Opico v. Convergent Outsourcing, Inc.

Filing 47

ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT: "Plaintiff's Motion for Partial Summary Judgment" (Dkt. # 25 ) is DENIED. "Defendant Convergent Outsourcing, Inc.'s Motion for Summary Judgment" (Dkt. # 34 ) is GRA NTED IN PART with respect to liability under § 1692e(5), § 1692f, § 1692f(1) of the FDCPA and under the WCAA and CPA, and is DENIED IN PART with respect to liability under § 1692e, § 1692e(2), and § 1692e(10). Signed by Judge Robert S. Lasnik. (LH)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8
9

Plaintiff,

10
v.

11
12

Case No. C18-1579RSL

JOSE MONTES OPICO,

CONVERGENT OUTSOURCING, INC.,

ORDER REGARDING
CROSS-MOTIONS FOR
SUMMARY JUDGMENT

Defendant.

13
14

I.

15
16

INTRODUCTION

This matter comes before the Court on (1) plaintiff’s motion for partial summary

17 judgment (Dkt. # 25) and (2) defendant’s motion for summary judgment (Dkt. # 34). The Court,
18 having reviewed the memoranda, declarations, and exhibits submitted by the parties, 1 finds as
19 follows:
II.

20
21

BACKGROUND

Plaintiff alleges that defendant Convergent Outsourcing, Inc. attempted to collect from

22 him a debt owed on a T-Mobile account and that the account in question was not his. In other
23 words, plaintiff asserts that defendant sought collection from the wrong person. Defendant does
24 not dispute that it attempted to collect from plaintiff on the T-Mobile account in question, but
25 defendant alleges that it verified that the account information matched plaintiff’s personally
26
27
28

1

The Court finds this matter suitable for disposition without oral argument.

ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 1

1 identifiable information. After defendant learned that plaintiff was disputing the debt, defendant
2 claims that it ceased collection activities.
3

On September 28, 2018, plaintiff filed suit against defendant and alleged violations of the

4 Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692e–1692g; the Washington
5 Collection Agency Act (“WCAA”), RCW 19.16.250, 19.16.440; and the Washington Consumer
6 Protection Act (“WCPA”), RCW 19.86 et seq. Dkt. # 1-1 ¶¶ 20–40. Defendant removed this
7 matter to federal court because the action arises under federal law (the FDCPA). 28 U.S.C.
8 § 1331; Dkt. # 1. Although the Court struck defendant’s affirmative defenses, Dkt. # 15, the
9 Court permitted defendant to file an amended answer reasserting bona fide error as an
10 affirmative defense. Dkt. # 28.
11

Before addressing the merits of the parties’ cross-motions for summary judgment, the

12 Court will first evaluate plaintiff’s requests to strike material.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

III.

REQUEST TO STRIKE CITATIONS AND ARGUMENTS RELATED TO
VICTORY LANE

Defendant’s motion for summary judgment cites to Long v. Bergstrom Victory Lane,
Inc., 2018 WL 4829192, at *2 (E.D. Wis. Oct. 4, 2018), and plaintiff requests that the Court
strike defendant’s citations and associated arguments. Dkt. # 37 at 3–4. Defendant summarizes
the case as standing for the proposition that “pulling a credit report for use in connection with
the ‘collection of an account’ is the permitted and preferred way of confirming debts.” Dkt. # 34
at 6, 21, 29 (emphases added). The parties appear to agree that Victory Lane properly stands at
least for the principle that the Fair Credit Reporting Act, which authorizes the pulling of credit
reports for “permissible purposes,” includes the “collection of an account of a consumer” among
such purposes. Dkts. # 37 at 3–4, # 38 at 8–9 (emphasis added). The Court finds no fault with
this interpretation of Victory Lane. Defendant overextends Victory Lane, however, in citing it
for the principle that pulling a credit report is a preferred way of confirming debts. While the
Court will not strike the citations and arguments, it will not stretch Victory Lane’s meaning in
the way defendant first articulated it.

28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 2

1
2

IV.

REQUEST TO STRIKE ALISIA STEPHENS’ DECLARATION

Defendant’s response to plaintiff’s motion for summary judgment, and defendant’s cross-

3 motion for summary judgment rely upon a declaration by Alisia Stephens (Dkts. # 32, # 35).
4 Plaintiff requests that the Court strike paragraphs 4–5 of this declaration. Dkts. # 33 at 3–4, # 37
5 at 4–5. “An affidavit or declaration used to support or oppose a motion must be made on
6 personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
7 or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). The
8 paragraphs with which plaintiff takes issue are set forth below:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4.
The T-Mobile account at issue ending -5670 (the “Account”) was opened
using Plaintiff’s name, social security number and date of birth, with a billing
address in the same city where Plaintiff resided. On or about May 25, 2018, the
Account was placed with Convergent for collection from Plaintiff.
5.
On or about May 25, 2018, Convergent obtained Plaintiff’s credit report, in
part, to confirm the information received from T-Mobile via its placement file.
Plaintiff’s credit report confirmed that the social security number, date of birth and
residence in the city of Federal Way matched the information on the T-Mobile
account.
Dkts. # 32 at 2. Plaintiff contends that paragraph 4 lacks foundation and that “there is no
evidence or indication as to what information was used to open any accounts at all.” Dkts. # 33 at
3, # 37 at 5. Additionally, plaintiff argues that paragraph 5 cannot stand because it constitutes
inadmissible hearsay by discussing a credit report’s contents without “submitting a copy or any
other information.” Dkts. # 33 at 3, # 37 at 5.
Defendant attempted to lay the foundation for Stephens’ testimony that the T-Mobile
account at issue was opened using plaintiff’s personally identifiable information by explaining
Stephens’ role as a Litigation Support Specialist for defendant, her personal knowledge of and
experience in defendant’s business operations, and her review of defendant’s business records.
See Dkt. # 32 ¶¶ 1–3. The T-Mobile account statements that defendant sent to plaintiff clearly
listed his name as the account holder, which indicates at least that his name was used to open the
account. Dkt. # 32-4. As for the statement that the social security number, date of birth, and city
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 3

1 of residence used to open the T-Mobile account were in fact consistent with plaintiff’s
2 information, the source for this knowledge is unclear. Stephens’ experience in defendant’s
3 business operations and review of defendant’s business records does not mean that she has
4 knowledge of plaintiff’s true personally identifiable information. It appears that Stephens’
5 knowledge on this point likely stems only from the alleged comparison of plaintiff’s credit report
6 information and the T-Mobile account information listed for plaintiff. See Dkts. # 30 at 17, # 34
7 at 21 (“The credit report confirmed that Plaintiff’s full name, social security number and date of
8 birth were used to open the Account, and that the address associated with it was in the same city
9 where Plaintiff resided”). Given that the report has not been provided and Stephens’ knowledge
10 is based on her review of the report, portions of paragraphs 4–5 are inadmissible for the purpose
11 of demonstrating the truth of the matter asserted. That said, defendant asserts that it has not
12 offered Stephens’ testimony regarding the credit report for the truth of any information contained
13 in the report; rather defendant maintains that it has offered this testimony only for the purpose of
14 demonstrating defendant’s good faith in contacting plaintiff. Dkt. # 38 at 9–10. The Court will
15 therefore consider this testimony only as evidence that defendant contacted plaintiff after
16 attempting to verify through the credit report comparison that plaintiff was the correct person to
17 contact regarding the debt, not as evidence that the credit report information actually matched the
18 account information, or that the account was in fact opened using plaintiff’s social security
19 number, date of birth, and an address with the same city. See Waller v. Mann, No. 2:17-CV20 1626-RSL, 2019 WL 3996866, at *2 (W.D. Wash. Aug. 23, 2019) (finding that statements were
21 not based upon personal knowledge, and therefore were not admissible, when the conclusions
22 were based on statements by others not before the court).
23

V.

24

The parties have filed cross-motions for summary judgment on the issue of liability under

CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKTS. # 25, # 34)

25 the FDCPA, WCAA, and CPA. See Dkts. # 25, # 34.
26
27
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 4

1 A.

Legal Standard for Summary Judgment

2

Summary judgment is appropriate when, viewing the evidence in the light most favorable

3 to the nonmoving party, “there is no genuine dispute as to any material fact and the movant is
4 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Fresno Motors, LLC v. Mercedes
5 Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). The moving party “bears the initial
6 responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett,
7 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the
8 moving party need not “produce evidence showing the absence of a genuine issue of material
9 fact,” but instead may discharge its burden under Rule 56 by “pointing out . . . that there is an
10 absence of evidence to support the nonmoving party’s case.” Id. at 325.
Once the moving party has satisfied its burden, it is entitled to summary judgment if the

11

12 non-moving party fails to designate “specific facts showing that there is a genuine issue for trial.”
13 Id. at 324. “The mere existence of a scintilla of evidence in support of the non-moving party’s
14 position is not sufficient.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th
15 Cir. 2001) (internal citation omitted). “An issue is ‘genuine’ only if there is a sufficient
16 evidentiary basis on which a reasonable fact finder could find for the nonmoving party.” In re
17 Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (internal citation omitted). On cross-motions for
18 summary judgment, the Court evaluates the motions separately, “giving the nonmoving party in
19 each instance the benefit of all reasonable inferences.” Lenz v. Universal Music Corp., 801 F.3d
20 1126, 1130–31 (9th Cir. 2015) (citation omitted).
21 B.

Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692e–1692f

22

Plaintiff contends that partial summary judgment should be granted in its favor on its

23 FDCPA claims because defendant violated 15 U.S.C. §§ 1692e–1692f 2 when it attempted to
24 collect debt from the wrong person. Defendant contends that an attempt to collect a debt from the
25
26
27
28

2

Although plaintiff initially alleged in his Complaint that defendant also violated 15 U.S.C.
§ 1692g, plaintiff has since withdrawn this claim. Dkt. # 37 at 6.
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 5

1 wrong person does not violate §§ 1692e–1692f, and even if it did, defendant has presented a
2 valid bona fide error defense.
3

The Court concludes that attempting to collect a debt from the wrong person may violate

4 § 1692e, but where that is the only wrong alleged, such conduct does not violate § 1692f.
5 Because a genuine dispute exists as to material facts related to the bona fide error defense,
6 summary judgment will not be granted to either party for the majority of plaintiff’s § 1692e
7 claims. Because there is no genuine dispute as to material facts related to the § 1692f claim, the
8 Court grants summary judgment to defendant on the issue of § 1692f liability.
9
10
11
12
13
14
15
16
17
18
19
20

1.

The FDCPA is a strict liability statute and the bona fide error defense
operates as the exception to strict lability.

One of the central purposes of the FDCPA is to protect consumers from “abusive debt
collection practices by debt collectors.” 3 15 U.S.C. § 1692(e). “[T]the FDCPA is a strict liability
statute in that plaintiff need not prove an error was intentional.” Reichert v. Nat’l Credit Sys.,
Inc., 531 F.3d 1002, 1004 (9th Cir. 2008) (citing Clark v. Cap. Credit & Collection Servs., Inc.,
460 F.3d 1162, 1176 & n.11 (9th Cir. 2006)). A “narrow exception to strict liability” exists via
the bona fide error defense, which is an affirmative defense for which the debt collector has the
burden of proof. Id. at 1005–06. The bona fide error defense provides:
A debt collector may not be held liable in any action brought under this subchapter
if the debt collector shows by a preponderance of evidence that the violation was
not intentional and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error.

21 15 U.S.C. § 1692k(c).
22

2.

Attempting to collect a debt from the wrong person could violate § 1692e.

23

Defendant relies on various district court cases for its assertion that a “debt collector does

24 not violate § 1692e merely by attempting to collect a debt from what turns out to be the wrong
25 person.” Dkts. # 30 at 11–13, # 34 at 13–16. Defendant’s argument on this topic is distinct from
26
27
28

3

There is no dispute that defendant is a “debt collector” under the FDCPA such that it is subject
to § 1692e and § 1692f. See Dkt. # 25 at 5; Dkt. # 30; Dkt. # 34; 15 U.S.C. § 1692a(6).
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 6

1 its argument that it has a valid bona fide error defense. The Court finds that the cases defendant
2 relies upon fail to persuade the Court to short-circuit the § 1692e analysis in the manner
3 defendant desires. While the Court is sympathetic to defendant’s concerns regarding creating a
4 standard of omniscience for debt collectors, these concerns may be addressed through the bona
5 fide error defense.
6

In the first case defendant relies upon, Patton v. Financial Business and Consumer

7 Solutions, Inc., No. 2:16-CV-2738 JCM (CWH), 2018 WL 3620488, at *3–4 (D. Nev. July 30,
8 2018), the District Court for the District of Nevada concluded that a consumer’s claim that he
9 was a victim of identity theft, and that he did not open the credit card account in question, did not
10 give rise to a FDCPA violation under § 1692e where the debt collector merely sent the consumer
11 a collection letter. For this conclusion, the district court cited Clark v. Capital Credit &
12 Collection Services, Inc., 460 F.3d 1162 (9th Cir. 2006) and two other cases defendant relies
13 upon: Story v. Midland Funding LLC, No. 3:15-cv-00194-AC, 2015 WL 7760190 (D. Or. Dec.
14 2, 2015) and Chenault v. Credit Corp Sols., Inc., No. CV 16-5864, 2017 WL 5971727 (E.D. Pa.
15 Dec. 1, 2017). With respect to Clark, the district court quoted the following line: “if a debt
16 collector reasonably relies on a debt reported by the creditor, the debt collector will not be liable
17 for any errors.” Patton, 2018 WL 3620488, at *3 (quoting Clark, 460 F.3d at 1177). The Ninth
18 Circuit made clear in Reichert v. National Credit Systems Inc., 531 F.3d 1002, 1007 (9th Cir.
19 2008), however, that this line from Clark regarding reasonable reliance referred “to a reliance on
20 the basis of procedures maintained to avoid mistakes” in the context of analyzing the bona fide
21 error defense. The Patton decision did not mention the bona fide error defense, and while it
22 observed that the debt collector relied on representations from the creditor regarding the
23 consumer’s alleged debt, it did not appear to analyze the reasonableness of that reliance. See
24 Patton, 2018 WL 3620488, at *3 (stating only that the debt collector “relied on representations
25 from Midland,” the entity to whom the debt was transferred). Therefore, Patton’s alignment with
26 the Ninth Circuit’s line of reasoning emanating from Clark is somewhat suspect.
27
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 7

1

Turning to Story, relied upon by Patton and otherwise cited by defendant, the District

2 Court for the District of Oregon rejected the premise that “attempting to collect a debt that the
3 consumer does not actually owe is false, misleading, or deceptive” for purposes of analyzing
4 § 1692e claims, but the first case the court cited in support of its conclusion was Bleich v.
5 Revenue Maximization Group, Inc., 233 F. Supp. 2d 496, 501 (E.D.N.Y. 2002). Story, 2015 WL
6 7760190, at *6. The district court relied upon Bleich for the principle that “where a debt collector
7 has included appropriate language regarding the FDCPA debt validation procedure, the allegation
8 that the debt is invalid, standing alone, cannot form the basis of a lawsuit alleging fraudulent or
9 deceptive practices in connection with the collection of a debt.” Id. (citing Bleich, 233 F. Supp.2d
10 at 501). This Court, however, is persuaded by the reasoning of another court within this District,
11 which concluded that Bleich’s § 1692e analysis is inconsistent with the Ninth Circuit’s Clark
12 decision. See Healey v. Trans Union LLC, No. C09-0956JLR, 2011 WL 1900149, at *8 n.5
13 (W.D. Wa. May 18, 2011) (“In 2006, however, the Ninth Circuit disapproved the standard the
14 Bleich court applied to § 1692e claims. Clark, 406 F.3d at 1175. Although the Clark court agreed
15 with Bleich that a debt collector may reasonably rely on its client’s statements when verifying a
16 debt pursuant to § 1692g, see id. at 1174, the court expressly disagreed with Bleich’s conclusion
17 that a plaintiff must show that the debt collector knowingly or intentionally misrepresented the
18 debt in order to prevail under § 1692e, see id. at 1175 (citing Bleich, 233 F.Supp.2d at 500–01)”).
19

The other cases cited in Story either rely upon the disapproved Bleich approach to § 1692e

20 claims, see Taylor v. Midland Credit Mgmt., Inc., No. 1:07-CV-582, 2008 WL 544548, at *3
21 (W.D. Mich. Feb. 26, 2008); Daniel v. Asset Acceptance L.L.C., No. 06-15600, 2007 WL
22 3124640, at *5 (E.D. Mich. Oct. 23, 2007), or they concern distinguishable facts. See Garcia v.
23 Gurstel Chargo, P.A., 2:12-cv-1930 JWS, 2013 WL 4478919, at *5 (D. Ariz. Aug. 21, 2013)
24 (finding no § 1692e violation where the court determined that the communications “invited
25 further dialogue about the debt” and did not assert that the consumer was responsible to pay the
26 debt); Collins v. Asset Acceptance, LLC, No. 09 C 583, 2010 WL 3245072 (N.D. Ill. Aug. 13,
27 2010) (finding no § 1692e violation where the communication at issue requested information
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 8

1 substantiating the consumer’s identity-theft allegations).
2

Finally, the Chenault case defendant cites relied primarily on one case, other than Story

3 (discussed above), for its conclusion that where the consumer was the victim of identity theft and
4 never owed any debt, no violation of § 1692e arose: Farren v. RJM Acquisition Funding, LLC,
5 No. 04-CV-995, 2005 WL 1799413, at *9 (E.D. Pa. July 26, 2005). See Chenault, 2017 WL
6 5971727, at *3 (citing Farren and Story). The Farren court concluded that there was no “false
7 representation” because there was no evidence that the debt collector was aware that the debt did
8 not belong to the consumer targeted at the time it communicated with the consumer. Farren, 2005
9 WL 1799413, at *9. 4 However, a debt collectors’ conduct need not be knowing or intentional to
10 violate § 1692e. Reichert, 531 F.3d at 1004. The Farren court sought to avoid creating an
11 outcome where “any debt collector or data furnisher who communicates in anyway about a debt
12 that is later discovered not to be owed by the individual the debt collector originally thought
13 owed it would be liable under the FDCPA.” Farren, 2005 WL 1799413, at *9. Because the bona
14 fide error defense remains available to defendants, Farren provides little persuasive force for
15 Chenault’s conclusion and defendant’s reliance upon it. This Court is not bound by the district
16 court decisions defendant relies upon and declines to follow them.
17
18
19
20
21
22
23
24
25
26
27
28

3.

Defendant’s attempts to collect a debt from plaintiff may violate § 1692e such
that the Court must evaluate defendant’s bona fide error defense.

Section 1692e prohibits a debt collector from using “any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” In addition to asserting
that defendant violated § 1692e by attempting to collect on a debt not owed by plaintiff, he
asserts more specifically that defendant violated § 1692e(2), which prohibits, as relevant here,
“[t]he false representation of . . . the character, amount, or legal status of any debt.” Plaintiff also
asserts that defendant violated § 1692e(5), which prohibits making a “threat to take any action
that cannot legally be taken or that is not intended to be taken,” and § 1692e(10), which prohibits
4

Long v. Pendrick Capital Partners II, LLC, 374 F. Supp. 3d 515, 533-34 (D. Md. 2019), also
cited by defendant, Dkt. # 30 at 13, involved reasoning similar to Farren.
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 9

1 the “use of any false representation or deceptive means to collect or attempt to collect any debt.”
2 Conduct violates § 1692e only where the “least sophisticated debtor,” would be deceived or
3 misled, and this standard is “designed to protect consumers of below average sophistication or
4 intelligence” or who are “uninformed or naïve.” Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d
5 1055, 1062 (9th Cir. 2011).
6

The relevant communications between plaintiff and defendant occurred in 2018, and the

7 Court summarizes them in chronological order below:
8

1. Letter from defendant to plaintiff dated June 1, 2018 (Dkt. # 32-1):
This letter stated that T-Mobile’s records reflected that plaintiff’s account
had “a past due balance of $2,268.70.” The letter also informed plaintiff
that unless he notified defendant within 30 days after receipt of the letter
that he disputed the validity of the debt, defendant would assume that the
debt was valid.
2. Letter from defendant to plaintiff dated August 23, 2018 (Dkt. # 32-2):
This letter communicated an opportunity for plaintiff to satisfy his account
debt by paying 40% of the balance.
3. Letter from plaintiff to defendant dated August 23, 2018 (Dkt. # 32-3)
and received by defendant on or about September 5, 2018 (Dkt. # 32
¶ 8) 5: This letter notified defendant that plaintiff claimed to “not have any
knowledge” of the alleged debt and that he would be disputing the debt.
Plaintiff also requested that defendant “provide validation of this debt as
required by 15 U.S.C. § 1692g.”
4. Letter from defendant to plaintiff dated September 12, 2018 (Dkt. # 324): This letter informed plaintiff that defendant completed its dispute
investigation and found that the debt was “valid.” The letter also attached
verification of the debt in the form of a T-Mobile monthly statement for the
account.

9
10
11
12
13
14
15
16
17
18
19
20
21

22 Defendant alleges that after it learned that plaintiff was disputing the debt, it “ceased collection
23 activity on the account” on September 5, 2018. Dkts. # 30 at 5, 15, # 34 at 6, 17. All three of
24
25

5

Although Alisia Stephens’ Declaration states that defendant received a letter from plaintiff dated

26 August 23, 2018 “[o]n or about September 5, 2019,” Dkt. # 32 ¶ 8, the context of the other
27
28

communications supports the Court’s conclusion that this was a typographical error and the letter was
received in 2018, not 2019.
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 10

1 defendant’s letters to plaintiff, including the September 12, 2018 letter, however, asserted that
2 they were “an attempt to collect a debt,” Dkts. # 32-1 at 2, # 32-2 at 2, # 32-4 at 2, and the Court
3 will interpret them accordingly.
4

The Court concludes that plaintiff has presented triable issues of fact under § 1692e,

5 § 1692e(2), and § 1692e(10) where defendant represented in its collection letters that the
6 delinquent account belonged to plaintiff and a “hypothetical ‘least sophisticated’” consumer
7 could have been misled or deceived by the letters into thinking that he owed a debt when he did
8 not. See Healey v. Trans Union LLC, No. C09-0956JLR, 2011 WL 1900149, at *8–9 (W.D.
9 Wash. May 18, 2011) (finding that the consumer had met her burden to establish a genuine issue
10 of material fact regarding a violation of § 1692e(2) where the debt collector represented in its
11 collection letters and communications to credit agencies that she was responsible for the account
12 debt and plaintiff did not inform the debt collector that she had been a victim of identity theft);
13 Basich v. Patenaude & Felix, APC, No. 5:11-CV-04406 EJD, 2013 WL 1755484, at *8–9 (N.D.
14 Cal. Apr. 24, 2013) (finding that even though plaintiff herself was not confused by the efforts to
15 levy plaintiff’s bank account, since “she maintained all along that she did not owe the debt,” it
16 was possible that a “hypothetical ‘least sophisticated debtor’” could have been misled or
17 deceived). With respect to § 1692e(5), however, the Court finds that plaintiff has failed to present
18 triable issues of fact where the collection letters did not contain language that could be construed
19 as threatening any action. See Dkts. # 32-1, # 32-2, # 32-4.
20

This Court’s conclusion regarding § 1692e, § 1692e(2), and § 1692e(10) requires the

21 Court to address the parties’ arguments regarding the bona fide error defense. To prevail on this
22 defense, a debt collector must prove that “(1) it violated the FDCPA unintentionally; (2) the
23 violation resulted from a bona fide error; and (3) it maintained procedures reasonably adapted to
24 avoid the violation.” McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948
25 (9th Cir. 2011). “The procedures that have qualified for the bona fide error defense were
26 consistently applied by collectors on a debt-by-debt basis.” Urbina v. Nat’l Bus. Factors Inc., 979
27 F.3d 758, 765 (9th Cir. 2020) (holding that a one-time agreement committing creditor-clients to
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 11

1 provide accurate information did not support a bona fide error defense). “The procedures
2 themselves must be explained, along with the manner in which they were adapted to avoid the
3 error.” Reichert, 531 F.3d at 1007.
4

Here, the bona fide error at issue is attempting to collect a debt from the wrong person.

5 Defendant appears to acknowledge the fact that plaintiff did not open the account in question, see
6 Dkts. # 30 at 20, # 34 at 24 (“the fact that Plaintiff turned out not to have opened the Account
7 was unknown and unknowable to Defendant”), and defendant cites plaintiff’s deposition
8 testimony to show that plaintiff was the victim of identity theft. Dkts. # 30 at 8, # 34 at 9.
9 Plaintiff asserts that he is not taking a position one way or the other as to whether identity theft
10 occurred and that identity theft is irrelevant to the claims and defense at issue, but he offers no
11 alternative explanation for the existence of the T-Mobile account debt in his name. See Dkt. # 33
12 at 4. In plaintiff’s deposition testimony, he clearly claims that he was the victim of identity theft. 6
13 See Dkt. # 31-2 at 4, 7 (e.g., “Q. Do you contend that you were a victim of identity theft? A. Yes,
14 I do” and “Q. But the account that Convergent was attempting to collect, you think someone else
15 used your information to open that account? A. Yes”). Additionally, plaintiff testified that he did
16 not notify T-Mobile or defendant that someone stole his identity. Dkt. # 31-2 at 8, 10. Despite
17 plaintiff’s protestations to the contrary, identity theft is relevant to the bona fide error analysis
18 because it provides context for defendant’s Rule 30(b)(6) witness testimony that no errors
19 occurred. Plaintiff cites this testimony as evidence of its theory that the bona fide error defense
20 does not apply, but the Court understands the error at issue to be defendant collecting a debt from
21 the wrong person where the account holder name was identical.
22

Defendant asserts that it maintained various procedures to ensure compliance with the

23 FDCPA, procedures that included: “(1) Account Scrubs; (2) Reporting Fraud or Dispute to
24
6

In a parenthetical comment, plaintiff’s reply brief states, “(Only in response to Convergent’s
suggestive deposition questioning, through an interpreter, did Plaintiff surmise the possibility that
26 Convergent’s collection efforts resulted from having assumed Plaintiff’s identity without permission.)”
Dkt. # 33 at 4. Given that plaintiff cites no evidence for this remark, the Court sees no reason to find
27
plaintiff’s own testimony unreliable.

25

28

ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 12

1 Clients (i.e., to the original creditors like T-Mobile), (3) Dispute Handling; [(4)] Debt
2 Verification; and (5) Disputes.” Dkts. # 30 at 19, # 34 at 23; see # 32-5, # 32-6. Defendant
3 alleges that prior to contacting plaintiff, defendant followed its Account Scrubs procedure to
4 “ensure that Plaintiff’s personally identifiable information matched that on the Account,” Dkt.
5 # 34 at 23, and that when defendant received plaintiff’s August 23, 2018 letter claiming he had
6 no knowledge of the account and requesting validation, defendant followed its procedures
7 regarding Dispute Handling, Debt Verification, and Disputes. Dkt. # 34 at 23–24.
8

Turning first to “Account Scrubs” procedures, which occur before defendant makes initial

9 contact with consumers, defendant references the NCOA scrub performed by Revspring prior to
10 letters being mailed. See Dkts. # 34 at 23, # 32-5 at 1. This procedure characterizes the function
11 of the NCOA scrub as the following: “Identify most current address for customer prior to mailing
12 all letters.” Dkt. # 32-5 at 1. The procedure does not characterize any of the scrubs as having the
13 function of confirming that the person to whom debt collection communications are directed is
14 actually the customer with the debt. See Dkt. # 32-5. Litigation Support Specialist Stephens
15 testified that prior to defendant contacting plaintiff, on or about May 25, 2018, defendant
16 “obtained Plaintiff’s credit report, in part to confirm the information received from T-Mobile via
17 its placement file.” Dkt. # 32 ¶ 5. Obtaining a credit report for an account holder, however, is not
18 specifically listed among the procedures defendant has provided for the Court’s consideration.
19 See Dkts. # 32-5, # 32-6. It is possible that one or more of the scrubs involve obtaining a credit
20 report, but that is not clear from the text of the procedures. The Court finds that a genuine issue
21 of material fact exists as to whether obtaining credit reports was a procedure defendant
22 consistently applied and whether its Account Scrubs procedures were reasonably adapted to
23 prevent defendant from attempting to collect a debt from the wrong person. See Basich v.
24 Patenaude & Felix, APC, No. 5:11-CV-04406 EJD, 2013 WL 1755484, at *9 (N.D. Cal. Apr. 24,
25 2013) (finding that a debt collector’s evidence was insufficient to satisfy the burden of showing
26 an absence of a genuine issue of material fact as to the bona fide error defense where only one
27 declaration vaguely described the procedures in place); Cf. Wetzel v. AFNI, Inc., No. 10-615928
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 13

1 TC, 2011 WL 6122963, at *4–5 (D. Or. Oct. 20, 2011), report and recommendation adopted, No.
2 CIV. 10-6159-TC, 2011 WL 6122957 (D. Or. Dec. 8, 2011) (finding that a debt collector made a
3 sufficient showing that it employed procedures “reasonably adapted to avoid” sending a
4 collection letter to the wrong person by using LexisNexis to determine a debtor’s most recent
5 address when the associated information matched identifying characteristics between the person
6 and the alleged account holder, including the name and social security number). Therefore, it
7 would be premature to grant summary judgment to either party on plaintiff’s § 1692e,
8 § 1692e(2), and § 1692e(10) claims.
9

As for the procedures regarding “Dispute Handling” and “Disputes,” when a consumer

10 claims that they do not owe the debt in question, these procedures call for defendant’s
11 representatives to investigate the dispute, e.g., by getting information and documents from the
12 client. Dkt. # 32-6 at 6, 10. Similarly, when a consumer requests debt verification, the “Debt
13 Verification” procedure requires defendant’s representatives to request proof of debt from the
14 client and send it to the consumer. Dkt. # 32-6 at 8. Here, defendant’s September 12, 2018 letter
15 to plaintiff indicates that defendant investigated the dispute and provided a T-Mobile account
16 statement to plaintiff in response to his request for validation, consistent with defendant’s
17 procedures. 7 Lastly, defendant’s “Reporting Fraud or Dispute to Clients” procedure states as
18 follows:
19
20
21
22
23
24
25
26
27
28

When a consumer claims an account assigned to Convergent Outsourcing is
disputed or fraud has taken place, we may be required to report that information to
the client who assigned the account to us. If we have received enough detail or the
client requires we notify them of disputes or fraud claims, we will follow their
individual procedures on how to send them that information.
7

Plaintiff argues that the September 12, 2018 collection letter establishes that defendant’s
procedures “were woefully ineffective” and “there is no [error] which can explain why this letter was
sent.” The Court disagrees. Dkt. # 33 at 10. Defendant’s explanation for why this letter was sent is
plausible. Plaintiff sent a letter to defendant disputing the debt and requesting that defendant provide
validation as required by 15 U.S.C. § 1692g. Dkt. # 32-3. Given that plaintiff did not inform defendant of
any circumstances related to fraud or identity theft, defendant’s error in continuing to believe that it was
communicating with the right debtor is understandable and does not, by itself, preclude defendant from
succeeding on its bona fide error argument.
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 14

1 Dkt. # 32-6 at 2. Defendant cites T-Mobile’s recalling of the account from defendant on
2 September 14, 2018 as evidence that defendant reported the dispute consistent with this
3 procedure. The Court observes that obtaining additional information from the client to investigate
4 the dispute, prove the debt, and notify the client of disputes/fraud, would seem to have the
5 obvious function of, among other things, identifying when a debtor has been contacted in error.
6 Ultimately, the reasonableness of these follow-up procedures must be viewed in the context of
7 whatever procedures defendant had previously taken. And as discussed above, genuine issues of
8 material fact exist regarding defendant’s alleged initial procedures for avoiding the error in
9 question, which preclude the Court from granting either parties’ motion for summary judgment
10 on liability for plaintiff’s claims under § 1692e, 1692e(2), and § 1692e(10). The same is not true
11 for plaintiff’s § 1692e(5) claim. The Court hereby GRANTS defendant’s motion for summary
12 judgment on the issue of § 1692e(5) liability and DENIES both parties’ motions for summary
13 judgment on the issue of liability for the remainder of plaintiff’s § 1692e claims.
14

4.

15

Plaintiff’s contends that defendant violated § 1692f and § 1692f(1) merely by attempting

Defendant’s attempts to collect a debt from plaintiff do not violate § 1692f.

16 to collect money from the wrong person, the same conduct plaintiff alleged in support of its
17 § 1692e argument. It is possible for the same conduct to violate multiple provisions of the
18 FDCPA. Clark, 460 F.3d at 1177. For example, when a debt collector “pursues a debt it knows is
19 overstated, [the debt collector] simultaneously misrepresents the debt in contravention of § 1692e
20 and seeks to collect an amount that is not permitted by law in contravention of § 1692f(1).”
21 Clark, 460 F.3d at 1178 (emphasis in original). However, this “in no way implies that a violation
22 of one provision of the FDCPA automatically constitutes a violation of another.” Clark, 460 F.3d
23 at 1178 n.12 (emphasis in original). Section 1692f prohibits a debt collector from using “unfair or
24 unconscionable means to collect or attempt to collect any debt.” In addition to asserting that
25 defendant violated § 1692f by attempting to collect amounts not owed by plaintiff, plaintiff
26 asserts more specifically that defendant violated § 1692f(1), which prohibits “[t]he collection of
27 any amount (including any interest, fee, charge, or expense incidental to the principal obligation)
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 15

1 unless such amount is expressly authorized by the agreement creating the debt or permitted by
2 law.” Ultimately, the case law plaintiff cites to advance his argument is not persuasive. 8 The
3 Court finds the decisions cited by defendant, and identified by the Court upon further research,
4 more compelling.
5

Many courts have interpreted section 1692f(1) to address the abusive practice of

6 “collecting an amount greater than that which is owing,” not collecting on a debt that turns out to
7 have been incurred by another person. Thompson v. CACH, LLC, No. 14 CV 0313, 2014 WL
8 5420137, at *6 (N.D. Ill. Oct. 24, 2014) (rejecting the applicability of § 1692f(1) where the
9 “crux” of the consumer’s argument was that defendants “sought to collect on a debt that she
10 never owed,” as opposed to collecting on an amount greater than that defined in a loan
11 agreement); see also Barrios v. Enhanced Recovery Co., LLC, No. 15-CV-5291, 2018 WL
12 5928105, at *4 (E.D.N.Y. Nov. 13, 2018) (“The weight of authority holds that, where a collector
13 does not attempt to collect more than what the creditor is owed under the contract, they may not
14 be held liable under subsection 1692f(1) merely because they sought to collect from the wrong
15 person.”); Petrosyan v. CACH, LLC, No. CV 12-8683-GW JEMX, 2013 WL 10156244, at *3
16 (C.D. Cal. Jan. 3, 2013) (dismissing a § 1692f(1) claim where plaintiff contended the account at
17 issue did not belong to him, not that defendant was “collecting something beyond what his
18
19
20
21
22
23
24
25
26

8

Plaintiff relies on cases that did not concern § 1692f claims and/or were distinguishable on other
grounds. See Dkt. # 33 at 4–5 (citing Terran v. Kaplan, 109 F.3d 1428 (9th Cir. 1997) (did not concern
§ 1692f claims and the consumer did not dispute being the account holder); Dawson v. Genesis Credit
Mgmt., LLC, No. C17-0638-JCC, 2017 WL 5668073 (W.D. Wash. Nov. 27, 2017) (debtor disputed the
amount at issue, not whether he was the account holder); Bereket v. Portfolio Recovery Assocs., LLC,
No. C17-0812RSMRSM, 2017 WL 4409480 (W.D. Wash. Oct. 4, 2017) (did not concern § 1692f claims
and the court’s analysis was limited to standing); Heathman v. Portfolio Recovery Assocs., LLC, No. 12CV-201-IEG RBB, 2013 WL 755674 (S.D. Cal. Feb. 27, 2013) (involved an account holder with a
different name); Davis v. Midland Funding, LLC, 41 F. Supp. 3d 919 (E.D. Cal. 2014) (holds only that a
consumer claiming that an obligation was actually owed by another person may still pursue claims under
the FDCPA). Bodur v. Palisades Collection, LLC, 829 F. Supp. 2d 246 (S.D.N.Y. 2011) (did not concern
§ 1692f claims).

27
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 16

1 (allegedly nonexistent) agreement with [defendant] allowed [defendant] to collect, which is what
2 the plain language of section 1692f(1) concerns”); Story v. Midland Funding LLC, No. 3:15-CV3 00194-AC, 2015 WL 7760190, at *7 (D. Or. Dec. 2, 2015) (finding that plaintiff failed to state a
4 claim under § 1692f(1) “because the amount of the debt that [defendant] attempted to collect
5 [was] undisputed”) (emphasis added)); Taylor v. Midland Credit Mgmt., Inc., No. 1:07-CV-582,
6 2008 WL 544548, at *4 (W.D. Mich. Feb. 26, 2008) (“[W]here the amount being collected by the
7 collection agency was not different than the amount owed, § 1692f(1) was inapplicable to
8 plaintiff’s claim that the collection agency was attempting to collect the debt from the wrong
9 person.”). This Court find these cases’ interpretation of § 1692f(1) persuasive and concludes that
10 because § 1692f(1) specifically concerns the amount of obligation sought, which plaintiff does
11 not take issue with—plaintiff complains only that the obligation was sought from the wrong
12 individual—liability does not lie under § 1692f(1).
13

To the extent plaintiff challenges defendant’s communications as otherwise constituting

14 an “unfair or unconscionable means to collect or attempt to collect any debt” under § 1692f
15 generally, this Court finds that the three collection letters at issue were “informational and
16 nonthreatening.” Healey v. Trans Union LLC, No. C09-0956JLR, 2011 WL 1900149, at *10
17 (W.D. Wash. May 18, 2011). The Court fails to see how merely contacting an individual whose
18 name matches the account holder about the account debt, notifying the individual about the
19 process for disputing the validity, and providing the individual with § 1692g verification in
20 response to the individual’s request, could qualify as “unfair or unconscionable means” in this
21 case. Accordingly, the Court GRANTS defendant summary judgment on the issue of liability for
22 plaintiff’s claims under § 1692f and § 1692f(1).
23 C.

WCAA and WCPA

24

Violations of the WCAA constitute “per se” violations of the WCPA. Panag v. Farmers

25 Ins. Co. of Washington, 166 Wn.2d 27, 53 (2009). Plaintiff bases his WCPA claim on one
26 provision of the WCAA, RCW 19.16.250(21), which prohibits collection agencies from
27 attempting to collect “in addition to the principal amount of a claim any sum other than allowable
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 17

1 interest, collection costs or handling fees expressly authorized by statute, and, in the case of suit,
2 attorney’s fees and taxable court costs.” 9 As defendant observes, the plain language of RCW
3 19.16.250(21) is similar to § 1692f(1) of the FDCPA, and it prohibits attempts to collect more
4 from a debtor than is legally permitted. While many courts have interpreted § 1692f(1) of the
5 FDCPA so that it would not apply to a debt collector who has merely attempted to collect from
6 the wrong person, see supra Section V.B.4, the parties did not cite any decisions interpreting
7 RCW 19.16.250(21) under similar factual circumstances, and the Court is aware of none. That
8 said, the WCAA “is Washington’s counterpart to the FDCPA.” Schore v. Renton Collections,
9 Inc., No. C17-1777-JCC, 2018 WL 2018417, at *5 (W.D. Wash. May 1, 2018). Given the
10 similarity between RCW 19.16.250(21) and § 1692f(1), the Court will interpret the two
11 provisions consistently. Therefore, the Court concludes that because RCW 19.16.250(21)
12 specifically concerns the amount of obligation sought, liability does not lie under the WCAA or
13 the WCPA for defendant, who merely attempted to collect an undisputed amount from a
14 consumer whose name matched the name listed on the account. Accordingly, the Court
15 GRANTS defendant summary judgment on the issue of liability for plaintiff’s claims under the
16 WCAA and CPA.
17

VI.

CONCLUSION

18

For all the foregoing reasons, IT IS HEREBY ORDERED THAT,

19

(1) “Plaintiff’s Motion for Partial Summary Judgment” (Dkt. # 25) is DENIED.

20
21

(2) “Defendant Convergent Outsourcing, Inc.’s Motion for Summary Judgment” (Dkt.
# 34) is GRANTED IN PART with respect to liability under § 1692e(5), § 1692f,

22

§ 1692f(1) of the FDCPA and under the WCAA and CPA.

23
24
25
26
27
28

9

There is no dispute that defendant is a “collection agency” under the WCAA. See Dkt. # 25 at 5;
Dkt. # 30; Dkt. # 34; RCW 19.16.100(4).
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 18

1

(3) “Defendant Convergent Outsourcing, Inc.’s Motion for Summary Judgment” (Dkt.

2

# 34) is DENIED IN PART with respect to liability under § 1692e, § 1692e(2), and

3

§ 1692e(10).

4
5

DATED this 26th day of April, 2021.

6

A
Robert S. Lasnik

7
8

United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT - 19