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Cummings v. Jaburg & Wilk P.C.

United States District Court, D. Arizona

March 14, 2017

Lauren Cummings, Plaintiff,
v.
Jaburg & Wilk, P.C., Defendant.

          MEMORANDUM OF DECISION AND ORDER

          Stephen M. McNamee Senior United States District Judge

         Pending before the Court is Defendant Jaburg & Wilk P.C.'s (“Defendant”) motion for summary judgment pursuant to the Fair Debt Collection Practices Act (“FDCPA”). (Doc. 21.) Defendant filed its supporting statement of facts, and the matter is fully briefed. (Docs. 22, 25-27.) Also pending is Plaintiff Lauren Cummings' (“Plaintiff”) motion for judgment on the pleadings. (Doc. 24.) This motion is also fully briefed and ready for review. (Docs. 28, 29.) Finally, Plaintiff moves to strike Defendant's reply in part as it relates to Defendant's argument regarding bona fide error. (Doc. 30.) Defendant has responded objecting to Plaintiff's motion. (Doc. 31.) This matter is also briefed and ready for review.

         After due consideration, the Court will grant Defendant's motion for summary judgment, deny Plaintiff's motion for judgment on the pleadings, and deny Plaintiff's motion to strike as moot.

         Background

         On August 13, 2013, Plaintiff bought a Toyota truck from Hatch Toyota, a car dealership based in Show Low, Arizona. (Doc. 22-1 at 9-12.) Plaintiff defaulted on the loan and the truck was repossessed and sold. (Id. at 15.) On October 7, 2014, Defendant, as counsel for Consumer Portfolio Services, Inc., sent Plaintiff a debt collection letter alleging that Plaintiff owed $9, 128.72, plus accruing interest. (Id. at 7.) The letter gave Plaintiff 30 days to file a written response. (Id.) According to Defendant, the October 7, 2014 demand letter was accurate and correctly stated that the balance owed as of that date was $9, 128.72, which was comprised of the following: (1) principal amount of $7, 466.90; (2) accrued interest through 10/7/14 in the amount of $1, 641.82; and (3) late charges in the amount of $20. (Id. at 2-5.)

         On November 13, 2014, Defendant filed a state court complaint in Maricopa County Superior Court for breach of contract, alleging Plaintiff owed $7, 466.90 and accrued interest through 10/1/14 in the amount of $1, 622.18, [1] which would be a total of $9, 089.08. (Id. at 2-5, 14-17.) According to Defendant, in the state court complaint, it inadvertently omitted late charges in the amount of $20. (Id. at 4.) On March 11, 2015, Defendant filed a First Amended Complaint in Maricopa County Superior Court, which included the $20 late charges. (Id. at 4, 26-29.)

         On October 6, 2015, Plaintiff filed a FDCPA complaint against Defendant. (Doc. 1.) Plaintiff's three count Complaint alleges: (1) Defendant violated 15 U.S.C. § 1692e(2)(A) by falsely representing the amount of Plaintiff's alleged debt; (2) Defendant violated 15 U.S.C. § 1692e(10) by using false, deceptive, or misleading representations or means in connection with the collection of any debt; and (3) Defendant violated 15 U.S.C. § 1692f(1) by collecting or attempting to collect from Plaintiff an amount not expressly authorized by the agreement creating the debt or permitted by law. (Id.)

         Subsequently, Defendant moved for summary judgment and Plaintiff moved for judgment on the pleadings. (Docs. 21, 24.)

         Standard of Review

         Summary Judgment

          “A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.” Fed.R.Civ.P. 56(a). A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, show “that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d at 1130.

         A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 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.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 323. The party opposing summary judgment may not rest upon the mere allegations or denials of the party's pleadings, but must set forth “specific facts showing that there is a genuine issue for trial.” See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e) (1963) (amended 2010)); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at 247-48.

         Judgment on the Pleadings

         Rule 12(c) of the Federal Rules of Civil Procedure states: “Motion for Judgment on the Pleadings. After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” District courts are unwilling to grant a Rule 12(c) dismissal “unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” See Doleman v. Meiji Mutual Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984); see also Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). A court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy. Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (further quotation and citation omitted); but cf. Telesaurus VPC, LLC. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (stating that pleadings that are no more than legal ...


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