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Aguilar v. Ocwen Loan Servicing, LLC

United States District Court, N.D. Texas, Dallas Division

February 20, 2018

MOISES AGUILAR, JR. ET AL., Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

         The twenty-five plaintiffs in this case claim that Ocwen Loan Servicing, LLC (Ocwen) violated the federal Telephone Consumer Protection Act (TCPA) and the Texas Debt Collection Act (TDCA) and committed the Texas common-law torts of negligence and unreasonable debt collection by using automated dialing systems to call the plaintiffs numerous times.[1] Ocwen has now moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss many of the plaintiffs' claims, contending that some are time barred and others insufficiently pleaded. Doc. 22, Mot. to Dismiss. The Court will first determine which claims are time barred and will then determine whether the plaintiffs have adequately pleaded their remaining claims. As detailed below, the Court GRANTS IN PART AND DENIES IN PART Ocwen's motion to dismiss.

         I. BACKGROUND

         A. Factual History[2]

         On October 27, 2014, a class action was filed against Ocwen in the Northern District of Illinois in which the class alleges among other things, [3] that Ocwen violated 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA. Mem. Op. & Order at 6, Snyder v. Ocwen Loan Serv., LLC, No. 1:14-cv-8461 (N.D. Ill. Jun. 28, 2017), ECF No. 223. The Snyder Court conditionally certified a class settlement on October 5, 2017. Order, Snyder v. Ocwen Loan Serv., LLC, No. 1:14-cv-8461 (N.D. Ill. Oct. 5, 2017), ECF No. 266.

         On May 3-8, 2017, the twenty-five plaintiffs in this case brought claims similar to those of the Snyder class, alleging that Ocwen attempted to collect debts from them by using “automatic telephone dialing system[s]”[4] to call them numerous of times and that the repeated calls drained the plaintiffs' phone batteries and caused them various forms of emotional distress, including the disruption of the plaintiffs' personal and professional lives.[5] Because of the calls, the plaintiffs claim to have ignored calls from unknown numbers, which allegedly caused the plaintiffs to miss important communications from friends and family.[6] Each plaintiff alleges a date range in which they say Ocwen called them and the amount and frequency of calls within a narrower date range.[7] For example, Plaintiff Aguilar alleges that Ocwen called him between March 30, 2011 and December 13, 2015 and that “on information and belief, ” Ocwen continued to call him after December 13, 2015, and Aguilar describes in detail the amount and frequency of calls received from April to September 2014. Doc. 14, Am. Compl., ¶¶ 24-25, 29-30. Most of the plaintiffs complain about alleged calls to their cellular phones. 3:17-cv-1165, Doc. 14, Am. Compl., ¶¶ 24-25. But Plaintiffs Hickman and Villalobos complain also about calls to their home phones.[8] The Court has detailed below the plaintiffs' allegations regarding the timing, amount, and frequency of the alleged calls.

         Table 1

Plaintiff/Case Number

Date Range of Calls (to cell phone unless otherwise noted)

Dates of Detailed Allegations

Aguilar/3:17-cv-01165

March 30 2011 through

December 13, 2015 and after

December 13, 2015

April through September 2014

Casey/3:17-cv-01166

April 4, 2011 through

December 16, 2015 and after

December 16, 2015

January through October 2012

Condarco/3:17-cv-01167

June 16, 2011 through

December 16, 2015 and after

December 16, 2015

August 2014 through July 2015

Contreras/3:17-cv-01168

April 5, 2011 through

December 16, 2016 and after

December 16, 2016

July through December 2014

Rodriguez/3:17-cv-01169

March 30, 2011 through

December 16, 2015 and after

December 16, 2015

April through August 2015

Zamora/3:17-cv-01181

March 30, 2011 through

December 15, 2015 and after

December 15, 2015

July through October 2012

Wildberger/3:17-cv-01182

December 13, 2011 through

December 15, 2015 and after

December 15, 2015

June through December 2014

Villalobos/3:17-cv-01183

Home phone: unidentified

dates

Cellular phone: April 4, 2011

through July 29, 2015 and

after July 29, 2015

June through December 2014

Castillo/3:17-cv-01184

March 30, 2011 through

December 16, 2015 and after

December 16, 2015

May through August 2012

Pinilla/3:17-cv-01185

December 20, 2011 through

December 14, 2015 and after

December 14, 2015

January through March 2015

Pinilla/3:17-cv-01186

November 23, 2011 through

December 16, 2015 and after

December 16, 2015

January 2012

Pizzuto/3:17-cv-01200

October 5, 2011 through

March 2, 2015 and after

March 2, 2015

June through December 2012

Meis/3:17-cv-01201

March 5, 2013 through

November 21, 2016 and after

November 21, 2016

February through August 2015

Snerling/3:17-cv-01202

February 14, 2012 through

November 7, 2014 and after

November 7, 2014

January through July 2013

Espinosa/3:17-cv-01210

March 5, 2013 through

December 16, 2015 and after

December 16, 2015

March through April 2013

Latunde/3:17-cv-01211

April 18, 2011 through

October 24, 2015 and after

October 24, 2015

2012 through 2014

Gonzales/3:17-cv-01212

September 5, 2011 through

December 15, 2015, and after

December 15, 2015

June through December 2014

Jack/3:17-cv-01213

January 13, 2012 through

December 16, 2015 and after

December 16, 2015

May through December 2014

Lock/3:17-cv-01214

September 5, 2011 through

December 16, 2015 and after

December 16, 2015

May through December 2014

Bowden, Sr./3:17-cv-01232

April 4, 2011 through April

14, 2014 and after April 14,

2014

June through December 2012

Chavez/3:17-cv-01233

May 8, 2012 through August

13, 2015 and after August 13,

2015

2014 and April 2015

Gribben/3:17-cv-01234

April 10, 2012 through

December 16, 2015 and after

December 16, 2015

2012 and January 2015

Hickman/3:17-cv-01235

Home phone: April 18, 2011

through June 25, 2013

Cell Phone: July 5, 2013

through December 16, 2015

and after December 16, 2015

Home Phone: August 2011

through June 2013

Cell Phone: July 2013

through December 2015

Leeder/3:17-cv-01236

February 19, 2013 through

December 16, 2015 and after

December 16, 2015

April through November 2014

Odle/3:17-cv-01237

September 5, 2011 through

April 23, 2014 and after April

23, 2014

January through October 2012

         B. Procedural History

         The plaintiffs filed their complaints on May 3-8, 2017, and the Court consolidated their cases on July 26, 2017. Doc. 19, Order Consolidating Cases. The plaintiffs filed amended complaints on July 8, 2017, which Ocwen moved to dismiss on August 2, 2017. Doc. 22, Mot. to Dismiss. Because the plaintiffs responded, Doc. 25, Response, and Ocwen replied, Doc. 31, Reply, Ocwen's motion to dismiss is ripe for review.

         II.

         LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal for failure to state a claim upon which relief may be granted. Fed. R. Civ. P.12(b)(6). When analyzing Rule 12(b)(6) motions, courts generally consider “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). During this review, factual allegations must be viewed as true and taken “in the light most favorable to the plaintiffs.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Courts are not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v Twombly, 550 U.S. 544, 555 (2007).

         Rule 12(b)(6) motions turn on whether a complaint contains “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Facially plausible complaints “‘allege more than labels and conclusions'[;] . . . [the] ‘factual allegations must be enough to raise a right to relief above the speculative level.'” Jebaco, Inc. v. Harrah's Operating Co., 587 F.3d 314, 318 (5th Cir. 2009) (quoting Twombly, 550 U.S. at 555). If the allegations lack sufficient detail, “this basic deficiency should . . . be exposed” before the parties and court spend unnecessary time and resources on the case. Twombly, 550 U.S. at 558.

         III.

         ANALYSIS

         A. Statute of Limitations

         If a plaintiff's pleadings make clear that a statute of limitations bars the plaintiff's claims, a court can rule on a statute-of-limitations defense at the motion-to-dismiss stage. Williams v. Chase Home Fin., LLC, No. 3:13-cv-1307-G (BH), 2014 WL 46233, at *3 (N.D. Tex. Jan. 6, 2014). Here, the plaintiffs' pleadings establish that the statute of limitations bars some of the plaintiffs' claims, so ruling on Ocwen's statute-of-limitations defense is appropriate at this juncture.

         1. The Parties' Arguments

         Ocwen argues that the statute of limitations narrows all of the plaintiffs' claims. Doc. 22, Mot. to Dismiss, 7. The plaintiffs' claims fall into two categories: federal TCPA claims and Texas state-law claims. The statute of limitations for the TCPA claims is four years, 28 U.S.C. § 1658(a), and the statute of limitations for the Texas claims is two years, Tex. Civ. Prac. & Rem. Code § 16.003(a); see Vine St. LLC v. Keeling, 361 F.Supp.2d 600, 604 (N.D. Tex. 2005) (applying § 16.003(a)'s two-year statute of limitations to negligence claim); In Re Marcos F. Lopez, Adv. No. 13-07019, 2015 WL 1207021, at *5 (S.D. Tex. Bankr. Mar. 12, 2015) (applying § 16.003(a)'s statute of limitations to unreasonable-debt-collection claim); Clark v. Deutsche Bank Nat. Tr. Co., No. 3:14-cv-3590-B, 2015 WL 4093948, at *8 (N.D. Tex. Jul. 7, 2015) (applying § 16.003(a)'s statute of limitations to TDCA claim). The plaintiffs filed their complaints on May 3-8, 2017.[9]Absent tolling then, the plaintiffs can hold Ocwen liable for TCPA violations occurring only after May 3-8, 2013 and for state-law violations occurring only after May 3-8, 2015. If Ocwen has its way, the plaintiffs claims will be limited as such. Doc. 22, Mot. to Dismiss, 7.

         But the plaintiffs argue that the filing of the Snyder action in October 2014 tolled the statute of limitations for their claims. Doc. 25, Resp., 4. Thus, the plaintiffs claim that Ocwen is liable under the TCPA for conduct dating back to 2010 and under Texas law for conduct dating back to 2012. Id.

         2. Introduction to American Pipe Tolling

         The plaintiffs' tolling argument depends on American Pipe & Construction Company. v. Utah, 414 U.S. 538 (1974). There, with only eleven days remaining under the applicable statute of limitations, the state of Utah filed an antitrust class action against American Pipe on behalf of itself and other public bodies and agencies. Id. at 541. After the district court ruled that the suit could not proceed as a class action, id. at 542-43, some putative class members moved to intervene even though the statute of limitations had run, id. at 543-44. The Supreme Court held that the putative class members could intervene because the filing of the class action tolled the statute of limitations on their claims against American Pipe. Id. at 560-61.

         The Supreme Court based its holding on the purposes of class actions and statutes of limitations. Id. at 555. The purpose of class actions is to protect the rights of putative class members to the relief sought by the putative class by preventing each putative class member from having to intervene to protect her rights. Id. at 550, 552. But if the statute of limitations for a putative class member's claim continued to run after the filing of a class action, putative class members could not count on class actions to protect their rights because, if the trial court denied class certification after the limitations period expired, putative class members could not intervene and would therefore lose their claims by relying on the class action. Id. at 553. Putative members would need to intervene to protect their claims. Id. The result would be a needless multiplicity of protective actions, which was what Rule 23 was designed to prevent. Id. at 553-54. Only if the filing of the class action tolled putative class members' claims would class actions protect putative class members' rights because putative class members could rely on the class action but still have their individual claims if their class were not certified.

         In addition to furthering the purpose of class actions, tolling the statute of limitations between the filing of a class action and the decision not to certify does not defeat the purpose of statutes of limitations. Id. at 554. Statutes of limitations “are designed to promote justice by preventing surprises through revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Id. But the filing of a class action puts the defendant on notice of the putative class's claims, which reduces the risk of lost evidence, faded memories, and vanished witnesses. Id. at 554-55. The class allegations give the defendant the essential information necessary to determine both the subject matter and size of the prospective litigation. Id. at 555. Thus, tolling the statute of limitations for putative class members, whose claims are the same as the named plaintiff's in the class action, does not defeat the purpose of statutes of limitations. Id.

         Next, American Pipe is relevant even though the plaintiffs in this case filed a lawsuit instead of intervening. Although American Pipe pertained only to interveners, the Court in Crown, Cork & Seal Co., Inc. v. Parker extended American Pipe to cover putative class members filing their own lawsuits after their class was not certified. 462 U.S. 345, 352 (1983)

         But American Pipe and Crown are different from this case in two more ways. First, those cases involved decisions to intervene or file lawsuits after the trial court hearing the class action decided not to certify the class. Am. Pipe, 414 U.S. at 542-43; Crown, 462 U.S. at 347. Here, the plaintiffs filed the present lawsuits before the Snyder court ruled on certification. Second, American Pipe and Crown involved plaintiffs who raised exactly the same claims against exactly the same defendant as the putative class. Am. Pipe, 414 U.S. at 543-44; Crown, 462 U.S. at 348. Here, though the Snyder suit alleges only TCPA claims, the plaintiffs have filed TCPA and Texas state-law claims against Ocwen. See, e.g., Doc. 14, Am. Compl., ¶¶ 66-99.

         The Court must therefore resolve two limitations-related issues: 1) whether the plaintiffs can rely on American Pipe tolling even though the Snyder court has not determined whether to certify the class and 2) whether ...


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