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Welker v. Horwitz


March 25, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Currently before the Court is Plaintiff Erica Welker's Motion for Summary Judgment. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS the motion in its entirety.


Defendant Daniel J. Horwitz is an attorney engaged in collecting unpaid debts for creditors, including the Ambulatory Care Surgery Center. On October 2, 2008, Defendant sent Welker a dunning letter,*fn1 indicating that the Ambulatory Care Surgery Center retained his office to collect Welker's outstanding balance related to her past-due account for medical services rendered. The letter listed $23,508.61 as the principal amount of the claim, and also asked for interest at the legal rate and reimbursement of related court costs. The dunning letter was delivered along with the state court Summons and Complaint, and was the only communication sent to Welker by Defendant.

On December 5, 2008, Welker brought a lawsuit against Defendant, alleging that the dunning letter she received violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788-1788.32 ("Rosenthal Act"). Defendant subsequently filed a Motion to Dismiss, which the Court denied.

On February 19, 2010, Plaintiff moved for summary judgment on several issues, without requesting any specific award of damages, restitution, or interest. Defendant filed an opposition, which does not address the substance of any of Plaintiff's claims but rather raises several defenses to liability. Plaintiff filed a reply. The Court heard oral argument on the motion on March 22, 2010.


Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is a question a trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party bears "the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. To satisfy this burden, the movant must demonstrate that no genuine issue of material fact exists for trial. Id. at 322. Where the moving party does not have the ultimate burden of persuasion at trial, it may carry its initial burden of production in one of two ways: "The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). To withstand a motion for summary judgment, the non-movant must then show that there are genuine factual issues which can only be resolved by the trier of fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). The non-moving party may not rely on the pleadings alone, but must present specific facts creating a genuine issue of material fact through affidavits, depositions, or answers to interrogatories. FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324.

The court must review the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). Moreover, the court is not required "'to scour the record in search of a genuine issue of triable fact,'" Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (citations omitted), but rather "may limit its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001).


In light of the "abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors," Congress enacted the FDCPA in 1977 "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(a), (e).

Section 1692g(a) of the FDCPA sets forth specific guidelines that debt collectors must follow in sending out a collection letter. Section 1692g(a) provides:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing--

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a) (emphases added). In her motion for summary judgment, Welker alleges that Defendant's dunning letter, which was the only communication received by her, failed to comply with sub-sections (a)(4) and (a)(5) above because it did not state that those requests have to be made in writing. Welker also alleges that by requesting the outstanding balance together with interest and court costs, the dunning letter failed to state the "amount of the debt" as required by sub-section (a)(1) above. Finally, Welker alleges Defendant's letter failed to include the notice required by Section 1812.700 of the California Civil Code.*fn2 Defendant does not challenge the substance of any of Plaintiff's claims, but rather asserts a number of defenses to liability. The Court will address each defense raised individually in conjunction with the claim(s) to which it relates.


A. Summary Judgment on the FDCPA Claims

i. Alleged Violation of Section 1692g(a)(1)

Welker first asserts Defendant violated the FDCPA by failing to state the full "amount of the debt" owed as required by Section 1692g(a)(1). In the Ninth Circuit, the impact of the language alleged to violate Section 1692g is judged under the "least sophisticated debtor" standard. Swanson v. Southern Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988) (citing Baker v. G.C. Serv. Corp., 677 F.2d 775, 778 (9th Cir. 1982)). That is, if the Court finds the least sophisticated debtor would likely be misled by the notice which Welker received from Defendant, the Court must hold that Defendant has violated the FDCPA. See id.

In the present case, Welker alleges the notice was misleading because it demanded payment for "[Welker's] outstanding balance, interest at the legal rate, and reimbursement of court costs related to [Welker's] past-due account." However, a specific amount was given only for the "principal amount of the claim," which Defendant claimed was $23,508.61. Nowhere in the dunning letter did Defendant indicate how much was being asked for the "interest at the legal rate" or for the "reimbursement of court costs." As the Seventh Circuit said in a similar case, a statement such as this does not comply with the FDCPA's requirement that Defendant list the "amount of the debt" because "[t]he unpaid principal balance is not the debt; it is only a part of the debt." See Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir. 2000) (finding a violation of Section 1692g(a)(1) where the dunning letter specified a firm amount only for the "unpaid principal balance" of the loan, but then also sought to recover "accrued but unpaid interest, unpaid late charges, escrow advances or other charges for preservation and protection of the lender's interest in the property, as authorized by [the] loan agreement" (emphasis in original)).

Accordingly, because the least sophisticated debtor would likely have interpreted Defendant's letter as stating only a part of the debt owed, Defendant has violated the requirement in Section 1692g(a)(1) to provide the total "amount of the debt." See id. at 875-76 ("What [the defendants] certainly could do was to state the total amount due--interest and other charges as well as principal--on the date the dunning letter was sent. We think the statute required this."); Dupuy v. Weltman, 442 F. Supp. 2d 822, 827-28 (N.D. Cal. 2006) (quoting Miller, 214 F.3d 872, with approval).*fn3

ii. Alleged Violations of Section 1692g(a)(4) & (a)(5)

Welker next asserts Defendant violated the FDCPA by failing to advise her that to be entitled to a verification of the debt under Section 1692g(a)(4) or to obtain the name and address of the original creditor under Section 1692g(a)(5), the request had to be in writing. As Welker argues, the Ninth Circuit in Camacho v. Bridgeport Fin. Inc. observed that the FDCPA "assigns lesser rights to debtors who orally dispute a debt and greater rights to debtors who dispute it in writing." 430 F.3d 1078, 1082 (9th Cir. 2005). "The plain meaning of § 1692g is that debtors can trigger the rights under subsection (a)(3) by either an oral or written 'dispute,' while debtors can trigger the rights under subsections (a)(4) and (a)(5) only through written dispute." Id. (emphasis added).

The Ninth Circuit in Camacho, however, was only faced with the question of whether adding the "in writing" requirement to where it was not statutorily required violated the FDCPA. Id. The court concluded that it did. Id. (holding that the defendant's collection notice violated § 1692g insofar as it stated that disputes under subsection (a)(3) had to be in writing). Nonetheless, by extension, Camacho's reasoning also makes it clear that omitting the "in writing" requirement where it is statutorily required would equally violate the FDCPA. See id. at 1081-82. Although the Ninth Circuit has not expressly held so yet, other district courts to consider the issue have come to this conclusion. See, e.g., Nero v. Law Office of Streeter, P.L.L.C., 655 F. Supp. 2d 200, 206 (E.D. N.Y. 2009) ("[T]he validation notice clearly omitted an important term--that the consumer must inform the debt collector in writing to be entitled to verification of the debt [pursuant to sub-section (a)(4)]."); Yrok Gee Au Chan v. North Am. Collectors, Inc., No. C 06-0016 JL, 2006 WL 778642, at *6 (N.D. Cal. Mar. 24, 2006) (finding a violation of the FDCPA where the validation notice "fail[ed] to inform the consumer that he must dispute the debt in writing to preserve his right [under sub-section (a)(4)]" (emphasis in original)); McCabe v. Crawford & Co., 272 F. Supp. 2d 736, 743 (N.D. Ill. 2003) ("[B]y omitting the words 'in writing,' Crawford did not effectively convey to the consumer his rights under [sub-section (a)(4) of] the FDCPA and thus violated the Act." (citation omitted)); Grief v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 217 F. Supp. 2d 336, 340 (E.D. N.Y. 2002) ("Without a statement that [the requests under sub-sections (a)(4) and (a)(5)] must be in writing, the least sophisticated consumer is not simply uncertain of her rights under the statute, she is completely unaware of them." (internal citation omitted)).

As the Ninth Circuit has indicated, "'[w]hen the statute's language is plain, the sole function of the courts--at least where the disposition required by the text is not absurd--is to enforce it according to its terms.'" Camacho, 430 F.3d at 1081 (quoting Lamie v. United States Trustee, 540 U.S. 526, 534 (2004)). In the present case, the plain reading of Section 1692g reveals that to be entitled to the protections set forth in subsections (a)(4) and (a)(5), the corresponding requests must be made in writing. There is also no indication that upholding such a requirement would be absurd. Accordingly, there can be no dispute Defendant violated the FDCPA insofar as his dunning letter failed to advise Welker that to be entitled to a verification of the debt under subsection (a)(4) or to obtain the name and address of the original creditor under subsection (a)(5) the request had to be in writing,

B. Bona fide Error Defense

Defendant argues he can avoid liability under the FDCPA due to a bona fide error exception. Generally speaking, the FDCPA is a strict liability statute, which does not require plaintiff to show that the violation was either knowing or intentional. See Clark v. Capital Credit & Collection Serv., Inc., 460 F.3d 1162, 1176 & n.11 (9th Cir. 2006). However, the FDCPA provides a "narrow exception to strict liability" for bona fide errors. See id. at 1177. Section 1692k(c) provides:

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 [1] not intentional and [2] resulted from a bona fide error [3] notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

15 U.S.C. § 1692k(c). The bona fide error defense is an affirmative defense, for which the defendant has the burden of proof. Reichert v. Nat'l Credit Sys., Inc., 531 F.3d 1002, 1006 (9th Cir. 2008). To be entitled to the defense, the defendant must first establish that the violation was "not intentional." See 15 U.S.C. § 1692k(c); Johnson v. Riddle, 443 F.3d 723, 728 (10th Cir. 2006). This inquiry is inherently subjective and "becomes principally a credibility question" as to whether the defendant intended to violate the FDCPA. Johnson, 443 F.3d at 728. Once the subjective intent is established, the defendant must also demonstrate that the error was "bona fide" and that it occurred "notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." See 15 U.S.C. § 1692k(c); Johnson, 443 F.3d at 729. "Whereas the intent prong of the bona fide error defense is a subjective test, the bona fide and the procedures prongs are necessarily objective tests." Johnson, 443 F.3d at 729 (citations omitted). The Ninth Circuit uses a two-step process to determine whether the procedures prong is met in any given case: first, the debt collector must "maintain[]"--i.e., actually employ or implement--procedures to avoid errors; and second, the procedures must be "reasonably adapted" to "'avoid the specific error at issue.'" Reichert, 531 F.3d at 1006 (quoting Johnson, 443 F.3d at 729) (emphasis added). Whether the procedures were reasonably adapted is "'a fact-intensive question.'" Id. (quoting Wilhelm v. Credico Inc., 519 F.3d 416, 421 (8th Cir. 2008)).

In the present case, Defendant has not shown there is a genuine issue of material fact as to the elements of the bona fide error defense. According to Defendant, the validation notice sent to Welker was based on an older template that Defendant has not used since April 16, 2008. Defendant contends the older template, which omitted the words "in writing" and "written" when referring to the requirements of subsections (a)(4) and (a)(5) and failed to state the total amount of the debt due, was erroneously retrieved due to a computer glitch. In an attempt to show the error was bona fide, Defendant provides a detailed account of the training he has received and the resources he uses to practice law in the area of debt collection. Defendant also recounts the circumstances that prompted him to rewrite in April 2008 the template used for his validation notices.*fn4 Finally, Defendant documents the reasonable precautions he has taken after the error in this case was discovered, such as: (1) updating all the other validation notice versions as the form is updated, (2) archiving all of the obsolete validation notices, and (3) amending his search parameters to now avoid archived files.

As an initial matter, the Court agrees that Defendant's error was "not intentional" because there is no indication Defendant intended to violate the FDCPA. See Johnson, 443 F.3d at 728 (concluding that the pertinent question is whether the violation was intentional, and not whether the conduct was intentional). However, that by itself is not sufficient to entitle Defendant to a bona fide error defense. The defense also requires Defendant to show he maintains "reasonably adapted" procedures to avoid such errors. See Reichert, 531 F.3d at 1006. In the present case, none of the measures recited by Defendant demonstrate any procedures that he had at the time the error occurred that were reasonably adapted to avoid the specific error at issue. As the Ninth Circuit has indicated, "[i]f the bona fide error defense is to have any meaning in the context of a strict liability statute, then a showing of 'procedures reasonably adapted to avoid any such error' must require more than a mere assertion to that effect. The procedures themselves must be explained, along with the manner in which they were adapted to avoid the error." Id. at 1007 (citation omitted). In the present case, Defendant's expertise and training notwithstanding, the record is devoid of explanation of any measures used to avoid computer glitches such as occurred in this case or of avoiding sending letters that accidentally omitted certain FDCPA required warnings.*fn5 Accordingly, even viewing the facts in the light most favorable to Defendant, Defendant failed to demonstrate there is any genuine issue of material fact as to the application of the bona fide error defense. See Reese, 208 F.3d at 738.

C. Conclusion

Because there is no genuine issue of material fact and because Defendant is not entitled to a bona fide error defense, summary judgment is appropriate on both of Welker's FDCPA claims. Accordingly, the Court GRANTS Plaintiff's Motion for Summary Judgment to the extent it seeks to hold Defendant liable for failing to provide the total amount of the debt as required by Section 1692g(a)(1) as well as the notice required by Section 1692g(a)(4) and (a)(5).

II. The Rosenthal Act

A. Summary Judgment on the Rosenthal Act claim

Finally, Welker also alleges Defendant violated Section 1812.700 of the California Civil Code by failing to provide the notice required by that section. (See supra n.2.) Pursuant to Section 1812.702, the failure to provide this notice "shall be considered a violation of the [Rosenthal Act]." CAL. CIV. CODE § 1812.702. In the present case, there is no dispute that Defendant's dunning letter did not contain the required notice. Accordingly, by failing to include the required notice pursuant to Section 1812.700, Defendant violated the Rosenthal Act. See id.

B. Asserted Defenses

i. Whether Rosenthal Act applies to attorneys such as Defendant

Defendant first argues he is not liable under the Rosenthal Act because of a specific statutory exclusion for lawyers. Defendant is correct in that Section 1788.2(c) explicitly states that the term "debt collector" as used in the Rosenthal Act "does not include an attorney or counselor at law." See CAL. CIV. CODE § 1788.2(c); accord Abels v. JBC Legal Group, P.C., 227 F.R.D. 541, 547-48 (N.D. Cal. 2005) ("Interpreting the plain language of the statute, it appears clear on its face that CA FDCPA 'does not include an attorney.'"). However, in the present case, the real question is whether Defendant is subject to Section 1812.700, which is the basis for Plaintiff's Rosenthal Act claim. Section 1812.700 is separate from the Rosenthal Act and, contrary to the Rosenthal Act itself, specifically applies to "third-party debt collectors subject to the federal Fair Debt Collection Practices Act." CAL. CIV. CODE § 1812.700(a) (emphasis added). The Supreme Court has expressly held that attorneys who regularly engage in debt collection activities fall within this category. See Heintz v. Jenkins, 514 U.S. 291, 299 (1995) (concluding that the FDCPA "applies to attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation"). In the present case, Defendant concedes that he is a "debt collector" as defined in the FDCPA. (See Amended Answer ¶ 13.) Accordingly, Defendant is subject to the requirements of Section 1812.700.*fn6

ii. Whether Defendant's Conduct is Protected by the Litigation Privilege

Defendant next argues he is protected by the California litigation privilege because he sent the dunning letter within, or in connection with, judicial proceedings. The California litigation privilege protects statements made in any judicial proceeding. CAL. CIV. CODE § 47(b). The privilege "applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990) (citations omitted). The privilege covers any communication made "to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved." See id. (citations omitted).

This Court has previously concluded the litigation privilege does not apply to Welker's claims under the FDCPA or the Rosenthal Act. See Welker v. Law Office of Horwitz, 626 F. Supp. 2d 1068, 1072 (S.D. Cal. 2009). Defendant, however, argues the Court at that time erroneously assumed there were no judicial proceedings ongoing when the dunning letter was mailed.*fn7 Moreover, Defendant points to California case law subsequent to this Court's decision as establishing that the litigation privilege can be applied in this case without doing any damage to the Rosenthal Act.

The California cases cited by Defendant, however, are insufficient to persuade the Court to reconsider its prior ruling; rather, if anything, they support the Court's decision that the litigation privilege does not apply here. For example, in Komarova v. Nat'l Credit Acceptance, Inc., the California Court of Appeal noted that while some federal courts "have found the privilege to be applicable," "most have concluded that the privilege must yield in this context." 175 Cal. App. 4th 324, 337 (2009) (citing cases, including Welker, 626 F. Supp. 2d 1068). Accordingly, the Court of Appeal agreed with the majority of the district courts and with this Court that "the privilege cannot be used to shield violations of the [Rosenthal] Act." Id. Similarly, in Cabral v. Martins, the California Court of Appeal reasoned that the answer to the question of whether the litigation privilege applied was "to be determined by examining whether application of the section 47(b) privilege would vitiate the [statute at issue] to such an extent as to render the latter meaningless." 177 Cal. App. 4th 471, 488 (2009). In the case before it, which involved child support evasion statutes, the Court of Appeal concluded that those statutes would not be rendered meaningless if the litigation privilege protected an attorney's revision of an estate plan. Id. at 488-89.

The present case is more akin to Komarova than to Cabral. In this case, if the Court were to apply the litigation privilege to protect Defendant's improper dunning letter, that decision would in effect render the Rosenthal Act inoperable. See Komarova, 175 Cal. App. 4th at 340 (concluding that the Rosenthal Act "would be significantly inoperable if it did not prevail over the privilege where, as here, the two conflict."). As is evident from the facts of this case, Defendant's communications with alleged debtors occur in conjunction with the collection lawsuits filed against them in state court. If the Court were to protect all of those communications, the Rosenthal Act would be vitiated "to such an extent as to render [it] meaningless." See Cabral, 177 Cal. App. 4th at 488. Indeed, as the California Court of Appeal recognized, the Court must be "mindful of the ease with which the Act could be circumvented if the litigation privilege applied. In that event, unfair debt collection practices could be immunized merely by filing suit on the debt." Komarova, 175 Cal. App. 4th at 340. Accordingly, the Court reaffirms its prior ruling that the litigation privilege does not apply in this context.*fn8

iii. State Interrogatories

Finally, Defendant contends that Welker's failure to identify him in her response to an interrogatory request as one of the individuals who she thought violated the Rosenthal Act precludes Welker from now asserting that Defendant violated the Rosenthal Act.*fn9 Defendant, however, fails to cite any law that would afford preclusive effect in a federal action to party's answers to state interrogatories. Moreover, the Ninth Circuit has indicated on several occasions that answers to interrogatories are not binding as admissions. See, e.g., Donovan v. Crisostomo, 689 F.2d 869, 875 (9th Cir. 1982) ("Interrogatories do not supersede or supplement pleadings, nor do they bind parties as an allegation or admission in a pleading or pre-trial order." (citations omitted)); Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955, 959 (9th Cir. 1968) ("An answer to an interrogatory is comparable to answers, which may be mistaken, given in deposition testimony or during the course of the trial itself. Answers to interrogatories must often be supplied before investigation is completed and can rest only upon knowledge which is available at the time."). Accordingly, Welker is not bound in this action by her answers to state interrogatories.

C. Conclusion

For the foregoing reasons, the Court REJECTS all of Defendant's defenses to Plaintiff's Rosenthal Act claim. The Court GRANTS Plaintiff's summary judgment motion to the extent it alleges Defendant violated the Rosenthal Act when he failed to provide Welker with the notice required by Section 1812.700 of the California Civil Code.


Accordingly, the Court GRANTS the Motion for Summary Judgment in its entirety. The Court also ORDERS that Plaintiff submit additional briefing on the following issues:

(1) What claims in the Complaint, if any, remain to be adjudicated;

(2) What amount of damages is being sought with respect to the claims on which the Court granted summary judgment; and

(3) Whether a trial is necessary on either of the above.

Plaintiff's brief shall be filed no later than April 9, 2010. Defendant's opposition shall be due no later than April 16, 2010. Plaintiff's reply shall be due no later than April 23, 2010.


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