Harrington v. Roundpoint Mortgage Servicing Corporation et al

Filing 139

ORDER granting in part and denying in part 119 Plaintiff Larry Harrington's Motion to Strike. Paragraphs six and seven will be stricken from the Affidavit of David Hughes. (Doc. 111-2 at 6-7). Defendants' Motion to Strike 129 is GRANTED in part and DENIED in part. Paragraphs four and five will be stricken from the Declaration of Chris R. Miltenberger. (Doc. 120-8 at 4-5). Defendants' Supplemental Motion to Strike 137 is DENIED. Signed by Judge Sheri Polster Chappell on 4/11/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LARRY HARRINGTON,
Plaintiff,
v.

Case No: 2:15-cv-322-FtM-38MRM

ROUNDPOINT MORTGAGE
SERVICING CORPORATION and
MULTIBANK 2010-1 SFR
VENTURE, LLC,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on review of Plaintiff Larry Harrington's Motion
to Strike (Doc. 119) filed on January 23, 2017.

Defendants RoundPoint Mortgage

Servicing Corporation (“RoundPoint”) and Multibank 2010-1 SFR Venture, LLC
(“Multibank”) filed their Response in Opposition (Doc. 126) on February 6, 2017. The
Court has also reviewed the Defendants’ Motion to Strike (Doc. 129) filed on February
13, 2017 and Harrington’s Response in Opposition (Doc. 136) filed on February 27, 2017.
Finally, the Court has reviewed Defendants’ Supplemental Motion to Strike (Doc. 137),

1

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Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.

filed on March 6, 2017, to which Harrington Responded in Opposition (Doc. 138) on March
20, 2017.2 These matters are ripe for review.
BACKGROUND
This case involves allegations that Defendants violated federal and state statutes
by attempting to collect a debt through repeated automatically-dialed telephone calls
without first obtaining consent to do so from the debtor.

On January 9, 2017 the

Defendants moved for Summary Judgment against Harrington. (Doc. 111). Harrington
Responded in Opposition. (Doc. 120). The instant dispute relates to dueling motions to
strike filed by the parties.
DISCUSSION
A.

Harrington’s Motion to Strike
1. The Propriety of the Hughes Affidavit
Harrington first argues that the entire affidavit of David Hughes (“Hughes Affidavit”)

(Doc. 111-2), should be stricken as a sanction for Defendants’ presentation of loan history
records (“Loan History”) (Doc. 111-6) that he argues have been altered. Generally,
motions to strike are governed by Federal Rule of Civil Procedure 12(f), which states that
a “court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). Even so, Federal Rule of Civil
Procedure 12(f) only gives the Court authority to strike pleadings. Id. (emphasis added).

The Court notes that although the Defendants’ Supplemental Motion to Strike (137) in
conjunction with their previous Motion to Strike (129), the subject matter concerns a
matter entirely distinct from the previous Motion. As such, the Court will treat the
Supplemental Motion as a free-standing Motion. If this were not the case, Defendants
Motion (and Harrington’s subsequent Response in Opposition) would, ironically, be
stricken from the record as improper.
2

2

Federal Rule of Civil Procedure 7(a) states that “pleadings” consist of complaints,
answers to a complaint, answers to a counterclaim, answers to a crossclaim, third-party
complaints, and replies to an answer. See Fed. R. Civ. P. 7(a). Courts across the
Eleventh Circuit have held that motions filed under Rule 12(f) that ask the Court to strike
documents other than pleadings are improper. See Kahama VI, LLC v. HJH, LLC, No.
8:11–CV–2029–T–30TBM, 2014 WL 3721298, at *1 (M.D. Fla. July 28, 2014); see also
Santana v. RCSH Operations, LLC, 10–61376–CIV, 2011 WL 690174, at *1 (S.D. Fla.
Feb.18, 2011); Croom v. Balkwall, 672 F.Supp.2d 1280, 1285 (M.D. Fla. 2009).
Harrington argues that Defendants presented the Loan History in altered form
because a reference denoting the account as a “skip account” was absent from the
November 1, 2010 entry on page two (2) of the record. (Doc. 111-6 at 2). As proof,
Harrington presents what his attorney, Chris R. Miltenberger declares is a true and correct
copy of the Defendants’ Loan History. (Doc. 119-1 at 4). In the November 1, 2010 cell,
Harrington’s copy states “THIS IS NOW A SKIP ACCOUNT.” (Doc. 119-1 at 4).
Defendants argue that the version of the Loan History they filed was not altered,
but that certain information was omitted because the original format of the document –
Microsoft Excel – innocently cut off a portion of the text when the document was prepared
for filing. Moreover, Defendants argue that even had the full language been produced,
Harrington’s emphasis on the words “skip account” are misleading, because it does not
mean the account was skip traced, but rather that the account was eligible for skip tracing.
Finally, Defendants argue that they did not produce the Loan History that Harrington filed,
and conclude that it was likely produced by RoundPoint in unrelated litigation because it
was filed with the Court in PDF format.

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First, it is unclear whether Harrington’s version of the Loan History comes from
unrelated litigation.

Defendants vehemently contend that RoundPoint maintains its

business records in original Excel format, and not PDF format. From this they conclude
because Harrington presented the Loan History in PDF format, the records must have
come from unrelated litigation. But in the same breath, Defendants maintain that they
produced a copy of the original Excel record through discovery. (Doc. 126 at 6). It is
ambiguous whether Defendants mean they produced the Loan History in Excel form, or
merely that they produced the records to Harrington. If the copies were presented to
Harrington in Excel form, it is not a far inferential leap to conclude that Harrington could
explore the full contents of the cells and to format the document to reveal the entirety of
their extent.
On alteration, it is notable that Harrington does not contend that Defendants
altered the contents of the Loan history record, but rather that the format simply does not
present the entirety of each cell. The word “alter” invokes the idea that the document had
been changed. But while the formatting of the Loan History presented by Harrington is
different because the cell size has been modified, the Court sees no evidence to show
that the substantive contents of Defendants’ version were changed.
The Court is also not convinced that Defendants’ omission prejudiced Harrington.
A skip account is one in which a borrower “defaults on a loan and skips out on repayment
by moving without providing a correct forwarding address.”3 But the designation as a
“skip account” does not conclusively indicate that the Harringtons were skip traced. This

3

Skip Account, INVESTOPEDIA, http://www.investopedia.com/terms/s/skip-account.asp
(last accessed on March 24, 2017).

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can be most readily discerned by observing that the entry regarding the “skip account”
was inputted for November 1, 2010, and contrasting it with the fact that the number at the
center of this case (the “5307 Number”) was not inputted to Defendants computer
database until November 30, 2010. (Doc. 111-7 at 3, 119-1 at 4).
Finally, even if the Court found that the Loan History was altered by the
Defendants, Harrington has provided no reasoning for why the Hughes Affidavit should
be stricken. The Hughes Affidavit serves as a linking document for evidence supporting
many of Defendants’ summary judgment arguments. Striking it as a sanction would be
grossly disproportionate to any prejudice, if any, that Harrington has incurred through
Defendant’s introduction of evidence.
2. Authentication of Exhibits A-4 and A-5
Harrington next argues that Defendants Loan History (Doc. 111-6) and mortgage
servicing platform history (“MSP History”) (Doc. 111-7) should be stricken because
neither document has been authenticated. As a starting point, both documents are plainly
hearsay. Hearsay is a statement that the declarant does not make while testifying in trial
or at a hearing and that is offered in evidence to prove the truth of the matter asserted in
the statement. See Fed. R. Evid. 801(c). Hearsay is not admissible unless provided
otherwise by a federal statute, the federal rules of evidence or other rules prescribed by
the Supreme Court. See Fed. R. Evid. 802. When an affidavit submitted in support of,
or opposition to, a motion for summary judgment contains inadmissible evidence, the
court may strike the inadmissible portions of the affidavit and consider the rest. See Story
v. Sunshine Foliage World, Inc., 120 F. Supp. 2d 1027, 1031 (M.D. Fla. 2000). In
consideration of this rule, Defendants attempt to offer the documents under the business

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records exception to the hearsay rule, under Rule 803(6). To be admissible as a business
record, evidence must satisfy the elements of both Rule 803(6) and be authenticated
under Rule 901 or 902. United States v. Dreer, 740 F.2d 18, 20 (11th Cir. 1984). Rule
803(6) states, in pertinent part, that
[a] record of an act, event, condition, opinion, or diagnosis [is
admissible] if: (A) the records was made at or near the time
by—or from information transmitted by—someone with
knowledge; (B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or
calling, whether or not for profit; (C) making the record was a
regular practice of that activity; (D) all these conditions are
shown by the testimony of the custodian or another qualified
witness, or by a certification that complies with Rule 902(11)
or (12) or with a statute permitting certification; and (E) neither
the source of information nor the method or circumstances of
preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6); see also PNC Bank, Nat. Ass'n v. Orchid Grp. Investments, L.L.C.,
36 F. Supp. 3d 1294, 1301 (M.D. Fla. 2014); United States v. Arias–Izquierdo, 449 F.3d
1168, 1183 (11th Cir.2006) (“The touchstone of admissibility under Rule 803(6) is
reliability, and a trial judge has broad discretion to determine the admissibility of such
evidence.”). A business record is self-authenticating when it is “supported by testimony
of a custodian or other qualified witness, or by certification that complies with Fed. R.
Evid. 902(11).” See McCaskill v. Ray, 279 F. App'x 913, 914 (11th Cir. 2008) (internal
punctuation omitted).
Here, Defendants presented both documents along with the Hughes Affidavit,
which states that the records were made at or near the time the events they concerned
occurred, by either someone with knowledge or from information transmitted by someone
with knowledge. (Doc. 111-2 at ¶ 3). Moreover, it states that the records were kept in
the ordinary course of RoundPoint’s regularly conducted business activities and that it

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was RoundPoint’s regular practice to maintain such records. (Doc. 111-2 at 3). Finally,
the Hughes Affidavit states he has personal knowledge of RoundPoint’s procedures for
creating and maintaining records. (Doc. 111-2 at 3). Notably, “[i]t is not necessary that
the corporate representative have direct, personal knowledge of each and every fact
discussed in her affidavit or deposition.” Atl. Marine Fla., LLC v. Evanston Ins. Co., No.
3:08-CV-538-J-20TEM, 2010 WL 1930977, at *2 (M.D. Fla. May 13, 2010); see also In re
Nat'l Trust Grp., Inc., 98 B.R. 90, 92 (Bankr. M.D. Fla. 1989) (“Since the witness need not
be the person who actually prepared the record, a qualified witness is . . . one who can
explain and be cross-examined concerning the manner in which the records are made
and kept.”) (internal punctuation omitted). As such, the Hughes Affidavit unequivocally
satisfies subsections (A)-(D) of Rule 803(6) as pertains to Defendant’s Loan History and
MSP History.
To the extent Harrington argues that the Defendants MSP Records are
inadmissible because they were prepared in anticipation of litigation, the Court finds that
argument unsupported. The Eleventh Circuit has held that computer generated business
records are admissible under the following circumstances “(1) [t]he records must be kept
pursuant to some routine procedure designed to assure their accuracy, (2) they must be
created for motives that would tend to assure accuracy . . . and (3) they must not
themselves be mere accumulations of hearsay or uninformed opinion.” United States v.
Warner, 638 F. App'x 961, 963-64 (11th Cir.), cert. denied, 137 S. Ct. 178, 196 L. Ed. 2d
147 (2016). There is no indication those standards have not been met here.
First, it appears that the MSP History merely lists the phone numbers possessed
by RoundPoint for the Harringtons during each day, which is plainly a routine procedure

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designed to assure accuracy.

Second, contrary to Harrington’s assertion that the

document was created in anticipation of litigation, nothing in the report indicates that the
document was created for that purpose. Even if this information is only a subset of the
entire data collected by the Defendants for the Harringtons, the Eleventh Circuit has held
that the admission of spreadsheets formatted to be easy to understand and printed for
litigation are acceptable business record substitutes, so long as “the underlying records
were kept in the ordinary course of business and the data was not modified or combined
when entered.” Warner, 638 F. App'x at 964. On the third threshold, there is no indication
that the MSP History contains “mere accumulations of hearsay or uninformed opinion.”
See id.
The final question for both documents under Rule 803, then, is whether evidence
indicates a lack of trustworthiness. Fed. R. Evid. 803(6)(E). While Harrington raises no
argument on these grounds for the MSP History, he contends that the Loan History is
untrustworthy because it was altered by the Defendants. But that argument does not
touch on trustworthiness, and instead goes to the credibility of the information presented.
See Equity Lifestyle Properties, Inc. v. Florida Mowing And Landscape Serv., Inc., 556
F.3d 1232, 1244 (11th Cir. 2009) (citing United States v. Garnett, 122 F.3d 1016, 1019
(11th Cir.1997). Credibility is a question of weight for the trier of fact, and is not grounds
for striking the Loan History here. See id.
With these factors in mind, the documents plainly meet the business records
exception to hearsay under Federal Rule of Evidence 803(6). But to be admitted, they
must also be authenticated. The admission of business records requires the court to
conclude that they satisfy both Rule 803(6) and 901, but a record introduced through a

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qualifying affidavit is self-authenticating under Rule 902(11).

See United States v.

Lezcano, 296 F. App'x 800, 807 (11th Cir. 2008). Because the Loan History and MSP
History were produced by the Defendants, and because Hughes swears that Defendants
authorized him to sign the affidavit, Rule 902(11) is satisfied and they are admissible.
3. Paragraph Six of the Hughes Affidavit
Harrington next argues that the Court should strike paragraph six of the Hughes
Affidavit because Hughes lacks personal knowledge to make the statement. Paragraph
six states that “[i]n connection with their Loan application, the Harringtons executed a
Construction Agreement.” (Doc. 111-2 at ¶ 6).
Federal Rule of Civil Procedure 56(c)(4) states that “[a]n affidavit or declaration
used to support or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Harrington argues that Hughes has no personal
knowledge of why or how the Construction Agreement was executed, and therefore he is
not qualified to testify about the subject. The Court agrees.
Though Defendants have both the Note and the Construction Agreement, and
even though the two documents identify similar amounts – the Note obligates the
Harringtons to repay Riverside Bank of the Gulf Coast (“Riverside”) $297,100.00 in loaned
money while the Construction Agreement obligates the Harringtons to pay Oyster Bay
Homes, Inc. (“Oyster Bay”) $297,052.36 – neither of the Defendants possesses personal
knowledge of the Harringtons’ dealings with their builder, Oyster Bay (Docs. 111-5, 1113). Paragraph six of the Hughes Affidavit will therefore be stricken from the record.

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4. Paragraph Seven of the Hughes Affidavit
Harrington next argues that paragraph seven of the Hughes Affidavit should be
stricken because it violates the best evidence rule. Paragraph seven states that “[t]he
Construction Agreement sets forth the funds the Harringtons will receive from their lender
for construction of their home on the Property.” (Doc. 111-2 at ¶ 7). “Although the phrase
‘Best Evidence Rule’ is frequently used in general terms, the ‘Rule’ itself is applicable only
to the proof of the contents of a writing.” United States v. Duffy, 454 F.2d 809, 811 (5th
Cir. 1972).4

Defendants are not trying to prove the contents of the Construction

Agreement through their affidavit, but rather to characterize a portion of its function. The
best evidence rule is inapposite here.
However, like paragraph six, Defendants lacked personal knowledge to set forth
facts regarding the Construction Agreement. For the same reasons set forth regarding
paragraph six, the entirety of paragraph seven will be stricken under the Court’s inherent
power.
5. Paragraph Fourteen of the Hughes Affidavit
Harrington next argues that paragraph 14 of the Hughes Affidavit should be
stricken because it is hearsay, because Hughes lacks the personal knowledge to make a
statement on the record, and because Hughes’s testimony is not supported by evidence.
Paragraph 14 states “RoundPoint’s purpose in calling the Harringtons was to determine
the reasons for the delinquency on their account, to discuss repayment options to bring

4

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981), the Eleventh Circuit
incorporated all decisions of the United States Court of Appeals for the Fifth Circuit prior to
October 1, 1981.

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the loan current, to discuss alternatives to foreclosure, to comply with rules, regulations
and investor guidelines and to assess risks to Multibank’s collateral (e.g. insurance and
whether the home was currently occupied).”
Harrington’s hearsay argument is meritless.

It is generally accepted that

inadmissible hearsay in an affidavit cannot be considered in summary judgment
challenges. See Macuba v. DeBoer, 193 F.3d 1316, 1322 (11th Cir.1999). But while
Hughes expounds on RoundPoint’s purposes in calling the 5307 Number in paragraph
14, at no point does he make a statement that constitutes inadmissible hearsay.
Harrington’s argument regarding personal knowledge fairs no better. As stated
above, a corporate representative need not have direct, personal knowledge of each and
every fact in their affidavit. See Atl. Marine Fla., LLC, 2010 WL 1930977, at *2. Moreover,
“[w]hen a corporation offers testimony of a representative, the corporation appears
vicariously through that agent. The authority of a corporate representative extends not
only to facts, but also to the subjective beliefs and opinions of the corporation.” Id.; see
also Stalley v. ADS All. Data Sys., Inc., No. 8:11-CV-1652-T-33TBM, 2014 WL 129069,
at *3 (M.D. Fla. Jan. 14, 2014).

With this in mind, Hughes did not need to be

independently aware of the matters in the affidavit, as his statements are on behalf of the
Defendants. Id. Paragraph 14 of the Hughes Affidavit is not insufficient for lack of
personal knowledge.
Finally, Harrington’s argument that paragraph 14 should be stricken because it is
unsupported by evidence is also inadequate. Simply because the Loan History lists the
purpose of some calls as “collection” does not leave the statement unsupported. In
practice, collection is not mutually exclusive with an interest in the successful negotiation

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of options to bring the loan current, or to the desire to understand why the Harringtons
had defaulted. For these reasons, the Court will not strike paragraph 14.
6. Paragraph Seventeen of the Hughes Affidavit
Harrington next argues that paragraph 17 of the Hughes Affidavit should be
stricken because it is hearsay, because Hughes lacks the personal knowledge to make
the statement in the affidavit, and because the testimony is not supported by the evidence.
Paragraph 17 states that “RoundPoint’s records reflect that Mr. Harrington called
RoundPoint on November 29, 2010 . . . . ” (Doc. 111-2 at ¶ 17). Like Harrington’s efforts
regarding paragraph 14, the instant arguments must be denied.
First, the Hughes Affidavit again contains no hearsay, as it does not refer to an out
of court statement, or express any assertive nonverbal conduct. See Fed. R. Civ. P.
801(c); see also United States v. Berkman, 433 F. App'x 859, 863 (11th Cir. 2011)
(“Nonverbal conduct may qualify as a hearsay statement if the declarant intended the
conduct “as an assertion.”). Second, the simple fact that Hughes did not witness the call
does not undermine his personal knowledge about same. See Atl. Marine Fla., LLC, 2010
WL 1930977 at *2. Similarly, the fact here is no direct evidence to corroborate that
Harrington himself called on November 29, 2010, does not merit paragraph 17 to be
stricken. As is mentioned above, the affidavit allows Hughes to speak on behalf of facts
known by RoundPoint. Id. The level of support for paragraph 17 may be discerned as a
matter of evidentiary weight. Therefore, the Court declines to strike paragraph 17.
7. Paragraph Eighteen of the Hughes Affidavit
Harrington also argues that paragraph 18 of the Hughes Affidavit should be
stricken because it is hearsay, because Hughes lacked personal knowledge to make the

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statement, and because Hughes’ testimony is not supported by the evidence. Paragraph
18 states that “RoundPoint’s records reflect that the 5307 Number was provided by Mr.
Harrington during the November 29, 2010 call.” This is insufficient to warrant being
stricken on the grounds provided by Harrington.
As an initial point, Hughes’ testimony is not hearsay because although it avers that
Harrington made a statement to RoundPoint on November 29, 2010, the alleged assertion
is an opposing party statement made by Harrington in his individual capacity. See Fed.
R. Evid. 801(d)(2)(A). However, Harrington’s alternative arguments regarding personal
knowledge and supported evidence do not differ materially from what he asserted
regarding paragraph 17. Neither will the Court’s adjudication. The Court declines to strike
paragraph 18.
8. Paragraph 20 of the Hughes Affidavit
Finally, Harrington argues that paragraph 20 of the Hughes Affidavit should be
stricken because it is hearsay, because Hughes lacked personal knowledge to make the
statement, and because his testimony is not supported by the evidence. Paragraph 20
states “RoundPoint’s records indicate that the 5307 Number was provided as an alternate
number by Mr. Harrington during the November 29, 2010 call since it was placed by the
call center representative into the phone number position to field in RoundPoint’s
Mortgage Servicing Platform . . . immediately after the call took place.” Like Harrington’s
arguments did above, they fail here. Harrington’s hearsay argument is denied for the
same reasons laid out regarding paragraph 19. And, like the Court ruled regarding
paragraphs 14, 17, and 18, Hughes did not need personal knowledge of the conversation
to make a statement on behalf of RoundPoint. See Atl. Marine Fla., LLC, 2010 WL

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1930977 at *2. Last, support for the statement is a matter of evidentiary weight. It is not
clear that the Loan History was altered in any way, or that the information omitted is
contradictory. As a result, paragraph 20 will not be stricken.
B.

Defendants’ Motion to Strike
Defendants move to strike several assertions and documents propounded by

Harrington. First, they argue that Harrington’s testimony denying that Jamie Harrington
had authority to convey the 5307 Number should be stricken because the statements are
unsupported and provided for the sole purpose of creating a genuine issue of material
fact. Second, Defendants assert that Harrington has provided several legal conclusions
as evidence that must be stricken. Third, Defendants contend that a number of instances
where Harrington provides conflicting, self-serving, or uncorroborated testimony should
be stricken. Last, Defendants argue that Harrington and Miltenberger filed exhibits and
put forth testimony about those exhibits that should be stricken because the exhibits are
unable to be authenticated and because they lack personal knowledge regarding them.
1. Paragraph 12 of the Harrington Declaration
Defendants first argue that paragraph 12 of Harrington’s declaration (the
“Harrington Declaration”) should be stricken as a sham because overwhelming evidence
contradicts Harrington’s statement that Jamie Harrington did not have authority to convey
the 5307 Number to RoundPoint when she masqueraded as Lori Harrington during a
telephone call on June 2, 2011.
When analyzing allegedly contradictory testimony, “courts must find some inherent
inconsistency between an affidavit and a deposition before disregarding the affidavit.”
Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010). This rule is applied

14

sparingly because “because of the harsh effect . . . [it] may have on a party's case.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987). Prior to finding an
inherent inconsistency, the affiant must have clearly answered an unambiguous question.
See Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986).

“If no inherent

inconsistency exists, the general rule allowing an affidavit to create a genuine issue ‘even
if it conflicts with earlier testimony in the party's deposition,’ governs.” Rollins, 833 F.2d
at 1530 (quoting Kennett–Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir.1980)).
Therefore, the Court must distinguish “between discrepancies which create transparent
shams and discrepancies which create an issue of credibility or go to the weight of the
evidence.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986).
Paragraph 12 of the Harrington Declaration states
I did not authorize or ask Jamie Harrington to contact
RoundPoint on my behalf. I did not authorize or ask Jamie
Harrington to provide my cell number or any phone number to
RoundPoint or to anyone. I did not authorize or ask Lori
Harrington to provide my cell number or any phone number to
RoundPoint or to anyone.
(Doc. 120-2 at ¶ 12). Defendants contend that Harrington’s declaration is contradicted
by his own deposition testimony, where he stated that “we had four phones, but anybody
was allowed to use them.” (Doc. 129-2 at 15:11-14). But a review of the record does not
substantiate that argument.
In the Second Amended Complaint, Harrington brings a claim against the
Defendants sounding in the violation of the Telephone Consumer Protection Act
(“TCPA”). (Doc. 81 at ¶¶ 52-58). The TCPA prohibits “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

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telephone number assigned to a . . . cellular telephone.” 47 U.S.C. § 227(b)(1)(A)(iii). It
is well established that the called party may be either the phone’s current subscriber, or
the non-subscriber customary user of the number. See Osorio v. State Farm Bank,
F.S.B., 746 F.3d 1242, 1251-52 (11th Cir. 2014); see also In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961,
8000–01 (2015).
Turning back to the matter at hand, the Court notes that Harrington has presented
both deposition testimony and a sworn statement showing he is the owner, and thus the
subscriber of the 5307 Number. (Docs. 120-2 at ¶ 22; 129-2 at 28:18). Importantly,
neither Lori Harrington nor Jamie Harrington indicated in any way that they customarily
use the 5307 Number, and instead Harrington testified that he uses the 5307 Number as
the primary contact for Aced Interiors Drywall, a company he owns and operates. (Doc.
129-2 at 35:25-36:22-25). It is therefore sufficiently clear to the Court that Harrington was
the “called party” as a result of the fact that he was both the subscriber and customary
user of the 5307 Number.
As the called party, Harrington had the authority to consent to the permissive use
of the 5307 Number by either Lori Harrington or Jamie Harrington. However, consent to
use does not equate to status as either the customary user or the subscriber of a phone.
A primary aspect of consent is that it is extended from one with the authority to revoke it.
See Osorio, 746 F.3d 1242, 1255 (11th Cir. 2014) (“[c]ommon-law notions of consent
generally allow oral revocation.) (citing Pepe v. Shepherd, 422 So.2d 910, 911 (Fla. 3d
DCA1982). With this in mind, the Court finds there is no inherent inconsistency between
Harrington’s deposition testimony that other members of his family were allowed to use

16

the 5307 Number, and his statement in his subsequent deposition that neither Jamie
Harrington nor Lori Harrington had authority to convey the 5307 Number to RoundPoint.5
Though the Eleventh Circuit has established that “[c]onclusory, uncorroborated
allegations by a plaintiff in an affidavit or deposition will not create an issue of fact for trial
sufficient to defeat a well[-]supported summary judgment motion[,]” Solliday v. Fed.
Officers, 413 F. App'x 206, 207 (11th Cir. 2011), that holding has not given the parties the
green light to continue to litigate their summary judgment efforts through motions to strike.
Simply because an allegation may not create an issue of fact on its own does not mean
it is ultimately inadmissible.

As indicated both herein and in the Court’s Order on

Summary Judgment, there are plainly issues of fact pertaining to permissive use. The
support that paragraph 12 casts on the issue of consent to use the 5307 Number is a
matter of evidentiary weight. Therefore, the Court declines to strike paragraph 12.6
2. Paragraph Nine of the Harrington Declaration
Defendants next take issue with paragraph nine of the Harrington Declaration,
where he states he believed that “all reasonable efforts at persuasion and negotiations
had failed[,]” after June 28, 2011, when a RoundPoint representative told him that his
account was in foreclosure and subsequently referred him to an attorney. (Doc. 120-2 at
¶ 9).

Defendants argue that striking paragraph nine is proper because it is merely

Defendants also attempt to argue that Harrington’s claims regarding authority are
contradicted by Jamie Harrington’s and Lori Harrington’s failure to remember factual
details regarding the June 2, 2011 phone call to RoundPoint. The Court disagrees, as
their alleged failures of memory do not rise to an unreasonable level, nor do they directly
contradict any testimony offered.
6 The Court also declines to strike Harrington’s statement that neither Jamie Harrington
nor Lori Harrington were authorized to provide the 5307 Number on the basis that they
are legal conclusions. Authorization is plainly an issue of fact.
5

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Harrington’s personal opinion, which they argue is irrelevant. Moreover, they argue that
it is an impermissible legal conclusion. The Court disagrees.
Federal Rule of Evidence 401 states that evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be without the evidence; and
the fact is of consequence in determining the action.” Fed. R. Evid. 401(a)-(b). Turning
to the instant matter, in the Second Amended Complaint Harrington alleges that the
Defendants violated the Florida Consumer Collection Practices Act (“FCCPA”). (Doc. 81
at ¶¶ 59-64). The FCCPA prohibits “[w]illfully communicat[ing] with the debtor or any
member of her or his family with such frequency as can reasonably be expected to harass
the debtor or her or his family,” or to willfully engaged in other conduct which would be
expected to abuse or harass the same parties.

See Fla. Stat. § 559.72(7).

A

determination of whether a caller has committed harassing or abusive conduct depends
on a number of factors, including the number of calls and the intent with which the calls
were made. See Story v. J. M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977).
Against this backdrop, paragraph nine of the Harrington Declaration is plainly a
mere assertion of fact regarding Harrington’s perception subsequent to June 28, 2011.
Federal Rule of Civil Procedure 56(c)(4) requires that an affidavit filed to support or
oppose a motion be made on personal knowledge. See Fed. R. Civ. P. 56(c)(4). For a
matter to be considered within an individual’s personal knowledge, it must be “derived
from the exercise of his own senses, not from the reports of others—in other words, [it]
must be founded on personal observation.” U.S. v. Evans, 484 F.2d 1178, 1181 (2nd
Cir.1973); see also S. Broward Hosp. Dist. v. Coventry Health & Life Ins. Co., No. 1461157-CIV, 2015 WL 12532580, at *3 (S.D. Fla. June 10, 2015). And, where an affiant

18

makes statements based on personal knowledge, a district court is “bound to accept
[such] statements as true, unless the context demonstrated otherwise.”

Martin v.

Rumsfeld, 137 F. App'x 324, 326 (11th Cir. 2005). With this in mind, the Court finds that
Harrington obviously has personal knowledge of his own perceptions, and that the factual
relation of those perceptions does not constitute opinion.
Paragraph nine does not express a legal conclusion. Had Harrington opined that
Defendants had violated the FCCPA, that would have constituted a legal conclusion. But
he stopped short of that by limiting his statement to a factual assertion of what he believed
after June 28, 2011 regarding RoundPoint’s willingness to negotiate his debt obligations.
The Court finds no reason to strike paragraph nine.
3. Paragraph 22 of the Harrington Declaration
Defendants next argue that paragraph 22 of the Harrington Declaration should be
stricken from the record because it is contradicted by Harrington’s Response in
Opposition to Summary Judgment and by his own deposition testimony. Paragraph 22
of the Harrington Declaration states “[t]he 5307 cell number is my cellphone and I was
and am the sole person listed on the account as the subscriber and the person
responsible for payment on the account.” (Doc. 120-2 at ¶ 22).
Specifically, Defendants argue that paragraph 22 is contradicted by Harrington’s
Response in Opposition to their Motion for Summary Judgment, which they claim
contends that Jamie Harrington stated that the 5307 Number belonged to her during her
call with RoundPoint on June 2, 2011. In mounting this argument, Defendants both
mischaracterize the contents of Harrington’s Response in Opposition and overstate the
degree of contradiction. Even a cursory reading of Harrington’s Response in Opposition

19

reveals that it never states that the 5307 Number belonged to Jamie Harrington. Instead,
paragraph 18 of the Response in Opposition correctly states that during the June 2, 2011
call, the RoundPoint representative did not ask Jamie Harrington for a number where the
Harringtons could be contacted, but instead requested the phone number she (or, in the
explicit language of the call, “you”) could be reached at. (Docs. 111-10 3:19-4:1, 120 at
¶ 18).
Similarly, Paragraph 20 of the Response in Opposition did not state that the 5307
Number belonged to Jamie Harrington. Instead, it stated that “Jamie Harrington stated
that this was the main number to reach her (Jamie).” (Doc. 120 at ¶ 20). This is merely
an interpretation of evidence, rather than a substantive assertion regarding the 5307
Number’s ownership. Consequently, it does not contradict Harrington’s declaration.7
Defendants also argue that paragraph 22 is inconsistent with Harrington’s
deposition testimony, where he stated that “we had four phones, but anybody was allowed
to use them.” (Doc. 129-2 at 15:11-14). The Court has touched on this issue above in
Section (B)(1), and for the same reasons stated there, it finds nothing inherently
contradictory between the two exhibits. Hence, the Court declines to strike paragraph 22.
4. Jamie Harrington’s Testimony Regarding the 5307 Number
Defendants next contend that the declaration of Jamie Harrington should be
stricken because she provided conflicting testimony in deposition. In deposition, Jamie
Harrington stated that the only instruction she recalled Lori Harrington giving her
regarding the June 2, 2011 call was to “[a]sk about insurance.” (Doc. 120-25 at 38: 3-

7

While a question may exist as to whether Jamie Harrington provided RoundPoint with
the 5307 Number as her contact information or for Lori Harrington, that inquiry is irrelevant
for the resolution of the instant matter.

20

11). Even so, in paragraph three (3) of her subsequent declaration, Jamie Harrington
denied that she was given the 5307 Number or told to provide it to RoundPoint. (Doc.
120-7 at ¶ 3).
Defendants argue that Jamie Harrington’s denial she was granted authority to
convey the 5307 Number in her declaration contradicts her deposition testimony and
should be stricken from the record . The Court disagrees. Defendants cite no instance
where Jamie Harrington was expressly asked in deposition whether she was given the
5307 Number or told to refrain from providing it to RoundPoint.

Such a finding is

necessary for an affidavit to be found inherently inconsistent with other testimony. See
Lane, 782 F.2d at 1532. To the extent that Jamie Harrington’s declaration calls her
deposition testimony into question, any discrepancy merely creates an issue of credibility.
See Tippens, 805 F.2d at 953. The Court denies Defendants’ Motion to Strike Jamie
Harrington’s declaration, or statements within it.
5. Paragraph Seven of the Harrington Declaration
Defendants next argue that paragraph seven of the Harrington Declaration should
be stricken from the record because it conflicts with his deposition testimony about the
Construction Agreement. Paragraph seven of the Harrington Declaration reads, “[t]he
Construction Agreement sets forth the funds Lori and I were to pay to our builder. The
Construction Agreement does not set forth the funds that Lori and I were to receive from
the Lender for the construction of our home on our property.” (Doc. 120-2 at ¶ 7).
Defendants argue that the declaration is contradicted by Harrington’s deposition
testimony, where he stated that he could not remember if the Construction Agreement

21

set out the funds he would receive pursuant to the Loan because too much time had
passed since the document’s execution. (Doc. 129-2 at 57:18-22).
Upon review, Harrington’s testimony is not inherently inconsistent. For that to be
the case, the Harrington Declaration would have had to affirmatively disclaim that the
Construction Agreement set forth the funds he was to receive from Riverside because of
the Loan. This is not what occurred here. Instead, Harrington originally testified in
deposition he could not remember the details surrounding the function of the Construction
Agreement, only to state later in the Harrington Declaration he knew what it did not do. If
a discrepancy is created by this evolution in memory, like the Court found regarding Jamie
Harrington’s declaration, it is merely an issue of credibility, and does not merit paragraph
seven to be stricken from the record.
6. Allegations of Other Calls
Defendants next argue that the testimony offered by the Harringtons in multiple
declarations alleging that RoundPoint attempted to call cell phones other than the 5307
Number should be stricken because it is uncorroborated and self-serving. In specific, Lori
Harrington states in paragraph 11 of her declaration that from May 28, 2013 to May 5,
2014, she estimated that RoundPoint called the 5307 Number, as well as 3 others,
between 750 and 1,000 times. (Doc. 120-6 at ¶ 11). Meanwhile in paragraph five of
Jamie Harrington’s declaration, she stated that she received calls from RoundPoint in the
past. (Doc. 120-7 at ¶ 5). The record reveals no indication one way or the other that any
calls were made to numbers other than the 5307 Number.
As has been laid out above “[c]onclusory, uncorroborated allegations by a plaintiff
in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a

22

well[-]supported summary judgment motion.”

Solliday, 413 F. App'x at 207. But while

these allegations may not stave off summary judgment, Defendants make no substantive
argument regarding why they should be stricken from the record. Nor do they provide
any evidence in opposition. Federal Rule of Civil Procedure 56(h) states that if the Court
is satisfied that a declaration under Rule 56 is submitted in bad faith, it “may order the
submitting party to pay the other party the reasonable expenses . . . . or [be] subjected to
other appropriate sanctions.” The Court finds no evidence that the Declarations were
made in bad faith, and declines to exercise its inherent powers to strike the relevant
portions of the declarations of Jamie Harrington and Lori Harrington.
7. Attachment of RoundPoint Documents in the Harrington and Miltenberger
Declarations
Defendants next argue that to the extent Harrington’s declaration (Doc. 120-2) and
that of his attorney (Doc. 120-8) attached foreclosure-related documents and derivations
of RoundPoint’s business records, they should be stricken from the record because the
records are irrelevant and prejudicial.

Specifically, in support of his Response in

Opposition to Defendant’s Motion for Summary Judgment, Harrington attached several
documents including:






An Order granting leave to withdraw as counsel from the
state court foreclosure action instituted by Multibank,
Multibank 2010-11 SFR Venture, LLC, 12-CA-051325
(Fla. 20th Cir. Ct. filed March 2, 2012) (the “Foreclosure
Action”). (Doc. 120-3).
Multibank’s Amended Notice of Production of Trial Exhibits
from the Foreclosure Action. (Doc. 120-4).
A print out of daily entries into RoundPoint’s software
platform (“MSP”) responsible for tracking contact with
Harrington. (Doc. 120-5).
A list of calls made by RoundPoint to Harrington or his
family. (Doc. 120-9).

23














A list of calls made by RoundPoint to the 5307 Number.
(Doc. 120-10).
A list of calls made by RoundPoint to the 5307 Number
after June 28, 2011. (Doc. 120-11).
A list of calls made by RoundPoint to the 5307 Number
from May 28, 2013 until May 5, 2014. (Doc. 120-12).
A list of calls made by RoundPoint to the 5307 Number
from May 30, 2010 to May 7, 2013. (Doc. 120-13).
A list of all messages RoundPoint left for Harrington or his
family. (Doc. 120-14).
A list of all messages RoundPoint left on the 5307 Number
after March 2, 2012. (Doc. 120-15).
A list of all messages RoundPoint left on the 5307 Number
after June 28, 2011. (Doc. 120-16).
A list of all messages RoundPoint left on the 5307 Number
from May 28, 2013 until May 5, 2014. (Doc. 120-17).
A list of all messages RoundPoint left on the 5307 Number
from May 30, 2012 to May 7, 2013. (Doc. 120-18).
A list of the times in which RoundPoint called the 5307
Number multiple times on the same day from May 28,
2013 to May 5, 2014. (Doc. 120-19).
A list of the times in which RoundPoint called the 5307
Number on the same day they left a message from May
28, 2013 until May 5, 2014. (Doc. 120-20).
An excerpt from the Website “Experian” regarding skip
account tracing services. (Doc. 120-21).

Defendants argue that both Documents 120-9 through 120-20, and Harrington’s
and Miltenberger’s declaration statements regarding them are irrelevant because they
are mere summaries and they do not address the central issue on summary judgment –
prior express consent. But while prior express consent to contact the 5307 Number is a
central issue, it is not the only one. It is additionally relevant for the purposes of the
FCCPA to discern how many calls were placed to the 5307 Number, under what
circumstances those calls were made, the purpose of the calls, whether they were made
after reasonable efforts at negotiation experienced failure, the temporal frequency
between calls, and the frequency of messages. See Story, 343 So. 2d at 677. Valuable
insight can be gained through the introduction of select records from the underlying

24

foreclosure case and RoundPoint’s call logs.

Therefore, the information in those

documents is relevant to the instant dispute.
Next, Defendants argue that Harrington’s attachment of RoundPoint business
records (Doc. 120-5) and state court case records (Docs. 120-3, 120-4) should be stricken
because neither he, nor his counsel are qualified to authenticate them. Harrington does
not substantively dispute that either set of documents are hearsay. But the Supreme
Court has established that a nonmoving party need not produce evidence admissible at
trial to avoid summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
This renders Defendants’ argument unavailing.
To the extent Defendants draw issue with declaration statements about these
documents, it pertains to paragraphs 11 and 15 of the Harrington Declaration (Doc. 1202), and paragraphs 4-6 of the Miltenberger Declaration (Doc. 120-8). Paragraphs 11 and
15 of the Harington Declaration concern filings in the underlying foreclosure matter. (Doc.
120-2 at ¶¶ 11, 15). As has already been established Rule 56(c)(4), requires an affiant
to have personal knowledge of the facts set out in an affidavit filed in support or in
opposition to a Motion for Summary Judgment. See Fed. R. Civ. P. 56(c)(4). Harrington
is competent to identify the Foreclosure Action documents, as he was a party to those
proceedings and the nature of the documents is evident in the title.

Meanwhile,

paragraphs four through five of the Miltenberger Declaration identify summaries of
RoundPoint’s business records filed by Harrington in opposition to summary judgment.
(Doc. 120-8 at ¶¶ 4-5). But, ironically, while the exhibits that the Miltenberger Affidavit
describes are not subject to being stricken, his statements regarding same must be
stricken because he lacks personal knowledge of RoundPoint's business records.

25

Defendants also argue that the records should be stricken because they are
prejudicial. Where relevant evidence is prejudicial, it will be excluded “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. But it is well established
in the Eleventh Circuit that “when there is no showing of prejudicial harm to the moving
party, the courts generally are not willing to determine disputed and substantial questions
of law upon a motion to strike. Augustus v. Bd. of Pub. Instruction of Escambia Cty., Fla.,
306 F.2d 862, 868 (5th Cir. 1962). Defendants have made no showing of harm here.
Neither the Foreclosure Action records, RoundPoint business records, summaries of
same, nor the remaining declaration descriptions will be stricken.
Finally, Defendants argue that Paragraph six of the Miltenberger Declaration,
which identifies a web site printout attached as an exhibit (Doc. 120-8 at ¶ 6), should be
stricken from the record because the website purports to interpret the meaning of the
word “skip tracing” and only RoundPoint can explain what they mean by the phrase “this
is now a skip account” in its records. The Court does not agree. Paragraph six is merely
an identification of an exhibit. It does not summarize or describe its contents. Instead,
Miltenberger declares that the exhibit is a true and correct copy of an excerpt from a
website.

The Court finds no indication this information is not within Miltenberger’s

personal knowledge. The paragraph six will not be stricken from the record.
C.

Defendants’ Supplemental Motion to Strike
Last, Defendants filed a Supplemental Motion to Strike evidence filed with

Harrington’s Sur-Reply. (Doc. 137). They specifically contest Harrington’s introduction

26

of the expert report of Randall Snyder, which concerns automatically-dialed telephone
systems, as well as an additional declaration by Harrington.
1. The Propriety of Harrington’s Expert Testimony
First, Defendants argue that Harrington’s attachment of the Supplemental
Declaration of his expert, Randall Snyder, (Doc. 130-2), which discusses automaticallydialed telephone systems, should be stricken from the record because it is irrelevant for
the purposes of adjudicating Defendants’ Motion for Summary Judgment. Defendants
argue that because they raised no issue whether calls to the 5307 Number were made
with an automatically-dialed telephone in their Motion for Summary Judgment, the
declaration exceeds the scope of Harrington’s Sur-Reply.
The TCPA prohibits “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 a . . . cellular telephone.” 47 U.S.C. § 227(b)(1)(A)(iii). This means that where prior
express consent has been granted, a party may use an automatic telephone dialing
system to contact a cellular telephone. See id. But the law does not foreclose other
actions. The plain text of the TCPA reveals that the law is not violated where an individual,
rather than an automated system, makes a call to a cell phone. See id.; see also Soppet
v. Enhanced Recovery Co., LLC, 679 F.3d 637, 642 (7th Cir. 2012). This means that to
determine liability, it is relevant to discern both whether Defendants had prior express
consent, and whether an automatically-dialed telephone system was used.
But whether the evidence is relevant to this case is a different matter from whether
they are relevant to the resolution of the summary judgment at issue. In their Motion for

27

Summary Judgment, Defendants did not put their use of an automatically-dialed
telephone at issue. Instead, they obviated that concern by arguing that RoundPoint had
prior express consent to contact the 5307 Number. The text of the TCPA indicates that
if a party has prior express consent, its use of an automatically-dialed telephone is
irrelevant. See 47 U.S.C. § 227(b)(1)(A)(iii). Whether and how RoundPoint used an
automatically-dialed telephone to contact the 5307 Number is irrelevant for the purposes
of adjudicating Defendant’s Summary Judgment Motion. But instead of striking the
affidavit as a whole, the Court will simply disregard it while addressing the matter at bar.
2. Testimony Regarding Normal Use of the 5307 Number
Finally, Defendants argue that Harrington’s Supplemental Affidavit should be
stricken because it is a mere attempt to create a genuine issue of material fact by
confusing the issues and because it conflicts with prior testimony. In his supplemental
affidavit, Harrington swore that “[a]ny member of my family could have made a call with
my 5307 phone if the phone they normally used was not available. (Doc. 130-5 at ¶ 6).
In addition, he added that “[n]o person other than me normally used the 5307 phone and
I was the regular and customary user of the 5307 phone.” (Doc. 130-5 at ¶ 7). Finally, he
averred that “[e]ach member of my family has a cell phone that they normally carry and
use and it is not my 5307 phone.” (Doc. 130-5 at ¶ 8).
Upon review, these statements contradict no prior testimony provided by any of
the Harringtons. For the same reasons enumerated in Section B(1) above, the Court
finds that Harrington’s Supplemental Affidavit is not inherently inconsistent with prior
testimony. Consequently, the Court declines to strike it.
Accordingly, it is now

28

ORDERED:
1. Plaintiff Larry Harrington's Motion to Strike (Doc. 119) is GRANTED in part
and DENIED in part. Paragraphs six and seven will be stricken from the
Affidavit of David Hughes. (Doc. 111-2 at ¶¶ 6-7).
2. Defendants’ Motion to Strike (Doc. 129) is GRANTED in part and DENIED in
part. Paragraphs four and five will be stricken from the Declaration of Chris R.
Miltenberger. (Doc. 120-8 at ¶¶ 4-5).
3. Defendants’ Supplemental Motion to Strike (Doc. 137) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 10th day of April, 2017.

Copies: All Parties of Record

29