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Tammy Dobbin, Colleen Dobbin, and Dolores Hart v. Wells Fargo Auto Finance

June 14, 2011

TAMMY DOBBIN, COLLEEN DOBBIN, AND DOLORES HART, PLAINTIFFS,
v.
WELLS FARGO AUTO FINANCE, INC., SILICON VALLEY RECOVERY, INC.,
F-3 SOLUTIONS, LLC, AND RELIABLE RECOVERY SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiffs Tammy Dobbin, Colleen Dobbin, and Dolores Fletcher Hart have sued Wells Fargo Auto Finance (Wells Fargo), Silicon Valley Recovery, Inc., F3 Solutions, LLC, and Reliable Recovery Services, alleging invasion of privacy, defamation, and violations of the Illinois Collection Agency Act and the Illinois Consumer Fraud Act. Tammy and Colleen Dobbin also assert, on behalf of a putative class, a claim against Wells Fargo for violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.

Defendants have filed various motions for summary judgment. In this decision, the Court considers Wells Fargo's motion for summary judgment on Tammy and Colleen Dobbin's TCPA claim. For the reasons stated below, the Court grants the motion.

Background

In October 2006, Hart purchased a car for her granddaughter, Tammy Dobbin. In connection with the purchase of the car, Hart signed a motor vehicle retail installment contract that was assigned to Wells Fargo. Hart did not make the required payments under the contract. Wells Fargo call center agents contacted plaintiffs in an attempt to recover the overdue payments. Wells Fargo also hired the other three defendants to collect the debt and repossess the car.

Plaintiffs allege that defendants, during the course of their collection efforts, violated the Illinois Collection Agency Act (count 1), invaded plaintiffs' right to seclusion (count 2), wrongfully published private facts about them (count 3), engaged in unfair competition in violation of the Illinois Consumer Fraud Act (count 4), and defamed them (counts 5 and 6). Tammy and Colleen Dobbin also allege, on behalf of themselves and a putative class, that Wells Fargo violated the TCPA by calling their cell phones without permission using an automatic telephone dialing system (count 7). In this decision, the Court addresses Wells Fargo's motion for summary judgment on the TCPA claim.

The parties agree on the following facts. Wells Fargo uses a predictive dialer called the "Conversations System" to communicate with customers. A predictive dialer is a type of automatic telephone dialing system that uses generated, stored, or otherwise entered phone numbers to automatically make outgoing telephone calls. Wells Fargo's predictive dialer also has the capacity to connect available call center agents with successfully completed outbound calls.

One component of the Conversations System, the universal server, stores or produces phone numbers to be dialed. The universal server then passes the numbers on to the digital communications processor, which dials them. When an outbound call is successfully dialed, the digital communications processor can either play a pre-recorded message or connect the call to the desk phone of an available call center agent.

Each agent at a Wells Fargo call center sits at a cubicle with a desk phone and a computer. The computers support a software program called Magellan through which call center agents are able to log into the universal server. Once an agent has logged into the universal server, the Conversations System can connect the agent to successfully completed outbound calls through the desk phone.

An agent may also make outbound phone calls by manually dialing a phone number into the keypad of the desk phone. An agent need not log into the universal server to make an outbound call in this manner. An agent may work part of the day by using the desk phone's keypad to manually dial calls and part of the day accepting autodialed calls from the Conversations System. The agent uses the same desk phone for all such calls.

Discussion

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, the Court draws reasonable inferences in favor of the non-moving party. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Summary judgment is not appropriate 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

The TCPA provides, in relevant part:

It shall be unlawful for any person within the United ...


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