Ariz. Judge Denies loanDepot’s Motion to Dismiss TCPA Class Action
U.S. District Judge Susan Brnovich for Arizona in Phoenix denied loanDepot’s motion to dismiss plaintiff Lee Abrahamian’s first amended Telephone Consumer Protection Act class action for failure to state a claim (see 2308080041), said her signed order Wednesday (docket 2:23-cv-00728).…
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She also denied loanDepot’s motion to strike Abrahamian’s class allegations, said her order. The plaintiff seeks damages for the “illegal and unlawful” text messages and calls that loanDepot made to his cellphone number, saying the number has been listed on the national do not call registry since October 2007. But loanDepot argued the complaint "must be dismissed" because Abrahamian failed to allege he “personally listed his number” on the national DNC registry. The TCPA’s regulations require that DNC registrations “must be honored indefinitely,” or until the consumer cancels the registration or the database administrator removes the telephone number, said the judge’s order. The court reads this language to mean that as phone numbers change hands, the DNC registry may not always reflect which consumers requested to be included, it said. The court therefore finds that the language includes the term “indefinitely” to remove the “ambiguity” of which numbers should be protected, it said. At this stage of the case, the court “is permitted to draw reasonable inferences,” and look to the allegations in the light most favorable to the plaintiff, said the order. Regardless of any “textual analysis,” it remains a “reasonable inference” under these facts that Abrahamian registered his phone number with the DNC registry, it said. On loanDepot’s next assertion that Abrahamian can’t establish that the calls at issue qualify as telephone solicitations, the court agrees with him that the calls and the text he received were solicitations, it said. The plaintiff has adequately pleaded that he didn’t provide his phone number to loanDepot or make any sort of business inquiry with the company, the order said. Though the court recognizes that the first call Abrahamian received, without more, “would be insufficient to save this claim, it was immediately followed by a text message” soliciting his business, it said. The defendant then called Abrahamian a second time, it said: “This suggests a common purpose to the calls, especially when taken in conjunction with the text message.”