The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the Motion by Defendant Professional Collection Consultants for Summary Judgment Against Plaintiff Jason Johnson ("Motion for Summary Judgment"). (Doc. # 12).
On July 22, 2009, Plaintiff initiated this action by filing a Complaint in this Court. (Doc. # 1).
A. Allegations of the Complaint
Between September 2008 and April 2009, Defendant attempted "to unlawfully and abusively collect a debt allegedly owed by Plaintiff, and this conduct caused Plaintiff damages." (Doc. # 1 ¶ 3). "Sometime before August 1, 2008, Plaintiff checked his credit report and noticed for the first time that [an] alleged debt had been reported on his credit report. ... This alleged debt does not belong to Plaintiff." (Doc. # 1 ¶¶ 24-25). "[B]efore August 1, 2008, the alleged debt was assigned, placed or otherwise transferred, to Defendant for collection." (Doc. # 1 ¶ 23). "Plaintiff disputed the debt ... and requested Defendant to verify the alleged debt." (Doc. # 1 ¶ 28). On September 9, 2008, September 19, 2008, and April 1, 2009, "without verifying the debt, Defendant sent a letter attempting to collect the alleged debt." (Doc. # 1 ¶ 31; see also Doc. # 1 ¶¶ 37, 42).
The Complaint contains two counts: (1) violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and (2) violations of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. Specifically, the Complaint alleges that Defendant violated 15 U.S.C. § 1692g and Cal. Civ. Code § 1788.17 because "Defendant failed within five days after its initial communication with Plaintiff, to provide written notification containing" the language required by 15 U.S.C. § 1692g(a)(3)-(5). (Doc. # 1 ¶ 32). The Complaint alleges that the September 9, 2008, September 19, 2008, and April 1, 2009 collection letters, sent "prior to verifying the veracity of the alleged debt," each violated 15 U.S.C. § 1692g(b) and Cal. Civ. Code § 1788.17. (Doc. # 1 ¶¶ 33, 38, 43). The Complaint alleges that, "[t]hrough this conduct, Defendant used a false, deceptive, or misleading representation or means in connection with the collection of a debt," in violation of 15 U.S.C. § 1692e and Cal. Civ. Code § 1788.17; and "[t]hrough this conduct, Defendant used an unfair or unconscionable means to collect or attempt to collect any debt," in violation of 15 U.S.C. § 1692f and Cal. Civ. Code § 1788.17. (Doc. # 1 ¶¶ 34-35, 39-40, 44-45).
The Complaint seeks actual damages, statutory damages and attorney's fees.
B. Motion for Summary Judgment
On March 5, 2010, Defendant filed the Motion for Summary Judgment. (Doc. # 12). Defendant submitted a declaration from Todd Shields, Defendant's Vice-President and General Manager. (Doc. # 12-2). Shields stated:
On April 26, 2006, the Plaintiff's account was assigned to Defendant. On May 1, 2006, [Defendant's computerized collection tracking and filing software] generated a notice order for a standardized collection letter constituting a 15 U.S.C. [§] 1692g validation notice regarding Plaintiff's delinquent account with Cingular Wireless. In accordance with its standard practice, Defendant mailed the May 1, 2006 letter to the address for Plaintiff that was provided to Defendant by the original Creditor, Cingular Wireless, which was 45741/2 Park Blvd., San Diego, California 92116. This is also the address to which Cingular Wireless mailed the statements on the account as evidenced by Exhibit 11 hereto. ... The [May 1, 2006] letter referenced the debt owed to Cingular Wireless, the principal amount of the debt ($1,315.58), the accrued interest ($233.46), and included the Defendant[']s standard validation of Debt Notice as required by the Federal Fair Debt Collection Practices Act. The Plaintiff did not respond to this letter, and this letter was not returned to Defendant by the Postal Service. (Shields Decl. ¶ 7, Doc. # 12-2). Attached to the Declaration are four account statements from Cingular Wireless addressed to Plaintiff at 45741/2 Park Blvd., San Diego, California 92116, dated from March 2004 through July 2004. (Shields Decl., Ex. 11, Doc. # 12-2). Shields stated:
On June 1, 2006 [Defendant] generated a second standardized letter, which was also mailed to 45741/2 Park Blvd., San Diego, California 92116. ... Plaintiff did not respond to this letter, and this letter was not returned to Defendant by the Postal Service. ...
On June 30, 2006 [Defendant] generated a third standardized letter, which was also mailed to 45741/2 Park Blvd., San Diego, California 92116. ... Plaintiff did not respond to this letter, but ... [o]n July 25, 2006, the June 30, 2006 notice was returned by the United States Postal Service as undeliverable with no forwarding address available. However, the notices sent on May 1, 2006 and on June 1, 2006 were never returned by the United States Postal Service. ... (Shields Decl. ¶¶ 8-9, Doc. # 12-2). Shields stated that "[o]n January 23, 2008, a new address was located for Plaintiff," and, on January 24, 2008, May 14, 2008, June 16, 2008, and July 17, 2008, Defendant sent letters to Plaintiff at the new address, "offer[ing] to settle the balance [of the amount allegedly owed] for 50% of the balance." (Shields Decl. ¶¶ 10-13, Doc. # 12-2). According to Shields, Plaintiff did not respond to these letters, and the May 14, 2008, June 16, 2008, and July 17, 2008, letters were returned by the United States Postal Service as undeliverable with no forwarding address. (Shields Decl. ¶¶ 10-13, Doc. # 12-2).
On September 15, 2008, Plaintiff notified Defendant that the account was disputed and requested validation under 15 U.S.C. [§] 1692g. ... Defendant ... took steps to validate the account.... Defendant ... suspended all collection activity and sought verification of the account from its assignor. Only two communications were issued to Plaintiff after receipt of his request for validation of the account and dispute. The first communication, issued on September 18, 2008, did not seek to collect the debt but merely notified Plaintiff that a dispute was received and invited Plaintiff to call and discuss the account and provide additional information. The second communication, issued on April 1, 2009, merely notified Plaintiff that Defendant was providing the information he had requested on September 15, 2008. ... On October 21, 2008, [Plaintiff] sent another communication requesting an investigation under the Federal Fair Credit Reporting Act. ... Since the communication from Plaintiff ... did not disclose the factual basis of any dispute, [Defendant] did not respond to it since it had already requested verification of Plaintiff's account in response to his communication dated September 15, .... (Shields Decl. ¶¶ 15-18, Doc. # 12-2). According to Shields:
After this litigation was filed, Defendant began an investigation to determine the current address of Plaintiff. Defendant determined that the original address used when Plaintiff opened the account was 6323 Connie Drive, San Diego, California, but that the address provided at the time of assignment and on the bill copies (and the address to which the three notices were mailed by Defendant) was was 45741/2 Park Blvd., San Diego, California 92116. (Shields Decl. ¶ 14, Doc. # 12-2). Attached to the Shields Declaration is "a copy of the signed agreement between Cingular Wireless and Plaintiff that was signed on March 10, 2004," and lists an address of 6323 Connie Drive, San Diego, California 92115. (Shields Decl. ¶ 7, Ex. 2, Doc. # 12-2).
On March 25, 2010, Plaintiff filed his opposition to the Motion for Summary Judgment. (Doc. # 13). Plaintiff submitted his "residential history," indicating that Plaintiff resided at 6323 Connie Drive, San Diego, California 92115 from February 2003-March 2004 and December 2004-April 2005; from January 2006-June 2006, Plaintiff resided outside California; and at no time did Plaintiff reside at 45741/2 Park Blvd., San Diego, California 92116. (Doc. # 13-1). Plaintiff submitted a copy of military orders dated May 30, 2006, indicating that from April 12, 2006 through May 31, 2006, Plaintiff was stationed in Oceana, Virginia. (Doc. # 13-2). The military orders indicate that the address for Plaintiff's father is 6323 Connie Drive, San Diego, California 92115. (Doc. # 13-2).
Plaintiff submitted a declaration, wherein he stated that he has "never resided at 45741/2 Park Blvd., San Diego, California 92116"; he has "never received any mail addressed to or delivered to" that address; he has "never asked, told, or authorized, anyone to send mail to" that address; he has never had mail delivered to that address "forwarded to [him] in any manner"; and he has "never known ... anyone who lived at" that address. (Johnson Decl. ¶¶ 9-15, Doc. # 13-3). Plaintiff stated that he did not have an account with Cingular Wireless on March 17, 2004, and he "never incurred the debt in question in this case." (Johnson Decl. ¶¶ 20-21, Doc. # 13-3). Plaintiff stated:
I have been a victim of identity theft for some time, including when the underlying debt that is the subject of this lawsuit was incurred. ... I am in the process of attempting to undo the damage done by some person or persons who appear to have used my identity while I was a member of the armed services. ... A number of debts that were opened in my name and have subsequently been reversed, and this particular situation is only one of a number ...