Mahon v. Credit Bureau of Placer County Inc.
| Decision Date | 28 April 1999 |
| Docket Number | No. 97-17298,97-17298 |
| Citation | 171 F.3d 1197 |
| Parties | 99 Cal. Daily Op. Serv. 1778, 99 Cal. Daily Op. Serv. 3029, 1999 Daily Journal D.A.R. 2301, 1999 Daily Journal D.A.R. 3941 James C. MAHON, individually; Gloria R. Mahon, individually, Plaintiffs-Appellants, v. CREDIT BUREAU OF PLACER COUNTY INCORPORATED, a California corporation; Eugene Bellisario, individually, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alex Veylupek and David Abrams, Sacramento, California, for the plaintiffs-appellants.
Mark Ewell Ellis and Joseph Zuber, Murphy, Pearson, Bradley & Feeney, Sacramento, California, for the defendants-appellees.
Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, Jr., District Judge, Presiding. D.C. No. CV-96-01679-GEB/DAD.
Before: WOOD 1 THOMPSON and THOMAS, Circuit Judges.
Gloria and James Mahon (the "Mahons") appeal the district court's grant of summary judgment in favor of the Credit Bureau of Placer County, Inc. and its president, Eugene Bellisario (collectively, the "Credit Bureau"), in the Mahons' action alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692g. The Mahons contend the district court erred by (1) failing to hear oral argument before granting the Credit Bureau's motion for summary judgment, (2) holding that the Credit Bureau complied
with the FDCPA by merely sending a Validation of Debt Notice pursuant to 15 U.S.C. § 1692g(a), without establishing its receipt, and (3) holding that the Credit Bureau adequately verified the debt, as required by 15 U.S.C. § 1692g(b). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gloria Mahon incurred a bill of $279.70 for medical services rendered by Dr. Larry Bowen between January 1993 and June 1993. From June 1993 through August 1995, Dr. Bowen's office sent monthly billing statements for $279.70 to the Mahons at their home address. The Mahons say they never received these statements. On September 20, 1995, after more than two years and no response from the Mahons, Dr. Bowen's office assigned the collection of the $279.70 past due account to the Credit Bureau.
As part of its regular course of business, the Credit Bureau uses computerized collection tracking and filing software, known as Columbia Ultimate Business Systems ("CUBS"). CUBS automatically generates standardized collection notices for the Credit Bureau. The collection notices are then mechanically addressed, stuffed, and posted by another machine. Prior to mailing, employees ensure that the number of outgoing notices corresponds with the number assigned to the daily "batch." CUBS also acts as an electronic filing system for each collection account, recording all collection activities, including which notices are sent to whom and on what date. Account personnel monitor collection activity on each account, routinely noting whether an envelope is returned undelivered.
On September 21, 1995, CUBS printed a standardized collection letter regarding the Mahons' delinquent account with Dr. Bowen (the "September 21 Notice"). In accordance with its standard business practice, the Credit Bureau mailed the letter to the Mahons' home address. The Mahons had lived at that address for 45 years. Although an "exact" copy of the letter was not produced, the Credit Bureau produced a letter substantially similar to that sent. The letter referenced the debt owed Dr. Bowen, the principal amount of the debt ($279.70), the accrued interest due ($52.34), and included the Credit Bureau's Standard Validation of Debt Notice, as required by the FDCPA. The Mahons did not respond to the letter, and the letter was not returned to the Credit Bureau by the Postal Service.
On October 12 and November 13, 1995, CUBS generated second and third standardized letters, which were also mailed to the Mahons' home address. The Mahons did not respond to these letters either. The Mahons contend these letters were returned to the Credit Bureau as undeliverable. They base this contention on a June 10, 1996 letter to James Mahon in which the Credit Bureau's president, Eugene Bellisario, stated, "We also mailed notices on October 12, 1995 and November 13, 1995, and then mail was returned." In his deposition, Mr. Bellisario testified this statement was a mistake, due to his cursory review of the file--in fact, no mail addressed to the Mahons was returned to the Credit Bureau. This is consistent with the CUBS printouts, which do not indicate that any mail sent to the Mahons was ever returned.
In January 1996, after receiving no response to any of the letters and repeatedly attempting without success to contact the Mahons by telephone, the Credit Bureau reported to the major credit reporting agencies that the Mahons' account was delinquent. In the early spring of 1996, the Mahons discovered their account had been reported delinquent. On June 5, 1996, James Mahon wrote the Credit Bureau and demanded verification of the debt. The Credit Bureau received this letter on June 10, 1996. Mr. Bellisario immediately contacted Dr. Bowen's office, inquired about the debt, and learned it was On September 20, 1996, the Mahons filed their complaint in this action. They alleged the Credit Bureau violated the Federal Debt Collection Practices Act by (1) failing to send a written Validation of Debt Notice, under 15 U.S.C. § 1692g(a), and (2) failing to adequately verify the debt, under 15 U.S.C. § 1692g(b).
still unpaid. The next day, Bellisario sent a letter to the Mahons conveying this information and enclosing an itemized statement of the account.
On September 8, 1997, the Credit Bureau moved for summary judgment. Neither party requested oral argument, and on October 20, 1997, the district court ordered the motion for summary judgment submitted without oral argument. Neither party objected to that procedure, and on November 6, 1997, the district court granted the Credit Bureau's motion. Summary judgment was entered in favor of the Credit Bureau and this appeal followed.
We review de novo a grant of summary judgment. See City of Vernon v. Southern Cal. Edison Co., 955 F.2d 1361, 1365 (9th Cir.1992). Viewing the evidence in the light most favorable to the Mahons, we must determine whether there is a genuine issue of material fact in dispute and whether the district court correctly applied the relevant substantive law. See id.
The Mahons argue the district court erred by failing to hold oral argument before granting the Credit Bureau's motion for summary judgment. Neither party requested oral argument of the summary judgment motion. Consequently, in accordance with the Eastern District of California's Local Rule 78-230(h), the district court entered summary judgment without oral argument. It did not err in so doing.
The Mahons' reliance on Jasinski v. Showboat Operating Co., 644 F.2d 1277 (9th Cir.1981), is misplaced. In Jasinski, we expressly stated, "Rules 56(c), 78, and 83, [of the Federal Rules of Civil Procedure] read together, authorize district courts to provide by rule that a party desiring oral argument on a motion for summary judgment must apply therefor, in the absence of which oral argument will be deemed to have been waived." Id. at 1280 (quoting Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir.1964)); see also Fernhoff v. Tahoe Reg'l Planning Agency, 803 F.2d 979, 983 (9th Cir.1986) ().
In the present case, the local rule of the Eastern District of California permits the district court to order a summary judgment motion submitted without oral argument. In the absence of objection or request for oral argument, oral argument is waived. E.D. Cal. Local R. § 78-230(h). 2 This rule is consistent with Jasinski. See Jasinski, 644 F.2d at 1280. The Mahons failed to request oral argument, and as a result oral argument was waived.
Even if waiver occurs, however, a district court may abuse its discretion if it refuses to hear oral argument when a party would suffer unfair prejudice as a result. See Houston v. Bryan, 725 F.2d 516, 518 (9th Cir.1984). That is not the situation here. Both parties provided the district court with complete memoranda of the law and evidence in support of their respective positions. The only prejudice the Mahons contend they suffered was the district court's adverse ruling on the motion.
This is not sufficient to establish the required showing of prejudice. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir.1998).
Turning to the merits, the first issue we confront is whether a debt collector satisfies 15 U.S.C. § 1692g(a) merely by sending the debtor a Validation of Debt Notice ("Notice").
The Mahons argue there must be proof that the debtor received the Notice. According to the Mahons, section 1692g(a) requires "communication" between a collector and a debtor, and this means that a collector must establish receipt and acknowledgment of a Notice by the debtor.
We hold that section 1692g(a) requires only that a Notice be "sent" by a debt collector. A debt collector need not establish actual receipt by the debtor. Section 1692g(a) 3 explicitly states that a Notice must be sent. "[A] debt collector shall ... send the consumer a written notice...." 15 U.S.C. § 1692g(a) (emphasis added). Nowhere does the statute require receipt of the Notice.
Challenging the clarity of § 1692g(a), the Mahons argue that information is not truly "sent" until "received," and contend we should focus on the section's reference to "communication." The Mahons point to the language of section 1692g(a) which provides:...
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