Miran v. Convergent Outsourcing, Inc.,
Filing
24
ORDER denying 16 Motion for Partial Summary Judgment; granting 17 Motion for Judgment on the Pleadings. Plaintiff's motion for partial summary judgment is DENIED and Convergent's motion for judgment on the pleadings is GRANTED. Plaint iff must file an amended complaint within thirty (30) days of and in accordance with this Order. Convergent will then have thirty (30) days from the filing of the amended complaint to answer or otherwise respond. If Plaintiff fails to amend within the time provided, the Court will enter a dismissal with prejudice of this action. Signed by Judge Anthony J. Battaglia on 12/13/2016. (acc)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
DARA MIRAN, individually and on
behalf of others similarly situated,
15
16
(1) ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL
SUMMARY JUDGMENT; AND
(DOC. NO. 16)
Plaintiff,
13
14
Case No.: 16-CV-0692-AJB-(JMA)
v.
CONVERGENT OUTSOURCING INC.,
Defendant.
(2) ORDER GRANTING
DEFENDANT’S MOTION FOR
JUDGMENT ON THE PLEADINGS
(DOC. NO. 17)
17
18
19
20
Presently before the Court are two motions, Dara Miran’s (“Plaintiff”) motion for
21
partial summary judgment, (Doc. No. 16), and Defendant Convergent Outsourcing Inc.’s
22
(“Convergent”) motion for judgment on the pleadings. (Doc. No. 17.) Upon review of the
23
24
25
motions, oppositions, and replies, the Court finds these motions suitable for determination
on the papers and without oral argument pursuant to Local Rule 7.1.d.1. Accordingly, the
motion hearing set for December 15, 2016 at 2:00 PM in Courtroom 3B is vacated. As set
26
forth more fully below, the Court DENIES Plaintiff’s motion for partial summary
27
judgment and GRANTS Convergent’s motion for judgment on the pleadings.
28
1
16-CV-0692-AJB-(JMA)
1
I.
BACKGROUND
2
This dispute centers on Convergent’s attempt to collect a debt. On January 14, 2016,
3
Plaintiff received a collection notice from Convergent. (Doc. No. 1 ¶ 17.) The letter stated
4
that Plaintiff owed a past due balance of $9,679.23 to Galaxy Asset Purchasing, LLC. (Id.)
5
The letter offered Plaintiff three different settlement options: “(a) Lump Sum Settlement
6
Offer of 15%; (b) 70% off balance by making three monthly payments of $967.92; or (c)
7
twelve monthly payments of $806.60 per month.” (subsequently referred to as “the Offer
8
letter”) (Id. ¶ 19.) On the reverse page at the bottom, the Offer letter also states that: “The
9
law limits how long you can be sued on a debt. Because of the age of your debt, we will
10
not sue you for it, and we will not report it to any credit reporting agency.” (Id. ¶ 20.)
11
Plaintiff alleges that acceptance of any of these offers would produce a novation, which
12
would create a new statute of limitations on the alleged debt. (Id. ¶ 21.) As a result, Plaintiff
13
claims that Convergent’s statement that it would not sue is misleading as a consumer would
14
believe it could accept any of the offers without any fear of legal repercussions when in
15
fact Convergent could sue upon the new contract established by the novation. (Id. ¶¶ 21,
16
41.)
17
On March 22, 2016, Plaintiff instituted this action on his behalf, and on behalf of all
18
others similarly situated. (Doc. No. 1 at 1.) Plaintiff claims Convergent violated Sections
19
1692e, 1692e(2)(a), and 1692e(10) of the Federal Fair Debt Collection Practices Act
20
(“FDCPA”) and California Civil Code Section 1788.17, also known as the Rosenthal Act
21
(“Rosenthal Act”). (Id. ¶¶ 41, 44.) Plaintiff requests statutory damages, reasonable
22
attorney’s fees, and costs of litigation. (Id. at 11-12.)1
23
II.
24
LEGAL STANDARD
A.
25
Summary Judgment
Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) if the
26
27
1
28
Page numbers are in reference to the automatically generated CM/ECF page numbers and not the
numbers listed on the original document.
2
16-CV-0692-AJB-(JMA)
1
moving party demonstrates the absence of a genuine issue of material fact and entitlement
2
to judgment as a matter of law. Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). Any
3
party to an action, whether plaintiff or defendant, “may move” the court “for summary
4
judgment” in his favor on a cause of action or defense. Aguilar v. Atlantic Richfield Co.,
5
25 Cal. 4th 826, 855 (2001). The court must grant the motion “if all papers submitted”
6
show that “there is no triable issue as to any material fact” and that the “moving party is
7
entitled to judgment as a matter of law.” Id. In ruling on the motion, the court must strictly
8
construe the evidence of the moving parties and liberally construe that of the opponents,
9
and any doubts as to the “propriety of granting the motion should be resolved in favor of
10
the party opposing the motion.” Branco v. Kearny Moto Park, Inc., 37 Cal. App. 4th 184,
11
189 (1995).
12
The moving party can satisfy the burden of establishing the absence of a genuine
13
issue of material fact in two ways: (1) by presenting evidence that negates an essential
14
element of the nonmoving party’s case; or (2) by demonstrating the nonmoving party failed
15
to establish an essential element of the nonmoving party’s case on which the nonmoving
16
party bears the burden of proving at trial. See Celotex Corp., 477 U.S. at 330.
17
Once the moving party establishes the absence of a genuine issue of material fact, the
18
burden shifts to the nonmoving party to set forth facts showing a genuine issue of a disputed
19
fact remains. Id.
20
B.
Judgment on the Pleadings
21
A motion for judgment on the pleadings, like a general demurrer, challenges the
22
sufficiency of a plaintiff’s cause of action. Tiffany v. Sierra Sands Unified School Dist.,
23
103 Cal. App. 3d 218, 224 (1980). Thus, a judgment on the pleadings “attacks only defects
24
disclosed on the face of the pleadings or by matters that can be judicially noticed.” Cloud
25
v. Northrop Grumman Corp., 67 Cal. App. 4th 995, 999 (1998). Such a motion raises a
26
legal, not a factual issue, Hosp. Council of Northern Cal. v. Superior Court, 30 Cal. App.
27
3d 331, 337–338 (1973), and that issue is simply whether the complaint states a cause of
28
action. Goodley v. Wank and Wank, Inc., 62 Cal. App. 3d 389, 392–93 (1976). The court
3
16-CV-0692-AJB-(JMA)
1
accepts as true the complaint’s factual allegations and gives them a liberal construction.
2
Gerawan Farming Inc. v. Lyons, 24 Cal. 4th 468, 515–516 (2000).
3
III.
DISCUSSION
4
Plaintiff seeks partial summary judgment as to Convergent’s liability under 15
5
U.S.C. sections 1692e, 1692e(10), and 1692e(2)(A) of the FDCPA. (Doc. No. 16-1 at 8.)
6
In contrast, Convergent requests judgment on the pleading in its favor as it claims that
7
acceptance of any settlement offers would not create a novation. (Doc. No. 17-1 at 5.) Thus,
8
Plaintiff’s claims fail as a matter of law. (Id.)
9
A.
Plaintiff’s Motion for Partial Summary Judgment
10
Plaintiff contends that Convergent violated the FDCPA because Convergent claimed
11
it would not sue Plaintiff while also failing to disclose that accepting any of the settlement
12
offers would create a novation with a new statute of limitations. (Doc. No. 1 ¶ 41.) Thus,
13
Convergent would be able to file suit in the event Plaintiff defaulted on the new agreement.
14
(Id.)
15
The purpose of the FDCPA is to “eliminate abusive debt collection practices by debt
16
collectors, to insure that those debt collectors who refrain from using abusive debt
17
collection practices are not competitively disadvantaged, and to promote consistent State
18
action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692e.
19
20
Plaintiff’s claims fall under 15 U.S.C. sections 1692e, 1692e(2)(A), and 1692e(10)
of the FDCPA. Those sections provide that:
21
(e) A debt collector may not use any false, deceptive, or
22
misleading representation or means in connection with the
23
collection of any debt. Without limiting the general application
24
of the foregoing, the following conduct is a violation of this
25
section:
26
...
27
(2)(A) The false representation of – the character, amount, or
28
legal status of any debt; or
4
16-CV-0692-AJB-(JMA)
1
...
2
(10) The use of any false representation or deceptive means to
3
collect or attempt to collect a debt or obtain information
4
concerning a consumer.
5
15 U.S.C. § 1692e.
6
“When alleging a claim under the FDCPA, a plaintiff must establish that (1) the
7
plaintiff is a consumer, as defined by the FDCPA; (2) the debt arises out of a transaction
8
primarily for personal, family or household purposes; (3) the defendant is a debt collector,
9
as that phrase is defined by the FDCPA; and (4) the defendant violated a provision of the
10
Act.” Heritage Pacific Fin., LLC v. Monroy, 215 Cal. App. 4th 972, 997 (2013). The parties
11
do not dispute establishment of the first three elements. (Doc. No. 16-1 at 14.) As such, the
12
Court will now turn to the parties’ arguments in support and opposition of whether
13
Convergent’s Offer letter violates a provision of the FDCPA.
14
1.
15
Plaintiff’s Acceptance of One of Convergent’s Settlement Offers Does
Not Create a Novation
16
In the instant action, Plaintiff seeks partial summary judgment on his claims under
17
the FDCPA and the Rosenthal Act for two reasons: (1) it violates 15 U.S.C. sections 1692e,
18
1692e(2)(a), and 1692e(10) because Convergent failed to disclose that acceptance of any
19
of the settlement offers would create a new agreement with a new statute of limitations;
20
and (2) that Convergent solicited Plaintiff to accept one of its settlement offers in writing
21
but failed to disclose that if any of the offers were accepted or acknowledged in writing
22
that a new obligation would be created under California Civil Procedure section 360.2 (Doc.
23
24
25
26
27
28
2
Convergent argues that Plaintiff has waived this theory because it is not alleged in his complaint, and
new legal theories may not be raised for the first time on summary judgment. (Doc. No. 19 at 16.) In
response, Plaintiff concedes that section 360 was not alleged in his complaint. (Doc. No. 21 at 12.)
However, Plaintiff avers that he should not be prevented from raising this theory on a motion for
summary judgment as it is not considered a new claim. (Id.) The Court agrees with Convergent and will
thus not address this argument in its Order. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th
Cir. 1986) (declining to consider summary judgment issue that was not “specifically and distinctly
argued” in initial brief). Additionally, the Court notes that section 360 does not speak specifically to
5
16-CV-0692-AJB-(JMA)
1
No. 16-1 at 8-9.)
2
A “novation is the substitution of a new obligation for an existing one.” Wells Fargo
3
v. Bank of Am., 32 Cal. App. 4th 424, 431 (1995) (quoting Cal. Civ. Code § 1530.) An
4
essential element is the agreement of all parties to the new contract. Duncanson- Harrelson
5
Co. v. Travelers Indem. Co., 209 Cal. App. 2d 62, 69 (1962). In addition, in deciding
6
whether an agreement was meant to extinguish the old obligation and to substitute a new
7
one, California courts seek to determine the parties’ intent. See e.g., Alexander v. Angel,
8
37 Cal. 2d 856, 860 (1951). Under California law, the party attempting to prove novation
9
must satisfy “four essential requisites: (1) a previous valid obligation; (2) the agreement of
10
all the parties to the new contract; (3) the extinguishment of the old contract; and (4)
11
validity of the new one.” Young v. Benton, 21 Cal. App. 382, 384 (1913).
12
Plaintiff contends that a novation would occur if Plaintiff were to accept any of the
13
settlement offers from Convergent. (Doc. No. 16-1 at 17.) In support of this argument,
14
Plaintiff avers that the acceptance of the obligation to make a payment through any of the
15
settlement offers would substitute a new obligation for the existing one. (Id. at 18.) Plaintiff
16
further specifies that Convergent’s intention to release the debtor on his original obligation
17
was “clear” as the Offer letter indicated that if the payment of the new amount was
18
received, Convergent would consider the original debt paid in full. (Id.)
19
In opposition, Convergent argues that Plaintiff’s contention that he would have been
20
“tricked” into entering a new legally enforceable contract precludes the finding of mutual
21
assent. (Doc. No. 19 at 14.) Thus, under the basic precepts of contract law, no contract
22
formation occurred. (Id.) Moreover, Convergent argues that the Consumer Financial
23
Protection Bureau (“CFPB”) has determined that disclosure regarding restarting statute of
24
limitations would confuse customers, that the sixth circuit has held that the statute of
25
limitations disclosure in the Offer letter is a safe harbor from lawsuit, and that if a novation
26
27
28
novation and even if it did, injecting this argument at this late stage without leave to amend is
inappropriate.
6
16-CV-0692-AJB-(JMA)
1
were to occur that the promise not to sue Plaintiff would be included as well as apply to
2
hypothetical subsequent purchasers of the debt. (Id. at 9-16.)3
3
Based upon the pleadings and allegations presented by both parties, the Court finds
4
that Plaintiff has not satisfied its burden of demonstrating the absence of a genuine issue
5
of material fact as to the creation of a novation.4 In coming to its conclusion, the Court first
6
looks to the wording of the offers presented on the face of the Offer letter. See Alexander,
7
37 Cal. 2d at 861–62 (courts examining a novation claim first look to the agreements
8
themselves, and specifically, the substance of the change or changes between the old and
9
new agreements). Thus, upon review of the Offer letter, the Court notes that the settlement
10
offers are an attempt to “settle [Plaintiff’s] past balance.” (Doc. No. 1-2 at 2.) The letter
11
also states that if Plaintiff would be willing to settle his account for “15% that the settlement
12
amount would be $1,451.88 to clear this account in full.” (Doc. No. 16-3 at 2) (emphasis
13
added). The Court finds that the Offer letter makes no reference to a contract to pay the
14
previous balance, but only states that the “account has a past due balance of $9,679.23.”
15
(Id.) In addition, the letter only refers to the settlements as “offers” and “plans.” (Id. at 2-
16
3.)
17
Next, the Court turns to Plaintiff’s arguments in support of his notion that both
18
parties intended to create a novation through acceptance of one of the settlement offers. “A
19
novation is subject to the general rules of governing contracts . . . and requires an intent to
20
discharge the old contract, a mutual assent, and a consideration.” Klepper v. Hoover, 21
21
Cal. App. 3d 460, 463 (1971). See Howard v. County of Amador, 220 Cal. App. 3d 962,
22
977 (1990) (“It must clearly appear that the parties intended to extinguish rather than
23
24
25
26
27
28
3
Plaintiff argues that the CFPB and the right to sue waiver are not relevant to the instant matter as they
involve situations where a partial payment on a debt revives the original debt. (Doc. No. 21 at 3, 6.)
Whereas, in the present matter, Plaintiff is arguing that payment on the original debt would create an
entirely new obligation and agreement. (Id.) The Court agrees with Plaintiff and thus will not delve into
these issues in this Order.
4
Fed. R. Civ. P. 56(e); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
Cir. 1987).
7
16-CV-0692-AJB-(JMA)
1
merely modify the original agreement.”). Here, Plaintiff’s motion suffers from its most
2
glaring errors, as Plaintiff does not present the Court with clear and convincing evidence
3
of intent or specific facts to support a finding of mutual assent. See Alexander, 37 Cal. 2d
4
at 860 (stating that the evidence in support of novation must be “clear and convincing” and
5
that the “whole question is one of fact [that] depends upon all the facts and circumstances
6
of the particular case.”).
7
Looking to established case law, the Court finds that it is well recognized that the
8
intent of the parties is vital to determining if a novation occurred and that it is Plaintiff’s
9
burden to prove the novation existed. See Producers’ Fruit Co. v. Goddard, 75 Cal. App.
10
737, 755–56 (1925) (holding that novation must be pleaded either expressly or by
11
unequivocal implication and the burden of proof is upon the party asserting its existence);
12
see also N. Counties Bank v. Earl Himovitz & Sons Livestock Co., 216 Cal. App. 2d 849,
13
859 (1963) (“Existence of a novation turns on the parties’ intention to discharge the old
14
contract and substitute a new one.”); Transp. Clearings-Bay Area v. Simmonds, 226 Cal.
15
App. 2d 405, 430 (1964) (“The question whether a novation has taken place is always one
16
of intention, with the controlling factor being the intent of the oblige to effect a release of
17
the original obligor on his obligation under the original agreement.”). After examining
18
Plaintiff’s motion and pleadings, the Court finds that Plaintiff has failed to satisfy his
19
burden of demonstrating the parties’ intent to create a novation. Here, Plaintiff only broadly
20
claims that Convergent’s “intention to release the consumer on her obligation on the
21
original agreement was clear.” (Doc. No. 16-1 at 19.) The Court finds this contention to be
22
conclusory and unsupported. Plaintiff does not present facts or evidence to the Court to
23
indicate that Convergent intended to extinguish the previous debt and intended to create a
24
new contract with new obligations. Nor does Plaintiff provide evidence that Convergent
25
indicated that it intended to forego the right to collect on the previous debt. Plaintiff simply
26
recites to contract and novation formation law, then broadly claims that the intent is “clear.”
27
(Doc. No. 16-1 at 15-17.) However, without more, the Court is unable to make the finding
28
that there is no triable issue of fact as to intent. Moreover, Plaintiff’s pleadings do not make
8
16-CV-0692-AJB-(JMA)
1
clear whether the original obligation5 extinguished the moment Plaintiff chose a settlement
2
offer, or if it extinguished once Plaintiff fully performed under one of the settlement
3
options. Thus, the Court is unable to distinguish if a novation or an accord and satisfaction
4
was created. See Cal. Civ. Code § 1521 (“An accord is an agreement to accept, in extinction
5
of an obligation, something different from or less than that to which the person agreeing to
6
accept is entitled”); see also Fannuchi & Limi Farms v. United Agri Prod., 414 F.3d 1075,
7
1086 (9th Cir. 2005). At most the Court is only presented with Plaintiff’s theory on what
8
Convergent allegedly intended through its Offer letter. This alone is not sufficient to make
9
a finding of intent through clear and convincing evidence. Accordingly, taking the
10
nonmoving parties’ allegations in the light most favorable, the Court finds that Plaintiff has
11
not satisfied its burden in showing the Court that Convergent intended to release the old
12
agreement and that both parties intended to replace it with one of the three settlement offers,
13
thus creating a novation.
14
Moreover, it is undisputed that under California law, mutual assent is a required
15
element of contract formation. Rockridge Trust v. Wells Fargo, 985 F. Supp. 2d 1110, 1142
16
(2013). “Mutual assent may be manifested by written or spoken words, or by conduct.”
17
Binder v. Aetna Life Ins. Co., 75 Cal. App. 4th 832, 844 (1999). “There is no manifestation
18
of mutual assent if the parties attach materially different meanings to their manifestations
19
and [] neither party knows or has reason to know the meaning attached by the other . . . .”
20
Tucker v. Oregon Aero, Inc., 474 F. Supp. 2d 1192, 1200 (2007). Similar to Plaintiff’s
21
arguments regarding intent, the Court finds the same shortcomings present in Plaintiff’s
22
arguments for mutual assent. For instance, Plaintiff cites to no authority or facts to support
23
the notion that both parties agreed that there was a previous contract or that both parties
24
agreed that the action of checking a box on the Offer letter was an affirmative action
25
26
27
28
5
As stated above, a novation requires that there be a valid previous contract. However, Plaintiff does not
discuss what the original contract was and the Court finds that no enforceable original contract plan
existed as the statute of limitations rendered the debt unenforceable. See Huertas v. Galaxy Asset
Management, 641 F.3d 28, 32–33 (3rd Cir. 2011).
9
16-CV-0692-AJB-(JMA)
1
representing acceptance of a new contract. See Columbia Cas. Co. v. Lewis, 14 Cal. App.
2
2d 71, 72 (1936) (finding no novation because the agreement of all parties to the contract
3
was not present; the evidence failed to disclose any mutual agreement between the parties
4
to extinguish the old contract; and there was an absence of proof to sustain contention that
5
a new and valid contract was made). Additionally, the Court is not presented with evidence
6
that demonstrates that both parties agreed to the same terms in the contract in the same
7
sense. Lastly, Plaintiff’s arguments that he would be misled and tricked into accepting one
8
of the offers under the guise that Convergent would not sue upon the debt eliminates the
9
possibility of finding mutual assent. (Doc. No. 1 ¶ 41.) “Mutual intent is determinative of
10
contract formation because there is no contract unless the parties thereto assent, and they
11
must assent to the same thing, in the same sense.” Banner Entm’t, Inc. v. Superior Court,
12
62 Cal. App. 4th 348, 358–359 (1998). If Plaintiff was allegedly tricked into forming a new
13
contract, both parties would be unable to ascertain whether there was a meeting of the
14
minds or an agreement as to the terms of the novation. See Metropolitan Transp. Com’n v.
15
Motorola, Inc., 342 F. App’x 269, 271 (9th Cir. 2009) (finding that Motorola did not allege
16
that the proposed new party had agreed to be bound by the new contract thus the novation
17
claim was properly dismissed); see also Transport Clearings-Bay Area v. Simmonds, 226
18
Cal. App. 2d 405, 430–31 (1964) (striking the defense of novation as there was no evidence
19
that there was any discussion between the parties that the new debt was to be substituted
20
for the old). Based on the foregoing, the Court finds that there exists genuine issues of
21
material fact in regards to intent, mutual assent, and the creation of a novation.
22
On a last note, Plaintiff argues that consideration for the agreement exists as there is
23
a moral obligation to pay, which is sufficient consideration. (Doc. No. 16-1 at 21.) Though,
24
Plaintiff’s contention is correct, without evidence of mutual assent, and a valid original
25
contract, Plaintiff’s argument for novation is without merit.
26
27
28
2.
Convergent’s Letter to Plaintiff Did Not Violate Section 1692e of the
FDCPA
The Court now turns to Plaintiff’s contentions that Convergent’s Offer letter violates
10
16-CV-0692-AJB-(JMA)
1
15 U.S.C. section 1692e, 1692e(2)(A), and 1692e(10). (Doc. No. 16-1 at 21-22.) Under the
2
FDCPA, “[a] debt collector may not use any false, deceptive, or misleading representation
3
or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. To determine
4
whether a debt collection practice is false, deceptive, or misleading, that practice must be
5
viewed objectively from the perspective of the “least sophisticated debtor.” See Gonzales
6
v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1062 (9th Cir. 2011). The least sophisticated
7
debtor standard is “lower than simply examining whether particular language would
8
deceive or mislead a reasonable debtor.” Swanson v. Southern Oregon Credit Serv. Inc.,
9
869 F.2d 1222, 1227 (9th Cir. 1988).
10
Finding that the issue of novation is a factual question undeterminable by the
11
evidence presented by Plaintiff, the Court looks to the face of the Offer letter to see if it
12
violates the FDCPA. On the first page the letter states, “Our client has advised us that they
13
are willing to settle your account for 15% of your total balance due to settle your past
14
balance.” (Doc. No. 16-3 at 2.) The Offer letter then identifies the payment opportunity
15
plans as settlement offers. (Id. at 3.) On the next page, standing alone, in between two
16
blocks of white space, the Offer letter states “Because of the age of your debt, we will not
17
sue you for it, and we will not report it to any credit reporting agency.” (Id. at 4.)
18
Accordingly, on its face, the Offer Letter does not misrepresent the character or amount of
19
Plaintiff’s debt. Nor does the Offer letter show that Convergent used any false
20
representation or deceptive means to collect the debt or obtain information concerning
21
Plaintiff. Moreover, the Offer letter, provided on its letterhead, notes the original creditor
22
(Citibank)6, current creditor (Galaxy Asset Purchasing, LLC), and collection agency
23
(Convergent). (Id. at 2.) Thus, on its face, the Court does not find the Offer letter to be
24
deceptive, misleading or false. On a final note, the Court highlights that seeking voluntary
25
26
27
28
Plaintiff also argues that any subsequent purchaser of the debt is not bound by Convergent’s promise to
sue. (Doc. No. 16 at 7.) However, finding that there is a triable issue of material fact as to whether a
novation occurred, Plaintiff’s argument is without basis. In addition, the Court notes that this argument
by Plaintiff is purely speculative, and unsupported by case law or specific facts.
6
11
16-CV-0692-AJB-(JMA)
1
repayment of a time-barred debt “so long as the debt collector does not initiate or threaten
2
legal action in connection with its debt collection efforts” is not considered a violation of
3
the FDCPA in the third and eight circuits. See Huertas v. Galaxy Asset. Mgmt., 641 F.3d
4
28, 33–34 (3rd Cir. 2011); see also Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767,
5
771 (8th Cir. 2001). Therefore, Convergent’s incorporation of its waiver of its right to sue,
6
further supports a finding that the Offer letter did not violate the FDCPA.
7
Based upon the foregoing, the Court finds that Plaintiff has failed to meet his burden
8
in establishing that there is an absence of genuine issues of material fact in support of his
9
motion for violation of the FDCPA and the Rosenthal Act. More specifically, Plaintiff’s
10
contentions regarding his theory of novation were without clear support to allow the Court
11
to infer that both parties intended that a new contract be formed thus extinguishing the old
12
contract.7 As Plaintiff was unable to support his novation theory, the rest of Plaintiff’s
13
arguments for violation of the FDCPA and the Rosenthal Act collapses upon themselves.
14
As a result, Plaintiff’s motion for partial summary judgment is DENIED.
15
Convergent’s Motion for Judgment on the Pleadings
B.
16
In support of its motion for judgment on the pleadings, Convergent argues that
17
Plaintiff’s complaint fails in its entirety as no novation occurred through acceptance of any
18
of the three settlement offers and that the FDCPA does not require a debt collector to
19
disclose that a partial payment on a time-barred debt could revive a statute of limitations.
20
(Doc. No. 17-1 at 5-6.) Convergent asks the Court to dismiss the complaint with prejudice.
21
(Id. at 6).8
22
As the Court has already discussed more fully above, Plaintiff’s pleadings and
23
motion do not establish that there was mutual assent, or a clear intent to extinguish the
24
25
26
27
28
As Plaintiff has not adequately pled his theory of novation, the Court need not delve into Plaintiff’s
and Convergent’s discussions regarding whether acceptance of any of the settlement offers would create
a unilateral or bilateral contract. (Doc. No. 21 at 10; Doc. No. 19 at 17.)
8
The Court notes that both Plaintiff and Convergent provide the Court with the exact same arguments in
support and opposition of the motion for judgment on the pleadings as are present in Plaintiff’s motion
for partial summary judgment. (See generally Doc. Nos. 17, 20.)
7
12
16-CV-0692-AJB-(JMA)
1
original obligation and create a new contract. Thus, Plaintiff has not adequately pled the
2
elements to establish that a novation occurred. Accordingly, as discussed supra pp. 7–12,
3
without evidence of a novation, the rest of Plaintiff’s contentions regarding Convergent’s
4
alleged violations of the FDCPA and Rosenthal Act are without merit. Consequently,
5
finding that the Court need not repeat itself, the Court finds that even accepting Plaintiff’s
6
allegations as true, Plaintiff complaint as pled states no viable cause of action against
7
Convergent and Plaintiff is thus not entitled to judgment as a matter of law. See Doleman
8
v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984). Accordingly, Convergent’s
9
motion for judgment on the pleadings is GRANTED.
10
IV.
CONCLUSION
11
For the reasons stated more clearly above, Plaintiff’s motion for partial summary
12
judgment is DENIED and Convergent’s motion for judgment on the pleadings is
13
GRANTED. Plaintiff must file an amended complaint within thirty (30) days of and in
14
accordance with this Order. Convergent will then have thirty (30) days from the filing of
15
the amended complaint to answer or otherwise respond. If Plaintiff fails to amend within
16
the time provided, the Court will enter a dismissal with prejudice of this action.
17
18
IT IS SO ORDERED.
19
20
Dated: December 13, 2016
21
22
23
24
25
26
27
28
13
16-CV-0692-AJB-(JMA)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?