Brown et al v. Ocwen Loan Servicing, LLC

Filing 64

ORDER: Defendant Ocwen Loan Servicing LLC's Motion for Summary Judgment (Doc. # 39) is GRANTED IN PART AND DENIED IN PART. Ocwen's Motion for Summary Judgment is GRANTED to the extent judgment shall be entered in Ocwen's favor for Plaintiffs Bonnie and James Brown's TCPA claims based on Ocwen's alleged use of an automatic telephone dialing system. Ocwen's Motion for Summary Judgment is DENIED as to the Browns' remaining TCPA and FCCPA claims. The Browns' Motion for Summary Judgment (Doc. # 41) is DENIED. Signed by Judge Thomas P. Barber on 9/5/2019. (DLB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BONNIE BROWN and
JAMES BROWN,
v.

Plaintiffs,

Case No. 8:18-cv-136-T-60AEP

OCWEN LOAN SERVICING LLC,
Defendant.

/

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court pursuant to Defendant Ocwen
Loan Servicing LLC’s Motion for Summary Judgment (Doc. # 39) and
Plaintiffs Bonnie and James Brown’s Motion for Summary Judgment (Doc. #
41), both filed on May 1, 2019. Each side filed responses in opposition and
replies. (Doc. ## 46-47, 53-54). For the reasons that follow, the Browns’
Motion for Summary Judgment is denied, and Ocwen’s Motion for Summary
Judgment is granted in part and denied in part.
I.

Background
Because Plaintiffs share the same last name, the Court will refer to

them by their first names, James and Bonnie. In 1998, before she married
James in 2011, Bonnie obtained a mortgage to purchase her former residence
located in Brooksville, Florida. (Doc. # 40 at ¶ 1; Doc. # 42 at ¶¶ 1-2). James
is not a borrower on the mortgage, but he resided with Bonnie at the property

and was authorized to speak with Ocwen and handle matters related to the
mortgage on Bonnie’s behalf. (Doc. # 42 at ¶¶ 1, 4).
Ocwen – a mortgage servicer that engages in activities such as
collections, foreclosures, and property disposition efforts – began servicing
Bonnie’s mortgage in 2005. (Doc. # 40 at ¶ 2). Ocwen stores its borrowers’
data in a program called “RealServicing Loan Platform.” (Id. at ¶ 8). Within
this program, Ocwen identifies certain borrowers – for example, those who
are in default or eligible for loan modifications – and creates a call list. (Id. at
¶ 9). This call list is transferred from RealServicing to a software called
“Advanced List Management” (ALM), which is created by Aspect Software,
Inc. (Id. at ¶¶ 9-10). Using ALM, Ocwen representatives configure how calls
are to be placed to the numbers on the call list. (Id. at ¶ 10). Next, Ocwen
transfers that call list with its dialing rules from ALM to another software
created by Aspect, “Unified IP” (UIP). (Id.). Then, UIP begins dialing Ocwen’s
borrowers using the call list. (Id.). Before any call is connected to an Ocwen
representative, the call is placed in the “disposition queue.” (Doc. # 54-2 at ¶
6). Calls that are not connected with an Ocwen representative right away are
placed into the “wait queue.” (Id.). Although ALM and UIP are separate
software, together they are referred to as the “Aspect dialer.” (Doc. # 42 at ¶
37; Doc. # 49 at 6).
In 2013, Bonnie was in default, so she applied for a loan modification
2

through the Home Affordable Modification Program (HAMP). (Doc. # 42 at ¶
5). In early 2014, the loan modification was approved, but Bonnie
immediately defaulted on the modification because she was still unable to
make the modified payments. (Id.). According to the Browns, Ocwen
encouraged Bonnie to submit additional loan modification applications,
though this encouragement is disputed by Ocwen. (Id. at ¶¶ 5-7; Doc. # 49 at
1-2). The Browns further aver that Ocwen led them to believe Bonnie could
obtain another loan modification, even though Ocwen knew Bonnie was in
fact ineligible for another modification. (Doc. # 42 at ¶¶ 9-10). Ocwen likewise
disputes this, contending Bonnie was eligible for other loan modifications,
though she was not eligible for another loan modification through HAMP.
(Doc. # 49 at 2-3).
Regardless, Bonnie ended up submitting at least five loan modification
applications betweem 2014 and 2015. (Doc. # 42 at ¶¶ 5-7). Bonnie listed her
cellphone number ending in -5620 on the loan modification applications. (Doc.
# 40 at ¶ 3). Among other things, the applications stated, “I consent to being
contacted concerning this request for mortgage assistance at any e-mail
address or cellular or mobile telephone number I have provided to the
Servicer.” (Doc. # 46 at 13; Doc. # 46-12). From January 21, 2014, until
August 29, 2016, Ocwen used its Aspect dialer to place 416 calls to the -5620
number. (Doc. # 42 at ¶ 11). According to the Browns, they answered ninety3

eight calls where Ocwen used a prerecorded or artificial voice. (Id. at ¶¶ 4445; Doc. # 47 at 3).
Before 2016, Bonnie was the primary user of the -5620 number, which
is issued through Boost Mobile. (Doc. # 42 at ¶ 12). The Browns have shared
a cellphone account with Boost Mobile since 2011, and the Browns use joint
money to pay for their account. (Id.). In March or April 2016, Bonnie got a
new cellphone number, so James started using the -5620 number. (Id. at ¶
13). Neither Bonnie nor James informed Ocwen that the -5620 number was
no longer Bonnie’s phone number or that James was now the primary user of
the -5620 number. (Doc. # 40 at ¶ 5).
Despite her attempts to obtain a loan modification, a foreclosure
complaint seeking a deficiency judgment was filed against Bonnie on March
5, 2016. (Doc. # 42 at ¶ 14). On April 22, 2016, the foreclosure court served
Bonnie with an order setting the final foreclosure hearing for June 20, 2016.
(Id. at ¶ 15). Thereafter, multiple Ocwen representatives called the -5620
number, but the representatives were unaware that a foreclosure hearing
had been set, so they advised Bonnie to submit additional loan modification
applications. (Doc. # 42-15; Doc. # 42-5 at 12-13). After these phone calls, the
Browns concluded the modification applications and phone calls with Ocwen
were fruitless endeavors. (Doc. # 42-1 at ¶ 10; Doc. # 42-2 at ¶ 8).
On May 20, 2016, an Ocwen representative called the -5620 number to
4

discuss Bonnie’s “intentions with the property” and a possible short-sale or
surrender of the property. (Doc. # 42 at ¶ 18; Doc. # 42-16 at 2). Bonnie
answered the phone, but after the representative explained the purpose of
the call and noted the call was an attempt to collect a debt, Bonnie told the
Ocwen representative to speak with James. (Doc. # 42-16 at 2). James
proceeded to tell the Ocwen representative that any issues would be decided
at the upcoming foreclosure hearing on June 20, 2016. (Id. at 3-4). Further,
James told the Ocwen representative that the call would not “make any
difference at all” because there was “really nothing for [the representative]
and [James] to discuss.” (Id.).
After the May 20, 2016, phone call, Ocwen used its Aspect dialer to
place 192 phone calls to the -5620 number. (Doc. # 42 at ¶ 19). Specifically,
except for twelve days, Ocwen called the -5620 number every day until
August 29, 2016. (Id. at ¶¶ 11, 30). And unless the previous call that day was
answered, Ocwen almost always called the -5620 number three times per
day, which is permitted under Ocwen’s policies. (Id.). The Browns answered
only forty-three of these calls, though. (Id. at ¶ 19). When Ocwen’s calls were
answered, Ocwen’s representatives explained the calls were an attempt to
collect a debt. (Id. at ¶ 28). James answered most of the calls because he had
the phone with him at work. (Id. at ¶ 26). Bonnie stated during her
deposition that she did not answer any calls after James started using the 5

5620 number, but Ocwen’s records indicate Bonnie personally answered a few
calls or at least spoke to Ocwen after James initially answered the phone.
(Doc. # 39-6 at 16-17; Doc. # 42-16; Doc. # 42-18 at 2-3; Doc. # 42-19 at 8; Doc.
# 42-20). When James answered the phone, Ocwen asked to speak with
Bonnie or asked James to leave Bonnie a message for her to call Ocwen back.
(Doc. # 42 at ¶ 26).
On June 4, 2016, during another phone call from Ocwen to the -5620
number, James complained of the daily phone calls from Ocwen, stated he
would report the representative for “harassment,” and asked Ocwen to “[q]uit
calling” him and Bonnie. (Id. at ¶ 20; Doc. # 42-17). Thereafter, James again
requested Ocwen to “quit calling” him and Bonnie on June 11 and 17, 2016.
(Doc. # 42-19 at 2-7).
The foreclosure hearing took place on June 20, 2016, and a final
judgment of foreclosure was entered that same day. (Doc. # 42 at ¶ 22).
Nevertheless, Ocwen continued to call the -5620 number after the foreclosure.
James requested Ocwen to “quit calling” him and Bonnie on multiple
occasions after the foreclosure – specifically, on June 30, 2016; July 12, 13,
16, and 29, 2016; and August 4, 7, 8, 16, and 18, 2016. (Doc. # 42-19 at 2-3, 5,
7, 9-19). Bonnie similarly asked Ocwen to stop calling on June 29 and July 1,
2016. (Doc. # 42 at ¶ 23; Doc. # 42-18 at 3; Doc. # 42-19 at 8). After the
Browns moved out, the property was sold at auction on August 25, 2016.
6

(Doc. # 42 at ¶ 22). Shortly thereafter, the calls to the -5620 number from
Ocwen stopped. (Id. at ¶ 11).
According to the Browns, Ocwen’s phone calls took a toll on them.
James was suffering from a heart condition, Bonnie was caring for her sick
grandmother, and Bonnie’s mother and father passed away in September
2015 and May 2016, respectively. (Id. at ¶ 33). The Browns informed Ocwen
of these circumstances, but Ocwen did not record this information in Bonnie’s
account because the Browns failed to follow certain authentication
procedures. (Doc. # 49 at 5). James even allegedly lost two jobs after clients
overheard him tell Ocwen to stop calling because the property had been
foreclosed. (Doc. # 42 at ¶ 34). The Browns fought nearly every day over
Ocwen’s calls. (Id. at ¶ 35). James vented to Bonnie about Ocwen’s calls, and
Bonnie felt “helpless to stop the calls.” (Id.).
As a result, on January 17, 2018, the Browns brought this action
against Ocwen for violations of the Telephone Consumer Protection Act
(TCPA) and the Florida Consumer Collection Practices Act (FCCPA). (Doc. #
18). The parties have now filed cross-Motions for Summary Judgment. (Doc.
## 39, 41).
II.

Legal Standard
Summary judgment is appropriate “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to
7

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A properly supported
motion for summary judgment is not defeated by the existence of a factual
dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Only the
existence of a genuine issue of material fact will preclude summary
judgment. Id.
An issue is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. A fact is material “if it is
a legal element of the claim under the applicable substantive law which
might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997). The moving party bears the initial burden of
showing that there are no genuine issues of material fact. Hickson Corp. v. N.
Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). When the moving
party has discharged its burden, the nonmoving party must then designate
specific facts showing the existence of genuine issues of material fact. Jeffery
v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995). If there is a
conflict between the parties’ allegations or evidence, the nonmoving party’s
evidence is presumed to be true and all reasonable inferences must be drawn
in the nonmoving party’s favor. Shotz v. City of Plantation, 344 F.3d 1161,
1164 (11th Cir. 2003).
The standard for cross-motions for summary judgment is not different
from the standard applied when only one party moves for summary
8

judgment. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th
Cir. 2005). The Court must consider each motion separately, resolving all
reasonable inferences against the party whose motion is under consideration.
Id. “Cross-motions for summary judgment will not, in themselves, warrant
the court in granting summary judgment unless one of the parties is entitled
to judgment as a matter of law on facts that are not genuinely disputed.”
United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting
Bricklayers Int’l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th
Cir. 1975)).
III.

Discussion
Bonnie brings claims under the FCCPA (Count I) and the TCPA

(Count II), while James brings claims under only the TCPA (Count III).
Ocwen moves for summary judgment on all claims. The Browns move for
summary judgment on Bonnie’s FCCPA claim and James’s TCPA claim, but
not on Bonnie’s TCPA claim. The Court will address the TCPA and FCCPA
claims separately.
A.

TCPA

In Counts II and III, Bonnie and James allege Ocwen violated 47
U.S.C. § 227(b)(1)(A)(iii) by placing calls to the -5620 number using an
automatic telephone dialing system (ATDS) or an artificial or prerecorded
voice. (Doc. # 18 at 10-12). Bonnie’s claim in Count II is based on the calls
9

Ocwen placed to the -5620 number before March 2016, while James’s claim in
Count III is based on the calls placed after March 2016. (Id.).
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).
1.

Calls Using Any ATDS or an Artificial or
Prerecorded Voice

Ocwen contends summary judgment on the Browns’ TCPA claims is
warranted because its Aspect dialer is not an ATDS under the TCPA. (Doc. #
39 at 8-20). The TCPA defines an ATDS 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). According to Ocwen, following the D.C. Circuit’s decision
in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), a dialing system
must have the present ability to generate random or sequential numbers to
10

meet the definition of an ATDS. (Doc. # 39 at 13-15).
In support, Ocwen relies on Gonzalez v. Ocwen Loan Servicing, LLC,
which held “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.” No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065, at *6 (M.D. Fla.
Sept. 5, 2018). The court in Gonzalez also 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.” Id. (citing ACA Int’l, 885 F.3d at 69597). Ocwen explains its Aspect dialer is not capable of generating and dialing
random or sequential numbers. (Doc. # 39 at 18-20). Therefore, Ocwen
contends its Aspect dialer is not an ATDS. (Id.). Having independently
considered the issue, the Court agrees with Gonzalez and concludes Ocwen’s
Aspect dialer is not an ATDS under the TCPA. Summary judgment is
therefore granted in favor of Ocwen on the Browns’ TCPA claims based on
the use of an ATDS.
Nevertheless, whether Ocwen’s Aspect dialer meets the definition of an
ATDS is not dispositive of the Browns’ other TCPA claims. Specifically, in
addition to claiming that Ocwen used an ATDS, the Browns also claim that
Ocwen used an artificial or prerecorded voice when calling them. (Doc. # 18 at
¶¶ 59, 61). The TCPA prohibits calls “using any automatic telephone dialing
11

system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A)(iii)
(emphasis added). Calls made using an artificial or prerecorded voice are
independently actionable from calls made using an ATDS. Whitehead v.
Ocwen Loan Servicing, LLC, No. 2:18-cv-470-FtM-99MRM, 2018 WL
5279155, at *4 (M.D. Fla. Oct. 24, 2018).
As Ocwen concedes, there are disputed issues regarding how many
calls Ocwen placed using an artificial or prerecorded voice. (Doc. # 46 at 5).
According to the Browns, they answered ninety-eight total calls “where they
were put into a hold queue and heard a prerecorded or artificial voice
message asking them to hold for a representative.” (Doc. # 47 at 3). Fortythree of those calls were placed after May 20, 2016 – the date the Browns
aver they revoked Ocwen’s permission to call the -5620 number. (Doc. # 42 at
¶¶ 44-45). In support, the Browns rely on the “QUEUEENDDT” column of
Ocwen’s call logs, which according to the Browns, identifies calls that were
placed in a “hold queue” and received a prerecorded or artificial voice
message. (Id.; Doc. # 47 at 3). The Browns also rely on their deposition
testimony, where Bonnie stated she received prerecorded or artificial voice
messages “every day” and James stated he received them “a bunch of times.”
(Doc. # 42-8 at 72:17-19; Doc. # 42-9 at 53:5-21).
In response, Ocwen contends the Browns misconstrue the call logs.
According to Ocwen, the “QUEUEENDDT” column does not identify calls
12

that received a prerecorded voice message. (Doc. # 54 at 2). Instead, the
“QUEUEENDDT” column identifies when calls exited either the disposition
queue or the wait queue. (Id.). Calls in the disposition queue that are not
connected with an Ocwen representative right away are placed into the wait
queue. (Doc. # 54-2 at ¶ 6). According to Ocwen, the “CALLQSTARTDT”
column of its call logs identifies calls that were placed in the wait queue, and
only calls that were in the wait queue for more than two seconds received a
prerecorded voice message. (Doc. # 54 at 2). Seven calls made to the -5620
number were placed in the wait queue, and only four of those calls received a
prerecorded voice message. (Id.). Thus, Ocwen contends the Browns’ claims
are limited to those four calls. (Id.). Ocwen’s argument is supported by the
declaration of its Director of Dialer and Workforce Management. (Id.; Doc. #
54-2).
These disputed issues regarding how many calls were placed to the 5620 number using an artificial or prerecorded voice preclude summary
judgment on the Browns’ remaining TCPA claims for either side.
2.

Prior Consent

A defendant is not liable for making calls under the TCPA if the calls
were “made with the prior express consent of the called party.” 47 U.S.C. §
227(b)(1)(A). “No specific method is required under the TCPA for a caller to
obtain prior consent to place automated calls.” Lawrence v. Bayview Loan
13

Servicing, LLC, 666 F. App’x 875, 879 (11th Cir. 2016). For example, “the
provision of a mobile phone number, without limiting instructions, suffices to
establish the consumer’s general consent to be called under the TCPA.” Id. at
880. Conversely, consent is revocable, and no specific method is required
under the TCPA to revoke consent. Id. at 879-80. Accordingly, a consumer
may orally revoke her consent. Osorio v. State Farm Bank, F.S.B., 746 F.3d
1242, 1255 (11th Cir. 2014). Nevertheless, “the TCPA requires—at a
minimum—express and clear revocation of consent; implicit revocation will
not do.” In re Runyan, 530 B.R. 801, 807 (M.D. Fla. 2015). Prior express
consent is an affirmative defense; therefore, the defendant bears the burden
of establishing that it had the called party’s consent. Osorio, 746 F.3d at
1253; Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1304-05 (11th
Cir. 2015).
Ocwen argues Bonnie consented to receiving calls when she listed the 5620 number on her loan modification applications. (Doc. # 46 at 12-14).
Ocwen concedes that Bonnie revoked her consent on June 29, 2016, but
nevertheless argues any calls placed before then did not violate the TCPA.
(Id.). Aside from the fact that Ocwen still placed numerous calls to the -5620
number after June 29, 2016 (Doc. # 42 at ¶ 24; Doc. # 49 at 4), there are
disputed issues of material fact that preclude Ocwen from establishing
consent for all the calls prior to June 29, 2016.
14

To begin, there are disputed issues regarding whether Ocwen obtained
valid consent to call the -5620 number and whether Ocwen’s calls exceeded
the scope of whatever consent it had to call the -5620 number. Bonnie argues
Ocwen obtained her consent in the loan modification applications under false
pretenses. (Doc. # 53 at 2). According to Bonnie, because Ocwen knew she
could not obtain another loan modification, any consent Ocwen received
through the loan modification applications was not valid. (Id.). Ocwen, by
contrast, contends that Bonnie was in fact eligible for other loan
modifications. (Doc. # 49 at 2).
Bonnie also argues that Ocwen’s calls exceeded the scope of her
consent. According to Bonnie, her consent was for the limited purpose of
allowing Ocwen to call her regarding the loan modification applications, yet
not all of Ocwen’s calls were related to the loan modifications. (Doc. # 53 at
2). “[T]he TCPA allows a consumer to provide limited, i.e., restricted, consent
for the receipt of automated calls.” Schweitzer v. Comenity Bank, 866 F.3d
1273, 1277 (11th Cir. 2017). If a consumer provides limited consent to receive
automated calls, it is the caller’s burden of establishing that the purpose of
its calls was within the consumer’s limited consent. See id. at 1276 (“[I]f an
actor exceeds the consent provided, the permission granted does not protect
him from liability for conduct beyond that which is allowed.”); Gambon v. R &
F Enters., Inc., No. 6:14-cv-403-Orl-18GJK, 2015 WL 64561, at *4 (M.D. Fla.
15

Jan. 5, 2015) (“[T]he purpose of the call and existence of prior express consent
are . . . affirmative defenses for which the defendant bears the burden of
proof.”). According to Ocwen, “the evidence shows most of the calls were made
in an effort to reach [Bonnie] in direct response to her modification
applications.” (Doc. # 39 at 25). Yet Ocwen does not specify the exact calls
that were made to reach Bonnie regarding her loan modification applications.
Plus, proof that “most of the calls” may have been within Bonnie’s limited
consent does not satisfy Ocwen’s burden of proving that all of the calls were
within Bonnie’s limited consent.
Furthermore, Ocwen’s argument assumes that only Bonnie could
revoke Ocwen’s permission to call the -5620 number. However, consent to call
a given number must come from the “called party.” 47 U.S.C. § 227(b)(1)(A).
“Called party” does not mean the caller’s intended recipient. See Osorio, 746
F.3d at 1252 (“We accordingly reject State Farm’s argument that the
‘intended recipient’ is the ‘called party’ referred to in 47 U.S.C. §
227(b)(1)(A).”). Instead, “called party” means the current subscriber to the
phone service. Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265, 1267 (11th
Cir. 2014). A phone service’s current subscriber is “the person who pays the
bills or needs the line in order to receive other calls.” Osorio, 746 F.3d at 1251
(quoting Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 640 (7th Cir.
2012)).
16

When James became the primary user of the -5620 number in March
2016, he became the -5620 number’s subscriber. James was therefore the
called party for purposes of Section 227(b)(1)(A) when Ocwen called the -5620
number between March and August 2016. The parties’ arguments assume
that Bonnie’s consent allowing Ocwen to call the -5620 number constituted
consent for James as well. Logically, a party cannot revoke consent when it
never gave consent in the first place. Thus, assuming Ocwen had permission
to call James, the relevant inquiry is whether James – rather than Bonnie –
revoked the consent to call the -5620 number between March and August 2016.
Nevertheless, as Ocwen concedes, there are disputed issues regarding
whether James revoked whatever consent Ocwen had to call the -5620
number. (Doc. # 46 at 5). James argues he revoked Ocwen’s permission to call
the -5620 number during a phone call from an Ocwen representative on May
20, 2016. (Doc. # 41 at 11-12). Ocwen argues James’s statements during the
May 20, 2016, call did not constitute sufficient revocation. (Doc. # 49 at 4).
There is also evidence demonstrating James requested Ocwen to “quit
calling” on multiple occasions from June until August 2016. (Doc. # 42 at ¶¶
20-25). Whether James revoked his consent is a question for the jury that
cannot be resolved on summary judgment. See Miller v. Ginny’s Inc., 287 F.
Supp. 3d 1324, 1329 (M.D. Fla. 2017) (“Courts have repeatedly held that
where evidence conflicts as to whether consent was orally revoked, summary
17

judgment is not proper.”); Smith v. Markone Fin., LLC, No. 3:13-cv-933-J32MCR, 2015 WL 419005, at *3 (M.D. Fla. Feb. 2, 2015) (“Disagreement over
whether consent was orally revoked precludes summary judgment.”).
In sum, the Browns’ remaining TCPA claims are those based on
Ocwen’s alleged use of an artificial or prerecorded voice. 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 -5620 number. Finally, because summary judgment is denied
for both sides on the Browns’ remaining TCPA claims, the Court will not
address the Browns’ argument that James is entitled to treble damages
under Section 227(b)(3). (Doc. # 41 at 23-25).
B.

FCCPA

In Count I, Bonnie alleges Ocwen violated Section 559.72(7), Florida
Statutes, because Ocwen’s calls to the -5620 number were harassing and
abusive. (Doc. # 18 at 9-10). Before discussing the merits of Ocwen and the
Browns’ Motions, the Court must determine the relevant period for Bonnie’s
FCCPA claim. “An action brought under [the FCCPA] must be commenced
within 2 years after the date the alleged violation occurred.” § 559.77(4), F.S.
The Amended Complaint and the Browns’ Motion for Summary Judgment
discuss calls placed by Ocwen to the -5620 number between January 21,
2014, and August 29, 2016. (Doc. # 18 at 4-10; Doc. # 41 at 5; Doc. # 42 at ¶
18

11). The Browns filed this suit on January 17, 2018. (Doc. # 1). Accordingly,
only calls placed on or after January 17, 2016, are actionable. Ocwen did not
make any more calls to the -5620 number after August 29, 2016. (Doc. # 42 at
¶ 11). Thus, the relevant period for Bonnie’s FCCPA claim is January 17,
2016, through August 29, 2016 – a little more than seven months.
Section 559.72(7) provides that a person violates the FCCPA if they
“[w]illfully communicate 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 willfully engage in other conduct which can reasonably
be expected to abuse or harass the debtor or any member of her or his
family.” § 559.72(7), F.S. Generally, whether communications or other
conduct were willful and harassing are factual issues for the jury to decide.
See McCaskill v. Navient Sols., Inc., 178 F. Supp. 3d 1281, 1296 (M.D. Fla.
2016) (“[T]he question of whether conduct is harassing or abusive is
ordinarily an issue for the factfinder.”); Ortega v. Collectors Training Inst. of
Ill., Inc., No. 09-21744-CIV, 2011 WL 241948, at *9 (S.D. Fla. Jan. 24, 2011)
(“Florida courts have determined that whether calls are willful and harassing
are factual issues for the jury’s determination.”).
Proof of frequent calls, however, does not automatically demonstrate a
triable issue of fact at the summary judgment stage. Story v. J.M. Fields,
Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1997), cert. denied, 348 So. 2d 954
19

(Fla. 1977). Instead, liability under Section 559.72(7) is a fact-intensive
inquiry, determined by “the purpose as well as the frequency of the creditor’s
calls.” Id. Courts consider “not only the frequency of the calls but also the
legitimacy of the creditor’s claim, the plausibility of the debtor’s excuse, the
sensitivity or abrasiveness of the personalities and all other circumstances
that color the transaction.” Id. Accordingly, even if numerous calls were
made, Section 559.72(7) is not violated where “the creditor called only to
inform or remind the debtor of the debt, to determine his reasons for
nonpayment, to negotiate differences or to persuade the debtor to pay without
litigation.” Id. “However, if calls ‘continue after all such information has been
communicated and reasonable efforts at persuasion and negotiation have
failed,’ then the communication ‘can reasonably be expected to harass the
debtor’ and ‘tends only to exhaust the resisting debtor’s will.’” Miller, 287 F.
Supp. 3d at 1330-31 (quoting Story, 343 So. 2d at 677).
Ocwen argues summary judgment on Bonnie’s FCCPA claim is
warranted because Bonnie was not harassed or abused. (Doc. # 39 at 21-23).
Specifically, Ocwen contends Bonnie was not harassed because she did not
personally receive any phone calls; instead, James received the calls. (Id. at
21-22). Ocwen’s argument is unavailing, as there is evidence showing Bonnie
answered some of the calls and spoke with Ocwen representatives. More
importantly, Section 559.72(7) expressly prohibits harassing communications
20

with a member of the debtor’s family, such the debtor’s spouse. § 559.72(7),
F.S. Thus, a debtor need not personally receive the calls to bring a claim
under Section 559.72(7) if the creditor communicated with a member of the
debtor’s family in a manner that could reasonably be expected to harass the
debtor.
Ocwen further argues Bonnie was not harassed because “her claim
rests in its entirety on the number and frequency of the calls.” (Doc. # 39 at
22). True, “courts will grant summary judgment where a plaintiff rests on the
number of phone calls, without other evidence of harassing conduct.”
McCaskill, 178 F. Supp. 3d at 1296. Here, however, Bonnie has presented
evidence of harassment beyond the number of calls. For example, there is
evidence demonstrating multiple phone calls were made after the Browns
requested Ocwen stop calling them. See Smith, 2015 WL 419005, at *6
(“Proof of frequent calls, continuing after the plaintiff told the defendant to
stop calling, is sufficient to demonstrate a triable issue of fact.”). This
evidence alone distinguishes the cases relied on by Ocwen. Cf. Lardner v.
Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1226 (S.D. Fla. 2014)
(“Plaintiff does not set forth any additional evidence of egregious or harassing
behavior, such as requesting the communications stop.”); Tucker v. CBE Grp.,
Inc., 710 F. Supp. 2d 1301, 1305 (M.D. Fla. 2010) (“Plaintiff has not
demonstrated that [Defendant] engaged in oppressive conduct such as
21

repeatedly making calls after it was asked to cease.”). Furthermore, Bonnie’s
FCCPA claim rests on other circumstances that may suggest harassment,
such as Ocwen’s possible knowledge of the Browns’ personal difficulties.
Next, Ocwen argues summary judgment on Bonnie’s FCCPA claim is
warranted because Ocwen’s conduct was not willful. (Doc. # 39 at 23-25). The
plain language of Section 559.72(7) requires the defendant act “willfully.”
Bacelli v. MFP, Inc., 729 F. Supp. 2d 1328, 1337-38 (M.D. Fla. 2010).
“Willfully” is not defined by the FCCPA, but Florida courts have noted in the
context of the FCCPA that “[a] thing is willfully done when it proceeds from a
conscious motion of the will, intending the result which actually comes to
pass. It must be designed or intentional, and may be malicious, though not
necessarily so.” Story, 343 So. 2d at 677 (quoting Chandler v. Kendrick, 146
So. 551, 552 (Fla. 1933)); see also Harrington v. Roundpoint Mortg. Servicing
Corp., No. 2:15-cv-322-FtM-38MRM, 2017 WL 1378539, at *10 (M.D. Fla.
Apr. 11, 2017) (“[T]he statute’s use of the word ‘willful’ means that the calls
must be done consciously.”).
According to Ocwen, Bonnie “cannot show that Ocwen willfully placed
calls to [James] because all of the evidence demonstrates that Ocwen placed
calls to the [-5620 number] in an effort to communicate with [Bonnie], not her
husband.” (Doc. # 39 at 23-24). In other words, Ocwen interprets Section
559.72(7) as requiring proof that the debt collector’s conscious objective was
22

to call the specific person who answered the phone. Ocwen offers no case law
interpreting Section 559.72(7) so narrowly, and the Court is unpersuaded. Cf.
Desmond v. Accounts Receivable Mgmt., Inc., 72 So. 3d 179, 181 (Fla. 2d DCA
2011) (explaining Section 559.72(7) applies to situations of mistaken identity,
where the creditor calls the wrong number and alleges the unintended
recipient of the call owes a debt).
Regardless of Ocwen’s interpretation of the statute, the Court
concludes Ocwen willfully communicated with Bonnie for purposes of Section
559.72(7). As Ocwen concedes, its conscious objective of placing calls to the 5620 number was to communicate with Bonnie about her debt. (Doc. # 39 at
23-24). Bonnie answered Ocwen’s calls and spoke with its representatives on
a few occasions. Thus, if Ocwen’s conscious objective was to speak with
Bonnie, and Ocwen did in fact speak directly with Bonnie, then Ocwen
willfully communicated with Bonnie.
Likewise, Ocwen achieved its conscious objective of communicating
with Bonnie by indirectly communicating with her through its calls to the 5620 number and its conversations with James. “Communication” is defined
broadly under the FCCPA as “the conveying of information regarding a debt
directly or indirectly to any person through any medium.” § 559.55(2), F.S.
James often complained to Bonnie about the missed calls from Ocwen. See
Brown v. Flagstar Bancorp, Inc., No. 8:13-cv-2596-T-33TBM, 2014 WL
23

408821, at *2 (M.D. Fla. Feb. 3, 2014) (indicating unanswered calls may
constitute indirect communications under the FDCPA, which uses an
identical definition of “communication” as the FCCPA). Further, Ocwen spoke
with James about Bonnie’s debt and asked James to leave Bonnie messages
for her to call Ocwen back. See Miceli v. Orange Lake Country Club, Inc., No.
6:14-cv-1602-Orl-41DAB, 2015 WL 5081621, at *4 (M.D. Fla. Aug. 5, 2015)
(holding defendant’s voicemails left on plaintiffs’ cellphones requesting
plaintiffs or their spouses return defendant’s calls to discuss debt constituted
indirect communication); In re Runyan, 530 B.R. at 808 (holding creditor’s
communications with debtor’s spouse regarding debt constituted indirect
communications). Thus, if Ocwen’s conscious objective was to communicate
with Bonnie about her debt, then Ocwen willfully communicated with
Bonnie, albeit indirectly.
Ocwen also argues its conduct was not willful because it did not call
the Browns with the intent to harass. According to Ocwen, “the evidence
shows most of the calls were made in an effort to reach [Bonnie] in direct
response to her modification applications.” (Doc. # 39 at 25). Additionally, “at
least one of the purposes of Ocwen’s calls was to offer [Bonnie] the
opportunity to redeem her home.” (Id.). Yet evidence showing “most of the
calls” or “at least one” of the calls were motivated by Bonnie’s modification
applications or an opportunity to redeem her home does not mean all of the
24

calls were motivated by these things. See Scott v. Fla. Health Scis. Ctr., Inc.,
No. 8:08-cv-1270-T-24-EAJ, 2008 WL 4613083, at *4 (“Where the nature of
the collection attempts is ambiguous, evaluating the factual circumstances
and determining whether they constitute harassment or abuse becomes a
question of fact falling within the province of the jury.”).
Moreover, regardless of Ocwen’s purported motivation for the calls,
Ocwen made some of the calls after the Browns requested Ocwen stop calling
them. See Miller, 287 F. Supp. 3d at 1331 (“[C]alling after being asked to stop
may constitute egregious conduct in conjunction with daily calls that could be
considered to harass a debtor.”). Accordingly, Ocwen’s request for summary
judgment on Bonnie’s FCCPA claim is due to be denied.
However, Bonnie is not entitled to summary judgment on her FCCPA
claim either. Between May 20, 2016, and August 29, 2016, Ocwen placed 192
calls to the -5620 number, despite the Browns’ multiple requests that Ocwen
“quit calling.” Ocwen called the -5620 number nearly every day during this
three-month period, and unless the previous call that day was answered,
Ocwen almost always called three times per day. See Harrington, 2017 WL
1378539, at *11 (explaining “other egregious conduct” in addition to
numerous calls includes “calling multiple times in a single day . . . or calling
after being asked to stop”). Further, these calls continued after the
foreclosure proceeding began and even after the property was foreclosed. See
25

id. (“[I]t is foreseeable that [defendant’s] conduct could be considered to be
harassing by [plaintiff], who continued to receive calls after being referred to
[defendant’s] attorney, and indeed after the litigation process had started in
the underlying foreclosure case.”).
Nevertheless, whether these calls were harassing under Section
559.72(7) is a jury question. See Pollock v. Bay Area Credit Serv., LLC, No.
08-61101-Civ, 2009 WL 2475167, at *9 (S.D. Fla. Aug. 13, 2009) (“[T]he 187
phone calls presents a factual issue as to whether the actions were willful
and harassing.”); Story, 343 So. 2d at 677-78 (holding 100 calls over five
months, where calls came almost daily and sometimes two or three times per
day, continuing after defendant was told to quit calling, presented a jury
question); cf. Lardner, 17 F. Supp. 3d at 1226 (holding 132 calls over eight
months was insufficient to establish a jury question where plaintiff produced
no other evidence, “such as requesting the communications stop”).
Additionally, while Ocwen concedes its permission to call the -5620
number was revoked at some point (Doc. # 46 at 12-14), there are disputed
issues regarding exactly when this permission was revoked. See Miller, 287
F. Supp. 3d at 1331 (declining to grant summary judgment on claim under
Section 559.72(7) because there was conflicting evidence regarding consent).
Consequently, the Browns’ request for summary judgment on Bonnie’s
FCCPA claim is due to be denied as well.
26

IV.

Conclusion
As outlined above, the Browns’ Motion for Summary Judgment is

denied and Ocwen’s Motion for Summary Judgment is granted in part and
denied in part. Summary judgment is granted in favor of Ocwen on the
Browns’ TCPA claims based on the use of an ATDS. Thus, the Browns’
remaining TCPA claims are those based on Ocwen’s alleged use of an
artificial or prerecorded voice. The existence, scope, and revocation of
whatever consent Ocwen had to call the -5620 number is a question for the
jury. Likewise, whether Ocwen’s calls were harassing under Section 559.72(7)
is also a question for the jury.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Ocwen Loan Servicing LLC’s Motion for Summary
Judgment (Doc. # 39) is GRANTED IN PART AND DENIED IN
PART.

(2)

Ocwen’s Motion for Summary Judgment is GRANTED to the extent
judgment shall be entered in Ocwen’s favor for Plaintiffs Bonnie and
James Brown’s TCPA claims based on Ocwen’s alleged use of an
automatic telephone dialing system. Ocwen’s Motion for Summary
Judgment is DENIED as to the Browns’ remaining TCPA and FCCPA
claims.
27

(3)

The Browns’ Motion for Summary Judgment (Doc. # 41) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 5th day

of September, 2019.

28