United States District Court, N.D. Illinois, Eastern Division
MARK WOLFKIEL and KELLI MAJIROS, Individually and on behalf of all others similarly situated, Plaintiffs,
INTERSECTIONS INSURANCE SERVICES INC., an Illinois corporation, and OCWEN LOAN SERVICING, LLC, a Delaware corporation, Defendants.
MEMORANDUM OPINION AND ORDER
JAMES B. ZAGEL, District Judge.
Plaintiffs Mark Wolfkiel and Kelli Majiros brought a class action complaint against Defendants Ocwen Loan Servicing ("Ocwen") and Intersections Insurance Services ("Intersection") for making unsolicited phone calls in violation of the Telephone Consumer Protection Act ("TCPA"). 47 U.S.C. § 227 et seq. Defendants filed a motion to dismiss Plaintiff Majiros' claim and to strike all class allegations. Fed.R.Civ.P. 12(b)(6), 12(f). For the following reasons, Defendants' motion to dismiss is granted, and the motion to strike is granted in part and denied in part.
The facts are taken as true from Plaintiffs' allegations in the First Amended Class Action Complaint ("Complaint"). Plaintiffs Wolfkiel and Majiros are individuals whose mortgages are serviced by Defendant Ocwen. Plaintiffs received unsolicited marketing phone calls from Defendants. Plaintiffs allege that these calls were made in violation of the TCPA.
Wolfkiel's mortgage was transferred to Ocwen in 2012. He began to receive phone calls to his cellular phone in March 2012. He did not answer the calls at first, but later in April 2012, he called the number to inquire about the source and reason for the calls. The phone number led to Defendant Ocwen. Wolfkiel was told that the purpose of the calls was to offer him Intersection's identity theft membership service. As Wolfkiel had no interest in the offered service, he told the telemarketer that he did not wish to receive any more telemarketing calls. Despite his request, Plaintiff Wolfkiel continued to receive calls from the same number. Wolfkiel spoke to the telemarketers again in June and December of 2012 and indicated that he was not interested and requested that he no longer receive the calls. Plaintiff Wolfkiel alleges that he never consented to receiving telemarketing calls from Ocwen or Intersection, and in any case, he should not have received more calls after he made a request to stop such calls.
Majiros received unsolicited phone calls from Defendant Intersection to her landline, which has been listed on the National Do Not Call Registry since August 2010. Majiros' mortgage was transferred to Ocwen in March 2013. She began to receive calls in July 2013. The caller ID indicated that the caller was "Intersection In, " which she alleges was Defendant Intersection.
On August 1, 2013, Majiros answered the phone and demanded that the caller cease calling her. She also informed the caller that the number was registered on the National Do Not Call Registry. She received more calls the next day and this time was told by the telemarketer that the purpose of the calls was to sell "Ocwen's Optional Medical Discount Program." The telemarketer provided Majiros with a phone number which she could call to find out more about the medical discount program. This number was different from the number Majiros identified with the caller ID.
Majiros alleges that the number the telemarketer gave her is associated with a website registered to Intersections Inc., which is the parent company of Defendant Intersections Insurances. According to the website Plaintiff Majiros visited, Intersections Insurance Services sells healthcare discount services named "AdvantageCare Plus, " "in cooperation with many large banks, mortgage companies, and other financial institutions." Majiros also alleges that she never consented to receiving telemarketing calls from either Defendant.
Defendants now move to dismiss Plaintiff Majiros' claim on the grounds that she cannot state a valid TCPA claim because she had an existing business relationship with Defendant Ocwen. Defendants also move to strike Plaintiffs' class allegations. I will address the two motions in turn.
I. Motion to Dismiss Plaintiff Majiros' Claim
When considering a motion to dismiss under Rule 12(b)(6), the court accepts all well-pled allegations as true and construes all reasonable inferences in favor of the plaintiff. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009). A plaintiff need not allege all facts involved in a claim. See Sanjuan v. Am. Bd. Of Psychiatry & Neurology, Inc. 40 F.3d 247, 251 (7th Cir. 1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that the plaintiff is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). The complaint must contain sufficient factual matter to state a claim, and raise a right to relief above a speculative level. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012) (quoting Twombly, 550 U.S., at 555); E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).
TCPA provides grounds for private action if a person has "received more than one telephone call within any 12-month period by the same entity in violation of the regulations prescribed under [the TCPA]." 47 U.S.C §227(c)(5). The applicable federal regulation is found in 47 C.F.R. § 64.1200, which provides, "[n]o person or entity shall initiate any telephone solicitation to... a residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry. 47 C.F.R. § 64.1200(c)(ii). The regulations, however, do not prohibit calls to persons with whom the seller has an "established business relationship, " unless the recipient has previously made a specific do-not-call request to the caller. See 47 C.F.R. § 64.1200(f)(5)(i), (f)(14)(ii).
The current rules define the term "established business relationship" ("EBR") as "a... relationship... on the basis of an inquiry, application, purchase or transaction by the [recipient]." 47 C.F.R. § 64.1200(f)(5). The Federal Communications Commission ("FCC") has explained that financial transactions, including mortgages, qualify as established business relationships. 20 F.C.C.R. 3788, ¶ 26 (F.C.C. 2005). The seller is entitled to call a consumer based on its EBR with a customer. 18 F.C.C.R. 14014, ¶ 118 (F.C.C. 2003). The EBR may extend to third parties in limited cases. For example, where a company hires third-party telemarketers to market its own services and products, the telemarketers may rely on the seller's EBR to call an individual consumer. Id. at ¶ 116. However, it does not extend to marketing partners for purposes of ...