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Huffman v. Branch Banking & Trust Co.

United States District Court, S.D. West Virginia, Huntington Division

May 17, 2017

NICHOLAS HUFFMAN, Plaintiff,
v.
BRANCH BANKING & TRUST COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert C. Chambers, Chief Judge

         Pending before the Court is Defendant's Motion for Summary Judgment (ECF No. 31). The issues presented have been fully briefed, and the motion is now ripe for review. For the following reasons, the Court GRANTS in part and DENIES in part Defendant's Motion.

         I. Background

         Plaintiff brought suit against Defendant for alleged violations of the Telephone Consumer Protection Act (TCPA), the West Virginia Consumer Credit and Protection Act (WVCCPA), common law negligence, and common law invasion of privacy. See Pl.'s Second Am. Compl., ECF No. 27. Plaintiff alleges that he became in arrears to a debt owed to Defendant. Id. at ¶ 8. Subsequently, Defendant engaged Plaintiff in telephone calls and written communications to collect on the debt. Id.

         Plaintiff alleges that on March 1, 2016, he mailed a letter to CT Corporation (CT), Defendant's registered agent, specifying that he had retained an attorney to represent him on the alleged debt. Id. at ¶ 9. The letter further indicated that Plaintiff withdrew his consent to be contacted directly and provided Defendant with the contact information of his attorney. Id.; see also Letter by Nicholas Huffman, ECF No. 31-1, at 4. Plaintiff alleges that Defendant continued to call Plaintiff on his cell phone multiple times per day using an automatic telephone dialing system. Pl.'s Second Am. Compl., ECF No. 27, at ¶ 10. Plaintiff asserts that the calls totaled at least forty-four calls after Defendant had received notice of attorney representation. Id. at ¶ 16. Plaintiff alleges that Defendant intended to annoy, abuse, or harass Plaintiff by engaging in these calls after receiving notice. Id. at ¶ 17.

         Plaintiff filed the instant case on September 7, 2016, and the Second Amended Complaint contains four separate counts. See generally Id. Count I charges Defendant with violating the TCPA by calling Plaintiff with artificial or prerecorded voices without Plaintiff's express consent in violation of 47 U.S.C. § 227(b)(1)(A). Id. at ¶¶ 24-29. Count II alleges violations of the WVCCPA, stating that Defendant engaged in unreasonable and abusive conduct by continuing to call Plaintiff after he revoked consent. Id. at ¶¶ 30-32. Specifically, the Complaint cites West Virginia Code sections 46A-2-125(d) for calling repeatedly or at unusual times with the intent to annoy, abuse, or oppress; 46A-2-128(e) for communicating with Plaintiff after having written notice of attorney representation; and 46A-2-127 for failing to disclose the name of the business entity demanding money. Id. at ¶ 31. Count III alleges common law negligence, citing Defendant's failure to train and supervise its employees to prevent violations of the above listed statutes. Id. at ¶¶ 33-36. Lastly, Count IV asserts a claim for common law invasion of privacy, citing the expectation of privacy to be free from harassing phone calls. Id. at ¶¶ 37-42. Plaintiff seeks statutory damages, treble damages, general damages, attorneys' fees and costs, and injunctive relief. Defendant moved for summary judgment on all four claims.

         II. Legal Standard

         To obtain summary judgment, the moving party must show that no genuine issue as to any material fact remains and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Any inference, however, “must fall within the range of reasonable probability and not be so tenuous as to amount to speculation or conjecture.” JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citation omitted).

         Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252. “Mere speculation by the non-movant cannot create a genuine issue of material fact” to avoid summary judgment. JKC Holding, 264 F.3d at 465.

         III. Discussion

         Defendant's Motion argues against each of Plaintiff's claims, stating that Plaintiff cannot point to a genuine issue of material fact to preclude summary judgment. The Court will address each of Defendant's arguments in turn.

         a. Count I: TCPA Claim

         Plaintiff's first count challenges Defendant's tactics to collect the alleged debt as a violation of the TCPA. The TCPA states, in relevant part, that it is unlawful “to make any call (other than a call … made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to the called party's cell phone number. 47 U.S.C. § 227(b)(1)(A)(iii) (2015). It is further unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call … is exempted by rule or order by the Commission.” 47 U.S.C. § 227(b)(1)(B) (2015).

         In both of these sections, the phone calls are prohibited unless the consumer presents prior express consent. Courts have consistently held that a consumer gives prior express consent when the consumer provides the cell phone number to the creditor in an application or other communication. See, e.g., Levy v. Receivables Performance Mgmt., LLC, 972 F.Supp.2d 409, 419 (E.D.N.Y. 2013); Adamcik v. Credit Control Servs., Inc., 832 F.Supp.2d 744, 748 (W.D. Tex. 2011); see also In re Rules & Regulations Implementing the TCPA of 1991, 23 FCC Rcd. 559, 559 (Jan. 4, 2008) (“[W]e clarify that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent' of the called party.”). The Federal Communications Commission (FCC) has further clarified that debt collection calls fall under the exemption language of § 227(b)(1)(B). See In re Rules & Regulations Implementing the TCPA of 1991, 7 FCC Rcd. 8752, 8773 (Oct. 16, 1992) (“Whether the call is placed by or on behalf of the creditor, prerecorded debt collection calls would be exempt from the prohibitions on such calls to residences as: (1) calls from a party with whom the consumer has an established business relationship, and (2) commercial calls which do not adversely affect privacy rights and which do not transmit an unsolicited advertisement.”). Therefore, Plaintiff's claim in Count I must be based off the calls made to his cell phone number as expressed in § 227(b)(1)(A).

         Although this section does not provide an adequate mechanism to revoke the previously provided express consent, courts have recognized that consumers can revoke consent to be called on their cell phones. See, e.g., Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270 (3d Cir. 2013) (citing reasons to find consent revocable in TCPA, including common law concept that consent can be revoked and how silence in statute favors consumer). The parties do not dispute this notion, and the ...


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