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Watkins v. Wells Fargo Bank, N.A.

United States District Court, D. New Jersey, Camden Vicinage

June 2, 2017

WELLS FARGO BANK, N.A., Defendant.

         Docket No.[20]

          Andrew M. Milz, Esq. Attorney for Plaintiff James Watkins

          Kellie A. Lavery, Esq. Attorney for Defendant Wells Fargo Bank, N.A.



         This 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.


         On 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.

         Shortly 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.

         From 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 multiple occasions.

         Specifically, 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.

         Various 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.

         Wells 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.” Id. 123:21-124:4.

         Similarly, 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.

         It is 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.

         Based 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.

         II. SUMMARY ...

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