Florida district court holds that TCPA claim fails because calls placed to number that was not registered to Plaintiff

In Ferrer v. Bayview Loan Servicing, LLC, No. 15-20877-CIV (S.D. Fla. Jan. 26, 2018), Plaintiff sued her mortgagee and servicer for violations of the FDCPA, the Florida Consumer Collections Practices Act (“FCCPA”), and the Telephone Consumer Protection Act (“TCPA”) all related to the servicer’s written and telephonic attempts to collect a debt. The court found that the TCPA claims failed because the disputed calls were placed to a number that was not registered to Plaintiff and to which she did not subscribe.

The Plaintiff initially filed the suit while foreclosure proceedings were taking place in state court. During the state foreclosure proceeding, Plaintiff challenged the validity of the debt and the defendants’ right to enforce it or seek payments on it. A final judgment was entered in the foreclosure and, based upon that final judgment, defendants moved to dismiss the federal case pursuant to the Rooker-Feldman doctrine. They argued that Plaintiff cannot again attempt to challenge the validity of the underlying debt. While the Court agreed that an attempted challenge to the validity of the underlying debt would be barred by preclusion principles, it ultimately denied the servicer’s motion because the Rooker-Feldman doctrine did not apply under the circumstances of this case.

Defendants subsequently moved for and were awarded summary judgment. The Court held that to the extent that the FDCPA and state collection law claims were premised on the purported invalidity of the debt, they were barred by collateral estoppel. And to the extent the claim was that defendants did not provide any debt validation at all, the claim failed because the Plaintiff admitted that defendants timely responded to her debt validation request and the issue had not been raised in the pleadings, but only on summary judgment.

The court also awarded summary judgment to Defendants on the TCPA claims. It again chastened Plaintiff for trying to amend the complaint at summary judgment. Even if it was inclined to consider the issue, summary judgment was still warranted because the calls were placed to a phone number that was not registered to Plaintiff and she was not a subscriber. It was also uncontested that although the servicer did attempt to contact Plaintiff by phone it afterwards placed no calls to the number that was registered to Plaintiff.

The court also found there was no genuine issue of material fact with respect to whether the servicer used an automatic telephone dialing system (“ATDS”) to place calls to Plaintiff’s cell phone. The TCPA makes it unlawful to call a cell phone using an automatic telephone dialing system or prerecorded voice. The TCPA defines an ATDS as equipment that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and dial the stored numbers. The servicer demonstrated that the calls placed through its servicing platform does not store telephone numbers and that the calls must be manually dialed. In fact, the platform cannot place calls without human input, and it is not able to dial predictively, store, or produce telephone numbers independently. While the servicer did use an ATDS to place some calls, they were not placed to Plaintiff’s cell phone. The court did not consider whether Plaintiff gave prior written consent because the servicer placed no calls to Plaintiff’s cell number with an auto-dialer.

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