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Richard Bryan Clymer v. Discover Bank; Bleier & Cox; and Does 1 Through 5

July 29, 2011

RICHARD BRYAN CLYMER, PLAINTIFF,
v.
DISCOVER BANK; BLEIER & COX; AND DOES 1 THROUGH 5, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motion filed on May 17, 2011]

ORDER GRANTING DEFENDANT BLEIER & COX'S MOTION FOR SUMMARY JUDGMENT

The Court has considered the papers filed in support of, and in opposition to, Defendant Bleier & Cox's ("Bleier") motion for summary judgment ("Motion"). (Doc. No. 34.) For the reasons set forth below, the Court GRANTS the Motion.

I. PROCEDURAL BACKGROUND

Plaintiff Richard Bryan Clymer ("Plaintiff"), appearing pro se, filed a complaint on October 5, 2010, against Defendant Discover Bank ("Discover"), asserting claims for securities fraud and civil conspiracy. (Doc. No. 1.) On February 5, 2011, Plaintiff filed a first amended and supplemental complaint ("FAC"), adding Defendant Bleier, striking the securities fraud and civil conspiracy claims, and asserting claims for violations of the Federal Fair Debt Collection Practices Act ("FDCPA"),15 U.S.C. § 1692(g), and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681b, 1681o, 1681s-2, 1681i.

On March 17, 2011, Defendant Discover filed a motion to dismiss (Doc. No. 18), which the Court granted in part and denied in part (Doc. No. 36). Specifically, the Court dismissed Plaintiff's fifth and ninth claims for violations of the FDCPA with prejudice and Plaintiff's sixth and eighth claims for violations of the FCRA with prejudice. (Id.)

On May 17, 2011, Defendant Bleier filed the Motion, a memorandum of points and authorities (Def.'s Mem. P. &A.), the declaration of Edgar N. De Vera ("De Vera Decl."), and the declaration of Richard Golden ("Golden Decl.") with exhibits A and B attached. (Doc. No. 34.) On June 8, 2011, the Court provided Plaintiff with a notice regarding summary judgment procedures and rescheduling the hearing on the Motion and the relevant deadlines. (Doc. No. 37.) On June 8, 2011, Defendants filed a separate statement of uncontroverted facts andconclusions of law ("SUF"). (Doc. No. 38.) On June 9, 2011, Plaintiff filed an opposition ("Opposition"). (Doc. No. 43.) On June 14, 2011, Defendant Bleier filed a notice of errata related to the Golden Declaration. (Doc. No. 44 ("Golden Decl. II").) On June 27, 2011, Defendant filed a reply ("Reply") (Doc. No. 49) and "Objections to Plaintiff's Evidence" (Doc. No. 50 ("Def.'s Obj.")). On July 1, 2011, Plaintiff filed an opposition to Defendant's SUF ("Pl.'s Obj.") (Doc. No.54), the affidavit of Bryan Clymer ("Clymer Decl.") (Doc. No. 55), and a statement of genuine disputes ("SGI") (Doc. No. 56).

II. FACTUAL BACKGROUND

Both sides cite facts that are not relevant to resolution of the Motion. To the extent certain facts are not mentioned in this Order, the Court has not relied on them in reaching its decision. Furthermore, except as described below, the Court overrules the parties' objections, but has independently considered the admissibility of the evidence underlying the SUF and the SMF, and has not considered facts that are irrelevant or based upon inadmissible evidence. Finally, certain proposed facts are not adequately supported by the cited evidence; as to those proposed facts, the Court has considered and relied on the underlying evidence and found facts supported by that evidence, to the extent the evidence itself was admissible.

The Court finds the following material facts are supported adequately by admissible evidence and are uncontroverted. They are "admitted to exist without controversy" for the purposes of these Motions. L.R. 56-3; see generally Fed. R. Civ. P. 56.

Defendant Bleier attempted to collect a debt from Plaintiff related to a credit card with Defendant Discover. (SUF 1, 12; FAC ¶ 6.) On March 3, 2009, Plaintiff sent a letter to Defendant Discover disputing the debt. (Id.) Defendant Bleier contends it never received Plaintiff's March 3, 2009, dispute letter; Plaintiff alleges that Bleier received the letter when Discover provided Bleier with Plaintiff's file. Plaintiff does not have personal knowledge of what Bleier did or did not receive in the file from Discover, however, and offers no evidence to support his naked contention that Bleier received his dispute letter. Plaintiff accordingly has not raised a genuine issue that Bleier received or otherwise had knowledge of his dispute letter.

Plaintiff further contends that Defendant Bleier continued to attempt to collect the debt from him, including sending collection letters to Plaintiff on March 25, 2009, and April 30, 2009. Plaintiff offers no admissible evidence to support this assertion nor does he attach the alleged letters from Bleier. On the other hand, Bleier presents evidence, in the form of a sworn declaration, that it did not send the collection letters. Specifically, Defendant Bleier presents evidence that it was assigned Plaintiff's debt on July 9, 2009,*fn1 several months after Plaintiff received the letters. (See SUF 9; Golden Decl. II ¶ 2.)

Finally, Defendant Bleier made a formal inquiry on Plaintiff's credit report in September 2009. (SUF 5; FAC ΒΆΒΆ 7-10.) Plaintiff argues Bleier did not have Plaintiff's consent to ...


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