District Court (Cal.) Says NOI Did Not Substantially Comply with ASFA

In Mora v. Harley-Davidson Credit Corp, 2010 WL 4008156 (E.D.Cal. 2010), Judge Wanger held that HDCC’s NOI letter failed Rees-Levering’s disclosure requirements – even if Rees-Levering allowed “substantial compliance”.  Judge Wanger explained:   

Plaintiff contends that Defendant’s NOI was deficient, inter alia, because the notice failed to state the actual amount Plaintiff was required to pay to effect reinstatement as required by section 2983.2(a)(2); specifically, Plaintiff points out that the NOI did not include the actual amount of fees owed in connection with “repossession fees.” Defendant contends that the NOI complied with section 2983.2(a)(2) because the NOI provided Plaintiff with an estimate of repossession fees. . . .¶  . . . The parties advance conflicting positions regarding the quantum of compliance required by ASFA. Plaintiff contends that ASFA requires “strict compliance.” (Doc. 50, Plaintiff’s MSJ at 7) (citing Bank of America v. Lallana, 19 Cal.4th 203, 215, 77 Cal.Rptr.2d 910, 960 P.2d 1133 (Cal.1998)). Defendant contends that “substantial compliance” is sufficient under ASFA. Assuming arguendo that only substantial compliance is required by ASFA, Defendant’s NOI was deficient. . . . ¶ . . . Defendant contends that because it did not know, and could not reasonably ascertain, the amount of fees Plaintiff owed to third parties at the time it sent Plaintiff the NOI, the estimate of repossession fees provided in its NOI was sufficient to meet section 2983.2(a)(2)’s requirements as stated in Juarez. (Doc. 54, Def. Opp. To MSJ at 12-14). Defendant’s argument is belied by the record. Monica Acosta, a Manager in Defendant’s loss mitigation and servicing department, stated that Defendant can obtain the actual amounts of repossession fees by placing a phone call to the relevant entity. (Doc. 46, Acosta Dec. at ¶ 18; Acosta Deposition Trans. at 57-58, 73-74). Ray Kunz, a re-marketing representative employed by Defendant, also stated that when a debtor responded to an NOI by calling Defendant to ascertain the exact amounts due for repossession fees, Defendant would place the debtor on hold, call the relevant entity in possession of the information, and obtain the exact amount of repossession fees owed. (Kunz Dep. Trans. at 71-72). . .¶ . .  Defendant’s NOI failed to include the correct amount of repossession fees owed, failed to include the amount of law enforcement fees owed, failed to identify the third parties to whom such fees were owed, and failed to provide contact information such third parties; all of this information is required by section 2983.2(a)(2). Arguelles-Romero, 184 Cal.App. at 830; Salenga, 183 Cal.App.4th at 999, 107 Cal.Rptr.3d 836. Plaintiff’s request for summary judgment on his contention that Defendant’s NOI was deficient is GRANTED.