United States District Court, D. Delaware
RICKY R. FRANKLIN, Plaintiff,
NAVIENT CORPORATION, et al., Defendants.
R. Franklin, Stockbridge, Georgia; Pro Se Plaintiff.
Eileen Polesky, Esquire, Stradley Ronon Stevens & Young,
LLP, Wilmington, Delaware, Counsel for Defendants.
ANDREWS, U.S. DISTRICT JUDGE.
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.
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.).
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).
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.)
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
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
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).
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
(D.I. 35 at¶ 17 and Ex. 7).
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 ¶
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. (D.I. 34 at¶¶ 7-15 and Ex. 1;
D.I. 35 at¶ 24).
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).
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.
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, ...