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Franklin v. Navient Corp.

United States District Court, D. Delaware

September 5, 2019

RICKY R. FRANKLIN, Plaintiff,
v.
NAVIENT CORPORATION, et al., Defendants.

          Ricky R. Franklin, Stockbridge, Georgia; Pro Se Plaintiff.

          Joelle Eileen Polesky, Esquire, Stradley Ronon Stevens & Young, LLP, Wilmington, Delaware, Counsel for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff Ricky R. Franklin, who appears pro se and has been granted leave to proceed in forma pauperis, filed this action on November 13, 2017, raising claims pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227, et seq., and the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (D.I. 2). The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Pending is a motion for summary judgment filed by Defendants Navient, Inc. and Student Assistance Corporation (improperly named as Student Assistance, Inc.) and Plaintiffs opposition. (D.I. 32, 37). The matter has been fully briefed. For the reasons discussed below, the Court will grant in part and deny in part Defendants' motion.

         I. BACKGROUND

         On June 28, 2004, Plaintiff obtained a federal consolidation loan (i.e., student loan) under the Federal Family Education Loan Program. (D.I. 35 at¶4; D.I. 35 at Ex. 1). Plaintiffs student loan is guaranteed against default by the United States Department of Education. (Id. at ¶ 5). Navient serviced Plaintiffs student loan during the relevant time-frame as set forth in the Complaint. (Id. at ¶ 6). Student Assistance Corporation is an affiliate of Navient and assisted in the servicing of Plaintiffs student loan. (Id. at ¶ 7). Plaintiff did not own a telephone number ending in 3733 when he entered into the 2004 contract. (D.I. 37-2 at 2 at ¶ 4). He began using the cellular telephone number ending in 3733 in November 2011. (Id.).

         Navient has not received any payments toward Plaintiffs student loan since June 8, 2007. (D.I. 35 at ¶ 25). Beginning on or about April 30, 2012, Plaintiff executed the first of four unemployment deferment requests. (Id. at ¶ 10). The deferment requests included Plaintiffs cellular telephone number ending in 3733, and Plaintiff agreed to allow "the school, the lender, the guarantor, the Department, and their respective agents and contractors to contact me regarding my loan(s), including repayment of my loan(s), at the current or any future number that I provide for my cellular telephone or other wireless device using automated dialing equipment or artificial or prerecorded voice or text messages." (Id. at ¶ 10; and Ex. 2). Navient accepted the terms in Plaintiffs April 30, 2012 deferment request and deferred the payments due under his student loan. (Id. at¶11).

         Plaintiff executed deferment requests on March 13, 2013 and August 25, 2014, which included the 3733 number and express language consenting to automated dialing equipment or artificial or prerecorded voice or text messages. (Id. at ¶¶ 12, 14; and Ex. 3). Navient accepted the terms of Plaintiffs second and third deferment requests, and Plaintiffs student loan payments were deferred. (Id. at ¶¶ 13, 15.)

         According to Plaintiffs log, between January 25, 2015 and March 24, 2015, Defendants called the 3733 number 17 times. (D.I. 37 at Ex. A at ¶ 12-13; Ex. F). According to Plaintiff, when he was called at the 3733 number on January 26, 2015, and on March 24, 2015, he told representatives that they did not have permission to call him on his cell phone. (Id. at Ex. A at ¶ 7). According to Plaintiff, he sent Defendants letters in March 2014 and March 2015 requesting all "correspondence requests to be done in writing," referring to his Exhibit E. (Id. at 7, Ex. A at ¶ 6, Ex. E). The letters at Exhibit E request written debt validation information. (Id. at Ex. E).

         According to Andrew Reinhart, Navient senior account analyst, Navient first began calling Plaintiff's 3733 number on March 17, 2015. (D.I. 34 at¶¶4, 5 and Ex. 1; D.I. 35 at¶ 16). According to Defendants, Navient placed five calls to Plaintiffs 3733 number between March 17, 2015 and March 24, 2015, all made using Navient's interactive intelligence telephone system. (D.I. 34 at ¶ 6 and Ex. 1 at DEF000037).

         When Plaintiff executed a fourth deferment request on March 31, 2015, he provided the 3733 number and consented to automated dialing equipment or artificial or prerecorded voice or text messages. (D.I. 35 at ¶ 17 and Ex. 5). Navient accepted the terms in the March 31, 2015 deferment request and deferred Plaintiff's student loan payments. (Id. at ¶ 18). On September 24, 2015, Plaintiff executed a forbearance request and authorized "the entity to which I submit this request (ƒ.e. the school, the lender, the guaranty agency, the U.S. Department of Education, and their respective agents and contractors) to contact me regarding my request or my loan(s), including repayment of my loan(s), at the number that I provide on this form or any future number that I provide for my cellular telephone or other wireless device using automated telephone dialing equipment or artificial prerecorded voice or text messages." (Id. at ¶ 19 and Ex. 6). Navient accepted the terms in Plaintiffs September 24, 2015 forbearance request and deferred Plaintiff's student loan payments. (Id. at ¶ 20).

         On September 24, 2015, Plaintiff provided updated information and in the update provided his 3733 number and consent for his cell phone's use for automatic dialing and text messages when he listed the 3733 Number as his "Primary" and "Alternate" phone numbers and agreed, as follows:

I authorize SLM Corporation, Sallie Mae Bank, Navient Corporation and Navient Solutions, Inc., and their respective subsidiaries, affiliates and agents, to contact me at such number using any means of communication, including, but not limited to, calls placed to my cellular phone using an automated dialing device, calls using prerecorded messages and/or SMS text messages, regarding any current or future loans owned or serviced by SLM Corporation, Sallie Mae Bank, Navient Corporation or Navient Solutions, Inc., or their respective subsidiaries, affiliates and agents, even if I will be charged by my service providers) for receiving such communications

(D.I. 35 at¶ 17 and Ex. 7).

         Plaintiff executed a second forbearance request on October 1, 2016. (Id. at ¶ 22). It included the 3733 number and gave consent to contact Plaintiff on his cellular telephone. (Id. at ¶ 23 and Ex. 8). Navient accepted the terms in Plaintiffs October 1, 2016 forbearance request and deferred his student loan payments. (Id. at ¶ 23).

         Once Plaintiffs deferments and forbearances ended, Defendants began making calls to Plaintiffs 3733 number between January 24, 2017 and March 28, 2017 regarding the amount due and owing on Plaintiffs student loan using the LiveVox Human Call Initiator platform.[1] (D.I. 34 at¶¶ 7-15 and Ex. 1; D.I. 35 at¶ 24).

         Defendants also made calls to Plaintiffs 3733 number using the Interactive Intelligence telephone system in preview mode. (Id. at ¶ 14 and Ex. 1). Preview mode is a form of manual dialing, wherein the agent is presented with a customer's account information at his or her workstation, and determines whether to place a call to the customer. (Id. at ¶ 15). In preview mode, the agent views a given customer's account profile, manually initiates a telephone call by clicking the phone button on his or her screen via a keyboard command or mouse click, listens to the phone ring, speaks with the customer about the account (if reached), and ends the call by noting the result of the call in Navient's or Student Assistance Corporation's system of record. (Id. at ¶ 17). A preview mode call cannot be made without human intervention to place the call. (Id. at ¶18).

         The 2015 calls Defendants made to Plaintiffs 3733 number used the Interactive Intelligence telephone system, but Defendants' phone log does not indicate that the calls were made in the preview mode. (D.I. 34-1 at 2). Nor does the record explain the difference between when the Interactive Intelligence telephone system is used in preview mode and when it is not.

         During his deposition, Plaintiff described an "auto dialer" as alleged in his Complaint as, "a system that dials numbers using an automated system and dials it frequently" and that calls his "phone a specific time every day for a month and a half around the same time." (D.I. 36-1 at 2). Plaintiff testified that other than noting that his number was called around the same time daily for a month and a half, ...


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