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Lester v. Wells Fargo Bank NA

United States District Court, W.D. Louisiana, Shreveport Division

March 8, 2018





         Before the Court is Defendant Wells Fargo Bank N.A.'s (“WFB”) “Motion for Summary Judgment” (Record Document 60) seeking to dismiss with prejudice Plaintiff Joanna Pruitt Lester's (“Lester”) remaining claims against WFB.[1] For the reasons stated herein, WFB's Motion is hereby GRANTED.


         Lester brought this action on September 28, 2015, against WFB and other defendants who have since been dismissed from this suit. See Record Document 1. The Court ordered Lester to file an amended and restated complaint, which she did on April 7, 2016. See Record Document 34. Lester alleged a myriad of causes of action, including: (1) breach of contract; (2) fraud; (3) negligent and intentional misrepresentation; (4) negligent and intentional infliction of emotional distress; (5) collusion generally; (6) unfair and deceptive trade practices under the Louisiana Unfair Trade Practices Act (“LUTPA”); (7) violations of the Racketeer Influenced and Corruption Organizations Act (“RICO”); (8) violations of the Telephone Consumer Protection Act (“TCPA”); (9) violations of the Federal Trade Commission Act (“FTCA”) Section 5; (10) violations of the Truth in Lending Act (“TILA”); (11) violations of the Uniform Standards of Professional Appraisal Practice (“USPAP”); (12) violations of the Louisiana Civil Code Articles 2315-2324; (13) collusion to deprive her of her constitutional rights based upon racial discrimination; and (14) violations of 18 U.S.C. § 1341-1343 (mail fraud and wire fraud). See id. at 2-3. On March 27, 2017, the Court granted defendants' Rule 12(b)(6) Motions to Dismiss, dismissing with prejudice all of the claims Lester raised in her Amended and Restated Complaint except her TCPA claims against WFB.[2] See Record Document 48.

         In support of her TCPA claims, Lester alleged that while she was in arrears on her mortgage loan, WFB called her between six and ten times per day, from January 1, 2011 through December 31, 2015, [3] utilizing automated phone messaging. See Record Document 34 at 13. Lester has acknowledged that she provided WFB with her personal cell phone number on her loan documents and also on various other documents that she filled out and submitted to WFB between 2008 and 2015. See Record Document 60-4 at 5-6; 7-20. Lester also has acknowledged that she understood that by including her cell phone number on these documents, she was consenting to being contacted on her cell phone concerning her loan. See id. at 7-8. Lester never made any written request asking WFB not to contact her on her cell phone, but she has testified that, sometime in 2013, she made verbal statements to WFB customer service representatives requesting that the calls stop or that their frequency be reduced. See id. at 2, 4, 22. Lester could not recall exactly when she made her oral requests or what exactly she said to the WFB representatives, stating at one point in her deposition, “I just said, okay, don't call me. I don't want any calls, ” but later, when asked if she remembered her exact words, Lester indicated she told the representative that “[she] felt like [she] was being harassed by the phone calls and would [they] please stop calling [her] so many times a day.” Id. at 4, 22. On three separate occasions during 2013, Lester also provided her cell phone number to WFB and consented to being contacted. See id. at 16-20.

         In June of 2016, WFB settled a TCPA class action entitled Markos v. Wells Fargo Bank, N.A., No. 1:15-cv-01156-LMM, in the United States District for the Northern District of Georgia. See Record Document 60-3 at 3. Under the settlement agreement approved by the court, the class members released WFB from “any and all claims ... that arise out of the Released Parties' use of an ‘automatic telephone dialing system' or ‘artificial or prerecorded voice' to contact or attempt to contact Settlement Class Members in connection with a Residential Mortgage Loan and/or Home Equity Loan during the Class Period (November 17, 2011 to February 29, 2016).” Id. at 40. In Markos, the settlement class consisted of “[a]ll users or subscribers to a wireless or cellular service within the United States who used or subscribed to a phone number to which Wells Fargo made or initiated one or more calls during the class period using any automated dialing technology or artificial or prerecorded voice technology, according to Wells Fargo's available records, and who are within Subclass One and/or Two.” Id. at 26.

         A notice was sent to all settlement class members. The notice explicitly stated that “if you do nothing, you will remain part of the Settlement Class and will release your claims against the released parties, but you will not receive any money from this settlement.” Id. at 2. Lester admitted that she received the postcard containing this information. See Record Document 60-4 at 24-25. On January 30, 2017, the Markos Court certified the settlement class and approved the class action settlement and the notice plan. See Record Document 60-3 at 3. Only the persons listed in “Exhibit A” properly excluded themselves from this settlement and are therefore not settlement class members for the purposes of the court's order. See id. at 5. Lester's name does not appear on that list. See id. at 12-19.

         WFB filed the instant Motion for Summary Judgment on January 12, 2018, arguing Lester waived all TCPA claims arising from November 17, 2011 to February 29, 2016 by failing to opt out of the Markos class action settlement. See Record Document 60-1 at 7. Additionally, WFB asserts Lester has no TCPA claims from January 1, 2011 to November 16, 2011 because she expressly consented to WFB contacting her on her cell phone. See id. at 8. Lester filed a late opposition on February 21, 2018, [4] claiming she did opt out of the Markos class action settlement and that she orally revoked her consent starting in 2011. See Record Document 64. WFB filed its reply on February 27, 2018. See Record Document 65.


         I. Summary Judgment Standard

         Rule 56 of the F.R.C.P. governs summary judgment. This rule provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F.R.C.P. 56(a). Also, “a party asserting that a fact cannot be or is genuinely disputed must support the motion by citing to particular parts of materials in the record, including . . . affidavits . . . or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” F.R.C.P. 56(c)(1)(A) and (B). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment.” F.R.C.P. 56(e)(3).

         In a summary judgment motion, “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings . . . [and] affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations and citations omitted). If the movant meets this initial burden, then the non-movant has the burden of going beyond the pleadings and designating specific facts that prove that a genuine issue of material fact exists. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant, however, cannot meet the burden of proving that a genuine issue of material fact exists by providing only “some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075.

         Additionally, in deciding a summary judgment motion, courts “resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is when both parties have submitted evidence of contradictory facts.” Id. Courts “do not, however, in the absence of any ...

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