United States District Court, D. Connecticut
JOAN T. KLOTH-ZANARD, Plaintiff,
BANK OF AMERICA and SPECIALIZED LOAN SERVICING Defendants.
RULING ON DEFENDANTS' MOTIONS FOR SUMMARY
MICHAEL P. SHEA, U.S.D.J.
Joan T. Kloth-Zanard (“Ms. Kloth-Zanard”) alleges
violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227 et seq. (“TCPA”), and the
Connecticut Creditor's Collection Practices Act, Conn.
Gen. Stat. § 36a-648 et seq. (“CCPA”),
against Defendants Bank of America, N.A. (“BANA”)
and Specialized Loan Servicing, LLC (“SLS”); she
further alleges violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq.
(“FDCPA”) as to SLS only. ECF No.
BANA and SLS filed motions for summary judgment. ECF Nos. 202
& 204. For the reasons set forth below, the motions for
summary judgment are GRANTED.
following facts are taken from the Defendants' Local Rule
56 Statements and the underlying record. Unless otherwise
indicated, all facts are undisputed.
Loan and Mortgage
26, 2006, Ms. Kloth-Zanard executed a promissory note
(“Note”) in favor of Countrywide Home Loans, Inc.
(“Countrywide”) in exchange for a home mortgage
loan in the amount of $313, 300 related to her property. ECF
No. 202-2 at ¶ 1; ECF No. 204-4 at ¶ 1. On the same
day, she executed an Open-End Mortgage Deed
(“Mortgage”) on the property in favor of Mortgage
Electronic Registration Systems, Inc. (“MERS”) as
nominee for Countrywide and its successors and assigns. ECF
No. 202-2 at ¶ 2. The Mortgage was recorded on June 13,
2006. ECF No. 202-2 at ¶ 3.
Kloth-Zanard executed a Loan Modification Agreement on
November 7, 2008, that adjusted the terms of the Note for a
five-year period. ECF No. 202-2 at ¶ 4; ECF No. 202-6 at
2-3. In her complaint, Ms. Kloth-Zanard alleges that BANA
took over her mortgage when it purchased Countrywide in 2008.
ECF No. 132 at ¶¶ 30, 35, 40-41, 43. She also alleges
that the Bank of New York Mellon (“BONY”) was
assigned the mortgage by MERS in 2015. Id. at ¶
SLS began servicing the mortgage loan on behalf of BONY on
April 16, 2015. ECF No. 204-4 at ¶¶ 2-4; ECF No.
204-3 at 7-8. Before that date, BANA had been servicing the
loan. ECF No. 204-3 at 7-8. SLS has never held the Mortgage
or Note. ECF No. 204-4 at ¶ 3.
informed Ms. Kloth-Zanard that it was the new servicer of her
loan by letter dated April 28, 2015. ECF No. 204-4 at ¶
5; ECF No. 204-3 at 7-8. On April 30, 2015, SLS sent her
another letter stating the amount of the debt and the name of
the creditor, and that she had thirty days to dispute the
debt. ECF No. 204-4 at ¶ 7; ECF No. 204-3 at 10-11. On
May 6, 2015, Ms. Kloth-Zanard sent SLS a letter requesting
information on “the [i]nvestors of my loan.” ECF
No. 204-3 at 13; ECF No. 204-4 at ¶ 9. SLS sent her a
response letter on May 14, 2015 with the name of the original
and current creditors. ECF No. 204-4 at ¶ 10; ECF No.
204-3 at 15-16. On June 16 and June 18, 2015, Ms.
Kloth-Zanard sent SLS letters disputing the debt. ECF No.
204-4 at ¶ 11; ECF No. 204-3 at 18, 20. On June 30,
2015, SLS sent Ms. Kloth-Zanard a letter validating the debt.
ECF No. 204-4 at ¶ 12; ECF No. 204-3 at 22.
detailed below, Ms. Kloth-Zanard identified her residence
telephone No. (“residence number”), her facsimile
machine telephone No. (“fax number”), and her
mobile telephone No. (“cellphone number”) in
applications and letters she submitted to BANA as well as in
Kloth-Zanard submitted three requests for mortgage assistance
on September 25, 2013, November 15, 2013, and June 16, 2014,
respectively, and included her residence and cell phone No.
in each of the three applications. ECF No. 202-2 at
¶¶ 11-12, 17; ECF No. 202-10; ECF No. 202-11; ECF
No. 202-14. The first of these applications was sent from her
fax No. and had that No. printed on each page. ECF No. 202-2
at ¶ 11; ECF No. 202-10. In 2013, Ms. Kloth-Zanard
submitted four letters related to requesting a loan
modification based on economic hardship; she included her
residence telephone No. on each one. ECF No. 202-2 at
¶¶ 9-10, 13-14; ECF No. 202-8; ECF No. 202-9; ECF
No. 202-12; ECF No. 202-13. She submitted an additional two
letters that included her cell phone No. one disagreeing with
the valuation of her property, ECF No. 202-2 at ¶ 18;
ECF No. 202-15, and the other setting forth various disputes
with BANA, ECF No. 202-2 at ¶ 20; ECF No. 202-16. Ms.
Kloth-Zanard also requested call-backs on several occasions.
On October 9, 2013, May 21, 2014, and April 17, 2015, BANA
called her on her cell phone No. and she requested a call
back at a later time. ECF No. 202-2 at ¶¶ 16, 19;
ECF No. 202-7 at 7, 312, 484 (Exhibit A-4 at BANA-000509,
maintains records of actions taken on customer accounts and
telephone calls made to and received from customers. ECF No.
202-2 at ¶ 6. BANA states that its records show that it
placed 54 telephone calls to Ms. Kloth-Zanard between January
1, 2014 and August 7, 2015. Id. However, three of
BANA's records for this time period include the following
notation: “Varolii Automated Outbound Call.” See
ECF No. 202-7 at 377 (record from February 10, 2014);
Id. at 382 (record from February 3, 2014);
Id. at 389 (record from January 23, 2014). These are
not included in BANA's list of 54 calls. BANA's
records demonstrate that most of the calls to Ms.
Kloth-Zanard involved her requests for a loan modification.
ECF No. 202-2 at ¶ 7. During her deposition, Ms.
Kloth-Zanard said that calls about loan modification were not
part of the case because “[t]hat would be unfair to you
guys.” ECF No. 203-1 at 16-17.
states that its records confirm that no calls to any of Ms.
Kloth-Zanard's numbers used an artificial or prerecorded
voice. ECF No. 202-2 at ¶ 22. Ms. Kloth-Zanard's
deposition included the following conversation about calls
A. Because it would ring and then say - occasionally and then
say please hold on for an operator or please hold on for a
Q. So, in other words, excuse me, you're saying that it
wasn't a live individual on the phone -
A. No, they got on the phone. A live individual got on the
Q. No, please let me finish the question. What I'm saying
is: Initially when these calls came in, you're saying
there was not a live individual on the phone, that would
A. Most of the time it was a live person calling us.
ECF No. 204-2 at 32; ECF No. 202-2 at ¶ 21.
states that it did not use an automatic telephone dialing
system (as that statutory term has been interpreted by the
courts) and included the following explanation in its
supplemental responses to Ms. Kloth-Zanard's
BANA states that it uses an integrated computer and telephone
system including the Aspect UIP calling platform. The system
has the capability to create lists of customer phone No. to
be dialed manually by a human customer service representative
and also to create lists of customer phone No. that will be
dialed automatically without being manually input by a
customer service representative. Each day, the BANA system
can identify customer accounts to be contacted for
collections, loan modification contacts, and/or other
reasons. Customer accounts and their associated phone No. can
be excluded from calling for various reasons, including, but
not limited to, legal restrictions by State, customers
protected by the bankruptcy automatic stay, and customers who
have requested not to be called on a specific phone number.
Customer cell phone No. without prior consent to call from
the customer are withheld from automatic dialing and are put
on unique calling lists where call attempts are made manually
using BANA's calling platform, Aspect UIP.
ECF No. 202-2 at ¶ 23; ECF No. 203-2 at ¶ 9.
in response to Ms. Kloth-Zanard's interrogatory asking
BANA to “provide the name of all business who provided
services to the defendants to call the plaintiff, ”
BANA stated that “no business was identified.”
ECF No. 202-2 at ¶ 29; ECF No. 203-2 at 4.
April 29 and 30, 2015, SLS attempted to make two telephone
calls to Ms. Kloth-Zanard, but was unable to reach her
because SLS inadvertently called the wrong number. ECF No.
204-4 at ¶ 13; ECF No. 204-2 at 71; ECF No. 204-3 at 3
¶ 16. Between May 6, 2015, and August 3, 2015, Ms.
Kloth-Zanard called SLS directly nineteen times, using two
different telephone No. (203-770-0318 and 203-267-7801). ECF
No. 204-4 at ¶¶ 14-15; ECF No. 204-2 at 71; ECF No.
204-3 at 3 ¶ 16. Neither SLS not any other person or
entity on SLS's behalf made any telephone calls to Ms.
Kloth-Zanard over that period of time. ECF No. 204-4 at
¶ 16; ECF No. 204-2 at 71. The majority of these
incoming calls related to her request for a loan
modification. ECF No. 204-4 at ¶ 17; ECF No. 204-2 at
made six outgoing telephone calls to Ms. Kloth-Zanard on
August 4 and 6, 2015. ECF No. 204-4 at ¶ 18; ECF No.
204-2 at 71; ECF No. 204-3 at 3 ¶ 16. SLS called her at
either 203-770-0318 or 203-267-7801 for each of these calls.
ECF No. 204-4 at ¶ 19; ECF No. 204-2 at 71. These
outgoing telephone calls all related to Ms.
Kloth-Zanard's request for a loan modification and were
in direct response to her prior incoming telephone calls to
SLS. ECF No. 204-4 at ¶ 20; ECF No. 204-2 at 71.
noted, during her deposition, Ms. Kloth-Zanard said that she
did not understand calls about loan modification to be part
of the case. ECF No. 204-4 at ¶¶ 25-26. Her
deposition included the following statements concerning such
Q. Right, that's what I'm saying. The representatives
which you spoke to about loan modification applications?
A. I've never complained about the phone calls with the
ECF No. 204-2 at 28.
Q. All right. And we've discussed this, and I think you
testified and you've represented in court that calls
relating to loan modifications have no bearing in this case?
A. Right. Not as far as the TILA - that's - I cannot -
that's not fair.
Q. When you say “the TILA, ” you mean TCPA?
A. Yeah, whatever that is. . .
ECF No. 204-2 at 49.
Inspections of Property
Mortgage states that the “ender or its agent may
make reasonable entries upon and inspections of the
Property.” ECF No. 202-5 at 6; ECF No. 202-2 at ¶
27; ECF No. 204-4 at ¶ 30. BANA's records show that
its agent, Safeguard Properties, inspected the property on
May 14, 2014, January 20, 2015, February 28, 2015, and March
30, 2015. ECF No. 202-2 at ¶ 28. SLS, through its agent,
conducted three exterior inspections of the property in May,
June, and July 2015 to determine the condition of the
property, ECF No. 204-4 at ¶¶ 31-33; ECF No. 204-3
at 3-4 ¶¶ 19-20. During these inspections,
individuals left “door hangers” on the property.
ECF No. 204-2 at 25, 30-31, 42.
party moving for summary judgment bears the burden of
demonstrating “that there is no genuine dispute as to
any material fact and [that it] is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A fact is
“material” if it “might affect the outcome
of the suit under the governing law, ” and a dispute is
“genuine” if “a reasonable jury could
return a verdict for the nonmoving party” based on
it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
motion for summary judgment is supported by documentary
evidence and sworn affidavits and “demonstrates the
absence of a genuine issue of material fact, ” the
nonmoving party must do more than assert the existence of
some unspecified disputed material facts or “rely on
conclusory allegations or unsubstantiated speculation.”
Robinson v. Concentra Health Servs., Inc., 781 F.3d
42, 44 (2d Cir. 2015) (citation omitted). “[T]he burden
on the moving party may be discharged by showing-that is,
pointing out to the district court-that there is an absence
of evidence to support the nonmoving party's case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)
(internal quotation marks omitted). The party opposing the
motion for summary judgment “must come forward with
specific evidence demonstrating the existence of a genuine
dispute of material fact.” Robinson, 781 F.3d at 44.
reviewing the record, the court “must construe the
evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.”
Gary Friedrich Enterprises, LLC v. Marvel Characters,
Inc., 716 F.3d 302, 312 (2d Cir. 2013). The court may
not “make credibility determinations or weigh the
evidence . . . [because] [c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Proctor v. LeClaire, 846 F.3d 597, 608
(2d Cir. 2017) (internal quotation marks and citations
one party is proceeding pro se, the court reads the pro se
party's papers liberally and interprets them “to
raise the strongest arguments that they suggest.”
Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir.
2015) (internal quotation marks and citation omitted).
Nonetheless, “unsupported allegations do not create a
material issue of fact” and cannot overcome a properly
supported motion for summary judgment. Weinstock v.
Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Telephone Consumer Protection Act (“TCPA”)
TCPA, in relevant part, makes it “unlawful . . . to
make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial
or prerecorded voice . . . to any telephone No. assigned to a
. . . cellular telephone service . . . or any service for
which the called party is charged for the call, unless such
call is made solely to collect a debt owed to or guaranteed
by the United States.” 47 U.S.C. §
227(b)(1)(A)(iii). “Thus, to prove that a defendant
violated the TCPA in a case involving a cell phone, a
plaintiff must establish that (1) the defendant called his or
her cell phone, and (2) the defendant did so using an
[automatic telephone dialing system] or an artificial or
prerecorded voice.” Levy v. Receivables Performance
Mgt., LLC, 972 F.Supp.2d 409, 417 (E.D.N.Y. 2013).
Similar prohibitions exist for calls to residential phone
numbers, as the TCPA also makes it unlawful “to
initiate any telephone call to any residential telephone line
using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party.”
47 U.S.C. § 227(b)(1)(B).
plaintiff meets her burden, the defendant may assert the
affirmative defense that it received prior express consent.
Latner v. Mt. Sinai Health System, Inc, 879 F.3d 52,
54 (2d Cir. 2018) (“Prior express consent is an
affirmative defense to liability under the TCPA.”);
Levy v. Receivables Performance Mgt., LLC, 972
F.Supp.2d 409, 417 (E.D.N.Y. 2013) (“Prior express
consent is . . . an affirmative defense to an alleged TCPA
violation, for which the defendant bears the burden of
proof.”) (internal quotation marks omitted); In the
Matter of Rules and Regulations Implementing the Tel.
Consumer Protec. Act of 1991, 23 F.C.C. Rcd. 559, 565
(F.C.C. 2008) (“[W]e conclude that the creditor should
be responsible for demonstrating that the consumer provided
prior express consent.”).
argues that it is entitled to summary judgment because (1)
Ms. Kloth-Zanard gave express consent to call, ECF No. 202-1
at 5-8, (2) BANA did not use an artificial or prerecorded
voice, Id. at 9-11, and (3) BANA did not use an
automatic telephone dialing system (“ATDS”),
Id. at 11-15. Because consent is an affirmative
defense, I first address whether there is a genuine dispute
of material fact as to BANA's use of an artificial or
prerecorded voice or an ATDS.
Artificial or Prerecorded Voice/ATDS
BANA argues that Ms. Kloth-Zanard “confirmed in her
deposition, when referring generally to all of the calls from
BANA, that ‘[a] live individual got on the
phone.'” ECF No. 202-1 at 10. The broader context
of this statement is as follows:
Q. Okay. Why it is that you believe that the purported 104
phone calls were made with an automated dialing system?
A. Because it would ring and then say - occasionally and then
say please hold on for an operator or please ...