IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

HENRY ESPEJO, individually and on behalf of 

all others similarly situated, 

 Plaintiff, 

v. 

SANTANDER CONSUMER USA INC., an 

Illinois corporation, 

 Defendant. 

Case No.: 1:11-cv-08987 

Honorable Charles P. Kocoras 

ARICA BONNER, et al., on behalf of 

themselves and all others similarly situated, 

 Plaintiffs, 

v. 

SANTANDER CONSUMER USA INC., 

Defendant. 

Case No.: 12-cv-09431 

Honorable Charles P. Kocoras 

DEFENDANT’S LOCAL RULE 56.1 STATEMENT OF MATERIAL FACTS 

NOW COMES Santander Consumer USA, Inc., by its undersigned attorneys, and 

pursuant to Local Rule 56.1 submit this Statement of Material Facts as to which there is no 

genuine issue and that entitle Santander to judgment as a matter of law: 

I. DESCRIPTION OF THE PARTIES AND FACTS SUPPORTING VENUE AND 

JURISDICTION. 

1. Plaintiff Henry Espejo (“Espejo”) is domiciled in the State of Florida. (Espejo 

First Am. Complt. (Dkt. 30) ¶ 6.) 

2. Plaintiff Faye Levins (“Levins”) is a citizen of the State of Alabama. (Bonner 

Sec. Am. Complt. (Dkt. 29) ¶ 2.) 
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3. Santander is an Illinois corporation with its principal place of business in Texas. 

(Espejo First Am. Complt. (Dkt. 30) ¶ 7; Bonner Sec. Am. Complt. (Dkt. 29) ¶ 6.) 

4. Esepejo and Levins each assert a claim against Santander under the Telephone 

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Accordingly, this Court has subject 

matter jurisdiction under 28 U.S.C. § 1331. (Espejo First Am. Complt. (Dkt. 30) ¶ 8; Bonner 

Sec. Am. Complt. (Dkt. 29) ¶6.) 

5. Venue is proper in this District because Santander is incorporated in Illinois and 

subject to the general and personal jurisdiction of the Court. (Espejo First Am. Complt. (Dkt. 

30) ¶ 10; Bonner Sec. Am. Complt. (Dkt. 29) ¶ 9.) 

II. UNCONTESTED FACTS ENTITLE DEFENDANT TO SUMMARY JUDGMENT. 

A. Espejo 

6. In June 2007, Maria Espejo, the wife of Plaintiff Henry Espejo, purchased a 

Toyota Corolla from Kendall Toyota in Miami, Florida, obtaining $15,742.22 in financing from 

Sovereign Bank. (Santander0420-0421 (App. 214-15); Nightengale Declaration (“Decl.”) ¶ 9.) 

7. Santander, a specialized consumer finance company that provides vehicle 

financing, became the third-party servicer on Maria Espejo’s loan. (Decl. ¶ 9.) 

8. After Santander became the third-party servicer on Mrs. Espejo’s loan, Mrs. 

Espejo made monthly loan payments to Santander. (10/22/14 Nightengale Dep. at 92:20-24 

(App.212); 12/03/14 M. Espejo Dep. at 43:4-8, 44:11-14 (App. 156-57).) 

9. On June 26, 2009, Mrs. Espejo contacted Santander on a 1411-ended telephone 

number to indicate that she would keep an earlier promise to make a payment by that date. 

(SCUSA/E 0801 (App. 090); Decl. ¶ 12.) 
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10. On September 9, 2009, Mrs. Espejo called Santander using the 1411 telephone 

number to ask for additional time to make the next payment as a result of her need to pay 

medical expenses. (SCUSA/E 0800 (App. 090); Decl. ¶ 13.) 

11. During a September 9, 2009 call, Mrs. Espejo identified the 1411 telephone 

number as her “home” number and verified the number as an appropriate number on which to 

contact her regarding her loan. (SCUSA/E 0801 (App. 090); Decl. ¶ 12.) 

12. Mrs. Espejo used the 1411 telephone number to contact Santander on October 27, 

2009, when she indicated that a family emergency caused her not to make a timely loan payment. 

(SCUSA/E 0800 (App. 089); Decl. ¶ 14.) 

13. On November 4, 2009, Mr. and Mrs. Espejo together made a call to Santander 

using the 1411 telephone number to explain that Mr. Espejo’s bank had not yet made a payment 

Mrs. Espejo had said Mr. Espejo would make on her behalf. (SCUSA/E 0799-800 (App. 088-

89); Decl. ¶ 15.) 

14. During a November 4, 2009 call, Mrs. Espejo agreed that Santander could talk to 

Mr. Espejo about her debt. (SCUSA/E 0799-800 (App. 088-89); Decl. ¶ 15.) 

15. Santander by policy verifies contact information. (07/17/15 Nerios Dep. at 51:7 to 

52:8 (App. 193-94).) 

16. On a November 4, 2009 call, and in subsequent calls with Mr. Espejo, Santander 

obtained Mr. Espejo’s confirmation that the 1411 telephone number was the appropriate 

telephone number at which to reach him. (SCUSA/E 0800 (App. 089); 12/02/14 H. Espejo Dep. 

at 74:5-12 (App. 151).) 
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17. At no point prior to the call with Mr. and Mrs. Espejo on November 4, 2009, did 

Santander make an outbound call to the 1411 telephone number. (SCUSA/E 0799-0802 (App. 

088-91); Decl. ¶ 17.) 

18. Mr. Espejo claimed to have revoked that consent in conversations with Santander, 

purportedly when Santander initiated calls to his cell phone number. (12/04/14 H. Espejo Dep. 

at 97:11-18, 144:13 to 145:23 (App. 152-54).) 

19. Santander’s contemporaneous records do not reflect any do-not-call request from 

Mr. Espejo even though Santander’s policies require agents to record “do not call” requests. 

(Decl. ¶ 20-21.) 

20. Contrary to his suggestion that he told Santander “a lot of times” not to call him 

when Santander made calls to the 1411 telephone number, Mr. Espejo picked up a Santanderinitiated call only four times over the relevant three-year period. (12/03/14 H. Espejo Dep. at 

145:13-23 (App. 154); Decl. ¶ 18.) 

21. When Mr. Espejo answered the four calls from Santander, he spoke only about 

getting a deferment for his wife or making a promise to pay on her behalf. (Decl. ¶ 19.) 

22. All other conversations with Mr. Espejo (both before and after the four calls 

referred to in SOF 20-21) took place on inbound calls to Santander. (Decl. ¶ 21.) 

23. On the inbound calls to Santander, Mr. Espejo sought accommodations for his 

wife. (Id.) 

24. Mr. Espejo acknowledged that, not only did he fail to revoke his prior express 

consent when speaking on in-bound calls to Santander, he also confirmed his cell phone number 

as a good contact number in those calls. (H. Espejo Dep. at 74, 97, 144-145; (App. 151-54).) 
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25. In his Amended Complaint (11-8987 Dkt. 30), Mr. Espejo claims Santander 

called his cell phone dozens of times as part of Santander’s effort to collect his wife’s debt, an 

estimate he later changed to “at least 500” after receiving Santander’s records in discovery. 

(Espejo First Am. Complt. (11-8987 Dkt. 30) at ¶ 14; Resp. to Interrogatory No. 4 (App. 222); 

Supp. Answer to Interrogatory No. 4 in Def.’s First Set of Interrogatories (App. 234-35).) 

26. Santander maintains its customer records on its “My Supervisor” or “My Sup” 

customer account management system. (10/22/14 Nightengale Dep. at 52:25 to 53:9 (App. 202-

03).) 

27. The customer information that Santander maintains on My Sup at an account level 

includes a notation for each time the company attempts to dial a customer-related telephone 

number, receives a customer call, or otherwise communicates with a customer. (10/22/14 

Nightengale Dep. at 47:19-22, 50:22 to 51:2, 82:18-21 (App. 199-201, 211); 07/17/15 Nerios 

Dep. at 24:1-6 (App. 186).) 

28. The call-related information Santander collects in My Sup. includes: the date and 

time of the call; whether the call is inbound to, or outbound from, Santander; and if answered, 

how the Santander agent “dispositioned” the call (i.e., events that occurred on the phone call 

such as the customer service provided, customer payment promised or message left). (10/22/14 

Nightengale Dep. at 47:19-22, 74:2-22 (App. 199, 210).) 

29. Of all the Santander-initiated calls to the 1411 telephone number, Mr. Espejo 

answered a call to the 1411 telephone number only 4 times (on November 12, 2009, March 8, 

2010, August 30 2010 and December 6, 2010), with the remaining calls either not reaching the 

number, receiving a busy signal or connecting to an answering machine. (SCUSA/E 0799, 0792, 

0783, 0778 (App. 067, 072, 081, 088); Decl. ¶ 19.) 
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30. Mr. Espejo or his wife used the 1411 telephone number to call Santander 25 

times, with Mr. Espejo speaking on behalf of his wife in 23 of those calls to discuss payment 

accommodations for Mrs. Espejo’s debt. (Decl. ¶ 21.) 

B. Levins 

31. Plaintiff Faye Levins purchased a 2007 Chevrolet Impala from Adamson Ford in 

Birmingham, Alabama on January 31, 2009. (07/14/15 F. Levins Dep. at 30:14-18 (App. 159); 

SCUSA/B 43-46 (App. 43, 45-46).) 

32. Levins financed $12,100 of the purchase price of her car with Drive Financial 

Services. (F. Levins Dep. Ex. 8, SCUSA/B 43, 45-46 (App.216-18); SCUSA/B 50 (App. 219); 

Decl. ¶ 24.) 

33. Drive Financial Services merged into Santander after Levins received her car 

loan. (Decl. ¶ 24.) 

34. When Levins missed payments on her loan, Santander contacted her by telephone, 

including at three cell phone numbers ending in 6954, 9678 and 6074. (Pl. Faye Levins’ First 

Supp. Ans. To Def.’s First Set of Interrogatories, Resp. to Interrog. 3 (App. 240-60); Decl. ¶ 23.) 

35. Santander obtained the 6954 telephone number from Levins’ January 31, 2009 

credit application, on which she identified the 6954 telephone number as both her “home” and 

“cell” phone number. (07/14/15 F. Levins Dep. at 30:5-13, 31:1-6 (App. 159-60) and Ex. 6, 

SCUSA/B 00053-54 (App. 126-27); 07/17/15 Nerios Dep. at 26:17 to 27:9 (App. 187-88).) 

36. Levins remembers reading at the time she completed her credit application, the 

credit application expressly stated that: 

By providing my cell phone number, I give my prior express 

consent to receive calls and text messages from the creditor or its 

third party debt collector at that number, including calls and 

messages made by using an autodialer or prerecorded message. 
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(07/14/15 F. Levins Dep. at 34:20-35:80 (App. 161-62) and Ex. 6, SCUSA/B 00053-54 (App. 

126-27).) 

37. Because Levins’ consent to receive calls at this number is so obvious, Levins’ 

counsel has stipulated that the 6954 number is not basis for her TCPA claim. (07/14/15 F. 

Levins Dep. at 94:13-22 (App. 168).) 

38. Levins provided Santander express consent to call her second phone number 

ending in 9678 in a May 14, 2012 tape-recorded call on which she identified her 9678 number as 

a current cell phone number that Santander could use to contact her. (07/14/15 F. Levins Dep. at 

113:8-12, 114:8-15 (App. 175-76); audio recording of the May 14, 2012 phone call (SCUSA-B 

00076 (App. 128).) 

39. Before May 14, 2012, Santander had made only manually dialed calls to Levins 

on the 9678 number which took place on May 4, 7 and 10, 2012. (07/14/15 F. Levins Dep. at Ex. 

13 (App. 092-125); SCUSA/B 00001-00003 (App. 092-94).) 

40. Levins provided Santander the cell phone number ending in 6074 “probably in 

2009 or 2010.” (07/14/15 F. Levins Dep. at 102:12-22 (App. 169).) 

41. In years subsequent to providing the 6074 telephone number, Levins repeatedly 

verified this cell phone information to Santander’s agents as a valid number at which to contact 

her. (07/14/15 F. Levins Dep. at 76:11-23, 77:18-79:4, 114:8-22 (App. 164-67, 196) and Ex. 13 

(App. 092-125).) 

42. Levins voluntarily provided the 6074 telephone number on her MoneyGram and 

Western Union payment applications to Santander from May 2010 to January 2011. (07/14/15 F. 

Levins Dep. at 108:6-111:3 (App. 170-73) and Ex. 13, SCUSA/B 00023-24, 00027-28 (App. 

114-15, 118-19).) 
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43. Santander’s Activity Notes identified Levins’ 6074 number in Santander’s 

activity notes as “IVR1 Home.” (SCUSA/B 34 (App. 125); 07/17/15 Nerios Dep. at 38:8 to 39:4 

(App. 190-91).) 

44. A Santander customer agent can designate the 6074 telephone number as “IVR1 

Home” only if Levins had informed the agent that this “ home” telephone number was a good 

number on which to contact her. (07/17/15 Nerios Dep. at 37:22 to 40:6, 51:21-24 (App. 189-

93).) 

45. Levins recalls asking a supervisor to “address[ ] the issue of why are you calling 

so many times” after payment arrangements had been made. (07/14/15 F. Levins Dep. at 115:3-

20, 117:11-118:5 (App. 177, 179-80).) 

46. Even after having the discussion referred to in SOF 45, Levins expected 

Santander would resume contacting her at the telephone numbers she had provided if she missed 

another car payment. (07/14/15 F. Levins Dep. at 114:23-116:21, 179:5-17 (App. 176-78, 184).) 

47. Nothing in Santander’s Activity Notes indicates that Levins ever made a request 

to stop all calls to any of her cell phone numbers. (07/14/15 F. Levins Dep. at 122:4-9 (App. 

181) and Activity Notes (App. 092 - 125); see also F. Levins Dep. at 72:10-17 (testifying that 

she had no reason to believe that Santander’s account notes were not accurate) (App. 183).) 

C. Telephone System

48. Santander employed the Aspect Telephone System when making its outbound 

calls to Espejo and Levins. (10/22/14 Nightengale Dep. at 42:2-18 (App. 197).) 

49. To make manual calls on the Aspect Telephone System, an account agent can 

either mouse click on a number contained on a My Sup computer screen or type in the 10-digit 

number using the computer keyboard. (10/22/14 Nightengale Dep. at 110:3-9 (App.213); 
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07/21/15 Burda Dep. at 75:22 to 76:3, 79:3-7; 104:14 to 105:17 (App. 141-43, 145-46); 

SCUSA/E 202 (App. 221).) 

50. Santander also uses criteria (such as account behavior scores, account balances, 

new loan status, days past due and amounts past due) to identify a list of customer telephone 

numbers stored in My Sup for potential telephone calls using the “dialer” feature of the Aspect 

Telephone System. (10/22/14 Nightengale Dep. at 58:25 to 60:7 (App. 204-06); 07/21/15 Burda 

Dep. at 43:19 to 44:23 (App. 133-34); 07/17/15 Nerios Dep. at 91:2-6 (App. 195).) 

51. The company’s dialer operations team manually uploads the file containing this 

criteria-generated list to the Aspect Telephone System. (10/22/14 Nightengale Dep. at 62:21 to 

63:16 (App. 207-08); 07/21/15 Burda Dep. at 41:21 to 42:1 (App. 131-32).) 

52. Customer service agents then log into My Sup and press buttons on their 

computer screens to request calls. 910/22/14 Nightengale Dep. at 68:7-22 (App. 209); 07/21/15 

Burda Dep. at 46:18 to 47:2, 47:24 to 48:4 (App.135-37).) 

53. The dialer responds to these agent-initiated signals by dialing numbers from the 

uploaded list, using an algorithm designed to efficiently match available agents to answered 

calls. (10/22/14 Nightengale Dep. at 44:18-25 (App. _198); 07/21/15 Burda Dep. at 66:14-18, 

68:7 to 69:16, 90:7-15 (App. 138-40, 144); SCUSA/E 202, 698 (App. 221, 223).) 

54. Only when agents log-in and press buttons indicating their availability will the 

dialer make outbound calls. (07/21/15 Burda Dep. at 112:01 to 114:21 (App. 147-49).) 

55. Santander used the Aspect Telephone System dialer to make calls to 1411, 6954, 

9678 and 6074 cell phone numbers. (Decl. ¶ 10.) 
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Date: April 21, 2016 Respectfully submitted, 

SANTANDER CONSUMER USA, INC., 

Defendant 

 

 By: /s/ James A. Rolfes 

 One of Its Attorneys 

James A. Rolfes 

(Bar No. 6200271) 

jrolfes@reedsmith.com

Henry Pietrkowski 

(Bar No. 6230048) 

hpietrkowski@reedsmith.com

REED SMITH LLP 

10 South Wacker Drive 

Chicago, IL 60606 

(312) 207-1000 

Abraham J. Colman 

pro hac vice 

acolman@reedsmith.com 

REED SMITH LLP 

355 South Grand Avenue 

Los Angeles, CA 90071 

(213) 457-8000 

Marc A. Lackner 

pro hac vice

mlackner@mcguirewoods.com

David S. Reidy 

pro hac vice 

dreidy@mcguirewoods.com 

MCGUIRE WOODS LLP 

505 Sansome Street 

Suite 700 

San Francisco, CA 94111 

(415) 844-1974 

Attorneys for Defendant Santander Consumer USA, Inc.

 
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CERTIFICATE OF SERVICE 

I, James A. Rolfes, state that on April 21, 2015, I electronically filed the foregoing with 

the Clerk of the Court using the ECF system, which will send notification to all parties. 

 /s/ James A. Rolfes