United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Losch alleges that Advanced Call Center Technologies, LLC
(“ACCT”) violated the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227
et seq., and the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., Doc. 1, by calling her cell phone on numerous
occasions over a two-week period. Doc. 1. With discovery
closed and a jury trial set for September 11, 2017, Doc. 46,
ACCT has moved for summary judgment, Doc. 32. The motion is
granted as to the TCPA claim and denied as to the FDCPA
following facts are stated as favorably to Losch as permitted
by the record and Local Rule 56.1. See Woods v. City of
Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In
considering ACCT’s motion, the court must assume the
truth of those facts, but does not vouch for them. See
Arroyo v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 281 (7th
visited a Banana Republic store in Chicago on May 4, 2014.
Doc. 34 at ¶ 16; Doc. 39 at 4. She decided to obtain a
Banana Republic credit card after a sales associate explained
that it would entitle her to a discount for her purchases
that day. Doc. 39 at 6. The sales associate briefly reviewed
the terms of the credit card agreement with Losch, and she
then signed the agreement and provided her cell phone number.
Doc. 34 at ¶ 17; Doc. 39 at 4, 7. Losch was generally
familiar with how the credit card worked, and she knew that
she would be bound by the terms of the credit card agreement
even if she did not read them. Doc. 34 at ¶¶ 18,
20; Doc. 39 at 4. Among those terms were the following:
This Agreement. This is an Agreement between
you and Synchrony Bank, 170 Election Road, Suite 125, Draper,
UT 84020, for your credit card account shown above. By
opening or using your account, you agree to the terms of the
entire Agreement. The entire Agreement includes the four
sections of this document and the application you submitted
to us in connection with the account. These documents replace
any other agreement relating to your account that you or we
made earlier or at the same time.
Consent To Communications. You consent to us
contacting you using all channels of communication and for
all purposes. We will use the contact information you provide
to us. You also consent to us and any other owner or servicer
of your account contacting you using any communication
channel. This may include text messages, automatic telephone
dialing systems, and/or an artificial or prerecorded voice.
This consent applies even if you are charged for the call
under your phone plan. You are responsible for any charges
that may be billed to you by your communications carriers
when we contact you.
Doc. 34 at ¶ 22; Doc. 39 at 4.
charged the purchases she made at Banana Republic that day to
the Banana Republic card, and she later used the card to pay
for other purchases. Doc. 34 at ¶¶ 16, 24; Doc. 39
at 4. In the late summer or early fall of 2014, Losch began
experiencing financial hardship and stopped making payments
on the card. Doc. 34 at ¶¶ 26-27; Doc. 39 at 4.
makes outbound debt collection calls on behalf of Synchrony
Bank, the bank that issued Losch’s card. Doc. 34 at
¶ 5; Doc. 39 at 2. ACCT was assigned to make collection
calls to Losch, and it used an automatic dialer system to
call the cell phone number that Losch provided on her credit
card application. Doc. 34 at ¶¶ 8-9, 31; Doc. 39 at
3, 5, 8-9. That system is preset to make up to five calls per
day, with calls placed no more than ninety minutes apart.
Doc. 34 at ¶¶ 13-14; Doc. 39 at 3. ACCT called
Losch 87 times between December 5 and December 23, 2014. Doc.
34 at ¶ 11; Doc. 39 at 3, 7. Three to five calls were
placed each day, and no two calls were made less than about
two hours apart. Doc. 34 at ¶¶ 13, 41; Doc. 34-4 at
25-30; Doc. 39 at 3, 5. The earliest call occurred at 9:07
a.m., and the latest at 8:42 p.m. Doc. 34 at ¶ 42; Doc.
39 at 5.
did not pick up any of the calls until December 23. Doc. 34
at ¶ 46; Doc. 39 at 5. On that occasion, she told the
ACCT representative that she was unable to pay the debt and
asked that ACCT halt the calls. Doc. 34 at ¶¶
47-48; Doc. 39 at 6. ACCT did not call her again. Doc. 34 at
¶ 49; Doc. 39 at 6.
asserts that ACCT called her parents’ phone number as
well as her own. Doc. 39 at 5, 8. Losch’s only
evidentiary support for that assertion is a portion of her
own deposition testimony in which she repeats a statement
that her parents made to her. Doc. 34-1 at 8 (“My
parents said they received a few calls … .”).
That testimony is inadmissible hearsay, see Fed. R.
Evid. 801, 802, which may not be used at summary judgment.
See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.
2009) (“A party may not rely upon inadmissible hearsay
to oppose a motion for summary judgment.”).