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Arminda O. Alaan v. Asset Acceptance LLC

November 29, 2011

ARMINDA O. ALAAN,
PLAINTIFF,
v.
ASSET ACCEPTANCE LLC, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion for Reconsideration of Order Granting in Part and Denying in Part Defendant's Motion for Summary Judgment ("Motion for Reconsideration") filed by Defendant Asset Acceptance ("Asset"). (ECF No. 41).

I. Background

On August 8, 2011, the Court issued an Order which granted in part and denied in part the motion for summary judgment filed by Defendant. (ECF No. 37). In the Order, the Court granted the motion for summary judgment as to four of the six violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788 et seq., alleged in the Second Amended Complaint. The two violations that survived summary judgment allege that:

e. Asset misrepresented that it was lawfully entitled to collect fixed interest of more than ten percent when such amount was not expressly authorized by [the] agreement creating the debt or permitted by law in violation of 15 U.S.C. §§ 1692e, and 1692f(1);

f. Asset misrepresented that it was lawfully entitled to collect interest from March 8, 2005 on $3,991.42, when the amount of the debt at that time owed, if any, was less and closer to $3,200.00 thereby misrepresenting the amount of the debt including but not limited to the amount of interest which in addition was not expressly authorized by [the] agreement creating the debt or permitted by law all in violation of 15 U.S.C. §§ 1692e(2)(A), and 1692f(1). (ECF No. 26 at 5).

On September 5, 2011, Defendant filed a Motion for Reconsideration. (ECF No. 41). Defendant contends that an account was stated between Plaintiff and Citibank establishing the interest rate applicable to her debt, and that Plaintiff failed to establish that a variable interest rate applied to the debt. Defendant contends:

As a matter of law, ... an account was implicitly stated [between plaintiff Alaan and Asset's predecessor, Citibank] because Alaan admitted receiving monthly statements from Citibank, including the final statement sent by Citibank; admitted that every one of those statements, including the final one, was accurate; and admitted that she never objected to any of the statements, including the final one. Alaan's self-serving declaration that she never agreed to enter into an account stated -- submitted almost six years after she received and failed to object to any of the statements -- cannot suffice to create a genuine issue of material fact....

Alaan... should not have been allowed to pursue... [a variable interest rate] theory because she impermissibly raised it for the first time in opposition to Asset's summary judgment motion. Regardless, it was Alaan's burden, not Asset's, to come forward with evidence to support her theory. Alaan presented no admissible evidence in opposition to Asset's motion establishing that there was a variable interest rate, let alone what that interest rate was -- the only evidence she offered was her inadmissible hearsay declaration....

Asset respectfully submits that the Court erred when it ruled that there was a genuine issue of material fact as to whether an account was stated and as to whether Asset's request for interest at a fixed rate of 24% was materially misleading. (ECF No. 41 at 3-4).

On September 22, 2011, Plaintiff filed an opposition to the Motion for Reconsideration. (ECF No. 43). On October 4, 2011, Defendant filed a reply in support of the Motion for Reconsideration. (ECF No. 44).

II. Discussion

A. Standard of Review

"Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J v. ...


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