fourteen forty one sixty eight stephen m bill versus word residential incorporated oral argument not to exceed fifteen minutes per side mr for the plaintiff good morning  spider nearly lost an arm is out of work for a couple of months and during that time period he fell behind on his mortgage after that period he got back on on his feet got better he did what we want people to do which is to reach out to his mortgage company to  find a resolution to get back on track with his mortgage he had to that and he filled out multiple loan applications mortgage are rather loan modification applications and worked in good faith over a period of time to get  get something done so he can save his house his good faith effort shielded i'm not a loan modification fact i never got one actually feel that i'm a foreclosure and his cell phone loaded into an auto dialing robo dial or and called eight hundred r c s me four hundred eighty seven times that four hundred eighty seven to put that in perspective if each call was one second of ringing we'd be sitting here for over eight minutes of his telephone ringing this enormous stress on a family on a on a on an individual on quite frankly society that it's become such a issue robo signing it became such an issue that congress came out passed a law that prohibited from occurring congress did not prohibit and did not limit companies abilities to contact their borrowers contact their customers and contact individuals who are not customers and talk with them there's actually not in the jury found they didn't use or no the jury found that they did a robo collar that was actually a specific in iraq yes the issue with the with the jury was the second in iraq where it was did he give a prior express consent and the issue we have with that is the is that the jury instructions it was pretty clear that was where that was going to happen because the way it was worded the prior express consent piece of it is really what the nuts and bolts of of the of the dispute between the two parties essentially wants to the court to find him an implied consent you know not even express but rather just say an implied consent that when somebody gives a phone number on a mortgage application home or doesn't have any obligation to expressly tell them what they're going to be used for that they're going to load in an auto dialer that that's sufficient just to begin calling so harassing somebody nonstop for you know for months on that very fine about th e expressed concern well the it was a jury instructions as is the issue so the jury found that the express jury found that consent was provided the jury instructions said that if mr hill provided his telephone number on  i'm paraphrasing here but if mr hill provided his telephone number and a document that was sufficient to find that he provided consent that that language is problematic because the f c c has a rule that had  grow versus mercantile says you have to get if you're going to get this consent you have to have given it at the time of the initial transaction their words in the actual decision or the  opinion of the second circuit is that the client provided his telephone number to national grid after the debtor had incurred that debt and therefore that no consent was provided so we had was a jury instruction that said just giving a number is sufficient in our positions let's take a step back here first we can rely on the f c c reg or opinion i'm curious about your reliance on the second circuit case because in that case as  i understand it the party being called didn't give the number in connection with an existing debt they were a third party well that is true yes so the facts in that case where you're really plucking out stray language has nothing to do with the facts in this case well the it doesn't say that you have to give a number in connection with the initial creation of the debt which is the whole basis of your argument here it's not in the act it's not sentence we have for size a prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor and that such a number was provided during the transaction that resulted in the debt owed so there is to function peace in the two thousand creditor we stop reading there and that's what this court did that's what this lower court in the jury instructions we said wait a second judge less said the second part of that sentence that the f c c order says which is in a such a number as provided during the transaction that resulted in the the resulting obligate of anything other than the second circuit case that deals with other facts that support your injection of this initial debt concept well i think i think we do cite to some cases within  our our decision there is somewhat there's a lot of decisions on this point at the lower court levels i'm not aware beyond the second circuit that we've got anything other than the f c c saying what prior express consent is i would take a step back oh let's skip over the f c c for just second and just look at the you know prior express consent when we've got prior but we have also express and we have consent expert what is expressed mean all the documentation of my client provided which by the way  for the purposes of getting a loan modification he was happy to talk with people over the telephone about oh my god he wanted to save his house the idea here is that the there has to be something more than just putting a phone number down on a form there has to be an express there has to be consent and there has to be express said to him hey we're going to use your number robo call you we're going to put your number at an automated dialing machine we're going to call you you know using that machine they didn't do that what's the point of having the word express if if somebody is not going to convey that i will say the f c c orders now that we have been changed since then which we talk about in our brief are implicitly clear i mean if if a telemarketer wants to call somebody they have to have in writing this can send that says not only in writing but it actual language saying we're going to robo call you and you don't have to enter into this the f c c also says now that even if it's your current client you still have to inform them of this and you have to provide an opportunity for them  to say no you just don't have to do it in writing you can do it orally they never did that either i also say your honor is that this is not my client's obligation to prove non consent this is an affirmative defens human being they can dollars phone number they can call mom this is what happens in real life is it you get it you get a debtor who's who's hard you know who goes through something a difficult time and is just hounded this is not a mechanism to calls i mean four hundred eighty seven call us who's going to consent to that i mean that's one second a piece is eight minutes let alone sit there and have your phone ring all day every you know it's just it's all we would all necessarily agree with that is just t we're dealing with the original regulation we're dealing with the original statute that the f c c has implemented essentially regulations governing bad as of today the most recent two thousand and fifteen order that came out even two thousand and memory serves two thousand and twelve is incredibly clear that this applies to telemarketers and underlie and customers of institutions if this court were to find that the statu doesn't apply to two customers if it will of this or a the the entire code as it as it applies right now to businesses i know we're dealing with a specific time period of calls two thousand a dozen two thousand and ten calls but  i would i would encourage the court you know to to look at it as as applying to to vote all right you'll have your four to five m called his loan servicer and gave them his cell phone number in place of his home number in two thousand and ten he specifically instructed homered to use his cell phone number rather than his work number leaving his cell phone number is the only contact number on his account over the next few years mr mr hill completed numerous documents in an effort to obtain a loan modification and repeatedly provided his cell phone number even identifying it as his home phone number mr hill at no time ever asked homeward to stop calling his cell phone but when he was ultimately declined for a loan modification because he continually did not provide the necessary documents in a timely manner several months later he found the underlying action claiming that he'd been called on his cell phone without his permission because rivera it seems to me it's a little hard to follow these pleadings because there's a lot of language about appealing a summary judgment which can do after you've already submitted your case to the jury so just ignore all of language about appealing a summary judgment denial his argument seems to come down to two things as i understand it first is that in order to be able to use this equipment that you used and i'm going to ignore whether the numbers were manually loaded or whether they were manually loaded you have to have given express consent for an auto dialed call as opposed to express consent to just simply call that number so could you speak to that for just a moment please and that addresses the struggles third argument in this court which is that the trial court erred in its instruction to the jury regarding what constitutes prior express consent southern district of ohio has held that to prevail on a t c p a claim mr hill had to show that there was a call made to a cell phone using an automatic telephone dialing system or an artificial or prerecorded for use without his prior express consent automatic telephone dialing system is very specifically defined by the t c p as equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator to and to dial such numbers mr hill failed to produce any evidence whatsoever that homeward had ever used an automatic telephone dialing system as defined by the t c absolute just said that the jury found the head correct jury answered the first iraq atory which incorporated or prerecorded voice mr hill testified that he'd gotten some recordings so it was our understanding that the jury found that he'd been called there had been a prerecorded voice but the jury never said deposition did not comply the system of the use did not fall within the definition of the statute but with regard to consent homered had presented substantial evidence including mr hill's own admissions deposition testimony and signed documents that he had repeatedly provided his cell phone number and instructed homer to use it and the f c c is required by this t c p a to set forth regulations prescribing its provisions and the f c c has regulations are if i give you my phone number you have my permission to call my phone number and then in two thousand and eight the f c c clarified that ruling in the debtor creditor concept concept specifically and and expanded it and said auto dialed and prerecorded message calls this is a quote to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible question the f c c has different requirements for telemarketing they now specifically do require that the consent be in writing but the f c c has always made a distinction between telemarketing and debtor creditor relationships and f c c as expert expressly decided in that regard it's actually the district court was bound in this court is as well under the hobbs act there's an appeal process when an f c c the f c c gives a ruling but once and that's a kind of six month time period to it and once that period i think what you're missing isn't the question of whether the rule is binding if court if we're trying to interpret what they meant in a ruling then don't we get to to either chevron skidmore deference on that particular point i think if there was some ambiguity that would be the case but the is ruling is clear i mean it's stated in what would be the equivalent of a court syllabus law at the beginning of its ruling the language that i quoted is right there and a the f c c is focus has always been on voluntariness the voluntariness of giving your phone number and giving your phone number during the course of a debtor critter relationship is no less voluntary than giving your phone number at the beginning of the relationship is as mr hill would like to argue that it has to be at the beginning in addition that distinction is logical because you know what giving it once is voluntary giving it the second time is voluntary courts that have considered it with the exception i think of the one case that they try to rely on to the extent that it's that it provides a new guidance at all courts have found in the district court found that the distinction between giving it the origination or giving it later is illogical and incorrect so on the first argument that is making your responses as long as they give consent to call the cell phone number that consent doesn't have to specifically say and use a robot dial or an automatic out it doesn't give the number and you say call me that's good enough right that's right about the apparently i would say recognizing that he then goes on to say yes but that's only the case if you gave that consent in connection with the initial part of the the incurring of the debt not during modification or subsequent to the debt being initially incurred and that's where it gets into the second circuit case and then how do you respond to that for two reasons that's wrong first it contradicts f c c's actual holding that says that if you give your phone number in connection with an existing debt this was a thirty year mortgage loan it's still existing in connection with an existing debt then it's prior express consent the second argument is the distinction is a logical because the focus has always been on voluntariness if i give it to you now it's voluntary if i give it to you then it's voluntary it has nothing to do with the point at which it occurs during a thirty year long relationship it's still in connection with an existing i think the f c c is holding this quite clear the district court quoted it exactly in its instruction to the jury which i believe is exactly what it should have done and i believe that mr hill's argument it's got to be a reason why the lenders don't put in there that the based upon your providing this the they don't put that in there some consumers would object if there were in there so i mean the issue the issue really sort of goes to the scope of the consent well what is what is really being agreed to w record anywhere that's completely unsupported there's no support for that at all that's that's what he thinks based on documents he looked at that were not explained to the jury there was no testimony given on them doesn't say who called if it was a person who called as an automatic teller who called if it mr hill said he got some recordings but there was no evidence that an automatic telephone dialing system was ever used evidence wasn't presented well he i mean he couldn't testify of his own personal knowledge that all these things if there was a flow across that they were being made from automated system because he would have had to be operating the system to know that but he could he could some less based upon the number of calls and the frequency whether the automatic  and because first of all he's applying for a loan modification and they were trying to reach him because he wasn't providing the documents they needed and he wasn't returning their calls and he wasn't answering his phone and he admits that had to call him more rather than less because they were trying to reach him regarding his own loan modification application and he wouldn't talk to them so they had to keep calling him and they kept calling him at the number that he instructed them to call that's the number gave him that's the number that he told them to call that's the number that he wanted that really answered what do they get that somebody dunning him to pay the debt or somebody they want to i'm mean it may have been a mixture of both we don't know because again there was no evidence which leads me briefly to the second argument that mr worry what you mean you don't know is your client was making the call mr hall second argument is that homework should have been forced to provide him with a witness at trial mr hill repeatedly failed to properly subpoena witnesses trial so there was no testimony from homer to trial that's why none of this testimony existed i think the testimony from homer probably would have helped our case rather than heard it but after mr hill's case in chief it was not necessary for us to for admission yes there was and part of the deposition testimony was read into the record and once again it didn't support their position of an eight hundred medic telephone dialing system a certain number of telephone calls i think were getting a little hung up on these questions is what you're saying that that you don't know where it isn't a question of whether your client knows what they did or didn't do hear your point as i understand it is not in the assume that had he called the witness properly or asked the right questions and discovery you could have told him how many calls your records show you made and the manner in which they were made right you could have done he didn't ask so in his second argument he claims that the trucker abused its discretion by not forcing homered to produce a witness for him but mr hill failed to subpoena  four civil rule for the fire his so called rule forty five subpoenas filled in virtually every way to comply with rule forty five and they were nothing more than rule thirty six belated efforts to seek discovery on topics that he had never explored during discovery so we objected the trial court sustained our objections he filed a motion for a rule thirty six notice of trial deposition to take place on the date time in place the trial was scheduled to begin where mr hill's counsel had been told in the presence of the court that if you wanted to go home witness he'd have to subpoena one and he didn't do it so the trial court concluded that mr hill had had more than reasonable notice to do it he didn't and the trial court did not discretion in failing to do for mr hill what he could have done for himself but did not or is the company's office when he was trying to get somebody it was there were several mergers that took place so i to testify at trial but mr hill didn't follow any of those provisions so his so called subpoenas exceeded the geographical imitation of route forty five in the trial court had no choice but to question subpoenas so unless there are more questions homered believes that mr hill's arguments fail and should be overruled and respectfully request that the district court's decisions be affirmed thank you honor there's a handful of your honors is a him full things to go through but their way that the jury found that their robo calls were were more made it was because we had a deposition ted a transcript that we submitted where they own their own witness there's  hundred and one hundred seventy six calls that were made by this prairie system she says i think these are exact words i know that perry is an auto dialer collection call so she says she goes through we go through at least one hundred seventy six examples where their own witness is calling it an auto dialer then lo and behold the trial they know they no longer wanted to be you know fall into the definition of autodialer we ask a handful of questions that make it to the jury in the deposition in the transcript  i think that the rule forty five the way there's just been redrafted poses a significant problem i mean the the defendant did business in ohio it had a loan in ohio it for fall foreclosure against my client at all while it was subject to the jurisdiction of the court in ohio southern district and yet when trial comes around i don't have a mechanism under rule forty five to call a corporate presented of of the defendant to appear a trial that's all to milly what was going back and forth and and we can argue about  will that's that's what we ultimately had to result and up with but is that is at the state of how is that how is that compared to and then where exactly do we get the authority to rewrite rule forty five well it's i don't think you're rewriting it i think you're saying corporations a person under rule forty five persons able to be as any court in the united states ever done what you want us to do with rule forty five i think the rule forty five is now i think it's the changes that are issue here but  what i would what some could say is a hyper technical reading of the telephone act itself why would corporations get special treatment i mean i can subpoena an individual person to show up i'm not asking for another however the hundred miles of the corps well  been or in the state well maybe they're just things you have to do during discovery you can do what you don't get to do over at the trial well you know can we bring in the person to decide in florida i think we were enough that in discovery to ask where the corporate headquarters is and who the people are that perform certain roles isn't that the essence of discovery we as part of our disclosures were provided a name of somebody is going to appear by a corporate present that change last minute change and we have i don't know if the she's saying the change a handful of times that's not dispose an issue that you know that the just it is what it is  so going back for a second here on the the clearly there's deposition testimony but the the issue with it is quite frankly that with the jury instructions that beyond beyond the issue of consent that the jury instructions the way they're provided yuval i've only got one half of the piece of the pie that the court's just saying this goes to scope and i think the court is right to point out scope is the issue here that that the jury and should have had something  had i just close by again reiterating prior express consent that's the term you use it when it comes down to scope that that's that's what you know it is within prior express consent there has to be some kind of informed consent there's an express says expresses not