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Pasquale v. Law offices of Nelson & Kennard

United States District Court, N.D. California

April 15, 2013

DANA PASQUALE, Plaintiff,
v.
LAW OFFICES OF NELSON & KENNARD, Defendant

Re: Dkt. No. 56.

For Dana Pasquale, Plaintiff: Rory Colin Leisinger, LEAD ATTORNEY, Krohn & Moss, Ltd., Los Angeles, CA; Ryan Scott Lee, LEAD ATTORNEY, Krohn & Moss, LTD, Los Angeles, CA.

For Law Offices of Nelson & Kennard, Defendant: Robert Scott Kennard, LEAD ATTORNEY, Clifton Shigeki Inohara, Nelson & Kennard, Sacramento, CA.

OPINION

Joseph C. Spero, United States Magistrate Judge.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Dana Pasquale brings this action under the Fair Debt Collection Practices Act (" FDCPA), 15 U.S.C. § § 1692 et seq. and the Rosenthal Fair Debt Collection Practices Act (" Rosenthal Act" ), Cal. Civ. Code § § 1788 et seq. , alleging that telephone messages left on her home answering machine by Defendant Law Offices of Nelson & Kennard (" Nelson & Kennard" ) did not comply with § 1692e(11) because they failed to disclose that Nelson & Kennard was a debt collector.[1] Nelson & Kennard brings a

Page 1152

Motion for Summary Judgment seeking dismissal of Plaintiff's claims on the grounds that it complied with the FDCPA, as a matter of law, or in the alternative, that the undisputed facts establish that its failure to comply was a bona fide mistake. Nelson & Kennard asserts that Plaintiff's claim under the Rosenthal Act fails for the additional reason that it is not a " debt collector" under that Act. The Court finds that the Motion is suitable for determination without oral argument, and therefore vacates the hearing set for April 19, 2013 pursuant to Civ.L.R. 7-1(b); the Case Management Conference set for the same date and time is also vacated. For the reasons stated below, the Motion is GRANTED.[2]

II. BACKGROUND

A. Factual Background[3]

1. Communications between Pasquale and Nelson & Kennard

Nelson & Kennard was retained by Riverwalk Holdings, Ltd. (" Riverwalk" ), on May 18, 2010 to file suit against Plaintiff to collect the balance due and owing on a credit card account issued by Washington Mutual Bank and assigned to Riverwalk. Declaration of Robert Scott Kennard in Support of Defendant's Motion for Summary Judgment (" Kennard Decl." ), ¶ 4. On May 21, 2010, Nelson & Kennard mailed a letter to Pasquale informing her that Nelson & Kennard represented Riverwalk and had been instructed to " take appropriate action to effect collection" of the amount due on the account. Kennard Decl., Ex. 1 (May 21, 2010 Collection Letter). According to Nelson & Kennard, the May 21, 2010 Collection Letter contained " all the admonitions required under 15 USC § 1692g, 15 USC § 1692e(11) and the Rosenthal Act." Kennard Decl., ¶ 6.

Pasquale replied to Nelson & Kennard's May 21, 2010 letter in an undated letter received by Nelson & Kennard on June 4, 2010. Pasquale acknowledged receipt of Defendant's May 21, 2010 Letter and requested that Nelson & Kennard " validate this alleged debt explaining why you are demanding the sum of $19,236.06." Kennard Decl., Ex. 2 (June 4, 2010 Letter).

On June 17, 2010, Nelson & Kennard sent Plaintiff a letter setting forth its verification obligations under the FDCPA and providing the name and address of the original creditor, the current owner of the debt, the amount due and a copy of the terms and conditions of the bill of sale. It also states that Nelson & Kennard is a " debt collector attempting to collect a debt." Kennard Decl., Ex. 3.

On July 6, 2010, Nelson & Kennard received another letter from Pasquale, carrying the heading " Notice of Dispute of Alleged Debt." Kennard Decl., Ex. 4 (Notice of Dispute). The Notice of Dispute references the file number that was indicated on the two previous letters from Nelson & Kennard to Pasquale, as well as the June 17, 2010 Letter. Id. at 1. Pasquale states that she has " received and read the debt

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collection letter referenced above, identifying yourself as debt collectors . . .wherein you allege that I have a debt obligation to the alleged creditor referenced above . . .[and that] the purpose of this Notice of Dispute is to assert my rights in debt collection under FDCPA § 1692g(b) without delay and within thirty (30) days of my receipt of your aforesaid debt collection letter." She goes on to request extensive documentation to substantiate the debt and Nelson & Kennard's authority to collect on the account, referencing, inter alia, specific provisions of the U.S. Code, the Federal Rules of Evidence and forms issued by the United States Department of the Treasury. Id. Copies of Nelson & Kennard's May 21, 2010 and June 17, 2010 Letters were attached to the July 6, 2010 Notice of Dispute. Id.

Nelson and Kennard responded to Pasquale's Notice of Dispute in a letter dated July 8, 2010, attaching a copy of the June 17, 2010 Letter and stating that Nelson & Kennard is a " debt collector attempting to collect a debt." Id., Ex. 5 (July 8, 2010 Letter).

On July 29, 2010, Defendant received a " Second Notice of Dispute of Alleged Debt" from Pasquale. Id., Ex. 6 (" Second Notice of Dispute" ). The Second Notice of Dispute referenced Nelson & Kennard's July 8, 2010 Letter and again requested detailed documentation related to the debt. Id. Pasquale attached copies of all of the previous communications that had been exchanged between Nelson & Kennard and Pasquale.

On July 30, 2010, Nelson & Kennard sent a letter that was essentially the same as the June 17, 2010 Letter, again listing the name and address of the original creditor, the current owner of the debt, the amount due and providing a copy of the terms and conditions of the bill of sale. Id., Ex. 7 (July 30, 2010 Letter). Like the June 17, 2010 Letter, the July 30, 2010 Letter also stated that Nelson & Kennard is a " debt collector attempting to collect a debt." Id.

On August 19, 2010, Pasquale sent a Third Notice of Dispute. Id., Ex. 8 (Third Notice of Dispute). This letter acknowledged receipt of the July 30, 2010 Letter. Id. Otherwise, it was virtually identical to the previous notices of dispute. Id. Nelson & Kennard did not reply to the Third Notice of Dispute, believing that it had already met its obligation to verify the debt. Id. ¶ 13.

On September 18, 2010, Nelson & Kennard attempted, for the first time, to reach Plaintiff by telephone. Id. ¶ 14. An answering machine picked up, and the transcript of the call is as follows:

Answering Machine: No one is available to take your call. Please leave a message. (Beep)
Nelson & Kennard Employee: This message is for Dana Pasquale. This is Jose Loya. I am calling from the law offices of Nelson & Kennard. May I remind you that we are working with a time sensitive matter here so it would be in your best interest to return this call. Toll free number wil1 be 866 920 2296. This firm is a debt collector.

Id.

On September 23, 2010, a Nelson & Kennard account representative spoke with Pasquale by telephone. Id. ¶ 15. According to the Kennard Declaration, contemporaneous notes of the conversation indicate that the " mini Miranda" (indicating that Nelson & Kennard was a debt collector attempting to collect a debt) was provided by its account representative and Pasquale said she " needed time to review her finances" and would return the call later. Id.

As of September 27, 2010, Defendant had not received a return call from Pasquale.

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Id. ¶ 16. On that date, a Nelson & Kennard account representative placed another telephone call to Plaintiff. Id. Again, the answering machine picked up. Id. ...


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