United States District Court, D. New Jersey, Camden Vicinage
M. Milz, Esq. Attorney for Plaintiff James Watkins
A. Lavery, Esq. Attorney for Defendant Wells Fargo Bank, N.A.
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon the Motion for Summary
Judgment [Docket No. 20] by Defendant Wells Fargo, N.A.
(“Wells Fargo” or the “Defendant”).
Wells Fargo seeks the entry of summary judgment in its favor
on all claims asserted against it by Plaintiff James Watkins
(the “Plaintiff”). Having considered the
parties' submissions, for the reasons set forth herein,
the motion will be denied.
FACTUAL AND PROCEDURAL BACKGROUND 
January 14, 2010, Plaintiff opened a credit card account with
Wachovia Bank. Def. SOMF ¶ 10. It is unclear whether
Plaintiff provided his cell phone number to Wachovia Bank as
part of his credit card application in January 2010.
Remarkably, Plaintiff's credit card application is absent
from the record. Instead, Defendant relies upon a February
2015 entry in its call logs as evidence that Plaintiff
provided his cell phone number when he applied for his credit
card. Lavery Cert. Ex. 9 [Docket No. 20-12]. According to
Plaintiff, however, he only gave Wachovia his home phone
number in his application. Pl. Dep. Tr. 45:8-17 [Docket No.
20-4]. He has no recollection of giving his cell phone number
to Wachovia. Id. 54:14-16.
thereafter, Plaintiff's credit card account was
transferred from Wachovia to Wells Fargo. Def. SOMF ¶
15. Plaintiff does not remember ever providing Wells Fargo
with his cell phone number. Pl. Dep. Tr. 53:17-20. Due to
family illness and financial hardships, Plaintiff was unable
to timely pay his credit card bills and his account is now in
collection. Def. SOMF ¶ 8; Pl. Dep. Tr. 40:11-41:6.
Plaintiff believes he owes roughly $7, 000 to $8, 000 on his
Wells Fargo credit card account. Def. SOMF ¶ 9.
January 14, 2010, the date on which Plaintiff opened his
credit card account, and September 22, 2011, Wells Fargo
called Plaintiff using an automatic telephone dialing system
(“ATDS”) on his home phone number only. Pl. SOMF
¶ 12. Wells Fargo began calling Plaintiff's cell
phone using an ATDS on September 23, 2011. Id.
¶ 13. Between September 23, 2011 and July 1, 2015, in an
attempt to collect on his account, Wells Fargo has placed 157
calls to Plaintiff's cell phone using an automatic
telephone dialing system (“ATDS”). Def. SOMF
¶¶ 6, 7. Defendant claims that it had
Plaintiff's prior express consent to make such calls and
that his consent had never been revoked. Plaintiff, on the
other hand, contends that he never gave Wachovia or Wells
Fargo his cell phone number and that, to the extent any
consent could have been implied, he revoked that consent on
Plaintiff testified that in 2010 or 2011, he received a call
from Wells Fargo on his cell phone as he and his wife, Paula
Watkins, were about to sit down for dinner. According to
Plaintiff, he told the Wells Fargo representative not to call
his cell phone and repeatedly asked how Wells Fargo had
obtained his cell phone number. Pl. Dep. Tr. 55:4-59:6. Wells
Fargo did not place any calls to Plaintiff's cell phone
in 2010. Def. SOMF ¶ 20. Plaintiff answered only one
incoming call to his cell phone from Wells Fargo in 2011, on
September 26, 2011. Def. SOMF ¶¶ 21-23. Although
Plaintiff could not recall the specific dates of the calls,
he testified that on every occasion he spoke with Wells
Fargo, he told Wells Fargo to stop calling him on his cell
phone. Pl. Dep. Tr. 65:12-70:23.
Wells Fargo Cardmember Agreement and Disclosure Statements
provide that account holders consent to being contacted by
Wells Fargo using ATDS. Oct. 2010 Agreement ¶ 26, Lavery
Cert. Ex. 4 [Docket No. 20-7]; July 2011 Agreement ¶ 26
[Docket No. 20-8]; Sept. 2014 Agreement ¶ 26 [Docket No.
20-9]. Plaintiff, however, notes that there is no evidence in
the record that establishes that these particular agreements
governed his Wells Fargo account or were sent to him in
connection with his account.
Fargo's call log reflects a January 7, 2013 call to
Plaintiff. The entry reads: “PRIMARY CELL QUALITY
CHANGED FROM CELL - MANUAL ONLY TO CELL PHONE OPT IN BY
WATKINS, JAMES E.” Lavery Cert. Ex. 12 [Docket No.
20-15]. Candace Cartwright, a collection manager at Wells
Fargo, testified that this entry means that “the
primary cell quality was changed from cell manual only to
cell opt-in by James E. Watkins.” Cartwright Dep. Tr.
123:16-20 [Docket No. 25-3]. She further explained that, for
such an entry to come about, the Wells Fargo representative
“would have had to read the cell consent and then he
would have clicked yes after the customer said yes.”
Wells Fargo's call audit history reflects the notations
“cell quality” and “good” in
connection with a February 1, 2015 call to Plaintiff's
cell phone. Lavery Cert. Ex. 10 [Docket No. 20-13]. A system
entry for the February 1, 2015 call states: “Cell
Consent date for [Plaintiff's cell phone number] is the
same as the date the credit card account opened.”
Lavery Cert. Ex. 9.
Wells Fargo's policy and procedure to record if a
consumer revoked consent to be called. Def. SOMF ¶ 54.
If a Wells Fargo representative did not record a
customer's revocation of consent, the representative
would be in breach of Wells Fargo's policies.
Id. ¶ 55.
upon these facts, on July 23, 2015, Plaintiff filed the
instant litigation in federal court, alleging a violation of
the Telephone Consumer Protection Act, 47 U.S.C. § 227,
et seq. (“TCPA”) [Docket No. 1]. Wells
Fargo's audit history records reflect that Plaintiff
revoked consent to be called on his cell phone on August 20,
2015, roughly three weeks after he commenced this litigation.
Def. SOMF ¶ 75.