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Stephen D. Aho, Individually, and On v. Americredit Financial Services

January 31, 2012


The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge


This matter comes before the Court on Defendant's motion for partial summary judgment on Plaintiff's Rosenthal Act claim. Plaintiff filed an opposition to the motion, and Defendant filed a reply. The motion came on for hearing on January 20, 2012. John Hanson and Michael Lindsey appeared and argued on behalf of Plaintiff, and Anna McLean and Shannon Peterson appeared and argued on behalf of Defendant. Having carefully considered the pleadings and arguments of counsel, the Court now denies the motion.*fn1


On December 14, 2003, Plaintiff Steven Aho entered into a Retail Installment Sale Contract ("RISC") with Rancho Chrysler Jeep Dodge for the financing and purchase of a 2002 Dodge Dakota truck. Pursuant to the RISC, Plaintiff was to make monthly payments on the loan beginning in January 2004.

Plaintiff's truck was repossessed on August 13, 2005, after he failed to make the monthly payments required by the RISC. On August 15, 2005, Defendant AmeriCredit Financial Services, Inc. sent Plaintiff a "Notice of Our Plan to Sell Property" ("NOI"). The NOI informed Plaintiff that the truck would be sold, and the proceeds from the sale would be used to pay the outstanding balance. It also informed Plaintiff that he would be responsible for any balance remaining if the sale proceeds did not cover the entire outstanding amount.

On September 15, 2005, Plaintiff's truck was sold at a private sale. On September 27, 2005, Defendant sent Plaintiff a "Deficiency Calculation," which listed a deficiency in the amount of $9,212.48. Over the next three years, Defendant attempted to collect this deficiency from Plaintiff, and reported the deficiency to various credit reporting agencies. Plaintiff did not make any payments toward the deficiency until June 14, 2010, at which time he made a $25 payment.

About two weeks after making that payment, Plaintiff filed the present case. He alleges three claims: (1) for violation of California Civil Code §§ 1788, et seq. ("the California Fair Debt Collection Practices Act" or "the Rosenthal Act"), (2) for violation of California Business and Professions Code §§ 17200, et seq., and (3) for declaratory relief. Plaintiff's theories are that Defendant's collection and credit reporting activities violated the Rosenthal Act, and Defendant's NOI failed to comply with California Civil Code §§ 2981, et seq. ("the Automobile Sales Finance Act" or "Rees-Levering Act").

This is the second summary judgment motion Defendant has filed on Plaintiff's Rosenthal Act claim. In the first motion, Defendant argued the claim was time-barred. The Court found Defendant failed to meet its burden to show the absence of a genuine issue of material fact to support that argument, and therefore denied the motion as to the Rosenthal Act claim.

Plaintiff then moved for class certification, including on the Rosenthal Act claim. After full briefing and a motion for reconsideration, the Court declined to certify a class on the Rosenthal Act claim. Thus, the only Rosenthal Act claim at issue before the Court is Plaintiff's individual claim.


Defendant argues it is entitled to summary judgment on Plaintiff's Rosenthal Act claim for three reasons. First, Defendant reasserts its argument that this claim is time-barred. Second, Defendant argues it is not a debt collector under the federal Fair Debt Collections Practices Act ("FDCPA"), which Plaintiff relies on to support his Rosenthal Act claim. Third, Defendant contends it did not engage in any conduct that violates the Rosenthal Act.

A. Summary Judgment

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. See also Butler v. San Diego District Attorney's Office, 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing ...

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