Jeffrey v. Daniel N. Gordon, P.C.

Filing 31

ORDER: Granting Defendant's Motion for Summary Judgment 17 ; Denying Plaintiff's Motion for Summary Judgment 19 . Signed on 5/25/2011 by Judge Garr M. King. (pc)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
VICTORIA JEFFREY,

Civil Case No. 10-1218-KI

Plaintiff,
OPINION AND ORDER
vs.
DANIEL N. GORDON, P.C.,
Defendant.
Joshua Trigsted
Trigsted Law Group, P.C.
5200 SW Meadows Road, Suite 150
Lake Oswego, Oregon 97035
Attorney for Plaintiff
Jonathan M. Radmacher
Kjersten H. Turpen
McEwen Gisvold LLP
1100 SW Sixth Avenue
Portland, Oregon 97204
Attorneys for Defendant
Page 1 - OPINION AND ORDER

KING, Judge:
Plaintiff Victoria Jeffrey brings a complaint under the Fair Debt Collection Practices Act
(“FDCPA”), alleging that defendant Daniel N. Gordon, PC, falsely stated the name of the
original creditor (“Washington Mutual” instead of “First Bank and Trust”) in a letter responding
to her questions. Pending before me are the parties’ cross-motions for summary judgment.
BACKGROUND
The parties agree plaintiff was a consumer, for purposes of the debt at issue here, and that
defendant was attempting to collect the debt from plaintiff. It did so by first sending a demand
letter to plaintiff dated March 22, 2010. The letter informed plaintiff that it was attempting to
collect “a debt owed by you to MIDLAND FUNDING LLC, purchaser of your FIRST BANK
AND TRUST debt.” Aff. of Aylworth in Supp. of Def.’s Mot. for Summ. J. Ex. 1. Plaintiff
responded by sending a letter dated March 26, 2010 disputing the debt and asking for validation.
At this point, defendant sent the communication to plaintiff that is the subject of this
lawsuit. On August 19, 2010, defendant sent a letter in response to plaintiff’s request for
validation. The cover letter read, in relevant part:
AUGUST 19, 2010
Creditor:
Original Creditor:
Account #:
Reference #:
Current Balance:

Midland Funding LLC
WASHINGTON MUTUAL BANK
5181********3414
6011222442
$1,236.17

Dear Victoria Jeffrey:
Enclosed please find the documents per your request for validation of your
debt with our law office.
****
Page 2 - OPINION AND ORDER

This letter is from a debt collector. This is an attempt to collect a debt and
any information will be used for that purpose.
Sincerely yours,
DANIEL N. GORDON, P.C.
Aylworth Aff. Ex. 3, at 1. Accompanying the cover letter, defendant sent account statements for
account number 5181********3414, matching the number correctly listed on the cover letter and
detailing the amounts owed on plaintiff’s Aspen Mastercard.
On September 20, 2010, defendant sent a second letter to plaintiff providing an identical
set of the documents that had accompanied the August cover letter. This second letter read, in
relevant part:
SEPTEMBER 20, 2010
Creditor:
Original Creditor:
Account #:
Reference #:
Current Balance:

Midland Funding LLC
FIRST BANK AND TRUST/ASPEN
MASTERCARD
5181********3414
6011222442
$1,381.26

Dear Victoria Jeffrey:
Enclosed please find the documents per your request for validation of your
debt with our law office.
****
This letter is from a debt collector. This is an attempt to collect a debt and
any information will be used for that purpose.
Sincerely yours,
DANIEL N. GORDON, P.C.

Page 3 - OPINION AND ORDER

Id. Ex. 4, at 1. The only differences between the August and September cover letters were that
defendant had incorrectly identified the original creditor in the August cover letter as Washington
Mutual Bank, not First Bank and Trust, and it updated the amount plaintiff owed.
Defendant was not attempting to collect any other debts from plaintiff.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to point out the absence of any genuine issue of material
fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate
through the production of probative evidence that there remains an issue of fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the
court “must view the evidence on summary judgment in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party.” Nicholson v.
Hyannis Air Service, Inc., 580 F.3d 1116, 1122 n.1 (9th Cir. 2009) (citation omitted).
DISCUSSION
Plaintiff alleges defendant violated 15 U.S.C. §§ 1692e(2)(a) and 1692e(10) of the
FDCPA. Those sections prohibit “any false, deceptive, or misleading representation . . . in
connection with the collection of any debt.” 15 U.S.C. § 1692e. For example, a debt collector
may not falsely represent the “character, amount, or legal status of any debt” or use “any false
representation or deceptive means to collect or attempt to collect any debt or to obtain
information concerning a consumer.” Id. Any misrepresentation must be material, in that it
would likely mislead “the least sophisticated debtor.” Donohue v. Quick Collect, Inc., 592 F.3d

Page 4 - OPINION AND ORDER

1027, 1030 (9th Cir. 2010) (statement that $32.89 was interest, when it was both interest and
finance charges, was immaterial). The FDCPA is a strict liability statute that “makes debt
collectors liable for violations that are not knowing or intentional.” Id. at 1030. Additionally, it
is a remedial statute and must be construed liberally in favor of the debtor. Clark v. Capital
Credit & Collection Servs., Inc., 460 F.3d 1162, 1171 (9th Cir. 2006).
Plaintiff argues the August cover letter incorrectly identifying the original creditor
constitutes a false representation under the FDCPA. Further, she argues it was a material
misrepresentation because she did not owe a debt to Washington Mutual and she was afraid any
payment she made would be incorrectly allocated to the wrong creditor. She was also concerned
about the legitimacy of defendant’s collection efforts.
I find the alleged false statement does not meet the criteria under the FDCPA. The case is
most like Guerrero v. RJM Acquisitions LLC in which the collector sent two almost identical
letters to the consumer demanding payment on a debt to his two separate addresses. The first
piece of correspondence listed the account and file number followed by the letter “A” and the
second piece of correspondence listed the same account and file number followed by the letter
“B.” 499 F.3d 926, 930 (9th Cir. 2007). Applying the least sophisticated debtor standard, the
court concluded that given the identical original creditor name, last payment date, and balance
amounts such a debtor would know that the creditor was attempting to collect only one debt.
Here, defendant’s August letter correctly identified the current creditor and account
number and, most importantly, attached the relevant account statements for plaintiff to satisfy
herself as to the name of the original creditor. The fact that the account number on the cover
letter matched the account number contained in the statements would assure even the least

Page 5 - OPINION AND ORDER

sophisticated creditor that any payments would satisfy the debt as to that account number. The
statements would also confirm for such a debtor the defendant’s authority to collect this debt.
Finally, it would be apparent both from the statements and the follow-up letter that defendant
was attempting to collect a debt originally owed to First Bank and Trust/Aspen Mastercard, not
Washington Mutual Bank.
Since the false statement was not material, I conclude that defendant is entitled to
judgment as a matter of law as no rational trier of fact could conclude that defendant’s
technically false representation of the name of the creditor in this circumstance was a violation of
the FDCPA.
As a result of my ruling, plaintiff’s motion for summary judgment is denied.1
CONCLUSION
For the foregoing reasons, defendant’s Motion for Summary Judgment [17] is granted and
plaintiff’s Motion for Summary Judgment [19] is denied. The case is dismissed with prejudice.
IT IS SO ORDERED.
Dated this

25th

day of May, 2011.

/s/ Garr M. King
Garr M. King
United States District Judge

1

In response to plaintiff’s Motion for Summary Judgment, defendant points out
procedural errors made by plaintiff’s counsel in filing the motion. Plaintiff’s counsel should
have included a conferral statement pursuant to LR 7-1(a). Additionally, having decided to file a
Concise Statement of Material Facts, which is now optional, plaintiff’s counsel should have done
so in a separately filed document accompanying his motion and memorandum just as the
previous rules required. Finally, plaintiff’s counsel must remember to attach exhibits to a sworn
declaration or affidavit. See Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002). I point
this out only for plaintiff’s counsel’s future practice in federal court.
Page 6 - OPINION AND ORDER