Moody v. Synchrony Bank

MOTION for Summary Judgment

D. Mass.January 17, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS JANET MOODY, Plaintiff v. SYNCHRONY BANK f/k/a GE CAPITAL RETAIL BANK, Defendant : : : : : : : : : : Case No. 4:15-cv-40107-TSH Hon. Timothy S. Hillman DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO DISMISS NOW COMES Defendant Synchrony Bank, formerly known as GE Capital Retail Bank (“Synchrony”), by and through its undersigned counsel, and moves this Court pursuant to Federal Rule of Civil Procedure 56 to enter summary judgment against Plaintiff Janet Moody or, in the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss Plaintiff’s claim for lack of Article III standing. In support of this motion, Defendant states as follows: 1. On July 22, 2015, Plaintiff initiated this action against Synchrony for alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. (Dkt. 1.) As set forth in her First Amended Complaint, Plaintiff alleges Defendant used an automatic telephone dialing system and/or pre-recorded messages to call her cellular phone without her prior consent to receive such calls. (Dkt. 9, ¶¶ 10-29.) Plaintiff’s claim fails for several reasons. 2. First, Plaintiff opened a CareCredit branded credit card account with Synchrony in December 2014, and it is undisputed that Plaintiff provided her telephone number on her credit card application. Accordingly, Plaintiff provided her prior express consent to receive calls from Synchrony. See, e.g., Davis v. Diversified Consultants, Inc., 36 F. Supp. 3d 217, 224 n. 9 (1st Cir. 2014). Case 4:15-cv-40107-TSH Document 65 Filed 01/17/17 Page 1 of 4 - 2 - 3. Second, there is no genuine issue of material fact that Plaintiff never revoked her prior express consent. Plaintiff does not dispute that she never answered any of the calls from Synchrony. Further, neither Synchrony’s records of Plaintiff’s account nor Plaintiff’s own records from her cell phone service provider reflect that Plaintiff ever called Synchrony during the relevant time period, and thus never orally revoked consent. 4. Plaintiff alleges she sent Synchrony a text message requesting that Synchrony stop calling her, but there is no genuine dispute of material fact that Synchrony’s phone is not set up to accept text messages and that Synchrony never received the text message. The message, never received, was not effective revocation of consent under the TCPA. 5. Third, Plaintiff lacks standing under Article III to pursue these claims because she suffered no “concrete” injury. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Plaintiff was not charged for the calls, and was rarely aware that her phone was even ringing because (i) she was required to keep her cell phone in the trunk of her car during work hours and (ii) she is hard of hearing and often cannot hear the phone ring. 6. The bases for this motion are more fully set forth in Synchrony’s concurrently filed Memorandum of Law, and the exhibits attached hereto, which Synchrony expressly incorporates herein. WHEREFORE, for all of the reasons set forth herein and in the supporting Memorandum of Law, Defendant Synchrony Bank, formerly known as GE Capital Retail Bank, respectfully requests that the Court grant Defendant’s Motion for Summary Judgment or, in the Alternative, to Dismiss, and award any other relief the Court deems just and proper. Case 4:15-cv-40107-TSH Document 65 Filed 01/17/17 Page 2 of 4 - 3 - Dated: January 17, 2017 Respectfully submitted, SYNCHRONY BANK By: /s/ Timothy R. Carwinski David A. Casale (BBO #677879) Reed Smith LLP Global Customer Centre 20 Stanwix Street Pittsburgh, PA 15222 Tel: (412) 288-5937 Fax: (412) 288-3063 dcasale@reedsmith.com Timothy R. Carwinski (pro hac vice) Reed Smith LLP 10 South Wacker Drive, 40th Floor Chicago, IL 60606 Tel: (312) 207-1000 Fax: (312) 207-6400 tcarwinski@reedsmith.com Counsel for Defendant Synchrony Bank Case 4:15-cv-40107-TSH Document 65 Filed 01/17/17 Page 3 of 4 - 4 - CERTIFICATE OF SERVICE I hereby certify that on the 17th day of January, 2017, a true and correct copy of the foregoing was served by CM/ECF upon all parties of record. By: /s/ Timothy R. Carwinski Timothy R. Carwinski Case 4:15-cv-40107-TSH Document 65 Filed 01/17/17 Page 4 of 4 EXHIBIT A Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 1 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 1 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF MASSACHUSETTS 3 Civil Action No.: 415-CV-40107-TSH 4 5 * * * * * * * * * * * * * * * * * * * * * 6 JANET MOODY, * 7 Plaintiff * 8 vs. * 9 SYNCHRONY BANK F/K/A GE CAPITAL * 10 RETAIL BANK, * 11 Defendant * 12 * * * * * * * * * * * * * * * * * * * * * 13 14 DEPOSITION OF: JANET LEE MOODY 15 CATUOGNO COURT REPORTING SERVICES, INC. 16 446 Main Street 17 Worcester, Massachusetts 01068 18 October 18, 2016 12:15 p.m. 19 20 21 22 23 Christine M. Lo Schiavo 24 Court Reporter Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 2 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 3 1 I N D E X 2 3 WITNESS: JANET LEE MOODY 4 5 EXAMINATION BY: PAGE: 6 Mr. Carwinski 4 7 8 EXHIBITS: PAGE: 9 Exhibit 1, Notice . . . . . . . . . . . . . . 4 10 Exhibit 2, Plaintiff's Interrogatory 11 Responses . . . . . . . . . . . . . . 9 12 Exhibit 3, Plaintiff's Request for 13 Production of Documents Responses . . 11 14 Exhibit 4, Letter, June 3, 2015 . . . . . . . 29 15 Exhibit 5, Complaint . . . . . . . . . . . . 31 16 Exhibit 6, First Amended Complaint . . . . . 32 17 Exhibit 7, Billing Statements . . . . . . . . 45 18 Exhibit 8, Email Template . . . . . . . . . . 60 19 Exhibit 9, Email Template . . . . . . . . . . 61 20 Exhibit 10, Email Template . . . . . . . . . 63 21 Exhibit 11, Copy of Text Message . . . . . . 87 22 23 24 Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 3 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 14 1 A. Yes, they are. 2 Q. Okay. Have you produced, at least 3 to your attorneys, all the documents you had in 4 that file? 5 A. I believe that I have. 6 Q. Okay. What carrier do you use for 7 your cell phone? 8 A. Verizon. 9 Q. Has that been the same carrier 10 since –- well, how long has it been the -- has it 11 been Verizon? 12 A. It's been over two years we've had 13 Verizon. 14 Q. Okay. Do you have cell phone 15 records from Verizon? 16 A. It's my boyfriend's cell phone 17 account. 18 Q. Okay. 19 A. I am a -- an offspring of that 20 account. I can get them any time I need to. 21 Q. Okay. Have you asked your 22 boyfriend, at any point in time, to get those 23 documents? 24 A. I spoke with him, yes, about Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 4 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 15 1 getting them at one point. 2 Q. Okay. But you don't have them -- 3 A. No. 4 Q. -- now? Okay. 5 So you said it was your boyfriend's 6 cell phone account. Does that mean that the cell 7 records are sent to his address as opposed to 8 your address? 9 A. No. We both live in the same home, 10 so -- and I had given the -- my lawyers the okay 11 to get my cell phone records if need be. 12 Q. Okay. Are you aware if you have 13 any records about the cell phone calls that were 14 made, Verizon records specifically? 15 A. On paper? 16 Q. Yes. 17 A. No. 18 Q. Okay. 19 A. In -- 20 Q. How about on -- electronic? 21 A. Yes, I do. 22 Q. Okay. Have you provided those to 23 your counsel? 24 A. Yes. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 5 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 17 1 A. Sorry. I don't. 2 Q. Okay. Fair enough. 3 What is your current address? 4 A. 16 Chesley Street, C-H-E-S-L-E-Y, 5 Box 818, Millville, Massachusetts. 6 Q. And how long have you been at that 7 address? 8 A. Five years. 9 Q. How many phone numbers do you have? 10 A. One. 11 Q. And what is it? 12 A. 774-922-2025. 13 Q. And that is a cell phone? 14 A. Yes, it is. 15 Q. How long have you had that cell 16 phone number for? 17 A. I would have to say close to ten 18 years. 19 Q. Okay. Who else uses the cell 20 phone? 21 A. No one. 22 Q. Who pays for the cell phone? 23 A. My boyfriend, Bob Bartlett. 24 Q. What is your boyfriend's name? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 6 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 18 1 A. Robert Bartlett. 2 Q. Robert Bartlett? 3 A. Mm-hmm. 4 Q. Can you spell that, please? 5 A. B-A-R-T-L-E-T-T. 6 Q. And for how long has Robert 7 Bartlett paid for the cell phone? 8 A. The Verizon account? 9 Q. Yes. 10 A. The past –- it's almost three years 11 now. 12 Q. Do you know what type of plan it 13 is? 14 A. It's a family plan, and we are 15 allotted 20 gigs of data. 16 Q. Okay. 17 A. Unlimited text and messaging. 18 Q. And Robert Bartlett also has a 19 separate phone number of his own that's covered 20 as part of this plan? 21 A. Yes. 22 Q. Are there other people covered -- 23 A. Yes. 24 Q. -- under the plan? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 7 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 25 1 talk about some of those things. 2 So you said that you had made a 3 call to Synchrony with respect to an auto pay? 4 A. I was on -- they had arranged my 5 payments to be taken out of my bank account every 6 month. 7 Q. And you called to have that 8 changed? 9 A. I -- yes. I asked that -– I told 10 them that I could not afford the $31 payment at 11 that time. The gentleman told me that he would 12 take me off that plan; he would put me back on 13 that plan when I got on my feet. 14 Q. Do you know when that call was? 15 A. I do not know specifically, no. 16 Q. Can you –- was it in June 2015? 17 A. Yes. 18 Q. Would it have been earlier in June 19 or mid-June? 20 A. Early in June. 21 Q. Did you get his name? 22 A. I'm sorry. I didn't. I didn't 23 write it down. 24 Q. Did you have his number? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 8 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 26 1 A. To date? 2 Q. To explain -– my question is, you 3 indicated that he told you to call him back -- 4 A. Right. 5 Q. -- when you got on your feet. Did 6 he give you information about how you can call 7 him back? 8 A. No. I had the -- I had an account 9 with Synchrony Bank, and he just said call back 10 when... 11 Q. So it was a generic, call Synchrony 12 Bank back, not so much -- 13 A. Himself, yes. 14 Q. Him. Okay. 15 And then you said two days later 16 that calls started -- 17 A. The phone started to ring with 18 phone calls. They were... 19 Q. In this conversation that you had 20 about the auto pay, had you been receiving 21 collection calls prior to that conversation? 22 A. From Synchrony Bank? 23 Q. Yes. 24 A. No. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 9 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 27 1 Q. So was there any conversation -- or 2 during that conversation, was there any 3 discussion about whether or not calls would take 4 place in the future? 5 A. No. I wasn't in the arrears at 6 that time, when I was requesting them to 7 take –- you know, talking to them. I didn't 8 expect him to take me off of auto pay. He did it 9 on his own. He asked if that would be fine, and 10 I said yes. Then I was told that I could call 11 him or call them and get back on auto pay. 12 Q. Okay. So just that I understand, 13 what was the purpose for you –- for making the 14 call in the first instance? 15 A. It was a good gesture to let them 16 know that I could not make the payment scheduled 17 for that month. 18 Q. And as part of that conversation, 19 Synchrony raised that you were, in fact, setup 20 for auto pay, and so the money would be coming 21 out? 22 A. Right. I knew I was on auto pay. 23 Q. Okay. Was -- 24 A. I didn't want them to withdraw -- Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 10 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 35 1 reserves the right to supplement this response." 2 Q. Okay. If you are -- if you're 3 boyfriend was paying for the account, were you a 4 subscriber of Verizon Wireless? 5 A. What do you mean "subscriber"? 6 Q. It's your response. 7 A. My response, I have Verizon service 8 because he holds the account. 9 Q. Okay. When this was a MetroPCS 10 account, were you paying for the phone service at 11 that time? 12 A. Yes. 13 Q. You personally? 14 A. Yes. 15 Q. Earlier you commented that you had 16 a log of all of the phone calls that were made? 17 A. Correct. 18 Q. Do you still have that log? 19 A. On my phone. But through the years 20 with the phone itself, it has taken some of the 21 calls away. It automatically deletes them after 22 a certain period of time of being on your phone. 23 Q. Okay. Did you make any efforts to 24 preserve the log at the time that you filed your Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 11 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 36 1 suit? 2 A. Yes. 3 Q. What efforts did you take? 4 A. I screenshot some of the logs, and 5 I sent them to my attorneys. 6 Q. Okay. 7 MR. CARWINSKI: Defense counsel has 8 not received those screenshots, so -- I 9 will certainly put a request in that we 10 receive them. 11 MS. TROCCOLI: I'm currently 12 looking in the file. The only screenshot 13 we have from her is the text message. 14 MR. CARWINSKI: All right. We can 15 discuss that on the break too. 16 Q. (By Mr. Carwinski) Are you good to 17 keep going or do you need a break? 18 A. I'm fine. Thank you. 19 Q. Okay. 20 A. Yup. 21 Q. So you were the account holder of a 22 CareCredit account with Synchrony Bank ending in 23 3219 -- 24 A. Yes. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 12 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 37 1 Q. -- is that right? 2 Do you still have that account 3 today? 4 A. I don't -- open? It's not still 5 open, no. 6 Q. Okay. How did you apply for the 7 account? 8 A. I had gone to Aspen Dental. 9 Q. Mm-hmm. 10 A. Aspen Dental applied for the 11 account for me for payment of, you know, dental 12 work. 13 Q. Did -- can you tell me about the 14 application process? 15 A. She just took my name, phone 16 number. It was a regular application to apply 17 for credit, and I filled it out. She called 18 them, and at first, the first one, they said it 19 would have to be a lower amount and we came to 20 terms with the amount and it was okayed through 21 Synchrony. 22 Q. Who said it had to be a lower 23 amount? 24 A. Synchrony. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 13 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 38 1 Q. So you initially applied for credit 2 and they said they wouldn't give you the full 3 amount? 4 A. Correct. 5 Q. Okay. Do you remember what the 6 full amount was? 7 A. I do not. 8 Q. Do you remember what the final 9 amount was? 10 A. Yes, $1,000. 11 Q. Okay. And you filled out 12 information on a sheet of paper? 13 A. Yes. 14 Q. And handed that to -- 15 A. To the office manager, and she then 16 proceeded to do whatever she needed to to contact 17 Synchrony. 18 Q. Okay. 19 A. It was done in that day. 20 Q. Okay. Did you receive any 21 documents that day related to the credit card 22 account? 23 A. Yes. 24 Q. Do you still have those documents? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 14 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 39 1 A. Yes. 2 Q. Did you provide those documents to 3 Counsel? 4 A. I -- no, I did not. 5 Q. Okay. I'm going to ask you to, and 6 we can talk about it more on the break, but if 7 you still have those in your possession, to hand 8 them over so we can see them. 9 What type of information do you 10 recall providing as part of your application? 11 A. My name, address, telephone number, 12 my social security number, my phone number. 13 Q. Do you remember what phone numbers 14 you provided? 15 A. 774-922-2025. 16 Q. Any other phone numbers? 17 A. Not that I recall. 18 Q. Okay. Did you -- what is your 19 social security number? 20 A. 013-44-7526. 21 Q. And you know what, I didn't ask 22 this before; is Moody your maiden name or your -- 23 A. No. 24 Q. -- married name? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 15 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 40 1 A. Married. 2 Q. It is your married name? What is 3 your maiden name? 4 A. Gassett, G-A-S-S-E-T-T. 5 Q. Do you recall what your income was 6 at the time that you applied for this credit 7 card? 8 A. Monthly it was around $1,200 a 9 month. 10 Q. And were you asked to provide that 11 information, as well, as part of the credit 12 application? 13 A. I can't recall. 14 Q. So you applied for your credit card 15 at the dental office? 16 A. Yes. 17 Q. Did you get the procedure done that 18 day? 19 A. Partly, not all. 20 Q. Okay. And how did -- how was the 21 payment arrangement with the dental office? 22 A. I was given a card, that CareCredit 23 for -- backed by Synchrony Bank, and each time I 24 went, they deducted it off the card. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 16 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 41 1 Q. And so you had multiple charges on 2 the card? 3 A. I -- yes, I do. 4 Q. Okay. And when you say you have 5 the card, you said that you received the card 6 from the dental manager or -- 7 A. No. 8 Q. -- are you talking about later on? 9 A. No. I received the card from 10 Synchrony Bank. 11 Q. Okay. And so the day you received 12 your card you were able to get whatever procedure 13 you were there for that day? 14 A. Yes. 15 Q. And they billed it later against 16 the card? 17 A. Yeah. Well, I had an appointment. 18 I mean, it wasn't that precise day that I got the 19 card. I got the dental work done in two or three 20 trips afterwards. 21 Q. Okay. And have you ever disputed 22 the debt with the Aspen Dental people? 23 A. No. 24 Q. So you're not involved in any Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 17 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 47 1 a trans -- for -- transaction date of March 2, 2 2015, a post date of March 2, 2015, there's a 3 reference number and a description, "Automatic 4 payment - thank you," for $33. Is that 5 consistent -- 6 A. Yes, it is. 7 Q. -- with your memory? Okay. 8 So that was a March payment. 9 If we go to a couple pages later to 10 Bates stamp No. 17, in that same box or on that 11 same part of the page, it looks like there was a 12 transaction on April 2nd, and a posting of April 13 2nd, another automatic payment; this one $32. Is 14 that consistent with your memory? 15 A. Yes. 16 Q. Okay. And then, if you flip to 17 Bates stamp page 21, we have a May 1st 18 transaction date with a May 1st posting date of 19 $31. Is that -- 20 A. Correct. 21 Q. -- consistent with your memory? 22 A. Yes. 23 Q. Okay. We go to page 25, there is 24 no posting for this date. We see that there was Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 18 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 48 1 a -- there was no automatic posting -- 2 A. Correct. 3 Q. -- reflecting the account. 4 And then there was a late fee for 5 having missed a payment. Do you see that? 6 A. Yes, I do. 7 Q. And there were no payments received 8 that month; is that correct? 9 A. Correct. 10 Q. Okay. And is it true that going 11 forward there were no payments made on the 12 account again? 13 A. Yes. 14 Q. Okay. So this posting was on June 15 2nd, and when we discussed earlier, you said that 16 it was around this time that you couldn't make 17 payments. What was going on; what happened? 18 A. I -- I was very sick; I've been 19 sickly for the past three years, and I just 20 didn't have the funds at that time to make that 21 payment. 22 Q. Were you making payments on -- or 23 rather -- I'll withdraw the question. 24 Did you have other debts as well Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 19 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 55 1 A. End of -- beginning of 2016. 2 Q. Okay. 3 A. Yeah. I just... 4 Q. I want to jump a little bit out of 5 time and back up to the beginning of May. We 6 were just on a thread, so I didn't want to stop 7 talking. But you made a call into Synchrony in 8 May 2015? 9 A. Mm-hmm, yes. 10 Q. I'd like to play the recording into 11 the record. 12 MR. CARWINSKI: And this is the 13 recording that was produced as Bates No. 14 121. 15 MS. TROCCOLI: Okay. 16 17 "JOHN: Thank you for calling. My 18 name is John. How can I help you today? 19 MS. MOODY: I have a question. 20 Someone told me that I can use my 21 CareCredit card at the grocery store or 22 other stores; is this true? 23 JOHN: All right. Well, conditions 24 (unintelligible), please? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 20 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 56 1 MS. MOODY: Sure. It's Janet 2 Moody, M-O-O-D-Y. 3 JOHN: Ms. Moody, thank you for 4 using the automated system as well as 5 verification. Let's go over your account. 6 And with regarding your question, 7 actually, the CareCredit card is only used 8 for medical concerns, like if you're 9 getting cosmetic surgery, dental concerns 10 or veterinary services or getting hearing 11 aids or glasses. But if it's going to be 12 used at a grocery store, it's actually not 13 allowed; it's not covered by that. 14 MS. MOODY: Okay. Because somebody 15 told me they used theirs there, and I was 16 like, oh, you can do that? They 17 thought -- I thought it was just for, you 18 know, basic pharmaceuticals or emergency 19 care or something like that. Does it pay 20 doctors' visits at a doctors' office? 21 JOHN: Okay. For regular checkups 22 for -- from a doctor's office, no, it 23 doesn't cover that particular situation. 24 MS. MOODY: Okay. All right. I Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 21 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 57 1 just -- I never received a -- I got the 2 card, but nothing with it, so I didn't 3 know exactly what it did. All right. I 4 appreciate all your help. Thank you so 5 much. 6 JOHN: And was I able to address 7 all your questions for today, Ms. Moody? 8 MS. MOODY: Yes, you were. Thank 9 you so much. You have a great day. 10 JOHN: Thank you. And I thank you 11 for using the automated system. And thank 12 you for calling Synchrony Bank. We 13 appreciate your business. Have a 14 wonderful day. 15 MS. MOODY: Okay. Thanks." 16 Q. (By Mr. Carwinski) Okay. Was that 17 your voice -- 18 A. Yes, it was. 19 Q. -- on the recording? Okay. 20 Is that the full recording as you 21 remember it? 22 A. Yes, it is. 23 Q. Okay. So why were you looking to 24 use the CareCredit card? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 22 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 64 1 started. The calls started sometime in June of 2 2015? 3 A. Yes. 4 Q. And they started, would you say, 5 sometime after the conversation you had about the 6 auto pay? 7 A. Yes. 8 Q. And so would you be able to put a 9 guess on a date of when that started? 10 A. I would say two, three days. I 11 don't want to say a specific date; I'm not really 12 sure of a specific date. Approximately maybe two 13 to three day after I spoke with the gentleman 14 about the auto pay. 15 Q. Okay. And the calls continued 16 through July; is that correct? 17 A. Correct. 18 Q. Were there any other companies 19 calling you during that period with respect to 20 debt obligations or loans? 21 A. No. 22 Q. Okay. Do you have a home phone 23 number? 24 A. No. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 23 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 65 1 Q. Okay. Was anyone trying to contact 2 you at your work number during this time 3 period -- 4 A. No. 5 Q. -- related to loans? Okay. 6 Did Synchrony ever call your work 7 line? 8 A. No. 9 Q. You mentioned earlier in the 10 deposition that you had sent a text message, and 11 we'll talk about that separately in a moment. 12 Were there any instances where 13 Synchrony called you and you answered the phone 14 and spoke to a live person? 15 A. No. 16 Q. Did you ever call Synchrony during 17 this period to ask about the calls or to have a 18 conversation about the calls? 19 A. No, I don't believe I did. 20 Q. Okay. So at no time did you ever 21 call -- 22 A. Oh, wait. I'm sorry. I did once. 23 Q. Okay. 24 A. I spoke with a gentleman, and I had Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 24 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 66 1 said about -- I explained to him the situation 2 about speaking with the other gentleman. 3 Q. Okay. 4 A. And then receiving phone calls 5 afterwards, and I told them that I 6 just -- I didn't want the phone calls anymore. 7 8 (Phone ringing) 9 10 MR. CARWINSKI: Go off the record 11 for a minute here for a second. 12 13 (Off record discussion) 14 15 MR. CARWINSKI: Back on the record. 16 Q. (By Mr. Carwinski) When was the 17 phone call that you made to Synchrony? 18 A. I made the phone call to 19 Synchrony -- it was the 13th, 12th or 13th of 20 June. And then I got another phone call, and 21 that's when I got agitated and I sent the text 22 message. 23 Q. Okay. So in terms of timing, it 24 was the same day as the text message? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 25 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 67 1 A. It -- no, it was not the same day. 2 Q. Okay. 3 A. I got the -- talked to the 4 gentleman a couple days prior to receiving the 5 phone call that started on the 15th; I sent the 6 text message on the 15th of June. 7 Q. Okay. So working backwards, you 8 think that the conversation with a male 9 representative at Synchrony Bank was on the 12th 10 or 13th, two or three days before the text 11 message? 12 A. I don't -- yes, I do. And I didn't 13 expect phone calls that quickly after I had 14 talked to someone and tried to straighten out the 15 account. 16 Q. Okay. Do you remember this 17 person's name? 18 A. I do not. I remember that he was 19 of Indian descent. 20 Q Okay. 21 A. And he was very polite, and he was 22 willing to help me stop the automatic payments. 23 And then the next person I talked to on the phone 24 and ask them to stop the phone calls, he also was Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 26 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 68 1 of Indian descent -- 2 Q. Mm-hmm. 3 A. -- and he -- that he would do what 4 he could, but he can't guarantee the phone calls 5 would stop, so... 6 Q. Okay. So focusing on that call of 7 the 12th or the 13th -- 8 A. Mm-hmm. 9 Q. -- this was with a male who had an 10 accent Indian -- or Indian descent, do you 11 remember anything else identifying about the 12 person you talked to? 13 A. I don't, other than his voice being 14 of non-American descent. 15 Q. Okay. And this was a call that you 16 placed to Synchrony? 17 A. Yes. 18 Q. Do you remember what phone number 19 you called? 20 A. I don't. I'm sorry. 21 Q. Do you have an idea of where you 22 would have gone to look up the number? 23 A. On the Synchrony account. 24 Actually, I Googled Synchrony also, and it gives Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 27 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 69 1 you just a standard phone number, a 1-800 number 2 to call. 3 Q. Okay. So it was a 1-800 number 4 that you got offline as opposed to a number off 5 of a billing statement or off the back of the 6 card? 7 A. Yes. 8 Q. Okay. And when you called, 9 you -- can you kind of walk me through, step by 10 step, the call -- 11 A. Well, they were -- were able to 12 bring up my account on their computer, and they 13 could see that the automatic payments were 14 stopped; this is the second time I called. 15 They -- I had spoken to the gentleman and asked 16 him to stop the phone calls at that time, and 17 that's when he told me that he couldn't guarantee 18 the phone calls to stop. And I just said okay 19 and I hung up. 20 Q. Was the -- how long was the 21 conversation? 22 A. Maybe two and a half, three 23 minutes, tops. 24 Q. And how long were you on the Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 28 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 74 1 here, there's no factual basis to support an 2 allegation that you are aware of? 3 A. Correct. 4 Q. That they in anyway tampered with 5 evidence in the litigation? 6 A. Correct. 7 Q. Other than this phone call from 8 June 12th or June 13th, was there any other times 9 when you spoke to a Synchrony representative? 10 A. No. 11 Q. Okay. 12 A. It was very hard to; they were all 13 automated. 14 Q. How do you know they were 15 automated? 16 A. Because it said so at the end of 17 the message. "This is a recording." And you 18 could tell by people, when they first started 19 out, it wasn't as if we are speaking now. 20 Q. Mm-hmm. 21 A. It was very blasé, tol -- you know 22 dictoral (phonetic). 23 Q. How many times did you pick up the 24 phone from these phone calls? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 29 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 75 1 A. I didn't. They left a voicemail. 2 Q. How many voicemails? 3 A. On the -- about se -- every time 4 they called, so it was between 73. 5 Q. You received 73 voicemails from 6 Synchrony Bank? 7 A. Well, phone calls, yes. 8 Q. Voicemails? 9 A. Voicemail? 10 Q. Yes. 11 A. They -- okay. I am going to take 12 back that because I don't want you to say that 13 all 73 were voicemails that I received from them. 14 I do want -- I can -- I don't remember the 15 precise number of voicemails. 16 Q. Okay. So of the calls that you 17 received during this period, you didn't pick up 18 the phone on any of them? 19 A. Some of them I picked it up. It 20 just went automatically into that bad voice 21 thing. 22 Q. Okay. How many of them do you 23 think you picked up? 24 A. It's on my phone; I can tell you. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 30 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 76 1 Precisely, I don't know. 2 Q. So you're saying right now, on your 3 phone, you still have the log information 4 on -- like it has the information as to what 5 calls you received? 6 A. Mm-hmm. 7 Q. And about which recordings that you 8 have? 9 A. Not all of them, because as I 10 stated in the beginning, they -- because they 11 have been on my phone for so long, they're 12 automatically now being deleted, and I'm not 13 deleting them; it's being done by the phone 14 itself. 15 Q. And did you make any effort to put 16 the phone recordings -- provide those to your 17 counsel? 18 A. Yes, I did. 19 Q. Those were all provided to your 20 counsel? 21 A. Yes. 22 Q. Along with screenshots from the 23 phone log? 24 A. Yes, I sent them to Rachel Stevens. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 31 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 77 1 Q. Do you know when you sent them to 2 Rachel? 3 A. I don't precisely know. 4 Q. Was it before you filed the 5 litigation? 6 A. No. 7 Q. Would it have been in the last six 8 months? 9 A. Yes. 10 Q. Last two months? 11 A. I -- no. 12 Q. Okay. Would it have been maybe 13 around the same time that the interrogatory 14 responses -- 15 A. No. 16 Q. No? 17 A. I think that was prior to -- 18 Q. That was prior? So some time 19 after -- those were May I think, so sometime 20 after May -- 21 A. Yeah. 22 Q. -- 2016? 23 A. 2016 that was done? 24 Q. Yes. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 32 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 79 1 phone log, you believe those were retained in 2 full? 3 A. No. They have not been retained on 4 my phone in full. 5 Q. Oh, because you had taken 6 screenshots and that's -- and that's the record 7 of what was on the phone? 8 A. No. The other -- the -- let me get 9 to where I need to go. They're on here. 10 Q. Okay. 11 A. I'm so sorry. I'm not computer 12 savvy; I'm not phone savvy. I was asked to take 13 phone -- screenshots and send them, and on my 14 phone it had Synchrony Bank, Synchrony Bank, 15 Synchrony Bank -- 16 Q. Mm-hmm. 17 A. -- going down the list. 18 Q. Did you make a screenshot of your 19 outgoing phone calls to Synchrony Bank? 20 A. No. I had no reason to at that 21 time. There were -- I only made two. 22 Q. So there's no document that you can 23 get from your phone to show that you did, in 24 fact, call Synchrony on June 12th or June 13th? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 33 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 80 1 A. Phone records. That's all I -- I'm 2 sorry. It's not going to let me. I'm in an 3 enclosed room. 4 Q. Well, while it's reloading, we can 5 move on to -- 6 A. It won't load and -- 7 MS. TROCCOLI: And are we on the 8 record or off the record? 9 MR. CARWINSKI: We're on the 10 record. 11 MS. TROCCOLI: Can we go off the 12 record for a minute? 13 MR. CARWINSKI: Sure. 14 15 (Off record discussion) 16 17 MR. CARWINSKI: Back on the record. 18 Q. (By Mr. Carwinski) I'm going to 19 ask you to look again at Exhibit No. 6, which was 20 the first amended complaint, and just ask you to 21 review and familiarize yourself again with the 22 factual allegations in paragraphs 10 to 29. 23 A. (Witness perusing documents) 24 Q. Do you know why there's no Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 34 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 82 1 from Synchrony, so what's the point? 2 A. No. 3 Q. You always picked up the phone? 4 A. No, I didn't always pick up the 5 phone, but I knew -- I -- I'm hard of hearing. 6 So as you heard earlier, when my mother's -- 7 unless you just told me my mother was calling me, 8 I did not hear that. And so I don't hear the 9 phone all the time. It could be sitting right 10 next to me and I wouldn't hear the phone. It's 11 happened; it does happen. 12 Q. Okay. 13 A. It's just that when I look at it, 14 oh, I got a call. 15 Q. Oh, okay. 16 A. And -- you know, by that time it's 17 a -- that voice message. 18 Q. Okay. And so if I give you a 19 ballpark, you think maybe you answered -- 20 actually picked up the phone while it was 21 ringing -- 22 A. I picked up the phone on the 4th of 23 July because I was going to lay them out in 24 lavender for calling me five times on the 4th of Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 35 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 85 1 Monday through Friday? 2 A. Correct. 3 Q. So it would be accurate to say 4 that, with the exception of holidays, that phone 5 calls that you would have received between 6:30 6 and 3:00, Monday through Friday, you would not 7 have answered the phone because the phone would 8 have been in the trunk? 9 A. In my trunk, yes. 10 Q. Okay. Are there any other times 11 when you wouldn't have your phone? As a regular 12 scheduled matter -- obviously sometimes people 13 don't have their phones all the time; it happens, 14 right? But -- 15 A. Unless I leave it home by accident 16 or -- I always usually have my phone in my purse. 17 I have left it home several times because it 18 needed to be charged or something, but yeah. 19 Q. Have you ever used an app on your 20 phone to record calls? 21 A. No. 22 Q. Have you ever used an app on your 23 phone to block calls? 24 A. No, not an app, no. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 36 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 87 1 Q. Did you -- and you never stayed on 2 the line to talk to a person? 3 A. It never gave me the option. 4 Q. What option did it give you? 5 A. It gave you, "This is a recording," 6 and that was it. It said, "Please call Synchrony 7 Bank. This call is for Janet Moody." 8 Q. Okay. And did it give you a number 9 to call back? 10 A. Yes. 11 Q. Is that the same number that you 12 sent your text message to? 13 A. I can't remember. I'm sorry. 14 Q. Let's talk about the text message. 15 16 (Exhibit 11, Copy of Text 17 Message, marked) 18 19 Q. (By Mr. Carwinski) I am handing 20 you a document that I have marked as Exhibit 11. 21 This is a printout of a screenshot that your 22 counsel produced in this litigation. Can you 23 tell me about the circumstances that -- 24 A. I -- why I did this? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 37 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 88 1 Q. First, tell me what it is. 2 A. It is a request for them to stop 3 calling me in a text message because they were 4 calling three, four, five times a day, and I 5 was -- I owed them $31. It -- basically is 6 self-explanatory as far as what I owed and what I 7 was going to do. I just let them know it was 8 harassment. 9 Q. What -- where did you -- withdraw 10 that. 11 So up at the top, at the -- reading 12 the screenshot, it looks like this phone number 13 has been saved in your contacts on your phone? 14 A. Mm-hmm. 15 Q. And Synchrony is -- it's spelled 16 incorrectly? 17 A. Correct. 18 Q. And so am I correct that you 19 manually entered the contact information to 20 create this contact in your phone? 21 A. Mm-hmm, yes. 22 Q. Okay. Where did you get the phone 23 number from? 24 A. They called me. I used that phone Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 38 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 89 1 number. 2 Q. Oh, okay. So this is a phone 3 number from which you were receiving calls? 4 A. Yes. 5 Q. Okay. And at this point had you 6 already been picking up phone calls and 7 recognizing that this was a pre-recorded message? 8 A. Yes, I was. 9 Q. Did you ever get a response to this 10 text message? 11 A. No, I did not, that I know of. 12 Q. Have you ever received a text from 13 this number? 14 A. No. 15 Q. Okay. Why did you think that the 16 number that you sent this text to was a number 17 that could receive text messages? 18 A. Because it never stated it 19 couldn't. Most calls, when you get them -- I 20 know on my phone it tells me that -- do not 21 respond, that this phone number is not a -- being 22 able to accept text messages. So I just figured 23 this one was where it didn't state that. 24 Q. So it's your understanding that if Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 39 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 94 1 where on this -- 2 A. Because it said "sent" on my phone 3 when I sent it. 4 Q. Can you show me where on this 5 screenshot it tells you that it was received? 6 A. (No audible response) 7 Q. Did you see anything on your phone 8 to tell you it was received? 9 A. No, but I didn't see anything that 10 denied it either. 11 Q. Okay. So other than not getting 12 some sort of a message that it had been denied -- 13 A. Mm-hmm. 14 Q. -- do you have any other reasons to 15 think Synchrony received the text message? 16 A. Just good faith, I mean phone to 17 phone. I would think that it went through 18 because it said "sent." 19 Q. Okay. Did Synchrony ever 20 acknowledge that they received a text message? 21 A. No. 22 Q. Okay. Have you ever seen anything 23 indicating that Synchrony accepts text messages? 24 A. No. Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 40 of 42 Janet Lee Moody October 18, 2016 Springfield, MA Worcester, MA Boston, MA Providence, RI CATUOGNO COURT REPORTING & STENTEL TRANSCRIPTIONS Page 95 1 Q. In any of the phone recording 2 messages that you listened to, did any of them 3 ever indicate that text message was a form of 4 communication that was possible? 5 A. No. 6 Q. And also, you -- you're basing your 7 belief that you would have received some sort of 8 a notice; that's not based on any sort of 9 expertise in technology of either phones or the 10 phone equipment at issue? 11 A. No, I'm not an expert on phones or 12 phone equipment. 13 Q. Okay. It was just personal 14 experience, not expertise? 15 A. (Witness shaking head side to side) 16 Q. Okay. 17 When did you stop receiving phone 18 calls? 19 A. It was in July, towards the end of 20 July. 21 Q. Do you know why? 22 A. I surmised -- and no, I don't know 23 why. 24 Q. What do you surmise? Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 41 of 42 Case 4:15-cv-40107-TSH Document 65-1 Filed 01/17/17 Page 42 of 42 01/17/2017 8:23 PM EXHIBIT B Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 1 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 2 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 3 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 4 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 5 of 57 EXHIBIT 1 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 6 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 7 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 8 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 9 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 10 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 11 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 12 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 13 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 14 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 15 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 16 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 17 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 18 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 19 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 20 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 21 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 22 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 23 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 24 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 25 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 26 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 27 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 28 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 29 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 30 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 31 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 32 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 33 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 34 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 35 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 36 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 37 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 38 of 57 EXHIBIT 2 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 39 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 40 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 41 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 42 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 43 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 44 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 45 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 46 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 47 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 48 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 49 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 50 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 51 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 52 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 53 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 54 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 55 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 56 of 57 Case 4:15-cv-40107-TSH Document 65-2 Filed 01/17/17 Page 57 of 57 EXHIBIT C Case 4:15-cv-40107-TSH Document 65-3 Filed 01/17/17 Page 1 of 6 MARTHA KOEHLER 10/20/2016 www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 MIDWEST LITIGATION SERVICES Page 1 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF MASSACHUSETTS 3 4 JANET MOODY, ) ) 5 Plaintiff, ) ) 6 vs. ) Civil Case No. ) 4:15-cv-40107 TSH 7 SYNCHRONY BANK f/k/a GE ) CAPITAL RETAIL BANK, ) 8 ) Defendant. ) 9 10 11 12 DEPOSITION OF MARTHA KOEHLER 13 TAKEN ON BEHALF OF THE PLAINTIFF 14 15 OCTOBER 20, 2016 16 17 18 19 20 21 22 23 24 25 Case 4:15-cv-40107-TSH Document 65-3 Filed 01/17/17 Page 2 of 6 MARTHA KOEHLER 10/20/2016 www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 MIDWEST LITIGATION SERVICES Page 2 1 I N D E X 2 WITNESS: PAGE 3 MARTHA KOEHLER 4 EXAMINATION BY MS. STEVENS 5 5 6 E X H I B I T S 7 NO. DESCRIPTION PAGE 8 Exhibit 1 Account Note Screenshots 20 9 Exhibit 2 Screenshots from Application 62 10 System 11 Exhibit 3 Cell Phone Handling 23 12 Exhibit 4 Synchrony Financial Procedure 23 13 14 15 (The original exhibits were retained and destroyed by 16 the reporter.) 17 18 19 20 21 22 23 24 25 Case 4:15-cv-40107-TSH Document 65-3 Filed 01/17/17 Page 3 of 6 MARTHA KOEHLER 10/20/2016 www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 MIDWEST LITIGATION SERVICES Page 3 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF MASSACHUSETTS 3 4 JANET MOODY, ) ) 5 Plaintiff, ) ) 6 vs. ) Civil Case No. ) 4:15-cv-40107 TSH 7 SYNCHRONY BANK f/k/a GE ) CAPITAL RETAIL BANK, ) 8 ) Defendant. ) 9 10 DEPOSITION OF MARTHA KOEHLER, produced, 11 sworn and examined on October 20, 2016, at the offices 12 of Synchrony Financial, 9510 West 67th Street, 13 Merriam, Kansas 66203, before Lauren N. Lawrence, RPR, 14 KS CCR, and Notary Public within and for the State of 15 Missouri, in a certain cause now pending in the United 16 States District Court, District of Massachusetts, 17 between JANET MOODY, Plaintiff, vs. SYNCHRONY BANK 18 f/k/a GE CAPITAL RETAIL BANK, Defendant; on behalf of 19 the Plaintiff. 20 21 22 23 24 25 Case 4:15-cv-40107-TSH Document 65-3 Filed 01/17/17 Page 4 of 6 MARTHA KOEHLER 10/20/2016 www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 MIDWEST LITIGATION SERVICES Page 61 1 A. Oh, I'm sorry. Okay. Thank you. 2 The written requests for no calls to the 3 known mobile number would be handled the same way. 4 The phone number would be coded as 5 nonconsent and a note would be made to the account 6 regarding the correspondence received. 7 Q. Is there a specific -- let me rephrase. 8 What about written requests received via text message? 9 A. I'm sorry. Written requests? 10 Q. A written request to stop calling, but 11 instead of in a letter, it comes in a text message. 12 Do you have a procedure for how to handle that? 13 A. To my knowledge, we don't receive text 14 messages. We don't have any phone numbers set up to 15 receive text messages. We have phone calls, written 16 correspondence, and e-mail. 17 Q. Now, Synchrony calls -- makes calls to cell 18 phones. If a customer texts back the number that 19 Synchrony called their cell phone from, do they 20 receive any sort of reply message letting them know to 21 call or write instead? 22 A. Does the customer receive a message? 23 Q. Yes. I'm your customer, and I get a call 24 from you on my cell phone, and I text your phone -- 25 your cell phone, Synchrony's phone number, is there Case 4:15-cv-40107-TSH Document 65-3 Filed 01/17/17 Page 5 of 6 MARTHA KOEHLER 10/20/2016 www.midwestlitigation.com Phone: 1.800.280.3376 Fax: 314.644.1334 MIDWEST LITIGATION SERVICES Page 62 1 any sort of reply message to the customer? 2 A. I don't know. We don't -- Synchrony 3 doesn't have any cell phones set up to accept text 4 messages from customers. 5 Q. When Synchrony's -- in Synchrony's recorded 6 messages, played when the Noble system calls or when 7 Adeptra calls on behalf of Synchrony, is there any 8 instruction to the customer not to text the bank or 9 that the bank cannot accept texts? 10 A. Not that I'm aware of. 11 Q. And we're going to take a look at Exhibit 12 Number 2 starting with Bates Number 1. 13 A. I have it. 14 Q. Do you know what this document is? 15 A. Yes. It's a screenshot from our 16 application system of the information that was 17 transmitted for processing for a CareCredit account -- 18 Q. When you say -- 19 A. -- in the name of Janet Moody. 20 Sorry. 21 Q. Go ahead. I didn't mean to interrupt. 22 A. No. I just added "in the name of Janet 23 Moody." 24 Q. When you say "the information that was 25 transmitted" -- Case 4:15-cv-40107-TSH Document 65-3 Filed 01/17/17 Page 6 of 6