United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
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.
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”).
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.
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. (Doc. 111-2 at ¶ 8).
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
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. (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).
November 29, 2010 until June 2, 2011, Defendants allege that
only one call was placed to the 5307 number. (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).
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).
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).
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 ¶
28, 2015, Harrington filed this action. (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.
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
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).
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.
Count I - Consent in the Context of the TCPA
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).
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
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).
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.
Provision of the 5307 Number in the Loan Application
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 ...