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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GARY HANLEY on behalf of himself and )

others similarly situated, )

)

Plaintiff, ) 1:12-cv-4158

)

v. ) Judge Castillo

)

GREEN TREE SERVICING LLC., )

)

Defendant. )

REPLY IN FURTHER SUPPORT

OF DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

Plaintiff‟s opposition to GreenTree Servicing LLC‟s (“GreenTree”) Motion to 

Dismiss barely responds to any of the points that GreenTree raised in support of dismissal.

1

 

Instead, Plaintiff spends much of his response detailing the history of the Telephone Consumer 

Protection Act (“TCPA”), 47 U.S.C. § 227, and referring to dictionary definitions of “consent.” 

Plaintiff does nothing to refute the fact that Plaintiff repeatedly provided his cellular telephone 

number to GreenTree in connection with his mortgage loan, including in his loan application. 

The allegations of his Complaint—along with the key documents demonstrating that he freely 

gave his cell phone number to GreenTree that were attached to GreenTree‟s Motion to 

Dismiss—demonstrate that his TCPA claim fails because he expressly consented to receive calls 

on his cell phone. Further, he does not point to any law stating that revocation of consent is 

 

1

Preliminarily, Plaintiff‟s opposition violates the Local Rules of Civil Procedure in two 

respects. First, the type size is smaller than 12 point font. See N.D. Ill. L. R. 5.2(c)(1). 

Second, there is no certificate of service attached. See N.D. Ill. L. R. 5.5(b).

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permitted under the TCPA. Finally, Plaintiff fails to overcome the fact that his entirely 

conclusory allegation that GreenTree acted “willfully” does not suffice under the governing 

pleading standard to survive a motion to dismiss. Therefore, the Court should dismiss Plaintiff‟s 

Complaint.

II. ARGUMENT

A. Prior Express Consent Is Established.

In his opposition to GreenTree‟s Motion to Dismiss, Plaintiff attempts to make an 

issue out of the fact that GreenTree “fails to „prove‟ essential elements of the „prior express 

consent‟ defense.” Pl. Resp., p. 6. Yet, Plaintiff ignores the fact that his Complaint and the 

indisputably authentic documents attached to GreenTree‟s Motion establish the elements of prior 

express consent. So long as these elements are evident from Plaintiffs‟ Complaint and the

documents that are the basis for Plaintiff‟s claims, GreenTree succeeds on its Motion. See, e.g., 

Hecker v. Deere & Co., 556 F.3d 575, 582-83 (7th Cir. 2009) (when considering a motion to 

dismiss, indisputably authentic documents central to plaintiff's claim may be properly 

considered); ABN AMRO, Inc. v. Capital Int'l Ltd., No. 04 C 3123, 2007 U.S. Dist. LEXIS 

19601, at *15 (N.D. Ill. Mar. 16, 2007) (“[C]ourts will consider documents attached to a motion 

to dismiss, but not to the complaint, where the complaint refers to the documents and they are 

central to the plaintiff's claim.”).

Plaintiff largely responds to GreenTree‟s Motion with the hyper-technical 

argument that consent is an affirmative defense that his Complaint need not have anticipated. 

While it is true that as a general matter complaints need not anticipate affirmative defenses to 

survive a motion to dismiss, Gomez v. Toledo, 446 U.S. 635, 640 (1980), the exception exists 

where “the allegations of the complaint itself set forth everything necessary to satisfy the 

affirmative defense.” U.S. v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005); see also Thrasher-Lyon 

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v. Ill. Farmers Ins. Co., No. 11 C 04473, 2012 U.S. Dist. LEXIS 50560, at *7-10 (N.D. Ill. Mar. 

20, 2012) (in construing the TCPA, the Court acknowledged that a motion to dismiss may be 

granted if a consent affirmative defense is established).

Plaintiff does not dispute that prior express consent is deemed to exist if: (1) the 

wireless number was provided by the consumer to the creditor, and (2) such number was 

provided during the transaction that resulted in the debt owed. In re Rules and Regulations 

Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA Int'l for Clarification and 

Declaratory Ruling, 23 FCC Rcd. 559, 564-65 (2008).

The crux of Plaintiff‟s Complaint is his contention that GreenTree “called 

plaintiff‟s cellular telephone on multiple occasions over the past four years using an automatic 

telephone dialing system and/or an artificial or prerecorded voice, after plaintiff demanded that 

the calls stop.” Compl., ¶ 7. Plaintiff admits that Green Tree “is the servicer of the mortgage for 

plaintiff‟s home.” Id. at ¶ 5. There is no dispute that Plaintiff applied for the loan ultimately 

serviced by GreenTree by submitting his “Uniform Residential Loan Application” (the 

“Application”), the authenticity of which Plaintiff does not dispute.

2

 In the Application, he listed 

his telephone number as: 630-xxx-5690, the same cellular telephone number he complains 

GreenTree subsequently telephoned. See Application, Borrower Information; Compl., ¶ 4.3

There is also no dispute that thereafter, on February 25, 2012, Plaintiff applied to 

GreenTree for a mortgage loan modification under the federal government‟s “Making Home 

 

2 A true and correct copy of Plaintiff‟s Application, with identifying information redacted 

only, was attached to GreenTree‟s Motion to Dismiss as Exhibit A.

3 Consistent with the Complaint which omits the three middle digits of Plaintiff‟s cellular 

telephone number, the three middle digits have been omitted herein and redacted in the 

Application. 

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Affordable Program.” See Making Home Affordable Program Application (the “MHA 

Application”).4 As he did in the Application before it, Plaintiff provided his cellular telephone 

number in the MHA Application as 630-xxx-5690. In support of the MHA Application, Plaintiff 

provided his executed Form 4506-T, Request for Transcript of Tax Return which again provided 

Plaintiff‟s cellular telephone number as: 630-xxx-5690.5 The Court may consider these three 

documents as they not only are the basis of Plaintiff‟s claims, but they are indisputably authentic 

and are typically the type of documents that form the basis for the relationship between debtors 

and their creditors. See, e.g., 23 FCC Rcd. at 565 n.36. The FCC has recognized that “the 

telephone number is provided by the customer for purposes [of] receiving calls, for example, as 

part of the credit application.” Id.

As Plaintiff himself notes in his opposition, it is GreenTree‟s “burden to 

demonstrate, through actual evidence, that the documents it has show consent for the calls it 

made.” Pl. Resp., p. 6. GreenTree has met this burden. The documents attached to GreenTree‟s 

Motion to Dismiss demonstrate that Plaintiff provided his cell phone number to GreenTree 

“during the transaction that resulted in the debt owed.” In other words, Plaintiff provided his cell 

phone number to GreenTree in connection with his Application and then his subsequent MHA 

Application for a loan modification to his existing mortgage loan that GreenTree serviced. See

Exs. A and B to Motion to Dismiss. By doing so, he consented to receive phone calls from 

GreenTree on that phone number. See, e.g., 23 FCC Rcd. at 565 n.36. Therefore, he cannot state 

a claim against GreenTree under the TCPA. See, e.g., Gager v. Dell Fin. Serv., No. 11-2115, 

 

4 A true and correct copy of the MHA Application was attached to GreenTree‟s Motion to 

Dismiss as Exhibit B.

5 A true and correct copy of the Form 4506-T, Request for Transcript of Tax Return was 

attached to GreenTree‟s Motion to Dismiss as Exhibit C.

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2012 U.S. Dist. LEXIS 73752 (M.D. Pa. May 29, 2012) (dismissing TCPA claim as the plaintiff 

consented to the calls and could not revoke said consent).

B. The TCPA Does Not Permit Revocation of Prior Express Consent.

To the extent the Complaint may be interpreted as contending that Plaintiff 

revoked his consent, again, it fails as a matter of law. There is nothing in the TCPA or its 

regulations that provide for the revocation of consent. Compare 47 U.S.C. § 227(b)(1)(A) with 

Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991; Junk Fax 

Prevention Act of 2005, 71 Fed. Reg. 25967, 25972 (May 3, 2006) (revocation of consent 

provided for and described under TCPA facsimile advertising rules).

Further, Plaintiff‟s opposition fails to point to any law refuting GreenTree‟s 

contention that the TCPA provision underlying Plaintiff‟s claims does not specifically authorize 

a debtor‟s revocation of prior express consent. Plaintiff‟s opposition does nothing more than 

point to cases that did not consider whether prior express consent may be revoked under the 

terms of the TCPA. Plaintiff attempts to distinguish the most recent case on this topic, Gager, 

supra, merely by stating that the Gager Court‟s reasoning—that consent could not be revoked 

under the TCPA—“is inconsistent with the ordinary legal concept of „consent.‟” Pl. Resp., p. 8. 

Plaintiff relies on a 2008 FCC Order stating that “persons who knowingly release their phone 

numbers have in effect given their invitation or permission to be called at the number which they 

have given, absent instructions to the contrary.” See Pl. Resp., p. 8 (citing Rules and Regulations 

Implementing the Tel. Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769 (1992)) 

(emphasis added).

The Gager Court, however, explicitly declined to follow the reasoning of the 

cases Plaintiff relies upon, noting that the FCC Order from 2008 requires that “such „instructions 

to the contrary‟ are to be provided at the time a person „knowingly release[s]‟ her telephone 

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number.” Gager, 2012 U.S. Dist. LEXIS 73752, at *16 (citation omitted) (emphasis added). In 

fact, the Gager Court was explicit when it stated that “we do not find any TCPA provision 

allowing revocation.” Id. at *15. As Plaintiff could not revoke his consent under the TCPA and, 

in any event, did not provide any instructions at the time he provided his phone number to 

GreenTree, see GreenTree‟s Motion, Exs. A-C, GreenTree‟s Motion to Dismiss should be 

granted.6

C. Plaintiff’s Claim For Treble Damages Does Not Satisfy Twombly.

Plaintiff seeks the award of treble damages alleging only that GreenTree‟s alleged 

violations of the TCPA were “willful.” Compl., ¶ 13. As GreenTree pointed out in its opening 

brief, this wholly conclusory allegation cannot, and does not, pass muster under the pleading 

standard required by the Supreme Court. When deciding a motion to dismiss, the Court should 

accept well-pleaded facts in the complaint as true and consider whether those allegations state a 

claim to relief that is “plausible on its face.” To do so, Plaintiff must plead “factual content that 

allows the court to draw the reasonable inference that [a] defendant is liable for the misconduct 

 

6

Further, and in violation of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the 

Complaint is ambiguous as to how and when Plaintiff allegedly revoked his consent to 

receive phone calls on his cell phone. While a number of cases without fully considering 

the issue have concluded that consent may be revoked, they have also concluded that 

consent may only be revoked in writing. See Gutierrez v. Barclays Group, No. 

10cv1012, 2011 U.S. Dist. LEXIS 12546 (S.D. Cal. Feb. 9, 2011) (defendant only 

claimed that revocation must be in writing, so court did not analyze whether revocation 

of prior express consent was impossible); Adamcik v. Credit Control Servs., Inc., No. A10-CA-399-SS, 2011 WL 6793976 (W.D. Tex. Dec. 19, 2011) (merely recognizing that 

the TCPA is silent on how consent to receive autodialed calls can be revoked); Starkey v. 

Firstsource Advantage, LLC, No. 07-CV-662A(Sr), 2010 U.S. Dist. LEXIS 60955 

(W.D.N.Y. Mar. 11, 2010) (written revocation of consent permissible under the TCPA). 

Plaintiff fails to allege that he revoked his consent in writing and fails to attach any such 

document to his bare bones Complaint.

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alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007)).

Plaintiff‟s opposition does nothing to refute this argument, instead relying on the 

standard for willfulness under the TCPA.7 See Pl. Resp., p. 10. Whether the “standard” of 

willfulness applies to the TCPA is not the issue; the issue is whether Plaintiff has sufficiently 

pleaded facts so this Court can determine whether GreenTree willfully violated the TCPA in any 

respect. Surely, simply stating that the violations of the TCPA were “willful” does not permit 

this Court to make such a determination. Therefore, Plaintiff has not alleged any basis on which 

the Court could award him treble damages and GreenTree‟s Motion should be granted.

III. CONCLUSION

For all of the foregoing reasons and the reasons set forth in Defendant‟s opening 

brief, GreenTree respectfully requests that the Court grant its Motion to Dismiss.

Respectfully submitted,

/s/ Marshall L. Blankenship

One of the attorneys for Defendant

James D. Adducci

Marshall L. Blankenship

Adducci, Dorf, Lehner, Mitchell

 & Blankenship, P.C.

150 North Michigan Avenue, Suite 2130

Chicago, Illinois 60601

(312) 781-2800

 

7 While Plaintiff correctly recites Rule 9 of the Federal Rules in his opposition, this does 

nothing to cure his defective pleading that is devoid of any facts to show how GreenTree 

in any way acted willfully in violating the TCPA. 556 U.S. at 678.

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Of Counsel:

Alan S. Kaplinsky

Martin C. Bryce, Jr.

Keith B. Joseph

Ballard Spahr LLP

1735 Market Street, 51st Floor

Philadelphia, PA 19103

(215) 665-8500

Dated: September 12, 2012

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CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of September, 2012, I caused a true and 

correct copy of the Reply in Further Support of Defendant‟s Motion to Dismiss to be served via 

ECF electronic transmsision on plaintiff‟s counsel below:

Alexander H. Burke

aburke@burkelawllc.com

Burke Law Offices, LLC

155 N. Michigan Avenue

Suite 9020

Chicago, Il 60601

/s/ Marshall L. Blankenship

Marshall L. Blankenship

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