United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion for
partial summary judgment (Dkt. No. 16) and motion to strike
(Dkt. No. 18). Having thoroughly considered the parties'
briefing and the relevant record, the Court finds oral
argument unnecessary and hereby GRANTS in part and DENIES in
part Plaintiff's motion for partial summary judgment
(Dkt. No. 16), and GRANTS in part and DENIES in part
Plaintiff's motion to strike (Dkt. No. 18).
Mauriceo Dawson (“Dawson”) brings this lawsuit
against Defendant Genesis Credit Management, LLC,
(“Genesis”) for alleged violations of the federal
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692, et seq., and the Washington
Collection Agency Act (“WCAA”), Revised Code of
Washington section 19.16.250.
2008 to 2014, Dawson lived at the Sunset Park apartments
(“Sunset”) in Seattle. (Dkt. No. 16-2 at 1-2.) In
January 2014, Dawson signed a new six-month lease agreement
that converted into a month-to-month tenancy upon expiration.
(Dkt. No. 16-1 at 13.) At some point in November 2014, Dawson
informed Sunset that he was terminating his tenancy and would
vacate the apartment by the end of the month. (Id.
at 3; Dkt. No. 17-1 at 9.)
Dawson moved out, Sunset identified several charges that he
allegedly owed under the lease agreement. (Dkt. No. 16-1 at
9.) In June 2016, Sunset assigned the unpaid debt to Genesis
for collection. (Id. at 8.) Genesis called Dawson
multiple times to try and collect the debt. (Dkt. Nos. 16-1
at 21-27, 16-2 at 4.) On December 29, 2016, Genesis filed a
lawsuit in King County District Court seeking a judgment on
the debt. (Dkt. No. 16-1 at 29-30.)
claims that Genesis made misleading statements about the
debt, and that he did not owe the amount sought. (Dkt. No. 16
at 8.) He seeks summary judgment on the issue of
Genesis's liability under FDCPA and WCAA. (Id.
at 2.) If Genesis violated WCAA, Dawson also asks the Court
to rule that he is entitled to collect civil penalties under
the Washington State Consumer Protection Act
(“CPA”), Revised Code of Washington section
19.86.140. (Id. at 12.)
Dawson's Motion to Strike
moves to strike the declarations of Mary Cobley and Crystal
Salas, and a document titled “Notice of Intention to
Vacate, ” all of which were attached to Genesis's
response. (Dkt. No. 18 at 2-7.) Dawson argues that the
declarations should be stricken because they lack foundation
and contain inadmissible hearsay. (Id. at 2.)
Declarations presented at summary judgment must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the declarant is competent to testify
on the matters stated. Fed.R.Civ.P. 56(c)(4). So long as a
party complies with Federal Rule of Civil Procedure 56,
“it does not necessarily have to produce evidence in a
form that would be admissible at trial . . . .”
Block v. City of Los Angeles, 253 F.3d 410, 418-19
(9th Cir. 2001). Cobley is Sunset's custodian of records
and Salas is Genesis's President. (Dkt. Nos. 17-1, 17-2.)
The Court finds that their declarations contain testimony
that could be admissible at trial and for which both
declarants are competent to testify. To the extent that
statements in the declarations do not meet the requirements
of Rule 56, they will not be considered by the Court.
asserts that Genesis did not provide the Notice of Intention
to Vacate document in discovery, despite the company's
agent testifying during her deposition that she was unaware
of such a document. (Dkt. No. 18-2 at 7.) The Court can
exclude information that was improperly withheld in
discovery. Fed.R.Civ.P. 37(c)(1). Here, it is appropriate to
exclude the document because Genesis did not produce it until
its response to summary judgment, despite Dawson's
specific inquiry about whether such a document existed. (Dkt.
No. 18-2 at 7.) The Court therefore STRIKES the Notice of
Intention to Vacate Document (Dkt. No. 17-1 at 8).
Summary Judgment Standard
court shall grant summary judgment if the movant shows 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). In making such a determination, the Court
must view the facts and justifiable inferences to be drawn
therefrom in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Once a motion for summary judgment is
properly made and supported, the opposing party “must
come forward with ‘specific facts showing that there is
a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). When
the party moving for summary judgment also bears the burden
of persuasion at trial, “to prevail on summary judgment
it must show that the evidence is so powerful that no
reasonable jury would be free to disbelieve it.”
Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008)
(citation and internal quotation marks omitted).
The Fair Debt Collections Practices Act
enacted FDCPA to eliminate abusive debt collection practices
by debt collectors. 15 U.S.C. § 1692. The statute
imposes strict liability on debt collectors, meaning
violations do not have to be knowing or intentional.
Reichert v. Nat'l Credit Sys., Inc., 531 F.3d
1002, 1005 (9th Cir. 2008). Whether a debt collector's
conduct violates FDCPA provisions “requires an
objective analysis that considers whether ‘the least
sophisticated debtor would likely be misled by a
communication.'” Donohue v. Quick Collect,
Inc., 592 F.3d 1027, 1033 (9th Cir. 2010). In the Ninth
Circuit, whether an FDCPA violation has occurred is a
question of law. Tourgeman v. Collins Fin. Servs.,
Inc., 755 F.3d 1109, 1119 (9th Cir. 2014).
is no dispute between the parties that Genesis is a debt
collector subject to FDCPA liability or that the debt it
sought to collect falls within the statute's purview.
Dawson asserts that Genesis violated § 1692e and §
1692f of the FDCPA. (Dkt. No. 16 at 9-11.) Under §
1692e, “A debt collector may not use any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” Under