Court: District Court, S.D. Florida; January 19, 2016; Federal District Court
Defendant Bayview Loan Servicing, LLC filed a motion for summary judgment, opposed by Plaintiff Robert M. Lawrence, who also filed a motion for partial summary judgment. In 2007, Lawrence obtained a $1,000,000 mortgage from American Brokers Conduit, initially managed by Saxon Mortgage Services, Inc. During this time, he received a loan modification and provided his sole cellular telephone number to Saxon. In April 2011, Bayview took over the mortgage management, receiving all relevant documents from Saxon, including Lawrence's phone number.
Bayview uses an automatic telephone dialing system (ATDS) to contact clients regarding loan management. Since taking over, Bayview made at least 200 calls to Lawrence's cellular phone for this purpose. Lawrence sent Bayview 32 letters containing his phone number, but none requested a limitation on calls or asked Bayview to cease calling him. He verbally requested no calls on three occasions, which resulted in a note on his account. However, it was determined that his letters implied consent for contact regarding the issues mentioned. Additionally, his letters were not directed to any specific individual or department at Bayview. Lawrence has called Bayview approximately 50 times since April 2011.
Mr. Lawrence initiated a lawsuit against the Defendant on August 14, 2014, and filed an amended complaint on August 31, 2015, alleging violations of the Telephone Consumer Protection Act (TCPA). The complaint claims that the Defendant made calls to Mr. Lawrence using an automatic dialing system without his prior express consent. In response, Bayview seeks summary judgment, arguing that Mr. Lawrence provided express consent to receive calls by including his cellular number in loan modification documents and sending 32 letters. Bayview does not seek summary judgment for calls made during specific intervals when Mr. Lawrence verbally revoked consent.
The legal standard for summary judgment requires the movant to demonstrate no genuine dispute over material facts exists, allowing judgment as a matter of law. A dispute is "genuine" if reasonable evidence could lead a jury to side with the non-moving party. The court evaluates all evidence favorably for the non-moving party without weighing it to determine truth. If the movant shows no genuine issue of material fact, the non-movant must provide specific, admissible evidence to demonstrate otherwise.
The TCPA prohibits calls made without prior express consent using an automatic dialing system to cellular numbers. The Federal Communications Commission (FCC) has clarified that providing a cell phone number to a creditor constitutes prior express consent for calls related to that debt. This interpretation is supported by the FCC's ruling that individuals who share their phone numbers implicitly invite calls unless they state otherwise.
The House Report on the TCPA clarifies that restrictions on calls do not apply when the recipient has provided their phone number for business communications. The FCC's 2008 Ruling is binding, indicating that courts cannot question its efficacy, and it establishes that providing a phone number, such as during a credit application, constitutes express consent to receive calls. Courts have upheld that consent is given when a debtor provides their cellular number regarding an existing debt, including subsequent communications. In this case, the Plaintiff consented to be called by including his cellular number in the Saxon loan modification and in 32 letters to Bayview, with the understanding that it would be used to discuss his debt. The TCPA does not explicitly allow for the revocation of consent; however, the FCC permits revocation through reasonable means. The Plaintiff claims that his oral revocations of consent should prohibit Bayview from calling him indefinitely, despite his letters indicating consent. This position would put Bayview in a contradictory situation, where the Plaintiff invites calls but then seeks liability for them. Each letter sent by the Plaintiff with his cellular number, without limitations, is considered express consent for calls. Thus, individuals who voluntarily provide their phone numbers effectively give permission to be contacted, unless they specify otherwise.
None of the letters sent by Mr. Lawrence included restrictions on the use of his cellular telephone number, leading the Court to legally conclude that each letter provided express consent for the Defendant to make calls. Mr. Lawrence had the right to revoke his consent at any point, but until he did so, the Defendant could continue to call him. The Court ruled that Mr. Lawrence could also renew his consent. Consequently, the Court granted the Defendant's motion for summary judgment for calls made before October 5, 2011, between March 25, 2012, and June 4, 2012, between June 30, 2012, and July 7, 2012, and after November 8, 2012, while denying the Plaintiff's motion for summary judgment.
The Court deemed certain facts undisputed due to the Plaintiff’s lack of information to confirm or dispute them. Although Mr. Lawrence sent letters in 2013 and 2014 that did not include his cellular number, the Court assumed his verbal requests to stop calls constituted effective revocation under the TCPA. The Plaintiff questioned whether a consumer could provide their number while wishing to avoid calls via an autodialing system (ATDS). The Court affirmed that a consumer could do so if they included specific instructions regarding the use of their number, which Mr. Lawrence failed to provide. Without an explicit statement to limit the use of his number, Mr. Lawrence could not claim he had given contradictory instructions to the Defendant.
