Devoid of Datum: TCPA Claim Dismissed For Failure to State a Claim in NDOH

Word of the Day: Datum.  Synonym: information.   As Applied:  It is hereby ordered that Plaintiff Whitacre’s TCPA claim is dismissed for failure to plead the datum necessary to state a claim, as explained in detail, below.

In an opinion published Wednesday, District Judge Bonita Pearson (in a short, but brilliantly efficient opinion) granted Defendants’ motion to dismiss Plaintiff’s TCPA claim.  Whitacre v. Nations Lending Corp., CASE NO. 5:19CV809, 2019 U.S. Dist. LEXIS 127759 (N.D. Oh. July 31, 2019). In Whitacre, the Plaintiff alleged 16 counts against Defendants Nations Lending Corporation and LoanCare, LLC, the mortgagor and servicer of plaintiff’s loan, respectively.  In Count 9, Plaintiff alleged that Defendants violated the TCPA.  Defendants subsequently moved the Court to dismiss for failure to state a claim.

Judge Pearson dismissed the TCPA claim for two related reasons.  First, bare recitals of the elements are insufficient as a matter of law.  Second, the Plaintiff, in providing his telephone number to Defendants in connection with his mortgage application and loan, granted consent to be called, unless such consent was otherwise revoked, which the Plaintiff was required to plead if applicable.

For those living in TCPA World, Rationale No. 1 should come as no surprise.  Time and time again, courts across the country reiterate the pleading requirement that TCPA claims should contain not only the elements, but also provide detail constituting sufficient factual allegations.  Whitacre never got the memo.  Instead, he only alleged, “127. Defendants have made repeated calls to Plaintiff’s cellular phone without his authorization using an automated machine dialer. 128. Those calls ring to Plaintiff’s cell phone without a live person on Defendants’ end.”  Id. at *7.  These bare recitals don’t pass the plausibility standard set forth in Twombly. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007).

Further, Whitacre alleged simply, “129. Plaintiff expressed his lack of consent to the automated calls, but Defendants refused to stop the automated calls.” Id.  Judge Pearson, citing the 6th Circuit, held, “Moreover, ‘persons who knowingly release their phone numbers have in effect given their invitation or permission to be called and the number which they have given, absent instructions to the contrary.’ ‘Debtors ‘typically give their cell phone number as part of a credit application . . . .’’ Plaintiff makes no suggestion in his Amended Complaint that he did not provide this routine datum to Defendants.”  Id. (internal citations omitted).

So, it is routine practice and plausible to infer that Plaintiff provided his cell phone number to the Defendants as part of his credit application, and then again when he contacted LoanCare to request a forbearance on the loan.  BUT, the Plaintiff failed to allege in his complaint that he never supplied the Defendant with his phone number, or plead details to demonstrate that he revoked his consent.  What is most interesting here, is that the Court seems to imply that it is the Plaintiff’s burden to allege lack of consent, as opposed to the Defendant alleging proper consent in their answer/affirmative defenses.  However you slice the pie, we learn that plaintiffs need to plead more information to avoid asking the court to improperly hypothesize in favor of their claims.

We try to avoid sounding like a broken-record here in TCPA World.  But, these cases are increasingly important and alarm bells should go off for all TCPA litigators with each 12(b)(6) granted.  Either include descriptive allegations in your pleadings properly explaining your subjective belief that a TCPA violation occurred, or face dismissal by 12(b)(6).   And now, if you bring a TCPA claim against your mortgagor or loan servicer, clearly explain that your express consent was revoked or never given in the first place.

In a related, and much less important observation, Judge Pearson addressed Plaintiff’s TCPA claim first, out of all 16 counts alleged.  Could this be a subconscious effort to demonstrate the importance of the TCPA in today’s jurisprudence?  Possibly.  Or, is it Friday afternoon and I just have a glass-half-full outlook with the weekend in sight?  Given my audience, let’s go with the former. 

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