Chavira v. U.S. Department of Education ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA CHAVIRA, No. 1:19-cv-00538-DAD-SAB 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 14 U.S. DEPARTMENT OF EDUCATION, GRANTING DEFENDANT IMMEDIATE et al., CREDIT RECOVERY, INC.’S 15 APPLICATION AND MOTION FOR Defendants. SUMMARY JUDGMENT, IN PART 16 (Doc. Nos. 30, 32, 39) 17 18 19 Before the court are the following two motions for summary judgment and an application 20 to supplement one of those motions with a declaration that was mistakenly filed late: (i) plaintiff 21 Maria Chavira’s motion for summary judgment against defendant U.S. Department of Education 22 (“DOE”) filed on October 21, 2020, (Doc. No. 30); (ii) defendant Immediate Credit Recovery, 23 Inc.’s (“ICR”) motion for summary judgment against plaintiff filed on October 26, 2020, (Doc. 24 No. 32); and (iii) defendant ICR’s application to correct and substitute its previously filed motion 25 for summary judgment and declaration in support thereof filed on December 9, 2020, (Doc. No. 26 39). The pending motions and application were taken under submission on the papers. (Doc. 27 Nos. 31, 33, 37.) For the reasons explained below, the court will deny plaintiff’s motion for 28 ///// 1 summary judgment as moot, grant defendant ICR’s application to correct and substitute, and grant 2 in part defendant ICR’s motion for summary judgment.1 3 BACKGROUND 4 A. Factual Background2 5 This action arises from ICR seeking to collect a student loan debt on behalf of defendant 6 DOE from plaintiff, a 73-year-old woman who claims that she is the victim of identity theft and 7 that the debt ICR seeks to collect is not hers. 8 On May 28, 2018, ICR sent an initial collection letter to plaintiff stating that her 9 “defaulted student loan or grant overpayment has been placed with [ICR] for the purposes of 10 securing payment of this debt.” (Doc. Nos. 39-1 at 52; 35-2 at ¶ 19.) Among other things, the 11 letter informed plaintiff that it was “an attempt [to] collect a debt” and that the letter was “from a 12 debt collector.” (Doc. No. 39-1 at 52.) It specified the debt’s principal balance, interest, fees, 13 costs, and the resulting total balance. (Id.) The letter also provided the following notice, in part: 14 If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion 15 thereof, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or 16 verification. 17 (Id.) ICR received neither any written response from plaintiff to this initial collection letter nor 18 19 1 The undersigned apologizes for the excessive delay in the issuance of this order. This court’s overwhelming caseload has been well publicized and the long-standing lack of judicial resources 20 in this district long-ago reached crisis proportion. That situation has now been partially addressed by the U.S. Senate’s confirmation of a district judge for one of this court’s vacancies on 21 December 17, 2021. Nonetheless, for over twenty-two months the undersigned was left presiding over approximately 1,300 civil cases and criminal matters involving 735 defendants. That 22 situation resulted in the court not being able to issue orders in submitted civil matters within an 23 acceptable period of time and continues even now as the undersigned works through the predictable backlog. This has been frustrating to the court, which fully realizes how incredibly 24 frustrating it is to the parties and their counsel. 25 2 The facts set forth in this section of this order are undisputed unless otherwise noted. See Fed. R. Civ. 56(e) (stating where a party fails to address another party’s assertion of fact properly, the 26 court may “consider the fact undisputed for purposes of the motion”). To the extent certain facts, 27 or conclusions, are not mentioned, the court has not relied on them in resolving the pending motions. Thus, plaintiff’s evidentiary objections, unless specifically addressed below, are denied 28 as having been rendered moot. 1 any returned mail indicating plaintiff had not received it. (Doc. No. 35-2 at ¶¶ 22–23.) Some 70 2 days later, on August 6, 2018, plaintiff first contacted ICR by telephone and advised ICR that she 3 had received the initial collection letter but did not believe the debt belonged to her. (Id. at ¶¶ 4 24–25.) ICR told plaintiff that it would locate the promissory note associated with the account 5 and send it to plaintiff.3 (Doc. No. 39-1 at 62.) On or about that same day, August 6, 2018, ICR 6 mailed plaintiff a second collection letter with identical language as that appearing in the first 7 letter. (Doc. No. 30-1 at ¶ 3.) 8 Less than 30 days later, on August 21, 2018, plaintiff’s counsel sent a letter to ICR 9 claiming that plaintiff did not owe the debt and that she had been the victim of identity theft. 10 (Doc. Nos. 39-1 at 62; 30-1 at ¶ 5.) Three months later, on November 30, 2018, a paralegal from 11 plaintiff’s counsel’s office called ICR and was informed that plaintiff’s account was in “cease and 12 desist status.” (Doc. No. 39-1 at 62.) That same day, ICR mailed a third collection notice, this 13 time addressed to plaintiff’s counsel, with identical language as that appearing in the first two 14 letters. (Id.; Doc. No. 30-1 at 35.) 15 ///// 16 ///// 17 3 In a declaration submitted in support of ICR’s pending motion for summary judgment, senior 18 project manager Lawrence Rathbun states that “[o]nce the [promissory note] was located, ICR 19 mailed a copy of the [promissory note] to Plaintiff on or about August 7, 2018 along with a second collection notice.” (Doc. No. 35-2 at ¶ 26.) Plaintiff disputes this fact based on paragraph 20 19 of her own declaration (Doc. No. 30-1) and paragraph 4 of her supplemental declaration (Doc. No. 35). (Doc. No. 35-2 at ¶ 26.) The court finds, however, that plaintiff has failed to adequately 21 show that there is a genuine dispute as to this fact. First, plaintiff’s supplemental declaration is unsigned and is thus inadmissible. See Wilson v. City of Merced, No. 1:07-cv-01235-LJO-DLB, 22 2008 WL 4737159, at *4 (E.D. Cal. Oct. 28, 2008) (“An unsigned declaration is inadmissible to 23 oppose a summary judgment.”). Second, in paragraph 19 of her declaration, plaintiff does not dispute that ICR sent her the promissory note on August 7, 2018; rather, she merely references a 24 specific student loan agreement that she claims she did not sign and did not receive from DOE until discovery was conducted in this action. (Doc. No. 30-1 at ¶ 19.) Thus, plaintiff has failed to 25 establish a genuine dispute of fact as to whether the promissory note was sent to her by ICR on August 7, 2018. See Grant v. Unifund CCR Partners, 842 F. Supp. 2d 1234, 1240 (C.D. Cal. 26 2012) (“To overcome the presumption of mailing and receipt [of a debt verification], a debtor 27 must prove by clear and convincing evidence that the mailing was not, in fact, accomplished.”). As discussed further below, however, the court does not rely on this fact in ruling on the pending 28 motions. 1 Throughout December 2018 and early January 2019, plaintiff’s counsel and non-party 2 LifeLock4 communicated with ICR on plaintiff’s behalf regarding forms plaintiff could submit to 3 establish that she had been the victim of identity theft and that the debt at issue was not hers. (See 4 Doc. No. 39-1 at 62–63.) ICR received an identity theft victim’s complaint and affidavit in late 5 2018 and DOE’s identity theft application in early 2019 from plaintiff’s representatives seeking to 6 establish her identity theft claim and to discharge the debt. (Doc. Nos. 39-1 at 63; 30-1 at 38–44, 7 52–60.) On January 15, 2019, ICR advised LifeLock that plaintiff’s documentation had been 8 uploaded for review by the DOE, but that it ultimately denied plaintiff’s application 9 approximately one month later because it determined that the documentation plaintiff had 10 submitted was insufficient to verify that she was not the individual who owed the disputed debt. 11 (Doc. No. 39-1 at 63; 35-2 at ¶ 32.) 12 On February 21, 2019, ICR advised a paralegal in plaintiff’s counsel’s office by telephone 13 conversation that the DOE had rejected plaintiff’s identity theft application. (Doc. No. 35-2 at ¶ 14 33.) The paralegal reiterated to ICR the claim that plaintiff was the victim of identity theft, that 15 the debt was not plaintiff’s, and inquired as to what else could be done. (Doc. No. 39-1 at 45 16 (referring to entries on Exhibit B dated February 21, 2019).) On March 15, 2019, LifeLock also 17 called ICR seeking assistance in appealing DOE’s decision in this regard, and ICR advised that 18 plaintiff could attempt to submit as much additional documentation to DOE as possible. (Doc. 19 No. 35-2 at ¶¶ 34–35.) That same day, ICR mailed a fourth collection letter directly to plaintiff 20 with identical language as that contained in the first three collection letters. (Doc. No. 30-1 at 21 46.) After ICR received this lawsuit on May 3, 2019, there were no subsequent communications 22 between the parties. (Doc. No. 39-1 at 63.) 23 B. Procedural Background 24 On April 25, 2019, plaintiff filed her complaint in this action asserting a claim for 25 declaratory relief against defendant DOE and a claim brought under the Fair Debt Collection 26 Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., against defendant ICR for three asserted 27 4 LifeLock appears to be an identity theft protection company hired by plaintiff and working on 28 her behalf. (See Doc. No. 30-1 at 52.) LifeLock is not a party to this action. 1 violations under 15 U.S.C. §§ 1692g, 1692e, and 1692f. (Doc. No. 1 at ¶¶ 40–42.) This case now 2 proceeds only on plaintiff’s FDCPA claim brought against defendant ICR.5 3 On October 26, 2020, defendant ICR filed its pending motion for summary judgment 4 arguing that it: (1) complied with the all the requirements of the FDCPA, and (2) that it properly 5 relied on its creditor, the DOE, regarding the validity of the underlying debt obligation. (Doc. 6 No. 32.) Plaintiff filed her opposition to the motion on November 23, 2020. (Doc. No. 35.) On 7 December 8, 2020, ICR filed its reply. (Doc. No. 38.) When ICR filed its reply brief, it realized 8 that it had not filed a supporting declaration by Lawrence Rathbun and exhibits thereto, which it 9 had intended to file concurrently with its motion for summary judgment on October 26, 2020. 10 (See Doc. Nos. 36, 37.) Accordingly, on December 9, 2020, defendant ICR filed an application to 11 correct and substitute its previously filed motion for summary judgment with a motion that 12 includes the Rathbun declaration and exhibits. (Doc. No. 39.) Plaintiff opposed that application 13 on December 11, 2020. (Doc. No. 41.) 14 C. ICR’s Application 15 In ICR’s application, it seeks permission to substitute its originally filed motion for 16 summary judgment, (Doc. No. 32), with a version that includes the Rathbun declaration and 17 supporting exhibits because its failure to include them with the original filing was due to 18 ///// 19 ///// 20 ///// 21 ///// 22 ///// 23 ///// 24 5 On November 5, 2020, plaintiff filed a notice that she had accepted an offer of judgment from 25 defendant DOE under Federal Rule of Civil Procedure 68. (Doc. No. 34.) On January 7, 2021, judgement was entered against defendant DOE, declaring that plaintiff “is not indebted to the 26 Department of Education for any amounts.” (Doc. Nos. 43 at 2; 44.) Accordingly, plaintiff’s 27 pending motion for summary judgment against defendant DOE (Doc. No. 30) will be denied as having been rendered moot by her acceptance of defendant DOE’s Rule 68 offer of judgment. 28 The court will also direct the Clerk of the Court to terminate DOE as a defendant in this action. 1 “mistake, inadvertence, surprise or excusable neglect.” (Doc. No. 39 at 1) (citing Fed. R. Civ. P. 2 60(b)(1)).6 3 “To determine whether a party’s failure to meet a deadline constitutes ‘excusable neglect,’ 4 courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the 5 opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the 6 reason for the delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon 7 Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer, 507 U.S. at 395). 8 ICR claims in its application that the only difference between the two versions of its 9 motion for summary judgment is that the original (filed) version of the motion inadvertently 10 omitted the declaration and exhibits. (Doc. No. 39 at 1.) ICR asserts that because it nevertheless 11 served a copy of the Rathbun declaration and exhibits on plaintiff by email on October 26, 2020, 12 plaintiff was not prejudiced by its filing error in this regard. (Id. at 2–3; Doc. No. 39-2 at 2.) In 13 fact, ICR points out that plaintiff referenced the Rathbun declaration in her own opposition brief 14 and did not oppose ICR’s motion based on its failure to actually file the Rathbun declaration. 15 (Doc. Nos. 39 at 3; 35 at 6.) Finally, ICR contends the omission was “entirely unintentional” and 16 the clerical error should not prevent its motion from being decided on the merits. (Doc. No. 39 at 17 3.) 18 In opposition, plaintiff argues that “[w]e never received the filed Declaration of Lawrence 19 Rathbun, and had to work off a draft.” (Doc. No. 41 at 2.) Nonetheless, plaintiff does not claim 20 that the “draft” her counsel received was different in any way from the late-filed copy, nor does 21 plaintiff claim prejudice from the late filing of the Rathbun declaration. Instead, her short 22 23 6 Although ICR cites to Rule 60(b), because ICR is not seeking relief from an order, ICR’s application is more appropriately addressed under Rule 6(b), which provides that the court may 24 grant extensions of time for good cause shown “if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b). Both rules deal with “excusable neglect” and the Supreme Court 25 has concluded that “the determination [of ‘excusable neglect’] is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. 26 Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); see also Briones v. 27 Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (“[T]his court held that the Supreme Court’s analysis of ‘excusable’ neglect in Pioneer is applicable to Rule 6(b). . . .”) Thus, ICR’s 28 request will be deemed as if brought under Rule 6(b). 1 opposition to the application focuses on the merits of ICR’s motion for summary judgment. (Id. 2 at 4.) 3 Here, there does not appear to be any danger of prejudice to plaintiff because ICR emailed 4 plaintiff’s counsel the Rathbun declaration with exhibits on October 26, 2020, the date ICR filed 5 its motion for summary judgment with the court. (Doc. No. 39-2 at 2.) Plaintiff does not 6 contend—nor does it appear from the court’s review—that the Rathbun declaration received by 7 plaintiff on October 26, 2020 is in anyway different from the copy submitted to the court on 8 December 9, 2020. (Compare Doc. No. 39-2 at 13–46 with 39-1 at 21–54.) Indeed, plaintiff 9 primarily opposes ICR’s application because she disputes a fact asserted in the Rathbun 10 declaration, not because she did not have the opportunity to review and respond to the Rathbun 11 declaration in her brief in opposition to ICR’s motion for summary judgment. (Doc. No. 41 at 4.) 12 ICR’s mistake has not delayed or impacted these proceedings, nor is there any argument or 13 evidence from plaintiff that ICR was operating in bad faith when it promptly filed the pending 14 application and Rathbun declaration upon realizing its mistake when filing its reply brief. 15 Although the reason for delay is entirely ICR’s fault, its neglect in this instance is excusable. The 16 court will resolve ICR’s pending motion on the merits, not deny it based on a procedural 17 technicality. 18 Accordingly, defendant ICR’s application is granted, and the court will consider exhibit A 19 to the application, (Doc. No. 39-1), as the operative version of ICR’s motion for summary 20 judgment. 21 LEGAL STANDARD 22 Summary judgment is appropriate when the moving party “shows that there is no genuine 23 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 24 Civ. P. 56(a). 25 In summary judgment practice, the moving party “initially bears the burden of proving the 26 absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 27 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party 28 may accomplish this by “citing to particular parts of materials in the record, including 1 depositions, documents, electronically stored information, affidavits or declarations, stipulations 2 (including those made for purposes of the motion only), admissions, interrogatory answers, or 3 other materials,” or by showing that such materials “do not establish the absence or presence of a 4 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 5 Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, as 6 plaintiff does here, “the moving party need only prove that there is an absence of evidence to 7 support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 8 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after 9 adequate time for discovery and upon motion, against a party who fails to make a showing 10 sufficient to establish the existence of an element essential to that party’s case, and on which that 11 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 12 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 13 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 14 “so long as whatever is before the district court demonstrates that the standard for the entry of 15 summary judgment . . . is satisfied.” Id. at 323. 16 If the moving party meets its initial responsibility, the burden then shifts to the opposing 17 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 18 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 19 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 20 of its pleadings but is required to tender evidence of specific facts in the form of affidavits or 21 admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. 22 P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 23 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for 24 summary judgment.”). The opposing party must demonstrate that the fact in contention is 25 material, i.e., a fact that might affect the outcome of the suit under the governing law, see 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. 27 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the 28 evidence is such that a reasonable jury could return a verdict for the non-moving party, see 1 Anderson, 477 U.S. at 250; Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 2 In the endeavor to establish the existence of a factual dispute, the opposing party need not 3 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 4 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 5 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 6 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 7 Matsushita, 475 U.S. at 587 (citations omitted). 8 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 9 court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. 10 Cent. Contra Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing 11 party’s obligation to produce a factual predicate from which the inference may be drawn. See 12 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 13 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do 14 more than simply show that there is some metaphysical doubt as to the material facts. . . . Where 15 the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 16 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 17 ANALYSIS 18 A. Threshold Requirements for FDCPA Claims 19 The FDCPA “was enacted as a broad remedial statute designed to ‘eliminate abusive debt 20 collection practices by debt collectors, to insure that those debt collectors who refrain from using 21 abusive debt collection practices are not competitively disadvantaged, and to promote consistent 22 State action to protect consumers against debt collection abuses.’” Gonzales v. Arrow Fin. Servs., 23 LLC, 660 F.3d 1055, 1060 (9th Cir. 2011) (quoting 15 U.S.C. § 1692(e)). “The FDCPA 24 comprehensively regulates the conduct of debt collectors, imposing affirmative obligations and 25 broadly prohibiting abusive practices.” Id. at 1060–61. The FDCPA does not ordinarily require 26 proof of intentional violation; it is a strict liability statute. Id. at 1061. “In order for a plaintiff to 27 recover under the FDCPA, there are three threshold requirements: (1) the plaintiff must be a 28 ‘consumer’; (2) the defendant must be a ‘debt collector’; and (3) the defendant must have 1 committed some act or omission in violation of the FDCPA.” Warner v. Midland Credit Mgmt., 2 Inc., 540 F. Supp. 3d 946, 957 (C.D. Cal. 2021). 3 In the Ninth Circuit, whether a debt collector’s conduct violates the FDCPA “requires an 4 objective analysis that takes into account whether ‘the least sophisticated debtor would likely be 5 misled by a communication.’” Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 6 2010) (citation omitted); see also Warner, 540 F. Supp. 3d at 960 n.6 (“This principle [] governs 7 sections 1692e, 1692f, and 1692g of the FDCPA.”). “The objective least sophisticated debtor 8 standard is ‘lower than simply examining whether particular language would deceive or mislead a 9 reasonable debtor.’” Terran v. Kaplan, 109 F.3d 1428, 1431–32 (9th Cir. 1997) (citation 10 omitted). “The standard is ‘designed to protect consumers of below average sophistication or 11 intelligence,’ or those who are ‘uninformed or naive,’ particularly when those individuals are 12 targeted by debt collectors.” Gonzales, 660 F.3d at 1062 (citation omitted). “This objective 13 standard ‘ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd[,] . . 14 . the ignorant, the unthinking and the credulous.’” Clark v. Capital Credit & Collection Servs., 15 Inc., 460 F.3d 1162, 1171 (9th Cir. 2006) (citation omitted). “At the same time, the standard 16 ‘preserv[es] a quotient of reasonableness and presum[es] a basic level of understanding and 17 willingness to read with care.’” Gonzales, 660 F.3d at 1062 (citation omitted). Thus, “[m]ost 18 courts agree that although the least sophisticated debtor may be uninformed, naive, and gullible, 19 [] her interpretation of a collection notice cannot be bizarre or unreasonable.” Evon v. Law 20 Offices of Sidney Mickell, 688 F.3d 1015, 1027 (9th Cir. 2012); see also Gonzales, 660 F.3d at 21 1062 (“The FDCPA does not subject debt collectors to liability for ‘bizarre,’ ‘idiosyncratic,’ or 22 ‘peculiar’ misinterpretations.”). 23 Here, it is undisputed that plaintiff is a “consumer” and that defendant ICR is a “debt 24 collector” under the FDCPA. (See Doc. Nos. 39-1, 35-1, 38.) But the parties contest whether 25 ICR is liable for having “committed some act or omission in violation of the FDCPA,” 26 specifically §§ 1692g, 1692e, 1692f. (See Doc. Nos. 39-1, 35-1, 38.) With the above guidance in 27 mind, the court will now consider whether ICR can show that there is no genuine dispute as to 28 any material fact and that it is entitled to judgment as a matter of law in its favor on plaintiff’s 1 FDCPA claim. The court will address each asserted violation in turn. 2 B. Alleged Violation of 15 U.S.C. § 1692g 3 Section 1692g requires that “[w]ithin five days after the initial communication with a 4 consumer in connection with the collection of any debt, a debt collector shall” send the consumer 5 a written notice containing certain information unless that information was included in the initial 6 communication. 15 U.S.C. § 1692g(a). Among other things, the written notice must inform the 7 consumer that if the consumer disputes the debt in writing within 30 days after receiving the 8 written notice, the debt collector will obtain verification of the debt and mail a copy of that 9 verification to the consumer. Id. § 1692g(a)(4). When a consumer timely disputes a debt in 10 writing within that 30-day period, the debt collector must then cease collection of the debt until it 11 obtains a verification of the debt and mails a copy of that verification to the consumer. Id. § 12 1692g(b). However, a “tardy request for verification of the debt . . . [does] not trigger any 13 obligation on the part of the [debt collector] to verify the debt.” Mahon v. Credit Bureau of 14 Placer Cnty. Inc., 171 F.3d 1197, 1202–03 (9th Cir. 1999) (affirming summary judgment in favor 15 of debt collector when the debtor’s request for debt verification was sent nine months after 16 receiving the debt collector’s initial written notice). 17 The court finds that ICR is entitled to summary judgment in its favor on plaintiff’s 18 FDCPA claim, to the extent it is predicated on a violation of § 1692g, because it has demonstrated 19 that there is no genuine issue of disputed material fact here. Instead the evidence on summary 20 judgment establishes that plaintiff did not submit her debt verification request to ICR within 30 21 days of ICR’s initial communication on May 28, 2018. (See Doc. No. 35-2 at ¶¶ 19–24.) Simply 22 put, the debt verification requirements that plaintiff contends ICR violated were not triggered 23 because plaintiff did not timely dispute the debt in response to ICR’s initial communication made 24 on May 28, 2018. Nevertheless, plaintiff opposes summary judgment as to this claim, advancing 25 two arguments, both of which the court finds unavailing because they lack support in the law or 26 in the evidence presented to the court on summary judgment. 27 First, plaintiff asserts that her case “stands on different footing from Mahon” because 28 plaintiff does not owe the debt at issue. However, plaintiff fails to cite any legal authority 1 suggesting that this would make any difference. (Doc. No. 35-1 at 3.) The court does not read 2 the decision in Mahon as requiring that the debt must ultimately be valid; the court there simply 3 held that a request for verification that came nearly nine months after the initial notice was 4 provided did not trigger an obligation to verify. Mahon, 171 F.3d at 1202–03. Because plaintiff 5 does not offer any legal authority to support departing from Ninth Circuit precedent, the court is 6 bound in resolving this issue. Id.; see also Calove v. Nationstar Mortg., LLC, 698 F. App’x 386, 7 387 (9th Cir. 2017) (affirming dismissal of a § 1692g claim when the consumer’s notice disputing 8 debt came more than 30 days after the debt collector’s initial communication);7 Mulyana v. AFNI, 9 Inc., No. 2:12-cv-03634-SVW-PJW, 2012 WL 12878751, at *3 (C.D. Cal. Oct. 1, 2012) (granting 10 summary judgment when the request for verification and dispute of debt came several months 11 after the initial collection notice). 12 Second, plaintiff argues that she did dispute the debt and requested verification in a letter 13 dated August 21, 2018 from her attorney, which came fewer than 30 days after ICR sent a second 14 letter dated August 6, 2018. (Doc. No. 35-1 at 5.) But the debt verification rights provided under 15 § 1692g(b) are tied to the debt collector’s first communication with the debtor, not the second. 16 See 15 U.S.C. § 1692a(2) (defining “communication” as “the conveying of information regarding 17 a debt directly or indirectly to any person through any medium”); Hernandez v. Williams, Zinman 18 & Parham PC, 829 F.3d 1068, 1070 (9th Cir. 2016) (holding “that the phrase ‘the initial 19 communication’ [in § 1692g] refers to the first communication sent by any debt collector”); see 20 also Mayen v. New Penn Fin., LLC, No. 3:17-cv-00050-JLS-MDD, 2018 WL 2427177, at *5 21 (S.D. Cal. May 29, 2018) (“Sections 1692g(a) and 1692g(b) both establish that a consumer 22 wishing to dispute a debt must do so within thirty days of receipt of initial communication.”). 23 Plaintiff offers no legal authority to the contrary. The written request for debt verification must 24 come within “the thirty-day period described in [§ 1692g](a),” which in turn, commences within 25 five days (at the latest) of the debt collector’s “initial communication.” 15 U.S.C. §§ 1692g(b), 26 1692g(a). Here, because that initial communication took place on May 28, 2018, plaintiff’s 27 7 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 August 21, 2018 letter disputing the debt and requesting verification was sent well outside the 30- 2 day period provided in § 1692g(b).8 See Richmond v. Higgins, 435 F.3d 825, 829 n.5 (8th Cir. 3 2006) (“The FDCPA does not speak to whether the protections provided under § 1692g(b) attach 4 if the debtor disputes the debt after the expiration of the thirty-day period.”). 5 Accordingly, because there is no dispute of material fact that plaintiff did not make a 6 written debt verification request within 30 days of receiving ICR’s initial communication, ICR 7 did not violate § 1692g. The court will therefore grant ICR’s motion for summary judgment in its 8 favor on plaintiff’s FDCPA claim to the extent it is predicated on an alleged violation of § 1692g. 9 C. Alleged Violation of 15 U.S.C. § 1692e 10 Under § 1692e, “[a] debt collector may not use any false, deceptive, or misleading 11 representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The 12 FDPCA outlines a non-exclusive list of sixteen categories of conduct that constitute violations of 13 § 1692e. See id. § 1692e(1)–(16). Among other things, the “false representation of . . . the legal 14 status of any debt” constitutes a violation. Id. § 1692(e)(2)(A). In the Ninth Circuit, “a debt 15 collector’s liability under § 1692e of the FDCPA is an issue of law.” Gonzales, 660 F.3d at 1061. 16 As explained above, “[i]f the least sophisticated debtor would ‘likely be misled’ by a 17 communication from a debt collector, the debt collector has violated the [FDCPA].” Guerrero v. 18 RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir. 2007). There is also a materiality element to 19 20 8 The evidence before the court on summary judgment also suggests that ICR did follow the procedures outlined in § 1692g by verifying plaintiff’s debt on August 7, 2018, the day after 21 plaintiff first contacted ICR and ICR mailed a copy of the promissory note to plaintiff. (Doc. No. 35-2 at ¶ 26.) Although plaintiff strenuously disputes what she erroneously characterizes as a 22 “critical” fact, she fails to offer admissible evidence adequately disputing that ICR mailed her a 23 copy of the promissory note; she merely asserts that ICR “never obtained or provided plaintiff with, any verification of the debt.” (Doc. No. 35-1 at 3–4.) As noted above in footnote 3, this 24 argument is unsubstantiated and insufficient to establish a genuine dispute of material fact. Moreover, under Mahon, § 1692g “requires only that a Notice be ‘sent’ by a debt collector” and a 25 “debt collector need not establish actual receipt by the debtor.” Mahon, 171 F.3d at 1201. Thus, plaintiff’s argument that she did not receive the promissory note falls well short of establishing 26 that there is any evidence of a violation of § 1692g here. See id. However, the court need not 27 (and does not) rely on whether ICR actually sent promissory note to resolve plaintiff’s § 1692g claim because the evidence is clear that plaintiff’s debt verification request was “tardy” and thus 28 did not trigger § 1692g’s debt verification procedures. Id. at 1202–03. 1 § 1692e: “the materiality requirement functions as a corollary inquiry into whether a statement is 2 likely to mislead an unsophisticated consumer.” Donohue, 592 F.3d at 1034. “In assessing 3 FDCPA liability, we are not concerned with mere technical falsehoods that mislead no one, but 4 instead with genuinely misleading statements that may frustrate a consumer’s ability to 5 intelligently choose his or her response.” Id. Thus, “false but non-material representations are 6 not likely to mislead the least sophisticated consumer and therefore are not actionable under §§ 7 1692e or 1692f.” Id. at 1033. 8 In its pending motion, ICR misconstrues the legal standard governing a claim brought 9 under § 1692e. ICR contends that it could not have violated § 1692e (or § 1692f) because it was 10 legally entitled to rely on its client and creditor, DOE, regarding the debt’s validity. (Doc. No. 11 39-1 at 17–18) (citing Clark, 460 F.3d at 1173–74). According to ICR, the Ninth Circuit’s 12 decision in Clark stands for the propositions that it may rely on information a creditor provides it, 13 that a debt collector’s verification of a debt “involves nothing more than the debt collector 14 confirming in writing that the amount being demanded is what the creditor is claiming is owed,” 15 and that “[w]ithin reasonable limits, [the debt collector is] entitled to rely on [its] client’s 16 statements to verify the debt.” (Id.) (quoting Clark, 460 F.3d at 1173–74). ICR also relies on a 17 district court’s decision in Eliman v. L. Off. of Weltman, No. 12-cv-01599-DMG-FMO, 2013 WL 18 12119720 (C.D. Cal. Jan. 2, 2013), in which the district court granted summary judgment in favor 19 of a debt collector on the debtor’s § 1692e and § 1692f claims, rejecting the debtor’s argument 20 that because the debt never belonged to her, the debt collector violated the FDCPA simply by 21 trying to collect the debt. Id. at *2, 5. Applying the reasoning from these decisions, ICR argues 22 that it reasonably relied on information provided to it by DOE—including DOE’s determination 23 rejecting plaintiff’s attempt to discharge the debt due to purported identity theft—in attempting to 24 collect from the plaintiff. (Doc. No. 39-1 at 19.) Thus, ICR contends that “no FDCPA liability” 25 can result from its reasonable reliance. (Id.) 26 ICR misreads the decision in Clark. The citations to Clark in ICR’s pending motion 27 articulates the Ninth Circuit’s standard that a debt collector must follow when a debtor makes a 28 timely verification of debt request under § 1692g—not § 1692e, which is the subsection put at 1 issue by this claim brought by plaintiff. See Clark, 460 F.3d at 1174 (finding that because the 2 debt collectors “satisfied the requirement that they confirm with their client the particular amount 3 being claimed . . . they did not violate §§ 1692g(a)(4) or 1692g(b)”). In fact, the Ninth Circuit 4 examined § 1692e in a later section of its decision in Clark and held that § 1692e applies “even 5 when a false representation is unintentional.” Id. at 1175–76. Accordingly, ICR’s reliance on the 6 information provided to it by DOE is irrelevant in determining whether a violation of § 1692e 7 occurred (though intent remains relevant for determining damages).9 Id. at 1176 & n.11. 8 The court also finds the district court’s decision in Eliman inapposite. ICR argues that the 9 decision granting summary judgment in favor of the debt collector in Eliman is “instructive” 10 because the plaintiff in that case disputed the existence of the debt and claimed that it never 11 actually belonged to her. (Doc. No. 39-1 at 18 (citing Eliman, 2013 WL 12119720, at *5).) 12 While those facts may be similar to those presented here, the district court’s decision in Eliman is 13 not instructive as to the proper resolution of the legal issues presented by ICR’s pending motion. 14 In Eliman, the court’s analysis regarding § 1692e (and § 1692f) centered on the debt collector’s 15 asserted bona fide error affirmative defense under § 1692k(c)—a defense that ICR did not move 16 ///// 17 ///// 18 ///// 19 ///// 20 ///// 21 ///// 22 23 9 The court acknowledges that ICR’s reasonable reliance would be relevant under the bona fide error affirmative defense provided for by 15 U.S.C. § 1692k(c). See Clark, 460 F.3d at 1176–77. 24 But this is a “narrow exception to strict liability under the FDCPA” and because it is an affirmative defense to it, ICR would bear “the burden of proof at summary judgment.” Id. at 25 1177. Though ICR asserts this defense in its answer, ICR does not mention or cite to that defense in its pending motion. (See Doc. Nos. 39-1 at 17–19; 38 at 1–10.) Thus, the court will not 26 address the potential merits of any such affirmative defense in this order. See Katz v. Children’s 27 Hosp. of Orange Cnty., 28 F.3d 1520, 1534 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 323) (“[A] party seeking summary judgment always bears the initial responsibility of informing the 28 district court of the basis for its motion.”). 1 for summary judgment on in its pending motion.10 See Katz, 28 F.3d at 1534. 2 Applying the correct legal standard and based on the undisputed facts here, the court finds 3 that defendant ICR has failed to establish that it is entitled to judgment as a matter of law 4 regarding whether it falsely represented the legal status of the debt in violation of § 1692e. For 5 this analysis, the relevant communications are four letters sent by defendant ICR to plaintiff 6 (dated May 28, 2018; August 6, 2018; November 30, 2018; and March 15, 2019), and which were 7 identical in substance. (See Doc. Nos. 39-1 at 52; 30-1 at 17, 35, 46.) Those letters represented 8 to plaintiff that she had defaulted on her “student loan or grant overpayment” and that ICR was a 9 “debt collector” attempting to “collect a debt.” (See, e.g., Doc. No. 30-1 at 46.) The letters 10 detailed plaintiff’s account number, along with the principal balance, interest, fees and costs, 11 penalty charges, and total balance of the debt owed. (Id.) The letters also informed plaintiff that 12 unless she notified ICR within 30 days after receipt of the letter that she disputed the validity of 13 the debt, ICR would assume that the debt was valid. (Id.) 14 ICR first contends that there “are zero facts of record to support the proposition that ICR 15 engaged in ‘collection efforts’ after August 6, 2018.” (Doc. Nos. 38 at 8.) Plaintiff disputes 16 ICR’s assertion by pointing to the March 15, 2019 letter, which the court agrees constituted an 17 attempt to “collect a debt” as the letter itself states. (Doc. Nos. 30-1 at 46; 35-2 at ¶¶ 28–29.) 18 Notably, in its reply, ICR does not mention, let alone meaningfully address, the March 15, 2019 19 10 In its reply brief, ICR also cites the district court’s decision in Story v. Midland Funding LLC, 20 No. 3:15-cv-00194-AC, 2015 WL 7760190 (D. Or. Dec. 2, 2015). In ruling on a motion for judgment on the pleadings in that case, the district court rejected the premise “that attempting to 21 collect a debt that the consumer does not actually owe is false, misleading, or deceptive” under § 1692e. Id. at *6. The court found that “the structure of the FDCPA and the case law interpreting 22 it do not support that legal theory.” Id. at 6 (collecting cases). The reasoning underpinning the 23 decision in Story and the cases it relied on have been found by other district courts to be discordant with the “unintentional” standard articulated by the Ninth Circuit in Clark for 24 violations of § 1692e. See Opico v. Convergent Outsourcing, Inc., No. 2:18-cv-01579-RSL, 2021 WL 1611505, at *5 (W.D. Wash. Apr. 26, 2021) (reviewing Story and the cases on which it relied 25 and finding its approach “inconsistent with the Ninth Circuit’s Clark decision”); Healey v. Trans Union LLC, No. 2:09-cv-0956-JLR, 2011 WL 1900149, at *8 n.5 (W.D. Wash. May 18, 2011) 26 (noting that the Ninth Circuit in Clark disapproved of the standard applied in the principal case 27 upon which Story relied). Having reviewed those cases, the court declines to follow the decision in Story and finds the reasoning in Opico and Healey to instead be consistent with the court’s own 28 reading of the Ninth Circuit’s decision in Clark. 1 letter, or otherwise counter plaintiff’s argument that this letter constituted an attempt to collect a 2 debt. In addition, ICR does not dispute plaintiff’s unequivocal statements disclaiming the 3 underlying debt (i.e., her declaration that she never enrolled in the colleges in question, never 4 applied for or received a Pell grant, student loan, or federal student aid, and never received funds 5 from or owed any amounts to the DOE). (See Doc. No. 30-1 at ¶¶ 18–19, 25–34.) Because ICR 6 does not contest any of these facts, they are deemed undisputed for purposes of resolving this 7 motion. See Fed. R. Civ. 56(e). Thus, there is no dispute on summary judgment that the debt that 8 ICR sought to collect from plaintiff was not actually a debt that was legally owed by her. 9 ICR also had reason to question the validity of the debt before sending the March 15, 2019 10 letter to plaintiff. In the intervening months between August 6, 2018 and March 15, 2019, ICR 11 continued to advise and instruct plaintiff, her counsel, and LifeLock11 on the steps to take in order 12 to dispute the validity of the debt, including: submitting paperwork to the DOE regarding the 13 theft of her identity, challenging the DOE’s determination of insufficient evidence, and 14 continuing to submit “as much proof as possible” to DOE to appeal DOE’s decision. (See Doc. 15 Nos. 39-1 at 44–45, 62–63; 35-2 at ¶¶ 29–35; 35-1 at ¶ 29.) Despite knowing plaintiff was still 16 actively contesting the debt, ICR sent her a fourth collection letter on March 15, 2019. (Doc. No. 17 30-1 at ¶ 16.) Thus, ICR knew plaintiff contested that the debt belonged to her and had received 18 evidence from plaintiff supporting her claim, (Doc. No. 39-1 at 63), but still sent out a collection 19 letter asserting unequivocally that it was a valid debt belonging to plaintiff. Cf. Valdez v. Action 20 Fin. Servs., LLC, No. 3:20-cv-00015-LRH-CLB, 2021 WL 5108755, at *6 (D. Nev. Aug. 3, 21 2021) (granting summary judgment in favor of a debt collector on a § 1692e(2)(A) claim when 22 plaintiff refused to complete DOE’s process for disputing validity of debt and submitted no 23 evidence suggesting the legal status of the debt had been falsely represented); Blackmon v. Ad 24 Astra Recovery Servs., Inc., No. 3:20-cv-00800-CAB-JLB, 2021 WL 1541647, at *3 (S.D. Cal. 25 11 ICR admits to having several communications with plaintiff’s counsel and LifeLock in response to their inquiries about proving that plaintiff was the victim of identity theft. (Doc. No. 26 38 at 6–7.) Plaintiff does not appear to contend—nor does the court consider—the 27 communications between ICR and plaintiff’s counsel or LifeLock to be relevant evidence as to her claim of violations of the FDCPA. See also Guerrero, 499 F.3d at 934 (holding “that 28 communications directed solely to a debtor’s attorney are not actionable under the [FDCPA]”). 1 Apr. 20, 2021) (granting summary judgment for the debt collector on § 1692e(2)(A) claim when 2 it “made no attempt to collect the debt” after being notified that plaintiff claimed she did not owe 3 the debt).12 4 Viewing the evidence in the light most favorable to plaintiff, from the perspective of the 5 least sophisticated consumer, and mindful that the FDCPA does not require proof that a violation 6 of § 1692e(2)(A) was knowing or intentional, the court concludes that defendant has not 7 established that it is entitled to judgment as a matter of law in its favor on plaintiff’s claim for 8 violation of § 1692e. Critically, the undisputed facts before the court on summary judgment show 9 that ICR sent collection letters to plaintiff representing that the debt it sought to collect was 10 legally owed by plaintiff when it, in fact, was not. See Healey, 2011 WL 1900149, at *8–9 11 (finding that the plaintiff presented disputed issues of fact when the debt collector “represented in 12 its collection letters and to the credit reporting agencies that the delinquent Sprint/Embarq 13 account belonged to” plaintiff); Opico, 2021 WL 1611505, at *6 (finding plaintiff presented 14 disputed issues of fact when the debt collector represented in collection letters that the debt 15 belonged to plaintiff even after plaintiff told the debt collector that he “‘did not have any 16 knowledge’ of the alleged debt and that he would be disputing the debt”). 17 The court will therefore deny ICR’s motion for summary judgment on plaintiff’s FDCPA 18 claim to the extent it is predicated on an alleged violation of § 1692e. 19 D. Alleged Violation of 15 U.S.C. § 1692f 20 Under 15 U.S.C. § 1692f, “[a] debt collector may not use unfair or unconscionable means 21 to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. The FDPCA outlines a non- 22 12 Although plaintiff’s failure to timely dispute the debt under § 1692g meant that “the debt will 23 be assumed to be valid by the debt collector,” 15 U.S.C. § 1692g(a)(3), that failure “may not be construed by any court as an admission of liability by the consumer.” Id. § 1692g(c). Even if 24 ICR was entitled to assume that the debt was valid, “[a] misstatement of a debt need not be knowing or intentional to create liability under [§ 1692e(2)(A)].” Heejoon Chung v. U.S. Bank, 25 N.A., 250 F. Supp. 3d 658, 685 (D. Haw. 2017). The FDCPA readily offers a means for rectifying unintentional violations through the bona fide error defense. See Kaiser v. Cascade 26 Cap., LLC, 989 F.3d 1127, 1139 (9th Cir. 2021) (“As we have explained, the FDCPA offenses at 27 issue lack a mens rea requirement because the statute imposes strict liability. But the bona fide error defense is the statute’s ‘narrow exception to strict liability.’ [citation] It relieves liability for 28 certain ‘unintentional’ violations, thereby functioning similarly to a mens rea requirement.”). 1 exclusive list of eight categories of conduct that constitute violations of § 1692f. See id. § 2 1692f(1)–(8). As with § 1692e claims, whether conduct violates § 1692f “requires an objective 3 analysis that considers whether ‘the least sophisticated debtor would likely be misled by a 4 communication.’” Donohue, 592 F.3d at 1033 (citation omitted). The same materiality 5 requirement for claims arising under § 1692e also applies to those arising under § 1692f. Id. 6 Among the eight listed categories in § 1692f, plaintiff appears to argue that ICR violated § 7 1692f(1). (Doc. Nos. 1 at ¶ 41; 35-1 at 4.) That provision prohibits a debt collector from 8 collecting “any amount (including any interest, fee, charge, or expense incidental to the principal 9 obligation) unless such amount is expressly authorized by the agreement creating the debt or 10 permitted by law.” 15 U.S.C. § 1692f(1). “Many courts have interpreted section 1692f(1) to 11 address the abusive practice of ‘collecting an amount greater than that which is owing,’ not 12 collecting on a debt that turns out to have been incurred by another person.” Opico, 2021 WL 13 1611505, at *9 (collecting cases); see also Clark, 460 F.3d at 1178 (“[W]hen [the debt collector] 14 pursues a debt it knows is overstated . . . [it] seeks to collect an amount that is not permitted by 15 law in contravention of § 1692f(1).”). 16 In her complaint, plaintiff alleges that ICR violated § 1692f when it sought to collect 17 amounts from her that were not authorized by the agreement creating the debt (because, as 18 plaintiff alleges, there was no debt owed by her). (Doc. No. 1 ¶ 41.) In other words, plaintiff 19 appears to allege that ICR violated § 1692f based on the same alleged conduct underlying her § 20 1692e claim—i.e., that she did not ultimately owe the debt that ICR sought to collect. (Doc. No. 21 35-1 at 4.) See also Clark, 460 F.3d at 1177–78 & n.12 (recognizing that “one action can give 22 rise to multiple violations of the [FDCPA]” but noting that this “in no way implies that a violation 23 of one provision of the FDCPA automatically constitutes a violation of another”). 24 Here, for plaintiff to succeed on a claim brought under § 1692f(1), she would need to 25 show that ICR sought to collect an amount greater than that which was authorized by the 26 underlying debt agreement. Plaintiff’s contention that ICR attempted to collect a debt she did not 27 owe, does not dispute or assert that the amount ICR sought to collect was greater than that 28 authorized by the underlying debt agreement. There is no evidence before the court on summary 1 judgment showing that ICR’s collection activities—i.e., sending four collection letters—would 2 confuse a hypothetical least sophisticated consumer that the amount ICR sought to collect was 3 greater than the amount allowed under the debt agreement. See Valdez, 2021 WL 5108755, at *9. 4 Rather, “where the amount being collected by the collection agency [is] not different than the 5 amount owed, § 1692f(1) [is] inapplicable to the plaintiff’s claim that the collection agency was 6 attempting to collect the debt from the wrong person.” Blackmon, 2021 WL 1541647, at *5; see 7 also Valdez, 2021 WL 5108755, at *8–9 (granting summary judgment in favor of a debt collector 8 on a § 1692f(1) claim that was based on the debt collector seeking to collect a student loan debt 9 that did not belong to the plaintiff). 10 In addition, to the extent plaintiff’s § 1692f claim generally asserts ICR’s communications 11 constituted “unfair or unconscionable” debt collection practices, the court finds that the collection 12 letters sent directly to plaintiff were “informational and non-threatening.” Healey, 2011 WL 13 1900149, at *10 (citing Wade v. Regional Credit Ass’n, 87 F.3d 1098, 1100–01 (9th Cir.1996)). 14 There is no basis upon which to find that contacting the person matching the account holder about 15 the debt could qualify as “unfair or unconscionable means” in this case. See Warner, 540 F. 16 Supp. 3d at 965 (granting summary judgment in favor of a debt collector on a § 1692f claim 17 where the debt collector used a default judgment to levy plaintiff’s bank account despite 18 plaintiff’s repeated assertion (and later presentation of proof) that the plaintiff was not the person 19 in fact responsible for the delinquent debt). 20 Accordingly, because there is no dispute of material fact on summary judgment showing 21 that ICR sought to collect an amount greater than the underlying debt agreement or that sending 22 collection notices constitutes an “unfair or unconscionable means” to collect a debt, the court 23 concludes that ICR did not violate § 1692f by trying to collect a debt that was not in fact owed by 24 plaintiff. Thus, the court will grant ICR’s motion for summary judgment as to plaintiff’s FDCPA 25 claim to the extent it is predicated on an alleged violation of § 1692f. 26 ///// 27 ///// 28 ///// 1 CONCLUSION 2 For the reasons explained above: 3 1. Plaintiff's motion for summary judgment (Doc. No. 30) is denied as having been 4 rendered moot by her acceptance of defendant DOE’s Rule 68 offer of judgment; 5 2. Defendant ICR’s application (Doc. No. 39) to correct and substitute its previously 6 filed motion for summary judgment is granted; 7 3. Defendant ICR’s motion for summary judgment (Doc. No. 32) is granted, in part: 8 a. Defendant ICR’s motion for summary judgment on plaintiff's FDCPA 9 claim predicated on an alleged violation of § 1692g claim is granted; 10 b. Defendant ICR’s motion for summary judgment on plaintiff's FDCPA 11 claim predicated on an alleged violation of § 1692e claim is denied; and 12 C. Defendant ICR’s motion for summary judgment on plaintiff's FDCPA 13 claim predicated on an alleged violation of § 1692f claim is granted. 14 4. The matter is referred to the assigned magistrate judge to re-schedule dates for a 15 Final Pretrial Conference and Jury Trial in this action; and 16 5. The Clerk of the Court is directed to terminate defendant U.S. Department of 17 Education as a named defendant in this action. 18 | IT IS SO ORDERED. me □ | Dated: _ April 11, 2022 Yola A Lange 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 21