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Weed, v. Suntrust Bank

United States District Court, N.D. Georgia, Atlanta Division

May 3, 2018

TIMOTHY P. WEED, Plaintiff,
v.
SUNTRUST BANK, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant SunTrust Bank's (“Defendant” or “SunTrust”) Motion to Dismiss [11].

         I. BACKGROUND

         Plaintiff Timothy P. Weed (“Weed”) alleges that in early 2017, Defendant began calling his cellular telephone using an “automated telephone dialing system.” (First Amended Complaint “Compl.” [9] ¶ 5). When he answered the calls, Weed would sometimes hear prerecorded messages instructing him to “wait for an important message from SunTrust.” Id. ¶ 6. At other times, he would hear a “clicking noise” before being connected to a representative. Id. ¶ 7. Weed alleges the clicking noise and the use of a prerecorded message are indicative of SunTrust's use of a predictive dialer.

         Weed alleges that in or around February 2017, he spoke with a live SunTrust representative and asked SunTrust to cease calling his cellular phone number. SunTrust continued to place automated calls to Weed's cell phone.

         On July 6, 2015, before the calls at issue in this case began, Weed entered into a Retail Installment Sale Contract (the “Sale Contract”) to purchase a car with financing from a third party lender. The Sale Contract was later assigned to SunTrust. ([11.2]).[1] The Sale Contract provides:

Servicing and Collection Contacts
You agree that we may try to contact you in writing, by e-mail, or using prerecorded/artificial voice messages, text messages, and automatic telephone dialing systems, as the law allows[.] You also agree that we may try and contact you in these and other ways at any address or telephone number you provide, even if the telephone number is a cell phone number or the contact results in a charge to you.

([11.2] at 2). The only contact information listed in the Sale Contract is Weed's name and address. It does not list Weed's cell phone number.

         On December 20, 2017, Weed filed his Amended Complaint, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

         On January 12, 2018, SunTrust filed its Motion to Dismiss [11]. SunTrust argues the Amended Complaint fails to allege sufficient facts to support a violation of the TCPA, and, even if it does, Weed irrevocably consented to receiving phone calls from SunTrust in the Sale Contract.

         II. DISCUSSION

         A. Legal Standard

         On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “assume that the factual allegations in the complaint are true and give the plaintiff[] the benefit of reasonable factual inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable inferences are made in the plaintiff's favor, “‘unwarranted deductions of fact' are not admitted as true.” Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the Court is not required to accept conclusory allegations and legal ...


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