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Joseph O'bryne v. Portfolio Recovery Associates LLC

March 26, 2013

JOSEPH O'BRYNE,
PLAINTIFF,
v.
PORTFOLIO RECOVERY ASSOCIATES LLC,
DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER: (1) DENYING PLAINTIFF'S JUDGMENT [Doc. No. 27] AND MOTION FOR SUMMARY JUDGMENT [Doc. No. 29] MOTION FOR SUMMARY (2) GRANTING DEFENDANT'S

Presently before the Court are the motions for summary judgment of Plaintiff Joseph O'Bryne ("Plaintiff") and Defendant Portfolio Recovery Associates, LLC ("Defendant"). [Doc. No. 27, Pl.'s Mot.; Doc. No. 29, Def.'s Mot.] For the following reasons, the Court DENIES Plaintiff's motion and GRANTS Defendant's motion.

BACKGROUND

Plaintiff filed the present action under the Fair Debt Collection Practices Act ("FDCPA") and the Rosenthal Act to challenge Defendant's attempts to collect a debt allegedly owed by Plaintiff. [Doc. No. 18, First Amended Complaint ("FAC") ¶ 1.] The following facts, which give rise to Plaintiff's action, are taken from Plaintiff's FAC and the exhibits submitted with the motions for summary judgment.

In about 2002, Plaintiff opened a credit card account with Capital One Bank (USA) N.A. ("Capital One"). [Doc. No. 27-6, Decl. of O'Bryne ¶ 4.] Plaintiff allegedly incurred financial obligations to Capital One prior to December 22, 2010. [Doc. No. 18, FAC ¶ 16.] Plaintiff alleges that this debt was then transferred to Defendant for collection. [Id. ¶ 19.]

On December 22, 2010, Defendant filed an action in the Superior Court of California for the County of San Diego ("Superior Court") against Plaintiff to recover a debt of $3,421.74 under the following common counts: open book account; account stated; goods, wares and merchandise; money lent; and unjust enrichment. [Doc. No. 27-6, Decl. of O'Bryne ¶ 11; Doc. No. 27-3, State Court Compl.]*fn1 Plaintiff alleges in his FAC that the $3,421.74 figure included charges for contractual interest, compound interest, and fees. [Doc. No. 18, FAC ¶ 23.]

Plaintiff filed the present action on December 8, 2011 in the Superior Court. [Doc. No. 1-1, Compl.] Defendant removed the action to this Court on February 21, 2012. [Doc. No. 1, Notice of Removal.] Plaintiff filed a FAC on May 15, 2012, which presents the following causes of action: (1) violation of the FDCPA; and (2) violation of the Rosenthal Act. [Doc. No. 18, FAC.] Plaintiff then filed the instant motion for summary judgment. [Doc. No. 27, Pl.'s Mot.] Defendant subsequently filed a motion for summary judgment. [Doc. No. 29, Def.'s Mot.]

ANALYSIS

I. Motions for Summary Judgment

"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought." Fed. R. Civ. P. 56(a). "Summary judgment is appropriate when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the nonmoving party, the movant is clearly entitled to prevail as a matter of law." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 950 (9th Cir. 2009) (citing Fed. R. Civ. P. 56). A material issue of fact is a question a trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party generally has the initial burden of showing that summary judgment is proper. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). If the moving party meets its initial burden, the burden then shifts to the opposing part to provide admissible evidence beyond the pleadings to demonstrate that summary judgment is not appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986).

If the moving party does not have the ultimate burden of persuasion at trial, in order to carry its burden of production on a summary judgment motion, it must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

If the moving party carries its burden of production, the burden of production then shifts to the nonmoving party: the nonmoving party must produce evidence to support its claim or defense. Celotex Corp., 477 U.S. at 330 (Brennan, J., dissenting); Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d at 1103. If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party wins the motion for summary judgment. Id. However, if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion for summary judgment. Id.

The court must review the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However, unsupported conjecture or conclusory ...


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