Cummings v. Rushmore Loan Management Service, 8:17-cv-01652

Cummings obtained a mortgage in 2008 and later faced collection/foreclosure efforts; she informed the holder and subsequent servicers that she was represented by counsel and instructed them to cease direct contact.
The loan servicing was transferred to Rushmore (for U.S. Bank) on January 1, 2017; Rushmore allegedly received servicing records showing Cummings was represented.
In February 2017 a Rushmore employee (named "Rubin") called Cummings; she again told him she had counsel and asked Rushmore to stop contacting her directly.
Cummings alleges Rushmore made repeated calls to her cellular and home phones using an automatic telephone dialing system (ATDS), predictive dialing system, or prerecorded/artificial voice without her prior express consent, and that any consent was revoked once counsel was identified.
Cummings sued under the FDCPA, TCPA, and FCCPA; Defendants removed the case and moved to dismiss Count III (TCPA). The Court reviewed whether the TCPA claim was sufficiently pleaded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether TCPA claim adequately alleges calls to cell using ATDS or prerecorded/artificial voice without prior express consent	Cummings alleges calls to her cellular phone, lack of prior express consent, receipt of calls after Rushmore took over, and identifies a specific call in Feb 2017 and the caller	Defendants contend the complaint is vague as to consent and the ATDS allegation; merely reciting statutory language is insufficient; only consent to call cell phone is required, not express consent to use ATDS	Dismissed Count III for failure to plausibly plead that an ATDS or prerecorded/artificial voice was used; plaintiff may amend by a deadline
Whether a more definite statement is required instead of dismissal	N/A (plaintiff opposed dismissal)	Defendants alternatively sought a more definite statement of the TCPA claim	Court denied the alternative request because it dismissed the claim on pleading grounds

Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir.) (standard for accepting allegations on a motion to dismiss)
Stephens v. Department of Health & Human Services, 901 F.2d 1571 (11th Cir.) (reasonable inferences drawn for plaintiff on motion to dismiss)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must contain factual allegations raising right to relief above speculative level)
Papasan v. Allain, 478 U.S. 265 (1986) (court not bound to accept legal conclusions disguised as facts)
St. George v. Pinellas County, 285 F.3d 1334 (11th Cir.) (scope of review limited to four corners of the complaint)
Augustin v. Santander Consumer USA, Inc., 43 F. Supp. 3d 1251 (M.D. Fla.) (mere recitation of ATDS statutory language insufficient without supporting facts)
Gragg v. Orange Cab Co., 942 F. Supp. 2d 1111 (W.D. Wash.) (well-pled ATDS allegations rely on content/context of messages and similar messages)
Neptune v. Whetstone Partners, LLC, 34 F. Supp. 3d 1247 (S.D. Fla.) (denying dismissal where allegations of frequent calls and prerecorded messages supported ATDS inference)