UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

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UNITED STATES DISTRICT COURT DISTRICT OF OREGON

PORTLAND DIVISION

CONNIE ANN ANDERSON, Plaintiff, v.

WELLS FARGO BANK, National Association; and DOES 1 through 100,

Defendants.

Case No. 3:20-cv-0738-YY FINDINGS AND

RECOMMENDATIONS

YOU, Magistrate Judge.

FINDINGS

Plaintiff Connie Ann Anderson brings this action against defendant Wells Fargo Bank alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., and the Oregon Unlawful Debt Collection Practices Act (“UDCPA”), O.R.S. 646.639.1 First Amended Complaint (“FAC”) 1, ECF 28.

Defendant Wells Fargo Bank has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Mot., ECF

1 This court has federal question jurisdiction over the federal law claims pursuant to 28 U.S.C.

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31. For the reasons discussed below, defendant’s motion to dismiss plaintiff’s TCPA should be GRANTED, and defendant’s motion to dismiss plaintiff’s UDCPA claim should be DENIED.

I. Rule 12(b)(6) Standards

A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

at 555).

When evaluating the sufficiency of a complaint’s factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the plaintiff. Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 971 (9th Cir. 2018) (citing Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010)); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 969 (9th Cir. 2017) (citing Iqbal, 556 U.S. at 678).

II. Background Facts and Claims

The following facts are taken from plaintiff’s First Amended Complaint and accepted as true for purposes of resolving defendant’s motion to dismiss. See Davidson, 889 F.3d at 971;

FAC, ECF 28.

Plaintiff took out an unsecured loan with defendant “in approximately January of 2018,”

and took out a second unsecured loan with defendant “in approximately February of 2019.” FAC 2, ECF 28. After plaintiff “became financially unable to keep up with the monthly payments[,]”

defendants began contacting her “in or about October of 2019 to inquire about the status of the

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loans and to collect on the payments that were no longer being made.” Id. at 3. Plaintiff retained counsel to “assist in dealing with the Wells Fargo debt,” and plaintiff’s counsel sent a letter to defendant on or about October 30, 2019, informing defendant “that [plaintiff] was revoking her consent, if it was previously given, to be called on her telephone.” Id. Defendant continued to contact plaintiff between “approximately November 4, 2019 and November 10, 2019 . . . through phone calls to Plaintiff on her cellular telephone.” Id. Plaintiff claims that defendants “contacted [her] on at least eighteen (18) separate occasions in only seven (7) days; frequently calling [her]

multiple times within the same 40-60 minute time span and up to three (3) times a day.” Id. at 6.

Plaintiff alleges that “all calls placed by Defendant to Plaintiff utilized an ‘automatic telephone dialing system’ as defined by 47 U.S.C. § 227(a)(1),” FAC 5, ECF 28, in violation of the TCPA, which “makes it unlawful to call a cell phone ‘using any automatic telephone dialing system . . . without the ‘prior express consent of the called party.’” N. L. by Lemos v. Credit One Bank, N.A., 960 F.3d 1164, 1166 (9th Cir. 2020) (quoting 47 U.S.C. § 227(b)(1)(A)). Plaintiff further alleges that defendant violated the Oregon UDCPA because defendant’s telephone calls

“constitute communication with a debtor ‘repeatedly or continuously’ and ‘with the intent to harass or annoy the debtor’ in direct violation of” O.R.S. 646.639(2)(e). FAC 7, ECF 28.

III. TCPA Claim

Defendant argues that plaintiffs’ TCPA claim “fails as a matter of law” because in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), the Supreme Court defined “automatic telephone dialing system,” or autodialing system, “in a manner that forecloses” her claim. Mot.

2, ECF 31. Plaintiff responds that she has properly stated a claim under the TCPA by alleging that defendant “placed or stored” her telephone number “on a call list or in a database in a

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random or sequential manner with other numbers to be dialed,” and later used “a random or sequential method to ‘pull up’ numbers to be called.” Opp. 5-6, ECF 32.

In Duguid, the Supreme Court “resolve[d] a conflict among the Courts of Appeals regarding whether an autodialer must have the capacity to generate random or sequential phone numbers.” Id. at 1168. There, the plaintiff sued Facebook for violations of the TCPA after he received several text messages from Facebook that someone from an unrecognized browser or device had attempted to access an account associated with his phone number. Id. Facebook moved to dismiss the suit arguing that the plaintiff “failed to allege that Facebook used an autodialer because he did not claim Facebook sent text messages to numbers that were randomly or sequentially generated.” Id.

The Northern District of California agreed with Facebook and dismissed the suit. The Ninth Circuit reversed, holding that, for purposes of the TCPA, an autodialer only needs “the capacity to store numbers to be called and to dial such numbers automatically” and “need not be able to use a random or sequential generator to store numbers.” Id. (internal quotation marks and citations omitted).

The Supreme Court, in turn, disagreed and held that, “in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.” Id. at 1170. “This definition excludes equipment like Facebook’s login notification system, which does not use such technology.” Id. The Court observed that Congress passed the TCPA in 1991 “to address ‘the proliferation of intrusive, nuisance calls’ to consumers and businesses from telemarketers.” Id. at 1167 (citing TCPA § 2, ¶¶ 1, 6, 105 Stat. 2394, note following 47 U.S.C. § 227). The Court also explained that “Congress expressly found that the use of random or sequential number generator technology caused unique problems for business,

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emergency, and cellular lines,” and pointed out that § 227(b)(1) makes it unlawful to “use an autodialer to call certain ‘emergency telephone lines,’” and § 227(b)(1)(D) makes it unlawful to use an autodialer “‘in such a way that two or more telephone lines of a multiline business are engaged simultaneously.’” Id. Given “these prohibitions target a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up all of the sequentially

numbered lines at a single entity,” the Court concluded that the “narrow statutory design . . . does not support [the plaintiff’s] broad interpretation.” Id. at 1172. Thus, instead of “expanding the definition of autodialer to encompass any equipment that merely stores and dials telephone numbers” as the plaintiff had argued, the Court held that “the definition of an autodialer requires that in all cases . . . the equipment in question must use a random or sequential number

generator.” Id. at 1170.

After Duguid was decided, the Northern District of California, in Brickman v. Facebook, Inc., No. 16-CV-00751-WHO, 2021 WL 4198512 (N.D. Cal. Sept. 15, 2021), dismissed a TCPA claim brought by a plaintiff who, like plaintiff here, provided the defendant with his telephone number but still claimed that the defendant called him using an autodialer as defined in Duguid.

Id. at *1. The plaintiff alleged that the defendant violated the TCPA by storing telephone numbers “provided by users like himself,” and then using a “random or sequential number generator” to store and dial the numbers in a sequential or random order to send out birthday text messages. Id. at *2. In ruling against the plaintiff, the district court noted that, in Duguid, the Supreme Court rejected the Ninth Circuit’s definition of an autodialer, “and instead sided with the courts of appeal [i.e., the Third, Seventh, and Eleventh Circuits] that concluded systems that

‘target phone numbers that were obtained in a non-random way (specifically, from customers who provided them)’ were not covered [autodialers].” Id. at *1 (quoting Hufnus v. DoNotPay,

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Inc., No. 20-CV-08701-VC, 2021 WL 2585488, at *1 (N.D. Cal. June 24, 2021)). The district court also cited Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 460 (7th Cir. 2020), a case in which the Seventh Circuit held “that a system that ‘exclusively dials numbers stored in a customer database’ does not qualify as an autodialer,” and further cited the Eleventh Circuit’s decision in Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020), as “adopting a definition of autodialer that excludes equipment that ‘target[s] a list of debtors.’”

Id. Ultimately, the court held that, applying Duguid, a plaintiff cannot “plausibly allege use of an [autodialer] where the number called by the defendant . . . was not itself created by the random or sequential number generator.” Id. at *2 (emphasis in original). In such a case, the court

explained, “the numbers called were not randomly or sequentially generated; they were pulled from an existing list.” Id. at *2.

As the Brickman court further explained, its analysis and holding accord with other, post- Duguid district court cases in the Ninth Circuit, including Hufnus, a Northern District of

California case in which the court rejected a TCPA claim brought by a plaintiff who had been called from “a list of customers who provided their numbers to [the defendant].” 2021 WL 2585488, at *1. Emphasizing the Supreme Court’s analysis in Duguid, the court found that the defendant used a “platform [that] only contacts phone numbers specifically provided by consumers . . . and not phone numbers identified in a random or sequential fashion.” Id. While the plaintiff argued that the defendant used a “random number generator to determine the order in which to pick from the preproduced list of consumer phone numbers,” the court found that the defendant’s system was “akin to the systems deemed to not qualify as autodialers by the Courts of Appeals with which the Supreme Court sided because [it] targets phone numbers that were obtained in a non-random way (specifically, from consumers who provided them).” Id.

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(emphasis in original) (citing Gedelhak, 950 F.3d at 460; Glasser, 948 F.3d at 1306). Thus, the court held the defendant’s platform “does not qualify as an autodialer under the TCPA.” Id. at

*2; see also Franco v. Alorica Inc, 2021 WL 3812872 (C.D. Cal. July 27, 2021) (noting the

“Plaintiff had a pre-existing relationship with Defendant: Plaintiff allegedly owed a debt, and Defendant was calling to collect[,]” further noting that the plaintiff failed to allege the defendant

“randomly or sequentially generated her phone number[,]” and holding, “[w]hen a defendant randomly makes calls from a curated list, it is not randomly or sequentially generating phone numbers.”) (emphasis in original); Borden v. eFinancial, LLC, C19-1430JLR, 2021 WL 3602479, at *5 (W.D. Wash. Aug. 13, 2021) (holding that, following Duguid, the autodialing system must have the capacity to use “a random or sequential number generator to generate the phone numbers in the first instance” and dismissing the plaintiff’s TCPA because he “expressly allege[d] that he provided his phone number to [the defendant]” and because the defendant’s system “simply does not implicate the problems caused by autodialing of random or sequential blocks of numbers that Congress sought to address when it passed the TCPA”); Tehrani v. Joie de Vivre Hosp., LLC, No. 19-CV-08168-EMC, 2021 WL 3886043, at *4 (N.D. Cal. Aug. 31, 2021) (rejecting the plaintiff’s argument that the “number generator in the autodialing system . . . does not have to ‘create the phone numbers themselves,’” finding the argument “makes little sense when one takes into account the harms that the TCPA was intended to address,” and dismissing the TCPA claim after finding the “result reached by a clear majority of courts [in Hufnus and Borden among others] is persuasive”).

As these cases make evident, plaintiff has failed to state a claim under the TCPA because she has not sufficiently alleged that defendant used use a random or sequential number generator when it placed calls to her cellular telephone. While plaintiff maintains that she “pled sufficient

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facts that Defendant called her using an [autodialing system],” the only allegation she points to is that “on at least one of the calls . . . she picked up and heard a ‘click’ and pause before a

representative or agent of Defendant began speaking.” FAC 5, ECF 28. It is true that “an allegation of a ‘telltale pause’ between the time the plaintiff answered a call and the time an agent began speaking has been found sufficient to support an inference that calls were made using an [autodialer],” O’Connor v. Lyft, Inc., No. 16-CV-00351-JSW, 2016 WL 6126966, at *4 (N.D. Cal. Apr. 14, 2016), including, most recently, in a decision issued in this district, Douglas v. TD Bank USA, Nat’l Ass’n, No. 3:20-CV-395-JR, 2021 WL 4524155, at *1 (D. Or. Oct. 4, 2021). However, the Douglas court ruled on a motion for an imposition of sanctions under Rule 11, not a Rule 12(b)(6) motion to dismiss, and the court did not address or discuss the prior relationship between the parties nor the numerous cases that have given that factor weight in considering the likelihood that a defendant used an autodialer. See, e.g., Jovanovic v. SRP Invs.

LLC, No. CV-21-00393-PHX-JJT, 2021 WL 4198163, at *1 (D. Ariz. Sept. 15, 2021) (in

“assessing the plausibility of [a TCPA] claim, courts consider factors including . . . the relationship between the parties, with a pre-existing relationship weighing against [an

autodialer]”); Schley v. One Planet Ops Inc., 445 F. Supp. 3d 454, 461 (N.D. Cal. 2020) (“a pre- existing relationship . . . would suggest that an [autodialer] was not used . . . [and] if the

defendant had a specific reasons to contact the plaintiff that might also suggest an [autodialer]

was not used”); Gragg v. Orange Cab Co., 942 F. Supp. 2d 1111, 1114 (W.D. Wash. 2013) (“the existence of a business relationship and plaintiff’s provision of his phone number when

requesting services raise an inference of personal, rather than automated, interactions”).

Furthermore, district courts that have weighed the “pause” factor in the plaintiff’s favor on a motion to dismiss have noted the absence of a pre-existing relationship between the parties

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and have noted that the plaintiff alleged hearing the “telltale” pause on multiple phone calls. See Schley, 445 F. Supp. 3d at 461 (denying a motion to dismiss where “there is nothing to indicate [the plaintiff] had some kind of preexisting relationship with Defendants” and where the plaintiff alleged that he heard “a several second delay of silence” on multiple phone calls); Lofton v.

Verizon Wireless (VAW) LLC, No. 13-CV-05665-YGR, 2015 WL 1254681, at *2 (N.D. Cal.

Mar. 18, 2015) (denying a motion to dismiss where the plaintiff had no prior relationship with the defendant and had not provided his telephone number, and where the plaintiff alleged hearing the “telltale” pause after each of the defendant’s “repeated and persistent” calls);

Loveless v. A1 Solar Power, Inc., No. EDCV141779FMODTBX, 2015 WL 4498787, at *1 (C.D.

Cal. July 23, 2015) (denying a motion to dismiss where the plaintiff alleged she “never entered into a business relationship with Defendant” nor “provided Defendant with [her] residential telephone number” and alleged that she “was greeted by ‘dead air’ on several occasions”); cf.

Smith v. Aitima Med. Equip., Inc., No. EDCV1600339ABDTBX, 2016 WL 4618780, at *2 (C.D.

Cal. July 29, 2016) (finding the plaintiff’s allegations regarding the defendant’s use of an autodialer “insufficient because they consist of only one call with a pause”).

Thus, while a “telltale pause” can weigh in the plaintiff’s favor on a motion to dismiss where the plaintiff has alleged no prior relationship, see Schley, Lofton, and Loveless, plaintiff’s allegation here of a single instance of hearing such a pause is an insufficient basis on which to infer that defendant used an autodialer. See Smith, 2016 WL 4618780, at *1. Furthermore, it is simply not plausible that defendant used an autodialing system to telephone plaintiff given plaintiff’s own concession that defendant contacted her “to inquire about the status of the loans and to collect on the payments that were no longer being made.” FAC 3, ECF 28. As the court stated in Franco, “it would be wildly implausible for Defendant to randomly or sequentially

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generate phone numbers in the hopes of reaching the Plaintiff-debtor. Instead, the much more plausible explanation is that Plaintiff provided her creditor with her phone number as part of taking out the loan, and Defendant used this voluntarily provided number to collect.” Id. Thus, while plaintiff insists she has properly alleged a claim under the TCPA, she has not alleged facts sufficient to “nudge[]” her claim “across the line from conceivable to plausible,” Twombly, 550 U.S. at 570, and the plausibility standard on a motion to dismiss “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678; see Wilson v. Rater8, LLC, No. 20-CV-1515-DMS-LL, 2021 WL 4865930, at *3 (S.D. Cal. Oct. 18, 2021) (finding the plaintiff did not plausibly allege that the defendant used a random number generator to generator his number given that the plaintiff had provided it to the defendant when he obtained services).

Plaintiff contends that, even if she did not sufficiently allege that defendant used an autodialing system in making its telephone calls to her, she has still stated a claim under the TCPA by alleging, in the alternative, that defendant “used equipment or software which has the capacity to be an [autodialer] as defined in the statute.” Resp. 8, ECF 32 (emphasis added). In making this assertion, plaintiff relies on two pre-Duguid Ninth Circuit decisions: Satterfield v.

Simon & Schusters, Inc., 569 F.3d 946 (9th Cir. 2009) (“a system need not actually store, produce, or call randomly or sequentially generated numbers, it need only have the capacity to do it”), and Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (citing Satterfield)). In Duguid, however, the Supreme Court specifically noted that Congress

“found that the use of random or sequential number generator technology caused unique problems for business, emergency, and cellular lines.” Id. at 1172 (emphasis added). Further, after noting that TCPA’s prohibitions “target a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up . . . lines at a single entity,” the Court was

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prompted to remark: “Unsurprisingly, then, the autodialer definition Congress employed includes only devices that use such technology.” Id. at 1172 (emphasis added).

Moreover, the Eastern District of Michigan recently rejected an identical argument in Barry v. Ally Fin., Inc., No. 20-12378, 2021 WL 2936636 (E.D. Mich. July 13, 2021), explaining, “[t]o accept Plaintiff’s argument that she only has to show that the autodialing system used by Defendant has the capacity to use a random or sequential number generator . . . would have the effect of imposing liability on a defendant whenever it has such a system, with admittedly no nexus to the alleged harm to the plaintiff.” Id. at *4. Although the plaintiff in Barry relied on the same pre-Duguid cases cited by plaintiff in this action, Satterfield, 569 F.3d 946, and Meyer, 707 F.3d 1036, the district found that reliance was misplaced and stated, “[a]fter the Duguid opinion, the [autodialer] portion of the claim requires an allegation that [the

defendant] used a random or sequential number generator to place a call to Plaintiff’s cellphone, not merely a claim that its dialing system has that capability.’” Id. (quoting McEwen v. Nat’l Rifle Ass’n of Am., No. 2:20-cv-00153-LEW, 2021 WL 1414273, at *7 (D. Me. Apr. 14, 2021)).

It was also clear in Barry that the plaintiff could not state a TCPA claim because it was undisputed that the defendant’s calls were “an attempt to collect a debt” and were “directed to Plaintiff specifically.” Id. at *1, *3. Thus, the court held, the defendant’s “autodialer system did not use a random or sequential number generator in connection with its calls to her . . . [r]ather, these calls were targeted at specific individuals in connection with specific accounts held by Defendant.” Id. The same result is warranted here. Plaintiff has not explained the harm that results from being telephoned through technology with the potential to use a random or sequential number generator, and plaintiff has not shown how attaching liability to the use of such a system would further the goals of the TCPA.

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Like the district court in Brickman, this court recognizes that “some courts have considered the determination of whether a plaintiff has plausibly shown the use of an

[autodialing system] covered by Duguid more appropriately resolved on summary judgment than at the pleading stage.” 2021 WL 4198512, at *3. As the court also found in Brickman, however,

“in many of those cases, the plaintiff alleged that they had never provided defendant with their phone numbers in the first place, making it at least plausible that a prohibited number generator had been used to produce or store numbers called.” Id. (citing cases). Here, it is not plausible that defendant used a number generator because, once again, plaintiff admitted that defendant

contacted her “to inquire about the status of the loans and to collect on the payments that were no longer being made,” and “it would be wildly implausible for Defendant to randomly or

sequentially generate phone numbers in the hopes of reaching the Plaintiff-debtor.” Franco, 2021 WL 3812872, at *3. Plaintiff has therefore failed to allege that defendant violated the TCPA IV. UDCPA Claim

Defendant next argues that plaintiff “should be judicially estopped from asserting her UDCPA claim” because she “withheld the existence of her purported UDCPA claim from the bankruptcy court and obtained a discharge based, in part, on her lack of candor.” Mot. 9-10, ECF 31. Defendant further asserts that plaintiff cannot state a claim for relief under the UDCPA because she has not “plead[ed] facts that Wells Fargo acted with the ‘intent to harass or annoy’

her in connection with attempting to collect her defaulted debt.” Mot. 2, ECF 31 (emphasis in original). Plaintiff responds that her bankruptcy schedules “properly listed the transactional nucleus of facts under which all causes of action arise,” and argues that she adequately alleged the elements of an Oregon UDCPA claim. Resp. 13, ECF 32.

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“Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir 2001), citing Rissetto v. Plumbers & Steamfitters Local, 343, 94 F.3d 597, 600–01 (9th Cir.

1996). In the bankruptcy context, “a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements.” Hamilton, 270 F.3d at 783. In Hamilton, the plaintiff “failed to list his claims

against [the defendant] State Farm as assets on his bankruptcy schedules, and then later sued State Farm on the same claims.” Id. at 784. The Ninth Circuit found that the plaintiff “clearly asserted inconsistent positions” id., and made note of the plaintiff’s “knowledge that a cause of action against State Farm existed at the time he filed for bankruptcy and completed his

bankruptcy schedules.” Id. at 785. The Ninth Circuit also found that the plaintiff’s “failure to list his claims . . . deceived the bankruptcy court and Hamilton’s creditors.” Id. Thus, the court held,

“[i]n this case, we must invoke judicial estoppel to protect the integrity of the bankruptcy process.” Id.

Here, judicial estoppel does not bar plaintiff’s UDCPA claim because plaintiff adequately disclosed the present lawsuit in her bankruptcy schedules. As plaintiff accurately states, she listed “‘Potential TCPA Claim Versus Wells Fargo Bank (18 calls)’ in her Schedule A/B:

Property, and exempted the potential claims arising from these calls in her Schedule C.” Resp.

14, ECF 32; see also Def. Req. Judicial Notice, Ex. A, ECF 27-1 (containing plaintiff’s bankruptcy petition and schedules filed on November 27, 2019). While plaintiff does not represent that her purported UDCPA claim against defendants was included in her bankruptcy schedule, she argues that she “substantially complied” with her legal obligation to list claims

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against third parties by listing the TCPA claim and the ‘18 phone calls’—“which is the transactional nucleus of facts that gave rise to all claims, including the UDCPA claim[.]”

Resp.14, ECF 32.

Plaintiff is correct. While it is clear that “judicial estoppel bars the action” where “a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy schedules and obtains a discharge (or plan confirmation),” Ah Quin v. Cty. of Kauai Dep’t of Transp., 733 F.3d 267, 271 (9th Cir. 2013) (citations omitted), it is also clear that there is no such omission here.

Unlike the plaintiffs in Ah Quin and Hamilton who failed to disclose that they had any potential cause of action against the defendants in those cases, plaintiff in the present action disclosed this lawsuit in her bankruptcy schedule by listing her TCPA claim and by noting defendant’s alleged 18 telephone calls that form the basis of both her TCPA and UDCPA claims. See FAC 4-7, ECF 28.

Further, defendant offers no authority or reasoning to support its apparent contention that a bankruptcy debtor, like plaintiff, who discloses a potential lawsuit and the specific basis for that lawsuit in a schedule of assets, will be judicially estopped from later asserting any claim that was not specifically enumerated in the schedule—even if the claim arises out of the same

circumstance as the claims that were disclosed. Defendant also fails to explain or support its argument that “Plaintiff would gain an unfair advantage if she were permitted to pursue her UDCPA claim now when she failed to disclose that potential asset to her creditors.” Mot. 11, ECF 31. As plaintiff points out, “if [she] were listing specific causes of action to gain an unfair advantage, why would she list a cause which allows for $500-$1,500 per call (TCPA claim) as opposed to the one which allows for recovery of $200 (UDCPA claim)? This argument is nonsensical.” Resp. 16, ECF 32.

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In short, this is not a case like Hamilton where the plaintiff “took contradictory positions by first failing to . . . include his insurance claim and pending bad faith action against State Farm, and then persisting in his attempts to recover on the claims against State Farm,” nor has plaintiff in this action “fail[ed] . . . to identify the cause of action as a contingent asset.” Locke v. Wells Fargo Bank, No. 219CV08854ODWJPRX, 2020 WL 3546069, at *3 (C.D. Cal. June 30, 2020).

Thus, there is no judicial estoppel bar to plaintiff’s UDCPA claim.2

Still, defendant argues, plaintiff cannot state a claim for relief under the UDCPA because she has not “plead facts that Wells Fargo acted with the ‘intent to harass or annoy’ her” and because “call volume alone does not establish an intent to harass or annoy a debtor.” Mot. 8, ECF 31 (emphasis in original). Plaintiff responds that she “explicitly states Defendant’s phone calls were made with the intent to harass or annoy her” and argues that “Defendant knew she was represented by counsel but continued to call[,] [and] the volume of calls along with the pattern of those calls shows intent to harass or annoy.” Resp. 9, ECF 32.

The UDCPA provides, in relevant part, that “[a] debt collector engages in an unlawful collection practice if the debt collector, while collecting or attempting to collect a debt . . . [c]ommunicates with a debtor . . . repeatedly or continuously or at times known to be inconvenient to the debtor . . . and with intent to harass or annoy the debtor.” O.R.S.

646.639(2)(e). While the UDCPA and its federal counterpart, the Fair Debt Collection Practices

2 Defendant also asserts, “Plaintiff lacks standing with respect to the [UDCPA] claim” because

“she failed to list her purported UDCPA claim among her assets when she filed for bankruptcy.”

Mot. 9, ECF 31. Defendant elaborates no further and cites a single case that provides no support for its position. See Mot. 9, ECF 31 (citation omitted). Defendant also relies—as it did in

asserting judicial estoppel—on the erroneous premise that plaintiff failed to adequately disclose this cause of action. Id. There is no need to address or discuss defendant’s argument further because defendant has not shown how or why plaintiff lacks standing, and because plaintiff did, in fact, sufficiently disclose this legal action in her bankruptcy schedule. Defendant’s standing

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Act (“FDCPA”), protect consumer rights, they differ in that “the FDCPA’s ‘harass, oppress, or abuse’ standard, 15 U.S.C. § 1692d, is more demanding than the []UDCPA’s ‘harass or annoy’

standard.” Peak v. Prof’l Credit Serv., 6:14-cv-01856-AA, 2015 WL 7862774, *7 (D. Or. Dec. 2, 2015).

In Peak, the plaintiff alleged that the defendant called her repeatedly with the intent to

“harass or annoy her,” id., but the court described the defendant’s communications as “[t]wo brief, polite phone messages left one month part,” id. at *6, and found that the “plaintiff has pointed to no evidence in the record, and none is apparent to this court, that the calls were made with an intent to harass or annoy.” Id. at *7. The court held that the defendant was therefore entitled to summary judgment on the plaintiff’s UDCPA claim. See id.

In contrast, plaintiff alleges far more than two “polite phone messages” by stating that:

(1) defendant received a letter of revocation from her on or about November 4, 2019; (2) the letter of revocation informed defendant “she was revoking her consent, if it was previously given, to be called on her telephone”; (3) defendant continued to contact plaintiff “between approximately November 4, 2019 and November 10, 2019”; (4) defendant’s calls “were frequent in nature and continued” despite plaintiff’s letter of revocation; and (5) defendant “contacted Plaintiff on at least eighteen (18) separate occasions in only seven (7) days; frequently calling Plaintiff multiple times within the same 40-60 minute time span and up to three (3) times a day.”

FAC 3, 6, ECF 28.

Defendant counters plaintiff’s allegations by citing the court’s statement in Miler v. TD Bank USA, Nat’l Ass’n, No. 3:20-CV-00340-BR, 2020 WL 5913179 (D. Or. Oct. 6, 2020), that

“call volume alone does not establish an intent to harass or to annoy a debtor.” Id. at *4.

However, the Miler court, in analyzing the plaintiff’s evidence regarding an intent to harass on

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the part of the two defendants, was more focused on which defendants had received a letter of revocation from the plaintiff. See id. Although the plaintiff alleged that he “‘sent a letter of revocation addressed to TD Bank,’ in which he ‘revoked his consent . . . to be called on his telephone,” id. at *1, the plaintiff’s amended complaint did “not contain any allegation that Plaintiff sent a letter of revocation to Target [or] that Target received a letter of revocation[.]” Id.

*3. After an extensive analysis regarding the issue of notification, and after reiterating the plaintiff’s failure to allege that “Target was aware of Plaintiff’s revocation letters or that Target had notice of Plaintiff’s revocation[,]” the court held, “Plaintiff has not alleged facts sufficient to establish that Target had an intent to harass or annoy Plaintiff,” and granted Target’s motion to dismiss. Id. at *7.

The plaintiff in Douglas also asserted a UDCPA claim alleging that the defendants’ intent to harass her could be imputed from the high volume of calls she continued to receive over an extended period of time, even after she allegedly notified the defendants that she was revoking her consent to be contacted. 2020 WL 6710567, at *2. After noting that the plaintiff “alleged more than just total call volume,” id. at *4, the court focused on the defendants’ alleged pattern of calls:

Although Plaintiff does not present extensive detail in her Amended Complaint, she does allege that she received multiple calls within the same hour. Frequent calls made within a short timeframe may be enough to show intent to harass or annoy, even under the FDCPA. See Accord Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1228 (E. D. Cal. 2010) (“Calling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute

harassment under the FDCPA.”); Joseph v. J.J. Mac Intyre Cos., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002) (“Whether there is actionable harassment or

annoyance turns not only on the volume of calls made, but also on the pattern of calls.”).

Id.

(18)

Here, plaintiff has also alleged more than just total call volume by asserting that

defendant continued to contact her after receiving her letter of revocation and by further asserting that defendant “contacted Plaintiff on at least eighteen (18) separate occasions in only seven (7) days” and “frequently calling Plaintiff multiple times within the same 40-60 minute time span and up to three (3) times a day.” FAC 3, 6, ECF 28. Furthermore, defendant does not contest that it received a revocation letter from plaintiff, nor does it challenge the accuracy of plaintiff’s statements regarding the number and frequency of the calls plaintiff alleges. Plaintiff, therefore, has stated a claim for relief under the UDCPA. See Ying Chang v. Citimortgage, Inc., No. 3:12- CV-01884-HU, 2013 WL 5939985, at *8 (D. Or. Nov. 2, 2013) (denying the defendant’s motion to dismiss a UDCPA claim where the plaintiff alleged specific facts that showed that the

defendant “communicat[ed] with [the plaintiff] repeatedly and continuously or at inconvenient times” over an eighteen month period); Porter v. Wachovia Dealer Servs., 2007 WL 2693370 at

*6 (D. Or. Sept. 12, 2007) (denying debt collector’s motion for summary judgment under UDCPA when material fact dispute existed regarding whether debt collector ignored debtor’s request to contact counsel rather than debtor).

RECOMMENDATIONS

Defendant’s motion to dismiss (ECF 31) should be GRANTED as to plaintiff’s TCPA claim and DENIED as to her UDCPA claim.

SCHEDULING ORDER

These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, December 30, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.

(19)

If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.

NOTICE

These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.

DATED December 10, 2021.

/s/ Youlee Yim You Youlee Yim You

United States Magistrate Judge

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