Beal v. Wyndham Vacation Resorts, Inc.

• Decision Date: 20 June 2013
• Docket Number: No. 12–cv–274–bbc.,12–cv–274–bbc.
• Citation: 956 F.Supp.2d 962
• Parties: Terri BEAL, Plaintiff, v. WYNDHAM VACATION RESORTS, INC., Defendant.
• Court: U.S. District Court — Western District of Wisconsin

956 F.Supp.2d 962

Terri BEAL, Plaintiff,

v.WYNDHAM VACATION RESORTS, INC., Defendant.

No. 12–cv–274–bbc.

United States District Court, W.D. Wisconsin.

June 20, 2013.

Ivan Hannibal, Consumer Rights Law Office, McFarland, WI, Mary Catherine Fons, Fons Law Office, Stoughton, WI, for Plaintiff.

Daniel Alexander Manna, Michael C. Lueder, Timothy Joseph Bucher, Foley & Lardner LLP, Milwaukee, WI, Kevin Douglas Fowler, Foley & Lardner LLP, Orlando, FL, for Defendant.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

In this civil action for monetary relief, plaintiff Terri Beal contends that defendant Wyndham Vacation Resorts, Inc. violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, the Wisconsin Consumer Act, Wis. Stat. §§ 427–428, and Wisconsin common law in attempting to collect a debt that plaintiff owed defendant for the purchase of timeshare points. Now before the court are the parties' cross motions for summary judgment. Defendant moved for summary judgment on all plaintiff's claims, dkt. # 47, but later filed a motion to withdraw its arguments regarding plaintiff's claims under the Wisconsin Consumer Act arising from its telephone calls to plaintiff. Dkt. # 82. I will grant defendant's motion to withdraw those arguments. Plaintiff moved for partial summary judgment on her claims under the Wisconsin Consumer Act arising from defendant's actions in a related state court case and its reporting of her debts to credit reporting companies. Dkt. # 43.

For the reasons that follow, I am denying plaintiff's motion in full and I am granting defendant's motion in part and denying it in part. I am denying plaintiff's motion and granting defendant's motion with respect to plaintiff's claims under the Wisconsin Consumer Act and plaintiff's invasion of privacy and private nuisance claims that are premised on defendant's actions in a related state court proceeding because defendant's service of the complaint and procedural mistakes in state court cannot form the basis for a claim under the Wisconsin Consumer Act or common law. I am also denying plaintiff's motion and granting defendant's motion with respect to plaintiff's Wisconsin Consumer Act Claim premised on defendant's telephone calls to plaintiff because that claim is preempted by the Fair Debt Collection Practices Act.

I am denying defendant's motion with respect to plaintiff's invasion of privacy and private nuisance claims premised on defendant's collection call activities from November 2009 to July 2010 because those claims are timely under the continuing violation doctrine. Finally, I am granting defendant's motion with respect to plaintiff's claims under the Telephone Consumer Protection Act for all calls made before January 8, 2010, because plaintiff consented to defendant's calling her before that date. However, I am denying the motion with respect to calls made after January 8, 2010 and granting summary judgment to plaintiff with respect to those calls, because plaintiff has established that she revoked her consent to be called on that date. I am also awarding plaintiff $14,500 in statutory damages for the calls and prerecorded messages defendant made to plaintiff's cell phone after that date.

PRELIMINARY MATTERS

Before turning to the parties' motions for summary judgment, there are two evidentiary matters that must be resolved.

A. Plaintiff's Motion to Strike Errata Sheets

Plaintiff has moved to strike errata sheets submitted by defendant in connection with a 30(b)(6) deposition of John Hunt, vice president of collection for Wyndham Consumer Finance. Dkt. # 76. Under Fed.R.Civ.P. 30(e), a witness may have 30 days following the preparation of the deposition transcript to review the transcript and make changes via errata by signing a statement detailing the changes and the reason for making them. Plaintiff contends that the errata sheets are untimely and constitute impermissible material changes to Hunt's testimony for which defendant provided no adequate justification.

Defendant's submission of Hunt's errata sheet was not untimely. Defendant submitted evidence demonstrating that it received Hunt's deposition transcript via electronic mail on February 18, 2013. Martin Aff., dkt. # 80, at ¶ 4; Lueder Aff., dkt. # 79, at ¶ 4. Applying the applicable rules for computing time periods under Fed.R.Civ.P. 6, which allows three extra days if service is made by electronic means, Fed.R.Civ.P. 6(d), defendant's submission of the errata sheets on March 22, 2013 was timely.

The next question is whether Hunt's errata sheet makes impermissible material changes to Hunt's previous deposition testimony. The Court of Appeals for the Seventh Circuit has explained that “a change in substance which actually contradicts the transcript is impermissible [under Fed.R.Civ.P. 30(e) ] unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’ ” Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000). Although plaintiff contends that the errata sheets make changes that clearly contradict Hunt's deposition testimony, plaintiff fails to point to any change that rises to the level of “contradictory” as that term is used in Thorn. Rather, the changes defendant submits in the errata sheets seem to focus primarily on topics for which Hunt's knowledge was lacking and for which plaintiff had requested additional information.

Moreover, plaintiff has failed to identify any changes to the 30(b)(6) deposition that are material to the parties' motions for summary judgment. Neither party relies significantly on Hunt's deposition testimony in its summary judgment filings and plaintiff identifies no changes in the errata sheet that are relevant to issues before the court. Therefore, I am denying plaintiff's motion to strike the errata sheets. If plaintiff believes that any of the changes on the errata sheets are material to trial and should be excluded, she may file a motion in limine to exclude specific testimony on the errata sheets.

B. Plaintiff's Objections to Defendant's Proposed Findings of Fact Concerning Call Logs

Defendant maintained a log of the collection calls it made to plaintiff. As part of its summary judgment materials, defendant submitted the log along with an affidavit of Edgar Trigueros, supervisor of the contract center operations for Wyndham Consumer Finance, Inc., to explain the entries on the log. Trigueros Aff., dkt. # 50. For the most part, plaintiff does not dispute the substance of defendant's proposed facts regarding the call logs, but she does raise several objections as to the admissibility of the logs, the completeness of the logs and Triguero's testimony interpreting the logs.

I conclude that the call logs and notes are admissible under the exception to hearsay for records of regularly conducted activity. Fed.R.Evid. 803(6). Plaintiff has not explained why this exception would not apply. Although Trigueros did not make any of the calls himself or enter any of the notes on the call logs, Trigueros's position allows him to testify with personal knowledge about the preparation of call logs and how defendant's debt collectors enter notes about calls.

With respect to plaintiff's contention that defendant's call records are incomplete and flawed, plaintiff has provided no reason to reject the entirety of the call logs as inaccurate or incomplete and has pointed to no particular entry that she believes is incomplete or flawed.

From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

UNDISPUTED FACTS

A. Timeshare Contract

On July 9, 2009, plaintiff Terri Beal attended a timeshare sales presentation by defendant Wyndham Vacation Resorts in the Wisconsin Dells. After the sales presentation, plaintiff agreed to purchase “timeshare points” from defendant and signed a timeshare contract and other associated documents. The cash price of the timeshare points was $23,970.00. Plaintiff made a down payment of $2,431.90 and financed the rest through a credit contract with defendant, the terms of which were incorporated into the timeshare contract.

The timeshare contract granted defendant a security interest in the real and personal property being purchased by plaintiff and also granted defendant the right to proceed with seller's remedies:

If the Buyer is late with an amount exceeding one full payment for more than 10 days after the scheduled or deferred due date[,] the Buyer will be in default. The Seller will give the Buyer notice in accordance with the Wisconsin Consumer Act of such default and of Buyer's right to cure. After the expiration of said statutory notice period, the Seller may declare due and owing the balance of amount owed, and proceed with Seller's remedies.

Timeshare contract, dkt. # 46–1 at 2.

Shortly after entering into the timeshare contract, plaintiff stopped making payments.

B. Collection Calls

After plaintiff stopped making payments on the timeshare points, defendant's in-house debt collectors started calling plaintiff to try to make payment arrangements for her account. Defendant called plaintiff using an auto-dialer on three phone numbers, only one of which is relevant to plaintiff's claims. The phone number ending in 4507 is a cell phone number registered to plaintiff. Plaintiff provided the number to defendant when she completed the timeshare contract. Defendant did not attempt to determine whether the phone number was a cell phone number.

Plaintiff did not keep a log of the calls she received and testified that she had no “real sense” of how many times defendant called her. Defendant's call log records show that defendant first attempted to call plaintiff regarding the 2009 timeshare agreement on November 19, 2009 and continued to call plaintiff until July 9, 2010. (Defendant made additional calls to plaintiff in 2010 and 2011 in connection with a timeshare that plaintiff purchased in 2006. That timeshare and defendant...