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Totten v. Evergreen Professional Recoveries, Inc.

United States District Court, E.D. Washington

August 19, 2014

AMANDA TOTTEN, Plaintiff,
v.
EVERGREEN PROFESSIONAL RECOVERIES, INC., a Washington corporation, Defendant.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND GRANTING CROSS MOTION FOR SUMMARY JUDGMENT

ROSANNA MALOUF PETERSON, Chief District Judge.

Before the Court is Plaintiff's Motion for Summary Judgment, ECF No. 14, and Defendant's Cross Motion for Summary Judgment, ECF No. 17. The Court heard oral argument on these motions on August 7, 2014. Plaintiff was represented by Kirk D. Miller. Andrew D. Shafer argued on behalf of Defendant. The Court has considered the motions, their supporting documents, and the parties' oral arguments. The Court is fully informed.

BACKGROUND

The parties do not dispute the material facts. See ECF No. 21 at 1. Defendant is a debt collector that obtained summary judgment against Plaintiff in Spokane County District Court. ECF No. 15-5. Defendant knew that Plaintiff was represented by counsel during the summary judgment proceedings. ECF No. 19 at 2. However, after succeeding in its motion, Defendant mailed a copy of the judgment to Plaintiff directly, rather than to her counsel. ECF No. 18 at 2.

Defendant has a written policy against mailing copies of judgments to debtors who are represented by counsel. ECF Nos. 20 at 2-3; 20-2. Also, Defendant's training manual for debt collectors states that "[a] debt collector may NOT communicate with a consumer in connection with the collection of any debt.... If the debt collector knows the consumer is represented by an attorney...." ECF No. 20-1 at 2, 3. Defendant revises its debt collection policies and procedures to comply with debt collection laws, actively trains new collectors, and periodically retrains existing employees. ECF No. 20 at 1-2.

The clerk who mailed Plaintiff the judgment no longer works for Defendant, ECF No. 20 at 4, but the manager of Defendant's legal department states that Defendant failed to send a copy of the judgment to Plaintiff's counsel, which is Defendant's normal procedure, ECF No. 18 at 1-2. The manager and Defendant's CEO state that it was an error and aberration from Defendant's procedure to send judgment to Plaintiff directly. ECF Nos. 18 at 2; 20 at 3-4.

Plaintiff claims that by circumventing her attorney and sending judgment directly to her, Defendant violated the Fair Debt Collection Practices Act ("FDCPA"). ECF No. 14. Defendant disagrees, arguing that the FDCPA does not prohibit mailing a copy of a judgment to a represented debtor, that Plaintiff was not represented at the time that Defendant mailed the judgment, and that, if mailing the judgment did violate the FDCPA, it was a bona fide error. ECF No. 17. Both parties seek summary judgment; Defendant requests attorney fees as well.[1]

DISCUSSION

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding a motion for summary judgment, a court must construe the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).

Plaintiff claims that Defendant violated § 1692b(6) of the FDCPA, which provides that:

any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall... after the debt collector knows the consumer is represented by an attorney with regard to the subject debt... not communicate with any person other than that attorney....

15 U.S.C. § 1692b(6).[2] The FDCPA ordinarily does not require proof of intent and is a strict liability statute. Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 (9th Cir. 2011).

However, the FDCPA includes a "narrow exception to strict liability" for bona fide errors. Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1177 (9th Cir. 2006) (discussing 15 U.S.C. § 1692k(c)). To be eligible for the bona fide error defense, "the defendant must prove that (1) it violated the FDCPA unintentionally; (2) the violation resulted from a bona fide error; and (3) it maintained procedures reasonably adapted to avoid the violation." McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir. 2011). The debt collector bears the burden of proving this ...


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