Quinones v. Ocwen Loan Servicing, LLC
Quinones v. Ocwen Loan Servicing, LLC
Opinion of the Court
*1209Presently before the court is Defendant's Motion to Dismiss. Having considered the parties' submissions, the court adopts the following Order.
I. BACKGROUND
Plaintiff Richard Quinones ("Quinones") allegedly incurred debts from Defendant Ocwen Loan Servicing, LLC ("Ocwen"). (Second Amended Compl. ("SAC") ¶ 18.) Between April 4, 2011 and June 9, 2016, Ocwen called Quinones' cellphone using an automatic telephone dialing system ("ATDS") in attempts to collect the alleged debt. (Id. ¶ 19.) When Quinones answered the calls, there would often "be silence with a click or a beep-tone, before a representative would pick up and start speaking." (Id. ¶ 21.) On other occasions, the caller was a recorded voice or message. (Id. ¶ 22.) In total, Quinones received at least 1,053 calls. (Id. ¶ 23.)
Quinones alleges he did not provide express consent to receive calls from Ocwen. (Id. ¶ 26.) Furthermore, Quinones states he revoked any type of prior express consent, if it ever existed, by picking up the calls and stating on several occasions that he no longer wished to be contacted. (Id. ¶ 27.) Quinones alleges the calls continued for at least one year after the revocation. (Id. ¶ 28.)
Based on these allegations, Plaintiff Quinones brought suit against Ocwen for violations of the Telephone Consumer Protection Act ("TCPA"),
II. LEGAL STANDARD
A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal ,
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief."
III. DISCUSSION
A. Standing
Defendant contends that Quinones cannot establish Article III standing because he has not adequately pled an "injury in fact" arising from Defendant's conduct. (Def.'s MTD at 6). To satisfy the "injury in fact" requirement, a plaintiff must have suffered "an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Spokeo v. Robins , --- U.S. ----,
Quinones asserts that he has met this standard in his pleading. As to injury, the SAC alleges that Quinones suffered an invasion of his privacy interests and became "frustrated and distressed" that the collection calls continued despite his instructions that Defendant stop calling him. (SAC ¶¶ 35, 36). It further alleges that the calls "disrupted Plaintiff's daily activities and the peaceful enjoyment of Plaintiff's personal and professional life, including the ability to use Plaintiff's phone." (SAC ¶ 37). Finally, the SAC claims that the calls intruded on Plaintiff's relationships with close family members. (SAC ¶ 38). Quinones began to "ignore or send to voicemail many incoming calls from unknown numbers, out of frustration in dealing with Defendant'[s] unwanted and intrusive calls. In doing so, Plaintiff missed important communications from friends and family." (SAC ¶ 38).
The court finds that the harms alleged are particularized to Quinones and sufficiently concrete to confer Article III standing. In Van Patten v. Vertical Fitness Grp., LLC ,
Although Defendant's phone calls to Quinones were ostensibly for the purpose of debt collection and not telemarketing, the court finds that a similar reasoning applies here.
Moreover, the court finds that the district court cases upon which Defendant relies, namely Romero and Ewing , are inapposite because they adopt a higher standard to satisfy Article III standing requirements under the TCPA, and were decided before the Ninth Circuit had the opportunity to construe Spokeo through its ruling in Van Hutton. See Romero v. Dep't Stores Nat'l Bank ,
B. Negligence
To state a claim for negligence under California law, Quinones must allege that Ocwen "had a duty to use due care, that [it] breached that duty, and that the breach was the proximate or legal cause of the resulting injury." Hayes v. Cty. of San Diego ,
Quinones' SAC states that "Defendant had a duty of care to Plaintiff to use ... reasonable skill and care in carrying out account activities. Specifically, Defendant had a duty to act reasonably when collecting an alleged debt from Plaintiff, including the means and methods of contacting Plaintiff." (SAC ¶ 59.) Quinones further alleges that "Defendant had a duty to use care to not infringe on consumers' privacy rights when collecting on alleged debts and not calling Plaintiff hundreds and/or thousands of times to harass and/or abuse Plaintiff." (Id. ¶ 59.) The SAC concludes that Defendant breached this duty by calling him a "voluminous number of times" and "continued to call despite Plaintiff's request that the calls stop." (Id. ¶ 59.)
As an initial matter, the court does not rule out the existence of a duty of care as it relates to Ocwen's conduct in this case. In the context of a lender-borrower relationship, courts have held that some activities are not protected by a duty of care. See McCarty v. GCP Mgmt., LLC , No. CIV 10-00133 JMS/KSC,
*1212Yet none of these courts addressed the situation at hand here, where a lender uses the borrower's personal phone number without consent and places a voluminous number of calls regarding the debt. In effect, "Defendant went beyond its role as a lender to become an aggressive debt collector, calling Plaintiff 1,053 times." (Pl.'s Opp. at 4, Dkt. 35). Arguably, such repeated and non-consensual conduct does not fall within the typical "scope of [a lender's] conventional role as a mere lender of money," and could therefore warrant the imposition of a duty of reasonable care. Cf. Mercury Sav. & Loan Ass'n,
In cases concerning debt collection, some courts have declined to find a duty of care when the lender's conduct appeared to fall within the "scope of [their] conventional role as a mere lender of money." See Inzerillo v. Green Tree Servicing LLC , No. 13-CV-06010-MEJ,
Finally, in support of its argument that Ocwen owed no duty of care to Quinones, Defendant advances the general proposition that "where a statute provides for civil remedies, a plaintiff's recourse is under the statute, not with a negligence claim." (Def.'s MTD at 4). This proposition, however, does not reflect the holdings of the cases that Defendant cites in support, Chaconas and Sailola .
In Chaconas , the plaintiff failed to state a negligence claim arising from debt collection calls. Chaconas v. JP Morgan Chase Bank ,
Defendant's citation to Sailola is inapposite as well. The Sailola court dismissed a negligence claim with leave to amend, holding that the plaintiff had failed to *1213identify a specific duty of care that the defendant had violated, separate from the defendant's violations of the TCPA or the Hawaii statutes. Sailola v. Mun. Servs. Bureau , Civ. No. 13-00544 HG-RLP,
C. Punitive Damages
Under state law, punitive damages are proper when clear and convincing evidence shows that the defendant acted with oppression, malice or fraud. See
At this relatively early stage in the litigation, the court declines to dismiss Plaintiff's request for punitive damages. Taking each of Quinones' allegations as true, Defendant may have engaged in behavior with "a conscious disregard" of his rights,
IV. CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss is DENIED.
IT IS SO ORDERED.
The TCPA regulates not only calls made for the purpose of solicitation, but also calls made to cell phones using ATDS systems. See
Absent the proper context, Inzerillo 's pronouncement that "Defendant had no legal duty to engage in fair, honest, and respectful practices in the collection of consumer debts,"
Reference
- Full Case Name
- Richard QUINONES v. OCWEN LOAN SERVICING, LLC
- Cited By
- 1 case
- Status
- Published