United States District Court, W.D. Washington, Seattle
KENNETH S. SYLVESTER and LISA A. SYLVESTER, Plaintiffs,
MERCHANTS CREDIT CORPORATION, Defendant.
S. Zilly, United States District Judge.
MATTER comes before the Court on Plaintiffs' Motion for
Summary Judgment or in the Alternate, Partial Summary
Judgment, docket no. 40, and Plaintiffs' Motion to
Enforce the Court's February 13, 2018 and July 18, 2018
Orders, docket no. 41. Having reviewed all papers filed in
support of the motions, and noting Defendant's
non-opposition to both motions, the Court enters the
and Lisa Sylvester (“Plaintiffs”) defaulted on
payments owed on a debt to Virginia Mason Hospital and
Virginia Mason Medical Center Clinic. Ex. A to Summary
Judgment Motion (docket no. 40-4 at 8-9). After
Plaintiffs' default, the debt was assigned to Merchants
Credit Association (“Defendant”) for collection.
Id. at 9. On April 6, 2016, Defendant filed a
complaint in Washington state court for the amount of
Plaintiffs' debt. Ex. B to Summary Judgment Motion
(docket no. 40-5 at 4-9). On May 20, 2016, Plaintiffs,
through their counsel at Hyde & Swigart, filed an answer
to the complaint. Ex. C to Summary Judgment Motion (docket
no. 40-6). Around November 9, 2016, Defendant sent an
“Application for Writ of Garnishment” directly to
Plaintiffs. Ex. F to Summary Judgment Motion (docket no.
40-9); Lisa Sylvester Decl. ¶ 3 (docket no. 40-2);
Kenneth Sylvester Decl. ¶ 3 (docket no. 40-3).
Plaintiffs bring claims against Defendant under the Fair Debt
Collection Practices Act (“FDCPA”) and the
Washington Consumer Protection Act (“CPA”). In
particular, Plaintiffs allege that Defendant violated 15
U.S.C. § 1692c(a)(2), which prohibits a debt collector
from contacting a consumer it knows is represented by an
attorney with respect to the debt.
Standard of Review
Court shall grant summary judgment if no genuine issue of
material fact exists 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. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). 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). To survive a motion for summary judgment, the
adverse party must present affirmative evidence, which
“is to be believed” and from which all
“justifiable inferences” are to be favorably
drawn. Id. at 255, 257. When the record, however,
taken as a whole, could not lead a rational trier of fact to
find for the non-moving party, summary judgment is warranted.
See Beard v. Banks, 548 U.S. 521, 529 (2006)
(“Rule 56(c) ‘mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.'” (quoting
Celotex, 477 U.S. at 322)).
Fair Debt Collection Practices Act
establish a violation of the FDCPA, a plaintiff must show
that: “(1) the plaintiff has been the object of
collection activity arising from a consumer debt, (2) the
defendant collecting the ‘debt' is a ‘debt
collector' as defined in the Act, and (3) the defendant
has engaged in any act or omission in violation of the
prohibitions or requirements of the act.”
Quintanilla v. Bureaus, Inc., 2019 WL 3028104, at *2
(W.D. Wash. July 11, 2019) (quoting Yrok Gee Au Chan v.
N. Am. Collectors, Inc., 2006 WL 778642, at *3 (N.D.
Cal. Mar. 24, 2006)).
to the FDCPA, “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 with respect to such debt and has knowledge
of, or can readily ascertain, such attorney's name and
address.” 15 U.S.C. § 1692c(a)(2). Plaintiffs
allege that Defendant violated this provision when they sent
the application for writ of garnishment notice directly to
Plaintiffs knowing that they were represented by counsel with
respect to that debt. The Court concludes that Plaintiffs are
entitled to summary judgment on the FDCPA claim.
application for writ of garnishment was a communication
“in connection with the collection of [a] debt”
because it informed Plaintiffs that Defendant intended to
collect the debt by garnishing Plaintiffs' wages.
Defendant also knew that Plaintiffs were represented with
respect to that debt because “[r]epresentation in a
debt collection action is representation with respect to the
debt, ” Camacho v. Jefferson Capital Sys.,
LLC, 2015 WL 3454070, at *4 (N.D. Cal. May 29, 2015),
and “the filing of an underlying lawsuit between a
consumer and a debt collector is sufficient to put the debt
collector on notice that a plaintiff is represented with
respect to that debt.” Munoz v. California Bus.
Bureau, Inc., 2016 WL 6517655, at *11 (E.D. Cal. Nov. 1,
2016). Plaintiffs were represented in the underlying debt
collection action in state court by counsel from Hyde &
Swigart. Ex. C to Summary Judgment Motion (docket no. 40-6).
Defendant therefore knew that Plaintiffs were represented by
counsel with respect to the debt when they sent Plaintiffs
the writ of garnishment.
Court GRANTS Summary Judgment with respect to Plaintiffs'
Damages, Costs, and Attorney's Fees
action brought by an individual, a debt collector who fails
to comply with the FDCPA is liable to that individual in an
amount equal to the sum of: (1) any actual damages sustained
as a result of such failure; (2) any additional damages as
the court may allow, but not exceeding $1, 000; and (3) the
cost of the action, together with reasonable attorney's
fees. 15 U.S.C. § 1692k(a). Statutory damages are
available to each plaintiff. Sleeper v. Rent Recover,
LLC, 2014 WL 4455044, ...