Gallaher v. Autovest, LLC
| Decision Date | 30 March 2016 |
| Docket Number | No. CV-15-0266-TUC-BGM,CV-15-0266-TUC-BGM |
| Citation | 174 F.Supp.3d 1168 |
| Parties | David Gallaher, Plaintiff, v. Autovest, LLC, Defendant. |
| Court | U.S. District Court — District of Arizona |
Floyd W. Bybee, Bybee Law Center PLC, Chandler, AZ, for Plaintiff.
Robert Travis Campbell, Simmonds & Narita LLP, San Francisco, CA, for Defendant.
Honorable Bruce G. Macdonald
Currently pending before the Court is Defendant Autovest, LLC's Motion for Summary Judgment (Doc. 10). Plaintiff filed his Response (Doc. 20) and Defendant has replied (Doc. 23). Oral argument was held on March 29, 2016. See Minute Entry 3/29/2016 (Doc. 24).
Defendant Autovest, LLC asserts that on July 8, 2010, it acquired certain contracts, including Plaintiff David Gallaher's contract, from Wells Fargo Financial, Inc. pursuant to agreement. See Def.'s Statement of Facts (“SOF”) (Doc. 11) at ¶ 1; see Def.'s Mot. for Summ. J. (Doc. 10), Bill of Sale and Assignment of Receivables Pursuant to the Purchase Agreement 7/8/2010 (Exh. “A”). Plaintiff agrees, for purposes of this motion, that Defendant acquired certain contracts; however, contests that it acquired his specific contract. Pl.'s Controverting SOF (Doc. 21) at ¶ 1. Under the terms of the purchase agreement, Wells Fargo granted Defendant a limited power of attorney to execute assignments relating to contracts Defendant had acquired under the agreement. Def.'s SOF (Doc. 10), Form of Limited Power of Attorney 7/8/2010 (Exh. “C”). Plaintiff asserts that he “denies” this assertion, because “Defendant has not produced a copy of the Agreement, so the terms are unknown.” Pl.'s Controverting SOF (Doc. 21) at ¶ 2. The Court notes, however, that Vice President Dean R. Anderson signed the Form of Limited Power of Attorney “[f]or itself and for and on behalf of the other Sellers under the Purchase Agreement [.]” Def.'s SOF (Doc. 10), Exh. “C”.
The “Assignment of Installment Contract” (“the Assignment”) attached to the complaint filed on behalf of Defendant in the Santa Cruz County Superior Court, Autovest, LLC v. David Gallaher , et al., case number CV–14–258, lists Plaintiff David Gallaher as the obligor under a contract he entered into on February 18, 2008 in connection with the purchase of a 2005 Honda Accord. Def.'s SOF (Doc. 10), Assignment of Installment Contract (Exh. “D”); see also Compl. (Doc. 1), Exh. “A.” The Assignment identifies the “assignor” as Wells Fargo and was executed by Darren Kazich as an “agent” of Wells Fargo. Def.'s SOF (Doc. 10), Exh. “D”; see also Compl. (Doc. 1), Exh. “A.” Plaintiff denies that Darren Kazich executed the Assignment and that he was an “agent” for Wells Fargo. Pl.'s Controverting SOF (Dox. 21) at ¶ 4. Plaintiff's contention is based on counsel's statement that Darren Kazich's exact signature appears on nine other assignments unrelated to this cause of action. See id. The Assignment lists Wells Fargo as the original creditor and that the contract was assigned to Autovest on July 8, 2010. Def.'s SOF (Doc. 10), Exh. “D”; see also Compl. (Doc. 1), Exh. “A.” The Assignment does not state that Mr. Kazich is an employee of Wells Fargo. Id.
Pursuant to the Form of Limited Power of Attorney attached to the agreement between Defendant and Wells Fargo, Wells Fargo gave Defendant a limited power of attorney that granted Defendant the authority to execute assignments relating to the contracts subject to the Agreement. Def.'s SOF (Doc. 10), Exh. “C.” Mr. Kazich was authorized to execute the assignment on behalf of Wells Fargo as its agent pursuant to the Limited Power of Attorney attached to the agreement between Defendant and Wells Fargo. Def.'s SOF (Doc. 10), Basha Decl. at ¶ 6. Plaintiff argues that Ms. Basha's statement that Mr. Kazich is an employee of Defendant Autovest, LLC is controverted by her prior trial testimony in the New Mexico state court case Autovest, LLC v. Irene Evans , et al., case number CV–13–2039, in which she stated Pl.'s Controverting SOF (Doc. 21), Evans Trial Tr. 1/8/2015 (Exh. “B”) at 19:22–20:2.
In the prior Santa Cruz County Superior Court proceeding, Plaintiff admitted that he had financed a vehicle with Wells Fargo and breached that contract. Def.'s SOF (Doc. 10), Answer and Affirmative Defenses, Autovest, LLC v. Gallaher , et al., Ariz. Superior Ct. Case No. CV14–258 (Exh. “2”) at ¶¶ 4 & 5.
On June 18, 2015, Plaintiff initiated the current cause of action. See Compl. (Doc. 1). Plaintiff alleges that “Autovest created the Assignment and attached it to the Complaint [in the Arizona state court action] in order to falsely represent that a Wells Fargo employee signed the document verifying that Mr. Gallaher's contract ha[d] been assigned to Autovest.” Compl. (Doc. 1) at ¶ 14. Plaintiff further alleges that “Autovest routinely uses these ‘Assignment’ forms signed by Kazich in order to mislead consumers into believing that the statement was signed by a Wells Fargo employee.” Id. at ¶ 17. Plaintiff asserts that “Autovest purposefully uses the misleading Assignment to falsely represented [sic] that Wells Fargo provided the Assignment to establish that Plaintiff's contract had been assigned to Autovest.” Id. at ¶ 19. Plaintiff further asserts that “[a]t the time Autovest filed suit and attached the Assignment to the complaint, it knew, or should have known, that its misrepresentation as to the origin of the Assignment was false and misleading to the least sophisticated debtor.” Id. at ¶ 20. Plaintiff asserts that Defendant violated Sections 1692e
, 1692e(2)(A), 1692e(5), 1692e(10), and 1692e(14), 15 U.S.C., of the Fair Debt Collection Practices Act (“FDCPA”).
Upon receipt of the complaint in the Santa Cruz County Superior Court proceeding, Plaintiff reviewed the complaint and attachments, including the document identified as Assignment of Installment Contract. Pl.'s Controverting SOF (Doc. 21), Gallaher Decl. (Exh. “3”) at ¶ 4. Upon review of the Assignment of Installment Contract, Plaintiff believed it was a document prepared by Wells Fargo and signed by Wells Fargo personnel. Id. , Exh. 3 at ¶ 5.
The Limited Power of Attorney states that it is “subject to the terms and conditions of the aforementioned Purchase Agreement,” which is identified as “that certain Purchase Agreement...dated as of July 8, 2010.” Def.'s SOF (Doc. 10), Exh. “C.” Defendant has not provided Plaintiff or the Court a copy of the Purchase Agreement.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)
, “there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Thus, factual disputes that have no bearing on the outcome of a suit are irrelevant to the consideration of a motion for summary judgment. Id . In order to withstand a motion for summary judgment, the nonmoving party must show “specific facts showing that there is a genuine issue for trial,” Celotex Corp. v. Catrett in, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Moreover, a “mere scintilla of evidence” does not preclude the entry of summary judgment. Anderson , 477 U.S. at 252, 106 S.Ct. 2505. The United States Supreme Court has also recognized that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).
Defendant seeks summary judgment because the Assignment was not materially false or misleading. See Def's. Mot. for Summ. J. (Doc. 10). Plaintiff contends that Mr. Kazich's signature “leads the least sophisticated debtor to believe that Wells Fargo ha[d] assigned his contract to Autovest.” Pl.'s Response (Doc. 20) at 4. Plaintiff further asserts that the “Assignor” listed in the Assignment is not the same entity listed in the original loan contract and that the Assignment is ineffective under Arizona law. Id. at 6–7.
“The FDCPA was enacted as a broad remedial statute designed to ‘eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.’ ” Gonzales v. Arrow Fin. Serv., LLC , 660 F.3d 1055, 1060 (9th Cir.2011)
(quoting 15 U.S.C. § 1692(e) ). “The FDCPA comprehensively regulates the conduct of debt collectors, imposing affirmative obligations and broadly prohibiting abusive practices.” Id. at 1060–61 (citations omitted). “The FDCPA is a strict liability statue that ‘makes debt collectors liable for violations that are not knowing or intentional.’ ” Donohue v. Quick Collect, Inc. , 592 F.3d 1027 (9th Cir.2010) (quoting Reichert v. Nat'l Credit Sys., Inc. , 531 F.3d 1002, 1005 (9th Cir.2008) ).
broadly prohibits the use of “any false, deceptive, or misleading representation or means in connection with the collection of...
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