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Wilson v. Nacm-Oregon Service Co.

United States District Court, Ninth Circuit

December 19, 2013

LORIE WILSON, Plaintiff,


JANICE M. STEWART, Magistrate Judge.


Plaintiff, Lorie Wilson ("Wilson"), brings this action against NACM-Oregon Service Company ("NACM"), a collection agency, and two of its employees, Linda Johnson ("Johnson") and Brenda Terrault ("Terrault"), for violations of the Fair Debt Collection Practices Act, 15 USC § 1690 et seq ("FDCPA"). This court has jurisdiction under 15 USC § 1692k(d). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #10).

Both defendants and plaintiff have filed motions for summary judgment (dockets #21 and #24). For the reasons that follow, both motions are granted in part and denied in part.


FRCP 56(c) authorizes summary judgment if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only determine[] whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir 1999). A " scintilla of evidence, ' or evidence that is merely colorable' or not significantly probative, '" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir 1989). The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir 2000). The court must view the inferences drawn from the facts "in the light most favorable to the non-moving party." Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir 2011).


On August 5, 2008, Wilson's landlord, Cal-Am Properties ("Cal-Am"), filed suit against her in Washington County Circuit Court Case No. C084449CV, to recover past due rent. Complaint, ¶ 11; Abel Decl., Ex. 1.[1] The court entered an order of default and final judgment against Wilson on October 16, 2008, and sent a Notice of Entry of Judgment to Cal-Am. Abel Decl., Exs. 1, 5. On October 31, 2008, after Wilson filed an answer, the court vacated the judgment, reinstated the case and transferred it to arbitration. Id., Ex. 1.

On January 30, 2009, the court entered a Judgment of Dismissal after the parties failed to schedule an arbitration hearing in compliance with court procedures. Id., Ex. 6. After Wilson failed to pay her portion of the arbitration fee, an arbitrator signed a "Supplemental General Judgment with Money Award - Arbitration Award" on February 12, 2009, in favor of Heritage Village Mobile Home Park, [2] for $2, 148, $3, 079 in attorney fees, and $532 in costs and disbursements. Id., Ex. 7. The court filed that document as an "Arbitration Award" on March 5, 2009. Id., Ex. 1. However, the case had been dismissed and closed on January 30, 2009, and was not reinstated prior to entry of that "Arbitration Award."

On April 10, 2009, Cal-Am authorized NACM to collect Wilson's debt. Id., Ex. 8, p. 2. Johnson worked on Wilson's collections case. On April 25, 2009, NACM mailed the first notice of Wilson's $6, 382.90 debt to 845 SW Liberty Bell Drive, Beaverton, Oregon ("Liberty Bell"). Id., Ex. 12. After it was returned "not deliverable as addressed, " NACM sent a similar notice to 20839 SW Trailwalk Drive ("Trailwalk"). Id., Ex. 13. Both notices contained the following information: "Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt, or any portion thereof, this office will assume this debt is valid." The Trailwalk notice was returned because the forwarding address had expired. Id., Ex. 11, p. 6.

Between May 29 and June 25, 2009, Johnson sent a second notice to Wilson at three addresses: 820 Meadowlark Lane, Tillamook, Oregon; the Liberty Bell address; and the Trailwalk address. Id., Ex. 11, p. 6; Exs. 14 & 15. Before doing so, Johnson confirmed that the Liberty Bell address was on file with the Oregon Department of Motor Vehicles, Accurint, and credit agencies. Id., Ex. 11, p. 6. All three of the second notices were returned. Id. On July 11, 2009, Johnson requested a record of Wilson's current address from the postmaster who responded that Wilson had moved without leaving a forwarding address. Id. Although Johnson learned over two years later on October 22, 2011, that Wilson's business, Bar-Be Quties, was located at 1034 Baseline Drive, Cornelius, Oregon, NACM sent no notice to Wilson at that address. Id., p. 3.

On February 8, 2010, Heritage Village Mobile Home Park assigned to NACM its rights to the judgment obtained against Wilson in Washington County Circuit Court Case No. CO18409EV, an eviction action against Wilson. Id., Ex. 9. At some point after receiving the assignment, Johnson contacted the Washington County Circuit Court clerk's office "to make sure that it is a judgment." Johnson Depo., p. 13. The clerk told Johnson "yes." Id. Johnson then served writs of garnishment on Wilson's bank accounts at Bank of the West, West Coast Bank, Oregon First Community Credit Union, Key Bank, U.S. Bank, and Columbia Community Bank. Knewtson Decl., Ex. 1; Abel Decl., Ex. 11, p. 4. In response, West Coast Bank remitted $15.93 to NACM on August 25 and $370.70 on September 16, 2011. Able Decl., Ex. 11, p. 4. Around September 27, 2011, Wilson reported to Johnson that the West Coast Bank funds were Temporary Assistance for Needy Families ("TANF") income and exempt from garnishment. Id. Wilson filed a challenge to the TANF garnishment. Id., Ex. 1, p. 2. At a hearing on October 21, 2011, the court set over the matter to November 4, 2011, to allow Wilson time to collect itemized statements of her TANF income. Id., Ex. 16.

At the next hearing, based on information obtained from the clerk's office after the first hearing, Wilson argued that neither NACM nor Cal-Am had obtained a valid judgment against her. Knewtson Decl., Ex. 10, pp. 4-6. Judge Bailey explained that she would have to separately challenge the judgment and added: "There's a proper judgment in my file, it was signed but - at one point in time it was dismissed, because I think the arbitrator's decision hadn't come in and the court signed off on a judgment at that point in time." Id., p. 4. Given his reference to the "file, " he apparently was referring to the Supplemental General Judgment signed by an arbitrator on February 12, 2009, which the court had entered as an "Arbitration Award." To give Wilson more time to collect documents supporting her garnishment challenge, the court again set the hearing over to November 18, 2011. Id., p. 7

During introductions at the November 18, 2011 hearing, Judge Price stated that "Ms. Johnson is here representing Cal." Id., p. 8. After hearing Wilson's same objections about the validity of the judgment, the judge again set over the hearing to December 9, 2011, to give the parties more time to sort out the confusion regarding the judgment's validity. Id., pp. 8-13. When Judge Price commented to Johnson, "I get the distinct impression from you that you don't want to collect any money that you're not entitled to, " she answered: "Absolutely." Id., p. 10.

On December 6, 2011, NACM advised the Washington County Circuit Court that, according to the docket, the case had been dismissed without reinstatement and asked the court to release Wilson's garnished funds. Abel Decl., Ex. 10. The court entered that order on December 12, 2011. Able Decl., Ex. 1, p. 3


I. Terrault

Terrault seeks summary judgment on the basis that she bears no individual liability under the FDCPA. As the collections manager for NACM, she "had very little contact with the actual day-to-day collections work, " but instead managed the department and its employees, handled the budget, drafted policy, taught classes, and wrote articles. Terrault Depo., pp. 5-7.

The FDCPA assigns liability to any "debt collector, " which it broadly defines as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 USC § 1692a(6). To determine whether an individual working for a debt collector may be held liable, a court must analyze: "1) whether the individual qualifies as a debt collector, and 2) whether that individual has taken an action that violates the FDCPA." Cruz v. Int'l Collection Corp., 673 F.3d 991, 1000 (9th Cir 2012).

NACM argues that the threshold for personal liability is material participation in the debt collection, citing del Campo v. Kennedy, 491 F Supp2d 891, 903 (ND Cal 2006), and earlier district court cases. However, in del Campo and similar cases, the plaintiffs sought to hold the individual defendants vicariously liable based on their ownership or management role in the collections agency, as opposed to their personal involvement in the alleged FDCPA violations. More recently in Cruz, the Ninth Circuit concluded that it is still an "open question whether, if an officer qualifies as a debt collector, that officer may be held personally liable based solely on the action of serving in his role as officer of the company." Cruz, 673 F.3d at 1000 . Cruz did not answer that question because the officer "was personally involved in at least one violation of the FDCPA." Id.

Following the two-step process set forth in Cruz, this court must first determine if Terrault qualifies as a "debt collector." The answer is yes, for two reasons. First, defendants admitted in their Answer that Terrault was a "debt collector defined by 15 U.S.C. § 1692a(6)." Answer (docket #3), ¶ 6. Second, even without that admission, Terrault falls within the definition of a "debt collector" under the FDCPA. As the "Attorney for the Creditor, " she signed at least one writ of garnishment for Wilson's accounts at Bank of the West for the purpose of satisfying Wilson's $7, 920.43 debt. Knewtson Decl., Ex. 1. The writ instructed the garnishee, Bank of the West, to remit any funds by mail to Terrault. Id. A lawyer filing an application for writ of garnishment is clearly subject to the definition of "debt collector" in this circuit. See Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1513 (9th Cir 1994) ("We thus reject the district court's conclusion that Kaplan is not covered by the FDCPA because the filing of an application for a writ of garnishment is a pure legal action.' Attorneys, like all other persons, are subject to the definition of debt collector' in 15 U.S.C. § 1692a(6).").

As to the second step of the analysis, Terrault did take an action that violates the FDCPA. By signing the writ of garnishment, Terrault certified that "[a] judgment was entered against the Debtor for the debt." Knewtson Decl., Ex. 1. As discussed below, this representation created the false impression that NACM had obtained a valid judgment against Wilson permitting it to garnish her accounts. Thus, Terrault may be held liable for committing violations of the FDCPA related to her signing of the illegal writ of garnishment. Thus, Terrault's motion for summary judgment on the basis that she cannot be held personally liable as a debt collector is denied.

II. Bona Fide Error Defense

NACM also seeks summary judgment for all alleged violations based on the bona fide error defense. The FDCPA is a strict liability statute that "makes debt collectors liable for violations that are not knowing or intentional." Reichert v. Nat'l Credit Sys., Inc., 531 F.3d 1002, 1005 (9th Cir 2008), citing Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1176 n11 (9th Cir 2006). However, the bona fide error defense provides a "narrow exception to strict liability." Clark, 460 F.3d at 1177. This statutory defense states that:

A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the ...

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