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Thomas v. Portfolio Recovery Associates LLC

United States District Court, Ninth Circuit

August 12, 2013

ALLEN THOMAS, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES LLC, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the Motion for Summary Judgment filed by Plaintiff Allen Thomas (ECF No. 19), and the Motion for Summary Judgment filed by Defendant Portfolio Recovery Associates LLC ("PRA") (ECF No. 21).

I. Background

On December 17, 2012, Thomas filed the First Amended Complaint, which is the operative pleading in this action. (ECF No. 16). The First Amended Complaint alleges that PRA filed a complaint in state court against Thomas which violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., and the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), California Civil Code § 1788, et seq.

On July 2, 2013, Thomas filed his Motion for Summary Judgment accompanied by evidence in support of the motion. (ECF No. 19). On July 8, 2013, PRA filed its Motion for Summary Judgment accompanied by evidence. (ECF No. 21). On July 22, 2013, each party filed an opposition to the opposing party's motion. (ECF Nos. 28, 29). On July 29, 2013, each party filed a reply. (ECF Nos. 31, 32).

After review of the six briefs and evidence submitted by the parties, the Court finds this matter suitable for resolution without oral argument. See S.D. Cal. Civ. L.R. 7.1(d)(1).[1]

II. Facts

Thomas had a credit card account with Bank of America and made charges and took cash advances on the card. (Thomas Dep. at 24, 28; ECF No. 7). Bank of America sent monthly statements to Thomas regarding the account, and he never disputed any of those statements. Id. at 28-29. Eventually, Thomas stopped making payments and never paid off the account in full. Id. at 29, 67-68.

When Thomas stopped paying, the account was charged-off by Bank of America on April 30, 2009 and sold to PRA on November 23, 2009. (Woodard Decl. ¶¶ 3-4; ECF No. 23). Bank of America provided PRA with copies of account statements, checks reflecting payments, and an "Affidavit of Sale and Certification of Debt" stating that the unpaid balance on the account at the time of charge off was $8, 536.76. Id. ¶¶ 4-5.

On December 9, 2009, PRA sent a letter to Thomas informing him that PRA had purchased the account from Bank of America and notifying him pursuant to § 1692g of the FDCPA of his right to dispute the debt. Id. at ¶ 9. Thomas does not dispute that he received the December 9, 2009 letter, and admitted he never sent a dispute to PRA regarding the account. (Thomas Dep. at 72-74; ECF No. 25). PRA sent additional collection letters to Thomas on April 6, 2010, July 22, 2010, and August 23, 2010. (Woodard Decl. ¶¶ 10-12; ECF No. 23). PRA then referred the account to CIR Law Offices ("CIR"). Id. ¶ 16.

CIR filed a complaint on behalf of PRA against Thomas on June 9, 2011 in San Diego County Superior Court ("State Court Complaint"). (First Am. Compl., Ex. A; ECF No. 16 at 9). The State Court Complaint was drafted on a form approved by the Judicial Council of California, which contains boxes that a plaintiff can check or leave blank. Id. The State Court Complaint asserted causes of action for "Common Counts." Id. at 11. Based upon the boxes that are checked, the "Common Counts" causes of action state:

Plaintiff... Portfolio Recovery Associates, LLC alleges that defendant... Allen L. Thomas became indebted to plaintiff... within the last four years... on an open book account for money due.... [and] within the last... four years... for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff... the sum of $8, 536.76....

Id. Two of the unchecked boxes contain a dot in the middle of the box; the text beside those two boxes states: "an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff, " and "money [was] lent by plaintiff to defendant at defendant's request." Id.

On April 12, 2012, PRA filed a first amended complaint in the state court action. (Mitchell Decl. ¶ 3; ECF No. 22).

On May 16, 2012, Thomas initiated this action by filing a Complaint alleging FDCPA and Rosenthal Act claims in this Court. (ECF No. 1).

On July 30, 2012, PRA filed a Request for Dismissal with the state court, which stated that PRA requests the dismissal without prejudice of the following two causes of action: "For money lent by plaintiff to defendant at defendant's request;... For goods, wares, and merchandise sold and delivered to defendant and for ...


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