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Harris v. Navient Solutions, LLC

United States District Court, D. Connecticut

August 7, 2017

JENNIFER HARRIS, Plaintiff,
v.
NAVIENT SOLUTIONS, LLC f/k/a SALLIE MAE, Defendant.

          RULING AND ORDER

          Robert N. Chatigny United States District Judge

         Plaintiff Jennifer Harris brings this action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227, claiming that defendant Navient Solutions, LLC (“Navient”), repeatedly called her using an automatic telephone dialing system (“ATDS”) after she revoked her consent to receive such calls. Navient seeks summary judgment on the ground that plaintiff could not unilaterally revoke her consent to receive ATDS calls because she granted consent in a contract. I agree and therefore grant the motion.

         I. Background

         Navient is the servicer for several student loans plaintiff obtained between 2006 and 2009. In promissory notes she signed to secure the loans, she provided her telephone number and agreed to notify the defendant if her number changed. She also agreed to the following clauses that are particularly relevant here:

This Note may be modified only if you put the modification in writing and the modification is agreed to by any borrower or cosigner. . .
I understand that you may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact me in connection with this loan or loan application. You may contact me at any telephone number I provide in this application or I provide in the future, even if that number is a cellular telephone number.[1]

         Between 2012 and 2014, Navient frequently used ATDS to contact plaintiff's cell phone. Plaintiff has testified that, sometime in December 2012, she began telling Navient's representatives to “stop calling [her], ” and she told them to stop calling her “many, many times” thereafter. Despite these requests, she continued to receive ATDS calls until August 8, 2014, when her attorney sent a letter to Navient stating that plaintiff had revoked authorization to call her cell phone.

         II. Legal Standard

         Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To avoid summary judgment, the non-moving party must point to evidence that would permit a jury to return a verdict in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether the moving party is entitled to judgment as a matter of law, a court must review all the evidence in the record in the light most favorable to the opposing party. Id. at 255.

         III. Discussion

         The TCPA prohibits making “any call using an [ATDS] or prerecorded voice to any telephone number assigned to a . . . cellular telephone” for non-emergency purposes. 47 U.S.C. § 227(b)(1)(A)(iii). The caller is strictly liable for statutory damages unless it proves that the plaintiff gave “prior express consent” to ATDS calls. Id. at §§ 227(b)(3), (b)(1)(A); see Levy v. Receivables Performance Mgmt., LLC, 972 F.Supp.2d 409, 417 (E.D.N.Y. 2013) (stating that prior express consent is an affirmative defense under the TCPA).

         The Second Circuit has held that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.” See Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017), as amended (Aug. 21, 2017). It is undisputed that plaintiff consented to receiving ATDS calls when she signed her promissory notes. This fact is dispositive under Reyes.

         Plaintiff argues that extrinsic evidence regarding the meaning of the consent clause should be considered because the clause is ambiguous. In general, “[w]hen only one interpretation of a contract is possible, the court need not look outside the four corners of the contract.” Parisi v. Parisi, 315 Conn. 370, 383, 107 A.3d 920, 929 (2015) (quotation omitted). “Extrinsic evidence is always admissible, however, to explain an ambiguity appearing in the instrument.” Id.

         Plaintiff claims that the consent clause is ambiguous because it can be interpreted to provide only “initial” consent to receive ATDS calls. I disagree. The clause includes no temporal limitations and contemplates ATDS calls in the future: “You may contact me at any ...


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