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Warner v. Ray Klein, Inc.

United States District Court, D. Oregon

April 18, 2018

DORTHA AND GILBERT WARNER, Plaintiff,
v.
RAY KLEIN, INC., Defendant.

          Joshua R. Trigsted Trigsted Law Group, P.C. Attorney for Plaintiff.

          Wade C. Isbell Ray Klein, Inc. dba Professional Credit Service Attorneys for Defendant.

          OPINION AND ORDER

          John Jelderks U.S. Magistrate Judge.

         Plaintiffs Dortha and Gilbert Warner bring this action against Defendant Ray Klein, Inc., alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) 15 U.S.C. §§ 1692 et seq. Plaintiffs claim Defendant violated 15 U.S.C. §1692g(a) by failing to effectively disclose the identity of the current creditor in a letter it sent to Plaintiffs. Currently before the Court are Defendant's motion for summary judgment and Plaintiffs' motion for partial summary judgment. For the reasons set forth below, Defendant's motion is granted, Plaintiffs' motion is denied and this case is dismissed.

         Background

         The parties agree that the following facts are undisputed. The debt being collected is a “debt” under 15 U.S.C. § 1692a(5). Plaintiffs are “consumers” under 15 U.S.C. § 1692a(3) and Defendant is a “debt collector” under 15 U.S.C. § 1692a(6). Defendant sent Plaintiff a letter dated January 23, 2017, that qualified as either an “initial communication” or as correspondence that was sent within five days of the “initial communication.” The letter, printed on Defendant's letterhead, states that “The account(s) listed in this letter has been referred for collection.” (Dkt. #13, Ex. 1). This statement is followed by the language:

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. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor(s), if different from the current creditor(s).

Id.

         In the center of the page, set off from the above language in table format with headings, the letter identifies the original creditor as Portland Water Bureau, the original account number, the “Professional” account number, and the total amount due. Appearing lower on the page is the language “This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose.” Id.

         According to the Declaration of Mark Hasson in support of Defendant's motion, Plaintiffs did not respond to the letter and Defendant filed a small claims lawsuit in Clackamas County Circuit Court. (Dkt. #12, ¶ 5). Hasson's Declaration also asserts that the parties reached a mediated agreement in the small claims action and on or around September 1, 2017, Plaintiffs paid $4, 461.05 to Defendant to resolve the Portland Water Bureau account. Plaintiffs do not dispute these assertions. Plaintiffs filed the current action with this Court on August 22, 2017. (Dkt. #1).

         Evaluating Motions for Summary Judgment

         Federal Rule of Civil Procedure 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 the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may discharge this burden by showing that there is an absence of evidence to support the nonmoving party's case. Id. When the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.

         The substantive law governing a claim or defense determines whether a fact is material. T. W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts concerning the existence of a factual issue should be resolved against the moving party. Id. at 630-31. The evidence of the nonmoving party is to be believed, and all justifiable inferences are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No. genuine issue for trial exists, however, where the record as a whole could not lead the trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

         Where parties file cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas (ACLU II), 466 F.3d 784, 790-91 (9th Cir. 2006) (quoting A ...


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