Uvaldo v. Germaine Law Office PLC ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Anisa Uvaldo, No. CV-20-00680-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Germaine Law Office PLC, 13 Defendant. 14 At issue is Plaintiff Anisa Uvaldo’s Motion for Partial Judgment on the Pleadings 15 (Doc. 18, Mot.), to which Defendant Germaine Law Office, PLC filed a Response 16 (Doc. 23, Resp.) and Plaintiff filed a Reply (Doc. 24, Reply). The Court will resolve the 17 Motion without oral argument. See LRCiv 7.2(f). 18 After Plaintiff defaulted on the payments for her vehicle and Phoenix Corvette Sales 19 Ltd (“PCS”)—the vehicle seller—repossessed and resold it, PCS notified Plaintiff of a 20 remaining debt of $5,840.90 plus costs and interest. PCS engaged Defendant to collect the 21 debt, and Defendant sent Plaintiff an initial collection letter on December 24, 2019. In 22 January 2020, Defendant represented PCS in a lawsuit in Arizona state court to collect the 23 debt, and Plaintiff defaulted in that action. 24 In this lawsuit, Plaintiff raises six claims alleging Defendant violated various 25 provisions of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, f & g (“FDCPA”), 26 in the manner in which it collected the debt. (Doc. 1, Compl.) Plaintiff now moves for 27 judgment on the pleadings on certain aspects of her claims, namely: (1) the wording in 28 Defendant’s initial collection letter was misleading and overshadowed the FDCPA-required 1 notices the letter provided; (2) the outstanding balances Defendant listed in the initial 2 collection letter and in the state court complaint were misleading; and (3) Defendant 3 improperly communicated directly with Plaintiff after Plaintiff’s counsel notified Defendant 4 that Plaintiff was represented by counsel.1 5 Under Federal Rule of Civil Procedure 12(c), “a party may move for judgment on 6 the pleadings” after the pleadings are closed “but early enough not to delay trial.” A 7 plaintiff as the moving party is entitled to judgment on the pleadings if the plaintiff “clearly 8 establishes on the face of the pleadings that no material issue of fact remains to be resolved 9 and that it is entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard 10 Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). For example, “interpretation of a 11 contract is a matter of law,” United States v. King Features Entm’t, Inc., 843 F.2d 394, 398 12 (9th Cir. 1988), and thus is susceptible to a motion for judgment on the pleadings. “[A] 13 plaintiff is not entitled to judgment on the pleadings when the answer raises issues of fact 14 that, if proved, would defeat recovery.” Gen. Conference Corp. of Seventh-Day Adventists 15 v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). 16 Here, the Court agrees for the most part with Defendant that the issues Plaintiff 17 raises in her Motion implicate material issues of fact that cannot be resolved as a matter of 18 law on the pleadings. Specifically, Plaintiff’s second issue—the outstanding balance 19 figures Defendant listed in the initial collection letter and state court complaint— 20 necessarily involves resolution of questions of fact regarding, among other things, what 21 Defendant’s agreements for attorneys’ fees with PCS were, the amount of attorneys’ fees 22 incurred at various points, and whether the interest rate listed in the state court complaint 23 was a typo and when it was corrected. These are not issues the Court will resolve at the 24 pleading stage, nor will the Court take judicial notice of certain documents in each party’s 25 favor in an attempt to resolve these issues now. Rather, these are factual issues for 26 discovery and summary judgment. 27 28 1 The parties do not dispute that the FDCPA applies here, that is, that Defendant was a debt collector and the object of the collection activity was a consumer debt under the Act. 1 Likewise, Plaintiff’s third issue—whether Defendant violated the FDCPA by 2 contacting Plaintiff after Plaintiff was represented by counsel—necessarily involves 3 resolution of questions of fact regarding the extent of counsel’s representation of Plaintiff 4 and the communications between Defendant and Plaintiff’s counsel. Judgment on the 5 pleadings would also be inappropriate with regard to this issue. 6 At this stage of the litigation, the Court is limited to Plaintiff’s first issue— 7 examining the face of Defendant’s initial collection letter to determine whether certain 8 wording was misleading or overshadowing as a matter of law. Plaintiff takes issue with the 9 following wording: “If the indebtedness identified in our correspondence to you constitutes 10 a ‘consumer debt,’ in accordance with the Fair Debt Collection Practice[s] Act, we make 11 the following notices/statements to you.” (Doc. 1-2, Compl. Ex. A, Initial Collection 12 Letter.) Plaintiff contends that a “least sophisticated debtor” would not be able to resolve 13 for herself whether the debt is a consumer debt and that this conditional wording 14 overshadows the FDCPA-required notices in the initial collection letter. (Mot. at 5–6, 9– 15 10.) The misleading and overshadowing nature of the statement, Plaintiff argues, is a 16 violation of the FDCPA. 17 Under the FDCPA, a debt collector must provide the debtor written notice that 18 effectively conveys the amount of debt, to whom the debt is owed, the right to dispute the 19 debt within 30 days of receipt of the written notice, and the right to obtain verification of 20 the debt. Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 990 (9th Cir. 2017) (citing 21 § 1692g). “Any collection activities and communication during the 30-day period may not 22 overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the 23 debt or request the name and address of the original creditor.” 15 U.S.C. § 1692g(b). The 24 FDCPA also “prohibits the use of any false, deceptive, or misleading representation or 25 means in connection with the collection of any debt.” Tourgeman v. Collins Fin. Servs., 26 LLC, 775 F.3d 1109, 1119 (9th Cir. 2014) (citing § 1692e). In the Ninth Circuit, whether a 27 notice complies with the FDCPA is examined using a “least sophisticated debtor” standard. 28 Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997). I Defendant’s use of the statement, “if the indebtedness identified in our 2|| correspondence to you constitutes a consumer debt,” does not overshadow the FDCPA- required notices in the initial collection letter. This is particularly true because the letter 4|| repeats the notices twice, the second time in bold lettering and without any conditional || introduction. The least sophisticated debtor would still understand that the notices applied to her. Moreover, the Court does not find the statement misleading. To find that a car || purchaser does not know she is a consumer, as Plaintiff asks the Court to do, would be to 8 || apply a standard below unsophisticated.” For these reasons, Plaintiff is not entitled to || judgment on her claim based on this statement in the initial collection letter. 10 Plaintiff also takes issue with the following wording in the initial collection letter: 11]| “Please give this matter your immediate attention by contacting our office upon your 12]| receipt of this notice.” (Doc. 1-2, Compl. Ex. A, Initial Collection Letter.) Plaintiff argues 13 || that this statement demands payment before the 30-day has passed. (Mot. at 7.) Under the 14|| FDCPA, an initial communication may violate § 1692¢ if it demands payment before the 15 || 30-day waiting and verification period has expired. Mashiri, 845 F.3d at 991. But Defendant’s initial collection letter did not demand immediate payment. Instead, it stated, 17|| “give this matter your immediate attention.” Even when the least sophisticated debtor 18 || standard is applied, the letter cannot reasonably be read to demand immediate payment 19|| where the letter notifies Plaintiff, twice, of the 30-day waiting and verification period. See || Terran, 109 F.3d at 1434. As a result, the Court will deny Plaintiff’s request for judgment that this statement is misleading or overshadowing. 22 IT IS THEREFORE ORDERED denying Plaintiffs Motion for Partial Judgment 23 || on the Pleadings (Doc. 18). 24 Dated this 29th day of March, 2021. oN 26 wefhlee— Unifgd State$District Judge 27 28] 2 Likewise, the Court does not find the language “unfair or unconscionable” under § 1692f. -4-