United States District Court, D. New Hampshire
Charles W. Grau, Esq.
Brendan H. Little, Esq.
K. Troccoli, Eesq.
McCafferty United States District Judge.
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.
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).
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
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.
no. 12-3 at ¶ 8.
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.
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.
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 ...