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Brown v. Ocwen Loan Servicing, LLC

United States District Court, M.D. Florida, Tampa Division

September 5, 2019




         This 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.

         I. Background

         Because 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).

         Ocwen - 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).

         In 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).

         Regardless, 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).

         Before 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).

         Despite 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).

         On May 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.” (Id.).

         After 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).

         On June 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).

         The 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).

         According 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 calls.” (Id.).

         As a 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).

         II. Legal Standard

         Summary 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.

         An 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 ...

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