Katz v. Main Street Acquisition Corp. et al

Filing 28

ORDER granting 16 Motion for Summary Judgment: Defendants are entitled to judgment as a matter of law, and their motion for summary judgment is GRANTED. The Clerk shall close the file. Signed by Judge Janis L. Sammartino on 4/26/12. (All non-registered users served via U.S. Mail Service)(lmt)

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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 15 ELIZABETH H. KATZ, pro se, 16 CASE NO. 11-CV-1838 JLS (NLS) Plaintiff, ORDER: GRANTING MOTION FOR SUMMARY JUDGMENT vs. 17 (ECF No. 16) 18 19 20 MAIN STREET ACQUISITION CORP., GORDON & WONG LAW GROUP, AMY LOUISE GORDON, MITCHELL LEWIS WONG, ANDREW ARNOLD FORD, STEVE STEWART, AND DOES 1-10, 21 Defendants. 22 Presently before the Court is Defendants’ motion for summary judgment. (MSJ, ECF 23 24 No. 16.) Plaintiff Elizabeth H. Katz, proceeding pro se, opposes the motion (Opp’n, ECF No. 24), 25 and Defendants have replied (Reply, ECF No. 25). Having considered the parties’ arguments and 26 the law, the Court GRANTS Defendants’ motion for summary judgment. 27 // 28 // -1- 11cv1838 1 BACKGROUND 2 Plaintiff filed the underlying Complaint in this Court on August 17, 2011, alleging 3 violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692e(2), e(10), and 4 f(1), by all Defendants. (Compl., ECF No. 1.) Plaintiff states she sent Defendants a “validation 5 letter” after receiving notice of a debt collection lawsuit filed against her in San Diego Superior 6 Court, but she never received a letter from Defendants in response. (Compl. 2.) She now brings 7 this action under the FDCPA, claiming Defendants falsely represented the character, amount, or 8 legal status of her debt, used false representation or deceptive means to collect or attempt to collect 9 a debt, and collected or attempted to collect an amount not authorized by law or agreement. 10 Defendants answered, and subsequently brought the instant motion for summary judgment. 11 In it, Defendants provide more background facts, which Plaintiff has not contested, except to say 12 there is “no proof.” (Opp’n 2.) Defendants state that Wells Fargo sold Plaintiff’s credit card debt 13 of approximately $3,223.71 to Defendant Main Street Acquisition Corporation (“Main Street”) at 14 some point in 2010. (MSJ 1, Ex. B.) On December 6, 2010, Main Street retained Defendant 15 Gordon & Wong Law Group (“G&W”) to assist in collecting the debt. Defendants Gordon, 16 Wong, and Ford are attorneys at G&W, and Defendant Stewart is President of Main Street. 17 According to Defendants, G&W sent an initial demand letter to Plaintiff on December 9, 18 2010, advising her of her right to dispute the debt. (MSJ 2, Ex. B.) The letter was not returned as 19 undeliverable, but Plaintiff never replied. (MSJ 2.) Plaintiff states she received no written 20 communication from any Defendant prior to April 11, 2011. (Compl. ¶ 12.) G&W then made 21 “several unsuccessful attempts” to reach Plaintiff by mail and phone. (MSJ 2.) On April 11, 2011, 22 G&W filed suit against Plaintiff in state court to collect the debt. Plaintiff was served with the 23 summons and complaint in that case on or around April 18, 2011. (Id.) 24 In a letter dated May 1, 2011, Plaintiff sent G&W a “request for VALIDATION” in 25 response to a “notice sent to [Plaintiff] on April 20, 2011,” citing § 1692g of the FDCPA. (MSJ 26 Ex. C.) The letter states: “I respectfully request that your offices provide me with competent 27 // 28 // -2- 11cv1838 1 evidence that I have any legal obligation to pay you,” and demands several specific pieces of 2 information and documentation.1 (Id.) 3 Although Defendants allege G&W had no legal requirement to respond to Plaintiff’s 4 May 1, 2011 letter because the validation request was outside the 30-day validation period 5 mandated by the FDCPA, G&W apparently sent a response anyway on May 16, 2011. (MSJ 2.) 6 According to Defendants, this letter provided verification of Plaintiff’s debt, stating: “Pursuant to 7 your request we have verified with our client that you are the correct debtor in regard to this 8 matter, further their records show that the balance is due and owing. . . . At this time we are not 9 required to send additional information.” (MSJ Ex. D.) Plaintiff asserts she never received any 10 such letter from Defendants in response to her request. (Compl. ¶ 14.) She subsequently brought 11 this action, and Defendants now move for summary judgment. The Court took the matter under 12 submission without oral argument pursuant to Civil Local Rule 7.1.d.1. 13 14 LEGAL STANDARD 1. Summary Judgment 15 Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where (1) 16 the moving party demonstrates the absence of a genuine issue of material fact and (2) the moving 17 party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 18 (1986). “Material,” for purposes of Rule 56, means that the fact, under governing substantive law, 19 could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 20 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). For a dispute to be “genuine,” a reasonable 21 jury must be able to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. 22 The initial burden of establishing the absence of a genuine issue of material fact falls on the 23 moving party. Celotex, 477 U.S. at 323. The movant can carry his burden in two ways: (1) by 24 presenting evidence that negates an essential element of the nonmoving party’s case; or (2) by 25 26 27 28 1 Plaintiff’s letter requests G&W provide her with the following: “What the money you say I owe is for; Explain and show me how you calculated what you say I owe; Provide me with copies of any papers that show I agreed to pay what you say I owe; Provide a verification or copy of any judgment if applicable; Identify the original creditor; Prove the Statute of Limitations has not expired on this account; Show me that you are licensed to collect in my state; Provide me with your license numbers and Registered Agent.” (MSJ, Ex. C.) -3- 11cv1838 1 demonstrating that the nonmoving party “failed to make a sufficient showing on an essential 2 element of her case with respect to which she has the burden of proof.” Id. at 322-23. “Disputes 3 over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. 4 Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 5 Once the moving party establishes the absence of genuine issues of material fact, the 6 burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed 7 fact remains. Celotex, 477 U.S. at 324. The nonmoving party cannot oppose a properly supported 8 summary judgment motion by “rest[ing] on mere allegations or denials of his pleadings.” 9 Anderson, 477 U.S. at 256. When ruling on a summary judgment motion, the court must view all 10 inferences drawn from the underlying facts in the light most favorable to the nonmoving party. 11 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 12 2. The FDCPA 13 “[T]he purpose of the FDCPA is to protect consumers broadly from improper practices and 14 the statute is to be interpreted liberally for this purpose.” Riley v. Giguiere, 631 F. Supp. 2d 1295, 15 1305 (E.D. Cal. 2009) (citing Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 16 1171, 1175 (9th Cir. 2006)). It is a strict liability statute that “makes debt collectors liable for 17 violations that are not knowing or intentional.” Donohue v. Quick Collect, Inc., 592 F.3d 1027, 18 1030 (9th Cir. 2010) (internal quotation and citation omitted). Proof of actual damages is not 19 required for recovery under the FDCPA. Keele v. Wexler, 149 F.3d 589, 593 (7th Cir. 1998). 20 21 ANALYSIS Defendants argue that summary judgment is proper because the dearth of evidence offered 22 by Plaintiff fails to satisfy her burden on essential elements of her claims. (MSJ 3.) The Court 23 agrees. Although Defendants have presented evidence of compliance, Plaintiff has not provided 24 any evidence to create a genuine issue of material fact whether Defendants made false, misleading, 25 or deceptive statements or used unfair or unconscionable means of debt collection. Plaintiff 26 cannot merely rest upon denials. Anderson, 477 U.S. at 256. Having failed to make a sufficient 27 showing on any of her claims, the Court concludes that a rational trier of fact could not find for 28 Plaintiff. -4- 11cv1838 1 Here, the Complaint asserts each Defendant violated §§ 1692e2 and 1692f3 of the FDCPA, 2 which address misrepresentation in the attempt to collect a debt and in the amount of that debt. In 3 so doing, the Complaint merely parrots language from the statute without explanation or factual 4 support. The Court agrees with Defendants that the Complaint fails to allege what Defendants 5 communicated to her that was either false or misleading, nor does she identify any facts indicating 6 Defendants attempted to collect an amount she did not owe. (See MSJ 9.) But, in an effort to 7 liberally construe a pro se plaintiff’s pleadings and to attempt to understand the basis for her 8 claims, the Court reads her Complaint in conjunction with the arguments presented in her 9 Opposition to the Motion for Summary Judgment and her supporting affidavit. From these 10 documents, it seems that Plaintiff’s allegations of misrepresentation and deception in debt 11 collection efforts arise out of Defendants’ filing a debt collection action against her in state court, 12 and subsequently failing to prove they have the statutory or contractual authority to collect on the 13 amount at issue in response to her letter.4 (Opp’n ¶ 17–22; Pl.’s Aff. ¶¶ 4–9, ECF No. 24.) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The relevant portions of this section state: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. . . . The following conduct is a violation of this section: . . . (2) The false representation of-- (A) the character, amount, or legal status of any debt; . . . (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. 15 U.S.C. § 1692e(2), (10). 3 The relevant portions of this section state: A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. . . . the following conduct is a violation of this section: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. 15 U.S.C. § 1692f(1). 4 In both her Complaint and her Opposition, Plaintiff focuses entirely on claims under 1692e and 1692f. Out of an apparent abundance of caution, Defendants raised for her, and then rejected, any potential claim under 1692g regarding initial notice of debt collection under the FDCPA. (MSJ 5-8.) In response, Plaintiff again mentioned only 1692e and 1692f, and ignored any implication that she might have raised a 1692g claim. (See Opp’n 2.) Therefore, the Court finds that the 1692g claim made by Defendants on Plaintiff’s behalf is not properly before the Court. And even if it were, Defendants have set forth evidence to establish that they complied with 1692g in the Gordon Declaration and accompanying business records. And, again, Plaintiff rests on mere denials by stating -5- 11cv1838 1 However, even thus construing Plaintiff’s allegations as liberally as possible, she still 2 provides no evidence to support her claims, instead merely repeating in her Opposition and 3 Affidavit that Defendants have not proven the debt is valid.5 (Opp’n ¶¶ 7–13; Pl.’s Aff. ¶¶ 4–9.) 4 But Plaintiff has not cited to any authority, statutory or otherwise, requiring them to do so in this 5 forum or in the manner she demands. The portions of the FDCPA to which she cites articulate 6 causes of action for the false representation of a debt in collection efforts or the attempt to collect 7 on a debt not authorized by law. Merely asserting that she has not received proof of Defendants’ 8 valid ownership of the debt does not establish Defendants ever falsely represented the debt or that 9 their collections efforts have been unauthorized. The Court is mindful of its duty to view all 10 inferences in the light most favorable to Plaintiff. But by resting on mere denials as she has, and 11 failing to support her claims legally or factually, there is nothing from which the Court may infer 12 support for Plaintiff’s claims. Indeed, Plaintiff has not even stated in unsupported allegations that 13 the debt is not hers or that she was sued for an improper amount. (See MSJ 10.) 14 Plaintiff’s objection to the Declaration of Defendant Amy Gordon (“Gordon Declaration”) 15 also fails to create a genuine issue of material fact. The Gordon Declaration sets forth information 16 based on personal knowledge, identifying Exhibit A as regularly kept business records. (Decl. 17 ¶¶ 1–3.) As such, the Gordon Declaration is admissible for the purposes of summary judgment 18 under Federal Rule of Civil Procedure 56, which requires “[a] party asserting that a fact cannot be 19 or is genuinely disputed [to] support the assertion by. . . affidavits or declarations,” where the 20 affidavits or declarations are “made on personal knowledge, set out facts that would be admissible 21 in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” 22 Fed. R. Civ. P. 56(c)(1)(A), (4). Further, the business records to which the Gordon Declaration 23 refers would be admissible at trial. See Fed. R. Evid. 803(6). And even without looking to the 24 25 26 27 28 that she never received a letter. (Pl.’s Aff. ¶ 1,) 15 U.S.C. § 1692g only requires that a letter be sent, not received. Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 1201 (9th Cir. 1999). 5 Plaintiff may be confusing the applicable burdens in this action with those in the debt collection filed earlier by Defendants in state court. (See Reply 4.) In the instant case, Plaintiff has the burden to prove her asserted FDCPA violations. And in opposing Defendants’ motion for summary judgment, she has the duty to present facts creating a genuine issue of material fact as to those claims. See Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir. 2006). She will have ample opportunity to argue the invalidity of the debt in the concurrent state court action. -6- 11cv1838 1 Gordon Declaration or the attached business records, the Court would be forced to the same 2 conclusion regarding Plaintiff’s utter lack of support for her claims. 3 4 CONCLUSION Defendants have demonstrated Plaintiff’s failure to make a sufficient showing that 5 Defendants made a false or misleading statement, essential to her claims under § 1692e, or that 6 they attempted to collect any amounts not authorized under the terms of the debt or permitted by 7 law, essential to her claim under § 1692f. Plaintiff’s continued assertions that Defendants have not 8 proven the validity of the debt can at best be characterized as mere denials, and do not establish 9 the existence of a genuine issue of fact on these essential elements of her claims. Accordingly, 10 Defendants are entitled to judgment as a matter of law, and their motion for summary judgment is 11 GRANTED. The Clerk shall close the file. 12 IT IS SO ORDERED. 13 14 15 16 DATED: April 26, 2012 Honorable Janis L. Sammartino United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -7- 11cv1838

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