Breslow v. Wells Fargo Bank, N.A.

• Decision Date: 26 April 2012
• Docket Number: Case No. 11–22681–Civ.
• Citation: 23 Fla. L. Weekly Fed. D 222,857 F.Supp.2d 1316
• Parties: Lynn BRESLOW, individually and on behalf of R.B., a minor, Plaintiffs, v. WELLS FARGO BANK, N.A., a national bank, (d/b/a “Wachovia Bank, a division of Wells Fargo Bank, N.A.”), Defendant.
• Court: U.S. District Court — Southern District of Florida

857 F.Supp.2d 1316

23 Fla. L. Weekly Fed. D 222

Lynn BRESLOW, individually and on behalf of R.B., a minor, Plaintiffs,

v.WELLS FARGO BANK, N.A., a national bank, (d/b/a “Wachovia Bank, a division of Wells Fargo Bank, N.A.”), Defendant.

Case No. 11–22681–Civ.

United States District Court, S.D. Florida.

April 26, 2012.

Scott David Owens, Hallandale, FL, for Plaintiffs.

Amy S. Rubin, Elliot Aaron Hallak, Fox Rothschild LLP, West Palm Beach, FL, for Defendant.

ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

ROBERT N. SCOLA, JR., District Judge.

THIS MATTER is before the Court on the Plaintiff's Motion for Partial Summary Judgment as to the Defendant's Liability (ECF No. 44). The Court has reviewed the arguments, the record, and the relevant legal authorities, and for reasons set forth more fully below, it is ORDERED and ADJUDGED that the Motion (ECF No. 44) is GRANTED.

I. FACTUAL BACKGROUND

Plaintiff Lynn Breslow (“Breslow”) brought this action both individually and on behalf of R.B., a minor, against Defendant Wells Fargo Bank, N.A. (“Wells Fargo”). The Amended Complaint (ECF No. 5) was filed on August 11, 2011, and raises a single count claiming violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”).

The factual record in this action is short and few facts are in dispute. Breslow came to own a cellular telephone with the assigned number 786–877–3516 (the “Cell Number”) in or around August 2008. Pl.s' Answer to Def.'s 2d Set of Interrogs. 4 ¶ 1, ECF No. 53–2; Breslow Aff. ¶ 2, ECF No. 44–2. Record statements by the Plaintiffs indicate that only R.B., a minor, and not Breslow, had exclusive access to or used the Cell Number. Pl.s' Answer to Def.'s 1st Set of Interrogs. 6 ¶ 3, ECF No. 53–1. It is undisputed that since August, 2008, Wells Fargo placed multiple calls to the Cell Number. See Breslow Aff. 3 (providing billing records); Call Summary 11–12, ECF No. 44–3. ¹ These calls were made in connection with a debt owed to Wells Fargo not by the Plaintiffs, but by a former Wells Fargo Customer (“Former Customer”). Haeberlin Aff. ¶ 13, ECF No. 54–1; cf. Am. Compl. 5 ¶ 13, ECF No. 5 (alleging that where calls were transferred to a human operator, the operator would ask to speak to an unknown individual). Wells Fargo provided evidence—uncontroverted by the Plaintiffs—that Former Customer was the intended recipient of the calls Wells Fargo placed to the Cell Number rather than the Plaintiffs. Haeberlin Aff. ¶ 14. The evidence on the record indicates that Former Customer provided Wells Fargo with the Cell Number in connection with an account Former Customer maintained at Wells Fargo, that Former Customer owed a debt in connection with that account at the times the calls to the Cell Number were placed, that the Cell Number was the only number Former Customer provided to Wells Fargo, and that Former Customer had neither revoked consent for Wells Fargo to call the Cell Number nor informed Wells Fargo that the number had changed. Haeberlin Aff. ¶¶ 10–17.

It is undisputed that the calls made to the Cell Number were made using an automated telephone dialing system or an artificial or prerecorded voice. Motion 2 ¶ 5, ECF No. 44–1; Def.'s Resp. 2 ¶ 5, ECF No. 54. A Wells Fargo officer testified that a call placed on September 25, 2008 at 4:20 p.m. reached an answering machine, and that a call placed on the same day at 7:08 p.m. reached a live individual, who advised Wells Fargo that it had reached a wrong number. Haeberlin Aff. ¶¶ 20–21. The officer further testified that subsequent to the 7:08 p.m. call and advisement that the number was a wrong number, Wells Fargo entered the account number held by Former Customer and the Cell Number into a program that excluded the Cell Number from further automated calls. Haeberlin Aff. ¶ 22. The parties have proffered no evidence demonstrating that any calls were made after September 25, 2008 at 7:08 p.m. See Breslow Aff. 3; see also supra note 1.

II. LEGAL STANDARDSa. Summary Judgment

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Thus, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party—here, Wells Fargo. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

b. TCPA

The TCPA provides, in relevant part:

(1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—

(A) To make 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—

...

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

47 U.S.C. § 227(b)(1)(A)(iii). Under § 227(b)(3), a person or entity may bring an action to recovery actual monetary loss for a violation of the above prohibition, to receive $500 in statutory damages for each violation (which may be tripled in the event of a willful or knowing violation). Id. at § 227(b)(3). “The TCPA is essentially a strict liability statute” that “does not require any intent for liability except when awarding treble damages.” Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir.2011) (quoting Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1311 (11th Cir.2008)).

The TCPA gives the Federal Communications Commission (“FCC”) the authority to prescribe regulations and implement the TCPA's provisions. 47 U.S.C. § 227(b)(2). On January 4, 2008, the FCC adopted Declaratory Ruling 07–232, which stated:

[A]utodialed 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 [and] such calls are permissible. We conclude that the provision of a phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.

In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 564 (F.C.C.2008) (hereinafter FCC Ruling 07–232). The FCC qualified this exemption for debt collection calls as calls made with “prior express consent” by emphasizing that consent is deemed to be granted only if the cellular number called: “(1) was provided by the consumer to the creditor; and (2) was provided during the transaction that resulted in the debt owed.” Id. at 564–65. Moreover, as further protection for consumers, “the creditor should be responsible for demonstrating that the consumer provided prior express consent.” Id. at 565. Thus, the prior express consent exemption acts as an affirmative defense, and “the burden will be on the creditor to show it obtained the necessary prior express consent.” Id.

In summary, to demonstrate a violation of the TCPA, the Plaintiffs need only show that Wells Fargo called a number assigned to a cellular telephone service using an automatic dialing system or prerecorded voice. See Cavero v. Franklin Collection Serv., Inc., No. 11–22630–CIV, 2012 WL 279448, at *2 (S.D.Fla. Jan. 31, 2012) (Altonaga, J.). Wells Fargo may demonstrate, by way of affirmative defense, that it placed such calls with the prior express consent of the “called party.” 47 U.S.C. § 227(b)(1)(A)(iii). Significantly, neither the TCPA nor the FCC defines the term “called party.”

III. ANALYSIS AND CONTROLLING AUTHORITY

It is undisputed that Wells Fargo placed multiple calls to the Cell Number, a cellular number, and that those calls were made using an automated telephone dialing system or a prerecorded voice. Therefore, absent a record showing of a valid defense, the undisputed facts would demonstrate that Wells Fargo violated the TCPA.

The record shows that while Wells Fargo's calls after August 2008 were actually received by the Plaintiffs, they were made in connection with Former Customer's debt to Wells Fargo, and Former Customer was the intended recipient. The evidence also indicates that Former Customer provided the Cell Number to Wells Fargo during the...