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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION

RODNEY PATE,

 

 Plaintiff,

v.

OCWEN LOAN SERVICING LLC,

 

 Defendant.

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CIVIL COMPLAINT

CASE NO. 

JURY DEMAND

COMPLAINT

Now comes RODNEY PATE (“Plaintiff”), by and through his attorney, 

complaining as to the conduct of OCWEN LOAN SERVICING LLC (“Defendant”), as 

follows:

NATURE OF THE ACTION

1. Plaintiff brings this action for damages pursuant to the Telephone 

Consumer Protection Act (“TCPA”) under 47 U.S.C. § 227 et seq.

2. Plaintiff was a putative class member of the proposed settlement class in 

Snyder, et al., v. Ocwen Loan Servicing, LLC, No. 1:14-cv-08461, filed October 27, 2014, in 

the United States District Court for the Northern District of Illinois. The suit alleged, 

among other things, violations of the TCPA.

3. Plaintiff, after receiving a postcard notice that he was a putative class 

member, opted out of the proposed settlement before the March 5, 2018 deadline.

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4. In Section 4.2.6 of the proposed Settlement Agreement in Snyder,

Defendant has agreed to provide enhanced damages to any successful Telephone 

Consumer Protection Act (“TCPA”) litigant: “In any individual case commenced 

between the date of the Preliminary Approval Order and a date that is two years from 

the date of Final Approval, if it is found liable for a TCPA violation, Ocwen agrees to 

pay not less than the amounts set forth below for each automated call through its 

Aspect system to a cell phone, where the consent field in Ocwen’s REALServicing 

system should have been ‘N’ or ‘P’ as of the date of the Preliminary Approval Order: 

(a) For the first 10 calls placed to a cell phone as described in this Section 

4.2.6, Ocwen shall pay $1,000 for each such call. 

(b) For 11-50 calls placed to a cell phone as described in this Section 4.2.6, 

Ocwen shall pay $1,250 for each such call. 

(c) For over 50 calls placed to a cell phone as described in this Section 

4.2.6, Ocwen shall pay $1,500 for each such call.”

5. The Settlement Agreement was preliminarily approved on October 5, 

2017. This action follows.

JURISDICTION AND VENUE

6. This action arises under and is brought pursuant to the TCPA. Subject 

matter jurisdiction is conferred upon this Court by 47 U.S.C. § 227, 28 U.S.C. §§ 1331 

and 1337, as the action arises under the laws of the United States. Supplemental 

jurisdiction exists for the state law claims pursuant to 28 U.S.C. § 1367.

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7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 as Defendant 

conducts business in the Southern District of Ohio and a substantial portion of the 

events or omissions giving rise to the claims occurred within the Southern District of 

Ohio.

PARTIES

8. Plaintiff is a natural person residing within the Southern District of Ohio.

9. Plaintiff is the account holder of a cellular telephone number.

10. Defendant is a Limited Liability Company that is licensed to do business 

in Ohio.

11. Defendant acted through its agents, employees, officers, members, 

directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, 

representatives, and insurers at all times relevant to the instant action.

FACTS SUPPORTING CAUSES OF ACTION

12. In 2002, Plaintiff purchased a home in Pike County, Ohio. The home was 

mortgaged to Ivy Mortgage, Inc.

13. Shortly thereafter, pursuant to an agreement between Ivy Mortgage, Inc. 

and Defendant, Defendant began collecting mortgage payments from Plaintiff.

14. In 2007, as a result of the economic crash, Plaintiff fell behind on his 

mortgage payments.

15. At various points, starting around 2009 and continuing into 2015, 

Defendant placed numerous calls to Plaintiff’s personal cell phone.

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16. Plaintiff told Defendant numerous times to stop calling him, yet 

Defendant persisted in placing these calls.

17. Defendant would often call four or more times per week.

18. Defendant would often call as many as three times per day.

19. Defendant sometimes left pre-recorded voicemails for Plaintiff.

20. Defendant called Plaintiff from different numbers, so it was not possible 

for Plaintiff to simply block Defendant’s number.

21. Sometimes, when Plaintiff answered Defendant’s phone calls, Defendant 

would instruct Plaintiff to hold. Defendant would not reveal its identity at the 

beginning of the phone call. Plaintiff would wait for several seconds, and he would 

only then be informed that Defendant was the caller.

22. Defendant’s persistent calls aggravated Plaintiff, who eventually became 

wary of answering his cell phone. Defendant’s course of conduct hindered Plaintiff’s 

peaceful enjoyment of his cell phone.

23. To place some or all of these calls, Defendant used a telephone equipment 

system known as “Aspect.”

24. The company that makes this equipment advertises that its products 

constitute “auto dialer software.”

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COUNT I —UNLAWFUL USE OF AN AUTODIALER UNDER THE TCPA

25. Plaintiff repeats and realleges the above paragraphs as though fully set 

forth herein.

26. The TCPA, pursuant to 47 U.S.C. § 227(b)(1)(iii), prohibits calling persons 

on their cellular phone using an ATDS without their consent. The TCPA, under 47 

U.S.C. § 227(b)(1), defines an ATDS as “equipment which has the capacity ... to store or 

produce telephone numbers to be called, using a random or sequential number 

generator; and to dial such numbers.”

27. Defendant used an ATDS (namely, its “Aspect” system) in connection 

with its communications directed towards Plaintiff’s cellular phone.

28. Defendant violated the TCPA by placing numerous phone calls to 

Plaintiff’s cellular phone using an ATDS without his consent. At no time did Plaintiff 

give prior express consent to Defendant permitting it to contact him via an ATDS. Any

purported consent was specifically revoked by Plaintiff’s demands that Defendant cease 

contacting him.

29. The calls placed by Defendant to Plaintiff were regarding collection 

activity and not for emergency purposes as defined by the TCPA under 47 U.S.C. § 

227(b)(1)(A)(i).

30. Under the TCPA, pursuant to 47 U.S.C. § 227(b)(3)(B), Defendant is liable 

to Plaintiff for at least $500.00 per call.

31. Pursuant to the Settlement Agreement, Defendant has agreed to pay for 

higher amounts as stated above.

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32. Plaintiff further prays for treble damages for willful and knowing 

violations of the TCPA pursuant to 47 U.S.C. § 227(b)(3)(C).

COUNT II —UNLAWFUL PRERECORDED MESSAGES UNDER THE TCPA

33. The TCPA, under 47 U.S.C. § 227(b)(1)(B), makes it unlawful “to initiate 

any telephone call to any residential telephone line using an artificial or prerecorded 

voice to deliver a message without the prior express consent of the called party, unless 

the call is initiated for emergency purposes, is made solely pursuant to the collection of 

a debt owed to or guaranteed by the United States, or is exempted by rule or order by 

the Commission under paragraph (2)(B).”

34. Defendant violated this provision when it made calls to Plaintiff using 

artificial or prerecorded voices.

35. Plaintiff did not at any time provide prior express consent to receive such 

messages.

36. The calls were made to collect an individual debt. Therefore, none of the 

exceptions mentioned in 47 U.S.C. § 227(b)(1)(B) apply.

37. Under the TCPA, pursuant to 47 U.S.C. § 227(b)(3)(B), Defendant is liable 

to Plaintiff for at least $500.00 per call. 

38. Pursuant to the Settlement Agreement, Defendant has agreed to pay for 

higher amounts as stated above.

39. Plaintiff further prays for treble damages for willful and knowing 

violations of the TCPA pursuant to 47 U.S.C. § 227(b)(3)(C).

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COUNT III—INVASION OF PRIVACY

40. Plaintiff restates the above paragraphs as though fully set forth herein.

41. Ohio recognizes a cause of action for invasion of privacy based on 

“wrongful intrusion into one’s private activities in such a manner as to outrage or cause 

mental suffering, shame or humiliation to a person of ordinary sensibilities.” Sustin v. 

Fee, 69 Ohio St.2d 143, 145, 431 N.E.2d 992, 993 (Ohio 1982) (quoting Housh v. Peth, 165 

Ohio St. 35, 133 N.E.2d 340 (Ohio 1956)).

42. Defendant invaded Plaintiff’s privacy and intruded on his solitude and 

seclusion by intentionally and persistently causing his cellular phone to ring and by 

attempting to contact him when he desired to be left alone.

43. Defendant’s pattern of repeatedly calling Plaintiff on a nearly daily basis 

was so outrageous that it would cause shame or humiliation to a person of ordinary 

sensibilities.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter 

judgment in his favor as follows:

a. Awarding Plaintiff damages of at least $500 per violation of the TCPA;

b. Awarding Plaintiff such additional amounts as he may be entitled to 

receive under the Settlement Agreement;

c. Awarding Plaintiff treble damages for knowing or willful TCPA 

violations;

d. Awarding Plaintiff compensatory, noneconomic, and/or punitive 

damages on his invasion of privacy claim to the extent allowed by law;

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e. Awarding Plaintiff costs; and

f. Awarding any other relief as this Honorable Court deems just and 

appropriate.

A TRIAL BY JURY IS DEMANDED.

Dated: March 27, 2018

By: s/ Jonathan Hilton

Jonathan Hilton (0095742)

HILTON PARKER

10400 Blacklick-Eastern Rd NW, Room 214

Pickerington, OH 43147

Tel: (614) 992-2277

Fax: (614) 427-5557

jonathanhiltonlaw@gmail.com

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