United States District Court, D. Idaho
BARRY STIMPSON, on behalf of himself and other similarly situated, Plaintiff,
MIDLAND CREDIT MANAGEMENT, INC., a Kansas corporation, and MIDLAND FUNDING, LLC, a Delaware limited liability company, Defendant.
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE.
the Court is Defendants' Motion for Summary Judgment and
Plaintiff's Motion For Leave to File An Amended
Complaint. See Dkts. 24, 35.
Barry Stimpson filed this putative class action suit on
behalf of himself and others similarly situated. He alleges
that defendants violated the Fair Debt Collection Practices
Act by sending deceptive or misleading letters seeking
repayment of time-barred debts. After the Court heard oral
argument on the motion for summary judgment, plaintiff moved
to amend his complaint. For the reasons explained below, the
Court will grant Defendants' motion for summary judgment
and deny the motion to amend.
March 2017, Midland Credit Management, Inc. sent a dunning
letter to plaintiff. The first page of the letter (not
including a clip-off payment coupon), is shown here:
letter speaks for itself, but a few points are worth
highlighting, given the parties' arguments. As shown, the
letter informed Stimpson that “Midland Credit
Management, Inc. (MCM) is the debt collection company, which will
be collecting on, and servicing your account.” Midland
offered Stimpson three “Available Payment
Options”: (1) He could immediately pay 60 percent of
the balance; (2) he could pay 80 percent of the balance over
six months; or (3) he could make “Monthly Payments As
Low As $50 per month.” Midland touted the benefits of
paying the debt as: (1) saving up to $458.24; (2) putting the
debt behind him; (3) “No more communication on the
account”; and (4) “Peace of mind.” Finally,
the letter contains this disclaimer language, which is a
central focus of this lawsuit: “The law limits how long
you can be sued on a debt and how long a debt can appear on
your credit report. Due to the age of this debt, we will not
sue you for it or report payment or non-payment to a credit
bureau.” The letter also state that the offer expires
in 30 days, and that Midland is “not obligated to renew
any offers provided.”
2006, more than ten years before Midland sent this letter,
Stimpson entered into a credit card agreement with HSBC Bank
Nevada, N.A. Stimpson made purchases with the card but did
not pay off his entire balance. In 2009, HSBC sold the
account to a debt collector, Defendant Midland Credit
Funding, LLC. As of March 2017, the balance on Stimpson's
account was $1, 145.60, presumably including interest and
other charges. Stimpson has not disputed the amount or the
validity of this debt. When Midland sent Stimpson the dunning
letter in March 2017, the statute of limitations had long
did not choose any of the payment options offered in the
letter. Instead, he sued Midland for sending the letter.
Stimpson alleges that Midland engaged in unfair and deceptive
acts and practices in violation of Sections 1692e and 1692f
of the FDCPA. See Compl., Dkt. 1-1, ¶ 42. He
seeks actual and statutory damages for himself and for each
member of a putative statewide class. Id. at 8.
See generally 15 U.S.C. §1692k.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Court will first address defendants' motion for summary
judgment and then turn to plaintiff's motion for leave to
amend his complaint.
The Governing Legal Standard
judgment is appropriate where a party can show that, as to
any claim or defense, “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). One of the
principal purposes of the summary judgment “is to
isolate and dispose of factually unsupported claims . . .
.” Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). It is “not a disfavored procedural
shortcut, ” but is instead the “principal tool[ ]
by which factually insufficient claims or defenses [can] be
isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). There must be a
genuine dispute as to any material fact - a fact
“that may affect the outcome of the case.”
Id. at 248.
evidence must be viewed in the light most favorable to the
non-moving party, and the Court must not make credibility
findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie
v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On
the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.
moving party bears the initial burden of demonstrating the
absence of a genuine dispute as to material fact.
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need
not introduce any affirmative evidence (such as affidavits or
deposition excerpts) but may simply point out the absence of
evidence to support the nonmoving party's case.
Fairbank v. Wunderman Cato Johnson, 212 F.3d 528,
532 (9th Cir.2000).
shifts the burden to the non-moving party to produce evidence
sufficient to support a jury verdict in her favor.
Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ]
affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine
dispute of material fact exists. Celotex, 477 U.S.
the Court is “not required to comb through the record
to find some reason to deny a motion for summary
judgment.” Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation
omitted). Instead, the “party opposing summary judgment
must direct [the Court's] attention to specific triable
facts.” Southern California Gas Co. v. City of
Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
admissible evidence may be considered in ruling on a motion
for summary judgment. Orr v. Bank of America, 285
F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ.
P. 56(e). In determining admissibility for summary judgment
purposes, it is the contents of the evidence rather than its
form that must be considered. Fraser v. Goodale, 342
F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the
evidence could be presented in an admissible form at trial,
those contents may be considered on summary judgment even if
the evidence itself is hearsay. Id. (affirming
consideration of hearsay contents of plaintiff's diary on
summary judgment because at trial, plaintiff's testimony
of contents would not be hearsay).
order to preserve a hearsay objection, “a party must
either move to strike the affidavit or otherwise lodge an
objection with the district court.” Pfingston v.
Ronan Engineering Co., 284 F.3d 999, 1003 (9th Cir.
2002). In the absence of objection, the Court may consider
hearsay evidence. Skillsky v. Lucky Stores, Inc.,
893 F.2d 1088, 1094 (9th Cir. 1990).
in a brief, unsupported by the record, cannot be used to
create a factual dispute. Barnes v. Independent Auto.
Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The
Circuit has “repeatedly held that documents which have
not had a proper foundation laid to authenticate them cannot
support a motion for summary judgment.” Beyene v.
Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th
Cir. 1988). Authentication, required by Federal Rule of
Evidence 901(a), is not satisfied simply by attaching a
document to an affidavit. Id. The affidavit must
contain testimony of a witness with personal knowledge of the
facts who attests to the identity and due execution of the
alleges a single claim under the Fair Debt Collection
Practices Act (FDCPA). See 15 U.S.C. §§
1692e, 1692f. Congress enacted the FDCPA in 1977 in response
to the “abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many debt
collectors.” 15 U.S.C. § 1692(a). The FDCPA
prohibits a debt collector from asserting any “false,
deceptive, or misleading representation, ” or using any
“unfair or unconscionable means” to collect, or
attempt to collect, a debt. §§ 1692e, 1692f.
Section 1692e provides a nonexclusive list of prohibited
practices, such as falsely representing the character or
legal status of a debt or threatening to take legal action
that cannot be taken. § 1692e(2)(A), (5). Because the
FDCPA is a remedial statute, its language is construed
broadly in order to effect its purpose. Clark v. Capital
Credit & Collection Serv., Inc., 460 F.3d 1162, 1176
(9th Cir. 2006).
not necessary for the debt collector's representation to
have actually misled or deceived the plaintiff; instead, the
inquiry depends on the “least sophisticated
debtor” standard. Tourgeman v. Collins Fin. Servs.,
Inc, 755 F.3d 1109, 1119 (9th Cir. 2014) (quoting
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030
(9th Cir. 2010)). “The least sophisticated debtor
standard is lower than simply examining whether particular
language would deceive or mislead a reasonable debtor.”
Id. (quoting Donohue, 592 F.3d at 1030)
(internal quotations omitted). While most courts accept the
least sophisticated debtor as “uninformed, naïve,
and gullible, ” her interpretation of a collection
notice still cannot be “bizarre or unreasonable.”
Evon v. Law Offices of Sidney Mickell, 688 F.3d
1015, 1027 (9th Cir. 2012) (citing Wahl v. Midland Credit
Mgmt., Inc., 556 F.3d 643, 645 (7th Cir. 2009)).
Ninth Circuit, a debt collector's liability under §
1692e is an issue of law. Gonzales v. Arrow Fin. Servs.,
LLC, 660 F.3d 1055, 1061 (9th Cir. 2011); see also
Tourgeman, 755 F.3d at 1118 (the “inquiry is
objective and is undertaken as a matter of law”).
Midland Did Not Mislead Stimpson By Failing to ...