Barnett v. Bank of Am., N.A.

Opinion

ORDER

THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment, (Doc. No. 27), Plaintiff's Amended Response in Opposition, (Docs. Nos. 34, 36), and Defendant's Reply. (Doc. No. 37). The motion is now ripe for adjudication.

I. BACKGROUND

Plaintiff David Barnett ("Barnett") filed this action against Defendant Bank of America, N.A. (BOA) after BOA called Barnett's cell phone several hundred times over a short period of time in an effort to collect a debt.

In the light most favorable to the non-moving party, Barnett had applied for and received a BOA credit card on July 15, 2013. (Doc. No. 27-3 at 4-5). Barnett provided BOA his cell phone number in this application. (Id.; Doc. No. 27-4 at 6). Later, Barnett orally granted BOA permission to call his call phone with auto-dialers and pre-recorded messages during a January 20, 2015 phone call with a BOA representative. (Doc. No. 27-3 at 23).

Barnett eventually fell behind [*2]  on payments due on his account. (Doc. No. 27-4 at 6-7). On May 8, 2019, Barnett received a call from BOA regarding the debt. (Doc. No. 27-3 at 25-26). Barnett explained that he did not currently have the money and that he had recent knee surgery, but said "I'll call you as soon as I can pay you." (Doc. No. 27-3 at 25). The BOA representative stated that "the calls are continuing because we haven't come to a resolution" and asked whether anyone has discussed an assistance program with him, to which Plaintiff replied "[n]o Ma'am. But I just call you. I can't do nothing right now anyway. Okay? . . . But when I can, I'll give you a call, okay?" (Id.). The BOA representative replied: "Okay well the calls are going to continue and we can give you some assistance," to which Barnett responded, "Okay. Just keep. Okay. That's fine. All right. Thank you." (Doc. No. 27-3 at 26).

On May 18, 2019, Barnett received another call from BOA. In that call, Barnett told BOA to "put it in the mail for me. Send it to me. When I get it, I'll see what I can do." (Doc. No. 27-3 at 28). At the end of the call he reiterated, "[l]ike I said. Send it to me in the mail." (Id.). The call did not explicitly discuss [*3]  contact by phone. (Id.). On May 25, 2019, BOA called again regarding the same issue. During the call Barnett said that he did not currently have the money, that he had recently undergone knee surgery, and "just send it to me in the mail . . . ." (Doc. No. 27-3 at 30). The call did not explicitly discuss his being contacted by phone.

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