District Court (Ohio) Finds TCPA’s Defendant’s Evidence on Prior Express Consent Inadequate, Especially When Combined with Plaintiff’s Testimony that Plaintiff Could Not Recall Calling Defendant

In Hill v. Homeward Residential, Inc., 2014 WL 4105580 (S.D.Ohio 2014), Judge Frost found that a Plaintiff’s claim that he did not remember calling Defendant, combined with Defendant’s lack of evidence of how it obtained Plaintiff’s number, was sufficient to overcome Defendant’s summary judgment on the basis that Plaintiff had given “prior express consent” to be called on his cellular telephone.

Defendant directs this Court to its records, which Defendant asserts indicate that Plaintiff advised Defendant that he had the cell phone number on January 3, 2008. In an affidavit supplied by an individual who previously worked for Defendant, the affiant states on behalf of Defendant that “[p]er Exhibit A–2, on Jan-uary 3, 2008, Mr. Hill called Homeward and advised that his telephone number had changed.” (Kearse Aff., ECF No. 19–1, at Page ID # 155 ¶ 8.) Two days after that call, Plaintiff’s cell phone number was added to his account. (Id. at ¶ 10.) These representations do not indicate that Plaintiff actually provided his new number; they indicate that Plaintiff indicated that his number had changed and that Defendant added the new number to its records. In her deposition, the af-fiant then testified that based on a call log, a customer service representative who spoke with Plaintiff “notated that the borrower changed his phone number.” (Kearse Dep., ECF No. 23–1, at Page ID # 252.) Again, the missing piece of the chain is whether Plaintiff conveyed his cell number or whether Defendant captured it. The obvious inference is that Plaintiff changed his number by providing Defendant with his new number, but another reasonable inference is that Plaintiff simply explained that he changed his number and Defendant had captured it. ¶ *4 Speculating that Defendant could have indeed obtained his number from caller identification, Plaintiff testified at his deposition that he could not remember calling Defendant and expressly informing them that his phone number had changed to the cell phone number, although he did state that at the time in question that number was his only personal number. (Hill Dep., ECF No. 18–1, at Page ID # 77–82.) Plaintiff’s apparent lack of recollection does not create a genuine issue of material fact; it does not dispute Defendant’s evidence, but only fails to confirm or contradict it. See Hudson v. Sharp Healthcare, No. 13–CV–1807–MMA (NLS), 2014 WL 2892290, at *4 (S.D.Cal. June 25, 2014) (granting summary judgment for defendant in a TCPA case in which the plaintiff offered only speculation as to how the defendant obtained her cell phone number). Thus, what proves problematic for Defendant (as discussed below) is not Plaintiff’s lack of recollection, but Defendant’s failure to establish specifically how it obtained the cell phone number in 2008. ¶ Plaintiff also testified that he eventually asked Defendant multiple times to cease calling his work number and that he recalled eventually giving express permission to call his cell number. (Hill Dep., ECF No. 18–1, at Page ID # 84–85.) Because Plaintiff testified that he could not remember ever asking Defendant not to call his cell phone (id. at Page ID # 84), any possible revocation of this express consent is not an issue. See, e.g., Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir.2013 (revocation of consent case). ¶ What the foregoing indicates is that Plaintiff provided Defendant with his cell phone number. This is important in light of guidance by the Federal Communications Commission (“FCC”) as to the meaning of “prior express consent.” . . . ¶ . . . The Court is not convinced that prior express consent to autodialing specifically was necessary, as Plaintiff contends. See Gray v. Morgan Drexen, Inc., No. 2:13–cv–83–FtM–29DNF, 2014 WL 2573227, at *3 (M.D.Fla. June 9, 2014) (explaining that the requisite consent targets the provision of a number at which a party could be reached and not consent to use an automatic telephone dialing system to effectuate that contact); Reed v. Morgan Drexen, Inc., No. 13–61440–CIV, 2014 WL 2616906, at *7 (S.D.Fla. Apr.4, 2014) (rejecting proposition that a party’s consent must be to receiving autodialed, as opposed to manual, calls). Rather, the Court recognizes that the prior express consent perhaps had to target the purpose of the cell phone calls as opposed to how those calls were placed. ¶ Leading the Court into this conclusion is Defendant’s argument that Plaintiff consented to contact via his cell phone when he provided his cell phone number on various forms he completed in 2011, 2012, and 2013 as part of attempts to obtain a loan modification. Several of these forms indeed contain consent language, but Plaintiff argues that such language is of no importance because Defendant never agreed to the modifications. Plaintiff also attempts to evade the effect of these forms by stressing that he never consented to robocalling, a specificity of means argument that this Court has already rejected. Plaintiff’s better argument in regard to these forms is that the consent provisions on the forms target mortgage assistance. To the extent that any cell phone calls to Plaintiff fell outside that narrow, specific purpose, this Court declines to recognize that they fell within Plaintiff’s express consent. See Kolinek v. Walgreen Co., No. 13 C 4806, 2014 WL 3056813, at *3–4 (N.D.Ill. July 7, 2014) (recognizing that 2014 FCC guidance limits reading prior FCC guidance on prior express consent). Kolinek explained that the apparent rule is thus that “the scope of a consumer’s consent depends on its context and the purpose for which it is given. Consent for one purpose does not equate to consent for all purposes .” Id. at *4. In other words, a person who knowingly provides his telephone number to a creditor in connection with a debt is agreeing to allow the creditor to contact him regarding his debt subject to context-specific qualification. ¶ The Court is thus left with two analytic paths. There is the “when and how” path related to Defendant obtaining Plaintiff’s cell phone number in 2008. Depending upon the answers to those issues, there is then the context-grounded forms path concerned with whether mortgage assistance encompasses loan de-linquency. If the 2008 events did not constitute prior express consent, the forms may be relevant given that their consent language could potentially encompass permission to call Plaintiff’s cell phone about delinquency from 2011 onward. The forms could also be irrelevant if a collection call does not fall within the scope of loan modification. ¶ Plaintiff argues that none of this matters because he did not provide express consent to call his cell phone at the time he initially incurred the underlying debt. Common sense and persuasive authority compel this Court to join those courts that have rejected such an argument, incorporating by reference herein their relevant reasoning. See, e.g., Sharp v. Allied Interstate Inc., No. 12–CV–068S, 2014 WL 1224656, at *2 (W.D.N.Y. Mar.25, 2014); Moore v. Firstsource Advantage, LLC, No. 07–CV–770, 2011 WL 4345703, at *10 (W.D.N.Y. Sept.15, 2011). ¶ Thus, addressing the extant issues, the Court concludes that, necessarily construing the evidence in the non-moving Plaintiff’s favor, Defendant has failed to demonstrate that Plaintiff knowingly released his cell phone number to Defendant in January 2008. There is no dispositive proof as to how Defendant obtained the cell phone number at that time. Although the evidence indicates that Plaintiff eventually ex-pressly asked Defendant (apparently in 2010) to use the cell number as the sole means of contacting him telephonically, there are calls that pre-date that request. And although there is evidence that although Plaintiff granted consent to Defendant via the loan modification forms to use his cell phone number, the language of the consent provisions restricts the use of that number to the topic of loan modification, which is distinct from the topic of debt collection. Plaintiff’s conditioned consent therefore placed a limitation on Defendant, which prevents Defendant from obtaining summary judgment on every call based on the forms. Some 2011 through 2013 calls may fall under the form consent, and some may not, although Plaintiff cannot remember if anyone called him regarding the loan modification. (Hill Dep., ECF No. 18–1, at Page ID # 116.) Accordingly, Defendant is not entitled to summary judgment.