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Elston v. Encore Capital Group, Inc.

United States District Court, E.D. Washington

July 11, 2019

RACHEL ELSTON, and all others similarly situated, Plaintiffs,
v.
ENCORE CAPITAL GROUP, INC., MIDLAND FUNDING, LLC, MIDLAND CREDIT MANAGEMENT, INC., Defendants.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

         BEFORE THE COURT are the Parties' Cross Motions for Summary Judgment (ECF Nos. 27; 32). These motions were heard with oral argument on June 26, 2016. The Court has reviewed the record and the completed briefing, heard from counsel and is fully informed. For the reasons discussed below, Defendants' Motion (ECF No. 27) is granted and Plaintiff's Motion (ECF No. 32) is denied.

         BACKGROUND[1]

         This case concerns a letter sent in an attempt to collect on an old debt. Plaintiff “allegedly incurred an obligation to Chase Bank” sometime prior to 2009. ECF No. 1 at 8, ¶ 6.1. Subsequently, Chase Bank sold the debt to Defendants[2] of which Midland Credit Management, Inc. then sought to collect on the account by sending a letter to Plaintiff in March of 2017. ECF No. 1 at 8-9, ¶¶ 6.4-6.6. Plaintiff takes issue with this letter.[3]

         The letter from Midland Credit Management, Inc. consists of two pages. See ECF No. 1 at 16-17. The first page prominently displays a box with a heading “CALL U.S. TODAY”. Below the heading, the letter states “Available Payment Options”: (1) “40% OFF”, (2) “20% OFF Over 6 Months”, and (3) “Monthly Payments As Low As: $50 per month Call today to discuss you options and get more details.” Below the options, the letter includes another header, “Benefits of Paying Your Debt” and lists the following:

- Save $741.35 if you pay by 04-27-2017 -
- Put this debt behind you -
- No. more communication on this account -
- Peace of mind -

         Below the signature line, the letter includes the following statement:

The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or nonpayment of it to a credit bureau.

ECF No. 1 at 16.

         Plaintiff did not make any payments on the debt nor did she promise to pay on the debt. Instead, on February 27, 2018, Plaintiff filed this suit, personally, and on behalf of others similarly situated, asserting one claim for a violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692e. ECF No. 1 at 12-13, ¶¶ 7.1-7.6. Plaintiff complains that Defendants violated the FDCPA by (1) “falsely representing the legal status of the debt” and (2) using “false representations and/or deceptive means to collect or attempt to collect a debt.” ECF No. 1 at 13, ¶¶ 7.4-7.5. Plaintiff requests actual and statutory damages, along with costs and attorney fees. ECF No. 1 at 13, ¶ 7.6.

         Defendants filed a Motion for Summary Judgment (ECF No. 27) and Plaintiff filed a Motion for Summary Judgment (ECF No. 32). These Motions are now before the Court.

         STANDARD OF REVIEW

         A movant is entitled to summary judgment if “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The moving party bears the “burden of establishing the nonexistence of a ‘genuine issue.'” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party.” Id.

         Per Rule 56(c), the parties must support assertions by: “citing to particular parts of the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Only admissible evidence may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The nonmoving party may not defeat a properly supported motion with mere allegations or denials in the pleadings. Liberty Lobby, 477 U.S. at 248. The “evidence of the non-movant is to be believed, and all justifiable inferences are to be ...


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