Moritz v. Daniel N. Gordon, P.C.

• Decision Date: 11 September 2012
• Docket Number: Case No. C11–1019JLR.
• Parties: Martha MORITZ, Plaintiff, v. DANIEL N. GORDON, P.C., et al., Defendants.
• Court: U.S. District Court — Western District of Washington

895 F.Supp.2d 1097

Martha MORITZ, Plaintiff,
v.
DANIEL N. GORDON, P.C., et al., Defendants.

Case No. C11–1019JLR.

United States District Court,
W.D. Washington,
at Seattle.

Sept. 11, 2012.

[895 F.Supp.2d 1100]

Aaron Radbil, Weisberg & Meyers, LLC, Phoenix, AZ, Mathew J. Cunanan, DC Law Group, PLLC, Renton, Jon N Robbins, Weisberg & Meyers, LLC, Loon Lake, WA, for Plaintiff.

J. Kurt Kraemer, Portland, OR, for Defendants.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
JAMES L. ROBART, District Judge.
I. INTRODUCTION

Before the court are: (1) Defendants Daniel N. Gordon, P.C. (“DNG”) and

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Daniel N. Gordon's motion for summary (Def. Mot. (Dkt. # 42)); and (2) Plaintiff Martha Moritz's motion for partial summary judgment (Moritz Mot. (Dkt. # 45)). After the summary judgment motions were filed, Ms. Moritz filed a notice of voluntary withdrawal of her claims against Defendants under 15 U.S.C. §§ 1692b and 1692c. (Not. of Withdrawal (Dkt. # 59).) The court thus DENIES as MOOT the portions of Defendants' motion for summary judgment addressing these claims. With respect to the remaining issues raised in the parties' briefing, the court has considered the submissions of the parties, the balance of the record, and the relevant law, and deemed oral argument unnecessary.¹ Thus being fully apprised, the court GRANTS in part and DENIES in part Defendants' motion (Dkt. # 42) and GRANTS in part and DENIES in part Ms. Moritz's motion (Dkt. # 45).

Also pending before the court is Ms. Moritz's motion for leave to file supplemental authority (Dkt. # 60) in support of her motion for partial summary judgment (Dkt. # 45) and in opposition to Defendants Daniel N. Gordon, P.C. (“DNG”) and Daniel N. Gordon's motion for summary judgment (Dkt. # 42). Ms. Moritz seeks to file a contract produced by Defendants in discovery after the parties had submitted their summary judgment motions. Ms. Moritz contends that the contract is relevant to her claim that DNG committed an unfair or deceptive act or practice in violation of the Washington Consumer Protection Act, RCW ch. 19.16. In light of the court's rulings herein, the court DENIES as MOOT Ms. Moritz's motion for leave (Dkt. # 60).

II. BACKGROUND

This case involves Ms. Moritz's contacts with DNG while DNG attempted to collect a debt that Ms. Moritz owed its client, CACV of Colorado, LLC (“CACV”). On or about February 27, 2006, DNG mailed certain documents to the Washington State District Court for Whatcom County for filing, including a complaint on behalf of CACV against Ms. Moritz. (1st Radbil Decl. (Dkt. # 58) Ex. A at 2 (2/27/06 Cover Letter).) The cover letter identified DNG as “Attorney and Counselor at Law.” ( Id.) On or about March 13, 2006, the Whatcom County District Court filed CACV's complaint. (Aylworth Decl. (Dkt. # 44) Ex. 1 (State Ct. Compl.).) The complaint alleged that Ms. Moritz was indebted to CACV in the amount of $3,070.67 from January 12, 2006, plus interest at a rate of 12% per annum, and sought to recover this debt. ( Id. Ex. 1 ¶ 4.) Below Mr. Gordon's signature on behalf of DNG, the complaint stated in bold font: “This Communication is from a Debt Collector.” ( Id. Ex. 1 at 3.)

In April 2006, Ms. Moritz contacted DNG, and the parties set up a payment plan. (Aylworth Decl. ¶ 7; 1st Kraemer Decl. (Dkt. # 43) Ex. 1 (Moritz Dep.) at

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17:7–11, 20:15–25.) Ms. Moritz, however, failed to make all of the necessary payments. (Aylworth Decl. ¶ 7.) On January 15, 2007, DNG mailed a motion and declaration for default judgment, judgment, and supporting documents to the Whatcom County District Court for filing. (1st Radbil Decl. Ex. A at 3 (1/15/07 Cover Letter).) On January 29, 2007, the state court entered a default judgment against Ms. Moritz in the total amount of $3,979.12, plus interest at the rate of 12% per annum. (Aylworth Decl. Ex. 2 (Mot. for Default Judgment and Judgment).)

On November 15, 2007, DNG mailed a writ of garnishment and a copy of the state court judgment to the Whatcom County District Court for filing. (1st Radbil Decl. Ex. A at 4 (11/15/07 Cover Letter).) In July 2008, DNG issued a garnishment to Talasaea Consultants, Inc. (“Talasaea”), but the company answered that Ms. Moritz had not been employed there since May 23, 2008. (Aylworth Decl. ¶ 9, Ex. 3 (Ans. to Garnishment).)

On March 18, 2009, DNG mailed Ms. Moritz a letter confirming that she owed $5,619.43 and agreeing to accept monthly payments of $50.00. (2d Radbil Decl. (Dkt. # 46) Ex. 9 (3/18/09 Letter); see also 1st Kraemer Decl. Ex. 1 (Moritz Dep.) at 37:21–22.) Ms. Moritz, however, did not make monthly payments as agreed. (Aylworth Decl. ¶ 10.)

On July 1, 2010, Ms. Moritz spoke with DNG about the possibility of a new payment plan and told DNG that she was employed at Talasaea. ( Id. ¶ 11.) That same day, DNG contacted Talasaea to verify Ms. Moritz's employment in order to issue garnishment. ( Id. ¶ 12.) Also on July 1, 2010, DNG sent Ms. Moritz a letter confirming the payment plan, as well as a $6,384.14 balance on Ms. Moritz's debt owed to CACV. (2d Radbil Decl. Ex. 10 (7/1/10 Letter).)

On August 30, 2010, DNG employee Tasha Pierce called Ms. Moritz and left a voicemail message asking for a return call. (2d Radbil Decl. Ex. 7 (DNG Collection Notes) at GORD00040.) That same day, DNG sent Ms. Moritz a letter in which it agreed to a third payment plan that Ms. Moritz had set up. ( Id. Ex. 11 (8/30/10 Letter); Aylworth Decl. ¶ 13.) Ms. Moritz did not make timely payments. (Aylworth Decl. ¶ 13.)

On November 1, 2010, Ms. Pierce called and left a second voicemail message for Ms. Moritz asking Ms. Moritz to call DNG. (2d Radbil Decl. Ex. 7 at GORD00043.) Ms. Pierce left similar voicemail messages for Ms. Moritz on November 29, 2010, and November 30, 2010. ( Id.)

In December 2010, Ms. Moritz advised DNG that she was attempting to take out a loan in order to settle the debt to CACV. (Aylworth Decl. ¶ 14; 1st Kraemer Decl. Ex. 1 (Moritz Dep.) at 43:8–15.) On December 29, 2010, DNG sent a letter to Ms. Moritz confirming that it would accept $3,006.05 in full settlement of the debt owed to CACV. (2d Radbil Decl. Ex. 12 (12/29/10 Letter).) On both December 29, 2010, and December 30, 2010, Ms. Pierce left voicemail messages for Ms. Moritz asking for a return call. ( Id. Ex. 7 at GORD00045–46.)

In January 2011, Ms. Pierce left four voicemail messages for Ms. Moritz asking Ms. Moritz to contact DNG. ( Id. Ex. 7 at GORD00047–48.) On January 10, 2011, DNG mailed Ms. Moritz a letter confirming that it had not received payment and stating that the total amount due was $5,900.54. ( Id. Ex. 13 (1/10/11 Letter).) On January 17, 2011, DNG mailed Ms. Moritz another letter in which it agreed to accept $4,581.05 in full settlement if DNG received payment by January 31, 2011. ( Id. Ex. 14 (1/17/11 Letter).) Also on January 17, 2011, Ms. Moritz sent DNG a

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letter disputing the validity of her debt pursuant to the Fair Debt Collection Practices Act. (Moritz Aff. (Dkt. # 47) Ex. 1 (Moritz Letter).) When the loan Ms. Moritz was pursuing fell through, DNG moved forward with garnishing Talasaea. (Aylworth Decl. ¶¶ 14, 15.) Ultimately, Ms. Moritz satisfied the state court judgment against her. (2d Radbil Decl. Ex. 3 (Aylworth Dep.) at 134:16–135:1.)

On June 17, 2011, Ms. Moritz initiated the instant action against Defendants. (Compl. (Dkt. # 1).) In her amended complaint, she alleges that Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Washington Consumer Protection Act (“CPA”), RCW ch. 19.86. (Am. Compl. (Dkt. # 28) ¶ 1.) Ms. Moritz's CPA claim relies on her assertion that DNG violated the Washington Collection Agency Act (“WCAA”), RCW ch. 19.16. ( Id.)

III. ANALYSIS A. Summary Judgment Standard

Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir.2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. “Where non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010) (international citations omitted). If the moving party meets his or her burden, then the non-moving party “must make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial” in order to withstand summary judgment. Galen, 477 F.3d at 658. In adjudicating cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences.” ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir.2006) (citations omitted); see also Friends of Columbia Gorge, Inc. v. Schafer, 624 F.Supp.2d 1253, 1263 (D.Or.2008).

B. Defendants' Motion for Summary Judgment1. Fair Debt Collection Practices Act Claims

Ms. Moritz's federal claims are based on Defendants' alleged violations of the FDCPA. ( See generally Am. Compl.) The FDCPA comprehensively regulates the conduct of debt collectors, imposing affirmative obligations and broadly prohibiting abusive practices. Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1060–61 (9th Cir.2011). Whether conduct violates the FDCPA requires an objective analysis that takes into account the “the least sophisticated debtor” standard. See Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030...