Aquilar v. Ocwen Loan Servicing, LLC

• Decision Date: 30 January 2018
• Docket Number: Case No. 17–cv–1530 (WMW/TNL)
• Citation: 289 F.Supp.3d 1000
• Parties: Israel AQUILAR, Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant.
• Court: U.S. District Court — District of Minnesota

289 F.Supp.3d 1000

Israel AQUILAR, Plaintiff,

v.OCWEN LOAN SERVICING, LLC, Defendant.

Case No. 17–cv–1530 (WMW/TNL)

United States District Court, D. Minnesota.

Signed January 30, 2018

Anthony P. Chester, Robert L. Hyde, Hyde & Swigart, Minneapolis, MN, for Plaintiff.

Margaret Ann Santos, Hinshaw & Culbertson LLP, Minneapolis, MN, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND DENYING DEFENDANT'S MOTION TO STAY

Wilhelmina M. Wright, United States District Judge

In this case involving alleged violations of the Telephone Consumer Protection Act (TCPA), Defendant Ocwen Loan Servicing, LLC (Ocwen), moves to dismiss Plaintiff Israel Aquilar's amended complaint or, in the alternative, to stay the proceedings pending a decision by the United States Court of Appeals for the District of Columbia Circuit in ACA International v. FCC , No. 15–1211 (D.C. Cir.). (Dkts. 8, 25.) For the reasons addressed below, the Court grants in part and denies in part Ocwen's motion to dismiss and denies Ocwen's motion to stay the proceedings.

BACKGROUND

Aquilar alleges in his amended complaint that, beginning on April 13, 2012, and continuing at least through December 15, 2015, Ocwen made more than 1,000 unsolicited calls to Aquilar's cellular telephone to collect a consumer debt Aquilar allegedly owed. Aquilar claims that Ocwen placed these calls using an automatic telephone dialing system (ATDS) "and/or using an artificial or prerecorded voice," in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227 et seq. Aquilar alleges that he "clearly revoked any type of prior express consent" that he had given Ocwen, "if prior express consent ever existed to begin with." But the calls allegedly continued despite this revocation of consent. Aquilar commenced this lawsuit against Ocwen on May 9, 2017, seeking statutory damages, actual damages, and injunctive relief for negligent violations of the TCPA (Count I), for "knowing and/or willful violations" of the TCPA (Count II), and for common-law negligence (Count III).

Ocwen now moves to dismiss Aquilar's amended complaint for failure to state a claim on which relief can be granted. Alternatively, Ocwen seeks to stay the proceedings pending a decision by the United States Court of Appeals for the District of Columbia Circuit in ACA International v. FCC , No. 15–1211 (D.C. Cir.). The petitioners in ACA International have challenged the validity of a July 2015 Federal Communications Commission (FCC) Order (2015 FCC Order) in which the FCC interpreted the definition of the statutory term "automatic telephone dialing system," a term that is at issue here. The D.C. Circuit heard oral argument in ACA International on October 19, 2016.

ANALYSIS

I. Ocwen's Motion to Dismiss for Failure to State a Claim

A complaint must allege sufficient facts such that, when accepted as true, a facially plausible claim for relief is stated. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; see also Fed. R. Civ. P. 12(b)(6). When applying this pleading standard, a district court accepts as true the factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Blankenship v. USA Truck, Inc. , 601 F.3d 852, 853 (8th Cir. 2010). The factual allegations need not be detailed, but they must be sufficient to "raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plaintiff must do more than offer "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555, 127 S.Ct. 1955. A court may disregard legal conclusions that are couched as factual allegations. See Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937.

Ocwen moves to dismiss Aquilar's amended complaint on the ground that it does not state a plausible claim for relief under the TCPA or the common law of negligence. Aquilar opposes dismissal and counters that the amended complaint alleges sufficient facts to support his TCPA claims and common-law negligence claim.

A. TCPA Claims

Ocwen asserts that Aquilar's TCPA claims must be dismissed for two reasons—first, they are time-barred; and second, Aquilar fails to sufficiently plead revocation of consent to receive calls as required under the TCPA.

1. Time–Barred Claims Under the TCPA

Ocwen argues that Aquilar's TCPA claims are time-barred because Aquilar alleges that some of the calls occurred outside the TCPA's four-year statute of limitations. Aquilar counters that the statute of limitations was tolled and the claims are not timebarred under the TCPA.

A statute-of-limitations defense is "typically an affirmative defense, which the defendant must plead and prove." Jessie v. Potter , 516 F.3d 709, 713 n.2 (8th Cir. 2008). Unless the complaint itself establishes the statute-of-limitations defense, the possible existence of such a defense is not a basis for relief under Rule 12(b)(6). Joyce v. Armstrong Teasdale, LLP , 635 F.3d 364, 367 (8th Cir. 2011) ; see also Hile v. Jimmy Johns Highway 55, Golden Valley , 899 F.Supp.2d 843, 847 n.6 (D. Minn. 2012) ("[Q]uestions regarding timeliness generally must be resolved by a motion for summary judgment rather than a motion to dismiss."). A plaintiff need not plead facts responsive to an affirmative defense before that defense is raised. Braden v. Wal–Mart Stores, Inc. , 588 F.3d 585, 601 n.10 (8th Cir. 2009).

The statute of limitations for Aquilar's claims tolled on May 9, 2017, when Aquilar filed his complaint. Because the TCPA has a four-year statute of limitations, see 28 U.S.C. § 1658(a) ; Hashw v. Dep't Stores Nat'l Bank , 182 F.Supp.3d 935, 941 n.2 (D. Minn. 2016), calls that Aquilar received on or after May 9, 2013, can serve as grounds for his TCPA claims. Aquilar alleges that, beginning on April 13, 2012, he received calls from Ocwen in violation of the TCPA. The amended complaint does not specify the date of each call, but Aquilar alleges that the calls continued at least through December 15, 2015, which is well within the four-year limitations period preceding the filing of Aquilar's complaint. See Peppin v. Bodie–Miner , No. 16-1320, 2016 WL 7368194, at *6 (D. Minn. Nov. 29, 2016) ("[B]ecause plaintiff did not allege any dates, the Complaint does not, on its face, establish a statute of limitations defense. Accordingly, the absence of specific dates is not a ground for dismissing the Complaint under Rule 12(b)(6)."), report and recommendation adopted , No. 16-1320, 2016 WL 7366082 (D. Minn. Dec. 19, 2016).

Aquilar alleges that he received calls in violation of the TCPA within the four-year period prior to the initiation of this lawsuit. ¹

For this reason, the amended complaint does not establish on its face a statute-of-limitations defense that is sufficient to warrant dismissal of Aquilar's TCPA claims under Rule 12(b)(6).

2. Revocation of Consent Under the TCPA

Ocwen also argues that Aquilar has not alleged his revocation of consent with the necessary specificity to state a TCPA claim.

To state a claim under the TCPA, a plaintiff must allege that the defendant (1) called a cellular telephone number, (2) used an automatic telephone dialing system or an artificial or prerecorded voice to do so, and (3) lacked the plaintiff's prior express consent. 47 U.S.C. § 227(b)(1)(A) ; Smith v. Securus Techs., Inc. , 120 F.Supp.3d 976, 980 (D. Minn. 2015) ; see also Zean v. Fairview Health Servs. , 858 F.3d 520, 525–26 (8th Cir. 2017) (affirming dismissal of TCPA claim because complaint failed to allege that defendant lacked prior express consent). The FCC has clarified that "autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party." In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 , 23 FCC Rcd. 559, 564 (Jan. 4, 2008). Such autodialed and prerecorded-voice calls to wireless numbers are permissible. Moreover, the provision of a cell phone number to a creditor "reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt." Id.

In the 2015 FCC Order, however, the FCC recognized that consumers may revoke their consent using any reasonable means, including oral or written notice. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 , 30 FCC Rcd. 7961, 7996 (July 10, 2015). "Consumers generally may revoke, for example, by way of a consumer-initiated call [or] directly in response to a call initiated or made by a caller ...." Id. Although the 2015 FCC Order currently is on appeal to the D.C. Circuit in ACA International , this Court is bound by the FCC's interpretations of the TCPA unless those interpretations are invalidated by a federal court of appeals. See 28 U.S.C. §§ 2342 et seq. ; see also Wright v. Target Corp. , No. 14-cv-3031, 2015 WL 8751582, at *5 (D. Minn. Dec. 14, 2015) (recognizing that the 2015 FCC Order's statements addressing revocation of consent are binding on district courts notwithstanding the pending appeal in ACA International ).² When a complaint alleges prior express consent and does not plead revocation, a TCPA claim cannot survive a Rule 12(b)(6) motion to dismiss. See Steinhoff v. Star Tribune Media Co. , No. 13-cv-1750, 2014 WL 1207804, at *5 (D. Minn. Mar. 24, 2014) (granting defendant's motion for judgment on pleadings when plaintiff conceded there was no affirmative act revoking prior express consent).

Ocwen's argument that the amended complaint alleges Aquilar's prior express consent but does not allege revocation of that consent is unavailing. Aquilar alleges that the calls he received were part of Ocwen's "attempt to collect on a consumer debt allegedly due and owing by [Aquilar]." But the amended...