“Credit One attempted to collect on the debt by calling the number associated with the Card over 600 times, often as many as ten times per day.”
In 2010, Adam Lieberman used his wife’s phone number on his credit card application and eventually went delinquent. Credit One Bank’s auto-dialers then sprung into action and proceeded to call her, over 600 times and as many as ten times a day. Little did he know that the arbitrating judge courts would rule against them both for $286K.
The case—Credit One Bank, N.A. v. Lieberman, Civ. No. 21-2923, 2021 U.S. Dist. LEXIS 145870 (D. N.J. Aug. 4, 2021, began when Lieberman initiated arbitration against Credit One for TCPA violations in 2017. Subsequently, Credit One then filed a counterclaim against both Mr. and Mrs. Lieberman for fraud and declaratory relief, and a cross-complaint against Mrs. Lieberman for breach of contract, negligence, fraud, negligent misrepresentation, and declaratory relief and indemnification.
What Mr. Lieberman forgot to take notice of, as do many, was the change in terms (CIT) notice sent to him in 2016. In the CIT, Credit One modified the cardholder agreement to include the following statement.
“if you provide telephone number(s) for which you are not the subscriber, you understand that you shall indemnify us for any costs and expenses, including reasonable attorneys’ fees, incurred as a result of us attempting to contact you at the number(s).”
Credit One made the argument that since Mrs. Lieberman was a cardholder, she was responsible for having supplied the phone number of Mr. Lieberman even though it was Mr. Lieberman who had actually supplied the number to begin with. Keep in mind, this all started because Credit One had called them over 600 times.
One allegation by the arbitrator on Mr. Lieberman’s actions was telling of the final ruling. Referring to a lengthy inbound call transcript from Mr. Lieberman, the arbitrator stated that it was “remarkable for what it says about Claimant’s conduct with reference to the collection calls and the credit card debt owed by his spouse.”
In the excerpt, Mr. Lieberman intentionally jammed together a request for calls to his number to stop with another question about “what’s cooking,” in a transparent attempt to confuse the Credit One representative into missing the request that the calls stop. Id. But the agent heard the request and asked Mr. Lieberman to simply verify the number that he wanted Credit One to stop calling. Mr. Lieberman did not want the calls to stop because he was trying to manufacture a TCPA claim. Stopping the calls is bad for manufacturing a TCPA claim, for which liability increases with every additional call. So, instead of verifying the number that he wanted Credit One to stop calling, he clumsily and falsely changed course claiming things were complicated and that he needed to talk to his wife.
In January of 2020, an arbitration hearing was conducted before the Honorable Ariel E. Belen (Ret.). Post-hearing briefs were submitted and the Arbitrator heard additional oral arguments. In its Post-Hearing brief, Credit One sought “the costs and reasonable attorneys’ fees that it had incurred defending Mr. Lieberman’s claim.”
On January 14, 2021, the Arbitrator issued a Corrected Final Award. The Arbitrator dismissed Mr. Lieberman’s TCPA claims against Credit One, entered judgment in favor of Credit One on counterclaims against Mr. Lieberman, and entered a judgment in favor of Credit One’s crossclaims against the Liebermans. The Arbitrator awarded Credit One attorneys’ fees, arbitration expenses, and costs to the tune of $286,064.62.
Back to the start, at contract origination, Lieberman had used his work address as his home address as well as his wife’s number as his own. He had been notified of the change in terms, but lets be honest, how close do most people read those? The entire issue of 600 calls and TCPA violations appear to have simply been wiped away by his own hands from the start. Kind of bizarre to see in this consumer-friendly era.
Being ruled in arbitration, it’s all a little sketchy, but looking at the manner in which the arbitrator dismissed the TCPA allegations, as grievous as they were, and upheld the countersuit, it appears as though the court may have considered or come to the conclusions that the Lieberman’s had purposefully intended to defraud Credit One and that Mr. Lieberman had a history of bringing similar TCPA lawsuits against other financial institutions.
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