United States District Court, D. Arizona
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff Charlotte Gibson's and
Defendant U.S. Collections West Incorporated's (“US
Collections”) cross motions for summary judgment,
(Docs. 25 & 30). For the following reasons, the Court
grants Plaintiff's motion and denies the Defendant's
Gibson owed money to North Valley Endodontic for medical
expenses. (Doc. 25-2 at 2.) At some point, she fell behind on
payments and U.S. Collections began collection activity to
recover her account's balance. (Id.) On
September 22, 2015, Ms. Gibson wrote a letter informing U.S.
Collections that she refused to pay. (Id.) U.S.
Collections received this notice on September 25, 2015.
receiving this letter, U.S. Collections concedes that it sent
two additional debt-collection letters to Ms. Gibson. It
asserts, however, that these communications were sent in
error after a clerk, Kay Kasey,  who was trained to give
refusal to pay letters to a manager to handle, mistakenly
placed Ms. Gibson's refusal letter into a box for dispute
letters. (Doc. 30 at 3, Doc 32 at 1.)
Gibson filed the instant suit, alleging a violation of the
Fair Debt Collection Practices Act (“FDCPA”).
(Doc. 1.) U.S. Collections concedes that it violated the
FDCPA but asserts that it should not be held liable because
the violation was the result of a bona fide error, which is
an affirmative defense under the statute. (Doc. 30.)
judgment is appropriate if the evidence, viewed in the light
most favorable to the nonmoving party, demonstrates
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Substantive law determines
which facts are material and “[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “A fact issue is genuine
‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at
248). Thus, the nonmoving party must show that the genuine
factual issues “‘can be resolved only by a finder
of fact because they may reasonably be resolved in favor of
either party.'” Cal. Architectural Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d
1466, 1468 (9th Cir. 1987) (quoting Anderson, 477
U.S. at 250).
“[t]he evidence of [the non-moving party] is to be
believed, and all justifiable inferences are to be drawn in
[its] favor, ” the non-moving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing
to particular parts of materials in the record . . . or other
materials; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c). “A trial
court can only consider admissible evidence in ruling on a
motion for summary judgment, ” and evidence must be
authenticated before it can be considered. Orr v. Bank of
Am., 285 F.3d 764, 773-74 (9th Cir. 2002).
FDCPA imposes strict liability on debt collectors for
continuing to contact a consumer once the “consumer
notifies a debt collector in writing that the consumer
refuses to pay a debt or that the consumer wishes the debt
collector to cease further communication with the
consumer.” 15 U.S.C. § 1692c(c). 15 U.S.C. §
1692(e); See also Reichert v. Nat'l Credit Sys.,
Inc., 531 F.3d 1002, 1005 (9th Cir. 2008) (affirming
that “the FDCPA imposes strict liability”).
Although the FDCPA imposes strict liability in such cases,
debt collectors may seek to demonstrate that their actions
were the result of a “bona fide error” to avoid
liability. 15 U.S.C. § 1692k; see Reichert, 531
F.3d at 1005 (explaining that the bona fide error defense
“provides a narrow exception to strict
liability.”) (internal quotation marks omitted).
“The bona fide error defense is an affirmative defense,
for which the debt collector has the burden of proof.”
Reichert, 531 F.3d at 1005. To establish the
defense, the debt collector must establish, by the
preponderance of the evidence, that “(1) it violated
the FDCPA unintentionally; (2) the violation resulted from a
bona fide error; and (3) it maintained procedures reasonably
adapted to avoid the violation.” McCollough v.
Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939,
948 (9th Cir. 2011).
Collections Provided No Evidence that it Utilized Procedures
Reasonably Adapted to Avoid Mistakes in the Handling of
utilize the bona fide error defense as a shield, the defense
must establish that it maintained procedures “designed
to avoid discoverable errors.” Reichert, 531
F.3d at 1007. As this Court previously noted the Ninth
Circuit uses a two-step process to determine whether the
“procedures” prong may have been satisfied.
Reichert, 531 F.3d at 1006. First the debt collector
must “ ‘[maintain]-i.e., actually [employ] or
[implement]-procedures to avoid errors.'”
Id. (quoting Johnson v. Riddle, 443 F.3d
723, 729 (10th Cir. 2006)). Second the procedures must be
“‘reasonably adapted' to avoid the
specific error at issue.”
Id. “To qualify for the bona fide error
defense under the FDCPA, the debt collector has an
affirmative obligation to maintain procedures designed to
avoid discoverable errors.” And, further “[i]f
the bona fide error defense is to have any meaning in the
context of a strict liability statute, then a showing of
“procedures reasonably adapted to avoid any such
error” must require more than a mere assertion to that
effect. The ...