Kloth-Zanard v. Bank of America

          RULING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, U.S.D.J.

         Plaintiff 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. 132.^[1] 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.

         I. Facts

         The following facts are taken from the Defendants' Local Rule 56 Statements and the underlying record. Unless otherwise indicated, all facts are undisputed.^[2]

         A. Home Loan and Mortgage

         On May 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.

         Ms. 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.^[3] She also alleges that the Bank of New York Mellon (“BONY”) was assigned the mortgage by MERS in 2015. Id. at ¶ 83.^[4] 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.

         SLS 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.

         B. Phone Calls

         i. BANA

         As 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 phone calls.

         Ms. 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, BANA-000814, BANA-000986).

         BANA 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.^[5] 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.

         BANA 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 from BANA:

A. Because it would ring and then say - occasionally and then say please hold on for an operator or please hold on for a second.

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 phone.

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 happen subsequently?

A. Sometimes.

Q. Sometimes?

A. Most of the time it was a live person calling us.

ECF No. 204-2 at 32; ECF No. 202-2 at ¶ 21.

         BANA 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 interrogatory:

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.

         Finally, 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.

         ii. SLS

         On 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 71.

         SLS 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.

         As 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 calls:

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 loan modifications.

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.

         C. Inspections of Property

         The Mortgage states that the “[1]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.

         II. Legal Standard

         The 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 (1986).

         If a 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.

         In 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 omitted).

         Where 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).

         III. Discussion

         A. Telephone Consumer Protection Act (“TCPA”)

         The 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).

         If the 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.”).

         1. BANA

         BANA 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.

         a. Artificial or Prerecorded Voice/ATDS

         First, 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 ...