LoanDepot Motion to Dismiss ‘Must Be Denied in Its Entirety’: Plaintiff

Defendant loanDepot “blatantly ignores” the FCC’s “rulemaking power and the binding nature of FCC orders and regulations” when it moves to dismiss plaintiff Zachary Sawicki’s Telephone Consumer Protection Act first amended complaint (see 2302270042), said Sawicki's response in opposition Friday (docket 2:22-cv-14425) in U.S. District Court for Southern Florida in Fort Pierce. LoanDepot also “blatantly ignores the face” of Sawicki’s complaint, “and unwittingly takes conflicting positions in a futile effort to fit a square peg in a round hole,” it said. The motion to dismiss “is without merit and must be denied in its entirety,” it said. The facts that gave rise to Sawicki’s TCPA claims “are as simple as they come,” it said. LoanDepot began placing “voluminous solicitation calls” to Sawicki’s cellphone number in November, and continued “pounding” the number even after he asked the company to stop, it said. On loanDepot’s contention that Sawicki’s do not call claim must fail because Sawicki didn’t specifically allege he personally registered his number on the national DNC registry. Its “splitting-hairs argument must fail,” said the opposition. Sawicki’s allegation his number was registered on the DNC registry “is objectively sufficient to sustain his DNC claim” because the court “must construe all reasonable inferences” in the plaintiff’s favor, it said. “Here, the only logical and reasonable inference that can be drawn” is that Sawicki himself registered his number on the DNC registry, it said. Inferring that a third party registered Sawicki’s number on the DNC registry “would be an unreasonable inference” construed in the defendant’s favor, it said.