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Clarissa Orbeta Rodriguez v. Discovery Bank

April 30, 2012

CLARISSA ORBETA RODRIGUEZ,
PLAINTIFF,
v.
DISCOVERY BANK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DENYING MOTION TO STRIKE

Defendants Bishop, White, Marshall & Weibel, P.S. ("BWMW"), William L. Bishop, Jr., Krista L. White, Ann T. Marshall, David A. Weibel, Jerome M. Yalon, Jr., and Samantha Blue (collectively "Defendants") have filed a motion for summary judgment as well as a motion to strike portions of Plaintiff's opposition brief. For the reasons discussed below, the Court GRANTS the motion for summary judgment and DENIES the motion to strike.

I. FACTUAL BACKGROUND

In a letter dated October 13, 2009, BWMW notified Plaintiff that Discover Bank ("Discover") had retained the firm to collect its claim against Plaintiff for the balance owing on her Discover Card account. (Ex. 1 to White Decl.) The letter listed the account number as well as an account balance of $9,421.83.

On October 29, 2009, Plaintiff requested validation of the debt. (Compl. Ex. A.) Specifically, Plaintiff requested a "first-hand accounting of the alleged original creditor," "a sworn affidavit, signed . . . by a first party who had actual first-hand knowledge of the alleged account," and a copy of the contract.

On November 4, 2009, BWMW sent a "settlement offer" to Plaintiff. (Compl. Ex. B.) The letter encouraged Plaintiff to contact BWMW within 30 days to settle her account for a substantial discount.

On November 30, 2009, BWMW responded to Plaintiff's request for validation of the debt by enclosing the governing Cardmember Agreement as well as copies of monthly statements of Plaintiff's Discover Card account. (Compl. Ex. D.)

On January 28, 2010, BWMW sent another "settlement offer" to Plaintiff. (Compl. Ex. C.)

In a letter dated February 6, 2010, Plaintiff disputed the validity of the debt and demanded further documents from BWMW, including, among other things, a contract signed by her, certified copies of initial balance sheets, and documentation evidencing that BWMW had authority to collect the debt on Discover's behalf. (Compl. Ex. E.)

On April 13, 2010, BWMW filed a Complaint on behalf of Discover against Plaintiff in the Superior Court of California, County of San Diego (Case No. 37-2010-00089800-CL-CLCTL). (Compl. Ex. F.) Plaintiff answered the Complaint after filing a demurrer. (Compl. Ex. G.) On October 4, 2010, BWMW filed a motion for summary judgment on behalf of Discover. (Id.)

Plaintiff did not file any opposition to the motion for summary judgment, and on February 10, 2011, the Superior Court entered judgment for Discover and against Plaintiff in the amount of $11,206.33, which included the $9,421.83 as well as $484.50 in costs and $1,300 in attorney's fees. (Ex. 7 to White Decl.) The costs and attorney's fees were awarded pursuant to the governing account agreement which allowed for the recovery of such sums. (Ex. 5 to White Decl., ¶¶ 2, 7.)

On July 29, 2011, BWMW sent Plaintiff a notice of judgment, which informed Plaintiff that a judgment in the amount of $11,206.33 had been entered against Plaintiff and that BWMW was in the process of reviewing her file to determine potential post-judgment remedies. (Compl. Ex. H.) On August 25, 2011, BWMW sent Plaintiff a letter which stated, "A judgment has been entered against you in the above referenced case. We are in the process of preparing a Wage Garnishment to be served on your employer, KAISER PERMANENTE INTERNATIONAL." (Compl. Ex. I.)

Plaintiff commenced this action on September 16, 2011. Plaintiff names as defendants Discover Bank, BWMW, the named partners of BWMW, and two employees of BWMW (Jerome M. Yalon and Samanta Blue). Plaintiff alleges that Defendants have violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq.

After Defendants filed their motion for summary judgment in this case, Plaintiff filed an Ex Parte Motion to Vacate a Void Judgment and Writ of Execution in the Superior Court. (Zimmerman Decl. (Ex. 2 to Rosenberg Decl.), ΒΆ 6.) Plaintiff argued that the judgment should be vacated because she did not get notice of the motion for summary judgment and because the evidence submitted by BWMW in support of the motion was inconsistent and/or fraudulent. On December 9, 2011, the Superior Court denied ...


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