Johnstone v. CrossCountry Mortgage: Dialer Records Defeat a Prerecorded Call Class Action on Summary Judgment

The Calls

The lender bought a lead for a different consumer who supposedly wanted to refinance. The lead listed a cell number that actually belonged to the plaintiffs' household. The lender called it twice in March 2022 using a cloud dialer that tries to connect answered calls to a live agent. If no agent is available within two seconds, the call is "abandoned," and the system plays a short recorded message identifying the lender and offering a key press opt-out.

The dialer records showed the first call reached an answering machine after 19 seconds, with an interactive voice response (IVR) path but no talk time and no record of a voicemail. The second call, 15 seconds long, had no IVR path, showed an agent, and was dispositioned "Do Not Call." There were no further calls.

How the Case Narrowed

The original complaint alleged the named plaintiff answered a prerecorded call. Depositions showed her minor daughter was the regular user and answered it. An amended complaint added the daughter. The plaintiffs later sought to add a National Do Not Call Registry claim, but the court denied leave as untimely because they had known of the earlier call for months.

The Answered Call Was Live

The plaintiffs conceded the evidence showed a live agent came on the line for the second call. Summary judgment followed on that call.

The Earlier Call Was Never Pleaded

The amended complaint said only that "[d]iscovery has also revealed a call" on the earlier date. It never alleged that call was prerecorded, and the plaintiffs' depositions and discovery responses identified the later call as the only prerecorded call. Under Davis v. Echo Valley Condominium Ass'n, 945 F.3d 483 (6th Cir. 2019), a plaintiff cannot raise a new claim for the first time in summary judgment briefing.

Possibility Is Not Evidence

The court also rejected the theory on the merits. The plaintiffs argued the lender could not prove a message did not play, pointing to the IVR path and to a 17-second sample abandoned call message that would fit within the 19-second call. The movant need only show an absence of evidence; the burden then shifts to the plaintiff to produce significantly probative evidence. A phone bill the plaintiffs produced listed only the later call. That a message could have played was not enough, and the court questioned why a message used for answered calls would play on a call that reached an answering machine.

No Treble Damages

Even if liability existed, treble damages were unavailable. The lender called because of a lead for someone else, and the plaintiffs offered no evidence it knew it had the wrong number and kept calling.

Practical Points

• Dialer records, including whether an agent answered, talk time, and IVR fields, can be critical. Save them.
• Plead each call and theory specifically, and amend promptly when discovery reveals new calls.
• Wrong number calls based on a lead, stopped after one contact, are a poor fit for willfulness.

Read the Northern District of Ohio memorandum opinion and order.