September 23, 2019

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N.D. Ohio Court Dismisses TCPA Claim, Finding Insufficient Allegations Regard Consent

The Northern District of Ohio recently granted a motion to dismiss a Telephone Consumer Protection Act (TCPA) claim because the plaintiff failed to allege plausibly that he had not consented to receive the calls.  Whiteacre v. Nations Lending Corp., et al., No. 19-CV-809, 2019 WL 3477262 (N.D. Ohio Jul. 31, 2019).  The decision reinforces the requirement that to plead a TCPA claim, the plaintiff cannot rely on conclusory allegations that he never consented (or revoked any consent that was previously provided).  To state a plausible claim, the complaint must provide factual allegations, not mere labels or legal conclusions.

Plaintiff alleged that defendants Nations Lending Corporation and its alleged loan servicer, LoanCare, violated the TCPA when LoanCare called him through an automated voice messaging system.  Id. at *2.  The Plaintiff alleged that he “expressed his lack of consent to automated calls,” but the court noted that “Plaintiff does not describe how he ‘expressed his lack of consent,’ nor does he give any other details about the prerecorded calls.”  Id.at *3 (emphasis added).  Defendants moved to dismiss the TCPA claim, arguing that Plaintiff’s conclusory allegations failed as a matter of law.

The court observed that a creditor does not violate the TCPA when it calls a debtor who has provided his number in connection with an existing debt.  Id.at *3.  The court further noted that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called … absent instructions to the contrary” and that debtors “typically” give their cell phone number as part of a credit application.  Id.

Applying these principles, the court found that Plaintiff’s Complaint did not suggest that he had not provided this “routine” data to Defendants as part of the credit application.  Id.  Moreover, even if he had not, Plaintiff acknowledged that he voluntarily contacted LoanCare to request a forbearance in loan payment obligations.  The court found that it was “implausible to infer” that Plaintiff had not provided his phone number to Defendants in connection with either the loan application or the forbearance request.  Accordingly, the court found that Plaintiff’s “conclusory” allegations regarding his alleged lack of consent were insufficient and dismissed Plaintiff’s TCPA claim. Id.

The decision reinforces the principle that, in order to state a TCPA claim, a plaintiff must plausibly allege sufficient facts to show—not merely say—that he did not consent to receive the calls at issue.  Courts should—and will—thoroughly examine the factual basis for a TCPA claim before allowing the claim to proceed to discovery.

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About this Author

Bradley Andreozzi, Litigation Attorney, Complex, Drinker Biddle Law Firm, Chicago
Partner

Bradley J. Andreozzi represents clients in complex high-stakes civil litigation, including class action trials and appeals. Brad has represented clients in virtually every federal appellate court, including the Supreme Court, and in many trial courts throughout the country.

Brad defends clients in class actions under various federal and state consumer protection laws, including the Telephone Consumer Protection Act (TCPA), the Fair and Accurate Credit Transaction Act (FACTA) and many state false advertising statutes. His...

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Kevin H. DeMaio Drinker Biddle litigation lawyer
Associate

Kevin H. DeMaio assists clients at various stages of legal proceedings and trial preparation, including legal research and writing motions and other legal memoranda.

Upon graduation from law school and prior to joining the firm as an associate, Kevin served as a law clerk to the Hon. Anne E. Thompson of the United States District Court for the District of New Jersey from 2016-2017. While in law school, Kevin served as a judicial intern for the Hon. Cathy L. Waldor, also of the United States District Court for the District of New Jersey.

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