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Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 1 of 27 PageID pageID IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXASDALLAS DIVISIONMARSHA CHAMBERS and JERRYCHAMBERS,Plaintiffs,V.GREEN TREE SERVICING LLC,Defendant.§§§§§§§§§§No. 3:15-cv-1879-M-BNFINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THEUNITED STATES MAGISTRATE JUDGEThis case has been referred to the United States magistrate judge for pretrialmanagement pursuant to 28 U.S.C. § 636(b) and a standing order of reference fromChief Judge Barbara M. G. Lynn.Defendant Ditech Financial, LLC f/k/a Green Tree Servicing, LLC has filed aMotion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim uponwhich relief can be granted. See Dkt. No. 78 (the “MTD”). Plaintiffs Marsha Chambersand Jerry Chambers, representing themselves pro se, have filed a response, see Dkt.No. 84, and Defendant filed a reply, see Dkt. No. 88.The undersigned now issues the following findings of fact, conclusions of law,and recommendation.BackgroundOn September 2, 2008, Patricia Verm executed a Texas Home Equity RealEstate Note (the “Note”) to Green Tree Financial Servicing Corporation. See Dkt. No.-1-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 2 of 27 PageID pageID 79-1 at 2-3. The Note was secured by a Texas Home Equity Deed of Trust (the “Deedof Trust”) pledging Verm’s interest in property located in Kaufman, Texas (the“Property”). See id. at 4-10.Defendant and its predecessors have been known by several names. On October1, 1999, Green Tree Financial Servicing Corporation changed its name to ConsecoFinance Servicing Corp. See Dkt. No. 79-2 at 2-3. On June 9, 2003, Green TreeServicing LLC was formed, and Conseco Finance Servicing Corp. changed its name toGreen Tree Servicing LLC. See Dkt. No. 79-2 at 4-7. On August 14, 2015, Green TreeServicing LLC merged with various Ditech entities and changed their name to DitechFinancial LLC. See Dkt. No. 79-2 at 8-10.In their Second Amended Petition [Dkt. No. 58], Plaintiffs allege that MarshaChambers and Conseco entered a written loan assumption agreement in midSeptember 2002 under which Conseco agreed to allow Marsha Chambers to assumePatricia Verm’s mortgage loan. Marsha Chambers asserts that a Consecorepresentative prepared the written loan assumption agreement and instructed her tosign it.Plaintiffs further allege that, at that same meeting, but after the written loanassumption agreement was signed, Marsha Chambers and Conseco entered a separate,oral agreement. The oral agreement required Marsha Chambers to pay a set amountof money to purchase the right to assume the mortgage loan and for Conseco’s servicesto prepare the necessary loan assumption paperwork at its office. The oral agreement-2-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 3 of 27 PageID pageID also required Marsha Chambers to make six months’ worth of payments on PatriciaVerm’s mortgage loan before Conseco would allow Marsha Chambers to assume theloan. And the oral agreement required Marsha Chambers to prepare, and MarshaChambers and Patricia Verm to sign, additional contractual documents to prove thatMarsha Chambers was purchasing the Property from Patricia Verm and that PatriciaVerm wanted Marsha Chambers to assume the mortgage loan.On September 30, 2002, Marsha Chambers executed a Real Estate PromissoryNote, which identified Patricia Verm as the lender but directed Marsha Chambers totender payments to a payment address for Conseco Financial Services Corp, andPatricia Verm executed a General Warranty Deed granting, selling, and conveying herinterest in the Property to Marsha Chambers. See id. at 2-4. These documents wereprovided to Green Tree in October 2002. Plaintiffs allege that Marsha Chambers wouldnot have prepared the Promissory Note and/or General Warranty Deed or executed thePromissory Note but for the instructions from the Conseco representative and theterms of the oral agreement. Marsha Chambers also alleges that she made all of thepayments required by the oral agreement.Plaintiffs allege that Conseco and Green Tree continually treated MarshaChambers as if she had been allowed to assume Patricia Verm’s mortgage loan in 2002.For example, Green Tree accepted Marsha Chambers’ insurance policy on the Propertyeven though the policy did not include or mention Patricia Verm. Green Tree alsoissued checks for roof replacement directly to Plaintiffs, and Green Tree informedMarsha Chambers that she must reimburse Green Tree for any tax or insurance-3-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 4 of 27 PageID pageID expenses that it incurred concerning the Property. Conseco continued to requestmortgage loan payments from Marsha Chambers between March 2003 and December2004. In 2006, when Kaufman County sued Marsha Chambers for past due propertytaxes on the Property, Green Tree paid the taxes. Green Tree also provided MarshaChambers with a payment history on the mortgage loan from 1998 through 2005.Marsha Chambers also alleges that, between 2002 and 2013, some of the Conseco andGreen Tree agents told her that she was legally responsible for the mortgagepayments, and others told her that she was not legally responsible for the mortgagepayments.Plaintiffs allege that, on January 29, 2005, a Green Tree agent told MarshaChambers that she had no legal right to the Property and threatened to seek criminalcharges to have her removed from the Property. On July 23, 2005, a Green Tree agenttold Marsha Chambers that she was being served with a foreclosure notice on theProperty because Green Tree planned to add her name to the pending foreclosureaction against Patricia Verm. Plaintiffs further allege that, based on thoserepresentations, Marsha Chambers was planning to vacate the property in 2005because “I believed that Greentree had possibly given me two different justifiablereasons to believe that my name was never added to the mortgage loan.” But,sometime in 2005, a Conseco representative told her that the mortgage loan was beingreinstated in her name. Plaintiffs further alleged that, sometime between 2007 and2009, a Green Tree agent told Marsha Chambers that her name was never added tothe mortgage loan and threatened to sue her for fraud because any property that is-4-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 5 of 27 PageID pageID subject to a mortgage cannot be sold. See Dkt. No. 58 at 59-65.Plaintiffs further allege that, in 2013, for the first time, Green Tree providedPlaintiffs with written notice that Marsha Chambers had never been allowed toassume Patricia Verm’s mortgage loan. See Dkt. No. 58 at 5. When Marsha Chambersinquired about an early payoff of the Note, a Green Tree agent informed her on March8, 2013 that “no short payoff offer by any person that is not on the mortgage loan caneven be considered by the mortgage company.” Id. at 57. And Plaintiffs allege that, inMay of 2013, Green Tree provided Marsha Chambers with written notice that the loanassumption agreement signed by Marsha Chambers in 2002 had been lost orintentionally destroyed or that Conseco had actually made the decision in midSeptember 2002 to not allow Marsha Chambers to assume Patricia Verm’s mortgageloan. See id.Plaintiffs filed their Second Amended Complaint on June 17, 2016. Plaintiffsassert claims for violations of the Texas Deceptive Trade Practices Act, Texas Businessand Commerce Code, Texas Finance Code, intentional infliction of emotional distress,unjust enrichment, and common law fraud. See Dkt. No. 58.Defendant filed a motion to dismiss or, in the alternative, for a more definitestatement on July 1, 2015. See Dkt. No. 78. Defendant contends that “Plaintiffs do not,cannot, and will never be able to allege sufficient fact to state any cognizable claim forrelief against Ditech.” According to Defendant, “Plaintiffs’ entire lawsuit is based onan alleged loan assumption agreement that Marsha Chambers entered into with-5-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 6 of 27 PageID pageID [Conseco] in 2002.” Id. at 5. Discovery has been completed, and “[n]o party has beenable to locate documentation establishing Marsha Chambers’ allegation that she‘assumed’ Patricia Verm’s loan obligations” from Conseco. Id. at 5-6.Plaintiffs filed a response, see Dkt. No. 84, and Defendant filed a reply, see Dkt.No. 88.The undersigned now concludes that the MTD should be granted in part anddenied in part.Legal StandardsIn deciding a Federal Rule of Civil Procedure 12(b)(6) motion, the Court must“accept all well-pleaded facts as true, viewing them in the light most favorable to theplaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). Tostate a claim upon which relief may be granted, Plaintiffs must plead “enough facts tostate a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise aright to relief above the speculative level.” Id. at 555. “A claim has facial plausibilitywhen the plaintiff pleads factual content that allows the court to draw the reasonableinference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probabilityrequirement,’ but it asks for more than a sheer possibility that a defendant has actedunlawfully.” Id. “A claim for relief is implausible on its face when ‘the well-pleadedfacts do not permit the court to infer more than the mere possibility of misconduct.’”-6-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 7 of 27 PageID pageID Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quotingIqbal, 556 U.S. at 679).While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need notcontain detailed factual allegations, Plaintiffs must allege more than labels andconclusions, and, while a court must accept all of the Plaintiffs’ allegations as true, itis “not bound to accept as true a legal conclusion couched as a factual allegation.”Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaicrecitation of the elements of a cause of action, supported by mere conclusorystatements, will not suffice. See id. But, “to survive a motion to dismiss” underTwombly and Iqbal, a plaintiff need only “plead facts sufficient to show” that theclaims asserted have “substantive plausibility” by stating “simply, concisely, anddirectly events” that Plaintiff contends entitle him or her to relief. Johnson v. City ofShelby, Miss., 574 U.S. , 135 S. Ct. 346, 347 (2014) (per curiam) (citing FED. R. CIV.P. 8(a)(2)-(3), (d)(1), (e)). The United States “Supreme Court has made clear that a Rule12(b)(6) motion turns on the sufficiency of the ‘factual allegations’ in the complaint.”Smith v. Bank of Am., N.A., 615 F. App’x 830, 833 (5th Cir. 2015) (quoting Johnson,135 S. Ct. at 347, and the Federal Rules of Civil Procedure “do not countenancedismissal of a complaint for imperfect statement of the legal theory supporting theclaim asserted,” Johnson, 135 S. Ct. at 346. That rationale has even more force in thiscase, as the Court “must construe the pleadings of pro se litigants liberally.” Andradev. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006).-7-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 8 of 27 PageID pageID A court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion.Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Pleadings in the Rule 12(b)(6)context include attachments to the complaint. In re Katrina Canal Breaches Litig., 495F.3d 191, 205 (5th Cir. 2007). Documents “attache[d] to a motion to dismiss areconsidered to be part of the pleadings, if they are referred to in the plaintiff’s complaintand are central to her claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987F.2d 429, 431 (7th Cir. 1993)). “Although the Fifth Circuit has not articulated a testfor determining when a document is central to a plaintiff’s claims, the case lawsuggests that documents are central when they are necessary to establish an elementof one of the plaintiff's claims. Thus, when a plaintiff's claim is based on the terms ofa contract, the documents constituting the contract are central to the plaintiff’s claim.”Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011). “However,if a document referenced in the plaintiff’s complaint is merely evidence of an elementof the plaintiff's claim, then the court may not incorporate it into the complaint.” Id.In addition, “it is clearly proper in deciding a 12(b)(6) motion to take judicialnotice of matters of public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5thCir. 2007); accord Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2008)(directing courts to “consider the complaint in its entirety, as well as other sourcescourts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, inparticular, documents incorporated into the complaint by reference, and matters of-8-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 9 of 27 PageID pageID which a court may take judicial notice”).AnalysisI.All claims asserted by Jerry Chambers should be dismissed.In their Second Amended Complaint, Plaintiffs do not allege any relevant factsconcerning Jerry Chambers. Instead, Plaintiffs plead that all of their claims arise froman oral agreement between Marsha Chambers and Defendant’s predecessor, Conseco.And, as pleaded, any relief sought by Jerry Chambers would be incidental to thatsought by Marsha Chambers. Accordingly, to the extent that Plaintiffs’ claims seek toassert a claim on behalf of Jerry Chambers, Plaintiffs appear to have alleged their bestcase, no further opportunity to amend his claims is warranted, and all claims assertedby Jerry Chambers should be dismissed with prejudice.II.Plaintiffs’ Texas Deceptive Trade Practices Act claim should be dismissed.Defendant argues that Plaintiffs fail to state a claim under the Texas DeceptiveTrade Practices Act (the “TDTPA”) because they are not “consumers” as defined by theTDTPA. The elements of a cause of action under the TDTPA are: “(1) the plaintiff is aconsumer, (2) the defendant engaged in false, misleading or deceptive acts, and (3)these acts constituted a producing cause of the consumer’s damages.” Doe v. Boys Clubsof Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995) (citing TEX. BUS. & COM. CODE§ 17.50(a)(1)). To qualify as a consumer, “a person must have sought or acquired goodsor services by purchase or lease,” and “the goods and services purchased or leased mustform the basis of the complaint.” TEX. BUS. & COM. CODE § 17.45(4); Cameron v. Terrell& Garrett, Inc. 618 S.W.2d 535, 539 (Tex. 1981).-9-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 10 of 27 PageID pageID Since the lending of money is not a good or service, a borrower whose soleobjective is to get a loan does not become a consumer under the TDTPA. See Walker v.Fed. Deposit Ins. Corp., 970 F.2d 114, 123 (5th Cir. 1992) (citing Riverside Nat’l Bankv. Lewis, 603 S.W.2d 169, 174-75 (Tex. 1980)). Moreover, “[a]lthough one who borrowsmoney to buy a house can be a consumer under the [TDTPA] because that person’sobjective is to buy a home, subsequent actions related to mortgage accounts – forexample, extensions of further credit or modifications of the original loan – do notsatisfy the ‘goods and services’ element of the [TDTPA].” Swim v. Bank of Am., N.A.,No. 3:11-cv-1240-M, 2012 WL 170758, at *6 (N.D. Tex. Jan. 20, 2012).In their response, Plaintiffs argue that their TDTPA claim is based on theacquisition of services related to the oral agreement and not the written loanassumption agreement. “‘[T]he key principal in determining consumer status is thatthe goods or services purchased must be an objective of the transaction, not merelyincidental to it.’” Maginn v. Northwest Mortg., Inc., 919 S.W.2d 164, 166 (Tex. App. –Austin 1999, no pet.) (quoting First State Bank v. Keilman, 815 S.W.2d 914, 929 (Tex.App. – Austin 1991, writ denied) (emphasis in Keilman)). Here, the services related tothe oral agreement were merely incidental to the objective of the transaction, whichwas to modify the original loan to allow Marsha Chambers to assume PatriciaChambers’ obligations under the Note. And Marsha Chambers did not purchase theProperty from Defendant, but from Patricia Verm.Accordingly, the undersigned concludes that Plaintiffs are not consumers under-10-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 11 of 27 PageID pageID the TDTPA and cannot plead any set of facts to show that they are consumers.Defendant also argues that Plaintiffs’ TDTPA claim is barred by the two-yearstatute of limitations. See TEX. BUS. & COM. CODE § 17.565. “A statute of limitationsmay support dismissal under Rule 12(b)(6) where it is evident from the plaintiff'spleadings that the action is barred and the pleadings fail to raise some basis for tollingor the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).Defendant argues that the statute of limitations ran in September 2004 becauseMarsha Chambers attempted to assume the Note in September 2002. MarshaChambers responds that the statute of limitations should be tolled because she did notdiscover – nor in the exercise of reasonable diligence should have discovered – the false,misleading, or deceptive act or practice because Defendant fraudulently concealed thefact that she had not been allowed to assume Patricia Verm’s mortgage loan.The Court need not resolve this issue because, regardless of when the statute oflimitations ran, Plaintiffs cannot plead any set of facts to show that they areconsumers.For these reasons, the undersigned concludes that Plaintiffs’ TDTPA claimshould be dismissed with prejudice.III.Plaintiffs’ statutory fraud claim should not be dismissed.In the alternative to their TDTPA claim, Plaintiffs assert a claim for fraud in areal estate transaction. See TEX. BUS. & COM. CODE § 27.01. Texas Business andCommerce Code § 27.01 provides a statutory cause of action for fraud in real estate andstock transactions. See id. Section 27.01 only applies to misrepresentations of material-11-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 12 of 27 PageID pageID fact made to induce another to enter into a contract for the sale of land or stock. A loantransaction, even if secured by land, is not considered to fall under the statute. SeeDorsey v. Portfolio Equities, Inc., 540 F.3d 333, 343 (5th Cir. 2008); Greenway Bank &Trust v. Smith, 679 S.W.2d 592, 596 (Tex. App. – Houston [1st Dist.] 1984, writ ref’dn.r.e.).To prevail on a claim under Section 27.01, Plaintiffs must show “(a) falserepresentation of a past or existing material fact, when the false representation [is] (A)made to a person for the purpose of inducing that person to enter into a contract; and(B) relied on by that person in entering into that contract; or (2) false promise to do anact, when the false promise [is] (A) material; (B) made with the intention of notfulfilling it; (C) made to a person for the purpose of inducing that person to enter intoa contract; and (D) relied on by that person in entering into that contract.” TEX. BUS.& COM. CODE § 27.01(a).Plaintiffs allege that Conseco made a false promise or representation – thatMarsha Chambers would be allowed to assume Patricia Verm’s obligations under theNote – to induce Marsha Chambers to purchase the Property from Patricia Verm.Plaintiffs further allege that Marsha Chambers relied on those false promises andrepresentations when she executed the written loan assumption agreement and thePromissory Note to purchase the Property. See Dkt. No. 58 at 35-39.Defendant argues that Section 27.01 is inapplicable because there was neithera contract nor a sale of land between the parties involved in this case. See Nolan v.-12-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 13 of 27 PageID pageID Bettis, 577 S.W.2d 551, 556 (Tex. Civ. App. – Austin 1979, writ ref’d n.r.e.). But herePlaintiffs allege that there was a contract between Marsha Chambers and Conseco –the written loan assumption agreement – and that Conseco fraudulently induced herto execute the contract to purchase the Property, which required her to make thepayments to Conseco. Because the statute does not expressly require that the contractor sale of land be between the parties to the litigation, the undersigned concludes thatPlaintiffs have stated a statutory fraud claim.Defendant also argues that Plaintiffs’ claim under Section 27.01 is barred by thefour-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE § 16.051.Defendant argues that, because the alleged misrepresentations were made inSeptember 2002, the statute of limitations ran in September 2006. Plaintiffs respondthat the statute of limitations was tolled because Defendant’s predecessors concealedthe fact that Marsha Chambers had not been allowed to assume the Note and becausePlaintiffs could not have discovered that until they received written notice in May2013. Plaintiffs plead that Conseco and Green Tree took inconsistent positions bytelling Marsha Chambers that she had no legal right to the Property and that she waslegally obligated under the Note. Plaintiffs also plead that, in 2005, Marsha Chambershad reason to believe that she had assumed the Note when she was told by a Consecorepresentative that the Note was being reissued in her name. And Plaintiffs plead thatDefendant’s predecessors sought payment of the Note from Marsha Chambers from2002 until 2013.Accordingly, the undersigned concludes that Plaintiffs sufficiently pleaded a-13-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 14 of 27 PageID pageID basis for asserting that the statute of limitations was tolled such that the statutoryfraud claim should not be dismissed on a Rule 12(b)(6) motion on limitations.For all of these reasons, Plaintiffs’ claim for violation of Texas Business andCommerce Code § 27.01 should not be dismissed.IV.Plaintiffs’ Texas Debt Collection Practices Act should be dismissed.Plaintiffs allege that Defendant violated the Texas Debt Collection Practices Act(the “TDCPA”) by threatening to take action not authorized by law, in violation ofTexas Finance Code § 392.301(a)(8). See Dkt. No. 58 at 59-65. Section 392.301(a)(8)prohibits a debt collector from using “threats, coercion, or attempts to coerce” thatinvolve “threatening to take an action prohibited by law.” TEX. FIN. CODE §392.301(a)(8). Under Section 392.301(b), a debt collector is not prevented from“threatening to exercise a statutory or contractual right of seizure, repossession, or salethat does not require court proceedings.” Id. § 392.301(b)(3).Plaintiffs allege that, on January 29, 2005, a Green Tree representative toldMarsha Chambers that she had no legal right to be in the house and insinuated thatGreen Tree would pursue criminal charges against her. Plaintiffs further allege that,in 2007 and 2009, a Green Tree representative told Marsha Chambers that her namehad not been added to the mortgage loan and threatened to sue her for fraud becauseproperty subject to a mortgage cannot be sold. Plaintiffs allege that a Green Treerepresentative threatened their son, who was 10 or 11 at the time, by telling him thatGreen Tree would have the family forcibly removed from the house if the mortgagepayment was not made that day. Plaintiffs also allege that, in 2005, a Green Tree-14-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 15 of 27 PageID pageID representative told Marsha Chambers that she would be a party to any foreclosureaction concerning Patricia Verm’s original loan.Taking Plaintiffs’ allegations as true, Plaintiffs have stated facts to support aclaim under Section 392.301(a)(8).Defendant also argues that Plaintiffs’ claim for violations of Section392.301(a)(8) is barred by the four-year statute of limitations. See TEX. CIV. PRAC. &REM. CODE § 16.051. Plaintiffs contend that the discovery rule tolls the statute oflimitations because Defendant or its predecessors fraudulently concealed and failed todisclose that Marsha Chambers had not been allowed to assume Patricia Verm’smortgage loan in 2002. Plaintiffs state facts showing that Marsha Chambers knew orshould have known in 2005, 2007, and 2009 that Green Tree disputed her claims thatshe had assumed the Patricia Verm’s mortgage loan, and the alleged threats, coercion,attempts to coerce, or threats to take an action prohibited by law occurred in 2009 atthe latest. Thus, the statute of limitations would have run in 2013. This, then, is a casein which the statute of limitations supports dismissal under Rule 12(b)(6) where it isevident from Plaintiffs’ pleadings that the action is barred and the pleadings fail toraise some basis for tolling or the like. See Jones, 339 F.3d at 366.Accordingly, the undersigned recommends that Plaintiff’s claims for violationsof Texas Finance Code § 392.301(a)(8) should be dismissed with prejudice.V.Plaintiffs’ Tex. Bus. & Com. Code § 305.053 claim should not be dismissed.The Telephone Consumer Protection Act (the “TCPA”) makes it unlawful for anyperson in the United States “to initiate any telephone call to any residential telephone-15-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 16 of 27 PageID pageID line using an artificial or prerecorded voice to deliver a message without the priorexpress consent of the called party.” 47 U.S.C. § 227(b)(1)(B). Texas Business andCommerce Code § 305.053 provides a cause of action for violations of the TCPA, 47U.S.C. § 227. See TEX. BUS. & COM. CODE § 305.053.Plaintiffs allege that Defendant’s predecessors violated Section 305.053 byplacing approximately 1,421 auto-dialed telephone calls to Plaintiffs’ residential phonenumber without her consent in an attempt to collect a debt. See Dkt. No. 58 at 66-72.Marsha Chambers alleges that “I specifically stated to the Greentree agents thatunless my name was on the mortgage loan that Greentree had to stop calling my homephone number back in January of 2005. ” Marsha Chambers further alleges that “I didnot give permission for Greentree to call my home phone number unless Greentree wasactually claiming that I legally was the person responsible for the mortgage loan andI specifically stated to the Greentree agents that unless my name was on the mortgageloan that Greentree had to stop calling my home phone number back in January of2005 when the first Greentree agent told me that I had no legal right to be in the houseon Betty Lane.” Dkt. No. 58 at 68-69.Defendant argues that Plaintiff appears to allege that she orally revoked herconsent and urges the Court to follow a line of cases holding that withdrawal of consentunder the TCPA must be in writing and that, as a result, Plaintiffs’ oral revocation wasnot legally sufficient. See Starkey v. Firstsource Advantage, No. 07-cv-662A(Sr), 2010U.S. Dist. LEXIS 60955, at *16 (W.D.N.Y. Mar 11, 2010). Plaintiffs argue that the-16-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 17 of 27 PageID pageID Court should follow the decision in Adamcik v. Credit Control Services, Inc., 832 F.Supp. 2d 744, 750 (W.D. Tex. 2011), which expressly rejected Starkey and the casesfollowing it, see 832 F. Supp. 2d at 750 (listing cases following Starkey decision,including Cunningham v. Credit Mgmt., L.P., No. 3:09-cv-1497-G (BF), 2010 WL3791104, at *5 (N.D. Tex. Aug. 30, 2010), rec. adopted, 2010 WL 3791049 (N.D. Tex.Sept. 27, 2010)), and held that oral revocation is legally effective under the TCPA, seeid. at 753.In both Starkey and Adamcik, plaintiffs asserted claims for violations of both theTCPA and the Fair Debt Collection Practices Act (“FDCPA”) over automated callsmade to cellular telephone numbers to collect a debt. See 47 U.S.C. § 227(b)(1)(A)(iii).The tension in these revocation-of-consent cases is that the FDCPA expressly providesfor written revocation of consent, see 15 U.S.C. § 1692(c), but the TCPA is silent as torevocation. Starkey and its progeny interpret the TCPA’s silence in a mannerconsistent with the protections of the FDCPA, which governs debt collection efforts,and require written revocation of consent under the TCPA. See Adamcik, 832 F. Supp.2d at 750-51 (discussing Starkey); see also Buchholz v. Valarity, LLC, No. 4:13CV362TIA, 2014 WL 5849434, at * 6 (E.D. Mo. Nov. 12, 2014) (collecting cases).But the majority of cases to address the issue hold that prior express consentunder the TCPA may be revoked, see Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271(3d Cir. 2013), and that the revocation of consent may be oral, see, e.g., Osorio v. StateFarm Bank, F.S.B., 746 F.3d 1242, 1254-55 (3d Cir. 2014); Buchholz, 2014 WL-17-

Case 3:15-cv-01879-M-BN Document 90 Filed 09/30/16Page 18 of 27 PageID pageID 5849434, at *7 (collecting cases); Adamcik, 832 F. Supp. 2d at 751. These decisions holdthat oral revocation of consent under the TCPA is consistent with the legislativehistory and broad remedial purposes of the statute, the common law principles relatingto consent and revocation, and the Federal Communication Commission’s analysis ofthe revocation issue.The undersigned recommends that the Court follow the majority line of casesand concludes that oral revocation of consent is effective under the TCPA and thatcontinued automatic messages after consent is orally revoked violates the TCPA.Accordingly, Marsha Chambers has stated a claim for violation of TexasBusiness and Commerce Code § 305.053 because she alleges that she orally revokedconsent to receive automated telephone calls on her residential phone number andDefendant’s predecessors continued to place such calls after consent was revoked.Def

Defendant Ditech Financial, LLC f/k/a Green Tree Servicing, LLC has filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon . The Note was secured by a Texas Home Equity Deed of Trust (the "Deed of Trust") pledging Verm's interest in property located in Kaufman, Texas (the "Property"). See id.