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Cataldi v. Ocwen Loan Servicing, LLC

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

November 30, 2017

LINDA CATALDI, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [#16]

          DENISE PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COUR.

         I. INTRODUCTION

         Defendant filed a Motion to Dismiss Amended Complaint on July 31, 2017, Dkt. No. 16, and it has been fully briefed. The Court held a hearing on the Motion to Dismiss on October 11, 2017. For the reasons that follow, the Court grants Defendant's Motion to Dismiss.

         II.BACKGROUND

         This case stems from Defendant alleging calling Plaintiff more than 1, 347 times between March 30, 2011 and December 15, 2015 in an effort to collect a debt. Dkt. No. 12, Paragraphs 22, 27, 34. Plaintiff alleges that she revoked any consent to be called, as set forth in more detail below, even beyond December 15, 2015. Plaintiff alleges that the calls caused significant emotional harm and distress.

         Plaintiff's five-count Complaint alleges Defendant's conduct: (1) violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et. seq. (“TCPA”) (Counts I and II); (2) was negligent (Count III); and (3) violated the Michigan Occupational Code, Mich, Comp. Laws § 339.901 et seq. (“MOC”) (“Counts IV and V).

         III. APPLICABLE LAW & ANALYSIS

         A. Rule 12(b)(6)

         A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff's complaint. Accepting all factual allegations as true, the court will review the complaint in the light most favorable to the plaintiff. Eidson v. Tennessee Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007). As a general rule, to survive a motion to dismiss, the complaint must state sufficient “facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must demonstrate more than a sheer possibility that the defendant's conduct was unlawful. Id. at 556. Claims comprised of “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         B.TCPA Claim

         1. Consent/Revocation

         In order to state a TCPA claim for calls made to a cellular phone, a plaintiff must establish that: (1) a call was placed to a cell or wireless phone, (2) by the use of any automatic dialing system and/or leaving an artificial or pre-recorded message, and (3) without prior consent of the recipient plaintiff. 47 U.S.C. § 227(b)(1)(A). See also Pugliese v. Prof'l Recovery Serv., Inc., No. 09-12262, 2010 WL 2632562, at **6-7 (E.D. Mich. June 29, 2010); Strand v. Corinthian Colls., Inc., No. 13-1235, 2014 WL 1515494, at *2 (W.D. Mich. Apr. 17, 2014).

         Defendant argues that Plaintiff's TCPA claims fail because she failed to adequately plead revocation of consent. According to the FCC, if consent has been given, “the caller may reasonably rely on the valid consent previously given and take the consumer at his word that he wishes for the caller to contact him at the number he provided when the caller obtained the consent, ” until “clear revocation” of consent occurs. In re Rules & Regulations Implementing the TCP Act of 1991 et al., 30 F.C.C. Rcd 7961, 7992-93 (July 10, 2015). A consumer “may revoke consent in any manner that clearly expresses a desire not to receive further messages.” Id. at 7996.

         Plaintiff argues that revocation of consent is not an element of her prima facie case. Plaintiff correctly argues that prior express consent is an affirmative defense, and Defendant has the burden of proof of establishing the consent. In re Rules & Regulations Implementing the TCP Act of 1991, 23 F.C.C. Rcd. 559, 565 (Jan. 4, 2008); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, ...


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