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Rodriguez v. Student Assistance Corp.

United States District Court, E.D. New York

November 6, 2017

ANALISA RODRIGUEZ, Plaintiff,
v.
STUDENT ASSISTANCE CORPORATION and NAVIENT SOLUTIONS, INC., Defendants.

          MEMORANDUM DECISION AND ORDER

          Brian M. Cogan U.S.D.J.

         Plaintiff brings this case under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. She alleges that beginning in June or July 2015 and continuing through August 2016, defendant debt collection companies frequently called her on her cell phone in connection with an outstanding balance, despite her repeated requests to stop. Defendants have moved for summary judgment, arguing, in part, that plaintiff provided contractual consent to receive their calls. For the below reasons, defendants' motion is granted.

         BACKGROUND

         Beginning in January 2005, plaintiff sought to obtain student loans to enroll in college. Plaintiff signed promissory notes for four loans, one each on January 3, 2005, January 10, 2005, October 4, 2005, and February 8, 2007. The January 10, 2005 loan (the “Federal Loan”) was issued under the Federal Family Education Loan Program (“FFELP”) and is a federally guaranteed loan. On or about June 1, 2010, all of the loans, except for the Federal Loan, were charged off.

         Defendants Student Assistance Corporation (“SAC”) and Navient Solutions, LLC f/k/a Navient Solutions, Inc. (“NSL”) are student loan servicing companies. SAC is an affiliate of NSL. Prior to a series of corporate reorganizations, NSL was known as Sallie Mae, Inc. Defendants called plaintiff many times to collect past amounts due on the Federal Loan.

         Plaintiff describes defendants' calls as beginning early in the morning and continuing through the evening. The calls were so frequent that plaintiff installed a “blocking” application on her phone, in an attempt to stop defendants from contacting her. However, defendants circumvented the application by calling her with different numbers. Although she is uncertain of the exact date, beginning in May or June 2015, and throughout that summer, plaintiff “continuously” orally told defendants to stop calling her.

         In 2012, plaintiff was a class member in a class action against Sallie Mae, Inc., captioned Arthur v. Sallie Mae, Inc., No. C10-0198 (W.D. Wash.). The amended complaint sought monetary and injunctive relief under the TCPA, alleging that Sallie Mae had made collection calls to some eight million class members without those class members having provided any form of express consent to be called. The class, as certified for settlement purposes, consisted of “[a]ll persons to whom, on or after October 27, 2005 and through September 14, 2010, Sallie Mae, Inc. or any other affiliate or subsidiary of SLM Corporation placed a non-emergency telephone Call to a cellular telephone through the use of an automated dialing system and/or an artificial or prerecorded voice.” Plaintiff had received such calls on her student loans during this period; there is no dispute that she was a member of the class.

         The district court approved a settlement of the class action by Order entered September 17, 2012. The terms of the settlement provided that plaintiff had until July 3, 2012 to opt out of the class. Under the terms of the settlement agreement, Sallie Mae provided the opportunity for class members to receive monetary relief, and agreed to change its collection practices at issue in that case. Plaintiff received notice of the settlement on April 13, 2012 and did not opt out. The Arthur settlement went into effect on September 17, 2012.

         As to practice changes, Sallie Mae agreed to not call any class member who executed a “Revocation Request.” The motion to approve the settlement explained:

Specifically, for Settlement Class Members who execute a valid and timely request (“Revocation Request”), Sallie Mae shall not make use of, nor knowingly authorize anyone acting on its behalf to make use of, automated calls to their cellular telephones. The Revocation Request will revoke Sallie Mae's ability to make automated calls to their cellular phones. Approximately 75, 268 Class Members have already taken advantage of this relief by submitting a Revocation Request form to the Settlement Administrator. If any Class Member chooses not to submit a Revocation Request, the Parties agree that Sallie Mae may contact such persons at any phone numbers reflected in the relevant records.

(internal citations omitted). The settlement agreement provided, “I understand that Sallie Mae, Inc. and any other affiliate or subsidiary of SLM Corporation may call me, or continue to call me, concerning my account(s) by automated dialing system and/or an artificial or prerecorded voice message at any telephone number in their records.” Plaintiff did not execute a Revocation Request.

         As to monetary relief, Sallie Mae agreed to pay into a fund designated for distribution to class members who submitted a valid and timely Claim Form within 165 days of the preliminary approval of the settlement. The settlement agreement estimated that, dependent upon the number of claims, class members would likely receive an award of between $20 and $40. Although she was given an opportunity to receive a portion of the Arthur settlement proceeds, plaintiff did not file a Claim Form.

         The Arthur settlement also contained a provision stating that it was subject to changes in application of the TCPA: “To the extent Congress, the FCC or any other regulatory authority promulgates different requirements under the TCPA, or any other law or regulation that would govern any conduct ...


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