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Wagener v. Ocwen Loan Servicing, LLC

United States District Court, D. Minnesota

November 15, 2017

SHAWN WAGENER, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          Anthony P. Chester, Hyde & Swigart, for Plaintiff

          Margaret A. Santos, Hinshaw & Culbertson, for Defendant

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION [1]

         Plaintiff Shawn Wagener (“Wagener”) alleges Defendant Ocwen Loan Servicing, LLC (“Ocwen”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, in its efforts to collect a debt from Wagener. Ocwen has moved to dismiss all TCPA claims in Counts I and II that arose from calls placed on or before May 9, 2013, arguing they are time barred by the statute of limitations. Ocwen also moves to dismiss Wagener's negligence claim (Count III), arguing Ocwen owed Wagener no duty of care, and Wagener's Amended Complaint failed to adequately allege damages proximately caused by any alleged breach of duty. The Court recommends Defendant's Motion to Dismiss [Docket No. 25] be denied in its entirety.[2]

         FINDINGS OF FACT

         Wagener alleges that between March 30, 2011 and May 16, 2015, Ocwen placed at least 2, 123 nonconsensual phone calls to Wagener's cell phone, primarily via an automatic telephone dialing system (“ATDS”) and/or an artificial or prerecorded voice, in violation of the TCPA. Am. Compl. at 4-5, Docket No. 20. On May 9, 2017, Wagener sued Ocwen, alleging Ocwen violated the TCPA and breached its common law duty of reasonable care by calling him repeatedly despite his pleas to stop. Id. at 12-14.

         In the interim, on October 27, 2014 - between the time the allegedly unlawful calls began and the date Wagener filed suit - a proposed class action was filed against Ocwen in Illinois alleging Ocwen's debt collection practices systematically violated the TCPA. Snyder v. Ocwen Loan Servicing, LLC, Case No. 1:14-cv-08461 (N.D. Ill. October 27, 2014). On June 28, 2017, the Snyder court certified a limited class and on October 5, 2017, a settlement was preliminarily approved. Orders, Docket Nos. 223, 266. Wagener did not join the class, but filed this action before the class certification issue was resolved.

         Ocwen has now moved to dismiss portions of Wagener's First Amended Complaint, arguing that any TCPA claims based on calls made before May 9, 2013 are barred by the TCPA's four-year statute of limitations.[3] Def's. Br. at 4-9, Docket No. 27. Additionally, Ocwen has moved to dismiss Wagener's negligence claim, arguing it owed no duty of care to Wagener, and Wagener has failed to adequately allege damages proximately caused by Ocwen's purported breach in any event. Id. at 9-11.

         CONCLUSIONS OF LAW

         1. Standard of Review

         In evaluating a Rule 12(b)(6) motion, the Court “must treat the facts pleaded in the complaint as true and construe those facts in the light most favorable to the plaintiff.” Palmer v. The Cty. of Anoka, 200 F.Supp.3d 842, 846 (D. Minn. 2016). To “survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A “motion to dismiss should be granted if ‘it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.'” Koehler v. Brody, 483 F.3d 590, 596 (8th Cir. 2007)(quoting Knapp v. Hanson, 183 F.3d 786, 788 (8th Cir.1999)).

         2. Statute of Limitations

         Ocwen argues that the portions of Wagener's TCPA claims based on phone calls placed prior to May 9, 2013 are barred by the four-year statute of limitations. Def's. Br. at 4-9. Wagener argues that under American Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974) and its progeny, the filing of the Snyder class action tolled the statute of limitations for ...


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