Contract-Based “Express Consent” Defeats TCPA Autodial/Prerecorded-Call Claims; TILA Disclosure Claims Accrue at Contracting Absent New Credit

Introduction

Thigpen v. Westlake Services, LLC (10th Cir. Aug. 5, 2026) arises from a retail installment transaction for a truck. Richard Thomas Thigpen (borrower) stopped making payments and sued Westlake Services, LLC (assignee/servicer of the installment contract), asserting federal statutory claims (Truth in Lending Act (TILA), Fair Debt Collection Practices Act (FDCPA), Telephone Consumer Protection Act (TCPA)), and state-law claims (breach of contract, unjust enrichment, and New Mexico Unfair Practices Act (UPA)).

The district court granted summary judgment to Westlake. On appeal, Mr. Thigpen chiefly argued (i) the district court improperly considered arguments raised in Westlake’s reply brief, and (ii) the court erred on the merits and timeliness of his claims. The Tenth Circuit affirmed. Although designated “not precedential,” the disposition consolidates practical rules frequently decisive in consumer-finance litigation: how surreplies cure “new reply arguments,” when TILA disclosure claims accrue, what qualifies as FDCPA “debt collector” conduct by an assignee, and how contractual “express consent” defeats many TCPA call claims at summary judgment.

Summary of the Opinion

  • Reply-brief issue: No error in considering arguments first appearing in Westlake’s reply because the district court permitted and considered Mr. Thigpen’s surreply responding to them.
  • TILA: Claim was time-barred under 15 U.S.C. § 1640(e); no equitable tolling shown; no “continuing violation” from billing statements absent a new extension of credit. Independently, the contract contained conspicuous “Truth-in-Lending Disclosure” boxes with required terms.
  • § 1983 caption: District court’s observation that Westlake is not a state actor did not warrant reversal, particularly where Mr. Thigpen did not actually invoke § 1983 as a claim.
  • FDCPA: Westlake was not a “debt collector” because it was collecting its own debt and it obtained assignment when the debt was not in default.
  • TCPA: Contract language constituted express consent under 47 U.S.C. § 227(b)(1)(A), defeating claims based on autodialed/prerecorded calls; agency/vicarious-liability theories against Westlake were not developed.
  • State claims: Breach-of-contract arguments failed given clear contract terms (insurance requirement, late fees, repossession upon default, communications consent). Unjust enrichment was barred because an express contract governed. UPA claim failed for lack of explained error and lack of evidence of deception as to Mr. Thigpen.

Analysis

Precedents Cited

1) Appellate and summary-judgment framework

  • Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015): Cited for de novo review of summary judgment and drawing reasonable inferences for the nonmovant; it anchors the panel’s approach under Fed. R. Civ. P. 56(a).
  • Behrens v. Pelletier, 516 U.S. 299, 309 (1996): Used for the proposition that at summary judgment a plaintiff cannot “rest on the complaint” and must produce evidence.
  • Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 667 n.9 (10th Cir. 2016): Applied to find waiver of arguments first raised in a reply brief on appeal (here, revocation of consent and calls to other numbers).
  • Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015): Quoted for an appellant’s duty to explain why the district court was wrong; used to reject underdeveloped challenges (unjust enrichment and UPA).

2) Reply briefs, “new arguments,” and surreplies

  • Conroy v. Vilsack, 707 F.3d 1163, 1179 n.6 (10th Cir. 2013): Provides the governing abuse-of-discretion rule: a district court abuses discretion only when it both denies leave to file a surreply and relies on new materials/arguments in the reply. The panel relies on this logic to affirm because Mr. Thigpen was allowed to file a surreply.
  • Navajo Health Found.-Sage Mem. Hosp., Inc. v. Burwell, 110 F. Supp. 3d 1140, 1183 (D.N.M. 2015): Cited for the practical rationale of surreplies—to give the nonmovant “a chance to respond” to new information.

3) TILA accrual, equitable tolling, and “continuing violation” theories

  • Jones v. TransOhio Sav. Ass'n, 747 F.2d 1037, 1041 (6th Cir. 1984): Recognizes equitable tolling under TILA when the debtor could not reasonably discover fraud underlying the violation. The panel assumed arguendo that tolling could apply, but found Mr. Thigpen did not show diligence or impossibility of discovery.
  • Hubbard v. Fid. Fed. Bank, 91 F.3d 75, 79 (9th Cir. 1996): Supports rejecting equitable tolling where the debtor could have compared the contract’s disclosures with statutory/regulatory requirements. The panel used this to require an explanation of why such comparison could not have been done earlier.
  • Begala v. PNC Bank, 163 F.3d 948, 951 (6th Cir. 1998): Used to reject “continuing violation” theories for TILA disclosure claims absent a new extension of credit; later billing statements do not create new violations.
  • Stevens v. Rock Springs Nat'l Bank, 497 F.2d 307, 309 (10th Cir. 1974): Cited for the principle that a plaintiff cannot circumvent TILA’s limitations period when alleging failure to disclose at contract inception.

4) FDCPA “debt collector” limits and assignee status

  • James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013): Cited for the threshold limitation that FDCPA liability applies only to “debt collectors.”
  • Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1187 (10th Cir. 2013): Applied to the statutory exclusion for entities that obtain assignment of a debt not in default at the time of assignment.
  • Reyes v. Steeg Law, LLC, 760 F. App'x 285, 288 (5th Cir. 2019): Considered and dismissed as irrelevant to Mr. Thigpen’s attempt to impose FDCPA liability on a creditor by virtue of third-party collection activity. The panel emphasized that the cited decision did not support creditor liability where the creditor is not itself a “debt collector.”

5) TCPA consent and potential vicarious liability

  • Lucoff v. Navient Solutions, LLC, 981 F.3d 1299, 1302, 1306 (11th Cir. 2020): Cited to support that contract language authorizing autodialed/prerecorded communications constitutes “unambiguous” express consent. The panel used it as persuasive authority to characterize the contract language here as similarly unambiguous.
  • Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017): Addressed because Mr. Thigpen mischaracterized it as requiring heightened “specificity” language; the panel clarified the case concerned credibility at summary judgment and revocation of consent.
  • Hossfeld v. Allstate Ins. Co., 179 F.4th 1046, 1054 (7th Cir. 2026) and Gomez v. Campbell-Ewald Co., 768 F.3d 871, 879 (9th Cir. 2014): Cited as examples recognizing vicarious liability under the TCPA where an agent violates the Act, but the panel found no developed agency argument tying third-party callers to Westlake.

6) Sua sponte summary judgment and prejudice

  • Johnson v. Weld Cnty., Colo., 94 F.3d 1202, 1214 (10th Cir. 2010) and Oldham v. O.K. Farms, Inc., 871 F.3d 1147, 1150 (10th Cir. 2017): Used to explain that even if a district court relies on an unbriefed ground, reversal generally requires a showing of prejudice—identifying additional evidence/arguments that would have been offered with notice.

Legal Reasoning

1) “New arguments in reply” are not reversible error when the nonmovant is permitted to surreply

The panel treated the procedural dispute as one of remedial fairness rather than formalism. Because Mr. Thigpen asked for and received leave to file a surreply “to address and rebut” new arguments, and the court considered the surreply, he could not establish the kind of prejudice that Conroy v. Vilsack treats as necessary for an abuse of discretion. The key operational rule is: if the district court opens a fair opportunity to respond to reply-brief material, consideration of that material will rarely justify reversal.

2) TILA: accrual at consummation; tolling demands a diligence-based explanation; billing statements don’t create “new” TILA disclosure violations without new credit

On timeliness, the panel relied on the TILA limitations period (15 U.S.C. § 1640(e)) and Mr. Thigpen’s concession that the claim accrued at purchase/contracting. It then addressed two common plaintiff responses:

  • Equitable tolling: Assuming tolling might apply (Jones v. TransOhio Sav. Ass'n), the court required a concrete reason the violation could not have been discovered earlier. Invoking Hubbard v. Fid. Fed. Bank, it rejected tolling because Mr. Thigpen did not explain why he could not compare the contract’s disclosures to statutory requirements within the year.
  • Continuing violation: The panel held that post-contract billing statements do not restart TILA disclosure obligations absent a new extension of credit (Begala v. PNC Bank). It further noted the “continuing violation” theory based on statements was not raised in district court.

On the merits, the court emphasized that the contract contained a “Truth-in-Lending Disclosure” box on the first page with the APR, amount financed, and finance charge, and it rejected unsupported assertions about insurance “finance charges” where the evidence indicated Westlake required insurance but did not itself “offer” it.

3) FDCPA: assignees collecting their own debt (and acquiring before default) generally fall outside “debt collector” status

The panel applied two independent FDCPA gates: (i) the statute primarily targets those collecting debts “owed ... another” (15 U.S.C. § 1692a(6)), and (ii) assignees are excluded when the debt was not in default when obtained (Llewellyn v. Allstate Home Loans, Inc.). Because Westlake obtained the assignment immediately after purchase—before default—the court affirmed. Mr. Thigpen’s reliance on third-party callers (NowPay and High Desert Repossession) did not bridge the statutory gap because he did not show how Westlake became a “debt collector” or otherwise statutorily liable for their acts.

4) TCPA: contractual authorization for autodialed/prerecorded calls constitutes “express consent” sufficient for summary judgment

The TCPA claim turned on the contract clause authorizing Westlake to call and text “from time to time” using “prerecorded/artificial voice messages” or an “automatic dialing device” at numbers Mr. Thigpen provided. The court treated this as dispositive “express consent” under 47 U.S.C. § 227(b)(1)(A), analogizing to Lucoff v. Navient Solutions, LLC. Attempts to introduce revocation and wrong-number theories in the appellate reply brief were deemed waived under Sierra Club v. Okla. Gas & Elec. Co.. The panel also acknowledged that some courts recognize vicarious TCPA liability (Hossfeld v. Allstate Ins. Co.; Gomez v. Campbell-Ewald Co.), but rejected the point because Mr. Thigpen did not develop an agency theory connecting third parties to Westlake.

5) State-law claims: contract primacy and evidentiary demands at summary judgment

The state claims were resolved largely by standard contract and remedies principles:

  • Breach of contract: The court treated the contract text as controlling—insurance requirement, default provisions, repossession remedy, late fees, and communications authorization. Mr. Thigpen did not articulate a textual or evidentiary basis for breach.
  • Unjust enrichment: Barred because an express contract governed the relationship; Mr. Thigpen did not meaningfully challenge that legal conclusion on appeal.
  • New Mexico Unfair Practices Act: The court required evidence of deception or unconscionability directed at Mr. Thigpen, not generalized allegations or a prior CFPB press release about other borrowers.

Impact

  • Consumer-credit litigation strategy: The decision underscores that TILA disclosure challenges must be brought promptly and pleaded/argued coherently at the district court level; attempting to reframe timeliness on appeal (e.g., “continuing violation” from billing statements) is unlikely to succeed.
  • Drafting and enforcement of consent clauses: Clear contract language authorizing prerecorded/autodialed calls can be outcome-determinative on TCPA claims at summary judgment, especially where plaintiffs do not preserve revocation or “wrong number” theories in the opening brief or develop agency/vicarious-liability facts.
  • FDCPA scope for assignees/servicers: The opinion reinforces a common defense posture: an assignee collecting its own debt, obtained before default, is typically outside FDCPA coverage. Plaintiffs seeking to reach creditors through third-party collection activity must address statutory “debt collector” status and any viable attribution theory.
  • Procedural practice in summary judgment briefing: It highlights a pragmatic cure for “new reply” material—permission to surreply—making reversal unlikely absent a concrete showing of prejudice.

Complex Concepts Simplified

Summary judgment (Fed. R. Civ. P. 56)
A case can be decided without trial if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; the nonmovant must produce evidence, not just allegations.
Equitable tolling
A doctrine that can pause a filing deadline when a plaintiff could not reasonably discover the violation in time; courts usually require diligence and a concrete explanation of why timely discovery was not possible.
Continuing violation (in the TILA disclosure context)
An argument that later conduct restarts the limitations period; the court rejected it here because TILA disclosures are required before credit is extended, and later billing statements are not a new extension of credit.
FDCPA “debt collector”
Generally, someone collecting debts owed to another. Creditors collecting their own debts are often excluded, and assignees who acquire a debt before default are commonly outside the statute’s reach.
TCPA “express consent”
A statutory exception allowing certain automated/prerecorded calls when the called party agreed in advance—often satisfied by clear contract clauses authorizing such communications.
Vicarious liability / agency (TCPA)
A theory that a company can be liable for TCPA violations committed by its agents; it requires developed facts and argument showing an agency relationship and scope of authority.

Conclusion

Thigpen v. Westlake Services, LLC affirms summary judgment across a spectrum of consumer-finance claims by applying (1) a practical procedural rule that surreply permission neutralizes “new reply” prejudice, (2) a strict TILA accrual/limitations analysis that rejects tolling without a diligence-based explanation and rejects “continuing violation” theories absent new credit, (3) a constrained view of FDCPA liability for assignees collecting their own, non-default debt, and (4) a contract-centered TCPA approach in which explicit authorization for prerecorded/autodialed communications constitutes “express consent.” The opinion’s broader significance lies less in doctrinal novelty than in its consolidated roadmap for how evidentiary burdens, preservation rules, and contract text often control consumer statutory claims at summary judgment.