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Losch v. Advanced Call Center Technologies LLC

United States District Court, N.D. Illinois, Eastern Division

April 12, 2017

JENNA LOSCH, Plaintiff,
v.
ADVANCED CALL CENTER TECHNOLOGIES, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman Judge.

         Jenna 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 claim.

         Background

         The 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 Cir. 2015).

         Losch 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.

         Losch 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.

         ACCT 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.

         Losch 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.

         Losch 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.”).

         Discussion

         I. ...


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