summary judgment in favor of appellee advance call center technologies eighty two year act on the issue of whether there was revocation of consent to call my clients on her cellphone my client position your honor says that the district court erred in finding that the testimony of mr l forbes was merely colorable rather than concrete evidence of revocation of consent to be called the district evidence to find a genuine dispute as to revocation what your case that you're relying upon is in the most analogous case that is helpful to miss l forces that have walk ins and i think walk ins is important because they're the plaintiff testified that sometime in two thousand and ten or two thousand and eleven that he received a phone call while sitting down for dinner spoke with a representative and told that representative to stop calling it was only when looking to the defendant's call records that the exact date of revocation was determined and that was simply because there was only one call in two thousand and ten or two thousand and eleven and i think that's very similar to the forbes and when we look to those call records on pages fifty eight and fifty nine of the excerpts excerpts the record we see that on january twenty third two thousand and thirteen there are some  some evidence that cooperate smith's testimony that in january of that same year she in fact spoke to to spoke to representative twice on the same day informing the representative to cease calling and and what is that is that they defend its records over your records yes so miss forbes did not offer independent records of the call she offered testimony through declaration and then was later deposed so we're looking to defendant's own call records which indicate you know dates of calls unfortunately they don't seem to indicate the time of calls or look at length of call duration but they do indicate that on january twenty third two thousand and thirteen  there were two instances where a call was connected to an agent and that is supported by the deposition testimony of mr keller where he says where there is a one that indicates that the diver detected a live person on the other end and transferred it to an agent now it's the pelleas contention that after that none of the five hundred thirty calls that took place over four month period resulted in  actual live contact with my thing what i thought they said but is that contradicted by what you're just saying correct so there it is contradictory testimony my client saying that she spoke with representatives knew that i mean does the defendant say that there's some evidence of someone that you know the defendant says that there was no verbal communication whatsoever and i find it somewhat difficult to believe that after five hundred thirty calls there was never once a communication and there is and there are the defendant's own call records indicate that there was a connection at least seventeen times which is in indicated by the name of an agent when the call is transferred to that agent so as well as dep declaration and the declaration and can you explain to me the significance of the fact that there yet though the defendant's records mr characterize i'll try to explain explain that argument so there was expert testimony offered by miss l forbes in that to boil it down the testimony was that because the defendant's records characterized the phone number as a home phone number there was a disincentive really no incentive to document any type of revocation request because call debt collection calls to a landline using an auto dialer don't require consent but calls to a cell phone on the other hand do you and i do acknowledge that we make a further argument that suggests that because of the disincentive to document revocation there may have also been a disincentive to document that a telephone call took place so your argument is that because they miss characterized the nature of the line their records may not have been accurate  acknowledged that in terms of arguing whether big because the call records indicate that there was no call even that was transferred to an agent and so i've now alleged that the argument that there was a disincentive to document revocation leads to a disincentive to indicate whether there was an actual verbal communication that part recognizes it's when you waited but it's not critical to my client's position that there's sufficient evidence here that goes beyond you know mere colorable evidence that's not in the words of the supreme court and i believe matsushita to if there's more than a metaphysical doubt as to whether there was revocation of  need to look to the record as a whole to determine whether a jury or rational jury could determine from this evidence that indeed there was a revocation and i think pinning down the exact date of revocation is really a for the fact finder if my client had testified merely that there were five hundred telephone calls and at some point before the last call i told him to stop that probably would not have been enough to create a genuine issue a fact that here we have approximation of the time period and in fact that brings me to the the ammons decision which we cited as supplemental authority i think that decision is important because the court appeared to look to four different factors and determining whether there was a jury question on the revocation consent issue the court looks first to evidence regarding the calls themselves such as how many calls the evidence regarding efforts  here offers an approximation of the month with other evidence to determine that date from defend its call records but i think as a whole there is sufficient evidence here that a fact finding should determine which version of the story to believe i think also we mentioned the declaration of defendant the declaration of mr keller is interesting because he testifies that no call resulted in  communication yet he was not one of the call agents that would have spoken with miss forbes so i think there's a lack of actual personal knowledge as to that point it was just going on the records of the us right correct  seems to me that she did so she stated under oath that she had spoken with representatives of your client and expressly in unequivocally told them to stop calling and she was able not to give a precise date but to give a range saying well i was about to have a baby and it was shortly before i have a baby so there's it's not like saying well sometime between the ages of twenty and thirty five i made a phone call so and she was able to say that the agent she spoke to was a female so i really don't understand the position honestly that there is no don't find it plausible doesn't seem to me to be the summary judgment kind of standard let me answer that you know in cases like watkins and the cases that were cited in the supplemental authority jar and ammons i think it would be a question for the jury to decide when it is undisputed that a communication occurred but in this case and in contrast to what the appellant is arguing the call logs don't show that communication was made the call  so it isn't it is not permissible to show that the call logs or i mean there is no evidence is more plausible or more to be believed than her evidence which is under oath and they that was a mistake in the original account application but but here's here's the crux of what we're looking at here in order for her to revoke consent there would have had to have been actual contact between the parties our call logs yes our dialer platform did route at least two calls in january of two thousand and thirteen to a live representative based on the dialers perception that there was a person on the other end of that line that when she said she  it fits in with one of the instances yes around and when she said she might have called but there isn't bad enough to defeat summary judgment doesn't have to be one hundred percent every issue or fact but one issue of material fact is enough is i think yes one issue of material fact is nothing but i don't believe that's an issue material fact you're on it and here's why the inconsistency is there is no other evidence in the record to substantiate the appellant's claims other than the statements  her declaration and the statements in her declaration are inconsistent with the factual data my client provided as well as her own statements during deposition if you look at the declaration page forty two she's talking about calls that occurred she believed in early january of two thousand and thirteen now this declaration was signed in october of two thousand and sixteen you can see the date on e r forty four a few weeks later in november of two thousand sixteen a c t deposed miss forbes and at that deposition she had no recollection of any dates that she had spoken to anyone from a c t and her best approximation was that she had a call in december of two thousand twelve well we know she couldn't have received the call in december of two thousand and twelve because the account wasn't placed with a c t until two thousand and thirteen well this sounds to me like excellent cross examination that this is summary judgment this so if someone says under oath the light was real the other car came through but they don't have a photograph that doesn't create an issue of fact because there is no corroboration i mean what she says these things under oath and you dispute it but i think in your hypothetical yano if someone says the light is red under oath but the photographs show the light was green and witness testimony shows the light is green and their case the case that i'm relying on is a case in our circuit the citation in taylor versus list eighty eighty five to the ten forty overcome some or judgement of if she remembered the exact date when she talked to some representative of your government i don't think she would need to remember the exact date and i don't think the case law in this circuit or in other circuit supports that finding what i think she would need is consistency between her sworn declaration and her deposition testimony i think she would need to show crabb aeration with our call records in walk ins all of those cases it was undisputed that the parties had an actual communication what was disputed was what was said during those communications the intent of the communications and the effect under the law here it's highly disputed whether  communication ever occurred our dial or call logs show that we made two calls to her on january twenty third two thousand and thirteen but both of those calls result in no communication with anyone plaintiff or anyone else i believe one was dead did it might have shifted so that maybe now we have more than just one declaration if she had saved her account statements if she had read her terms and conditions if she had produced her phone records which she testified and you'll see in the record that she did not produce any of that might have changed the situation that we're looking at right now but the fact is that she didn't produce a single document during litigation she gave conflicting statements on whether phone calls occurred and the dates they occurred on and she gave factually impossible testimony on our dialer platform if you look at page thirty eight of the record miss forbes gave a very detailed accounting of a conversation she had with a c t where she was prompted to press one if she wanted a certain result or press two if she wanted another result and she reported that no matter what she pressed she couldn't reach anyone are dialer system is physically incapable of offering prompting cues of that nature and so the inconsistency in her testimony continued to mount and against the body of evidence that my client presented at this declaration simply does not be need the burden  i first like to address the last point which was argued that factual inconsistency exists i wanted to point out that the declaration of pat connelly where he testified that the dollar platform was not designed to have a press one option  if that declaration was signed in two thousand and sixteen and if you read it very carefully never once does it refer to the state of the dialing system or its configuration in two thousand and thirteen when the calls took place so there is when we take all inferences in favor of michelle forbes it appears that declaration was written at the current state in two thousand and sixteen which casts doubt on that testimony in terms of whether that was the case in two thousand and the court in footnote three says you need personal knowledge which is why i think one mr keller testified that there was no contact he lacked personal knowledge she was merely looking at the call records and going off of that there is when she