Kaiser et al v. Cascade Capital LLC et al

Filing 151

Opinion and Order: For these reasons, I ADOPT the F&R 142 in part and DECLINE TO ADOPT in part as my own opinion. Defendants' Motion to Dismiss 117 is GRANTED in its entirety and Plaintiffs' claims against Defendants are dismissed with prejudice. Signed on 2/4/2019 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

MICHAEL KAISER and MARGARET J.
LOEWEN, on behalf of themselves and
others similarly situated,

Plaintiffs,

No. 3:16-cv-00744-AC

V.

OPINION AND ORDER
CASCADE CAPITAL LLC, and
GORDON AYLWORTH & TAMI P.C.,

Defendants.

MOSMAN,J.,

On December 5, 2018, Magistrate Judge John V. Acosta issued his Findings and
Recommendation (F&R) [142], recommending that Defendants' Motion to Dismiss [117] should
be GRANTED IN PART and DENIED IN PART. Both parties filed Objections to the F&R
[144, 145], and both parties filed Responses to Objections [148, 149]. For the following reasons,
I ADOPT in part and DECLINE TO ADOPT in part Judge Acosta's F &R [142]. I GRANT
Defendants' Motion to Dismiss [117] in its entirety and dismiss all of Plaintiffs' claims against
Defendants with prejudice.
DISCUSSION

The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,

1 - OPINION AND ORDER

but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the
court is not required to review, de novo or under any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to
review the F&R depends on whether or not objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C).
Plaintiffs made no objections that were not carefully considered by Judge Acosta.
Therefore, I adopt his F&R regarding Plaintiffs' objections completely. Defendants objected to
Judge Acosta's finding that Plaintiffs alleged facts sufficient to state a plausible claim for relief
in Count One. Specifically, Defendants disagreed with Judge Acosta's holding that the language
used in the collection letters asserted that the claim was valid and that the debt's legal status was
not in question. In their objections, Defendants cited a number of authorities which had not been
previously presented to Judge Acosta. Those authorities persuade me that the language in the
collection letters was intended to be a Greco warning, and therefore is not deceptive.
First, the language in the letters does not support the proposition that Defendants asserted
that they assumed the claims were valid. The letters state that "[u]nless you notify this office
within thirty days after receiving this notice that you dispute the validity of the debt ... this
office will assume this debt is valid." F&R [142] at 11 (quoting Lowen Letter [105-1]).
Someone cannot be found to be assuming X if they say they will not assume X until Y happens.

2 - OPINION AND ORDER

Second, as Defendants make clear in their Objections briefing, the Greco language
regarding review of the specific circumstances of the case by an attorney is widely accepted and
often required to be included in letters to debtors.

CONCLUSION

For these reasons, I ADOPT the F&R [142] in pali and DECLINE TO ADOPT in part as
my own opinion. Defendants' Motion to Dismiss [117] is GRANTED in its entirety and
Plaintiffs' claims against Defendants are dismissed with prejudice.

IT IS SO ORDERED .

. <l\t--,

DATED this kcfuy ofFeburary, 2019.

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MICHAEL W. M,O MAN
Chief United States District Judge

3 - OPINION AND ORDER