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Lorena Meyer v. Santander Consumer Usa

August 14, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


This is a federal question action originally filed on October 14, 2010 by plaintiff Lorena Meyer, proceeding pro se and in forma pauperis, involving a claim for violation of the federal Fair Debt Collection Practices Act ("FDCPA"). It also includes supplemental state law claims for violation of California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA") and invasion of privacy.*fn1 (See Dkt. No. 9.)

On June 6, 2012, defendant Santander filed a motion for partial summary judgment, or in the alternative, for summary adjudication of claims noticed for hearing on July 19, 2012. (Dkt. No. 51.) On June 12, 2012, plaintiff filed an opposition, and on July 6, 2012, defendant filed a reply brief. (Dkt. Nos. 57, 58.)

Subsequently, on July 13, 2012, after determining that oral argument would not be of material assistance in resolving the motion, the court vacated the hearing on the motion. (Dkt. No. 60.) Nevertheless, due to some discrepancies and inconsistencies between various documents filed in support of defendant's motion, which appeared to be typing errors or the result of careless drafting, the court ordered defendant to file a supplemental declaration, attaching any appropriate documentary evidence, clarifying the inconsistencies. (Dkt. No. 60.) In turn, plaintiff was permitted to file a supplemental opposition to defendant's supplemental materials, after which the motion was to be submitted on the record without oral argument. (Dkt. No. 60.) On July 27, 2012, defendant filed an amended memorandum, amended statement of undisputed facts, request to take judicial notice, and an amended declaration in support of the motion. (Dkt. Nos. 61-64.) Thereafter, on August 7, 2012, plaintiff filed a supplemental opposition. (Dkt. No. 65.)

After considering the papers in support of and in opposition to the motion, the court's record in this matter, and the applicable law, the court now issues the following order. BACKGROUND FACTS*fn2

According to the operative second amended complaint, plaintiff financed the purchase of a Kia van through lender Triad in 2004. (Plaintiff's Second Amended Complaint, Dkt. No. 9 ["SAC"] ¶ 5.) After she made payments for several years, Triad allegedly stopped sending her payment notices and made it impossible for her to contact the company to make her payments. (Id.) When Plaintiff finally made contact through the Triad toll free customer service line, a Triad customer service representative allegedly informed plaintiff that Triad had gone out of business and/or had received some type of bail-out; had written off their small customer debts, including her "few remaining payments"; and would mail her the title to her Kia vehicle. (Id.; see also Plaintiff's Opposition to Motion for Summary Judgment, Dkt. No. 57 at 6:11-14.) Some time later, the vehicle was repossessed by individuals employed by defendant Santander "who she thinks had changed its name from Triad," and she never received title to the vehicle. (SAC ¶ 5.) Plaintiff alleges that she did not receive anything in the mail from Santander until after Santander took possession of her vehicle, she called Santander several times and mailed it a certified letter to discuss the loan with them after she learned of its existence, but Santander never responded. (Dkt. No. 57 at 5:21-6:5.) Plaintiff contends that Santander "set the stage to cause her to default on a few remaining payments so that it could repossess her car, and resell the car for additional profits." (SAC ¶ 5.) Additionally, plaintiff alleges that Santander contacted her to collect the alleged remaining debt multiple times, including within one year preceding the filing of her complaint, and that its conduct violated the FDCPA and RFDCPA and constituted an invasion of her privacy. (SAC ¶¶ 6-7.)

Defendant Santander's version of the story is different. As will be discussed in greater detail below, Santander claims that it purchased Triad's portfolio and operations between June 2008 and November 2008, thereby also acquiring plaintiff's loan and its related records and documentation. (Amended Declaration of Wayne Nightengale, Dkt. No. 64, ¶¶ 3, 6, 9.) According to Santander, neither Triad's nor Santander's records reflect an agreement by either entity to waive the "significant balance" owing on the loan, and it ultimately repossessed plaintiff's vehicle on August 31, 2010 because her loan was in default and then pursued collection of the remaining balance of the loan with the assistance of third-party debt collectors. (Dkt. No. 53; Dkt. No. 64, ¶¶ 5, 11-12, Ex. B.) Moreover, Santander asserts that plaintiff could not reasonably have believed that her debt was forgiven, because plaintiff on several occasions allegedly informed customer service agents that she was unemployed, living in her vehicle, and unable to make payments. (Dkt. No. 64, Ex. D, at pp. 46, 51, 52, 53.)

As noted above, plaintiff in this action asserts claims for violation of the FDCPA, violation of the RFDCPA, and invasion of privacy. Defendant has moved for partial summary judgment, in particular with respect to plaintiff's FDCPA claim.


Summary Judgment Standard

The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when it is demonstrated that there exists "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita, 475 U.S. at 585-86. In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Matsushita, 475 U.S. at 586. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson, 477 U.S. at 248.

In the endeavor to establish the existence of a factual dispute, the non-moving party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. The evidence of the non-moving party is to be believed and all justifiable inferences are to be drawn in its favor. See Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the ...

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