In Martinez v. TD Bank USA, N.A., 2017 WL 2829601, at *5–6 (D.N.J., 2017), Judge Simandle granted summary judgment in a TCPA case on the basis that the Plaintiff’s fax of revocation of consent was not a reasonable method to revoke consent because Plaintiff sent the fax to the Bank, and not a fax number designed by the Bank or by the servicer to communicate with consumers.
The crux of Defendants’ argument that the faxing of the cease-and-desist letters to the two numbers on April 10 was not a reasonable method of revoking Plaintiff’s consent is that, in the first instance, Target was the servicer of Plaintiff’s credit card account and Target was not one of the parties faxed, and second, neither number that was faxed was one that was provided for consumers to use to communicate about their Target credit card accounts. [Docket Items 55 at 25-26; 57 at 16-17.] Furthermore, Defendants argue that they cannot be said to have had reason to know that Plaintiff revoked her consent on April 10, 2015 when they assert that they never received the revocation, their business records do not reveal having received the faxes, and Plaintiff cannot point to any evidence that they received the faxes beyond the numbers themselves and the fact that the faxes marked their transmission as “OK.” [Docket Items 55 at 25-26; 57 at 17-18.] Defendants argue: “Plaintiff never actually communicated revocation of consent to someone with responsibility for (or knowledge of) her Target REDcard.” [Docket Item 62 at 9.] They continue: “Although the declaration from Plaintiff’s bankruptcy attorney may serve as evidence that faxes were sent, it is not evidence that they were received by Defendants. Plaintiff’s attorney does not even provide any detail as to how he obtained the fax numbers or why he believed they were an appropriate method to revoke consent. Thus, the affidavit provides no basis to infer that the faxes were received by Defendants.” [Id. at 11 (emphasis in original).] The Court finds that Plaintiff has not produced sufficient evidence to allow a reasonable finder of fact to conclude that she revoked her consent on April 10, 2015, thus allowing her claim under the TCPA for the four calls placed from April 11, 2015 to April 15, 2015 to go forward. A reasonable finder of fact could not conclude that faxing a letter to a fax number only known to be associated with one party that is simply connected to the credit card account at issue, and has never serviced that account, cannot constitute a reasonable method of revoking consent to be contacted regarding that account. This is especially true where, as here, the consumer has previously effectively revoked consent in a different manner. The undisputed evidence is that Plaintiff’s attorney faxed appropriately clear cease-and-desist letters to two fax numbers associated with TD Bank, N.A., and TD Bank USA, N.A. Only the latter entity is a party to this action, and it has never acted as the servicer of Plaintiff’s Target credit card. Plaintiff’s only evidence that the indicated fax numbers received the fax is that the faxes were marked as their transmission having been “OK.” The Court finds that this does not create a genuine dispute of material fact as to whether TD Bank USA, N.A. (a defendant in this action) knew or had reason to know of this fax, where TD Bank USA, N.A.’s records show that it did not receive the facts and Plaintiff has put forth no evidence to suggest why faxing the letter to that specific fax number would have given TD Bank USA, N.A. reason to know that she had revoked her consent. Further undisputed evidence shows that Plaintiff revoked her consent to be called on a different telephone number on a prior date using a different method, and that Defendants honored that revocation. Plaintiff has not put forth evidence that would tend to show why she believed that faxing her letter to the numbers her attorney faxed on April 10 would have or should have effectively communicated her revocation to Defendants as she previously had, herself, done.
The District Court also found that the class action was a “fail-safe” class and struck the class allegations.
The Court agrees with Defendants that Plaintiff’s proposed class is a fail-safe class. No amount of additional class discovery will alter that conclusion: her proposed class both is defined in terms of Defendants’ liability to the proposed class members, and would require extensive fact-finding (as Plaintiff’s own case has done) to determine whether the putative class members failed to provide express prior consent to be called. Her class allegations are stricken pursuant to Fed. R. Civ. P. 23(d)(1)(D). Because the Court has granted summary judgment to Defendants on Plaintiff’s TCPA claims, the Court will not grant Plaintiff leave to amend the class allegations with regard to claims under the TCPA, because Plaintiff will not fall into the revised class definition. See Olney, 2013 WL 5476813, at *11-*12. Further, because Plaintiff’s only remaining claim survives under California’s RFDCPA, any class definition would be limited to residents of California3 who received such calls. Finally, as noted, Plaintiff’s membership in the class as presently defined is a nullity. With all this constraints, it is doubtful but not impossible that Plaintiff could serve as class representative of a very different class. Any such effort to revive this class must be made by motion to amend before expiration of the deadline for amended pleadings herein under Rule 16(a)(3)(A), Fed R. Civ. P, and L. Civ. R. 16.1(b)(1)(A). Accordingly, Defendants’ motion to strike Plaintiff’s class allegations will be granted.
Finally, because the Plaintiff was a California resident and pleaded a Rosenthal Act claim, the Court found a triable issue of material fact as to whether there was actionable harassment.
After careful consideration, the Court is persuaded that the relevant case law supports a finding that Plaintiff, in this case, has raised a genuine dispute of material fact as to whether the volume and pattern of calls in this case could constitute actionable harassment under the RFDCPA. Courts have found a genuine issue of material fact in a case where the plaintiff received ninety-nine calls over a one-and-a-half year period, frequently received between two and five calls a day, and answered at least some of those calls. Haysbert, 2016 WL 890297, at *13. The volume of calls here is greater (165 calls over an eight-month period) and the pattern is similar, with Defendants here calling multiple times per day on several occasions (21 multi-call days of two or three calls each day)—an allegation which was not present in cases where courts granted summary judgment. See, e.g., Shand-Pistilli, 2011 WL 2415142, at *5; Arteaga, 733 F. Supp. 2d at 1229. The Court will therefore follow the approach of the courts in Green and Akalwadi and find that, under these circumstances, the “reasonableness of this volume of calls and their pattern is a question of fact for the jury [,]” Green, 2013 WL 6000967, at *3 (quoting Akalwadi, 336 F. Supp. 2d at 506), because the evidence presented could “provide an adequate basis for the finder of fact to find a violation” of the RFDCPA, Joseph, 281 F. Supp. 2d at 1165. The existence of the recipient’s prior consent to receive calls regarding her account is a factor for consideration in evaluating the reasonableness of the pattern of calls under the RFDCPA. For that reason, the Court will deny Defendants’ motion for summary judgment as to Plaintiff’s RFDCPA claim.