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Heffington v. Gordon, Aylworth, And Tami, P.C.

United States District Court, D. Oregon, Portland Division

August 8, 2018





         Plaintiff Beverly Heffington (“Heffington”) brings this lawsuit against Defendant Gordon, Aylworth and Tami, P.C. (“GAT”), alleging violations of the Fair Debt Collection Practices Act (“FDCPA”). Presently before the court is GAT's Second Motion for Summary Judgment, ECF No. 36, addressing Heffington's only remaining claim, under § 1692e(2)(A) of the FDCPA. For the reasons set forth below, the motion is granted.[1]


         The following facts are undisputed by the parties and taken from the court's ruling on a prior motion for summary judgment in this case. (See Opinion and Order, ECF No. 34, at 2-3.) More than a decade ago, First Resolution Investment Corporation (“First Resolution”) enlisted the help of GAT, then named Daniel P. Gordon, P.C., to assist in collecting debts owed. Heffington owed First Resolution the balance of two respective bank accounts. GAT first communicated with Heffington on June 19, 2006, when it sent her two letters, one for each account.

         In 2007, a state court awarded First Resolution a combined general judgment against Heffington for the debts, which were then combined into a single judgment account. No. payment was made on that account.

         On June 23, 2016, GAT sent Heffington another letter, again requesting payment on the debt, which, by that time, had grown significantly due to accrued interest. That letter, in relevant part, read: “This firm has been retained to collect a judgment in the sum of $25, 623.94, which is the current balance, and which includes $11, 360.91 of post-judgment interest. Interest may continue to accrue in accordance with the judgment until the balance is paid in full.”

         Heffington filed this suit in October 2016, alleging the letter violated the FDCPA by “failing to effectively convey the disclosures required by 15 USC 1692g(a).” (Initial Complaint, ECF No. 1, ¶ 9.) Specifically, Heffington claimed the letter's representation that “interest may continue to accrue” failed “to state unequivocally whether interest [wa]s accruing” and, therefore, was ambiguous. (Id.) GAT moved for summary judgment on the claim, defending that the letter was not an “initial communication” subject to 15 U.S.C. 1692g(a), and even if it were, the language complied with the provision. (See Def.'s First Mot. for Summ. J., ECF No. 9.)

         Before the court issued its ruling on that motion, Heffington requested leave to amend her complaint to add a claim under § 1692e of the FDCPA. (ECF No. 16.) The court granted leave, and Heffington filed a first amended complaint (“FAC”). (First Amended Complaint, ECF No. 30, (“FAC”).) The FAC added allegations that the “interest may continue to accrue” language also violated § 1692e(2)(A) of the FDCPA. (FAC ¶ 10.)

         The court subsequently ruled on GAT's first motion for summary judgment, which addressed only the § 1692g(a) violation. (Opinion and Order, ECF No. 34.) The court concluded the letter was not an initial communication under § 1692g(a) and, therefore, was not subject to the provision's requirements. (Id. at 8.) However, even if it were, the letter's language did not violate § 1692g(a). (Id. at 17-19.)

         GAT then filed the instant motion for summary judgment (“Motion”), challenging the remaining § 1692e(2)(A) claim. (Def.'s Mot. for Summary J., ECF No. 36.)

         Legal Standard

         Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). 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. 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.” Id. 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). Still, deference to the nonmoving party has limits. The nonmoving party must set forth “specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e) (emphasis added). When “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for ...

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