Arteaga v. Asset Acceptance, LLC

• Decision Date: 15 September 2010
• Docket Number: Case No. CV-F-09-1860 LJO GSA
• Citation: 733 F.Supp.2d 1218
• Parties: Tina ARTEAGA, Plaintiff, v. ASSET ACCEPTANCE, LLC., Defendant.
• Court: U.S. District Court — Eastern District of California

733 F.Supp.2d 1218

Tina ARTEAGA, Plaintiff,

v.ASSET ACCEPTANCE, LLC., Defendant.

Case No. CV-F-09-1860 LJO GSA.

United States District Court, E.D. California.

Aug. 23, 2010.

Order Denying Reconsideration Sept. 15, 2010.

Nicholas J. Bontrager, Krohn and Moss, Ltd., Los Angeles, CA, for Plaintiff.

Jeffrey A. Topor, Tomio B. Narita, Simmonds & Narita LLP, San Francisco, CA, for Defendant.

ORDER ON DEFENDANTS' SUMMARY JUDGMENT MOTION (Doc. 15)

LAWRENCE J. O'NEILL, District Judge.

Introduction

Plaintiff Tina Arteaga ("Ms. Arteaga") asserts claims against defendant Asset Acceptance, LLC ("Asset") pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and the California Rosenthal Act, Cal. Civ. Code § 1788 et seq. , based on allegations that Asset called her "constantly and continuously" in an attempt to collect an allegedly unpaid debt, and threatened to "attach" her bank account. Asset moves for summary judgment of Ms. Arteaga's claims, pursuant to Fed. R. Civ. P. 56, arguing that no admissible, competent evidence demonstrates that Asset engaged in conduct to violate federal or state law, and the volume and pattern of calls did not violate FDCPA or the Rosenthal Act as a matter of law. Ms. Arteaga argues that questions of fact exist as to whether Asset's conduct violated the statutes. Having considered the parties' arguments and evidence, and the applicable case law, this Court GRANTS summary judgment in favor of Asset and DIRECTS the clerk of court to close this action.

Background

Ms. Arteaga's Statement of Facts

Ms. Arteaga received a letter from Asset informing her that Asset was "now in possession" of one of her accounts, and was attempting to collect the debt. After receipt of that letter, Ms. Arteaga called Asset in "the early part of 2009" to dispute the debt, as she believes she had settled that debt around twelve years prior. Ms. Arteaga testified that the person she spoke with at Assert was "unprofessional." In addition, Ms. Arteaga testified that female she spoke with threatened her by telling her that Assert "could attach [her] bank accounts with or without" her "sending them the correspondence." According to Ms. Arteaga, Asset began calling her "in the early part of 2009, probably January or February." Ms. Arteaga testified that Asset called her "daily" or "real close to daily." Ms. Arteaga recalls that Asset's debt collection calls ended around the summer of 2009. On the basis of these facts, Ms. Arteaga asserts FDCPA and Rosenthal Act claims against Asset, arguing that Asset's constant and continuous calls and threats violate federal and state law.

Asset's Statement of Facts

According to Asset's records, Asset employee Linda Plimely ("Ms. Plimely") received an incoming telephone call from Ms. Arteaga regarding the debt that Asset was seeking to collect on February 12, 2009. Ms. Arteaga advised Ms. Plimely that she had previously paid the debt, and that she had a copy of the check she used to settle it. Ms. Plimely declares that she did not threaten that Asset would initiate legal action against Ms. Arteaga or tell Ms. Arteaga that Asset would access her bank account.

Asset contends that before Ms. Arteaga called Asset, she expected Asset would threaten to attach her bank account. Asset points out that Ms. Arteaga researched the company on the internet "to see if it was even worth [her] time to call [Asset]" prior to the phone call. Ms. Arteaga testified that during her research, she "read very bad things" about Asset:

They-there is-if you go on the Internet, you can-there's people that complain and warn you don't send your-don't send anything to Asset because they-you know, they've attached people's bank accounts. They've-I don't remember everything that's on there, but if you just do research on Asset and you'll come up with plenty of different complaints.

Ms. Arteaga found "warnings" that a person should not send information to Asset or Asset "will attach your bank account, they will attach your wages." In her research on Asset, Ms. Arteaga read comments from people who wrote that "Asset had attached their wages. Asset had done horrible things, horrible things to affect them financially. So it was just giant [sic] warning out there as far as don't correspond with Asset at all." Although Ms. Arteaga does not believe everything she reads on the internet, she does believe "a good portion of what [she] read" about Asset.

Asset contends that Ms. Plimely did not threaten Ms. Arteaga, and any perceived threat was a misunderstanding. Asset disputes that Ms. Plimely discussed the possibility of attaching Ms. Arteaga's bank account. Asset argues, however, that even if Ms. Arteaga's statements are taken as true, Ms. Plimely did not threaten her.

Asset argues that the circumstances surrounded the call and the alleged threat demonstrate that Ms. Plimely's statement, if made, was not threatening or harassing. According to Ms. Arteaga's testimony, she called Asset to dispute the debt. The person asked if Ms. Arteaga had a "settled in full letter" to demonstrate that the debt was paid. Ms. Arteaga responded that shedid not have the letter, because she had settled the debt. She further explained that she did not have a "settled in full" letter, but did have "copies of the check front and back" that she used to settle the account. The person then told her that "without a settled in full letter, [Ms. Arteaga] was still going to be responsible for the debt and to send [Asset] all the information [she] had." Ms. Arteaga responded:

I told them that I had concerns about doing that because of their reputation in-and giving them my account number, and the person said that they could attach my bank account with or without that information. They could look up my information, things along those lines, and so they could do it with or without my sending the correspondence. I said okay and hung up.

Ms. Arteaga explained that she was concerned about sending Asset a copy of the settlement check because:

by providing them my check they would then have my account number, and she said that she could-they could attach to my account with or without that. They could find that information. So I didn't want to make it easier for them to attach my account for a bill that I'd paid 12 years before that.

Ms. Arteaga further explained that she "had read very bad things, that they were very-they would attach-they would attach to people's bank account and things of that nature, and so I did not want to provide a check to them." According to Ms. Arteaga, she told the Asset representative that she "had concerns about sending [Asset] a check" prior to when the Asset representative made the allegedly threatening statement.

Ms. Arteaga admitted that Asset's representative never threatened to sue her and never told her that Asset would attach her bank account. Rather, according to Ms. Arteaga, Asset's representative explained that Asset could gain access to her account without having the check.

According to Asset's records, after the February 12, 2009 call, Asset marked Ms. Arteaga's account as "disputed" and sent her a letter dated February 17, 2009 requesting that Ms. Arteaga send copies of any documents showing that she had previously paid the debt. Among other things, Asset's letter explained that Ms. Arteaga could send a letter stating that the account had been "paid in full or settled," or a copy of a cancelled check or other form of payment along "with a letter/statement that indicates a satisfaction amount relating to the payment instrument." Ms. Arteaga did not respond to Assert's February 17, 2009 letter.

Asset sent Ms. Arteaga a second letter dated March 18, 2009. The second letter again requested documents showing that Ms. Arteaga made the alleged payment. Asset received no response from Ms. Arteaga. On April 15, 2009, Asset updated it records to reflect that it considered Ms. Arteaga's dispute of the account to be "closed."

Asset then resumed efforts to collect the debt. Between April 16, 2009 and September 29, 2009, Asset's records reflect that Asset telephoned Ms. Arteaga a total of eighteen times. Specifically, Asset called on the following dates: 4/16, 4/28, 5/8, 5/13, 5/14, 5/27, 6/12, 6/16, 6/25, 6/30, 7/6, 7/13, 7/22, 8/4, 8/12, 8/18, 9/2, and 9/29. Asset noted the following outcome of the calls:

(A) On nine occasions, no one answered the phone;

(B) On three occasions, an answering machine was detected, but no message was left;

(C) On two occasions, an answering machine was detected and a message was left;(D) On one occasion, a busy tone was detected;

(E) On one occasion, someone answered but did not confirm whether it was Ms. Arteaga;

(F) On one occasion, someone answered and selected a prompt to indicate that it was the right party, but the call dropped before it could be connected to a live representative; and

(G) On one occasion, the call dropped before it could be completed.

Asset contends that the purpose of the calls was to contact Ms. Arteaga to arrange payments to satisfy the debt, and that no calls were placed with the intent to annoy, abuse or harass Ms. Arteaga.

Asset disputes Ms. Arteaga's recollection that Asset called "daily." Ms. Arteaga claimed she knew Asset called her because "[t]here were messages on the answering machine, and we have caller ID." But Ms. Arteaga did not know how many times Asset called her. She also admitted that she was getting calls "every few days" from a different collection agency in 2009. Ms. Arteaga was unable to say how many messages Asset left for her. Ms. Arteaga admitted that she "would just delete through them" and that she "didn't listen to the full message." Ms. Arteaga could not remember how many times her caller ID reflected that Asset had called her. She explained that the caller ID displayed "just the 800 numbers," but conceded that she does not remember what the phone number was that she believed to be connected to Asset. She also admitted that more than one ...