Hosseinzadeh v. M.R.S. Associates, Inc.
| Decision Date | 03 March 2005 |
| Docket Number | No. CV0400419CASRCX.,CV0400419CASRCX. |
| Court | U.S. District Court — Central District of California |
| Parties | Noushin A. HOSSEINZADEH, Plaintiff, v. M.R.S. ASSOCIATES, INC., Defendant. |
Joshua B. Swigart, Robert L. Hyde, San Diego, CA, for Plaintiff.
Stephen H. Turner, Los Angeles, CA, for Defendants.
ORDER GRANTING SUMMARY JUDGMENT IN PART FOR PLAINTIFF AND DENYING SUMMARY JUDGMENT FOR DEFENDANT
On January 23, 2004, plaintiff Noushin A. Hosseinzadeh ("Hosseinzadeh") filed suit against defendant M.R.S. Associates, Inc. ("MRS"). Plaintiff alleges the following claims: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1962 et seq.; and (2) violation of the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ.Code §§ 1788-1788.32. On December 17, 2004, defendant filed a motion for summary judgment. On December 27, 2004, plaintiff filed her opposition to defendant's motion and on January 7, 2005, defendant filed its reply. Defendant's motion is presently before the Court.
Plaintiff allegedly incurred a disputed debt to Capital One sometime before December 6, 2003, and subsequently failed to pay amounts allegedly due. Complaint ¶¶ 14, 15. Plaintiff's debt was assigned or transferred to defendant for collection. Id. ¶ 16. On December 5, 2003, defendant sent a letter to plaintiff regarding this debt. Mot. at 2; Declaration of Daniel J. McCusker ("McCusker Decl.") ¶ 2; Opp'n at 2.1
Subsequently, plaintiff received six messages from defendant on her answering machine on December 9, 16, 17, 18, 23, and 29, 2003, respectively. Defendant's Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment ("Def.'s Statement") ¶ 2.
On December 9, 2003, plaintiff received the following automated message on her answering machine:2
Hello, this is Thomas Hunt calling. Please have an adult contact me regarding some rather important information. This is not a sales call, however, regulations prevent me from leaving more details. You will want to contact me at 1-877-647-5945 as soon as possible. This is a toll free number. Once again this is Thomas Hunt calling and my number is 1-877-647-5945. Thank you.
Notice of Lodging of Evidence in Support of Plaintiff, Noushin Hosseinzadeh's Opposition to M.R.S. Associates, Inc. Motion for Summary Judgment ("Pl.'s Exs.") A, B; Def.'s Statement ¶ 4; McCusker Decl. ¶ 3.3
On December 16, 2003, plaintiff received the following message on her answering machine:
This message is for Ashraf. Ashraf, my name is Clarence Davis. I have some very important information to discuss with you. I have to make a decision about a situation that concerns you. I am going to make this decision with our without your input. Contact my office right away at 877-647-5945, Extension 3619. Failure to return my call will result in a decision-making process that you will not be a part of.
Pl.'s Exs. A, B; Def.'s Statement ¶ 5; McCusker Decl. ¶ 4.
On December 17, 2003, plaintiff received the following message on her answering machine:
This message is for Ashraf. Ashraf my name is Clarence Davis. I have some very important information to discuss with you in reference to a file that has been forwarded to my office that involves you personally. Contact my office right away at 877-647-5945, extension 3618. Failure to return my call will result in a decision making process that you will not be a part of.
Pl.'s Exs. A, B; Def.'s Statement ¶¶ 6; McCusker Decl. ¶¶ 5.
Similarly, on December 18, 2003, plaintiff received the following message on her answering machine:
This message is for Ashraf. Ashraf, my name is Clarence Davis. I have some very important information to discuss with you. There has been a trial that has been sent to my office that I'm sure you're not aware of but involves you personally.4 Contact me right away at 877-647-5945, extension 3618. Failure to return my call will result in a decision making process that you will not be a part of.
Def.'s Statement ¶ 2; Pl.'s Statement ¶ 7; Pl.'s Exs. A, B.5
On December 23, 2003, plaintiff received the following message on her answering machine:
Hello! This is Thomas Hunt calling. Please have an adult contact me regarding some rather important information. This is not a sales call, however, regulations prevent me from leaving more details. You will want to contact me at 1-877-647-5945 as soon as possible. This is a toll free number. Once again this is Thomas Hunt calling and my number is 1-877-647-5945. Thank you.
Pl.'s Exs. A, B; Def.'s Statement ¶ 9; McCusker Decl. ¶ 7. Plaintiff received a similar message on December 29, 2003. Def.'s Statement ¶ 10; McCusker Decl. ¶ 8; Opp'n at 2.6
On December 31, 2003, defendant received plaintiff's request for a debt validation notice pursuant to the FDCPA and to cease all calls to her. Def.'s Statement ¶ 11; McCusker Decl. ¶ 9. Subsequently, defendant ceased calling plaintiff. Def.'s Statement ¶ 11; McCusker Decl. ¶ 9.
Plaintiff alleges that these communications are false, deceptive or misleading and that the natural consequence of certain of these communications is "to harass, oppress, or abuse the least sophisticated consumer" in violation of the FDCPA and the Rosenthal Act. Id. ¶¶ 24, 25, 29, 30, 34, 35. Plaintiff also alleges that these communications lack meaningful disclosure of the caller's identity in violation of the FDCPA and the Rosenthal Act. Complaint ¶¶ 19, 23, 28, 33, 38.
Summary judgment is appropriate where "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). The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the moving party has sustained its burden, the nonmoving party must then identify specific facts, drawn from materials on file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested. See Fed.R.Civ.P. 56(c). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). See also Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. See also Abromson v. American Pacific Corp., 114 F.3d 898, 902 (9th Cir.1997).
In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 & n. 3 (9th Cir.1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir.1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
District courts "possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence." Celotex Corp., 477 U.S. at 326, 106 S.Ct. 2548; Schwarzer § 14:55. Schwarzer § 14:55 (emphasis in original) (citing Kassbaum v. Steppenwolf Prods., Inc., 236 F.3d 487, 494-95 (9th Cir.2000)).
Plaintiff alleges several claims arising under the FDCPA. The purpose of the FDCPA is "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 protect consumers against debt collection issues." 15 U.S.C. 1692(e). 15 U.S.C. § 1692d protects against harassing, oppressive or abusive conduct by debt collectors. 15 U.S.C. § 1692d. 15 U.S.C. § 1692e protects against any "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. 15 U.S.C. § 1692f prohibits debt collectors from using "unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. § 1692f.
(1) Section 1692d
15 U.S.C. § 1692d provides in relevant part:
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
. . . . .
(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller's identity.
15 U.S.C. § 1692d.
Relying on Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th...
To continue reading
Request your trial
-
Warner v. Midland Credit Mgmt., Inc.
...in proving they are entitled to summary judgment under section 1788.17 of the Rosenthal Act. See Hosseinzadeh v. M.R.S. Associates, Inc., 387 F. Supp. 2d 1104, 1118 (C.D. Cal. 2005) ("Because defendant has violated the FDCPA for the reasons stated herein, the Court concludes that defendant ......
-
Zortman v. J.C. Christensen & Assocs., Inc.
...are “communications” and that §§ 1692d(6) and 1692e(11) require debt collectors to identify themselves. See Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104 (C.D.Cal.2005); Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643, 669 (S.D.N.Y.2006); see also Baker v. Allstate Fin. Servs., In......
-
Edwards v. Niagara Credit Solutions, Inc.
...at *5 (E.D.Cal. Dec.19, 2007); Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643, 654-60 (S.D.N.Y.2006); Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104, 1116 (C.D.Cal.2005); but see Biggs v. Credit Collections, Inc., No. CIV-07-0053-F, 2007 WL 4034997, at *4 (W.D.Okla. Nov.15, Indeed......
-
Drossin v. National Action Financial Services
...not mention anything pertaining to debt collection, or for that matter, anything pertaining to finances); Hosseinzadeh v. M.R.S. Assoc., Inc., 387 F.Supp.2d 1104, 1116 (C.D.Cal. 2005) (defendant's messages failed to convey its status as a debt collector, in violation of FDCPA). Furthermore,......
-
The Role of Validation and Communication in the Debt Collection Process
...recorder was a communication, even though collector did not mention anything about the debt); Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F. Supp. 2d 1104, 1112 (C.D. Cal. 2005) (stating that message left on consumer's answering machine was a communication and thus violated the statute becaus......