Burr & Forman

09.19.2019   |   ATDS, Blog Articles, Consumer Finance Litigation, Eleventh Circuit, TCPA

Middle District of Florida Holds Aspect Dialer is Not an ATDS under the TCPA

In addressing cross motions for summary judgment in BONNIE BROWN & JAMES BROWN, Plaintiffs, v. OCWEN LOAN SERVICING LLC, Defendant., 8:18-CV-136-T-60AEP, 2019 WL 4221718 (M.D. Fla. Sept. 5, 2019) (“Browns v. Ocwen”) on 9/5/2019, the United States District Court for the Middle District of Florida (“District Court”) determined that the Aspect dialer used by Defendant, Ocwen Loan Servicing LLC (“Ocwen”), was not an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C.A. § 227 (“TCPA”).  Plaintiff Bonnie Brown (“Bonnie”) brought claims under the Florida Consumer Collection Protection Practices Act, §559.72(7), Florida Statutes (“FCCPA”), and the TCPA, while Plaintiff James Brown (“James”) brought claims only under the TCPA.  Plaintiffs sought summary judgment on Bonnie’s FCCPA claim and Bonnie’s TCPA claim, while Ocwen moved for summary judgment on all of the claims.

The District Court ultimately denied the parties’ motions for summary judgment as to the FCCPA claims and in part as to the TCPA claims. The District Court denied the motions for summary judgment as to the FCCPA claims because the question of whether Ocwen’s calls to the Browns were harassing under the FCCPA was a question for the jury and there were disputed issues of fact as to the revocation of the Browns’ consent to be called.  For the TCPA claims, the District Court denied summary judgment as to Ocwen’s alleged use of a prerecorded or artificial voice and whether Ocwen had consent to call the Browns’ number at issue, preserving that as a question for the jury.  However, the District Court granted Ocwen summary judgment based on its alleged use of an ATDS, the Aspect dialer, under the TCPA.

As such, this article will discuss the TCPA claims at issue in the cross motions for summary judgment.  As the District Court explained regarding the TCPA:

Section 227(b)(1)(A)(iii) prohibits “using any automatic telephone dialing system or an artificial or prerecorded voice” to call a cellphone number without “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). For each violation of the TCPA, a party may recover the greater of her actual monetary losses or $500 in damages. Id. § 227(b)(3)(B). Additionally, the Court has the discretion to “increase the amount of the award to an amount equal to not more than 3 times the amount available” if it finds the defendant’s violation of the TCPA was willful or knowing. Id. § 227(b)(3)(C).

Under the TCPA, an ATDS is defined as “equipment which has the capacity — (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).

The facts of Browns v. Ocwen are somewhat complicated and are described in more detail by the District Court.  Bonnie obtained a mortgage for her home in 1998 before she married James in 2011, whom she authorized to speak to Ocwen regarding the mortgage despite not being a borrower. Ocwen became the servicer for that mortgage in 2005, and it had a policy of storing borrowers’ data in a “RealServicing Loan Platform” that would create a call list for borrowers who were in default or eligible for loan modifications.  That call list would be transferred to a software created by Aspect Software, Inc. called “Advanced List Management” (“ALM”).  As the District Court explained regarding the dialing system:

Using ALM, Ocwen representatives configure how calls are to be placed to the numbers on the call list. Next, Ocwen transfers that call list with its dialing rules from ALM to another software created by Aspect, “Unified IP” (UIP). Then, UIP begins dialing Ocwen’s borrowers using the call list. Before any call is connected to an Ocwen representative, the call is placed in the “disposition queue.” Calls that are not connected with an Ocwen representative right away are placed into the “wait queue.” Although ALM and UIP are separate software, together they are referred to as the “Aspect dialer.”

(internal citations omitted).

In 2013, Bonnie defaulted on her mortgage and subsequently submitted at least five loan modification applications, where she listed her cell phone number at issue and consented to be contacted by Ocwen.  Before 2016, Bonnie was the user of the cell phone number at issue, after which James became the primary user.  Between 4/22/2016 and 8/29/2016, Ocwen used the Aspect dialer to place 416 calls to the Browns’ cell phone at issue, and 192 phone calls after 5/20/2016, including almost always three calls per day per Ocwen’s policies.  The Browns alleged a series of revocations of consent and discussions about harassment in calls with Ocwen, which responded that the Browns failed to follow certain authentication procedures.  A foreclosure action occurred and the Browns’ property was sold at auction on 8/25/2016.  Ocwen’s calls stopped shortly thereafter.

In discussing the TCPA claims, the District Court first addressed whether Ocwen placed calls to the Browns using an ATDS or a prerecorded or artificial voice. Ocwen contended that summary judgment was warranted because the Aspect dialer is not an ATDS under the TCPA, and cited ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) to demonstrate that “a dialing system must have the present ability to generate random or sequential numbers to meet the definition of an ATDS.”  In support of its argument, Ocwen relied on Gonzalez v. Ocwen Loan Servicing, LLC, 5:18-CV-340-OC-30PRL, 2018 WL 4217065 (M.D. Fla. Sept. 5, 2018) (“Gonzalez”), which held that “the definition of an ATDS would not include a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them; but it would include a predictive dialer that has that capacity” and explained that “a device [has] the capacity to generate random or sequential telephone numbers only if the device has the ‘present ability’ to do so.”  According to Ocwen, the Aspect dialer is not an ATDS because it “is not capable of generating and dialing random or sequential numbers.”

The District Court agreed with Ocwen’s ATDS argument, stating that “[h]aving independently considered the issue, the District Court agrees with Gonzalez and concludes Ocwen’s Aspect dialer is not an ATDS under the TCPA.”  However, the District Court found that the Browns’ remaining TCPA claims, that Ocwen used a prerecorded or artificial voice and lacked prior express consent for the calls, were not precluded by this ruling.  The parties had a factual dispute as to how many calls were placed by Ocwen using a prerecorded or artificial voice, which the District Court found precluded summary judgment for either side.  Regarding the issue of whether the calls at issue were “made with the prior express consent of the called party” by Ocwen so as to prevent liability under the TCPA, the District Court found that summary judgment was precluded because “Ocwen failed to carry its burden of establishing prior consent because there are still disputed issues regarding the existence, scope, and revocation of whatever consent Ocwen had to call the [Browns’ number at issue].”

As for many TCPA and FCCPA claims where the nature and volume of a defendant’s communications with the plaintiff(s) will need to be addressed in each circumstance, Browns v. Ocwen is a fact specific case.  Importantly however for companies relying on the Aspect dialer in their communications with parties in the manner described by the District Court for Ocwen here, Browns v. Ocwen is a case that supports defendants in combatting TCPA claims for the uses of an ATDS when the dialer at issue “is not capable of generating and dialing random or sequential numbers.”  As such and going forward, Browns v. Ocwen can be relied upon in furthering the reasoning of Gonzalez in determining what dialing systems constitute an ATDS under the TCPA.

A copy of the District Court’s opinion can be found here.

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