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Harrington v. Roundpoint Mortgage Servicing Corp.

United States District Court, M.D. Florida, Fort Myers Division

April 10, 2017

LARRY HARRINGTON, Plaintiff,
v.
ROUNDPOINT MORTGAGE SERVICING CORPORATION and MULTIBANK 2010-1 SFR VENTURE, LLC, Defendants.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court upon review of Defendants RoundPoint Mortgage Servicing Corporation's (“RoundPoint”) and Multbank 2010-1 SFR Venture, LLC's (“Multibank”) Motion for Summary Judgment filed on January 9, 2017. (Doc. 111). Plaintiff Larry Harrington (“Harrington”) filed his Response in Opposition on January 23, 2017. (Doc. 120). Pursuant to leave granted by the Court, Defendants then filed a Reply (Doc. 125) on February 6, 2017 and Harrington filed a Sur-Reply on February 13, 2017. (Doc. 130). This matter is ripe for review.

         BACKGROUND

         This case involves allegations that Defendants violated federal and state statutes by attempting to collect a debt through repeated automatically-dialed telephone calls without first obtaining consent to do so from the debtor. In September of 2003, Harrington and his wife, Lori Harrington (collectively, the “Harringtons”), executed an agreement (the “Construction Agreement”) with Oyster Bay Homes, Inc. (“Oyster Bay”) in anticipation of building a home at 3161 Rustic Lane, North Fort Myers, Florida 33917 (the “Property”). (Doc. 111-5). Notably, the Construction Agreement included Harrington's cell phone number (the “5307 Number”).

         On November 26, 2003, Harrington and Lori Harrington took out a loan (“Loan”) with Riverside Bank of the Gulf Coast (“Riverside Bank”) in connection with their purchase of the Property. (Doc. 111-3). In so doing, they executed a promissory note (“Promissory Note”) in favor of Riverside Bank that was secured by a mortgage (“Mortgage”) on the Property. (Doc. 111-3, 111-4). The Note and Mortgage were then put together in a file for the Loan.

         In 2009, Riverside Bank was taken over by the Federal Deposit Insurance Company (“FDIC”), and in the process the FDIC acquired all of Riverside Bank's loans. (Doc. 111 at ¶ 6). Later, Multibank acquired the loan from the FDIC, who, as a result of the transaction, transmitted a file containing the Note and Mortgage (the “Loan File”) to RoundPoint, Multibank's debt service company. (Doc. 111-2 at ¶ 8). The file that RoundPoint received also contained the Construction Agreement.[2] (Doc. 111-2 at ¶ 8).

         The Harringtons subsequently defaulted on their obligations vis-à-vis the Note by failing to make a payment that was due on September 1, 2010. (Doc. 111-2 at ¶ 9). RoundPoint, acting as Multibank's loan servicer, tried to contact the Harringtons telephonically to discuss their obligations. (Doc. 111-2 at ¶¶ 10, 14). But, RoundPoint alleges that from September 2010 until November 29, 2010 it was unable to do so because the telephone numbers it had for the Harringtons were disconnected. (Doc. 111-2 at 21).

         That purportedly changed on November 29, 2010, when Defendants allege that Harrington called to check on the status of the loan and, in so doing, provided RoundPoint with the 5307 Number.[3] (Doc. 111-2 at ¶ 20). While RoundPoint does not have a transcript of this call, an entry on an internal activity database for that day reads “BRRW CALLED RQST STATS OF ACCT.” (Doc. 111-6 at 3). The next day, the 5307 Number was entered into RoundPoint's contact database for the Harringtons. (Doc. 111-6 at 3).

         From November 29, 2010 until June 2, 2011, Defendants allege that only one call was placed to the 5307 number.[4] (Doc. 111-2 at ¶ 22). Nevertheless, on June 2, 2011, Defendants received a telephone call from someone purporting to be Lori Harrington, who wished to inquire about hazard insurance on the Property. (Doc. 111-9 at ¶ 3). Prior to engaging in substantive conversation, the RoundPoint representative asked a series of questions that were employed as a security mechanism to verify the caller's identity. The caller then responded to these questions by providing the Loan number, the last four digits of both Harrington's and Lori Harrington's social security number, and the Property address. (Docs. 111-9 at ¶ 3-6; 111-10 at 2:19-3:18; 120-25 at 41:24-42:8). Importantly, the caller was also asked for a phone number that she could be reached at, and in response she supplied the 5307 Number as the “main number.” (Doc. 111-10 at 3:19-4:1). Harrington has since claimed that the caller was not actually Lori Harrington, but Harrington's daughter, Jamie Harrington, who called at Lori Harrington's direction and with her consent. (Doc. 120-6 at ¶ 9, 120-3). In any event, RoundPoint began attempting to contact the Harringtons via the 5307 Number on that day and continued to do so in the days, months, and years that followed. (Docs. 111-2 at ¶ 27; 111-7 29-58).

         On June 28, 2011, Harrington called RoundPoint to request information regarding his account. (Doc. 111-11 at 2:6-10). After asking a series of security questions that did not include requesting a telephone number where he could be reached, RoundPoint informed him that his mortgage was in foreclosure because the account had been behind since September 2010. (Doc. 111-11 at 4:2-3). The representative then stated that the account had been stopped and that RoundPoint was intent on conducting foreclosure proceedings if it did not receive payment. (Doc. 111-11 at 5:10-15). The representative then stated that “[RoundPoint] will not be taking any payments, ” but offered to send a loan modification package to work out a solution. (Doc. 5 at 18-23). Harrington was then directed to an attorney that had been contracted to handle the loan and told that he could receive more information about the account by following up there. (Doc. 111-11 at 7:9-12).

         Notably, the 5307 Number was part of a group of phones on a family plan paid for by Harrington. (Doc. 129-2 at 14:19-21, 17:25). Within the two years prior to the filing of this lawsuit, RoundPoint attempted to contact the Harringtons at the 5307 Number 264 times. (Docs. 111-2 at ¶ 16; 120-11 at 12; 120-17 at 1-2). Harrington testified in deposition that he only answered one of these calls, and on that occasion he hung up without speaking. (Doc.129-2 at 46:8-11, 49:18-24). He never requested that RoundPoint stop contacting him at that number. (Doc. 111 at ¶¶ 26, 28).

         On March 2, 2012, Multibank filed a foreclosure action in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County. Multibank 2010-11 SFR Venture, LLC v. Harrington et al., 12-CA-051326 (Fla. 20th Cir. Ct. filed March 2, 2012). On May 5, 2014, RoundPoint received a facsimile from an attorney stating that he represented Harrington and directing all future communications to his office. (Doc. 111-2 at ¶ 29, 111-6 at 31). RoundPoint then ceased calling the 5307 number. (Doc. 111-2 at ¶ 29).

         On May 28, 2015, Harrington filed this action.[5] (Doc. 1). In the complaint, and through two subsequent amendments, Harrington claims that RoundPoint, acting on behalf of Multibank, wrongfully utilized an automatically-dialed telephone to call him repeatedly without his prior express consent, and in such a manner as to become harassing. As a result, he alleges that the calls violated the Telephone Consumer Practices Act (“TCPA”) and the Florida Consumer Collection Practices Act (“FCCPA”). Now, Defendants move for summary judgment on those claims.

         LEGAL STANDARD

         Summary judgment is appropriate only when the court is satisfied that “there is no genuine issue as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is genuine if there is sufficient evidence such that a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, an issue is material if it may affect the outcome of the suit under governing law. Id. The moving party bears the burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether the moving party has met this initial burden, the court must review the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). Once the court determines that the moving party has met its burden, the burden shifts to the non-moving party, who must present specific facts showing that there is a genuine issue for trial that precludes summary judgment. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The evidence presented cannot consist of conclusory allegations, legal conclusions or evidence which would be inadmissible at trial.” Demyan v. Sun Life Assurance Co. of Canada, 148 F.Supp.2d 1316, 1320 (S.D. Fla. 2001) (citing Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)).

         If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). Failure to show sufficient evidence of any essential element is fatal to the claim, and the court should grant the summary judgment. Celotex, 477 U.S. at 322-323. Conversely, if reasonable minds could find a genuine issue of material fact then summary judgment should be denied. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992).

         DISCUSSION

         While Defendants concede that they made all of the calls in question, they argue that they are entitled to summary judgment because the Harringtons consented to the calls by providing RoundPoint with the 5307 Number, and because the calls were not harassing. Moreover, the Defendants argue that if no liability can be assessed against RoundPoint, the maker of all of the calls, none can carry over to Multibank. In contrast, Harrington argues that summary judgment is inappropriate because he never consented to the provision of the 5307 Number, and because a determination of whether the calls were harassing is necessarily one left for a trier of fact. Upon review, the Court finds genuine issues of material fact that preclude entry of summary judgment on both Counts.

         A. Count I - Consent in the Context of the TCPA

         Count one of the Second Amended Complaint alleges that Defendants violated the TCPA by placing numerous automatically-dialed calls to the 5307 Number without Harrington's prior express consent. The TCPA prohibits “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone.” 47 U.S.C. § 227(b)(1)(A)(iii). Notably, though, the statute contains a carve-out for calls “made with the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A); Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1304-05 (11th Cir.2015).

         Ability to avail oneself of the statutory carve-out hinges on the precise meaning of two phrases: the “called party” and “prior express consent.” The Eleventh Circuit has found that the “called party” denotes a phone's current subscriber, meaning the individual that pays the bills or needs the line in order to receive other calls. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251-52 (11th Cir. 2014); see also In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 8000-01 (2015) (the Federal Communications Commission (“FCC”) defines the “called party” as “the subscriber, i.e., the consumer assigned the telephone number dialed and billed for the call, or the non-subscriber customary user of a telephone number included in a family or business calling plan.”).

         Separately, through its rulemaking authority, the FCC has clarified that in the context of prior express consent, “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” Murphy, 797 F.3d at 1305-06 (quoting In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992) (internal quotation marks omitted).

         The FCC has also provided additional guidance as time has passed. In 2008, the FCC issued a declaratory ruling regarding autodialed and prerecorded calls to wireless numbers by creditors in the context of pre-existing debt. There, the FCC stated that “the provision of a cell phone number to a creditor - as part of a credit application, for example - reasonably evidences prior express consent . . . to be contacted at that number regarding the debt.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564 (2008). It further specified “that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed[.]” Id. at 565. Importantly, the FCC established that creditors shoulder the responsibility for “demonstrating that the consumer provided prior express consent.” Id.

         1. Provision of the 5307 Number in the Loan Application

         Against this backdrop, Defendants fist claim that they are entitled to summary judgment because Harrington provided the 5307 number in the Construction Agreement, and because he knew that the Construction Agreement would be provided to Riverside Bank in connection with the Loan. Harrington, however, paints a different picture. He argues that he never provided the Construction Agreement to Riverside Bank, or consented to it being ...


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