United States District Court, D. Arizona
V. Wake, Senior United States District Judge
the Court is Plaintiff's Motion for Summary Judgment on
FDCPA Claims (Doc. 39).
motion for summary judgment tests whether the opposing party
has sufficient evidence to merit a trial. Summary judgment
should be granted if the evidence reveals no genuine dispute
about any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). A material
fact is one that might affect the outcome of the suit under
the governing law, and a factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
movant has the burden of showing the absence of genuine
disputes of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). However, once the movant shows an
absence of evidence to support the nonmoving party's
case, the burden shifts to the party resisting the motion.
The party opposing summary judgment must then “set
forth specific facts showing that there is a genuine issue
for trial” and may not rest upon the pleadings.
Anderson, 477 U.S. at 256. If a party fails to
properly support an assertion of fact or fails to properly
address another party's assertion of fact, the court may
consider the fact undisputed for purposes of the motion.
Fed.R.Civ.P. 56(e)(2). In deciding a motion for summary
judgment, the Court must view the evidence in the light most
favorable to the nonmoving party, must not weigh the evidence
or assess its credibility, and must draw all justifiable
inferences in favor of the nonmoving party. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Anderson, 477 U.S. at 255.
STATUTE OF LIMITATIONS
provides jurisdiction to enforce any liability created by
FDCPA “within one year from the date on which the
violation occurs.” 15 U.S.C. § 1692k(d). Plaintiff
filed this action on June 8, 2015.
contends that Defendants waived any statute of limitations
defense by failing to identify it as an affirmative defense
in their Answer. However, Plaintiff raised the issue of the
one-year FDCPA limitations period in his Complaint by
alleging that Defendants' initial FDCPA violations began
more than one year before the commencement of this action but
the collections actions were ongoing and continuous in nature
and should be considered one continuous FDCPA violation.
(Doc. 37 at 6, ¶ 31.) The Complaint further alleges,
“Alternatively, Defendants violated the FDCPA by
numerous, separate violations within the last year before
this action was filed.” (Id.) In their Answer,
Defendants denied Plaintiff's allegations regarding the
FDCPA limitations period. (Doc. 38 at 3, ¶ 31.) Thus,
the statute of limitations defense was adequately pled.
also contends that the alleged violations predating the
one-year limitations period constitute a continuing pattern
and course of conduct that continued into the last year
before this action was filed. No controlling authority has
been cited to establish that a continuing violation theory
applies to a claim under FDCPA. Plaintiff cites only
Joseph v. J.J. MacInyre Companies, 281 F.Supp.2d
1156 (N.D. Cal. 2003), which applied the continuing violation
theory to a FDCPA claim for repeated harassing phone calls
from a debt collection agency. The evidence showed more than
200 calls during a nineteenth-month period, approximately 75
of which were within the limitations period. The district
court concluded that application of the continuing violation
doctrine to these facts was logical and consistent with the
FDCPA's broad remedial purpose. Alternatively, the
district court concluded that even if the statute of
limitations were to bar liability for conduct outside the
limitations period, evidence of pre-limitations period calls
likely would be admissible to show background and to
establish a foundation for other evidence. The decision in
Joseph denied summary judgment for the defendant and
did not decide whether damages would be based on a single
course of conduct or multiple violations.
Plaintiff claims that Defendants misrepresented the amount of
his debt in three separate emails, each demanding payment of,
and attempting to collect, a debt he did not owe. Two of
those emails were sent within the one-year limitations
period. It makes little practical difference whether
Defendants' actions are considered a single course of
conduct, i.e., one FDCPA violation continuing past
June 8, 2014, or two violations within the one-year
limitations period. Therefore, evidence of Plaintiff's
payments and Defendants' records before June 8, 2014,
will be considered in determining whether the two emails sent
after June 8, 2014, misrepresented Plaintiff's debt, and
Defendants will not be held liable for FDCPA violations that
occurred before June 8, 2014.
MATERIAL FACTS BASED ON UNDISPUTED EVIDENCE
Philip Calleja is an owner of a unit within the La Fuente
condominium. Defendant Sean Cannon is an Arizona attorney and
the owner of Defendant Cannon Law Firm, PLLC.
Fuente is a condominium subject to a Declaration of
Horizontal Property Regime and Covenants, Conditions,
Restrictions and Easements (“Declaration”). The
Declaration provides for the formation of an association of
the owners of units within La Fuente
(“Association”), which is responsible for the
maintenance, repairs, administration, and operation of the
common elements and assessments for expenses, among other
things. By agreeing to the Declaration, owners agree to pay
their proportion and share of the expenses of the
administration and operation of the common elements
“and any other expenses incurred or budgeted, or
reserved for future expenses established, in conformance with
the Declaration and the Articles and By-Laws.” The
Declaration requires the Association to levy against each
unit and its owner an assessment for the common expenses,
which “together with interest thereon and the cost of
collection thereof, including reasonable attorney's fees
shall, until paid, be a charge against and a continuing
lien” upon the unit and against the owner of such unit.
Association operates through a management company, which
applies the assessment to a unit's account on the first
of each month. Before January 2013, the Association's
policy was to assess a late fee of $15.00 if an assessment
was not paid by the thirtieth day of the month. Beginning in
January 2013, the Association's policy was to assess a
late fee of $15.00 if an assessment was not paid by the
fifteenth of the month.
August 2012 through December 2014, Plaintiff's monthly
assessment was $289.19. From January 2015 through December
2015, Plaintiff's monthly assessment was $300.00. From
2012 through 2015, Plaintiff paid his monthly assessments
using Chase Bank's online service. Each check was issued
by Chase Bank payable to “La Fuente in care of CID
Management.” The payment confirmation for each month
shows the check number, the amount of the check, and the date
the check was sent by Chase Bank to the payee.
2012 - August 2013. The Association's records for
Plaintiff's unit show that the account had a balance of
$0.00 as of July 27, 2012, but on July 30, 2012, the
Association charged a $15.00 late fee for Plaintiff's
June payment. On September 17, 2012, the Association charged
Plaintiff's account a $45.00 administrative fee because
the August 2012 payment was two months late. On September 28,
2012, Plaintiff made a payment of $289.19 and a payment of
$304.19. As of September 28, 2012, the Association's
records indicate that Plaintiff's account had a balance
October 2012 through August 2013, Plaintiff made eleven
payments of $289.19 each. Each of these payments was sent by
the thirtieth day of the month, but not by the fifteenth. The
Association charged Plaintiff a $15.00 late fee for January,
February, March, June, and August 2013. On July 1, 2013, the
Association credited Plaintiff's account $15.00 as an
“expense adjustment.” As of August 29, 2013, the
Association's records indicate that Plaintiff's
account had a balance of $105.00 (consisting of $60.00 for
late fees and $45.00 for the administrative charge).
2013 - September 2014. Plaintiff did not send a payment
in September 2013. The Association's records indicate
that on October 16, 2013, Plaintiff's account was
referred to Defendants for collection (although Plaintiff was
not notified until November 22, 2013). Plaintiff sent a
payment of $289.19 to the Association on October 25, 2013.
Beginning with the October 25, 2013 payment, Plaintiff's
checks were deposited into one of Defendants' bank
Association's records show Plaintiff's account
balance as $1, 002.57 on November 18, 2013, which consisted
of unpaid assessments for September, October, and November
2013; late fees for October and November; and a previous
balance of $105.00 for late fees and the administrative
charge. The November 18, 2013 balance of $1, 002.57 did not
include credit for Plaintiff's October 25, 2013 payment.
November 21, 2013, Plaintiff sent another payment of $289.19
to the Association.
November 22, 2013, Defendants mailed a letter to Plaintiff
stating that the Association had transferred Plaintiff's
account to Defendants for collection, and the amount due was
$1, 457.57. The letter urged Plaintiff “to resolve this
matter rather than cause yourself to incur additional
attorney fees in the collection of this secured debt.”
Defendants' records show that on November 18, 2013,
Plaintiff's account balance was $1, 002.57, the same
balance shown in the Association's records.
Defendants' records show that on November 20, 2013, a
legal fee of $455.00 was added, which increased the account
balance to $1, 457.57. Defendants' records show that on
November 22, 2013, a legal fee of $70.00 was added, which
further increased the account balance to $1, 527.57. A
different version of Defendants' records show an account
balance of $1, 457.57 on November 22, 2013, and no additional
fee of $70.00. Regardless of these inconsistencies, the
November 22, 2013 letter demanded an amount that included
legal fees and did not include receipt of Plaintiff's
October 25, 2013 payment.
receiving the November 22, 2013 demand letter, Plaintiff
disputed the amount of the debt and exchanged correspondence
with Defendants regarding Plaintiff's account balance.
Among other things, Plaintiff asserted that he had not
received notice that the Association's policy had changed
in January 2013 from charging a late fee on the thirtieth day
of the month to charging a late fee on the fifteenth day of
the month. The Association contended that Plaintiff had not
provided his current mailing address.
November 22, 2013 letter directed Plaintiff to make all
checks payable to the Cannon Law Firm and to mail them to the
Cannon Law Firm. It stated that the Association would not
accept payments on Plaintiff's account and would forward
to the Cannon Law Firm any checks it received. Plaintiff
continued to send checks to the Association, which forwarded
them to Defendants. Defendants sometimes issued a check to
the Association ...