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Youssofi v. CMRE Financial Services, Inc.

United States District Court, S.D. California

August 2, 2016

ZIBA YOUSSOFI, Plaintiff,
v.
CMRE FINANCIAL SERVICES, INC., Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT; SCHEDULING ORDER

          JEFFREY T. MILLER JUDGE

         Plaintiff Ziba Youssofi (“Plaintiff”) moves for summary judgment or, alternatively, for partial summary judgment on the remaining claims alleged in this Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et seq., action. Defendant CMRE Financial Services, Inc. (“CMRE”) opposes the motion. Pursuant to L.R. 7.1(d)(1), the court finds the matters presented appropriate for decision without oral argument. For the reasons set forth below, the court grants in part and denies in part the motion for summary judgment. The court also instructs the parties to contact the chambers of Magistrate Judge William V. Gallo to schedule a case management conference.

         BACKGROUND

         The FAC, filed on November 2, 2015, alleges eight counts for violation of the FDCPA and a single state law claim for violation of the Rosenthal Fair Debt Collections Practices Act (“Rosenthal Act”), Cal. Civil Code §1788.17. Plaintiff’s claims arise from two different collection letters or notices she received from CMRE, a debt collector, regarding a consumer debt.

         On or about October 29, 2014, Plaintiff received the first collection notice from CMRE seeking to collect an alleged debt of $716.30 plus $1.18 in interest (the “Validation Notice”). (FAC Exh. 1). The Validation Notice consisted of a single page and allegedly did not identify the name of the creditor nor provide any information to identify the nature of the debt. On November 17, 2014, Plaintiff retained counsel and counsel sent a letter to CMRE disputing the debt.

         The second collection notice, dated December 9, 2014, clearly and unambiguously identified the creditor as Emergency Services Medical Corporation. The debt arises from the provision of emergency medical services to Plaintiff. Plaintiff never paid the debt. The second notice identified the same debt of $716.30, in addition to interest charges of $9.62. (FAC Exh. 2).

         On October 14, 2015, Plaintiff commenced the present action. On March 15, 2016, the court granted CMRE’s motion to dismiss Counts 1, 2, 4, 6-9 with prejudice and denied the motion to dismiss Counts 3, 5, and the Rosenthal Act claim. Pursuant to Fed.R.Civ.P. 12(d), the court also converted the motion to one for summary judgment on the remaining claims. The two remaining issues in this case are essentially (1) whether Plaintiff was provided with page two of the Validation Notice and (2) whether the interest calculation set forth in the December 9, 2014 collection notice overstated the amount of interest by $0.39. The court concluded that these were discrete, narrowly focused factual issues subject to discovery and, presumably, resolution by summary judgment. The parties have completed discovery and Plaintiff now moves for summary judgment on the remaining claims.

         DISCUSSION

         Legal Standards

         A motion for summary judgment shall be granted where “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Id. (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must “go beyond the pleadings and by [the party’s] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

         The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, when “‘the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.’” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)).

         The Motion

         Count 3

         Plaintiff comes forward with her declaration to show that the one-page Validation Notice she received did not identify the creditor in violation of 15 U.S.C. §§1692g(a)(2), 1692e, and 1692e(10). (Youssofi Decl. ¶5). Plaintiff declares that she did not receive page two to the letter. She also did not submit the envelope containing the Validation Notice to support her motion. As this evidence demonstrates that the Validation ...


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