United States District Court, D. Maryland
THEODORE D. CHUANG, UNITED STATE DISTRICT JUDGE.
Billy Ginwright has brought suit against Defendant Exeter
Finance Corporation (“Exeter”) alleging
violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227 (2012), and the
Maryland Telephone Consumer Protection Act
(“MTCPA”), Md. Code Ann., Com. Law §§
14-3201 to 3202 (2013). Ginwright alleges that Exeter
violated these laws by calling his cellular telephone
repeatedly without his consent between June 2013 and July
2015. Pending before the Court are Exeter's Motion for
Summary Judgment and Ginwright's Motion for Class
Certification. For the reasons set forth below, both Motions
is an automobile finance company that purchases consumer
contracts known as “consumer automobile retail
installment contracts” from car dealerships. These
contracts are typically purchased shortly after a purchaser
agrees to buy a vehicle on credit. Once Exeter acquires a
contract, it provides financing to the purchaser and becomes
responsible for servicing the loan through activities such as
processing payments, notifying borrowers of delinquency, and
repossessing the vehicle in the event of non-payment.
Exeter acquires contracts from multiple dealerships, it does
not maintain a standard form document for each customer. Once
Exeter decides to purchase a contract, it stores an
electronic copy of whatever credit application and retail
installment contract forms were signed by the customer at the
dealership. The particular terms of Exeter's agreements
with its customers, such as enforceable arbitration
agreements, class action waivers, and consent to telephone
contact, therefore vary from customer to customer depending
on the dealership at which the loan originated.
providing financing, Exeter conducts a “confirmation
call” with a prospective customer using the telephone
number the customer provided on the credit application
completed at the dealership. During the confirmation call,
Exeter verifies the information in the credit application,
including the phone number provided, and asks for consent to
call that number. If Exeter decides to purchase the
customer's contract, the next contact with the customer
occurs during a “welcome call” placed by Exeter.
During this call, an Exeter representative confirms the
customer's account and contact information. Subsequent
calls from Exeter to a customer occur on an as-needed basis.
For example, an Exeter representative may call customers with
delinquent accounts to ask them to make payments on their
conducts and manages telephone calls to its customers through
a system known as Aspect that automatically dials calls.
Aspect replaced an earlier system, Five9, in September 2012.
Aspect maintains a record of when a particular customer was
called, at what number, and a brief description of the
disposition of that call. For example, Aspect records whether
Exeter left a message on a customer's answering machine
or if a customer promised to make a payment on the loan.
Exeter maintains audio recordings of many, but not all, of
its calls with customers. Certain customer calls may have
been made through other call management systems, the records
of which are not necessarily maintained by Exeter.
overall loan servicing records are maintained in a system
known as Shaw. The Shaw System includes contemporaneous notes
of phone conversations made by Exeter representatives during
phone calls with customers, including notations on whether a
customer has consented to telephone contact from Exeter.
Calls to Ginwright
23, 2013, Ginwright purchased a vehicle from Baltimore
Washington Auto Outlet (“BW Auto Outlet”) of
Hanover, Maryland and sought a loan to pay for it. Ginwright
signed two documents relating to financing. On the first
document, a credit application (“the Credit
Application”) issued by a company called DealerTrack,
Ginwright listed his cell phone number in the box for his
home phone number and agreed to the following statement:
You expressly consent to us using prerecorded/artificial
voice messages, text messages, and/or automatic dialing
equipment while servicing or collecting your account, as the
law allows . . . you agree that we may take these actions
using the telephone number(s) that you provide us in this
credit application, you provide to us in the future, or we
get from another source, even if the number is for a mobile
or cellular telephone and/or our using the number results in
charges to you.
Record for Motion for Summary Judgment Briefing (“MSJ
JR”) 364. The Credit Application authorized the
dealership to solicit financial institutions to extend credit
to Ginwright for the purchase of the vehicle. Exeter was not
specifically referenced anywhere on the Credit Application.
same day, Ginwright also signed a Retail Installment Sale
Contract (“RISC”) with BW Auto Outlet, which
established the conditions for purchasing the vehicle on
credit and the terms for repayment of the loan. The RISC
included an integration clause that stated:
This contract, along with all other documents signed by you
in connection with the purchase of this vehicle, comprise the
entire agreement between you and us affecting this purchase.
No oral agreements or understandings are binding. Upon
assignment of this contract: (i) only this contract and the
addenda to this contract comprise the entire agreement
between you and the assignee relating to the contract; (ii)
any change to this contract must be in writing and the
assignee must sign it; and (iii) no oral changes are binding.
MSJ JR 371. The RISC was assigned to Exeter, which issued a
loan to Ginwright.
began making calls to Ginwright's cell phone. Having some
familiarity with the process of purchasing a car on credit,
Ginwright expected to receive calls from a third-party
financing company such as Exeter after he purchased the
vehicle. These calls began as messages designed to introduce
Ginwright to his account with Exeter but eventually
transitioned into calls regarding overdue payments on his
loan. Exeter made over 1, 800 calls to Ginwright between June
11, 2013 and July 30, 2015, up to as many as 12 times per
day. All of these calls were placed through Aspect. Ginwright
also made an unspecified number of calls to Exeter throughout
at least some of these calls, Ginwright confirmed his cell
phone number with Exeter and stated that it was the primary
way to contact him. For example, on June 17, 2015, an Exeter
representative asked Ginwright to “confirm that [by]
providing Exeter Finance with your cell phone number you are
giving consent to use this number as a way of contacting you,
” to which Ginwright responded “yes.” MSJ
JR 426. Ginwright confirmed his cell phone number with Exeter
during calls on February 12, 2014, March 1, 2014, July 10,
2014, and April 29, 2015, describing it as his primary or
only contact number.
also expressed frustration with Exeter's calls. During a
conversation with an Exeter representative on December 5,
2013, Ginwright asked why he was still receiving multiple
calls a day despite scheduling an online payment for his
debt. The representative told Ginwright that the calls could
not be stopped until the end of a 14-day cycle during which
the calls would be automatically made. Exeter called
Ginwright again the next day, at which point Ginwright stated
“I don't know why y'all keep calling me.”
MSJ JR 441. According to Ginwright, in various calls, he
explicitly asked Exeter to “stop calling my
phone” up to five different times. MSJ JR 67.
Exeter's internal Shaw System records reflect that
Ginwright's consent to receive calls was not granted ...