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Keyes v. Ocwen Loan Servicing, LLC

United States District Court, E.D. Michigan, Southern Division

October 31, 2017

Darcel Keyes, Plaintiff,
v.
Ocwen Loan Servicing, LLC Defendant.

          STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [17], GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT [23], AND DENYING DEFENDANT'S MOTION TO STAY [9].

          GERSHWIN A. DRAIN United States District Judge

         I. Introduction

         Plaintiff Darcel Keyes filed an initial Complaint on May 10, 2017, [1] which she amended on July 15, 2017. Dkt. Nos. 1, 17. In her Complaint, Keyes asserts claims against the Defendant, Ocwen Loan Servicing, LLC, under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227; the common law negligence doctrine of Michigan law; and the Michigan Occupational Code, Michigan Compiled Laws § 339.900. The Defendant filed a Motion to Dismiss the Complaint on July 31, 2017.

         Dkt. No. 17. In her response to Ocwen's Motion to Dismiss, Keyes requested leave to amend the Complaint to add claims under the Michigan Collection Practices Act. Dkt. No. 23, p. 29-30 (Pg. ID 240-41).

         On June 30, 2017, Ocwen filed a Motion to Stay the Complaint pending a ruling in ACA Int'l v. Fed. Commc'ns Comm'n, No. 15-1211 (D.C. Cir.). Dkt. No. 9.

         Presently before the Court is the Defendant's Motion to Dismiss [17], the Plaintiff's Request for Leave to Amend the Complaint [23], and the Defendant's Motion to Stay the Complaint [9]. For the reasons that follow, the Court will DENY IN PART and GRANT IN PART Defendant's Motion to Dismiss [17], GRANT Plaintiff's Request for Leave to Amend the Complaint [23], and DENY Defendant's Motion to Stay [9].

         II. Background

         Darcel Keyes owes a mortgage-related debt to the Defendant, a licensed mortgage loan servicer. See Dkt. No. 17, p. 11 (Pg. ID 179); Dkt. No. 17-1, p. 2 (Pg. ID 196). At one point, Keyes granted Ocwen permission to call her on her cell phone regarding the collection of this debt. Dkt. No. 12, p. 2, 5 (Pg. ID 111, 114). Ocwen proceeded to call Keyes on her cell phone “at least 2, 583” times between April 2, 2011 and December 16, 2015. Id. at p. 6 (Pg. ID 115). On some days Ocwen called Keyes twenty-four times, and as early as 8:01 a.m. and as late as 8:49 p.m. Id. at p. 7 (Pg. ID 116).

         Keyes asserts that Ocwen violated the TCPA by calling her cell phone with equipment that could store or produce numbers to be called, using a random or sequential number generator. Id. at p. 5 (Pg. ID 114). Keyes believes the Defendant used such equipment because when Ocwen called her there would frequently be silence, followed by a click or beep-tone, and then the voice of a live Ocwen representative. Id. at p. 6 (Pg. ID 115). On other occasions when the Defendant called her, a voice-recorded message would play. Id.

         These calls frustrated and distressed Keyes, and also drained her cell phone battery. Id. at p. 9 (Pg. ID 118). She often refrained from answering her phone, afraid that she was receiving a call from the Defendant. Id. This reluctance to answer her phone negatively impacted her relationships with family members and caused her to miss many important communications. Id. at p. 8 (Pg. ID 117).

         Because of her frustration with Defendant's phone calls, on calls with the Defendant both before and after 2011, Keyes “stat[ed] that [she] no longer wished to be contacted by telephone.” Id. at p. 7 (Pg. ID 116). The calls did not stop, however. Id.

         III. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) allows a court to make an assessment as to whether a plaintiff has stated a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[E]ven though the complaint need not contain ‘detailed' factual allegations, its ‘factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.'” Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

         A court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff's factual allegations present plausible claims. Twombly, 550 U.S. at 570. To survive a Rule 12(b)(6) motion to dismiss, a plaintiff's pleading for relief must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Ass'n of Cleveland Fire Fighters, 502 F.3d at 548 (quoting Twombly, 550 U.S. at 553-54). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009). “Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (internal citations and quotations omitted). Instead, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal citations and quotations omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief.” Id. (internal citations and quotations omitted).

         IV. Discussion

         Plaintiff alleges claims based on violations of the TCPA, violations of negligence under Michigan law, and violations of the Michigan Occupational Code. Defendant asserts that the Plaintiff has failed to adequately allege each of these claims. The Court finds that some of Plaintiff's claims based on violations of the TCPA are barred by the statute of limitations, although others survive the motion to dismiss. The Court also concludes that the Plaintiff has failed to adequately allege claims based on negligence and the Michigan Occupational Code.

         Plaintiff requests leave to amend her claims related to the Michigan Occupational Code by adding claims regarding the Michigan Collection Practices Act. The Court will grant Plaintiff leave to amend.

         Finally, the Defendant requests that the Court stay this matter pending a ruling in ACA Int'l v. Fed. Commc'ns Comm'n, No. 15-1211 (D.C. Cir.). The Court will deny this request.

         A. Count I: Relief under the TCPA, 47 U.S.C. § 227 The Defendant argues that the Plaintiff fails to adequately allege a violation of the TCPA because many of her claims are barred by the statute of limitations, and she has not properly pled revocation of consent. Dkt. No. 17, p. 10 (Pg. ID 178). Keyes responds that she has plausibly alleged a violation of the TCPA because her claims were tolled by another action and she has adequately alleged the revocation of consent. Dkt. No. 12, p. 3, 7 (Pg. ID 112, 116). The Court finds that Plaintiff's TCPA claims arising before May 10, 2013 are barred by the statute of limitations. For any TCPA claims not barred by the statute of limitations, the Court concludes that the Plaintiff has adequately alleged revocation of consent.

         Keyes asserts that Ocwen violated the TCPA by calling her cell phone repeatedly regarding debt collection between April 2, 2011 and December 16, 2015, and that Ocwen did so through an automatic dialing system. Id. at p. 5, 7 (Pg. ID 113, 116). The TCPA provides that:

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, unless such call is made solely ...

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