Van Westrienen v. Americontinental Collection

• Decision Date: 12 April 2000
• Docket Number: No. CV-99-819-ST.,CV-99-819-ST.
• Citation: 94 F.Supp.2d 1087
• Parties: Kenneth VAN WESTRIENEN and Deborah Van Westrienen, husband and wife, Plaintiffs, v. AMERICONTINENTAL COLLECTION CORPORATION, an Oregon corporation, and Phillip Allan Fischer, aka Gus McTavish, Defendants.
• Court: U.S. District Court — District of Oregon

94 F.Supp.2d 1087

Kenneth VAN WESTRIENEN and Deborah Van Westrienen, husband and wife, Plaintiffs, v. AMERICONTINENTAL COLLECTION CORPORATION, an Oregon corporation, and Phillip Allan Fischer, aka Gus McTavish, Defendants.

No. CV-99-819-ST.

United States District Court, D. Oregon.

April 12, 2000.

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Damon J. Petticord, Tigard, OR, for Plaintiffs.

Frank H. Lagesen, William G. Fig, Cosgrave Vergeer & Kester, Portland, OR, for Defendants.

OPINION AND ORDER

STEWART, United States Magistrate Judge.

INTRODUCTION

Plaintiffs, Kenneth and Deborah Van Westrienen, allege that defendants, Americontinental Collection Corporation ("Americontinental") and Phillip Allan Fischer, aka "Gus McTavish" ("Fischer"), violated the Federal Fair Debt Collection Practices Act ("FDCPA"), 15 USC § 1692-1692k, and the Oregon Unlawful Debt Collection Practices Act ("UDCPA"), ORS 646.639-.641, while attempting to collect a debt allegedly owed by plaintiffs to John Saathoff ("Saathoff").

This court has federal question jurisdiction over the FDCPA claim under 28 USC § 1331 and supplemental jurisdiction over the UDCPA claim under 28 USC § 1367. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c).

Now before this court are defendants' Motion for Partial Summary Judgment (docket # 38) and plaintiffs' Motion for [Partial] Summary Judgment (docket # 44). For the reasons set forth below, both motions are granted in part and denied in part.

STANDARDS

Federal Rule of Civil Procedure ("FRCP") 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324, 106 S.Ct. 2548. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1470 (9th Cir1987), cert denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id at 1468.

FACTS

A review of the parties' facts, as well as the other materials submitted by the parties, including affidavits and deposition excerpts, reveals the following:¹

Saathoff obtained a default judgment for $3,671 against plaintiffs in California Municipal Court in 1989. On or about November 12, 1998, Saathoff forwarded his claim against plaintiffs to Americontinental. Americontinental is engaged in the business of collecting consumer debts and proceeded to attempt to collect from plaintiffs the debt owed to Saathoff. Fischer, the President and Chief Executive Officer of Americontinental, at all relevant times used the alias of "Gus Mctavish" while attempting to collect this debt.

Kenneth Van Westrienen has worked for Shaw Development, a general contractor, for over nine years and is a project manager superintendent, meaning that he "handle[s] their work in the field, mak[es] sure their subs, contractors are on time and do their job." Deposition of Kenneth Van Westrienen ("Kenneth Van Westrienen Depo"), p. 21. On June 3, 1999, Fischer called Kenneth Van Westrienen's place of employment and obtained his business cell phone number. On that same day, Kenneth Van Westrienen was at work framing a house, "on top of the roof stacking the roof, putting rafters up and stuff, and the phone rang." Id at 23. Kenneth Van Westrienen describes his ensuing conversation with Fischer as follows:

He introduced himself, said he was collecting a debt, or a judgment, excuse me, is the word he used. He named Mr. Sathoff [sic] and then he said, "You are not the normal type of person that we generally contact in regards to a debt. You appear to pay your bills on time and I want to give you this opportunity to pay this one."

I told him I didn't know what he was talking about, asked him who he was again, and I believe he said that name, ACC, because I didn't remember it until it was said here, and that he needed to collect — I forget the amount of money that he said.

And at that time I told him that I didn't know what he was talking about, I wasn't going to pay anything, that he could talk to an attorney about it.

And after that, he started in with some threats about how he was going to collect the money; that he always collects his money; if I didn't make arrangements with him, that he would have my wages by the end of the day; he knew where my assets were; he knew where I lived; has my phone numbers. That's about the gist of the conversation.

Id at 23-24.

Shortly thereafter, Kenneth Van Westrienen left work early and saw his attorney. His attorney told him "to ignore it," which "wasn't easy," and he had several sleepless nights. Id at 33.

Americontinental then sent a collection letter dated June 3, 1999 ("collection letter"), addressed to both plaintiffs and signed by Gus Mctavish, which provides in part as follows:

You are hereby being served with a demand to pay your judgment, a final step in allowing us to garnish personal property such as cars and personal property. This process is completed by the Sheriff.

We are advising you that through our investigative division (in yellow pages under pi's and or www.internationaldetective.com) our private detectives have learned how you are obtaining an income and have a list of assets we are to seize.

If we do not hear from you within (5) days, we will execute our judgment by way of a sheriff served garnishment and or seizure. Please do not make us do this, we have been patient, but it is up to you now, we refuse to wait any longer! We are on line at http://www.receivables.com if you prefer to use e-mail in order to contact us.

WE REFUSE TO WAIT AND WILL SIMPLY TAKE YOUR ASSETS. PLEASE DON'T MAKE U.S. DO THIS. PLEASE PAY YOUR OBLIGATION BEFORE IT IS TOO LATE.

Plaintiffs' Exhibit ("Ex") 2.

Plaintiffs received this collection letter on or about June 5, 1999. Affidavit of Kenneth Van Westrienen ("Kenneth Van Westrienen Aff"), ¶ 2. Kenneth Van Westrienen "took it to mean that Mr. Fischer was serious and that he was attempting to collect a debt that I didn't owe, and apparently, had a judgment somewhere against me." Kenneth Van Westrienen Depo, p. 33. He returned to see his attorney "right away." Id. He also informed his work supervisor that someone might garnish his wages and possibly put a lien on his house and possessions. He did not change bank accounts, call Americontinental, or visit their website. Id at 35-36.

On June 8, 1999, plaintiffs' attorney, Damon Petticord ("Petticord"), called Fischer and requested documentation for the California judgment which plaintiffs allegedly owed. Affidavit of Damon J. Petticord ("Petticord Aff"), ¶ 2. Fischer answered the telephone, using the alias of Gus Mctavish, and stated that he was "still in the process of transcribing the judgment in Oregon." Id, ¶ 3. When Petticord remarked that Fischer might have a problem because "he had already threatened to garnish the Van Westrienens' wages and assets without delay," Fischer responded that "he `would not play games' because he was a `multimillionaire' that he `wins all his [Unfair Debt Collection Practices] suits,' and that if the Van Westrienens challenged the debt they would have to pay his attorney fees." Id, ¶¶ 3-4.

On June 10, 1999, plaintiffs filed the present lawsuit.

DISCUSSION

Defendants move for partial summary judgment as to paragraphs 13(8), 18(6), 18(7) and 21 of the Amended Complaint. Paragraph 13(8) alleges that defendants violated the FDCPA by failing to send plaintiffs a validation of debt notice. Paragraph 18(6) alleges that defendants violated the UDCPA by representing in the collection letter that they employed private detectives. Paragraph 18(7) alleges that Fischer violated the UDCPA by making false statements to Petticord on June 8, 1999. Lastly, paragraph 21 alleges a claim for punitive damages under the UDCPA.

In turn, but without specifying particular paragraphs of the Amended Complaint, plaintiffs move for partial summary judgment because: (1) Fischer called Kenneth Van Westrienen at work on June 3, 1999, instead of first attempting to call him at home; (2) defendants' June 3, 1999 collection letter makes numerous misrepresentations; (3) defendants' website contains numerous misrepresentations; and (4) Fischer made false statements during his June 8, 1999 phone conversation with Petticord.

For ease of discussion, this court will address the issues in the following order: (1) the validation of debt notice; (2) Fischer's call to Kenneth Van Westrienen at work; (3) defendants' alleged...