District Court (Cal.) Says FDCPA Debt Validation Was Proper and Properly Sent (Even Though Not Received); Says Triable Issue of Fact on Plaintiff’s TCPA Claim

In Chiba v. Bayview Loan Servicing, Inc., 2016 WL 2593979, at *3-4 (S.D.Cal., 2016), Judge Benitez granted summary judgment to a debt collector on the FDCPA Plaintiff’s claim of improper debt validation.

Plaintiff argues that she disputed the debt and requested validation from Bayview as early as November 14, 2012, yet she never received validation. She argues that because Bayview sent debt collection letters in October and November 2013, Bayview violated the statute because it did not validate the debt before resuming debt collection. In response, Bayview produced a letter sent to Plaintiff on December 14, 2012, which includes the amount owed and the name and address of the original creditor, among other information. Plaintiff attests that she did not receive the December 14 letter, and even if she had, it does not constitute validation under the Act.  If a consumer disputes a debt, the debt collector must stop collection efforts “until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment or name and address of the original creditor, is mailed to the consumer by the debt collector.” 15 U.S.C. § 1692g(b). “[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed.” Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1173-74 (9th Cir. 2006) (adopting the Fourth Circuit’s test outlined in Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999)).  Plaintiff only contends that she did not receive the December 14 letter. However, receipt is not an element of section 1692g. See Mahon v. Credit Bureau, 171 F.3d 1197, 1201 (9th Cir. 1999) (“We hold that section 1692g(a) requires only that a Notice be ‘sent’ by a debt collector.”). Following the same type of analysis as conducted in Mahon, section 1692g(b) only requires that verification be mailed. “Nowhere does the statute require receipt of the [verification].” Id.  Plaintiff’s affidavit is insufficient to rebut Bayview’s evidence that the letter was mailed.⁴ The record reveals that the communications between Bayview and Plaintiff occurred either by mail or telephone. Neither Party presents any evidence, or even argues, that documents were exchanged via fax or email or any other medium. In other words, there is no dispute that delivery of any documents between parties was done by mail. Thus, no genuine issue of fact exists as to whether the letter was mailed. It was.  *4 Moving on to the issue of verification. Plaintiff is correct in that the Ninth Circuit has approved of verification under section 1692g where the debt collector provides an itemized statement of the debt to the consumer. See Clark, 460 F.3d at 1167; Mahon, 171 F.3d at 1199. However, while an itemized statement is satisfactory, it also exceeds the requirement under the Act. Clark, 460 F.3d at 1173-74. Last year, in Zhang v. Countrywide Home Loam, Inc., the Court of Appeal affirmed the district court’s order holding that the debt collector verified the debt by sending a letter listing the plaintiff’s address, the date that the deed of trust was secured on the property, and the name and address of the original creditor. 601 F. App’x 567, 567 (9th Cir. 2015), aff’g No. 11-cv-3475, 2012 WL 1245682, at *11 (N.D. Cal. Apr. 13, 2012). There is no indication that the verification letter in Zhang confirmed the amount owed in writing. See 2012 WL 1245682, at *11. The plain text of section 1692g(b) and a reading of Ninth Circuit case law reveals that verification is simply a writing from the debt collector to the consumer (1) confirming the amount of the alleged debt or (2) listing the name and address of the original creditor.  The December 14 letter goes beyond what is required for verification under the FDCPA. It states that it is responding to Plaintiff’s “several letters” and “inquiries,” including a qualified written request, regarding the mortgage loan. The letter included loan origination documents that Bayview had in its possession and that it “believe[d Plaintiff] received at loan closing.” The letter included the Note, which stated the name and address of the original creditor—Ryland Mortgage Company. That in itself is sufficient to satisfy the verification requirement. In addition, the letter restated the amount owed as $153,664.77. The December 14, 2012 letter and its enclosures satisfy section 1692g(b).

Judge Benitez denied summary judgment on the Plaintiff’s TCPA claim, but limited discovery to allow the issue to be more fully briefed.

Plaintiff argues that Bayview placed at least eleven automated phone calls to her cell phone number ending in “2400” without her consent. She declares in her affidavit that she was called by 215-664-1300, and at the beginning of each call there was an “artificial time delay.” Plaintiff submits a handwritten call log and photographs of a cell phone showing Bayview’s number on the screen.  On the other hand, Bayview contends that the 1300 number is a landline in Pennsylvania that “cannot be used” for autodialed calls.5 Defendant provides no evidence Plaintiff gave Bayview prior express consent to contact her cell phone number. As such, all that remains is a dispute as to whether or not Bayview called Plaintiff’s cell phone using an automated dialing system or an artificial or prerecorded voice.  As a genuine issue of material fact exists, neither party is entitled to judgment as a matter of law on this issue. However, the Court finds it appropriate to allow the parties to conduct limited discovery, as they may be able to properly support their claims with additional evidence. See Fed. R. Civ. P. 56(e) (“If a party fails to properly support an assertion of fact … the court may (1) give an opportunity to properly support or address the fact.”). Discovery should concern whether the 1300 phone line is able to and did use an automated system to call Plaintiff’s cell phone on the dates Plaintiff claims and whether or not Plaintiff provided Bayview prior express consent. The Parties’ Motions are therefore DENIED without prejudice.