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Embree v. Ocwen Loan Servicing LLC

United States District Court, E.D. Washington

November 22, 2017

SUSAN EMBREE, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER RE: MOTION TO DISMISS

          JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE

         I. Introduction

         BEFORE THE COURT is Defendant Ocwen Loan Servicing, LLC's (“Defendant” or “Ocwen”) Motion to Dismiss or in the Alternative to Stay the Case (ECF No. 23). Plaintiff filed a Response (ECF No. 27) and Defendant filed a Reply (ECF No. 28). The Motion was submitted without oral argument. This Order memorializes the court's ruling on the Motion.

         II. Factual Background

         All well-pleaded facts are accepted as true as follows for the purposes of the Motion to Dismiss.

         Between November 22, 2011, through December 16, 2015, Plaintiff Susan Embree received calls on her cellular phone from Defendant. (ECF No. 19 at ¶28). When she would answer the calls, there would often be silence, sometimes with a click or beep-tone before an Ocwen representative would pick up and start speaking. (ECF No. 19 at ¶30). Plaintiff contends she received calls at times from Defendant where the caller was a recorded voice or message and not a live representative. (ECF No. 19 at ¶31). In total, Plaintiff received at least 1, 505 calls from Defendant on her cell phone. (ECF No. 19 at ¶32).

         Plaintiff alleges she never gave Defendant her cell phone number on any loan application. (ECF No. 19 at ¶34). She also alleges she revoked any type of prior consent by stating she no longer wished to be contacted by phone. (ECF No. 19 at ¶35). Plaintiff claims after she stated she no longer wanted to be called, Defendant continued to contact Plaintiff. (ECF No. 19 at ¶37).

         Plaintiff alleges she has suffered frustration and distress because of the calls. (ECF No. 19 at ¶42). She also alleges the calls “disrupted Plaintiff's daily activities and the peaceful enjoyment of Plaintiff's personal and professional life, including the ability to use Plaintiff's phone.” (ECF No. 19 at ¶44).

         III. Discussion

         To survive a motion to dismiss, the pleading must allege sufficient facts, which, accepted as true, “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “the court accepts the facts alleged in the complaint as true.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9thCir. 1990). However, a claim may be dismissed “based on the lack of a cognizable legal theory.” (Id.).

         The Telephone Consumer Protection Act (“TCPA”) makes it “unlawful for any person within the United States ... 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 number assigned to ... cellular telephone service... 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); see also, Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1041-42 (9th Cir. 2017). An “automated telephone dialing system” is defined as “equipment which has the capacity- to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” 47 U.S.C. § 227(a)(1).

         The Federal Communications Commission (“FCC”) is charged with implementing the TCPA. See 47 U.S.C. § 227(b)(2); Van Patten, 847 F.3d at 1041. The Court of Appeals has exclusive jurisdiction to set aside “all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47.” 28 U.S.C. § 2342(1). Certain FCC orders are subject to exclusive review in the Court of Appeals for the District of Columbia. See 47 U.S.C. § 402(b).

         In 2015, the FCC issued a ruling providing interpretation of several provisions of the TCPA. In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 F.S.C.R. 7961 (July 10, 2015) (“2015 FCC Order”). The 2015 FCC Order has been challenged in a lawsuit currently pending before the Court of Appeals for the District of Columbia. See ACA International v. FCC, No. 15-1211 (D.C. Cir.). The issues presented in that appeal relate to: (1) whether the new definition of “automatic telephone dialing system” violates due process; (2) whether the 2015 FCC Order's treatment of “prior express consent”, including the provision for a right of revocation, violates due process; and (3) whether the 2015 FCC Order violates due process by disregarding Congress' findings in the TCPA. See ACA International, Petitioner ACA International's Statement of Issues, Dkt. #21 (August 12, 2015). Oral argument in the ACA International case was heard on October 19, 2016. (Id. at Dkt. #131) (October 19, 2016). No opinion by the D.C. Circuit has been issued to date.

         The parties assert the decision in ACA International will be binding on this court. However, the parties do not discuss 47 U.S.C. § 402(b) or identify which subsection the ACA International case falls into. See Campos v. F.C.C., 650 F.2d 890, 892-93 (7th Cir. 1981) (stating “it is well settled that Section 402(b) is to be narrowly construed and confined to the enumerated ...


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