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Southwell v. Mortgage Investors Corp. of Ohio, Inc.

United States District Court, W.D. Washington, Seattle

August 14, 2014

JOESEPH SOUTHWELL, Plaintiff,
v.
MORTGAGE INVESTORS CORPORATION OF OHIO, INC., Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

MARSHA J. PECHMAN, Chief District Judge.

THIS MATTER comes before the Court on Defendant Mortgage Investor Corporation of Ohio's Motion for Summary Judgment. (Dkt. No. 137.) Having reviewed the Motion, Plaintiffs' Response (Dkt. No. 155), and Defendant's Reply (Dkt. No. 166), and all related papers, the Court hereby GRANTS the motion in part and DENIES it in part.

Background

Plaintiffs allege putative class representatives Southwell (Oregon) and Bland (Washington) received repeated telemarketing calls to their cellular phones from Defendant encouraging them to refinance their home loans-even after they advised Defendant they no longer wished to receive calls from Defendant. Plaintiffs contend these requests triggered "internal" Do Not Call provisions of the TCPA (in Southwell's and Bland's case) and Washington law (in Bland's case).

Furthermore, Southwell registered his number on the National Do Not Call list on January 29, 2013, but received two calls from MIC after that date on February 14, 2013 and March 4, 2013. (Dkt. No. 155 at 9; Dkt. No. 67 at Ex. G.)

Defendant moves for summary judgment both on class-wide grounds (addressed in this Order only insofar as they affect the individual claimants, since the Court previously denied Plaintiffs' Motion for Class Certification (see Dkt. No. 189)) and on individual grounds.

On all TCPA counts, Defendant argues it benefits from the TCPA's safe harbor provision for entities meeting certain enumerated standards. (Dkt. No. 137 at 20-26.) See 47 C.F.R. ยง 64.1200(c)(2)(i).

On Southwell's claims, Defendant argues his cellular phone number was used for business purposes (Southwell's farm) in addition to as his residential number, and that the TCPA regulations apply only to residential numbers. (Dkt. No. 137 at 28.) In addition, Defendant claims Southwell provided company-specific consent by providing his phone number to MIC on a loan application. (Dkt. No. 137 at 29; Dkt. No. 138-1 at 27.)

On Bland's TCPA National Do Not Call Registry claims, Defendant points out Bland has already conceded his number was not registered on the NDNCR at the relevant period. (Dkt. No. 137 at 29; Dkt. No. 56 at 5.) On Bland's internal Do Not Call claims (Washington and federal), Defendant argues he provided consent online through various websites including expedia.com and washingtonpost.com. (Dkt. No. 138-1 at 36-37.)

Discussion/Analysis

I. Legal Standard

Federal Rule 56(a) provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In determining whether a factual dispute requiring trial exists, the court must view the record in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All material facts alleged by the nonmoving party are assumed to be true, and all inferences must be drawn in that party's favor. Davis v. Team Elec. Co., 520 F.3d 1080, 1088 (9th Cir. 2008).

A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. There is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving ...


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