United States District Court, D. Oregon
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Plaintiff Bonnie Adams ("Adams"), an Oregon resident, brings this action against defendant David B. Schumacher, PC ("Schumacher"), an Oregon corporation. Adams alleges Schumacher violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692 o (2014), while attempting to collect a debt she owed to a third-party creditor. Adams seeks a declaratory judgment that Schumacher's conduct violated the FDCPA, actual and statutory damages under § 1692k, and reasonable attorneys fees.
Schumacher moves for summary judgment in his favor pursuant to FED. R. CIV. P. 56. On a cross-motion, Adams also moves for summary judgment on her claim. The court grants, in part, and denies, in part, each motion. With regard to § 1692g(a), the court grants Schumacher's motion and denies Adams's motion because the record establishes Shumacher met the validation notice requirements. With regard to § 1692g(b), the court grants Adams's motion and denies Schumacher's motion because the record establishes Schumacher's initial communication obscured and overshadowed Adams's right to dispute her debt.
Columbia Collection Service, Inc. ("CCS") hired Schumacher, an attorney, to collect on a judgment CCS obtained against Adams in Washington County Circuit Court. Schumacher Decl. 1, Dkt. No. 14; see generally Columbia Collection Service, Inc. v. Bonnie Jean Adams, No. C131035SC (Wash. Cnty. Cir. Ct. Mar. 25, 2013). Schumacher issued a writ of garnishment against Adams for $770.37 based on that judgment. Schumacher Decl. Ex. 1, at 1, Dkt. No. 14-1. On March 29, 2013, Schumacher sent the garnishment papers to Wells Fargo Bank, Adams's employer. Schumacher Decl. 2; Schumacher Decl. Ex. 1, at 1. Schumacher then sent a copy of the garnishment papers to Adams (the "Correspondence"), which included: (1) the writ of garnishment, (2) a debt calculation form, (3) notice of the property exempt from garnishment and instructions for challenging the writ, (4) a form to challenge the garnishment, and (5) an FDCPA notice (the "Notice"). Schumacher Decl. 2; Schumacher Decl. Ex. 1. There was no other communication between Schumacher and Adams. Pl.'s Mot. for Partial Summ. J. 3, Dkt. No. 16. Adams challenged the garnishment in court, but her challenge was denied. Schumacher Decl. Ex. 2, at 19.
Summary judgment is appropriate where (1) "the movant shows that there is no genuine dispute as to any material fact" and (2) the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) (2014). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should 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." Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Adams alleges Schumacher, as a "debt collector" under the FDCPA, violated § 1692g(a) of the FDCPA by failing to provide the required debt validation information. Alternatively, Adams alleges Schumacher violated § 1692g(b) because the Correspondence, as conveyed, obscured and overshadowed her right to dispute the debt.
In response, Schumacher argues the Correspondence did not constitute an initial communication because the garnishment papers were legal pleadings, which are exempt from the statutory definition of "initial communication." Alternatively, Schumacher argues that even if all, or part of, the Correspondence constituted an initial communication, the Correspondence provided all of the debt validation information required under § 1692g(a). Further, Schumacher argues that sending the FDCPA notice to Adams concurrently with the garnishment papers did not obscure or overshadow Adams's right to dispute the debt because she no longer had the right to dispute the debt. Lastly, Schumacher argues that even if Adams's right to dispute the debt was overshadowed, he is not liable because his acts were not intentional and resulted from bona fide error.
I. No Genuine Dispute of the Material Facts
The parties agree and the record reflects, there is no dispute regarding the material facts of this case. Adams admits the documents Schumacher reproduced in Exhibit 1 of his Declaration are the same documents she received from him in 2013. Pl.'s Mot. for Partial Summ. J. 1. There was no other communication between the parties. Adams's claims are ...