Velez v. Wells Fargo Bank, N.A.

MOTION for Summary Judgment

D.N.J.September 9, 2016

V T'NITED STATES DTSTRICT COI'RT DISTRICT OF NEÏÍ ,IERSEY TVETTE VELEZ, Plaintiff, Civit Action No. L: 1-5-cv-3638 (RBK) (KMW) NOTICE OF MOTION FOR SUMI,ÍARY JT'DGMENT V'IELLS FARGO BANK, N.A Defendant. PLEjASE TAI(E NOTICE THAT pursuant to Local Civil Rule 7 .I, Defendant Wells Fargo Bank, N.4., by and through its attorneys, Reed Smith LI-.,P, on October I7, 20]-6, ât 9:00 a.m. , et as soon thereafter as counsel may be heard, shall move before the Honorable Robert B. Kugler, U.S.D.,J., at Lhe Federal Dist.rict Court for the District of New.Tersey located at the Mitchell H. Cohen Building & U.S. Courthouse, 4th 6c Cooper Streets, Camden, New ,fersey 081-01- for Summary ,Judgment. PLEASE TAI(E E't RTHER NOTICE that in support of t.his Motion, Defendant shal1 rely on the attached Memorandum of Law, Statement of Undisputed Material Facts, and Cert.ification of Kellie A. Lavery, Esq., with exhibits submitted herewith. REED SMITH LLP Dated: September 9, 20]-6 Ke e Case 1:15-cv-03638-RBK-KMW Document 30 Filed 09/09/16 Page 1 of 1 PageID: 235 I'NITED STATES DISTRICT COI'RT DISTRICT OF NEIV JERSEY IVETTE VFJ''EZ ' Plaintiff, WELLS FARGO BANK, N.A Defendant. Civil Action No. L:L5-cv-3638 (RBK) (KMW) v ME!{ORJA}TDUM OF T,ATÛ TN SUPPORT OF DEFENDAIiTT I{ELLS FåRGO BAIiIK' N.A.'S MOTION FOR SUMIIARY .ITIDGMENT Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 1 of 17 PageID: 236 T.ABLE OF CONTENTS PRELTMÏNARY STATEMENT STATEMENT OF UNDISPUTED MATERIAT, FACTS . , RELEVANT PROCEDURÄT, HÏSTORY . ARGTÏMENT . . . T STANDARD OF REVTEW ON A MOTION FOR SUMMARY .TUDGMENT IT PLAINTTFF'S TCPA CLAÏMS ARE BARRED BY THE DOCTRINE OF RES .JUDTCATA AND THE FRÃNKLTN SETTLEMENT . . ... . Page 1 2 2 4LEGAL POINT POINT L POTNT TIT PLATNTTFF WAIVED HER CLAIMS AGATNST WELLS FARGO BANK, N.A. BECAUSE SHE CONSENTEÐ TO BE CALLED ON HER CELLULAR PHONE CONCLUSÏON 5 ..t2 1_3 L Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 2 of 17 PageID: 237 TABLE OF AUTHORITIES Ca.ses Anderson v. 477 U. S. Liberty Lobby, Inc., 242 (1_986).... Page (s) 9, 10 4 Andrews v. SaLLie Mae, Inc., No. 14-cv-760-CAB (,IMA) , 2014 Nov. 2L, 20L4) .... WL 66328L2 (S.o. CaI. Cefotex 477 U Corp. v . s. 3r7 Catrett, ( 1e86 ) Conceicao v. Nat'l- Water Main Cleaning Co., No. ]-4-5!46 (W'JM) , 20!5 BL 205400 (D. N.,J. 2OI5), aff'd, No. 15-2743, 2016 BL L66358 Nlay 25, 201"6) Edmundson v. Borough of Kennett 4 F.3d 186 (3d Cir. L993).... 'June 26,(3d Cir. 4 T2 Square, v. MML Bay State Life Ins. Co., . App'x 577 (3d Cir. 20t]-) .... 7, 9, L0 6 9 Freeman 445 F Gager v. Del-L Fin. 727 F.3d 26s (3d Servs., LLC, Cir.201-3) Gotthel-f 525 F. Matsushita El-ec. 475 U.S. 574 In re PrudentiaL Litigation, 26l. F.3d 3ss v. Toyota Motor Safes, U App'x 94 (3d Cir. 20L3). S. A. , Inc. , Grimes v. Vital-ink Comm. Corp., t7 F.3d l-ss3 (3d Cir. 1994) . Hersh v. ALJ-en Prod. Co., 789 F.2d 230 (3d Cir. 1-986) 5, 6 4, 5 5, 9 6 4 Indus. Co. v. Zenith Radio Corp., ( 1e86 ) Ins. Co. of Am. Sal.es Practice (3d Cir. 2001-) . . Reitz v. County of Bucks, I2s F.3d 1-39 (3d cir. 1997) 4 l-L Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 3 of 17 PageID: 238 Toscano v. Conn. Gen, Life fns. Co. 2BB F. App'x 36 (3d Cir. 2008) .. Rules Fed. R. Civ. P. s6 (a) 65 4 111 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 4 of 17 PageID: 239 PRELIMINARY STATEMENT Plaintiff Ivette Velez brought this action against Defendant Wel1s Fargo Bank, N.A. ("We11s Fargo") for violation of the Telephone Consumer Protection Act. ("TCPA") in connection with cal1s Wells Fargo made to her cellu1ar phone. Her claims, however, are barred because they have already been released through a binding class action settlement. Specifically, Plaintiff's claims are barred because Plaintiff was a member of a class action brought in the United States District Court for the Sout.hern District of California, where the exact same claims that. she is pursuing in t.he instant lit,igat,ion were settled and Plaintiff's Complaint, the released. In t.he class action, like parties settled claims that We1ls using automated dialing technologyFargo and/ or credit violated the TCPA by prerecorded technology in order to collect on consumer card accounts. The released class action claims and Plaintiff ' s claims are indistinguishable We1ls Fargo now moves class set,t.lement agreement California bars Plaintiff claims here because she despite receiving notice. agreement operated as a for summary judgment. The binding from the Southern Dístrict of from re1ítigating the exact same opted out of the settlement,rrever The final approval of the settlement final adjudication on the meríts, with preclusive effect, and therefore Plaintiff's claims are barred 1 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 5 of 17 PageID: 240 by t.he doctrine of res j udicata . Moreover, even if her claims were not already settled, allegations fail because a significant portlon of Plaintiff's she expressly consented to receiving calls from We1ls Fargo via conÈract and by verbally reaffirmíng that We11s Fargo could call her. For these reasons, Wel1s Fargo requests that the Court grant, its motion, enter judgment in favor of We1ls Fargo, and dismiss Plaintiff's claims with prejudice STATEMENT OF UNDISPUTED }íATERIAT FACTS We1ls Fargo incorporates the Statement of Undisputed Facts submitt,ed in support of its Motion f or Summary ,Judgment, âs if fully set forth herein. RELEVAT{T PROCEDI'RJAI. IIISTORT On May 5, 201-5, Plaint,iff inÍtiated this action against Wells Fargo by filing the Complaint with the Court. DE 1. On July 6, 2015, Wel1s Fargo filed is answer and affirmative defenses to the Complaint. DE 4. On .Tanuary 26, 20L6, the United States District Court. f or the District of California granted Final Approval of Class Action Sett.lement, along with Final 'Judgment, in the matt.er FrankLin v. Wel-Ls Farqo Bank, ¡ü. Ä. , No. 3 : l-4 -cv- 02349-MMA-BGS. Lavery Cert., Exs. 9, 10. The set.tlement class was defined as " [a] 11 ceII phone users or subscribers to wireless or celIular service to lwhom] We11s Fargo placed called from November -2 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 6 of 17 PageID: 241 L, 2OO9 to September !7, 201-4 using any automated dialing technology or artificial or prerecorded voice technology in an effort to collect on a consumer credit. card accounL. " Lavety Cert., Ex. B at WF-VeJ-ez 71, Settl-ement Agreement S 2.08. Without dispute, Plaintiff was: (1) a cell phone user; (2) whom Wells Fargo calIed between November t, 2009 and September !'7 , 201-4; ( 3 ) using automated dialing technology andf or prerecorded voj-ce technology; (4) in order to collect on a consumer credit, card account. Plaintiff was a member of the class acLion, and she did not opt out when notice was served following the February 9, 201-5 certification of the class for settlement purposes. Lavery Cert., Ex. 4 at 62:73-68:76.. Accordingly, pursuant to the explicit terms of the Fínal Approval of Class Settlement, Plaintiff's claims for any events occurring bef ore ,.Ianuary 26 , 20L6 were released . Lavery Cert. , Ex. B at WF-Vel-ez 88. Counsel for Wells Fargo advised Plaintiff on March 25, 2016 of the Ex. 1-2 . binding class settlement. Plaintiff, however, oil in Frankl-in, Lavery Cert. , April I, 20L6, disputed the binding effect of the FrankLin class settlement. Lavery Cert., Ex. 1-3. On May 5, 2016, the Court conducted a settlement conference, but the parties could not reach a settlement DE 23. 3 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 7 of 17 PageID: 242 Wells Fargo now moves f or Summary ,Judgment, seeking dismissal of the Complaint with prejudice. LEGAJ, ARGT'MENT POINT I STA$TDARD OF REVIET{ ON A MOTION FOR ST'MINRY .IUDGMENT A party seeking summary judgment must show "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of 1aw." Fed. R. Civ. P. 56 (a) ; see CeLotex Corp. v. Catrett, 477 U.S. 3L7, 323 (f 986); Reitz v. County of Bucks, L25 F.3d L39, 143 (¡A Cir. 1'997)¡ Hersh v. Al,fen Prod. Co. , 789 F.2d 230, 232 (¡A Cir. 1-986) . "[T]he burden on the moving party may be discharged by 'showing' that is, pointing out to the district courL t,hat there is an absence of evidence to support the nonmoving' party's case." Cefotex Corp., 477 U.S. at 325. Once the moving party makes this showing, "its opponent must. do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Efec. Indus. Co. v. Zenith Radio Corp. , 475 U. S. 574, 586 (1-986) . " [T] he mere existence of some alleged factual dispute between the parties will not defeat an ot.herwise properly supported motion for summary judgment; the requirement is that Lhere be no genuine issue of materiaJ- facL." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). ff the court -4 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 8 of 17 PageID: 243 determines that "the record taken as whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita EJ-ec. Indus. Co 475 U.S. at 587. Here, Plaintiff cannot meet this burden and summary judgment should be entered for Wells Fargo POINT II PI,AINTIFF' S TCPA CI,AIMS ARE BARRED BY THE DOCTRINE OF RES iTT'DICATA AI{TD THE I]R.ã,I{KtrTN SETTLEMENT Wells Fargo is entitled to summary judgment because Pl-aintif f ' s claims have already been decided in the Frankl-in class actj-on, and, accordingly, are barred by the doctrine of res judicata. Plaintiff cannot relitigate them here. The Complaint must be dismj-ssed with prejudice. "IL is well-sett.led that under the doctrine of res judicata, 'â judgment pursuant to a class settlement can bar later claims based on the allegati-ons underlying t.he claims in the settled class action.'" GottheJ-f v. Toyota Motor Sales, U.S.A. / Inc., 525 F. App'x 94, 99 (3d Cir. 2Ol3) (quoting In re PrudentiaJ- Ins. Co. of An. Sal.es Practice Litigation, 261- F. 3d 355, 366 (3d Cir. 2001) ). Moreover, judicial approvals of settlement agreements are deemed final judgments on the merits, thereby having preclusive effect. Toscano v. Conn, Gen. Life Ins. Co. , 288 F. App'x 36, 38 (¡¿ Cir. 2008) . lrlhere the factual predicat.e for a future claj-m is the same as that underlying t.he 5 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 9 of 17 PageID: 244 settlement agreement, the future claim is barred. Freeman v IML Bay State Life Ins. Co,, 445 F. App'x 5'17, 579 (3d Cir. 201r-). In this case, res judicata applies to aI1 claims that Plaintiff raised in the Complaint. First, Lhe Honorable Michael M. Anel1o's Final Approval of Class Action Settlement, along with the Final ,.Tudgment, in Frankl-in constitutes a f inal adjudication on the merits, which has preclusive effect.. Lavery Cert. , Exs. 9, 70; see al-so Toscano , 228 F. App'x at 38 . As required, .Tudge Anel1o f ound the class sett.lement to be f air, adequate, and reasonable pursuant to Federal Rule of Civil Procedure Z3 (e) , and, after doing so, had an obligation to enter the sett.lement and its release as judgment.. Lavery Cert., Ex. 10 at l{F-Velez 777; Grimes v. VitaJ-ink Comm. Corp. , I7 F. 3d 1-553 , 1-557 (3d Cir. 1994) . Indeed, the release provisions of the settlement, which were incorporated in .Tudge Anello's Order, defined the preclusive effect of Èhe Cert., Ex. B at rilF-VeJ-ez BB¡ see al-so Final Judgment . Lavery Gotthel-f , 525 F. App'x at "that arÍsel-03 . Accordingly, Plaintif f out of or relate in any way telephone dialing system' voice,'" which includes any or an 'artificial or prerecorded claim Plaintiff could make pursuant to the TCPA. Lavery Cert., Ex. B at WF-VeJ-ez 88. has released all claims to the use of 'an automatic 6 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 10 of 17 PageID: 245 Indisputably, the Frankl-in settlement included Plaintiff as a party. .Tudge Anel1o approved the notice provisions of the proposed class settlement, Lavery Cert,, Exs. 70, 77, and Plaintiff cannot dispute that she received the settlement notification at some time in 201-5. Lavery Cert., Ex. 4 at 62:73-68:76. She did not opt out of the settlement,, and, therefore, is bound by the settlement's terms. See id; Conceicao v. Nat'l- Water Main Cleaning Co. , No. 1-4-51-46 (WJM) , 2OLS BL 205400, at *3 (D.N..1. ,-fune 26, 2015) , af f ,d, No. L5- 2743, 2016 BL l-66358 (¡¿ Cir. May 25, 2Ot6) . L Moreover, there can be no dispute that Plaintíff's claims are identical to the claims that were released in the sett.lement. Plaintiff's claim for violation of the TCPA is based on calIs she received from Wel1s Fargo using an autodialing system in order to collect on her consumer credit card account,. The sett,lement clearly covered the same causes of act,ion, and expressly settled the phone users receiving auto-diaIer, in order TCPA claims that were premised on cellular use of anca1ls from Wells Fargo, through to collect on consumer credit card accounts. Lavery Cert., 1 A copy of the Court's decision in Conceicao v. Nattl- Cleaning Co., No. l4-5L46 (W,TM) , 20L5 BL 2O54OO (D.N.J 2OI5) , af f 'd, No. ]-5-2743 , 20L6 BL l-66358 (3d Cir 20t6) , is appended to the Certification of Kellie Exhibit. L4. [ilater Main . .June 26, , May 25, Lavery as 7 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 11 of 17 PageID: 246 Ex. 8. The released class action claims and Plaintíff's claims are identical Plaintif f claims t.hat, she is not subj ect to the Frankf in settlement because she only seeks relief on telephone calls that started in November 2014, which is after the FrankLin class designation of November L, 2009 to September I7, 2014. This is a mischaracterization of the class definition. Classes are not made up of events, such as telephone calls; classes are made up of people. To be a member of the FrankJ-in class, âr individual needed to receive, through their ce1lu1ar phone, âD autodialed calL from We1ls Fargo seeking to collect on a consumer credit card account. Plaintiff received precisely these calls starting in August 2014. P1ain1y, Plaint,iff is a Erankl-in class member. This is emphasized by the fact that the Court released all related claims that pre-dated the Final Approval of Class Settlement on .Ianuary definition period had released claims. Yet, 26, 20L6. The duration of the class nothing to do with the duration of l_n of the class settlement, an effort to escape the binding effect Plaintiff tríes to cut out the cal1s she received in August 201-4, which fal1 squarely within the express terms of the class definition, and then argues she received all of her caI1s after the defined class period. Lavery Cert., Ex. 5 at WF-Vel-ez 65. Plaintiff is looking at the wrong dates it does not maLter if only a portion of Lhe ca1ls -8 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 12 of 17 PageID: 247 that Plaintiff recej-ved felI wíthin the designated class period because the operative date is t,he date of the Final Approval of Class Action Settlement, which in Frankl-in was .fanuary 26 , 201-6 . Plaintiff's claims are barred because all alleged calls took place before .fanuary 26, 2016. Conceicao, 20L5 BL 205400, at *4 (quoting Edmundson v. Borouqh of Kennett Square, 4 F.3d l-86, l-89 (¡¿ Cir. t993 ) ( " [R] es only of matters actually that parties action. "') ) ì (.tMA) , 20L4 WL 'prohJ-bits reexaminat,íon not a prior case, but also those j udicata decided in did not, asserL ín that Mae, Inc., No. 14-cv-760-CAB 6632812, at *L-2 (S.D. Cal. Nov. 2L, 2OL4).2 See al-so PrudentiaJ-, 26! F. 3d at 366 (" It is now settled that a might have, but Andrews v. Sal-f ie judgment pursuant. to a based on the allegations class action . we class settlement can bar later claims have endorsed underlying the claims in the settled serves the important. policy interest Ithis] rule because it of judicíaI economy by permitting parties to enter into comprehensive settlements that prevent relitigation of settled questions at the core of a class action. " ) . ' A copy of the Court's decision in Andrews v. Sal-lie Mae, Inc., No. l-4 -cv- 760 -CAB (JMA) , 20t4 WL 66328]-2 (S. O. Ca1 . Nov. 2t , 20L4) , is appended to the CertificaLion of Kel1íe Lavery as Exhibit ]-s. 9 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 13 of 17 PageID: 248 In Conceicao, the Court expressly rejected "Plaintiff['s] attempt IJ to bring claims also based on alleged violations occurrj-ng a year earlier than the dates defining the settlement classes, " and held that "the settlement agreement bars those claims as wel1." Conceicao, 201-5 BL 205400, at *4. Similarly, in Andrews, the Court held that TCPA claims based on calls made from April 201,3 were precluded by a class settlement, where the class definition covered ca11s made from October 27, 2005 through September L4, 2010, because the final class settlement released any and all TCPA claims "as of the date of the Fj-nal Approval Order" that arose out of related facts regardJ-ng calls made through use of an autodialer. Andrews, 20!4 WL 66328L2, at *r-2. Like in Conceicao and Andrews, the set.tlement in FrankJin makes it abundantly clear that, the Released C1aims include all claims that could have been brought before the ,Ianuary 26, 2016 f inal approval of t.he settlement: The Set.t.lement Class Members further agree that they wilL not, inst.itute any action or cause of action (in law, in equity or administratively), suits, debts, liens, or claj-ms, known or unknown, f ixed or contingent, which they may have or claim to have, in state or federal courL, in arbitration, or with any stat.e, f ederal or local government agency or with any administrative or advisory body, aris j-nq from or reasonably related to the Released Claims. 1_0 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 14 of 17 PageID: 249 "Released Claims" means any and whether known or unknown, unsuspected, asserted or foreseen or unforeseen, contingent, liquidated or all claims suspected or unasserted, actual or unliquidated, the date ofpunitive or compensatory the Final Approval Order, ,âsof Waiver of Unknown Claims. Without limiting the f orego j-ng, the Released Claims specifically extend to claims that Plaintiff and SettLement Class Members do not know or suspect to exist in their favor at the tíme thaL the Settlement and the releases contained therein become effective. lLavery Cert., Ex. (emphasis added) . l B at WF-Vel-ez 88 Clearly, the claims released in the Frankl-in settlement not only cont.emplated Plaint.if f ' s claims, but are identical . It is irrelevant that a portion of the calls she received took place after September L7 , 201-4. The Court's Final Approval of Class Action Sett,lement., and incorporated settlement agreement, expressly bring now. released t.he claims that, Plaintif f is attempting to Because the FrankJ-in settlement already decided these claims, they cannot be relitigated here. Therefore, under the doctrine of res j udicat,a, Plaintif f ' s claims in the Complaint are barred, and, accordingly, the Complaint must be dismissed with prejudice. 11 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 15 of 17 PageID: 250 POINT III PT.AINTIFF }IAMD HER Cr,ArMS AGATNST WELLS FARGO B.AIIK, N.A. BECAUSE SHE CONSENTED TO BE CAI.,LED ON HER CELLT'T,AR PHONE Even if the Frankfin class acti-on settlement never happened, waived her cannot maintain a TCPA claim based on any Plaintiff's claims are barred in part because she claims against Wells Fargo. Specifically, Plaintiff cal1s that she alleges Wel1s Fargo made before she expressly revoked her consent for Wells Fargo to call her cellular phone. Here, Plaintiff expressly consented to the use of auto- dialer and/or pre-recorded voj-ce messages by Wel1s Fargo. Lavery Cert., Ex. 2 at ttlï-VeLez 5, l-7. Specif icaI1y, under the Agreement, Plaintiff agree [d] t.hat. [We11s Fargo] may contact you using any contact information related to your Account. We may use any means to contact you. This may include automat,ed dialing devices, prerecorded/artificial voice messages, mail, e-maÍ1, text messages, and ca1ls to your cell phone. lLavery Cert., Ex, 171. 2 at l{F-Vel-ez 5, Moreover, Plaintiff reaffirmed her consent to call her on her ce1lu1ar phone on August 15, 201,4 , Lavery Cert. , Ex. 7 at WF- Vefez 44 It is recognized in the Third Circuit that a consumer, s contractuaL consent to be called stands unt.i1 she expressly revokes it. Gaqer v, Del-l- Fin. Servs., LLC, 727 F.3d 265, 274 t2 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 16 of 17 PageID: 251 (gA Cir. 20L3) . Here, there is no dispute that Plaintiff did not revoke her consent to be called on her cellular phone until December B, 20:.-4 . Lavery Cert. , Ex. 7 at WF-Vefez 44 . Accordingly, alt.hough Plaint,if f seeks relief f or ca1ls beginning in November 2014, calls made before and up to December B, 201"4 were consented to, and therefore any claim under the TCPA based on those caIls is waived. In sum/ even if Plaj-ntiff 's claims were not barred by res judicata, which they are, Plaintiff would not be entitled to any relief on calls made on or before December 8, 2014. Plaintiff contractually and expressly agreed to receive those cal1s, and therefore partial summary judgment is warranted for any portion of the Complaint pre-dating December 8, 2014. CONCLUSION Based upon the foregoíng case law and Iega1 analysis, We11s Fargo respectfully requests that this Court. grant its Motion for Summary ,Judgment, enter j udgment in it,s f avor on all of Plaintiff's claims, and dismiss the Complaint with prejudice. REED SMITH LLP Ke1lie A ave Dated: September 9, 201-6 l_3 Case 1:15-cv-03638-RBK-KMW Document 30-1 Filed 09/09/16 Page 17 of 17 PageID: 252 V UNITED STATES DISTRÏCT COT'RT DISTRICT OF NEïÍ .]ERSEY ÏVETTE VE,LEZ, Plaintiff, Civil Action No. l-:l-5-cv-3638 (RBK) (KMW) WELLS FARGO BANK, N.A DEE'ENDAIiTT Í{ELLS FARGO BAIiIK, N.A. ' S STATEMENT OF UNDISPUTED }4ATERIAT FACTS IN SUPPORT OF ITS MOTION FOR SUM!,ÍARY .IIJDGMENT Defendant Pursuant to Local Civil Rule 56.L, Defendant We1ls Fargo Bank, N .4. , by and respectfully submits through its attorneys, Reed Smith LLP, this Statement of Undisputed Material Facts in support of its Motion f or Summary .Tudgment.. REED SMITH LLP Kel1ie A. Dated: September 9, 201-6 Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 1 of 9 PageID: 253 STATEMENT OF UIIDISPUTED }ÍAEERIAT FACTS L. In December 201I, Plaintiff Ivette Velez ("Plaintíff' or "Velez") opened a credit. card account, accounL number ending with *5018 (the t Account,, ) with Def endant We1ls Fargo Bank, N.A. ( "Defendant" or "Wel1s Fargo" ) . Certification of Kel-fie A. Lavery ("Lavery Cert. " ) , Ex. l- . 2. In opening the Account, Plaintiff agreed to the terms contaj-ned in the Consumer Credit Card Customer Agreement 6¿ Dj-sclosure Statement (the "Agreement") Lavery Cert., Ex. 2. 3. The Agreement provides, in relevant part: (s) Contacting You. For us to service your Account or to collect any amounts you may owe, you agree that we may contact you using any contact information related to your Account,. We may use any means to confact you. ThÍs may include automated dialing devices, pr€recorded/artificial voice messages, mai1, e*mai1, text. messages, and cal1s to your ceII phone. You are responsible for any service provider charges as a result of us contacting you. You agree to promptly notify us if you change any contact information you provj-de to us. This includes your name, ñâiling address, e-mail addresses, or phone numbers. Tf you have a j oint Account, a not.ice to one of you will serve as a notice to both of you. lLavery Cert. , Ex. 2 at llï-VeJ-ez 5 , t_71 . 1 Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 2 of 9 PageID: 254 4. When Plaintiff opened the Account, she provided Wells Fargo with her cellular phone number, Lavery Cert., Ex. 3, PLs . ' Ans. to Interog. /Vo. 20 . 5. In 20L4, Plaintiff feIl behind on her payments on the Account. Lavery Cert., Ex. 4 at 43:B-44:76. 6. Dat.ing back to August 2014, Wel1s Fargo caIled Plaj-ntiff's cellular phone, to collect on the Account, using a dialer. Lavery Cert., Ex, 5 at WF-VeLez 65, Ex. 6 at 47:7-20. 7 . On August 15, 20L4, Plaintif f provided V'Ie11s Fargo with consent to call her on her cellular phone. Lavery Cert., Ex. 7 at tflF-Vefez 44. B. On December B, 2014, Plaintiff revoked her consent for We1ls Fargo to call her on her cel1u1ar phone. Lavery Cert., Ex. 7 at tfF-VeJ-ez 40. 9 . Between December B, 20t.4 and ,January 13, 20L5, ca1Is were made from a dj-aler to Plaintiff's cellular phone. Lavery Cert., Ex. 5 at WF-Vefez 065-069. 10 . On February 9 , 201-5, in t,he mat.ter of Frankl-in v. WeLJs Fargo Bank, N.A., No. 3: L4-cv-02349-MMA-BGS, the United States District Court for the Southern Dist.rict of CaLifornia certified a class for purposes of settlement. Lavery Cert., Ex. l-0 at WF-VeJez 104. -J- Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 3 of 9 PageID: 255 L]-. Plaintif f is a member of t,he Settlement Class in Frankl-in v. lleLl-s Fargo Bank, /V.,q. , No. 3 : 1-4-cv-02349-MMA-BGS. Lavery Cert., Exs. 8, 10. 12. The "C1ass" was defined as "411 ceII phone users or subscribers to wireless or ce1lular servÍce within the United States who used or subscribed to phone numbers to which We1ls Fargo placed any ca1ls from November 1-, 2009 to September 17, 20l-4 using any automated dialing technology or artificial or prerecorded voice technology in an effort Lo collect on a corrsumer credit card account." Lavery Cert., Ex. B at lilF-VeJez 77, SettLement Agreement S 2.08. 13. Wells Fargo placed caIls to Plaintiff's cel1 phone during this time perj-od (and specifically Ín August 20L4) using an automated día1er. Lavery Cert., Ex. 5 at tñF-VeLez 65, Ex. 6 at 47:7-20. 14. Plaint.iff is a member of the Class as defined by the Settlement Agreement. Lavery Cert., Ex. B at WF-VeJez 77, SettLement Agreement S 2.08. 15. On February 9, 2015, the Court in FrankJ-in approved the Class Notice provi-s j-ons, which included direct mailing, publication, and internet notice apparat,uses. Lavery Cert., Ex. 10 at WF-VeLez 702-1-03, Ex. 11 at 4-6. 16. Plaint.if f received notice of the FrankJ-in settlement by mai1. Lavery Cert., Ex, 4 at 62:73-68:76. -4- Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 4 of 9 PageID: 256 :.-7. The Franklín case had a dedicat.ed website regarding the lawsuit and settlement. http z / / www. f ranklinwellsfargotcpa . com/ LB. The Frequently Asked QuesLions sectj-on posed, "What Am I Giving Up If I Remain fn The Class?" The website provides: "Unless you éxclude yourself, you stay in the Class; which means that you cannot sue, contj-nue to sue, or be part of any other lawsuit against Wel1s Fargo about the legaI issues in Lhis case. If the settlement is approved and becomes final and not subject to appeal, then you and all Class Members release all "Released Claims" against all "Released Partj-es. " "Released Claj-ms" with respect to Plaintiff Class Members, means any and all claims, causes of action, suits, oblJ-gations, debts, demands, agreements, promi-ses, liabilities, damages, losses, controversies, costs, expenses/ and attorneys'fees of any nature whatsoever, whether based on any federal 1aw, state 1aw, common Iaw, territorial 1aw, f oreign 1aw, cont,ract, ruIe, regulatj-on, any regulatory promulgation (including, but not limited to, any opinion or declaratory ruling), common law or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidat,ed or unliquidated, punitive or compensatory, as of the dat.e of t,he Final Approval Order, t.hat, arise out of or relate in any way to t,he Released Parties, use -5- Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 5 of 9 PageID: 257 of an t'automatic telephone dialing system" or an "artificial or prerecorded voicert to contact, or attempt to contact Settlement C1ass Members in connect,ion with a Consumer Credit Card Account, including the account holders fullest extent claims of Wells Fargo account holders and non- who are members of the Settlement C1ass, to Èhe by the Telephone Consumer terms are used defined or interpreted Protect,ion AcL, 47 U.S.C. S 227, et or admj-nistrative promulgations andseq., relevant regulatory case law, including, but not limited to, c1aíms under or for a violation of the Telephone Consumer Protection Act, 47 U.S.C. S that those and any other statutory or common 1aw claim the use of automat ic t.elephone dialing systems 227, et ari-s j-ng and/or seq from an artificial or prerecorded voice to call cellular telephones, or pagers. "Released Part,ies" means We1ls Fargo, and each of its respective past, present and future parents, subsidiaries, affiliated companies and corporat.ions, and each of their respective past, present, and future directors, officers, managers, employees, general partners, lj-mited partners, principals, agents, insurers, reinsurers, shareholders, attorneys, advisors, representatives, predecessors, successors, divj-sions, joint ventures, assigns, or related entities, and each of their respective executors, successors, assigns, and legal representatives . " ht.tp : / /www. f ranklinwellsf argotcpa .com/ faq,/ -6- Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 6 of 9 PageID: 258 l-9 . To exclude herself f rom t.he FrankJ-in settlement, Plaintiff was requíred to send a signed letter by mail stating that she wanted'tto opt out of the Wel1s Fargo Litigation.'/ The exclusion request had to be postmarked no later than ,June A9, 2015 . Lavery Cert. , Ex. I at llF-Vef ez 71 , 73 , 81; http z / /www. franklinwellsfargotcpa. com/ faq,/ 20. Plaintiff did not exclude herself or opt out of the Frankl-in settlement. Lavery Cert., Ex. 4 at 62:73-68:76. 21. Plaintiff did not submj-t any objection to the FrankJ-in settlement. Lavery Cert. , Ex. 4 at 62: l-3-68:16. 22. On May 5, 2015, Plaintiff filed the ComplaÍnt (the "Complaint) in the United States District Court for the District of New Jersey . DE l-. 23. In the Complaint, Plaintiff alleged violated t.he Telephone Consumer Protection Act calls to Wells Fargo ("TCPA") by Plai-ntif f ' sinitiating multiple automat,ed telephone celIular phone. DE L. 24. On Ju1y 6, 2015, Def endant affirmat.ive defenses to the Complaint (tfre filed its Answer and "Answer" ) DE 4. DistrÍct, Court final approval 25. On .Ianuary 26, 2016, the United States for the Southern District of California entered of the FrankJ-in class settlement. Lavery Cert., Exs. 9, L0. 26. Per the settlement agreement, all class members who did noL opt out agreed to release: -7 - Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 7 of 9 PageID: 259 IAJ ny and all claims, causes of acLion, suj-ts, obligatíons, debts, demands, agreements, promises, 1íabilities, damages, losses, corrtroversies, costs, expenses, and attorneys' fees of any nature whatsoever, whether based on any federal law, state 1aw, common law, terrít.orial 1aw, f oreign Iaw, contract, rule, regulation, any regulatory promulgation (including, but not limited to, any opinion declaratory ruling), common 1aw or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquÍdated or unliquidated, punitive or compensatory, as of the date of the Final Approval Order, that arise out of or relate in any way to the Released Parties' use of "an automat j-c telephone dialing system" or an "artificial or prerecorded voice" to contacted or to attempted to Settlement Class Members in connection with a Consumer Credit Card Ä,ccount, including the claims of Wel1s Fargo account holders and non-account holders who are members of the Settlement Class, to the fullest extent that Èhose terms are used, defined or interpreted by the ITCPA] and any other statutory or common law claim arising f rom t,he use of automatic telephone dialing systems and/or an artificial or prerecorded voice to call cellular telephones, or pagers. lLavery Cert., Ex. (emphasis added) . l 27. Here, all of the Complaint occurred prior to Approval Order. Accordingly, were already released. 28. On March 25, 20L6, letter to Plaintiff's counsel B at VIF-Vel-ez 88 caIls at issue in Plaintiff's the date of entry of the Final all claims related to t,hese ca1Is counsel for Wells Fargo sent. a informing her that Plalnt,iff is a -8- Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 8 of 9 PageID: 260 member of the FrankJin settlement cIass, that all her claims took place before entry of the Final Approval Order in ErankJin, and, Lherefore all of Plaintiff's claims were released. Lavery Cert., Ex. 12. 29. On April !, 2016, Plaintiff's counsel sent a letter to counsel for We1ls Fargo asserting that Plaintíff is not a class member because the Complaint only speaks of cal1s beginning in November 20L4. Lavery Cert., Ex. 13. 30. On May 5, 2016 t a settlement conference was held bef ore United States Magj-strate ,fudge Karen M. Williams at which the parties were unable to resolve this matter . DE 23. -9- Case 1:15-cv-03638-RBK-KMW Document 30-2 Filed 09/09/16 Page 9 of 9 PageID: 261