An Order granting partial summary judgment in favor of a plaintiff in a Telephone Consumer Protection Act (TCPA) case against Navient Solutions, Inc. (NSI), and its affiliate, Student Assistance Corporation (SAC) was entered on April 6, 2016. (McCaskill v. Navient Solutions, Inc. (United States District Court, Middle District of Florida, Case No. 15-cv-1559) The summary judgment order translates to an award of over $360,000, with the potential for additional liability once the case proceeds to trial on the issue of whether the defendants should be liable for treble damages under the statute.

 

Background

In the lawsuit filed on July 2, 2015, Plaintiff Willie McCaskill alleged that between January 13, 2014 and February 16, 2015, Defendant NSI placed 249 calls to a cellular telephone number ending in -6140 and that between March 27, 2014 and May 28, 2015, SAC placed 478 calls to the same number.  The -6140 number is assigned to Plaintiff’s cell phone.

Plaintiff alleged that the calls violated the TCPA, the Florida Consumer Collection Practices Act (FCCPA), and the Fair Debt Collection Practices Act (FDCPA).

The parties agreed that the calls were made using an automated telephone dialing system (ATDS) and that the calls were not made for emergency purposes. The parties disputed whether the calls were made with Plaintiff’s “prior express consent.”

NSI is a student loan servicer. SAC provides “default prevention” services for guarantors of federal student loans. The parties agree that the calls to the -6140 number were regarding a student loan issued to the Plaintiff’s daughter Maretta Newsome. Defendants presented no evidence that Plaintiff, herself, had any obligation on Newsome’s student loan, or that Plaintiff was obligated to pay on any other student loan.

As noted above, the -6140 number is assigned to Plaintiff’s cell phone. However, before Plaintiff began using the -6140 number for her cell phone, the number was assigned to Plaintiff’s residence for many years, including while her daughters were growing up. The -6140 number is also the only number for the Largo for Jesus Christian Center, Inc. (LFJ); Plaintiff is the pastor of LFG.

NSI had obtained the -6140 number from a public records search. In 1999 Plaintiff had submitted an application to the Florida Division of Corporations to incorporate LFJ. Plaintiff’s cover letter included the -6140 number. The Articles of Incorporation listed Newsome as the Secretary of LFJ, and Newsome was also listed as an officer or director of LFJ in every annual update filed with the Division of Corporations.

Although Defendants concede that the -6140 number was initially obtained from public records, they maintain that Newsome confirmed the -6140 number as her own when she requested a voluntary forbearance on her student loan from Sallie Mae, NSI’s predecessor.

To support their position NSI had presented into evidence a screen shot from the Sallie Mae website entitled “Edit Your Contact Information,” which was dated February 4, 2014.

The following language appeared at the top of that page:

We would like to ensure that we have the most up to date records for your student loan account. Please take a few moments to review your contact information and update as needed. If no changes are needed, please click Submit. It is important that we have your most current address, telephone number, and email address. Use this form to update and/or verify any part of your contact information.

Below that language was a box for “Contact Information,” which listed the -6140 number as Newsome’s home phone number. Within that box was the following statement:

By providing my telephone number, I authorize Sallie Mae, Inc. its affiliates and agents to contact me at such number using any means of communication, including, but not limited to, calls placed to my cellular telephone using an automated dialing device, calls using prerecorded messages and/or SMS text messages, regarding any current or future loans owned or serviced by Sallie Mae, Inc., its affiliates and agents, even if I will be charged by my service provider(s) for receiving such communications.

Newsome testified that she recalled seeing a similar screen, but that she did not enter the -6140 number, and it did not appear when she pulled that screen up. She testified that the website reflected the phone number that Newsome provided, which was her own phone number ending in -8617.

Defendants also presented into evidence another screen shot from the Sallie Mae website which reflected the -6140 number. Though Newsome denied providing the number and testified, “I don’t know that it was there at the time that I was doing it. But had I seen the number, I would have changed it.”

Both parties had filed motions for partial summary judgment.

Editor’s note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

The Court’s Analysis and Opinion 

The decision was rendered by the Honorable Virginia M. Hernandez Covington, United States District Court Judge.  The court first addressed the issue of “Prior Express Consent”. The court found that there was no evidence that the Plaintiff ever provided consent to call her cell phone.

Defendants argued that Plaintiff manifested her consent by allowing her phone to ring over 700 times without attempting to stop the calls. But the court was not persuaded by that argument. The court noted that prior express consent is required under the TCPA and presumed or implied consent is not sufficient. The court also confirmed that TCPA requires prior express consent to be supplied by “the called party.”

Because there was no evidence that Plaintiff, herself, provided prior express consent, the court determined that only remaining question was whether somehow Newsome could and had consented on Plaintiff’s behalf. To prove that “consent” the court held that Defendants needed to establish that Newsome 1) had authority to consent on Plaintiff’s behalf, and 2) that Newsome did, in fact, consent.

Defendants argued that there were disputed issues of material fact sufficient to preclude summary judgment in Plaintiff’s favor. The court disagreed.  The court noted that, “The existence of a principal-agency relationship is typically a question for the trier of fact.” Nonetheless the court held that there was nothing in the record to suggest that Newsome had authority to consent to the calls on Plaintiff’s behalf. The court cited several cases that discussed the necessary “Agency Relationship” that would need to exist to show that authority and found that the uncontested facts did not support an “agency relationship.”

The court also found no evidence indicating that Newsome conveyed any consent on Plaintiff’s behalf.

Damages

Finally, the court discussed potential damages. The TCPA allows a plaintiff to recover actual monetary loss from a violation, or statutory damages of $500 per violation, whichever amount is greater. Additionally, if a defendant “willfully or knowingly” violates the statute, a court has discretion to increase the damages up to three times the amount otherwise available.

The court held that the parties presented sufficient evidence to create a factual dispute about whether Defendants “knowingly” violated the TCPA. The parties’ cross-motions for summary judgment on treble damages were therefore denied. Resolution of that issue will be decided at a subsequent trial.

insideARM Perspective

This case presents several interesting facts and issues, including:

  1. the history of the phone number assignment (from land-line where both Plaintiff and her daughter resided) to a cell number that was used for both personal and business use at a business where the daughter was involved,
  2. the mystery of the phone number in question included in the Sallie Mae website,
  3. the fact that Plaintiff did not owe any money to the Defendants and had no relationship with the Defendants, and finally,
  4. the discussion of authority to grant prior express consent.

At flush blush it would seem that summary judgment was not appropriate as there many facts in dispute. However, the court felt otherwise. At the end of the day the court felt there was sufficient non-disputed evidence that the Plaintiff never provided “prior express consent” to be called.

The Order covers 34 pages. It can be found here. It is recommended reading for everyone in the ARM industry.


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