United States District Court, D. Oregon, Portland Division
MICHAEL KAISER and MARGARET J. LOEWEN, on behalf of themselves and others similarly situated, Plaintiffs,
CASCADE CAPITAL, LLC, and GORDON AYLWORTH & TAMI, P.C., Defendants.
FINDINGS AND RECOMMENDATION
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
Margaret Loewen (“Loewen”) and Michael Kaiser
“Plaintiffs”) sued Cascade Capital LLC
(“Cascade”) and Gordon, Aylworth & Tami, P.C.
(“GAT”) (collectively, “Defendants”)
alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”). 15 U.S.C. §§ 1692-1692p
(2010). Kaiser's claims are currently stayed pending an
arbitration decision on whether the claims are arbitrable.
Loewen's claims have been challenged by a motion to
dismiss, which this court recommended be granted in part and
denied in part. That recommendation was initially adopted by
Chief District Judge Michael Mosman but, for reasons set
forth infra, that opinion was later withdrawn and
the question of how to proceed was returned to this court. As
explained below, this court again concludes Kaiser's
claims are subject to arbitration and that Loewen's
claims are not subject to arbitration, and thus recommends
that Defendants' motion to dismiss be granted in part and
denied in part, without a stay of Loewen's claims in this
purchased a car in 2007, pursuant to a retail installment
contract. (First. Am. Compl., ECF No. 14 (“FAC”),
¶ 16.) Sometime before 2010, Loewen defaulted on the
contract, and the car was repossessed. (Id.) Cascade
hired GAT to collect debts Cascade had previously
purchased. (FAC ¶ 15.) On August 3, 2015, GAT
sent Loewen a collection letter for payment of the remaining
balance of her retail installment contract. (FAC ¶ 17.)
Two months later, Defendants filed a lawsuit against Loewen
in state court to collect on the debt. (FAC ¶ 19).
Defendants subsequently dismissed the lawsuit against Loewen.
2006, Kaiser also bought a car, likewise pursuant to a retail
installment contract. (FAC ¶ 21.) In 2009, Kaiser signed
an amended agreement that included an arbitration provision
under which Kaiser agreed to arbitrate “any claim . . .
related to” his auto loan. (Findings and Recommendation
on Defendants' Motion to Compel Arbitration, ECF No. 56
(“Arbitration F&R”) at 2, 8, adopted by
Opinion and Order, ECF No. 85.)
defaulted on the contract in 2010. (Arbitration F&R at 2;
FAC ¶¶ 21-22.) Five years later, Kaiser received a
letter from GAT on behalf of Cascade, demanding payment and
implying that if he did not pay, Cascade would file suit.
(FAC ¶ 22.) Kaiser did not pay, and GAT filed suit in
state court in August 2015. (FAC ¶ 23.) The case went to
arbitration and Kaiser prevailed, but in the process incurred
filing, attorney, and arbitration fees. (Id.) The
arbitrator denied Kaiser attorney fees, and Kaiser appealed.
(Id.) A state court reversed the arbitrator,
awarding Kaiser a total judgment of $10, 223 against Cascade.
Common Claims for Relief.
on the operative complaint, Loewen and Kaiser jointly assert
the same claims for relief. Together, they allege that
Defendants' failure to notify Plaintiffs that their
respective debts were potentially barred by statute of
limitations, along with Defendants' subsequent threatened
and initiated legal actions constitute violations of FDCPA.
(FAC ¶¶ 27-28.) Loewen also individually claims
that Defendants' filing of the lawsuit against her and
delivery of a “packet of papers” regarding the
debt caused her emotional anxiety. (FAC ¶¶ 18-20.)
Kaiser individually alleges Cascade's collection attempt
caused his family significant stress and financial hardship.
(FAC ¶ 24. Finally, Plaintiffs assert class allegations
on behalf of all individuals residing in Oregon and
Washington who received a letter or were sued by Defendants
“seeking to collect debts arising from retail
installment contracts for which no payment has been made . .
. for over fours years after default . . . .” (FAC
¶ 30.) Plaintiffs have also filed a motion to certify
that class, which remains pending before this court.
(Plaintiffs' Motion to Certify Class, ECF No. 31.)
Motion to Compel Arbitration of Kaiser's Claims.
moved to compel arbitration of Kaiser's claims.
(Defs.' Mot. to Compel Arbitration (ECF No. 16).) At
issue was whether Kaiser's arbitration agreement went
into effect and formed a binding contract. The court granted
that motion, holding that whether Kaiser's arbitration
agreement encompasses his FDCPA claims is a matter for the
arbitrator to decide. (Arbitration F&R at 13-14.)
Accordingly, the court stayed the ...