bankruptcy petition in the middle district of florida and based upon conduct engaged in by the appellee endured debt collection after the discharge of her bankruptcy after the filing for bankruptcy that miss medley contends violates consumer protection laws and lead the florida consumer collection practices act in the telephone and is important to most of the issues in this case i think is paramount to the initial analysis in the bankruptcy court of the treatment of the debt that was scheduled the bankruptcy it is undisputed to miss medley scheduled this account the d h he is a digital services agreement in the bankruptcy schedules it's undisputed that dish received notice of the bankruptcy it's also undisputed that dish received notice medley had an attorney its undisputed received notice that the debt was discharged and it's also undisputed that not once but three times after the discharge of the debt that dish received repeated communications from mr at least counsel asking such debt collection communications does at the crossroads of the district court's ruling was that essentially because miss medley has scheduled this d h d h j agreement the agreement for satellite services in schedule as an unsecured creditor with an estimated amount due for the satellite services to dish rather than in schedule g which was the executor we contract schedule of the bankruptcy petitions that mis scuse me essentially rendered a portion of this debt non dischargeable and so therefore any collections or any debts that were purportedly accrued after the discharge of miss medleys bankruptcy was somehow a legitimate capable of continuing election by dish from that point for i would offer to what was the amount of that debt well that's in dispute the amount that was scheduled your honor i missed medley was eight hundred and thirty one dollars and i believe forty or forty one's that's all been discharged right it's in the schedules right so that was the amount that was scheduled in schedule f and that amount importantly your honor is an amount that was received by an intersection of a couple different events one looking at the actual contract itself it contemplates a twenty four month service period and so since she had made not one but two calls to dish prior to the filing of a bankruptcy intimating a desire and or a need to cancel because of financial hardship in her affidavit in testimony she was told by doing that you're going to have early termination fees cancellation fees other fees under the contracts that she would not be able to afford to pay on that call and that amount was again approximately eight one hundred and thirty dollars w which deals with the pre term anation and cancellation fees interestingly however if you look at the record the statements that were sent to miss medley during the pendency of the bankruptcy so after the bankruptcy is filed the debt is scheduled on schedule f and the amount that we just about based upon the services we just talked about the very st statement that she receives during the pendency of the bankruptcy does not show a balance due from dish but instead shows a credit balance i e an amount of money that dish purportedly owes medley because of some credit that she had received on the bill before hand so again when you look at this can textually that this happens all the time in the consumer debt or world where when you have a debtor that has a contract with a service provider whether cable t deliveries and they're breaking an agreement because they can no longer afford it scheduled these creditors to make sure they get notice in the bankruptcy and they try to estimate what the obligation is under the contract putting them on notice that they're destroying the debt you know  services the dish district court essentially took the position notwithstanding medley listing it as an unsecured creditor and importantly an interesting lee enough dish also two different times in the record below in the in the competing summary judgments taking the position that it was an unsecured creditor not an executor or a contract in their response in opposition to summary judgment and also in a separate filing in a motion elimi this case we thought was going to trial because we hadn't had a ruling on either the judgments there's a separate motion in limine a where it also took the position that again this was not an executor or a contract and they were trying to get an order from the court making sure that we did not refer to the d h agreement as an executor you contract interestingly this all came about because in the alternative dish argued there's really two ways when you list a creditor in a bankruptcy that a finance ation comes through on the other side and if you if a car you have a mortgage you have a pre partition contract there's an obligation it's due it's liquidated on the date of the bankruptcy filing that debt is discharged unless you reaffirm the debt or in the case of an executor a contract unless it's assumed those are the two ways that a preposition debt can survive and go through bankruptcy i guess three absent fraud but that but there's really been no allegation or evidence of fraud here those are the two ways that the debt consensually goes through either happen as listed in schedule i skin is it your position that this agreement was that kotori or not we listed it your honor as an unsecured debt in schedule f it was not an executor or a contract i will make a comment on that if i may every every unsecured debt especially when you're talking about a large financial institution or a service provider like dish network or water wells fargo every exe unsecured debt is born an executor or a contract you know credit card agreement you have obligations on both sides payment obligations miles that you can accrue when payment has to be done so they're all born and executor a contract but when in a case like this someone makes not one but two communications to them indicating i can no longer afford this debt and  i have to cancel it i have to breach it in i'm filing bankruptcy i'm going to be filing bankruptcy follows through on that communication and then list the creditor in the bankruptcy schedules not in g which i would i would offer is an objective manifestation of how the debtor is treating it if they thought that this was a contract that had value at this they thought it was a contract they wanted to keep like a car lease for example you'd listed in g it's listed in f here and it makes complete sense against the communicating with dish i can't afford it and can afford again i'm filing for bankruptcy and she scheduled it in schedule f in an amount that contemplates the early terminations fees under the d h a green so we listed it as an unsecured debt i believe it's an unsecured debt i don't believe that the contract there was still continuing obligations on both parties parts and that's why it was listed as such but hypothetically even if it were to be an execut a contract that is a an endeavor an analysis that does not change the result we've gone through in the briefs and explain in both circumstances whether you have an unsecured creditor or you have an executor we contract  both of those are claims under the bankruptcy code eleven us c want to want to believe it is section five it talks about whether it's liquidated on liquidated contingent on contingent or  it's been reduced to a number not all of those types of claims are essentially under the contract liquidated as a debt against the estate on the date of the petition and that is a claim that the whether it's the other party to the non de party to the contract or the creditor has against the estate so in either circumstance the analysis really doesn't change the end result of what the creditor in this case dish would have against mission miss medley which is an unsecured claim in the debtor's bankruptcy current status of the contract well i mean we're here arguing i thought that this debt was discharged as soon as she received her discharge i mean importantly that i think the bankruptcy court is the court that is given the jurisdiction for determining discharge ability of debt that was included in the schedules undisputedly received notice if you look at the bankruptcy docket there was no objection to how the debt was scheduled there is no adversary proceeding for filed claiming that somehow that a port a debtor a portion of this should be accepted from discharge the discharge was entered the debt is discharged there is no contract there is no obligation the miss medley has to pay to dish network under the d h a greenman for those very reasons if there is no contract does that mean that the whatever green that she made to be to consent to be contacted is is that was that discharge along with the debt or is your argument that the contacts from counsel are what eliminated dishes opportunity to contact her via cell three things one notice of the bankruptcy you've got eleven u s c section three hundred and sixty two and they receive the notice a commencement that's a stay of creditors that stops all debt collection communications whether it's through an a t t s an auto dialer a pre recorded voice mail ten digit dialing all of those types of communications arse must cease on receipt of the automatic stay the notice klinsmann also let dish know that mr medley in this case was not pro se but had an attorney my firm and so that also i florida statutes fifty five thousand nine hundred and seventy two sub eighteen which is if you know that a consumer has an attorney with respect to a debt communications directly with the debtor must stop and they must go to the attorney period so i do think it's both the bankruptcy code and the f a that are both to consumer statutes both of which are hyper focused on regulating the collection of consumer debt that stops the conduct that was present in this case from the very moment they received notice of an attorney from the very moment is that your evidence is the st seeds of the evidence your honor the notice of commencement which was alleged in the complaint and it said that there were communications both telephone calls and letters after the notice commencement that's the st seat it's not the only seat one of the other sleeves discharge or t on that account i go for basis the last thing is not one not two but three times after the discharge my firm sent x as a representation to them further advising that move reparative representation and asking communications disease my time is debra vides the account number provides the full social security number and says that we want the communications with the debtor to cease we want communications to come to our office and by the way stop calling them with an auto dialer or an a p it implicate statutes the statute says you can't communicate with her you got to communicate with us that's the f c c and it also says you can't use an auto dialer that's the t c p a but i would offer to you the f c c p a the notice of representation of counsel there is in my estimation a revocation by operation of law for the ability to continue to communicate with the consumer let's let's presume for argument's sake you did have prior express consent and it was solid and you had the ability to use the don't get to call the debtor of our percentage of the might have one question i just want one number how much money do you say dish is trying to collect right now from your client right now zero subsequent during at different times in this case it's ranged from five dollars up to one hundred and forty dollars and then at some point in time the litigation ensued and i think it was rude but there was a systemic amount of collection under the contract on a monthly basis that continued to accrue up and that's part of the problem when you have a de or that's filed a bankruptcy is seeking a fresh start and then all the sudden during the pendency of the case in after the discharge of the case invoices just continue to come they continue to escalate and that literally is robbing them of the fresh start that they s is my name is eric zealot i represent the appellee dish network this is my co counsel david krueger the district court recognized that businesses should be able to contact their customers about their accounts if they consented  contacted it recognize that one party to a binding contract can't unilaterally modify that contract it recognized that creditors and a bankruptcy trustee should be able to rely on the sworn statements in a filed petition with a federal bankruptcy court and we think we've got the district court got those notions bedrock principles right it's important to remember here  that this is not and invasive telemarketing case about hundreds of calls it's about six calls the dish network made to an existing customer mrs medley about her account and what happened prior to the bankruptcy is mrs medley in march of two thousand and fourteen called in and elected a different contractual provision under which her account would be governed  pause function and what that did was pause her account for nine months at a five dollar and thirty five stone the munched charge and then it would reinstate the account after those nine months her contract lived through the dish was no closure to that call and to be clear your honour's in this record at document fifty two dollars both parties stipulated and i'm quoting from that stipulation plaintiff however could not afford to pay the early provided for under the d h a agreement and therefore did not immediately cancel her service so her service lived on and therefore commensurately her dish contract lived and she was afforded the opportunity and the convenience to remain a dish customer subject to her ability to pay for the services she kept dishes equipment and even on that call gave dish a brand new cell phone number at which  contractor contact her every manifestation that this contract would live on and it's not in the record anywhere that she ever cancelled her services or her contract runners dish what about after the bankruptcy does had notice of the bankruptcy cracked you know dish received notice of the bankruptcy and your honor dish did exactly what it was supposed to do there was an amount of eight hundred and thirty one dollars sixty five cents listed it was listed on schedule f unsecured creditors schedule and there was no explanation there didn't say turman nation fee they didn't say for the d h a contract was just a number and schedule g which deals with executive or a contracts like the dish d h a agreement she didn't list that contract anywhere and she also affirmatively took the step of axing in the box under schedule g and stating affirmatively while represented by counsel and under penalty of perjury that there were no executive or a contracts and as we mentioned it's argument if i understand it is that the fact that she didn't list it on schedule g indicates that she did not want to continue the service and she wanted to cancel it terminated but your response to that argument two things number one it was an executive or a contract obligations by both are you do you take the position earlier in litigation that it was not an executive or a contract what we took alternative positions your honor that's correct we did but we said if it's a non executive or a contract those obligations survive anyway if it is an executor or a contract then it wasn't listed and therefore it was not rejected by the trustee the district court adopted our alternate argument and we think it's a it's a reasoned and accurate adaptation of that argument the contract survive because there's an ongoing obligations for both parties i'm not sure you've answered my question though did the fact that she list the she didn't listen on schedule jeep instead listed on schedule f indicate that she did not want to continue the contract those bankruptcy you know to us that in the that the stitches require actual knowledge the actual knowledge we had was that she wanted to continue that she had  filed a petition in bankruptcy and we did exactly we were supposed to discharge everything prepared to sion but that she wanted that contract to live and she did in that list that contract and the cases we cited in our in our wasn't listed and we don't think it wasn't listed here either make we think the contract has to be listed for the bankruptcy court to bankruptcy trustee to reject it and it wasn't listed here and here it was listen schedule no schedule medley sworn petitions in schedule have dish was listed as an unsecured creditor with an amount of eight hundred and thirty one dollars but the contract itself was not listed there's no evidence in the record of how that number ever materialized there's no evidence of that number was ever conveyed by mrs medley to dish or by dish to mrs medley that number the explanation for that number st occurred in the briefing in this case so we don't believe contract was ever listed we've got to take the sworn filed court filings for what they say or what they don't say and they don't list that contract the problem is are nago is very different from this case  nefarious intent no but there was a clear space for this contract to be listed it was executive henri and it was axed in affirmatively by by mrs medley well represented by counsel so we don't believe you're going to rip requires any kind of devious intent but we believe that was an intentional act and it wasn't disclose duty to take action rejects or affirm contracts that are listed but again this contract was not listed there was a debt but the contract itself was not listed the trustee would not be aware of that contract to accept or reject it and by the by the way this was a no asset case there's really nothing dish could have done either in the petition that was filed in that dish was was received the petition papers say please do not file a proof of claim unless you received notice to do so so there was no action really the dish could even take the contract itself wasn't listed and we believe the contract was executor ory so it lived on and so  dish i'm going to turn to the statutory counts dish it's undisputed that dish did not attempt to collect any payments or post a discharge i mean from the discharge debt is did exactly what it was supposed to do it cancelled the old debt the contacts that dish had with mrs medley were for amounts that accrued after the discharge  bankruptcy couple months after and so the normal dish service would resume's that's the difference between five dollars a month and forty two dollars a month she did not pay that forty two dollars a month and dish it it's normal practice disconnected the service she had a debt of forty two dollars and there's eventually wrote that forty two dollars off you distinguish this matter provider math which in which meds they're similar in many ways i agree but in that case the court brought brought specific attention to the fact that the contracts that issues were at issue were filed as a matter of public record with the patent office this contract was not on file anywhere as a matter of public record there's no way the trustee could have been aware of it unless it was actually listed in schedule g so this particular  we believe that definitely distinguishes that case your honor and you know it's pretty easy these days to go out of the public record i don't think you need to physically go down to the patent office so that was this this country clearly it was not a matter of public record service providers like dish always have contracts i mean that's common knowledge isn't it doesn't seem to always would be such a foreign idea of the trustee that the trustee wouldn't think to look for a service contract again i mean if we can't read people's minds i don't know your honor that service providers always have contracts i mean i see t v commercials for service providers that you know that claim they have no contracts so i mean i think the trustees and title to rely on the sworn statements under penalty of perjury while represented by counsel of a doubter that say there are no executive or a contract let me ask you about the revocation of consent we have our osorio case that says that congress ought to incorporate into the t c p a common law concepts of consent which is normally rather a couple and serious said quote in the absence of any contractual restriction to the contrary was there such a contractual restriction here so osorio was a gratuitous consent situation the story was an application for state farm credit card here or there was a bargain for contract so that's a differential differentiating point as to osorio years when osorio said they think we're saying the same thing your honor is that consent can be freely revoked if there not a contractual restriction and that it's right so that's what i want to focus on whether there was a contractual restriction here or there clearly was a contract that gave consent and i didn't see any provision that says the consent couldn't be revoked our position your honor is that kind of flips common law contract that it's under the common law in a bound signed mutually binding contract that contract can that be unilaterally revoked  signed and it's binding so it's not that contractual terms can be unilaterally modified unless that there's a provision that says they cannot it is that there is no unilateral modifications unless the the contract expressly allows it and that's what the concert contractual restriction is in this case it's the consent parisian provision signed by mrs medley in a binding mutually binding contract we don't believe she can off the service and so no we no longer have you are providing the service under the contract which is the duty doesn't that in this common law theory lack consent no we said we think those consent provisions survive geishas under the contract survive and obligations as to paying what she owes and obligations that she signed for the course through the other that was my question how long in your view do those obligations survive we believe the obligations that she signed force are it's a twenty four month contract right so it was a nine month pause then you tack on what was left in the off service eliminates that consent yes to that that we believe that's clear under the law if someone stops paying they're still bound by the provisions in the contract that they cite and one more question what's your view of the legal the legal point that if an attorney has taken over the representation of this person can that can that get around the consent that the person normally ga e no your honor for a couple reasons if i may yes mrs bentley was represented by an attorney in her bankruptcy proceeding dish did receive letters from that same attorney saying do not contact mrs medley through an a t t s you didn't mention pre record that letter but we believe that letter i don't think it matters it is from a lawyer or nat what that discharge debt please do not contact her with the consent and the contact ever ride that attorney contact or not i think that that might impact the statutory counsel i don't think it would impact the t little joe records eleven circa two thousand and seven says rejection under section three hundred and sixty five quote has absolutely no effect upon the contracts continued existence cancelled repudiated rescinded or any other fashion terminated so the contract we believe lives on the debt the old debt is cancelled and the new debt starts and she starts with a clean slate i may your honor thank you may please the court picking up on on your honor royals last point it in so far as the contract doesn't disappear and disintegrate that may be true if there were an arbitration provision or something that wasn't a core matter that may be able to be enforced but to say that the t c p a because consent was given and he's in the contract governed by state law somehow then overrides the bankruptcy code of federal code that preempts the state law and says you have a since you gave consent to make auto dial ca we can now continue to collect the debt that's been discharged him for hit by the bankruptcy code that's a core matter of the bankruptcy code and so while the contract may not disintegrate and while there may still be some provisions of the contract it could be enforceable anything that is an attempt to collect debt whether it's calling by an auto dialer a pretty recorded voice or sending just a good old fashioned letter that is prohibited it's preempted the bankruptcy code is clear on that and it governs is that relevant related to consent or is that related to the fact that it's not a debt these are consents to collected a debt these calls are to collect the debt the auto da calls or to collect the debt so if these were calls for example to advertise a new service that may be made and weren't under the contract marketing if it was an auto call and i'm being facetious to wish miss medley a happy birthday those calls aren't debt collection calls but to the extent that they are using this technology an auto dialer or prerecorded voice to make debt collection calls into the teeth of the bankruptcy code which stops the very conduct th schedules and by listening in schedule f i mean i think even by counsel's argument for the appellee the amount that was listed was terminations fees and it was terminations fees that come from the contract was terminations fees that was articulated on the telephone calls pre partition and so that also objective lee shows dish that this isn't an effort to continue to have a service relationship with them they've included terminations fees in schedule f of the bankruptcy code to make sure she's eliminating her debt regarding  sario and just again briefly talking on the that again i believe as judge roy pointed out once you have the bankruptcy and the bankruptcy discharge and this is not to debts but one debt that's liquidated and destroyed in the bankruptcy case there really can be no no calls using an auto dialer or otherwise but focusing on a sario counsel had argued that you're trying to distinguish other cases were that were gratuitous interesting only enough in this case the actual contract itself says and dish acknowledged and agreed  quoting out of their answer brief the concept of or sorry that your head agree that you do not need to provide a mobile telephone number to receive these services any time a contract says they will give you the services you can give us a cell phone number but it's not required a i don't think that's you know bargained for consideration i certainly don't think it's a material term to the agreement and it's therefore should be revokable whether or not it's under common law consent or statutory consent that's the last point i'd like to talk about is again  sorry you very clearly said that absent restrictions to the contrary consent can be revoked and saying can be revoked in many ways it can be revoked by operation of law it can be revoked by the debtor saying please don't call me you can be revoked by the debtors attorney saying i represent her by counsel please communicate with me and leave her alone all of those things would be sufficient to revoke consent notwithstanding the bankruptcy argument and in so far the last thing i'll say in these last seconds is the faxes of representation that were sent not once but three times after bankruptcy crystal clearly said i still represent this woman she's filed the bankruptcy she wants you to leave her alone and if you have any calls questions you should call me not her i would ask your honor that the court reversible error by b ating the debt by stating that there was a new debt that continued to be collected after the fact that that should be vacated and judgment entered in favor of thank you your honors