HDFS Sued Over Alleged Harassment, Lenders Advised to Remain Compliant

canstockphoto8293669Harley-Davidson Financial Services is being sued over alleged telephone harassment, which serves as a reminder to powersports lenders that when a consumer revokes consent for phone calls, the financial institution must comply immediately, said Molly Calkins, partner of the Consumer Financial Services Practice Group at Akerman LLP.

Michael Oliver, based in Brevard County, Fla., alleged the Harley-Davidson captive was harassing him with frequent collection calls to his cellphone, according to a published report, which violates the Telephone Consumer Protection Act (TCPA) and the Florida Consumer Collection Practices Act.

The plaintiff filed a complaint against HDFS on Jan. 25. Oliver claims HDFS allegedly kept harassing him by placing several calls per day to his cellphone using an automatic dialer system, beginning in December 2015.

The plaintiff requests a trial by jury and seeks statutory damages, punitive damages, actual damages, all legal fees — plus interest — and any other relief as the court deems just, according to the report.

“The federal lawsuit in Florida alleging Harley-Davidson Financial Services violated the TCPA hinges on consent,” Calkins told Powersports Finance. “The consumer alleges HDFS’s collection calls to his cellphone continued even after the consumer expressly revoked consent for the company to dial his number.”

Creditors are required to get express consent — which is typically obtained through written consent — to call cellphones using Automatic Dialing Announcing Devices, added David Gemperle, partner at Nisen & Elliott.

“Under the law, even where a consumer had provided a cell number — say, on a loan application — and thereby originally consented to a company dialing it, once a consumer revokes that consent, calls must stop,” Calkins said. “That means even otherwise compliant auto-dialing systems cannot run on auto-pilot.”

However, the Federal Communications Commission has said that the consent can be withdrawn by “any reasonable means,” Gemperle told Powersports Finance. “Creditors, therefore, need to be responsive to any attempt to withdraw consent.”

The TCPA includes a private right of action allowing consumers to enforce it via litigation, Calkins said, but “if federal enforcement of consumer protection laws is dialed back, we can expect increased enforcement through private and state attorney general litigation.”

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