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Navarro v. Portfolio Recovery Associates LLC

United States District Court, D. Arizona

September 16, 2019

James Navarro, Plaintiff,
v.
Portfolio Recovery Associates, LLC, Defendant.

          ORDER

          HONORABLE JOHN J. TUCHI UNITED STATES OH DISTRICT JUDGE.

         At issue is Defendant's Motion for Summary Judgment (Doc. 26, DMSJ), supported by Defendant's Statement of Facts (Doc. 27, DSOF), to which Plaintiff filed a Response (Doc. 30) and Defendant filed a Reply (Doc. 36); and Plaintiff's Motion for Summary Judgment (Doc. 28, PMSJ), supported by Plaintiff's Statement of Facts (Doc. 29, PSOF), to which Defendant filed a Response (Doc. 32) and Plaintiff filed a Reply (Doc. 35). For the reasons that follow, the Court grants Defendant's Motion and denies Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff's Complaint (Doc. 1) alleges a single violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq. Before the Court are the parties' cross motions for summary judgment.

         In 2017, Plaintiff obtained his credit report from the three major credit reporting agencies and noticed that Defendant, a debt collector and data furnisher, was reporting a delinquent account. Around December 6, 2017, Defendant received a letter[1] stating that Plaintiff disputed the reported account. (PSOF, Ex. 1.) On December 27, Defendant electronically communicated to the credit reporting agencies an “XB” compliance code for Plaintiff's account. (DSOF, Ex. E; Ex. B.) Data furnishers, such as Defendant, are required to use Compliance Condition Codes when communicating to the reporting agencies the status of accounts. An XB code signals to the agencies that the account is in dispute. (DSOF, Ex. B at 2.) Defendant, who reports to the agencies on the 8th and 27th of every month, again reported an XB code on January 8, 2018. (DSOF, Ex. E.)

         On January 11, Defendant sent Plaintiff a letter stating that it had completed its investigation into the dispute and determined that the reported account was valid. (DSOF, Ex. F.) It attached a copy of two statements reflecting a delinquent credit card account that Plaintiff had opened with Capital One Bank. Plaintiff admitted that he received this letter. (DSOF, Ex. D at 7.) Nothing in the record indicates whether Plaintiff followed up with Defendant or continued to dispute the debt.

         After completing its investigation in January, Defendant began submitting an “XC” compliance code to the credit reporting agencies. (DSOF, Ex. E; Ex. B.) An XC code informs the reporting agencies that the data furnisher has completed the investigation into the disputed account but that the consumer disagrees with the outcome of the investigation. Defendant continued to submit an XC code twice monthly until Plaintiff brought this lawsuit. (DSOF, Ex. E; Ex. B.)

         On July 2, 2018-three weeks before filing suit-Plaintiff entered into a payment plan with Defendant for the very debt that is the subject of this litigation.[2] (DSOF, Ex. G.) Plaintiff pulled his credit report three days later and discovered that Experian was still reporting Plaintiff's outstanding and past-due debt with Defendant. On July 25, the day he filed this suit, Plaintiff made his first payment to Defendant in accordance with the payment plan. (DSOF, Ex. G.)

         II. LEGAL STANDARD

         Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when: (1) the movant shows that there is no genuine dispute as to any material fact; and (2) after viewing the evidence most favorably to the non-moving party, the movant is entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome of the suit under governing [substantive] law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” of material fact arises only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.

         In considering a motion for summary judgment, the Court must regard as true the non-moving party's evidence if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The non-moving party may not merely rest on its pleadings; it must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

         “A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Summary judgment must be entered ‘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.'” United States v. Carter, 906 F.2d 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322).

         III. ANALYSIS

         A. ...


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