In Geismar v. Owen Loan Servicing, LLC., 2018 WL 276813, at *4 (N.D.Cal., 2018), Judge Corely tired of waiting for the DC Circuit to issue its decision in the ACA Int’l proceedings and lifted a stay, but granted a lender’s motion to dismiss a common law negligence claim that was filed as corollary to a TCPA claim.
The Court recognizes that some California federal district courts have held that an entity such as Defendant owes consumers such as Plaintiff a duty of care when making telephone calls to collect financial obligations related to a primary residence mortgage. See, e.g., Brandt v. Ocwen Loan Servicing, LLC, No. 17-00643DAD EPG, 2017 WL 5878581, at *10 (E.D. Cal. Nov. 29, 2017) (finding a duty of care and collecting cases re: the same). These cases, however, do not explain how the defendant’s telephone collection conduct—as outrageous as it may be—involves actively participating in the financed enterprise. And they do not cite any California state court cases that held a duty arose under similar circumstances.