant and, each time she answered, she heard a prerecorded message. According to Defendant, the record evidence shows, as a matter of law, that it never used an artificial or prerecorded message to contact Plaintiffs and did not act willfully. Defendant contends that Ms. Suarez’s evidence of receiving such messages is speculative and unsubstantiated, making the evidence insufficient to defeat its motion for summary judgment.
Their motion for summary judgment pointed to their own internal 'evidence', and Ms. Suarez countered with an affidavit providing testimony that she received prerecorded messages. This dispute must be decided by a factfinder and is not a matter that can be resolved as a matter of law.
“[a] non-conclusory affidavit which complies with Rule 56 can create a genuine dispute concerning an issue of material fact, even if it is self-serving and/or uncorroborated.”
This whole situation is weird though because Ms. Suarez also moved for summary judgment and she had voicemail recordings which was not discussed in docket 122.
Plaintiff relies upon actual recordings of voicemail messages allegedly captured on her cellphone. She argues the identical nature of all messages confirms they are prerecorded. (Mot. at 9.) Plaintiff also relies on Defendant’s training and instruction manuals, asserting that these documents confirm the use of prerecorded messages. (Id. at 10.) Plaintiff further claims that the dialers used by Defendant have the capacity to play a recorded message when voicemail is detected. (Id. at 11.) Plaintiff further notes that Defendant’s policy of not making daily calls in certain states, where automated messages could not be left, further evidences the use of prerecorded messages.
It is best to not be in a he said, she said situation and have recordings. But the absence of them isn't a case killer as this lawsuit demonstrates.
Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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