Alabama Case Filings – TCPA Violations Alleged Against Santander (Auto Finance Company)

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We have talked extensively about the problem of companies, particularly car finance companies, violating the Telephone Consumer Protection Act (TCPA) by using autodialers or computer dialers and using pre-recorded messages against consumer’s cell phones illegally.

If you never gave permission to the auto finance company (GMAC, Nuvell, GMAC, Capital One Auto, Santander (Drive Financial), etc) then there is no excuse for them calling your cell phone with a robo-dialer or autodialer or using a pre-recorded message. This normally violates the law including the TCPA.

If you gave permission, you can always revoke it. We suggest doing this by a written letter sent certified mail, return receipt requested. Calls after that may be illegal if they are from a computer dialer (auto dialer or predictive dialer) or contain pre-recorded messages.

Here are the allegations of an Alabama consumer related to a suit filed against Santander in which the consumer claims Santander violated laws including the TCPA:

COMPLAINT

COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the Santanders states as follows:
1. This action arises out of Santander’s repeated violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA “), out of state law violations and out of the invasions of Plaintiff’s personal and financial privacy by the Santander and its agents in their illegal efforts to collect a consumer debt of Plaintiff’s wife, Vanessa Brooks, from Plaintiff who does not owe Santander.

PARTIES
2. Plaintiff is a natural person who is a resident of Alabama.
3. Santander Santander Consumer USA, Inc., (“Santander” or “Santander”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is the State of Texas and it is incorporated in Illinois.

FACTUAL ALLEGATIONS

4. Plaintiff’s wife allegedly incurred a financial obligation (car loan) that was primarily for personal, family or household purposes and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
5. Plaintiff does not owe this debt.
6. Santander made a large number of harassing and repeated phone calls to Plaintiff’s cell phone.
7. Santander refuses to stop calling and in particular using illegal pre-recorded messages.
8. Santander refuses to stop calling and in particular to stop using auto dialers.
9. Santander refuses to stop calling and in particular to stop using predictive dialers.
10. Santander illegally used an autodialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
11. Santander illegally used a predictive dialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
12. Santander illegally used pre-recorded calls to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
13. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with an autodialer.
14. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with a predictive dialer.
15. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with pre-recorded calls.
16. Plaintiff even told Santander not to call his cell phone but Santander continued to do so in violation of the law and told Plaintiff they were going to continue to call Plaintiff.
17. The volume and type of calls are harassing as the intent and motive behind them is to harass Plaintiff into paying Santander a debt which Plaintiff does not owe.

SUMMARY

18. All of the above-described collection communications made to Plaintiff by Santander and collection agents of Santander was made in violation of the TCPA.
19. The above-detailed conduct by this Santander of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
20. This series of abusive collection calls by Santander and its agents caused Plaintiff stress and anguish as a result of these abusive calls.
21. Santander’s repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
22. Plaintiff has suffered actual damages as a result of these illegal collection communications by this Santander in the form of anger, anxiety, emotional distress, fear, frustration, damage to reputation, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy, which was due to the illegal conduct of Santander.

RESPONDEAT SUPERIOR LIABILITY

23. The acts and omissions of Santander’s agents who communicated with Plaintiff as more further described herein, were committed within the line and scope of their agency relationship with their principal the Santander.
24. The acts and omissions by these other debt collectors were incidental to, or of the same general nature as, the responsibilities these agents were authorized to perform by Santander in collecting consumer debts.
25. By committing these acts and omissions against Plaintiff, these other debt collectors were motivated to benefit their principal the Santander.
26. Santander is therefore liable to Plaintiff through the doctrine of Respondeat Superior for the wrongful, intentional, reckless, and negligent acts, errors, and omissions done in violation of state and federal law by its collection employees, including but not limited to violations of the TCPA and Alabama tort law, in their attempts to collect this debt from Plaintiff.

NEGLIGENT AND WANTON HIRING AND SUPERVISION

27. Santander negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

CAUSES OF ACTION
COUNT I.
VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
(47 U.S.C. § 227)

28. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
29. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal automatic dialers that have been unleashed against Plaintiff by Santander.
30. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal predictive dialers that have been unleashed against Plaintiff by Santander.
31. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal pre-recorded messages that have been unleashed against Plaintiff by Santander.
32. There is no exception or justification for the numerous violations of the TCPA by Santander as Plaintiff has not consented to the Santander or to any original creditor to use these against Plaintiff’s cell phone and Plaintiff instructed Santander it had no permission to call his cell phone but the calls continued.
33. Each call is a separate violation and entitles Plaintiff to statutory damages against Santander in the amount of at least $500.00 per call and Plaintiff requests that since the violations were made intentionally or recklessly that the violations be assessed a statutory damage of $1,500.00 per call. 47 U.S.C. § 227(b)(3).
34. All actions taken by Santander were taken with malice, were done willfully, recklessly and/or were done with either the desire to harm Plaintiff and/or with the knowledge that its actions would very likely harm Plaintiff and/or that its actions were taken in violation of the TCPA and/or that knew or should have known that its actions were in reckless disregard of the TCPA.
35. All of the violations of the TCPA proximately caused the injuries and damages set forth in this Complaint.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

36. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
37. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Santander violated Alabama state law as described in this Complaint.
38. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

15 U.S.C. § 1692(a) (emphasis added).
39. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a) (emphasis added).
40. Santander and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
41. Santander and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
42. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
43. The conduct of this Santander and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by this Santander which occurred in a way that would be highly offensive to a reasonable person in that position.
44. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from Santander.
45. All acts of Santander and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Santander is subject to punitive damages.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

46. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
47. Santander negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

COUNT IV NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

48. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
49. Santander acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
50. Santander violated all of the duties Santander had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
51. It was foreseeable, and Santander did in fact foresee it, the actions of the Santander would lead and did lead to the exact type of harm suffered by Plaintiff.
52. Santander acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
53. Santander invaded the privacy of Plaintiff as set forth in Alabama law.
54. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
55. As a result of this conduct, action, and inaction of Santander, Plaintiff has suffered damage as set forth in this Complaint.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that judgment be entered against Santander:

COUNT I.
TCPA

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations in an amount to be determined at trial for Plaintiff;
• statutory damages of $500.00 or $1,500.00 per call; and • for such other and further relief as may be just and proper.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and • for such other and further relief as may be just and proper.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and • for such other and further relief as may be just and proper.

COUNT IV.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and • for such other and further relief as may be just and proper.

Respectfully Submitted,

/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff
OF COUNSEL:
Watts Law Group, PC The Kress Building 301 19th Street North Birmingham, Alabama 35203 (205) 879-2447 (888) 522-7167 facsimile john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff
OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building 301 19th Street North Birmingham, Alabama 35203 (205) 714-4443 (888) 522-7167 facsimile msh@mstanherringlaw.com

PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.

/s/ John G. Watts
Attorney for Plaintiff
Serve Santander via certified mail at the following address:

Santander Consumer USA, Inc.
c/o CT Corporation System 2 North Jackson Street, Suite 605 Montgomery, Alabama 36104

Contact Information