Harris v. Sallie Mae
Filing
88
ORDER granting 80 Motion for Summary Judgment. Please see attached Ruling & Order for details. The Clerk may enter judgment and close the case. So ordered. Signed by Judge Robert N. Chatigny on 8/7/18. (Jones, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JENNIFER HARRIS,
Plaintiff,
v.
NAVIENT SOLUTIONS, LLC
(f/k/a SALLIE MAE),
Defendant.
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Case No. 3:15-cv-564 (RNC)
RULING AND ORDER
Plaintiff Jennifer Harris brings this action under the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227,
claiming that defendant Navient Solutions, LLC (“Navient”),
repeatedly called her using an automatic telephone dialing system
(“ATDS”) after she revoked her consent to receive such calls.
Navient seeks summary judgment on the ground that plaintiff could
not unilaterally revoke her consent to receive ATDS calls because
she granted consent in a contract.
I agree and therefore grant
the motion.
I. Background
Navient is the servicer for several student loans plaintiff
obtained between 2006 and 2009.
In promissory notes she signed
to secure the loans, she provided her telephone number and agreed
to notify the defendant if her number changed.
She also agreed
to the following clauses that are particularly relevant here:
1
This Note may be modified only if you put the
modification in writing and the modification is
agreed to by any borrower or cosigner. . .
I understand that you may use automated telephone
dialing equipment or an artificial or prerecorded
voice message to contact me in connection with
this loan or loan application. You may contact me
at any telephone number I provide in this
application or I provide in the future, even if
that number is a cellular telephone number.1
Between 2012 and 2014, Navient frequently used ATDS to
contact plaintiff’s cell phone.
Plaintiff has testified that,
sometime in December 2012, she began telling Navient’s
representatives to “stop calling [her],” and she told them to
stop calling her “many, many times” thereafter.
Despite these
requests, she continued to receive ATDS calls until August 8,
2014, when her attorney sent a letter to Navient stating that
plaintiff had revoked authorization to call her cell phone.
II. Legal Standard
Summary judgment may be granted when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
317, 322 (1986).
Celotex Corp. v. Catrett, 477 U.S.
To avoid summary judgment, the non-moving party
must point to evidence that would permit a jury to return a
verdict in his or her favor.
477 U.S. 242, 252 (1986).
Anderson v. Liberty Lobby, Inc.,
In determining whether the moving
1
In some of the promissory notes plaintiff also agreed to
receive emails and SMS text messages.
2
party is entitled to judgment as a matter of law, a court must
review all the evidence in the record in the light most favorable
to the opposing party.
Id. at 255.
III. Discussion
The TCPA prohibits making “any call using an [ATDS] or
prerecorded voice to any telephone number assigned to a . . .
cellular telephone” for non-emergency purposes.
227(b)(1)(A)(iii).
47 U.S.C. §
The caller is strictly liable for statutory
damages unless it proves that the plaintiff gave “prior express
consent” to ATDS calls.
Id. at §§ 227(b)(3), (b)(1)(A); see Levy
v. Receivables Performance Mgmt., LLC, 972 F. Supp. 2d 409, 417
(E.D.N.Y. 2013) (stating that prior express consent is an
affirmative defense under the TCPA).
The Second Circuit has held that “the TCPA does not permit a
party who agrees to be contacted as part of a bargained-for
exchange to unilaterally revoke that consent.”
See Reyes v.
Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017), as
amended (Aug. 21, 2017).
It is undisputed that plaintiff
consented to receiving ATDS calls when she signed her promissory
notes.
This fact is dispositive under Reyes.
Plaintiff argues that extrinsic evidence regarding the
meaning of the consent clause should be considered because the
clause is ambiguous.
In general, “[w]hen only one interpretation
of a contract is possible, the court need not look outside the
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four corners of the contract.”
Parisi v. Parisi, 315 Conn. 370,
383, 107 A.3d 920, 929 (2015) (quotation omitted).
“Extrinsic
evidence is always admissible, however, to explain an ambiguity
appearing in the instrument.”
Id.
Plaintiff claims that the consent clause is ambiguous
because it can be interpreted to provide only “initial” consent
to receive ATDS calls.
I disagree.
The clause includes no
temporal limitations and contemplates ATDS calls in the future:
“You may contact me at any telephone number I provide in this
application or I provide in the future.”2
Plaintiff also argues that contractually-provided consent is
irrevocable only when “the parties expressly agree by contract
that consent is irrevocable.”
This argument fails in light of
the facts and holding of Reyes.3
Like the notes at issue here,
the contract at issue in Reyes was silent on revocation.4
Even
2
Plaintiff attempts to create ambiguity by citing extrinsic
evidence (testimony by a defendant employee). However, “[w]hen
the language is clear and unambiguous . . . the contract must be
given effect according to its terms.” Id.
3
The cases cited by plaintiff are from outside this Circuit and
are in direct conflict with Reyes. See Galbreath v. Time Warner
Cable, Inc., No. 7:14-CV-61-D, 2015 WL 9450593, at *4 (E.D.N.C.
Dec. 22, 2015) (holding that contractually-provided consent may
be revoked); Wright v. Target Corp., No. 14-CV-3031 (SRN/HB),
2015 WL 8751582, at *6 (D. Minn. Dec. 14, 2015) (same); Skinner
v. Bluestem Brands, Inc., No. 3:14-CV-256-CWR-FKB, 2015 WL
4135269, at *3 (S.D. Miss. July 8, 2015) (same).
4
The contract in Reyes provided:
You [Reyes] also expressly consent and agree to Lessor
[Ford], Finance Company, Holder and their affiliates,
4
so, the Second Circuit determined that the plaintiff’s bargainedfor consent “bec[a]me irrevocable” when it was granted in the
contract.
See Reyes, 861 F.3d at 53–54.
Plaintiff submits that the Federal Communications Commission
“envisioned a ‘prior express consent’ term that was merely an
initial grant of consent and not an irrevocable grant of consent
to call for all time.”
She cites a 2015 ruling of the FCC that
prior express consent may be revoked.
See In the Matter of Rules
& Regulations Implementing the Tel. Consumer Prot. Act of 1991,
30 F.C.C. Rcd. 7961 (2015).
Plaintiff’s reliance on the FCC’s ruling is unavailing.
In
Reyes, the Court stated that the ruling addressed only the
“narrow” question whether, under the TCPA, “a consumer who has
freely and unilaterally given his or her informed consent to be
contacted can later revoke that consent.”
2015 FCC Ruling).
861 F.3d at 56 (citing
Here, as in Reyes, the issue is “whether the
TCPA also permits a consumer to unilaterally revoke his or her
agents and service providers may use written,
electronic or verbal means to contact you. This consent
includes, but is not limited to, contact by manual
calling methods, prerecorded or artificial voice
messages, text messages, emails and/or automatic
telephone dialing systems. You agree that Lessor,
Finance Company, Holder and their affiliates, agents
and service providers may use any email address or any
telephone number you provide, now or in the future,
including a number for a cellular phone or other
wireless device, regardless of whether you incur
charges as a result.
861 F.3d at 53–54.
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consent to be contacted by telephone when that consent is given,
not gratuitously, but as bargained-for consideration in a
bilateral contract.”
Id.
Reyes answered this question in the
negative.5
III. Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment is granted (ECF No. 80).
The Clerk may enter judgment
and close the case.
So ordered this 7th day of August 2017.
/s/
Robert N. Chatigny
United States District Judge
5
The FCC recently stated that its 2015 ruling “did not address
whether contracting parties can select a particular revocation
procedure by mutual agreement.” See ACA Int'l v. FCC, 885 F.3d
687, 710 (D.C. Cir. 2018). Here, the promissory notes provide a
revocation procedure: modification of the contract in writing.
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