Greetings TCPAWorld!
Happy Friday! Here’s a tip for auto lenders: if you’re going to use prerecorded voicemails to chase down payments, you might want to make sure you’re actually calling your own customers first. In Carr v. Credit Acceptance Corp., No. 25-10985, 2026 WL 297212 (E.D. Mich. Feb. 4, 2026), Judge Laurie J. Michelson in the Eastern District of Michigan had to sort through exactly that scenario, and the results are very interesting.
In Carr, the Court granted in part and denied in part Credit Acceptance’s Motion to Dismiss and/or Strike Class Allegations. The prerecorded voice claim survived; however, the willful-and-knowing claim did not. Importantly, the class allegations live to fight another day.
For background, Plaintiff allegedly received an unwanted phone call from Credit Acceptance on March 4, 2025, asking her to make a payment or access account information. Sounds routine enough, except for one small problem. Plaintiff is not a Credit Acceptance customer. She allegedly never gave them permission to call her. The call wasn’t even meant for her, as it was apparently intended for someone named Cornelius.
The voicemail Credit Acceptance left was a typical generic voice message: “Please call Credit Acceptance at 1-800-634-1506 or you can visit us online at http://www.creditacceptance.com to make a payment or access account information. Our hours of operation are Monday to Friday from 8:00 a.m. to 11 p.m. Saturday and Sunday 8 a.m. to 5 p.m. Eastern Time. Thank you.” Id. at *2. Plaintiff alleged she “readily identified the message as recorded and not live speech” just by listening to it. Id.
In response, Plaintiff sued under the TCPA, alleging Credit Acceptance used an artificial or prerecorded voice in violation of 47 U.S.C. § 227(b). Plaintiff also sought treble damages for a willful or knowing violation and brought class allegations on behalf of other non-customers who received similar calls. To counter Plaintiff’s assertions, Credit Acceptance moved to dismiss the whole matter and strike the class allegations.
First, let’s start with the prerecorded voice claim, because Credit Acceptance threw everything it had at this and still couldn’t get it tossed. Credit Acceptance’s first argument was that Plaintiff’s allegations about speaking with a representative and mentioning someone named “Cornelius” suggested she had a live conversation, not a prerecorded call. The Court reasoned that by reading the Amended Complaint as a whole, it was clear there were multiple calls. The Plaintiff’s conversation with a representative occurred after the March 4 robocall; she called them back to request that they stop calling her. That’s a common fact pattern we typically see, and the Court correctly read the Complaint in context rather than selectively quoting individual paragraphs.
Credit Acceptance’s second swing was even more creative. They asserted that Plaintiff should have specified whether the voice was “artificial” or “prerecorded” because those are two different technologies under the TCPA. The Court’s response? Show me the authority that says a plaintiff has to pick one at the pleading stage. Credit Acceptance couldn’t. As the court noted, plaintiffs are entitled to plead in the alternative under Federal Rule of Civil Procedure 8(d)(3).
The Court also noted that the very cases Credit Acceptance cited actually supported Plaintiff’s position. Rogers v. Assurance IQ, LLC, No. 21-00823, 2023 WL 2646468 (W.D. Wash. Mar. 27, 2023), said that sufficient allegations include references to a call’s “robotic sound,” “generic content of the message,” and “anything else about the circumstances of a call or message contributing to the belief it was pre-recorded.” See Carr, 2026 WL 297212 at *3. Here, Plaintiff alleged all of that. Additionally, this is the same issue in Metzler v. Pure Energy USA LLC, No. 21-9798, 2023 WL 1779631 (S.D.N.Y. Feb. 6, 2023), where the Court faulted the plaintiff for not alleging the voice sounded artificial. However, Plaintiff alleged that, and more. When the cases your opponent cites actually help you, that’s never a great sign.
Second, now for the bad news for the Plaintiff. Her claim for treble damages arising from a willful or knowing violation was dismissed, and the reasoning is worth attention. In the Eastern District of Michigan, a willful or knowing violation requires that the defendant had “actual knowledge” that the plaintiff did not consent to the calls. See Duchene v. Onstar, LLC, No. 15-13337, 2016 WL 3997031, at *7 (E.D. Mich. July 26, 2016). Not constructive knowledge. Not that you should have known. We’re talking about actual knowledge here. See Bristow v. Am. Nat’l Ins. Co., No. 20-10752, 2021 WL 2201171, at *2 (E.D. Mich. June 1, 2021). Here, the Court found that Plaintiff didn’t notify Credit Acceptance until after the March 4 call, so they didn’t have prior notice before the allegedly unlawful call. See Carr, 2026 WL 297212 at *3–4.
Conversely, but what about the calls Plaintiff says she received after telling Credit Acceptance to stop? Here’s where Plaintiff’s pleading fell short. She alleged the calls “continued” but provided zero details. No dates, no descriptions of the content, no information about the nature of those subsequent calls. The Court compared this to Harris v. World Fin. Network Nat. Bank, 867 F. Supp. 2d 888 (E.D. Mich. 2012), where the plaintiff had actual evidence of post-notice calls at summary judgment. Here, Plaintiff had only bare allegations, with nothing to support them. That wasn’t enough for the Court to exercise its discretion on treble damages.
Lastly, the class allegations. Credit Acceptance pursued two approaches here, and both faltered. First, they asserted that individualized consent questions would predominate over common questions under Rule 23(b)(3). The Court’s analysis pointed to the Sixth Circuit’s decision in Bridging Communities Inc. v. Top Flite Financial Inc., 843 F.3d 1119, 1126 (6th Cir. 2016), which held that “the mere mention of a defense is not enough to defeat the predominance requirement” and that “speculation alone regarding individualized consent” won’t cut it. See Carr, 2026 WL 297212, at *4. If that argument struggles at the certification stage, it certainly wasn’t going to work at the pleading stage before any discovery has even happened.
Second, Credit Acceptance argued the class definition was an impermissible “fail-safe” class. The Court disagreed. Here, Plaintiff’s proposed class covered all persons who received a call from Credit Acceptance directed to a cellular number not assigned to a Credit Acceptance accountholder, made with an artificial or prerecorded voice, from April 8, 2021, through the date of class certification. Critically, the definition does not reference consent or lack thereof. In plain terms, that means class members could still lose on the merits if Credit Acceptance proves consent as an affirmative defense. That’s not a fail-safe class; that’s a properly defined one. See Carmouche v. A1 Diabetes & Med. Supply, Inc., 586 F. Supp. 3d 795, 806 (W.D. Tenn. 2022).
So what are the takeaways?
First, the bar for pleading a prerecorded or artificial voice claim remains low, but you still have to clear it.
Second, if you want treble damages in the Eastern District of Michigan, you need to plead actual knowledge with specificity. That means showing the defendant knew before the call at issue that the plaintiff didn’t consent. Additionally, it’s important to note that if you’re relying on post-notice calls, you need to actually plead facts about those calls. This could include the dates, content, and circumstances. Just alleging that the calls continued isn’t going to carry much weight.
Third, the Sixth Circuit has made clear that speculation about individualized consent defenses isn’t enough to defeat predominance, and a class definition that doesn’t incorporate consent isn’t a fail-safe class.
Lastly, as is obvious, when your own cases support the opposing party’s argument, you may want to reconsider your strategy.
As always,
Keep it legal, keep it smart, and stay ahead of the game
Talk soon!
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