Lucoff v. Navient Solutions, LLC
Case 0:18-cv-60743-RAR Document 80 Entered on FLSD Docket 08/07/2019 Page 1 of 14
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
JOEL D. LUCOFF,
CASE NO. 18-CIV-60743-RAR
Plaintiff,
v.
NAVIENT SOLUTIONS, LLC, et al.,
Defendants. _________________________________/
ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court upon Magistrate Judge Chris McAliley's Report
and Recommendations on Cross-Motions for Summary Judgment and Order on Motion to Strike
[ECF No. 73] ("Report"), filed on May 28, 2019. On June 11, 2019, Plaintiff filed an Objection
to the Report [ECF No. 77] ("Objection"), and Defendants filed a Response to Plaintiff's Objection
[ECF No. 78] ("Response") on June 25, 2019. Plaintiff did not file a reply to Defendants'
Response. The Report recommends the undersigned grant Defendants' Motion for Summary
Judgment [ECF No. 21] and deny Plaintiff's Motion for Summary Judgment [ECF No. 24].
Because Plaintiff filed an objection to the Report, the Court reviews the Report de novo. FED. R.
CIV. P. 72(b)(3). Having reviewed the Report, Defendants' Motion for Summary Judgment,
Plaintiff's Motion for Summary Judgment, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that the Report [ECF No. 73] is hereby AFFIRMED
AND ADOPTED as set forth herein.
BACKGROUND
Defendant, Navient Solutions LLC ("Navient"), is a loan service provider formerly known
as Sallie Mae, Inc. Highfield Aff. [ECF No. 23-1] ?? 4, 14; Compl. ? 7. Defendant Student
Case 0:18-cv-60743-RAR Document 80 Entered on FLSD Docket 08/07/2019 Page 2 of 14
Assistance Corporation ("SAC") is an affiliate of Navient that presents repayment plans to borrowers whose loans are delinquent. Campbell Aff. [ECF No. 23-2] ?? 5-8, 11. Navient and SAC share technology services, including a platform that stores borrowers' consents for receiving automated calls. See Defs.' Statement of Undisputed Material Facts in Support of Defs.' Mot. Summ. J. [ECF No.22], Pl.'s Opposition to Defs.' Statement of Undisputed Material Facts [ECF No. 45] (collectively, "Defs. SOMF") ? 8.1
Plaintiff obtained various student loans to fund his law school education. See Pl. Dep. [ECF No. 23-4] 35:16-25. On August 2, 2006, Plaintiff signed a Federal Family Education Loan Program ("FFELP") Federal Consolidation Loan Application and Promissory Note (the "Application"). See Defs. SOMF ? 12; see also Highfield Aff. ? 8; FFELP Application [ECF No. 23-1-A]. Plaintiff was approved for an FFELP loan, and it was disbursed approximately one month later. Highfield Aff. ? 9. It is undisputed that Navient is the servicer of Plaintiff's FFELP loan. See Defs. SOMF ? 15.
A. Arthur Settlement In Arthur, et al. v. Sallie Mae, Inc.,2 borrowers brought a class action lawsuit alleging that Sallie Mae Inc. violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. section 227 et seq.,3 by placing telephone calls with an automated dialing system and/or artificial prerecorded
1 As required by Local Rule 56.1, the parties followed the same numbering scheme in their respective Statement of Undisputed Material Facts and Opposition thereto. Therefore, each citation to specific numbered paragraph(s) corresponds to the respective Statement of Undisputed Material Fact and Opposition. 2 No. C10-0198-JLR filed in the United States District Court for the Western District of Washington. 3 The TCPA prohibits: (1) "use of an automatic telephone dialing system[,] . . . without the prior express consent of the called party, to call any . . . cellular telephone, or other service for which the receiver is charged for the call"; (2) use of "artificial or prerecorded voice messages to call residential telephone lines without prior express consent"; (3) "sending unsolicited advertisements to fax machines"; and (4) "automatic telephonic dialing systems to engage two or more of a business' telephone lines simultaneously." Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373 (2012). A successful plaintiff may
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voice without the prior consent of the borrowers and other similarly situated individuals. See generally Am. Settlement Agreement [ECF No. 23-3-B] ("Arthur Settlement"). The Arthur plaintiffs and Sallie Mae and all of its affiliates or subsidiaries, both current and prospective (collectively, "Sallie Mae") entered into a settlement agreement where Sallie Mae agreed, "as full and complete consideration" to implement "prospective practice changes" and contribute monetary relief. Id. at 9.
With respect to "practice changes," Sallie Mae agreed not to use, or knowingly authorize someone acting on its behalf to make use of, "an automated dialing system and/or artificial or prerecorded voice, to contact the cellular telephones of Settlement Class Members who have made or will make a valid and timely Revocation Request."4 Id. at 9. Sallie Mae also agreed to give all class members clear instructions on how to make a valid and timely Revocation Request and direct claimants to the agreed upon form. Id. at 10-11. If a settlement class member did not submit a valid and timely Revocation Request the settlement class member was "deemed to have provided prior express consent" to Sallie Mae to make calls (as defined in the TCPA) to any phone number(s) reflected in the entities' records and any other "request for a revocation will be invalid." Id. at 11. The parties do not dispute that the opportunity to submit a Revocation Request was a form of consideration for the Arthur Settlement. Defs. SOMF ? 8.
The following facts are undisputed. As a recipient of an FFLEP loan, Plaintiff is an Arthur class member. Id. at ? 34. On April 14, 2012, Plaintiff was given notice of the Arthur Settlement and instructions on how to complete a Revocation Request. Id.; see also Kierkegard Aff. [ECF
be entitled to actual damages or $500 for each violation, whichever is greater. Id. "Damages may be trebled if `the defendant willfully or knowingly violated' the [TCPA]." Id. 4 A "Revocation Request" is "a valid and timely request . . . by a Settlement Class Member not to receive Calls through use of an automated dialing system and/or an artificial or prerecorded voice on a specific cellular telephone number provided to any of the Released Parties." Id. at 7.
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No. 23-3] ? 5. Plaintiff failed to opt out of the Arthur settlement and failed to submit a Revocation Request. Defs. SOMF ? 34; see also Kierkegard Aff. ?? 6-8. By failing to submit a Revocation Request, Plaintiff expressly consented to receive automated calls from Sallie Mae. Defs. SOMF ? 34.
B. Loan Consolidation and Alleged Revocation of Consent On June 24, 2014 (two years after receiving notice of the Arthur settlement), Plaintiff contacted Navient to discuss a settlement offer for his FFLEP loan. Defs. SOMF ? 19; Pl.'s Statement of Undisputed Material Facts in Support of Pl.'s Mot. Summ. J. [ECF No.25], Defs.' Opposition to Pl.'s Statement of Undisputed Material Facts [ECF No. 34] (collectively, "Pl. SOMF") ? 12.5 During this communication, a Navient representative and Plaintiff had the following undisputed exchange: Q: Is this your cell phone number, xxx-xxx-0907? A: That is correct. Q: Well, to help contact you more efficiently, may Sallie Mae Bank and Navient and their respective subsidiaries, affiliates, and agents contact you at this number? A: Sure. Q: Using an auto-dialer or pre-recorded messages regarding your current or future accounts? A: No. Q: Yes or no? A: No. Transcript of Call on June 24, 2014 [ECF No. 28-4]; Defs. SOMF ? 20. The parties do not dispute that Plaintiff attempted to revoke his prior express consent by answering "no" during this telephone conversation. Id.
5 As required by Local Rule 56.1, the parties followed the same numbering scheme in their respective Statement of Undisputed Material Facts and Opposition thereto. Therefore, each citation to specific numbered paragraph(s) corresponds to the respective Statement of Undisputed Material Fact and Opposition.
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Shortly after Plaintiff answered "no" to the Navient representative, Plaintiff accessed Navient's website to complete an auto debit agreement. Defs. SOMF ? 21; Highfield Aff. ?? 1213; Pl. Dep. 83: 7-10. Before accessing the auto debit agreement, Plaintiff was prompted with a demographic page requesting Plaintiff to update and/or confirm his contact information. Pl. Dep. 75:2-8; Highfield Aff. ? 13; see also Website Screenshot [ECF No. 23-1-C]. If no changes were needed, Plaintiff was directed to submit his demographic information. See Website Screenshot. Because Plaintiff had already provided his contact information to Navient in the past, his information automatically populated into the demographics page. Pl. Dep. 76:4-11. Although some contact information was required by Navient to proceed to the auto debit form, Plaintiff was not required to provide a cell phone number. See Website Screenshot ("Required fields are marked with (*).") (emphasis omitted). It is undisputed Plaintiff saw his telephone number, but Plaintiff did not delete it. Defs. SOMF ? 25. Below Plaintiff's telephone number, the demographics page contained the following language:
By providing my telephone number, 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 provider(s) for receiving such communications. See Website Screenshot (emphasis added); see also Pl. Dep. 77:2-23. The parties agree that Plaintiff saw the above-mentioned language. Pl. Dep. 78:3-5. It is also undisputed that Plaintiff "clicked through" the demographics page by submitting it to Navient with the above authorization. Defs. SOMF ? 26; Pl. Dep. 84: 8-11; Highfield Aff. ? 13. The parties also agree that Plaintiff did not attempt to revoke his consent after submitting the contact information. Defs. SOMF ? 27; Highfield Aff. ? 16.
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