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Gallaher v. Autovest, LLC

United States District Court, D. Arizona

March 30, 2016

David Gallaher, Plaintiff,
v.
Autovest, LLC, Defendant.

ORDER

Honorable Bruce G. Macdonald United States Magistrate Judge

Currently pending before the Court is Defendant Autovest, LLC’s Motion for Summary Judgment (Doc. 10). Plaintiff filed his Response (Doc. 20) and Defendant has replied (Doc. 23). Oral argument was held on March 29, 2016. See Minute Entry 3/29/2016 (Doc. 24).

I. FACTUAL BACKGROUND

A. Defendant Autovest, LLC’s Relationship to Wells Fargo Financial, Inc.

Defendant Autovest, LLC asserts that on July 8, 2010, it acquired certain contracts, including Plaintiff David Gallaher’s contract, from Wells Fargo Financial, Inc. pursuant to agreement. See Def.’s Statement of Facts (“SOF”) (Doc. 11) at ¶ 1; see Def.’s Mot. for Summ. J. (Doc. 10), Bill of Sale and Assignment of Receivables Pursuant to the Purchase Agreement 7/8/2010 (Exh. “A”). Plaintiff agrees, for purposes of this motion, that Defendant acquired certain contracts; however, contests that it acquired his specific contract. Pl.’s Controverting SOF (Doc. 21) at ¶ 1. Under the terms of the purchase agreement, Wells Fargo granted Defendant a limited power of attorney to execute assignments relating to contracts Defendant had acquired under the agreement. Def.’s SOF (Doc. 10), Form of Limited Power of Attorney 7/8/2010 (Exh. “C”). Plaintiff asserts that he “denies” this assertion, because “Defendant has not produced a copy of the Agreement, so the terms are unknown.” Pl.’s Controverting SOF (Doc. 21) at ¶ 2. The Court notes, however, that Vice President Dean R. Anderson signed the Form of Limited Power of Attorney “[f]or itself and for and on behalf of the other Sellers under the Purchase Agreement[.]” Def.’s SOF (Doc. 10), Exh. “C”.

B. The Arizona State Court Proceeding

The “Assignment of Installment Contract” (“the Assignment”) attached to the complaint filed on behalf of Defendant in the Santa Cruz County Superior Court, Autovest, LLC v. David Gallaher, et al., case number CV-14-258, lists Plaintiff David Gallaher as the obligor under a contract he entered into on February 18, 2008 in connection with the purchase of a 2005 Honda Accord. Def.’s SOF (Doc. 10), Assignment of Installment Contract (Exh. “D”); see also Compl. (Doc. 1), Exh. “A.” The Assignment identifies the “assignor” as Wells Fargo and was executed by Darren Kazich as an “agent” of Wells Fargo. Def.’s SOF (Doc. 10), Exh. “D”; see also Compl. (Doc. 1), Exh. “A.” Plaintiff denies that Darren Kazich executed the Assignment and that he was an “agent” for Wells Fargo. Pl.’s Controverting SOF (Dox. 21) at ¶ 4. Plaintiff’s contention is based on counsel’s statement that Darren Kazich’s exact signature appears on nine other assignments unrelated to this cause of action. See Id. The Assignment lists Wells Fargo as the original creditor and that the contract was assigned to Autovest on July 8, 2010. Def.’s SOF (Doc. 10), Exh. “D”; see also Compl. (Doc. 1), Exh. “A.” The Assignment does not state that Mr. Kazich is an employee of Wells Fargo. Id.

Pursuant to the Form of Limited Power of Attorney attached to the agreement between Defendant and Wells Fargo, Wells Fargo gave Defendant a limited power of attorney that granted Defendant the authority to execute assignments relating to the contracts subject to the Agreement. Def.’s SOF (Doc. 10), Exh. “C.” Mr. Kazich was authorized to execute the assignment on behalf of Wells Fargo as its agent pursuant to the Limited Power of Attorney attached to the agreement between Defendant and Wells Fargo. Def.’s SOF (Doc. 10), Basha Decl. at ¶ 6. Plaintiff argues that Ms. Basha’s statement that Mr. Kazich is an employee of Defendant Autovest, LLC is controverted by her prior trial testimony in the New Mexico state court case Autovest, LLC v. Irene Evans, et al., case number CV-13-2039, in which she stated “Mr. Kazich is a member of the member partners or member companies of Autovest. He is a member of BXS, which is an owner of Autovest, and through the purchase agreement with Wells Fargo, Wells Fargo provided Autovest a power of attorney to sign documents such as this.” Pl.’s Controverting SOF (Doc. 21), Evans Trial Tr. 1/8/2015 (Exh. “B”) at 19:22-20:2.

In the prior Santa Cruz County Superior Court proceeding, Plaintiff admitted that he had financed a vehicle with Wells Fargo and breached that contract. Def.’s SOF (Doc. 10), Answer and Affirmative Defenses, Autovest, LLC v. Gallaher, et al., Ariz. Superior Ct. Case No. CV14-258 (Exh. “2”) at ¶¶ 4 & 5.

C. The Instant Litigation

On June 18, 2015, Plaintiff initiated the current cause of action. See Compl. (Doc. 1). Plaintiff alleges that “Autovest created the Assignment and attached it to the Complaint [in the Arizona state court action] in order to falsely represent that a Wells Fargo employee signed the document verifying that Mr. Gallaher’s contract ha[d] been assigned to Autovest.” Compl. (Doc. 1) at ¶ 14. Plaintiff further alleges that “Autovest routinely uses these ‘Assignment’ forms signed by Kazich in order to mislead consumers into believing that the statement was signed by a Wells Fargo employee.” Id. at ¶ 17. Plaintiff asserts that “Autovest purposefully uses the misleading Assignment to falsely represented [sic] that Wells Fargo provided the Assignment to establish that Plaintiff’s contract had been assigned to Autovest.” Id. at ¶ 19. Plaintiff further asserts that “[a]t the time Autovest filed suit and attached the Assignment to the complaint, it knew, or should have known, that its misrepresentation as to the origin of the Assignment was false and misleading to the least sophisticated debtor.” Id. at ¶ 20. Plaintiff asserts that Defendant violated Sections 1692e, 1692e(2)(A), 1692e(5), 1692e(10), and 1692e(14), 15 U.S.C., of the Fair Debt Collection Practices Act (“FDCPA”).

D. Plaintiff’s Controverting Facts

Upon receipt of the complaint in the Santa Cruz County Superior Court proceeding, Plaintiff reviewed the complaint and attachments, including the document identified as Assignment of Installment Contract. Pl.’s Controverting SOF (Doc. 21), Gallaher Decl. (Exh. “3”) at ¶ 4. Upon review of the Assignment of Installment Contract, Plaintiff believed it was a document prepared by Wells Fargo and signed by Wells Fargo personnel. Id., Exh. 3 at ¶ 5.

The Limited Power of Attorney states that it is “subject to the terms and conditions of the aforementioned Purchase Agreement, ” which is identified as “that certain Purchase Agreement . . . dated as of July 8, 2010.” Def.’s SOF (Doc. 10), Exh. “C.” ...


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