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

The Northern District of Ohio recently granted a motion to dismiss a 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.

Download a PDF of “JASON A. WHITACRE, Plaintiff, v. NATIONS LENDING…

Bradley J. Andreozzi

About the Author: Bradley J. Andreozzi

Bradley Andreozzi defends clients in high-stakes civil litigation, with a particular focus on class action trials and appeals. Brad is among the relatively small group of lawyers who have tried class actions before juries. He also has won pretrial dismissals and defeated class certification in courts across the country and prevailed on appeal in defeating purported billion-dollar class claims. Brad has a reputation for innovative arguments that limit or defeat claims and for the strategic use of motion practice to position cases for an early cost-effective resolution or limit the size and exposure of the case should it move forward. In addition to his trial work, Brad has won appeals in virtually every federal appellate court, including the U.S. Supreme Court.

Kevin H. DeMaio

About the Author: Kevin H. DeMaio

Kevin DeMaio represents a wide range of clients in civil litigations. Kevin’s experience includes a variety of complex commercial and business disputes, including disputes involving contracts, commercial leases and consumer class actions.

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