Sylvester et al v. Merchants Credit Corporation, No. 2:2017cv00168 - Document 44 (W.D. Wash. 2019)
Court Description: ORDER granting Plaintiffs' 40 Motion for Summary Judgment as to Plaintiffs' FDCPA claim; granting in part Plaintiffs' 41 Motion to Enforce: Plaintiffs are entitled to judgment in the amount of $3,787.50 against Defendant. Pl aintiffs are entitled to judgment for statutory damages of $2,000. Plaintiffs' remaining CPA claim, Count II, is DISMISSED with prejudice. Plaintiffs may file a motion for attorneys' fees and costs within 30 days of this order. The trial date of 1/13/2020 and all related deadlines are STRICKEN. Signed by Judge Thomas S. Zilly. (MW)
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Sylvester et al v. Merchants Credit Corporation Doc. 44 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 KENNETH S. SYLVESTER and LISA A. SYLVESTER, Plaintiffs, 9 10 11 C17-168 TSZ v. ORDER MERCHANTS CREDIT CORPORATION, 12 13 14 15 16 17 18 19 20 Defendant. THIS MATTER comes before the Court on Plaintiffs’ Motion for Summary Judgment or in the Alternate, Partial Summary Judgment, docket no. 40, and Plaintiffs’ Motion to Enforce the Court’s February 13, 2018 and July 18, 2018 Orders, docket no. 41. Having reviewed all papers filed in support of the motions, and noting Defendant’s non-opposition to both motions, the Court enters the following order. Background Kenneth and Lisa Sylvester (“Plaintiffs”) defaulted on payments owed on a debt to Virginia Mason Hospital and Virginia Mason Medical Center Clinic. Ex. A to Summary 21 22 23 ORDER - 1 Dockets.Justia.com 1 Judgment Motion (docket no. 40-4 at 8-9). 1 After Plaintiffs’ default, the debt was 2 assigned to Merchants Credit Association (“Defendant”) for collection. Id. at 9. On 3 April 6, 2016, Defendant filed a complaint in Washington state court for the amount of 4 Plaintiffs’ debt. Ex. B to Summary Judgment Motion (docket no. 40-5 at 4-9). On 5 May 20, 2016, Plaintiffs, through their counsel at Hyde & Swigart, filed an answer to the 6 complaint. Ex. C to Summary Judgment Motion (docket no. 40-6). Around November 9, 7 2016, Defendant sent an “Application for Writ of Garnishment” directly to Plaintiffs. 8 Ex. F to Summary Judgment Motion (docket no. 40-9); Lisa Sylvester Decl. ¶ 3 (docket 9 no. 40-2); Kenneth Sylvester Decl. ¶ 3 (docket no. 40-3). Plaintiffs bring claims against 10 Defendant under the Fair Debt Collection Practices Act (“FDCPA”) and the Washington 11 Consumer Protection Act (“CPA”). In particular, Plaintiffs allege that Defendant 12 violated 15 U.S.C. § 1692c(a)(2), which prohibits a debt collector from contacting a 13 consumer it knows is represented by an attorney with respect to the debt. 14 Discussion 15 I. Standard of Review 16 The Court shall grant summary judgment if no genuine issue of material fact exists 17 and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 18 The moving party bears the initial burden of demonstrating the absence of a genuine issue 19 20 1 Though Plaintiffs did not properly authenticate the exhibits attached to the Motion, the Court considers 21 them in its Order. Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (“At summary judgment, ‘a party does not necessarily have to produce evidence in a form that would be admissible at 22 trial.’”) (quoting Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)). 23 ORDER - 2 1 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if 2 it might affect the outcome of the suit under the governing law. Anderson v. Liberty 3 Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the 4 adverse party must present affirmative evidence, which “is to be believed” and from 5 which all “justifiable inferences” are to be favorably drawn. Id. at 255, 257. When the 6 record, however, taken as a whole, could not lead a rational trier of fact to find for the 7 non-moving party, summary judgment is warranted. See Beard v. Banks, 548 U.S. 521, 8 529 (2006) (“Rule 56(c) ‘mandates the entry of summary judgment, after adequate time 9 for discovery and upon motion, against a party who fails to make a showing sufficient to 10 establish the existence of an element essential to that party’s case, and on which that 11 party will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)). 12 II. 13 To establish a violation of the FDCPA, a plaintiff must show that: “(1) the plaintiff Fair Debt Collection Practices Act 14 has been the object of collection activity arising from a consumer debt, (2) the defendant 15 collecting the ‘debt’ is a ‘debt collector’ as defined in the Act, and (3) the defendant has 16 engaged in any act or omission in violation of the prohibitions or requirements of the 17 act.” Quintanilla v. Bureaus, Inc., 2019 WL 3028104, at *2 (W.D. Wash. July 11, 2019) 18 (quoting Yrok Gee Au Chan v. N. Am. Collectors, Inc., 2006 WL 778642, at *3 (N.D. Cal. 19 Mar. 24, 2006)). 20 Pursuant to the FDCPA, “a debt collector may not communicate with a consumer 21 in connection with the collection of any debt ... if the debt collector knows the consumer 22 is represented by an attorney with respect to such debt and has knowledge of, or can 23 ORDER - 3 1 readily ascertain, such attorney's name and address.” 15 U.S.C. § 1692c(a)(2). Plaintiffs 2 allege that Defendant violated this provision when they sent the application for writ of 3 garnishment notice directly to Plaintiffs knowing that they were represented by counsel 4 with respect to that debt. The Court concludes that Plaintiffs are entitled to summary 5 judgment on the FDCPA claim. 6 Defendant’s application for writ of garnishment was a communication “in 7 connection with the collection of [a] debt” because it informed Plaintiffs that Defendant 8 intended to collect the debt by garnishing Plaintiffs’ wages. Defendant also knew that 9 Plaintiffs were represented with respect to that debt because “[r]epresentation in a debt 10 collection action is representation with respect to the debt,” Camacho v. Jefferson Capital 11 Sys., LLC, 2015 WL 3454070, at *4 (N.D. Cal. May 29, 2015), and “the filing of an 12 underlying lawsuit between a consumer and a debt collector is sufficient to put the debt 13 collector on notice that a plaintiff is represented with respect to that debt.” Munoz v. 14 California Bus. Bureau, Inc., 2016 WL 6517655, at *11 (E.D. Cal. Nov. 1, 2016). 15 Plaintiffs were represented in the underlying debt collection action in state court by 16 counsel from Hyde & Swigart. Ex. C to Summary Judgment Motion (docket no. 40-6). 17 Defendant therefore knew that Plaintiffs were represented by counsel with respect to the 18 debt when they sent Plaintiffs the writ of garnishment. 19 The Court GRANTS Summary Judgment with respect to Plaintiffs’ FDCPA claim. 20 III. 21 In an action brought by an individual, a debt collector who fails to comply with the Damages, Costs, and Attorney’s Fees 22 FDCPA is liable to that individual in an amount equal to the sum of: (1) any actual 23 ORDER - 4 1 damages sustained as a result of such failure; (2) any additional damages as the court may 2 allow, but not exceeding $1,000; and (3) the cost of the action, together with reasonable 3 attorney’s fees. 15 U.S.C. § 1692k(a). Statutory damages are available to each plaintiff. 4 Sleeper v. Rent Recover, LLC, 2014 WL 4455044, at *15 (E.D. Wash. Sept. 10, 2014) 5 (15 U.S.C. 1692k(a)(2)(A) provides for statutory damages of up to $1,000 per individual 6 plaintiff). 7 The Court GRANTS Plaintiffs’ requested statutory damages of $2,000. However, 8 Plaintiffs have provided no evidence with respect to any actual damages. 9 The Court GRANTS IN PART Plaintiffs’ Motion to Enforce the Court’s 10 February 14, 2018 and July 18, 2018 Orders, docket no. 41. Plaintiffs are entitled to 11 judgment in the amount of $3,787.50 against Defendant. The Court DENIES the motion 12 as to additional sanctions. 13 IV. 14 Plaintiffs provide no support in their Motion for the remaining CPA claim. Remaining CPA Claim 15 Plaintiffs’ CPA claim is DISMISSED with prejudice. 16 Conclusion 17 (1) Plaintiffs’ Motion to Enforce, docket no. 41, is GRANTED IN PART. 18 Plaintiffs are entitled to judgment in the amount of $3,787.50 against Defendant. 19 (2) Plaintiffs’ Motion for Summary Judgment or in the alternate, Motion for 20 Partial Judgment, docket no. 40, is GRANTED as to Plaintiffs’ FDCPA claim. Plaintiffs 21 are entitled to judgment for statutory damages of $2,000. 22 (3) 23 ORDER - 5 Plaintiffs’ remaining CPA claim, Count II, is DISMISSED with prejudice. 1 (4) Plaintiffs may file a motion for attorneys’ fees and costs within 30 days of 2 this order. 3 (5) The trial date of January 13, 2020 and all related deadlines are STRICKEN. 4 (6) The Clerk is DIRECTED to enter judgment consistent with this Order, to 5 CLOSE this case, and to send a copy of this Order to all counsel of record. 6 Dated this 11th day of December, 2019. 7 A 8 9 Thomas S. Zilly United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER - 6
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