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Hernandez v. Williams, Zinman & Parham, P.C.

United States District Court, D. Arizona

March 12, 2014

Maria Hernandez, on behalf of herself and all others similarly situated, Plaintiff,
v.
Williams, Zinman & Parham, P.C., Defendant.

MEMORANDUM OF DECISION AND ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Pending before the Court are Plaintiff's and Defendant's cross-motions for summary judgment. (Docs. 45, 49.) The motions are fully briefed. (Docs. 46, 48-51, 55-59.) After due consideration, the Court will deny Plaintiff's motion for summary judgment and grant Defendant's motion for summary judgment.

BACKGROUND

Plaintiff Maria Hernandez ("Hernandez") filed a complaint against Defendant Williams Zinman & Parham, P.C. ("WZP"), a law firm, after WZP sent her a debt collection letter. (Doc. 1.) In her complaint, she alleged that WZP's December 29, 2011, debt collection letter (the "letter") violated the Fair Debt Collection Practices Act ("FDCPA") because the letter did not properly advise her that in order to dispute the debt, she would need to do so in writing. (Doc. 1, Doc. 48-2 at 2.)

Under the FDCPA, in the initial communication, or within five days thereafter, a debt collector must make the disclosures set forth 15 U.S.C. § 1692g(a), also known as a "debt validation notice." See Voris v. Resurgent Capital Servs., L.P. , 494 F.Supp.2d 1156, 1169, (S.D. Cal. 2007); see 15 U.S.C. § 1692g(a). Specifically, the FDCPA provides as follows:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a).

In its December 29, 2011, letter, WZP sought to collect a debt on behalf of a third-party creditor, namely Thunderbird Collection Specialists, Inc. ("Thunderbird"). (Id.) The December 29, 2011, letter lists the original creditor as A-L Financial Corp. (Id.) The alleged debt related to Hernandez's car loan for personal, family, or household use. (Doc 48-3 at 3-5.)

WZP's December 29, 2011, letter was its initial communication with Hernandez regarding the debt purportedly owed to A-L Financial Corp. and then Thunderbird. (Doc. 48-1 at 42.) WZP's December 29, 2011, letter contains the following notice:

You, the consumer, have thirty (30) days after receipt of this notice to dispute the validity of the debt, or any portion thereof. Unless you dispute the validity of this debt within thirty (30) days, the debt will be assumed to be valid by this firm. If you do notify us of a dispute, we will obtain verification of the debt, or a copy of a judgment, and mail it to you. Also, upon your request within thirty (30) days, we will provide you with the name and address of the original creditor, if different from the current creditor....This communication is from a debt collector. This communication is an attempt to collect a debt for the Creditor and any information obtained as a result thereof will be used for that purpose.

(Doc. 48-2 at 2.)

Prior to WZP's involvement, Thunderbird had attempted (unsuccessfully) to collect the money owed by Hernandez. (Doc. 46-3 at 2-15.) Specifically, on March 3, 2011, Thunderbird sent an initial debt communication letter to Hernandez at her home address, which included notice of her rights under the FDCPA. (Id.) The March 3, 2011 Thunderbird letter to Hernandez stated:

If you notify this office in writing within 30 days from receiving this notice, that you dispute the validity of this debt, we will provide verification by mail, if requested, [and] we will provide you with the original creditor if different from the current creditor.

(Doc. 46-3 at 14.)

Subsequently, Hernandez filed a lawsuit in this District's Tucson Division regarding Thunderbird's improper debt collection efforts. (Doc. 56-1 at 2-24.) However, in this lawsuit, Hernandez did not assert a claim regarding any omission or ...


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