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Kerner v. ConServe

United States District Court, D. New Hampshire

March 16, 2017

Shawn Kerner
v.
ConServe Opinion No. 2017 DNH 048

          Charles W. Grau, Esq.

          Brendan H. Little, Esq.

          Angela K. Troccoli, Eesq.

          ORDER

          Landya McCafferty United States District Judge.

         Shawn Kerner brings suit against ConServe, alleging that it violated federal consumer protection laws by placing harassing telephone calls to her in an effort to collect a debt. ConServe moves for summary judgment on Kerner's claim under the Telephone Consumer Protection Act, 47 U.S.C. § 227, arguing that Kerner consented to its calls. Kerner objects.

         Legal Standard Summary judgment is warranted where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016). “An issue is ‘genuine' if it can be resolved in favor of either party, and a fact is ‘material' if it has the potential of affecting the outcome of the case.” Xiaoyan Tang, 821 F.3d at 215 (internal quotation marks and citations omitted). At the summary judgment stage, the court draws “all reasonable inferences in favor of the non-moving party, but disregard[s] conclusory allegations, improbable inferences, and unsupported speculation.” Fanning v. Fed. Trade Comm'n, 821 F.3d 164, 170 (1st Cir. 2016) (internal quotation marks omitted), cert. denied, 85 U.S.L.W. 3324 (U.S. Jan. 9, 2017). Where the party moving for summary judgment “bears the burden of proof on an issue, [it] cannot prevail unless the evidence that [it] provides on that issue is conclusive.” E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 (1st Cir. 2002) (internal quotations omitted).

         Background

         This case concerns the repayment of student loans that Kerner obtained from the United States Department of Education. The final promissory note that Kerner executed in connection with her[1] loans included a provision providing that she:

[A]uthorize[s] my schools, ED, and their respective agents and contractors to contact me regarding my loan request or my loan, including repayment of my loan, 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 message.

         Doc. no. 12-3 at ¶ 8.

         Around August 31, 2015, ConServe was assigned Kerner's loans for the purpose of debt collection. It is undisputed that Kerner was in default on the loans before they were assigned to ConServe. ConServe first contacted Kerner about the debt on September 22, 2015, calling her at work. During that call, Kerner gave ConServe agents her cell phone number and requested that ConServe contact her at that number. Six days later, Kerner again gave ConServe her cell phone number and granted it permission to contact her at that number.

         Kerner contends that at some point after requesting that ConServe contact her on her cell phone, she told ConServe to stop contacting her. Kerner further asserts that, despite making this request multiple times, ConServe continued to call her one to two times per day.

         Discussion

         Kerner brings claims under the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act (the “TCPA”). ConServe moves for summary judgment on Kerner's claim under the TCPA, arguing that the record demonstrates that it obtained consent to call Kerner on her cell phone. In ...


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