Hargreaves v. Associated Credit Services Inc

Filing 128

ORDER denying Defendant Halverson's 101 Motion for Summary Judgment. The hearing set for 1/18/2018 is stricken from the Court's calendar. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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CORTNEY HALVORSEN,
NO. 2:16-CV-0103-TOR

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Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT

v.

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ASSOCIATED CREDIT SERVICE,
INC., a Washington Corporation, and
PAUL J. WASSON AND MONICA
WASSON, individually and the
marital community,

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Defendants.

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BEFORE THE COURT is Plaintiff’s Motion for Summary Judgment. ECF

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No. 101. This matter was submitted for consideration without oral argument

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pursuant to LR 7.1(h)(3)(B)(iv). The Court has reviewed the record and files

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herein, and is fully informed. For the reasons discussed below, Plaintiff’s Motion

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for Summary Judgment (ECF No. 101) is DENIED.

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//

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1

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BACKGROUND

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This case concerns a claim against Defendant Associated Credit Services,

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Inc. (Associated), a Washington debt collection agency. ECF No. 102 at ¶¶ 1–5.

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On April 1, 2016, Plaintiff Myron Hargreaves filed a putative class action,

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asserting violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.

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§ 1692 et seq.; the Washington Consumer Protection Act (WCPA), RCW §

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19.86.010 et seq.; and the Washington Collection Agency Act (WCAA), RCW §

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19.16.100. See ECF No. 1. On November 16, 2016, Plaintiff Hargreaves, along

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with Cortney Halvorsen, and Bonnie Freeman, filed a First Amended Complaint

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adding Defendants Paul J. Wasson and Monica Wasson (Wasson Defendants).

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ECF No. 14. The Court twice denied class certification. ECF Nos. 42; 83.

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On August 30, 2017, Defendants sought an order dismissing Plaintiffs’

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“reason to believe claims,” which refer to Defendants allegedly, falsely certifying

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that they had reason to believe the assets they were attempting to garnish were not

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exempt. ECF Nos. 56 at 2; 14 at ¶ 7.13. Alternatively, Defendants requested

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partial summary judgment for failure to state a claim under Federal Rules of Civil

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Procedure 8(a) and 12(b)(6). ECF No. 56 at 2. On October 20, 2017, the Court

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granted Defendants’ Motion and dismissed Plaintiffs’ FDCPA claims regarding the

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adequacy of Defendants’ “reason to believe.” The Court also dismissed Plaintiffs’

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WCAA and WCPA claims. ECF No. 90.

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2

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The remaining FDCPA claim alleges that judgement creditor Associated, and

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its attorney, Mr. Wasson, sent false and misleading information in the Notice of

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Garnishment and Your Rights form regarding the amount of Plaintiffs’ entitled

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cash exemption. ECF No. 101 at 2. Defendants filed a Motion for Summary

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Judgment, which they then withdrew after settling with Plaintiffs Myron

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Hargreaves and Bonnie Freeman. ECF Nos. 92; 114; 115; 116. Plaintiffs’ Motion

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for Summary Judgment is then only still applicable to the remaining Plaintiff

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Cortney Halverson. ECF No. 101. Plaintiff requests the Court finds Mr. Wasson

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violated the FDCPA, with the amount of damages to be determined at trial. Id. at

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10. Wasson Defendants assert that Mr. Wasson lacks legal responsibility for

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sending the form and Associated joins in their response. ECF Nos. 106 at 10; 111.

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DISCUSSION

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Summary judgment is appropriate when “there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law.” Fed.

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R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views the

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facts, as well as all rational inferences therefrom, in the light most favorable to the

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non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The court must only

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consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764,

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773 (9th Cir. 2002).

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3

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The moving party bears the initial burden of showing the absence of any

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genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

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(1986). The burden then shifts to the non-moving party to identify specific facts

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showing there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 256 (1986). There must be evidence on which a jury could

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reasonably find for the plaintiff and a “mere existence of a scintilla of evidence in

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support of the plaintiff’s position will be insufficient.” Id. at 252. Additionally, a

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fact is “material” if it might affect the outcome of the suit under the governing law.

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Id. at 248. A material fact is “genuine” where the evidence is such that a

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reasonable jury could find in favor of the non-moving party. Id.

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Here, Plaintiff requests that the Court enter an order against Mr. Wasson

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finding that he violated the FDCPA by sending the Notice of Garnishment and

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Your Rights form, stating that Plaintiff was only entitled to $200 when Washington

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law allows her to claim up to $500 cash exemption. ECF No. 101 at 2, 4. Wasson

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Defendants agree that Plaintiff is a consumer, Plaintiff had debts as defined by the

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FDCPA, and that Mr. Wasson is a “debt collector” as defined by the FDCPA. ECF

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Nos. 106 at 5; see also 101 at 4–9. The Court then need only address the issue of

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whether Mr. Wasson is liable under the FDCPA for making a “false, deceptive or

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misleading representation” or otherwise engaging in unfair practices. ECF Nos.

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106 at 5; 101 at 9; 15 U.S.C. § 1962e; 15 U.S.C. § 1962f.

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4

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Defendants argue that Mr. Wasson is not a “judgment creditor” and thus is

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not obligated under RCW 6.27.130(1) to mail the Notice of Garnishment and Your

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Rights form. ECF No. 106 at 6. The statutes reads that “the judgment creditor

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shall mail or cause to be mailed to the judgment debtor ….” RCW 6.27.130(1).

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Plaintiff concedes that “the law does not require Mr. Wasson to send the notice,”

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but argues that Mr. Wasson admits his office is responsible for mailing the notices.

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ECF Nos. 112 at 1–2; 103-1 at 3. Plaintiff asserts that Mr. Wasson was acting as

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an agent and is thus still liable. ECF No. 112 at 2.

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The Ninth Circuit has recognized vicarious liability under the FDCPA.

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Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1173 (9th Cir.

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2006). Yet, the Ninth Circuit found that “there is no legal authority for the

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proposition that an attorney is generally liable for the actions of his client.” Id.

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General principles of agency form the basis of vicarious liability under the

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FDCPA. Id. Here, Plaintiff merely asserts that Mr. Wasson was acting as an agent

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of Associated by sending the forms. ECF No. 112 at 2. Yet, beyond this mere

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assertion, Plaintiff fails to state any of the principles of agency and how they apply

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to this situation. Simply because Mr. Wasson is the attorney for Associated does

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not mean he is generally liable for Associated’s actions. Similar to Clark, Plaintiff

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fails to offer evidence upon which a reasonable trier of fact could conclude that

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Mr. Wasson can be held liable for the actions of Associated when Associated

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5

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merely caused the forms to be mailed through Mr. Wasson’s legal assistant. See

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Clark, 460 F.3d at 1173; see also RCW 6.27.130(1). The Court declines to hold

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Mr. Wasson liable under these facts when his role is more comparable to a mail

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room employee than an agent of Associated.

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The Court need not address Plaintiff’s remaining argument regarding Mr.

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Wasson’s affirmative defense of bona fide error. See ECF Nos. 106, 112.

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Accordingly, the Court concludes that Mr. Wasson cannot be held liable under the

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FDCPA under an agency theory and denies Plaintiff’s Motion for Summary

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Judgment. ECF No. 101.

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ACCORDINGLY, IT IS HEREBY ORDERED:

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1. Plaintiff’s Motion for Summary Judgment (ECF No. 101) is DENIED.

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2. The hearing on this motion currently scheduled for January 18, 2018 at

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2:00 p.m. is stricken as moot.
The District Court Executive is directed to enter this Order and furnish
copies to counsel.
DATED January 11, 2018.

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THOMAS O. RICE
Chief United States District Judge

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6