Hodge v. Travel + Leisure Co.

Background

Vernicky V. Hodge alleged that she purchased timeshare properties from Travel + Leisure Co. between 2018 and 2019 and was required to make regular payments. She alleged that when payments became overdue, Travel + Leisure called her multiple times per day for months, sometimes more than three times per day. She also alleged that the calls continued after she asked the company to stop and that one call came at 6:20 a.m. local time.

Hodge alleged that the calls used artificial or prerecorded messages. According to her second amended complaint, messages identified the speaker as “Sarah from Wyndham Vacation Resorts,” directed her to the same toll-free number, lasted about 26 seconds, and were generic rather than based on her specific information. She also alleged that calls she answered contained identical content.

Hodge originally asserted claims under the Telephone Consumer Protection Act (TCPA) and a California debt-collection law. The court dismissed those claims for failure to state a claim. Hodge then dropped the California claim and replaced it with a claim under the Florida Consumer Collection Practices Act (Florida Act), while renewing her TCPA claim. Travel + Leisure moved to dismiss the second amended complaint under Rules 12(b)(1) and 12(b)(6), arguing that Hodge lacked standing and had not adequately pleaded either claim.

Article III Standing

The court explained that a Rule 12(b)(1) standing challenge can be facial, based only on the complaint’s allegations, or factual, based on evidence. Travel + Leisure made a facial challenge, so the court applied the Rule 12(b)(6) pleading standard.

The court concluded that Hodge’s standing was closely tied to whether she adequately pleaded violations of the two statutes. For the TCPA claim, alleging the statutory violation itself supplied the relevant injury in fact. The court reasoned that the Florida Act claim similarly involved alleged unsolicited calls that could resemble traditional claims for invasion of privacy, intrusion upon seclusion, and nuisance. The court therefore did not address standing separately and treated Hodge’s standing as rising or falling with the sufficiency of her underlying claims.

TCPA Claim

The court held that Hodge plausibly alleged that Travel + Leisure used artificial or prerecorded voices. The uniform messages, including their repeated wording, identical toll-free number, similar length, and lack of individualized information, supported an inference at the pleading stage that the calls were prerecorded rather than made by live humans.

Travel + Leisure argued that Hodge had consented to receive the calls. The court explained that consent is an affirmative defense for which the defendant bears the burden of proof; it is not an element that Hodge had to disprove in her complaint. Because the complaint did not establish consent when construed in Hodge’s favor, the court denied the motion to dismiss the TCPA claim.

Florida Consumer Collection Practices Act Claim

The court first considered whether Hodge improperly added the Florida Act claim. The court had previously granted leave to amend without expressly limiting the amendment. It also found little apparent prejudice because the case was at an early stage and the Florida Act claim arose from the same underlying events as the TCPA claim. The court therefore proceeded to consider the Florida claim.

Travel + Leisure argued that the Florida Act applies only to “debt collectors” and that Hodge had not alleged that Travel + Leisure met that description. The court rejected the argument. It reasoned that the Florida Act applies to any “person” collecting debts, unlike the federal Fair Debt Collection Practices Act, which expressly limits certain collection restrictions to debt collectors. Applying Florida law, the court concluded that Hodge’s failure to plead that Travel + Leisure was a debt collector did not require dismissal.

Travel + Leisure also argued that Hodge had not alleged harassment. The court considered Hodge’s allegations that she received multiple calls per day for months, sometimes more than three per day, and that Travel + Leisure continued calling after she asked it to stop. The court found these allegations sufficient at the pleading stage to support an inference of harassment. It noted that whether conduct is harassing or abusive is ordinarily a factfinder’s question. The court denied the motion to dismiss the Florida Act claim.

Disposition

The court denied the motion to dismiss. The order did not dismiss either Hodge’s TCPA claim or her Florida Act claim.