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Ginwright v. Exeter Finance Corp.

United States District Court, D. Maryland

November 28, 2017




         Plaintiff 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 are denied.


         I. Exeter

         Exeter 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.

         Since 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.

         Before 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 loans.

         Exeter 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.

         Exeter's 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.

         II. Calls to Ginwright

         On May 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.

         Joint 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.

         The 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.

         Exeter 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 this period.

         During 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.

         Ginwright 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 ...

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