United States District Court, M.D. Florida, Tampa Division
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
BARBER UNITED STATES DISTRICT JUDGE.
matter comes before the Court pursuant to Defendant Ocwen
Loan Servicing LLC's Motion for Summary Judgment (Doc. #
39) and Plaintiffs Bonnie and James Brown's Motion for
Summary Judgment (Doc. # 41), both filed on May 1, 2019. Each
side filed responses in opposition and replies. (Doc. ##
46-47, 53-54). For the reasons that follow, the Browns'
Motion for Summary Judgment is denied, and Ocwen's Motion
for Summary Judgment is granted in part and denied in part.
Plaintiffs share the same last name, the Court will refer to
them by their first names, James and Bonnie. In 1998, before
she married James in 2011, Bonnie obtained a mortgage to
purchase her former residence located in Brooksville,
Florida. (Doc. # 40 at ¶ 1; Doc. # 42 at ¶¶
1-2). James is not a borrower on the mortgage, but he resided
with Bonnie at the property and was authorized to speak with
Ocwen and handle matters related to the mortgage on
Bonnie's behalf. (Doc. # 42 at ¶¶ 1, 4).
a mortgage servicer that engages in activities such as
collections, foreclosures, and property disposition efforts -
began servicing Bonnie's mortgage in 2005. (Doc. # 40 at
¶ 2). Ocwen stores its borrowers' data in a program
called “RealServicing Loan Platform.”
(Id. at ¶ 8). Within this program, Ocwen
identifies certain borrowers - for example, those who are in
default or eligible for loan modifications - and creates a
call list. (Id. at ¶ 9). This call list is
transferred from RealServicing to a software called
“Advanced List Management” (ALM), which is
created by Aspect Software, Inc. (Id. at
¶¶ 9-10). Using ALM, Ocwen representatives
configure how calls are to be placed to the numbers on the
call list. (Id. at ¶ 10). Next, Ocwen transfers
that call list with its dialing rules from ALM to another
software created by Aspect, “Unified IP” (UIP).
(Id.). Then, UIP begins dialing Ocwen's
borrowers using the call list. (Id.). Before any
call is connected to an Ocwen representative, the call is
placed in the “disposition queue.” (Doc. # 54-2
at ¶ 6). Calls that are not connected with an Ocwen
representative right away are placed into the “wait
queue.” (Id.). Although ALM and UIP are
separate software, together they are referred to as the
“Aspect dialer.” (Doc. # 42 at ¶ 37; Doc. #
49 at 6).
2013, Bonnie was in default, so she applied for a loan
modification through the Home Affordable Modification Program
(HAMP). (Doc. # 42 at ¶ 5). In early 2014, the loan
modification was approved, but Bonnie immediately defaulted
on the modification because she was still unable to make the
modified payments. (Id.). According to the Browns,
Ocwen encouraged Bonnie to submit additional loan
modification applications, though this encouragement is
disputed by Ocwen. (Id. at ¶¶ 5-7; Doc. #
49 at 1-2). The Browns further aver that Ocwen led them to
believe Bonnie could obtain another loan modification, even
though Ocwen knew Bonnie was in fact ineligible for another
modification. (Doc. # 42 at ¶¶ 9-10). Ocwen
likewise disputes this, contending Bonnie was eligible for
other loan modifications, though she was not eligible for
another loan modification through HAMP. (Doc. # 49 at 2-3).
Bonnie ended up submitting at least five loan modification
applications betweem 2014 and 2015. (Doc. # 42 at
¶¶ 5-7). Bonnie listed her cellphone number ending
in -5620 on the loan modification applications. (Doc. # 40 at
¶ 3). Among other things, the applications stated,
“I consent to being contacted concerning this request
for mortgage assistance at any e-mail address or cellular or
mobile telephone number I have provided to the
Servicer.” (Doc. # 46 at 13; Doc. # 46-12). From
January 21, 2014, until August 29, 2016, Ocwen used its
Aspect dialer to place 416 calls to the -5620 number. (Doc. #
42 at ¶ 11). According to the Browns, they answered
ninety- eight calls where Ocwen used a prerecorded or
artificial voice. (Id. at ¶¶ 44-45; Doc. #
47 at 3).
2016, Bonnie was the primary user of the -5620 number, which
is issued through Boost Mobile. (Doc. # 42 at ¶ 12). The
Browns have shared a cellphone account with Boost Mobile
since 2011, and the Browns use joint money to pay for their
account. (Id.). In March or April 2016, Bonnie got a
new cellphone number, so James started using the -5620
number. (Id. at ¶ 13). Neither Bonnie nor James
informed Ocwen that the -5620 number was no longer
Bonnie's phone number or that James was now the primary
user of the -5620 number. (Doc. # 40 at ¶ 5).
her attempts to obtain a loan modification, a foreclosure
complaint seeking a deficiency judgment was filed against
Bonnie on March 5, 2016. (Doc. # 42 at ¶ 14). On April
22, 2016, the foreclosure court served Bonnie with an order
setting the final foreclosure hearing for June 20, 2016.
(Id. at ¶ 15). Thereafter, multiple Ocwen
representatives called the -5620 number, but the
representatives were unaware that a foreclosure hearing had
been set, so they advised Bonnie to submit additional loan
modification applications. (Doc. # 42-15; Doc. # 42-5 at
12-13). After these phone calls, the Browns concluded the
modification applications and phone calls with Ocwen were
fruitless endeavors. (Doc. # 42-1 at ¶ 10; Doc. # 42-2
at ¶ 8).
20, 2016, an Ocwen representative called the -5620 number to
discuss Bonnie's “intentions with the
property” and a possible short-sale or surrender of the
property. (Doc. # 42 at ¶ 18; Doc. # 42-16 at 2). Bonnie
answered the phone, but after the representative explained
the purpose of the call and noted the call was an attempt to
collect a debt, Bonnie told the Ocwen representative to speak
with James. (Doc. # 42-16 at 2). James proceeded to tell the
Ocwen representative that any issues would be decided at the
upcoming foreclosure hearing on June 20, 2016. (Id.
at 3-4). Further, James told the Ocwen representative that
the call would not “make any difference at all”
because there was “really nothing for [the
representative] and [James] to discuss.”
the May 20, 2016, phone call, Ocwen used its Aspect dialer to
place 192 phone calls to the -5620 number. (Doc. # 42 at
¶ 19). Specifically, except for twelve days, Ocwen
called the -5620 number every day until August 29, 2016.
(Id. at ¶¶ 11, 30). And unless the
previous call that day was answered, Ocwen almost always
called the -5620 number three times per day, which is
permitted under Ocwen's policies. (Id.). The
Browns answered only forty-three of these calls, though.
(Id. at ¶ 19). When Ocwen's calls were
answered, Ocwen's representatives explained the calls
were an attempt to collect a debt. (Id. at ¶
28). James answered most of the calls because he had the
phone with him at work. (Id. at ¶ 26). Bonnie
stated during her deposition that she did not answer any
calls after James started using the - 5620 number, but
Ocwen's records indicate Bonnie personally answered a few
calls or at least spoke to Ocwen after James initially
answered the phone. (Doc. # 39-6 at 16-17; Doc. # 42-16; Doc.
# 42-18 at 2-3; Doc. # 42-19 at 8; Doc. # 42-20). When James
answered the phone, Ocwen asked to speak with Bonnie or asked
James to leave Bonnie a message for her to call Ocwen back.
(Doc. # 42 at ¶ 26).
4, 2016, during another phone call from Ocwen to the -5620
number, James complained of the daily phone calls from Ocwen,
stated he would report the representative for
“harassment, ” and asked Ocwen to “[q]uit
calling” him and Bonnie. (Id. at ¶ 20;
Doc. # 42-17). Thereafter, James again requested Ocwen to
“quit calling” him and Bonnie on June 11 and 17,
2016. (Doc. # 42-19 at 2-7).
foreclosure hearing took place on June 20, 2016, and a final
judgment of foreclosure was entered that same day. (Doc. # 42
at ¶ 22). Nevertheless, Ocwen continued to call the
-5620 number after the foreclosure. James requested Ocwen to
“quit calling” him and Bonnie on multiple
occasions after the foreclosure - specifically, on June 30,
2016; July 12, 13, 16, and 29, 2016; and August 4, 7, 8, 16,
and 18, 2016. (Doc. # 42-19 at 2-3, 5, 7, 9-19). Bonnie
similarly asked Ocwen to stop calling on June 29 and July 1,
2016. (Doc. # 42 at ¶ 23; Doc. # 42-18 at 3; Doc. #
42-19 at 8). After the Browns moved out, the property was
sold at auction on August 25, 2016. (Doc. # 42 at ¶ 22).
Shortly thereafter, the calls to the -5620 number from Ocwen
stopped. (Id. at ¶ 11).
to the Browns, Ocwen's phone calls took a toll on them.
James was suffering from a heart condition, Bonnie was caring
for her sick grandmother, and Bonnie's mother and father
passed away in September 2015 and May 2016, respectively.
(Id. at ¶ 33). The Browns informed Ocwen of
these circumstances, but Ocwen did not record this
information in Bonnie's account because the Browns failed
to follow certain authentication procedures. (Doc. # 49 at
5). James even allegedly lost two jobs after clients
overheard him tell Ocwen to stop calling because the property
had been foreclosed. (Doc. # 42 at ¶ 34). The Browns
fought nearly every day over Ocwen's calls. (Id.
at ¶ 35). James vented to Bonnie about Ocwen's
calls, and Bonnie felt “helpless to stop the
result, on January 17, 2018, the Browns brought this action
against Ocwen for violations of the Telephone Consumer
Protection Act (TCPA) and the Florida Consumer Collection
Practices Act (FCCPA). (Doc. # 18). The parties have now
filed cross-Motions for Summary Judgment. (Doc. ## 39, 41).
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A properly supported motion for summary
judgment is not defeated by the existence of a factual
dispute. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). Only the existence of a genuine issue of
material fact will preclude summary judgment. Id.
issue is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. A fact is material “if it is
a legal element of the claim under the applicable substantive
law which might affect the outcome of the case.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997). The moving party bears the initial burden of
showing that there are no genuine issues of material fact.
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d
1256, 1260 (11th Cir. 2004). When the moving party has
discharged its burden, the nonmoving party must then
designate specific facts showing the existence of genuine
issues of material fact. Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593-94 (11th Cir. 1995). If there is
a conflict between the parties' allegations ...