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Adam Jachimiec v. Regent Asset Management Solutions

May 26, 2011

ADAM JACHIMIEC,
PLAINTIFF,
v.
REGENT ASSET MANAGEMENT SOLUTIONS, N.A., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiff moves for summary judgment against Defendant Regent Asset Management Solutions, N.A. ("Regent"). For the reasons that follow, this motion is GRANTED in part and DENIED in part.

Regent has failed to file an opposition to this motion. Additionally, Regent has not responded to Plaintiff's Request for Admissions that were served on March 16, 2010. (Pl. Ex. D) Pursuant to Fed. R. Civ. P. 36(a)(3), Regent's failure to respond results in the automatic admission of the matters requested. See Doctors Med. Ctr. of Modesto, Inc. v. Principal Life Ins. Co., No. 1:10-cv-00452-LJO-SKO, 2011 U.S. Dist. LEXIS 26885, at *4-5 (E.D. Cal. Mar. 2, 2011).

I. BACKGROUND

Prior to being deployed to Iraq as a member of the United States Marine Corp, Plaintiff withdrew most of his money from a checking account with U.S. Bank. (Compl. ¶ 19) Plaintiff alleges that during his deployment, U.S. Bank mailed a letter to the wrong address that was returned as undeliverable. (Compl. ¶ 20) Plaintiff asserts that he was charged a $5.00 "returned statement fee," which caused his account to go into overdraft status. (Compl. ¶ 22) U.S. Bank then began to charge "continuous overdraft fees," which eventually totaled over $800. (Compl. ¶ 24)

Plaintiff alleges that on June 26, 2009, July 13, 2009, July 31, 2009, and August 7, 2009, Regent, as debt collector for U.S. Bank, contacted Plaintiff's cellular telephone with automated messages demanding payment of this alleged debt. See Pl. Ex. E. On or about August 13, 2009, Plaintiff's counsel sent Regent a letter advising Regent that Plaintiff wished Regent to cease further communication with Plaintiff and requesting that all communications regarding any consumer debt be addressed to counsel. (Pl. Ex. B) Plaintiff alleges that Regent ignored this letter and provides telephone records that indicate that Regent made four additional calls to Plaintiff after August 13, 2009. See Pl. Ex. E.

II. DISCUSSION

A. TCPA

The Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, makes it unlawful for: any person within the United States, or any person outside the United States if the recipient is within the United States-

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice -- . . .

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]

Debt collectors who make auto-dialed or prerecorded calls to a wireless number are subject to this prohibition. See Robinson v. Midland Funding, LLC, No. 10cv2261 MMA(AJ), U.S. Dist. LEXIS 40107, at *13-14 (S.D. Cal. Apr. 13, 2011).

Plaintiff alleges that Regent telephoned him on his cellular telephone eight times using an automated dialer and/or an artificial or prerecorded voice, all in violation of the TCPA. These allegations are undisputed. Plaintiff is entitled ...


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