Johnson v. JP Morgan Chase

Filing 21

OPINION AND ORDER granting 17 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EMMITT JOHNSON,

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§

Plaintiff,
VS.
JPMORGAN CHASE,
Defendant.

ENTERED
November 18, 2015
David J. Bradley, Clerk

Civ. A. H-14-1706

OPINION AND ORDER
Pending before the Court in the above referenced cause,
alleging violations of the Telephone Consumer Protection Act
(“TCPA”), 42 U.S.C. § 227(b)(1)(A)(ii), the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692(d)(5), and the Texas
Finance

Code,

section

392.304

(Texas

Debt

Collection

Act

(“TDCA”)), is Defendant JPMorgan Chase Bank, N.A.’s (“JPMC’s”)
motion for summary judgment (instrument #17).

Plaintiff Emmitt

Johnson has failed to file a response and thus failed to meet its
burden of proof on summary judgment.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure
56(c) is appropriate when, viewing the evidence in the light most
favorable

to

the

nonmovant,

the

court

determines

that

“the

pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”

A dispute of material

fact is “genuine” if the evidence would allow a reasonable jury to

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find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where the nonmovant bears the burden of proof at
trial,

the

movant

must

offer

evidence

that

undermines

the

nonmovant’s claim or point out the absence of evidence supporting
essential elements of the nonmovant’s claim; the movant may, but
does not have to, negate the elements of the nonmovant’s case to
prevail on summary judgment.”

Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S.
871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431
(5th Cir. 1998).
essential

element

“A complete failure of proof concerning an
of

the

nonmoving

renders all other facts immaterial.”

party’s

case

necessarily

Celotex, 477 U.S. at 323.

If the movant meets its burden and points out an absence
of evidence to prove an essential element of the nonmovant’s case
on which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate
that there is a genuine issue of material fact for trial.
National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40
F.3d 698, 712 (5th Cir. 1994).

“[A] complete failure of proof

concerning an essential element of the nonmoving party’s case
renders all other facts immaterial.”

Celotex, 477 U.S. at 323.

The nonmovant may not rely merely on allegations, denials in a
pleading or unsubstantiated assertions that a fact issue exists,
but must set forth specific facts showing the existence of a
genuine issue of material fact concerning every element of its
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cause(s) of action.

Morris v. Covan World Wide Moving, Inc,, 144

F.3d 377, 380 (5th Cir. 1998).
Conclusory allegations unsupported by evidence will not
preclude summary judgment.

National Ass’n of Gov’t Employees v.

City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996). “‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”

State

Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).

“Nor is the ‘mere scintilla of evidence’ sufficient;

‘there must be evidence on which the jury could reasonably find
for the plaintiff.’” Id., quoting Liberty Lobby, 477 U.S. at 252.
The Fifth Circuit requires the nonmovant to submit “‘significant
probative evidence.’” Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).

“If the evidence is merely colorable,

or

probative,

is

not

significantly

summary

judgment

may

be

Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th

granted.”

Cir. 1999), citing Celotex, 477 U.S.

at 322, and Liberty Lobby,

477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
Wallace

v.

Texas

Tech

Univ.,

80

F.3d

1042,

1047

(5th

Cir.

1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for
the

party

opposing

the

motion
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for

summary

judgment,

“only

evidence-–not argument, not facts in the complaint--will satisfy’
the burden.”), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d
160, 164 (5th Cir. 1991).

The nonmovant must “go beyond the

pleadings and by [his] own affidavits, or by depositions, answers
to interrogatories and admissions on file, designate specific
facts showing that there is a genuine issue of material fact for
trial.”

Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir.

2001), citing Celotex, 477 U.S. at 324.
JPMC’s Motion for Summary Judgment
With supporting evidence, JPMC presents the following
undisputed facts.

On or about October 11, 2002 when Plaintiff

sought a loan from Washington Mutual, he provided the bank with
his cellular telephone number as a means of contacting him.
A-1.

Ex.

He obtained the loan, which was secured by a deed of trust

(Ex. A-2), on or about December 11, 2002.

On September 25, 2008,

JPMC purchased some assets and liabilities of Washington Mutual,
including all loans and loan commitments, from the Federal Deposit
Insurance Corporation.

Ex. C.

On approximately September 21,

2009 Plaintiff sought a loan modification.

Ex. A-3.

Around

August 31, 2011 Plaintiff sent JPMC a letter asking JPMC not to
call him at home or at work.

Ex. B-1.

On or about October 29 and

31, 2011 by two facsimiles Plaintiff provided his cell phone
number as his contact information and requested that he be reached
at that number.

Exs. A-10. A-11.

Around June 4, 2012, Plaintiff

sent another facsimile to JPMC containing a flat fee MLS listing
agreement

that

identified

the

communicating with him.
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same

cell

phone

number

for

JPMC argues that it is entitled to summary judgment as
a matter of law on each of Plaintiff’s claims.
First, 47 U.S.C. § 227(b)(1)(A)(ii) of the TCPA relates
to calls made “to the telephone line of any guest room or patient
room of a hospital, healthcare facility, elderly home, or similar
establishment,” clearly not applicable here.

If Plaintiff meant

to cite § 227(b)(A)(iii)(“to any telephone number assigned to a
paging service, cellular telephone service, specialized mobile
radio service, or other radio common carrier service, or any
service for which the called party is charged for the call”), JPMC
insists it is still entitled to summary judgment because Plaintiff
provided that number in connection with the loan and thus gave his
prior express consent to be called at that number.

Ex. A-1;

Cherkaoui v. Satander Consumer USA, Inc., 31 F. Supp. 3d 811, 815
(S.D. Tex. 2014)(“Plaintiff’s provision of his cell phone number
on the Credit Application constitutes his prior express consent to
be contacted on that cell phone using an automated telephone
dialing system.”), citing In re Rules & Regulations Implementing
the

Tel.

Consumer

Prot.

Act

of

1991,

23

F.C.C.R.

559,

564

(2008)(Although the general rule is that autodialed calls to
wireless phones are not permissible, under the exception for
wireless numbers provided by the called party as part of a credit
application, such calls are allowed because the called party has,
in effect, given his permission).

Even though Plaintiff relies on

two letters to demonstrate that he revoked his consent to be
called

at

that

number,

specifies that number.

in

actuality

Exs. B-1, B-2.
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neither

of

the

letters

Furthermore, Plaintiff

provided that number numerous times before and after he allegedly
revoked his consent.

Exs. A-3--A-12.

On October 31, 2011

Plaintiff expressly asked to be called at that number.

A-11.

On

June 4, 2011 he provided the number to JPMC in connection with his
request for mortgage assistance.

A-12.

There is no evidence that

he revoked his consent to be called at this number, and he
continued to provide that cell phone number even after he revoked
his consent to be called at his home and work numbers.

Because

Plaintiff gave his prior, express consent to call the cell phone
number and did not revoke his consent, JPMC is entitled to summary
judgment on the TCPA.

The Court agrees that JPMC has provided

substantial evidence supporting its TCPA argument, while Plaintiff
has failed to meet his burden to raise a genuine isssue of
material fact or law.
As for Plaintiff’s claim under the FDCPA, JPMC insists
that it prevails because it is not a “debt collector” as defined
under the Act, 15

U.S.C. § 1692(a)(6), which expressly excludes

from the statutory definition “any person collecting or attempting
to collect any debt owed or due or asserted to be owed or due
another to the extent such activity . . . concerns a debt which
was not in default at the time it was obtained by such person.”
15 U.S.C. § 1692a(6)(F)(iii). See Perry v. Steward Title Co., 756
F.2d 1197, 1208 (5th Cir. 1985)(“The legislative history of section
1692a(6) indicates conclusively that a debt collector does not
include the consumer’s creditors, a mortgage servicing company, or
an assignee of a debt, as long as the debt was not in default at
the time it was assigned.”).

Because JPMC is the owner of the
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debt, it is a creditor of Plaintiff (Ex. C), and it is also the
servicer of the loan (Ex. A, ¶ 3). A bona fide creditor and
service of Plaintiff’s loan is not a debt collector subject to the
FDCPA.

Here, too, the Court concurs.
Finally JPMC maintains it did not violate Texas Finance

Code § 392.304, which prohibits the use of fraudulent, deceptive
or misleading representations.

Plaintiff does not

JPMC used such misrepresentations.

allege that

Nor can Plaintiff’s Complaint

be read to assert a violation of § 392.302.1

To state a claim for

violating the TDCA, a Plaintiff must allege facts showing that (1)
Defendant is a debt collector, (2) Defendant committed a wrongful
act in violation of the TDCA, (3) the wrongful act was committed
against Plaintiff, and (4) Plaintiff was injured as a result of
Defendant’s wrongful act.

1

Tex. Fin. Code §§ 392.001-392.404.

Section 392.302 of the Texas Finance Code provides,

In debt collection, a debt collector may not
oppress, harass, or abuse a person by
(1) using profane or obscene language or
language intended to abuse unreasonably
the hearer or reader;
(2) placing telephone calls without disclosing the
name of the individual making the call and with
the intent to annoy, harass, or threaten a person
at the called number;
(3) causing a person to incur a long distance
telephone toll, telegram fee, or other charge by a
medium of communication without first disclosing
the name of the person making the communication
or;
(4) causing a telephone to ring repeatedly or
continuously, or making repeated or continuous
telephone calls with the intent to harass a person
at the called number.
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Essential

to

a

claim

under

§

392.202

endeavoring to collect a consumer debt.

is

that

Defendant

is

As indicated, Plaintiff

was attempting to obtain a modification of his loan and asked a
number of times that JPMC contact him by his cell phone number.
Exs. A-3--A-12.

Communications relating to modification of a debt

are not debt collection activities within the meaning of the TDCA.
Thompson v. Bank Of America Nat. Ass’n, 783 F.3d 1022, 1026-27 (5th
Cir. 2015)(“Communications in connection with the renegotiation of
a loan do not concern the collection of a debt, but, instead,
relate to its modification and thus they do not state a claim
under Section 392.304(a)(19)), citing Singha v. BAC Home Loans
Servicing, LP, 564 Fed. Appx. 65, 71 (5th Cir. 2014).

Because JPMC

did not engage in conduct that constitutes debt collection for
TDCA purposes, it is entitled to summary judgment.

Again this

Court agrees.
Accordingly, for the reasons stated above, the Court
ORDERS that JPMC’s motion for summary judgment (#17) is
GRANTED.

Final Judgment will issue by separate document.
SIGNED at Houston, Texas, this 18th

day of November,

2015.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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