CHICAGO (CN) – A Chicago federal court threw out a claim that Wells Fargo Auto Finance and its agents violated Telephone Consumer Protection Act (TCPA) by using automatic dialer programs to hound plaintiffs behind in their car payments.
In 2006, plaintiff Dolores Hart purchased a car for her granddaughter under a retail installment contract with Wells Fargo. According to the order, “Wells Fargo call center agents contacted plaintiffs in an attempt to recover the overdue payments” and hired other defendants “to collect the debt and repossess the car.”
The parties stipulated that “Wells Fargo uses a predictive dialer called the ‘Conversations System’ to communicate with customers” and that “[a] predictive dialer is a type of automatic telephone dialing system that uses generated, stored, or otherwise entered phone numbers to automatically make outgoing telephone calls.” The system then forwards “successfully completed” calls to agents.
The plaintiffs claim that, by using this system to call their cell phones, Wells Fargo violated the TCPA, which prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) [by] using any automatic telephone dialing system.”
Wells Fargo responded by saying the calls to the plaintiffs’ cell phones were all manually dialed.
The plaintiffs’ expert noted that the desk phones used to call the plaintiffs are part of the “predictive dialer system.” However, the plaintiffs conceded that “Wells Fargo’s agents’ desk phones can also be used independently of its predictive dialing technology – that is, while a call center agent is not logged into the universal server.”
Wells Fargo argued that this was the case here, based on various computer records showing that none of the plaintiffs’ cell phone numbers were auto-dialed.
Plaintiffs asserted that these records constituted inadmissible hearsay, even if they proved what Wells Fargo said they proved, because the “computer printouts were prepared for this litigation.”
However, U.S. District Judge Matthew F. Kennelly chose to admit the records “under the ‘business records’ exception to the hearsay rule.” Under evidentiary law a printout is admissible, even if not kept in the ordinary course of business, so long as the underlying data was so kept.
In light of these records, the court granted summary judgment in favor of Wells Fargo, reasoning that “no jury reasonably could find… that Wells Fargo employees called plaintiffs’ cell phones using equipment which has the capacity to autodial.”
Plaintiffs’ other claims, based on laws including the Illinois Consumer Fraud Act and the Illinois Collection Agency Act, were not affected by the ruling.