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Barton v. Credit One Financial

United States District Court, N.D. Ohio, Eastern Division

April 27, 2018




         This matter comes before the Court on a Motion for Summary Judgment filed by Defendant, Credit One Bank ("Credit One"). (ECF #36). Plaintiff, Carlton Barton, Jr., ("Mr. Barton"), filed a Response to Defendant's Motion for Summary Judgment, (ECF #47) and Credit One filed a Reply in Support of its Motion for Summary Judgment. (ECF #48). Therefore, the issues are fully briefed and ripe for review.

         For the reasons set forth herein, Credit One's Motion for Summary Judgment is GRANTED.

         I. Factual and Procedural Background[1]

         Mr. Barton filed a lawsuit alleging that Credit One violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seg. ("TCPA"), when it called his cell phone after he opened a credit card account with Credit One. (ECF #1, Ex. A).[2] The parties agree that on May 4, 2016, Mr. Barton completed an online application requesting a credit card account with Credit One.[3] The parties also agree that as part of the application, Mr. Barton provided his cell phone number as his primary and only contact number, as well as his home address in Richmond Heights, Ohio. (See ECF #41-1, ¶8, Affidavit of Jeffrey Meek, Vice President of Portfolio Services at Credit One Bank; ECF #47, p. 4). As a condition to obtaining the credit card, Mr. Barton agreed to the terms of the Visa/Mastercard Cardholder Agreement, Disclosure Statement and Arbitration Agreement ("Cardholder Agreement"), which provides in pertinent part: "by requesting and receiving, signing or using your Card, you agree [to the terms of the Cardholder Agreement]." (See ECF #36, p. 4). The Cardholder Agreement also provides that:

"[y]ou are providing express written permission authorizing Credit One Bank or its agents to contact you at any phone number (including mobile cellular/wireless, or similar devices) or email address you provide at any time, for any lawful purpose. The ways in which we may contact you include live operator, automatic telephone dialing systems (auto-dialer), prerecorded message, text message or email."


         Mr. Barton received his credit card at his home address in Richmond Heights, Ohio, and activated it via telephone according to the instructions on the face of the credit card. (ECF #47, pp. 4-5). Mr. Barton indicates that he "received documents in the mail" at his residence sometime after activating the card, which Credit One states was the Cardholder Agreement. (See ECF #47, p. 5; ECF #36, p. 4). Mr. Barton admits that he subsequently made purchases with this credit card. (See ECF #20, Ex. 4, Plaintiffs Responses to Request for Admissions).

         Mr. Barton alleges that sometime in July of 2016, Credit One "embarked on a harassing collection campaign, '* to inquire about an outstanding balance owed. (ECF #47, p. 5). Mr. Barton states that "[a]t this time plaintiff revoked any prior consent he may have given [Credit One] to call him by telling defendants representative not to call him anymore." Id. On September 29, 2016, Credit One received correspondence from Mr. Barton's counsel revoking Mr. Barton's prior express consent to be contacted regarding the Credit Card account. (See ECF #41-1, ¶ 12). Credit One placed a cease and desist flag on Mr. Barton's account and did not contact him after September 29, 2016. (Id. at ¶¶ 14).

         Credit One filed its Motion for Summary Judgment, arguing that it did not violate the TCPA when it contacted Mr. Barton (ECF #36). Mr. Barton filed a Response Brief, (ECF #47), and Credit One filed a Reply Brief (ECF #48). This matter is fully briefed and ready for decision.

         II. Standard of Review

         The summary judgment standard is well-settled. Summary judgment is proper where '4the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nat 7 Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir.2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S.317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. (Id. at 322). A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd, 244 F.3d 797, 800 (6th Cir.2000). This Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248-49; Nat'l Satellite Sports, 253 F.3d at 907. If the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. If this Court concludes that a fair-minded jury could not return a verdict in favor of the non-moving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

         The party opposing a Rule 56 motion may not simply rest on the mere allegations or denials contained in the party's pleadings. Anderson, 477 U.S. at 256. Instead, an opposing party must affirmatively present competent evidence sufficient to establish a genuine issue of material fact necessitating the trial of that issue. (Id.) Merely alleging that a factual dispute exists cannot defeat a properly supported motion for summary judgment. (Id.) A genuine issue for trial is not ...

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