The GFBPA does not apply to areas of the consumer marketplace that have been regulated. Plaintiff’s Complaint alleges that Synchrony made telephone calls to Plaintiff, an area of consumer law that is already regulated by the Federal Communications Commission. Further, making telephone calls without any misrepresentations do not involve deception or unfair practices as do the extensive list of examples set forth in the statute.
Plaintiff’s other two counts are dependent on her ability to maintain the first three counts. As those claims should be dismissed, her causes of action for attorneys’ fees and damages for deceptive or unfair business practices towards the elderly cannot stand. Case 5:20-cv-00061-MTT Document 4 Filed 06/01/20 Page 7 of 26

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    Furthermore, Plaintiff demonstrates laches in alleging that she withdrew consent January 1, 2014 but waited over six years without taking any actions or submitting any complaints. Many of the purported calls would have taken place beyond the statute of limitations and are not actionable even if the TCPA claim were allowed to proceed.
    For all of these reasons, as more fully explained below, the Court should dismiss the Complaint in its entirety. In the event any claim is not dismissed, its scope should be limited to calls made within the applicable statute of limitations.1
    Though not specifically alleged in the Complaint, it is evident by the facts set forth therein that prior to January 1, 2014, Plaintiff had entered into debtor creditor relationship with Synchrony and fallen into default on that credit card. See Compl. ¶¶ 13, 17, 92, 98. It is further implied that prior to January 1, 2014, Plaintiff had provided her cellular phone number to Synchrony as a means of contacting her and consented to receive telephone calls from Synchrony on her cellular phone. Compl. ¶ 15 (alleging that on that date she purportedly revoked her consent). It is inherent
    1 Filing a motion under Rule 12 “has the effect of delaying the time within which a party must file an answer to the complaint.” H. C. Duke & Son, LLC v. Prism Mktg. Corp., No. 11-4006, 2011 U.S. Dist. LEXIS 126741, at *2-3 (C.D. Ill. Nov. 2, 2011); see Oil Express Nat’l v. D’Alessandro, 173 F.R.D. 219, 221 (N.D. Ill. 1997) (“a partial motion to dismiss allows for altering the limits of Fed. R. Civ. P. 12(a) with respect to answering those claims not addressed in Defendants’ motion”). Case 5:20-cv-00061-MTT Document 4 Filed 06/01/20 Page 8 of 26
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    that any debt between Plaintiff and Synchrony would be subject to the cardholder’s agreement, a document that Plaintiff does not reference and does not attach but governs the agreement between the parties.
    Plaintiff alleges that on January 1, 2014, while Plaintiff owed a debt to Synchrony, Synchrony placed a call to Plaintiff’s cellular phone, whose number ended in -5179 (the “Subject Phone”). Compl. ¶ 13. Plaintiff alleges that she answered the January 1, 2014 call, that a Synchrony representative advised that they were attempting to collect on a Synchrony account, and that Plaintiff responded by demanding that Synchrony stop calling the Subject Phone.2 See Id. at ¶¶ 15-16. Plaintiff states that the following month, Synchrony started to call Plaintiff to collect the next overdue payment and at that time she advised she would make a payment and requested they stop calling. Id. ¶¶ 20, 22. Plaintiff alleges that Synchrony continued to call her for years. Id. ¶ 26. She further alleges that these calls were made during the three days that her payment was late every month. Id. ¶¶ 18-26, 28. The Complaint lacks any specific allegations that Plaintiff took any action since January 1, 2014 to notify Synchrony that she continued to receive calls after requesting that calls stop, such as telephoning Synchrony, submitting a complaint, requesting to speak to a supervisor, or notifying Synchrony in writing.




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