Reboot Your Life: Tampa Student Loan and Bankruptcy Attorney Blog
Revocation of Consent
One of the pressing issues in pending litigation under the Telephone Consumer Protection Act (TCPA) is whether a consumer can revoke consent to receive calls on a cell phone. The TCPA requires prior express consent before a consumer can be contacted on a cell phone using an automatic dialer or prerecorded message, but the statute is silent on the right to revoke. So that raises two threshold questions: can prior express consent be revoked and, if so, what constitutes valid revocation?
There is a split in authority on whether consent can be revoked under the TCPA, but a number of courts are ruling that the conclusion that consent is revocable. The U.S. Court of Appeals for the Third Circuit was the first federal appellate court to address this issue. In Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-72 (3d Cir. 2013), the court held that a consumer has a right to revoke consent notwithstanding the absence of a statutory provision specifically authorizing revocation. Applying the common law concept of consent, the court reasoned that a right to revoke is not inconsistent with prior FCC decisions. Several courts have followed the Third Circuit’s lead, including the Eleventh Circuit (which governs the State of Florida) in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. Mar. 28, 2014).
In the past year, Floridians have been hit with ten thousand or more deficiency lawsuits by Dyck-O’Neal, a collector hired by Fannie and Freddie to go after unfortunate homeowners. Many defaults have been obtained against homeowners which should not have occurred due to lack of personal and/or subject matter jurisdiction. Many folks did not even know these additional lawsuits have been filed against them. A recent New York Times 
I have great news to report on our BP claims! We now have five claims being paid out in the last month alone! These of course have been pending all through the appeals process so it’s been a long wait.
Today, a legislator introduced a 
We are still able to strip second mortgages in a Chapter 7 bankruptcy here in Tampa Bay. However, there is a risk that the window of opportunity may be closing. Bank of America has filed several challenges to the U.S. Supreme Court in the past couple of years. Two of these cases, the U.S. Supreme Court has granted certiorari and has agreed to hear them: Bank of America v. Caulkett, Case No. 13-1421 and Bank of America, v. Toledo-Cardonna, Case No. 14-163. Currently, we are in the only Circuit that allows the stripping of second mortgages and HOA liens in a Chapter 7. The only requirement is that the home be worth less than the first mortgage at the time of filing. Once stripped, the second mortgage lien is gone forever, unless the bankruptcy discharge is revoked which is very rare.
As a Florida consumer bankruptcy attorney, we have been able to remove and strip off second mortgages due to the 11th Circuit’s decision in McNeal a couple years back. It is the only Circuit in the country that allows for a second mortgage lien to be stripped from homestead property. The key has been to show that the home does not have value over and above the amount owed on the first mortgage.
Many of our Tampa Bay, Florida clients facing foreclosure want to speak with their mortgage company and reach some kind of agreement for a loan mod, deed in lieu, cash for keys or short sale. Many do not. They’ve been there and done that and no longer want to receive in some cases hundreds of calls from a mortgage company.