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Kimberly Grant v. Unifund Ccr Partners; et al

February 6, 2012

KIMBERLY GRANT, PLAINTIFF,
v.
UNIFUND CCR PARTNERS; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Christina A. Snyderunited States District Judge

I. INTRODUCTION

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

On September 30, 2011, plaintiff Kimberly Grant ("plaintiff") filed the instant putative class action against Unifund CCR Partners ("Unifund CCR") and Unifund Corp. (collectively, "defendants"). Plaintiff asserts four claims for relief: (1) violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"); (2) abuse of process; (3) conversion; and (4) violation of Cal. Bus. & Prof. Code §§ 17200 et seq.

On January 2, 2012, defendants filed a motion for summary judgment. On January 13, 2012, plaintiff filed her opposition, and on January 23, 2012, defendants filed their reply. After carefully considering the arguments set forth by both parties, the Court finds and concludes as follows.

II. BACKGROUND

On September 20, 2008, plaintiff was sued by Unifund CCR in Los Angeles County Superior Court for collection of unpaid credit card debt (the "state court action"). Def. Request for Judicial Notice ("RJN") Exh. A. Because plaintiff never responded to the complaint, the Superior Court granted Unifund CCR's request for entry of default judgment, finding plaintiff liable to Unifund CCR in the amount of $2,513.13. Id. Exh.

E. Unifund CCR executed a Writ of Execution issued on February 23, 2009, to secure the funds owed from plaintiff's bank account. Id. Exh. F. On October 5, 2011, more than three years after default had been entered, plaintiff filed a motion to vacate the judgment, claiming she had never been served with the complaint. Id. Exh. G. The Los Angeles County Superior Court denied the motion on November 9, 2011. Id. Exh. H.

Prior to filing the motion to vacate in the state court action, plaintiff filed the instant putative class action in this Court on September 30, 2011. Dkt. No. 1. The gravamen of plaintiff's complaint is that Unifund CCR "files hundreds of lawsuits across the country each month . . . without effectuating proper service of the summons and complaint," constituting violations of the FDCPA, abuse of process, conversion, and violation of California's UCL. Compl. ¶¶ 17, 20.

As to the FDCPA, plaintiff avers that defendants "used unfair or unconscionable means . . . to collect or attempt to collect alleged debts" because they "failed to communicate notice about the alleged debt before filing lawsuits, filed lawsuits . . . without effectuating proper service in order to obtain default judgment, and used false and fraudulent 'robo-signed' declarations and/or affidavits to support the collection of alleged debts. . . ." Id. ¶ 60. Plaintiff alleges that defendants' use of the declarations of Kim Kenney and Bobby Carnes in connection with default judgments "constitutes a false communication to the Court because it represents that the declarants . . . personally signed the declaration and have personal knowledge about the facts contained therein." Id. ¶ 62. According to plaintiff, defendants' conduct violates sections 1692e(8), 1692e(10), and 1692f of the FDCPA. Id. ¶¶ 62, 63, 66. Defendants' alleged FDCPA violations form the basis for plaintiff's UCL claim. Id. ¶¶ 96, 98.

As to abuse of process and conversion, plaintiff alleges that she was never served with the summons and complaint in connection with the state court action and that defendants wrongfully converted her monetary funds when they executed the Writ of Execution to garnish her bank account. Id. ¶¶ 80, 88.

III. LEGAL STANDARD

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).

In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment ...


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