THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 KAREN SMITH, CASE NO. C19-0538-JCC 10 Plaintiff, ORDER 11 v. 12 BANK OF NEW YORK MELLON, et al., 13 Defendants. 14
15 This matter comes before the Court on Defendant Malcom & Cisneros’ (“M&C”) motion 16 for summary judgment (Dkt. No. 76) and Plaintiff’s motion for relief from a deadline (Dkt. No. 17 85). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds 18 oral argument unnecessary and hereby GRANTS the motions (Dkt. Nos. 76, 85) for the reasons 19 explained herein. 20 I. BACKGROUND 21 The Court has described the facts and procedural history of this case in its previous 22 orders, (see Dkt. Nos. 38, 42, 63), and will not repeat them here. M&C moves for summary 23 judgment solely on the claims against it, arguing that Plaintiff’s Fair Debt Collection Practices 24 Act (“FDCPA”) claims are now barred by a recent Ninth Circuit decision and Plaintiff’s 25 Washington Consumer Protection Act (“CPA”) and negligent misrepresentation claims fail both 26 as a matter of law and because Plaintiff does not present sufficient evidence to establish a 1 genuine issue of material fact. (Dkt. No. 76 at 9–25.) 2 II. DISCUSSION 3 A. Relief from Deadline 4 As a threshold matter, the Court will address Plaintiff’s late-filed opposition brief (Dkt. 5 No. 82). M&C filed its summary judgment motion on October 16, 2020. (Dkt. No. 76.) 6 Plaintiff’s opposition brief was due on November 9, 2020. See W.D. Wash. Local Civ. R. 7 7(d)(3). Instead, Plaintiff filed her opposition brief the following day. (See Dkt. No. 821.) 8 Plaintiff moves for relief from this deadline, citing unexpected sickness for her roughly ten-hour 9 delay. (Dkt. No. 85 at 2.) 10 The Court ordinarily determines whether a late filing caused by neglect is excusable 11 based upon the four-factor Pioneer test. See Briones v. Riviera Hotel & Casino, 116 F.3d 379, 12 381 (9th Cir. 1997) (citing Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. Partn., 507 U.S. 13 380, 391 (1993)). M&C concedes two of the factors, noting that prejudice from such a delay was 14 “minimal” and that the length of delay was “not great.” (Dkt. No. 90 at 3.) Yet it opposes, 15 suggesting that the proffered reason, illness, was “weak” in light of the overall time Plaintiff had 16 to oppose, and that Plaintiff’s actions were not taken in good faith. (Dkt. No. 90 at 3–4.) 17 Plaintiff’s counsel’s behavior suggests a lack of planning. She had significant time to 18 craft a response prior to her illness. Nevertheless, M&C presents no evidence supporting a lack 19 of good faith on counsel’s part. Most importantly, the minimal delay here could not have resulted 20 in substantial prejudice to M&C. The Court views any assertion that M&C would otherwise have 21 been working on a reply brief from 12:01 a.m. to 7:35 a.m. on November 10, 2020 with great 22 skepticism. Accordingly, the Court FINDS that the neglect here was excusable. 23
24 1 Plaintiff later filed a preacipe, (Dkt. No. 88), seeking to submit a revised opposition brief, (Dkt. No. 88-1), correcting both citation errors and a single statement regarding the alleged 25 nature of M&C’s debt collection practices. The proposed modifications are not prejudicial to M&C. The Court, therefore, accepts the revised opposition brief. All remaining references in this 26 order to Plaintiff’s opposition brief are to the revised brief (Dkt. No. 88-1). 1 Plaintiff’s motion for relief from a deadline (Dkt. No. 85) is GRANTED. 2 B. Legal Standard for Summary Judgment 3 A court must grant summary judgment “if the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 5 Civ. P. 56(a). A dispute of fact is genuine if there is sufficient evidence for a reasonable jury to 6 find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 7 dispute of fact is material if the fact “might affect the outcome of the suit under the governing 8 law.” Id. At the summary judgment stage, evidence must be viewed in the light most favorable to 9 the nonmoving party, and all justifiable inferences are to be drawn in the nonmovant’s favor. Id. 10 at 255. 11 C. FDCPA 12 Plaintiff asserts that M&C violated the FDCPA, 15 U.S.C. §§ 1692d, 1692e, 1692f, when 13 it filed what a court later determined to be a time-barred judicial foreclosure complaint against 14 her on behalf of Defendant Bank of New York Mellon (“BONY”). (Dkt. No. 45 at 22–24.) M&C 15 moves for summary judgment on Plaintiff’s FDCPA claim, arguing that the claim is now 16 precluded by the Ninth Circuit’s decision in Barnes v. Routh Crabtree Olsen PC, 963 F.3d 993 17 (9th Cir. 2020), and even if it were not precluded, Plaintiff offers no evidence supporting 18 colorable claims under the FDCPA. (Dkt. No. 76 at 9–15.) 19 As this Court’s prior order on M&C’s motion to dismiss makes clear, prior to Barnes, 20 there was some question whether a judicial foreclosure action could be considered a debt 21 collection activity under the FDCPA, rather than an activity relating to the enforcement of a 22 security interest. (See Dkt. No. 38 at 9.) That question was settled in Barnes, where the Ninth 23 Circuit held that the enforcement of a security interest by “retaking or forcing a sale of the 24 property” is not a debt collection activity for purposes of the FDCPA, irrespective of the nature 25 of the foreclosure proceeding, so long as no debt other than the one associated with the security 26 interest is pursued through the proceeding. 963 F.3d at 995–96; see id. at 998–99 (Ninth Circuit’s 1 discussion of this Court’s prior order, noting the previous existence of a question regarding 2 “whether those who judicially enforce mortgages fall within the scope of [the FDCPA’s rules 3 regarding debt collection activities]”). Therefore, there is now no doubt that M&C’s attempted 4 enforcement of BONY’s security interest through the foreclosure action was not a debt collection 5 activity, as there are no credibly supported allegations that M&C also pursued a judgment on 6 additional debt owed by Plaintiff through that failed action. 7 Plaintiff argues that, even if M&C’s actions in this case did not amount to a debt 8 collection activity for FDCPA purposes, M&C regularly engages in debt collection activities in 9 other instances. (Dkt. No. 88-1 at 5–12.) Therefore, according to Plaintiff, M&C is, in general, a 10 debt collector for purposes of the FDCPA and, accordingly, is subject to the FDCPA’s 11 limitations on its conduct in this case. (Id.) But the evidence Plaintiff presents only suggests that 12 M&C routinely engages in the kind of security-interest enforcement proceedings at issue in this 13 case. (See Dkt. Nos. 83-1 at 2–9, 83-2 at 11–12, 83-5 at 2–64.) This is insufficient to establish a 14 genuine issue of material fact regarding whether M&C, more broadly, is a debt collector for 15 purposes of the FDCPA. As a result, the Court need not consider whether the activities M&C 16 engaged in on BONY’s behalf here constituted FDCPA violations. 17 Summary judgment is GRANTED on Plaintiff’s FDCPA claim. 18 D. CPA 19 To establish a CPA violation, a plaintiff must prove an “(1) unfair or deceptive act or 20 practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in 21 his or her business or property; [and] (5) causation.” Hangman Ridge Training Stables, Inc. v. 22 Safeco Title Ins.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 KAREN SMITH, CASE NO. C19-0538-JCC 10 Plaintiff, ORDER 11 v. 12 BANK OF NEW YORK MELLON, et al., 13 Defendants. 14
15 This matter comes before the Court on Defendant Malcom & Cisneros’ (“M&C”) motion 16 for summary judgment (Dkt. No. 76) and Plaintiff’s motion for relief from a deadline (Dkt. No. 17 85). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds 18 oral argument unnecessary and hereby GRANTS the motions (Dkt. Nos. 76, 85) for the reasons 19 explained herein. 20 I. BACKGROUND 21 The Court has described the facts and procedural history of this case in its previous 22 orders, (see Dkt. Nos. 38, 42, 63), and will not repeat them here. M&C moves for summary 23 judgment solely on the claims against it, arguing that Plaintiff’s Fair Debt Collection Practices 24 Act (“FDCPA”) claims are now barred by a recent Ninth Circuit decision and Plaintiff’s 25 Washington Consumer Protection Act (“CPA”) and negligent misrepresentation claims fail both 26 as a matter of law and because Plaintiff does not present sufficient evidence to establish a 1 genuine issue of material fact. (Dkt. No. 76 at 9–25.) 2 II. DISCUSSION 3 A. Relief from Deadline 4 As a threshold matter, the Court will address Plaintiff’s late-filed opposition brief (Dkt. 5 No. 82). M&C filed its summary judgment motion on October 16, 2020. (Dkt. No. 76.) 6 Plaintiff’s opposition brief was due on November 9, 2020. See W.D. Wash. Local Civ. R. 7 7(d)(3). Instead, Plaintiff filed her opposition brief the following day. (See Dkt. No. 821.) 8 Plaintiff moves for relief from this deadline, citing unexpected sickness for her roughly ten-hour 9 delay. (Dkt. No. 85 at 2.) 10 The Court ordinarily determines whether a late filing caused by neglect is excusable 11 based upon the four-factor Pioneer test. See Briones v. Riviera Hotel & Casino, 116 F.3d 379, 12 381 (9th Cir. 1997) (citing Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. Partn., 507 U.S. 13 380, 391 (1993)). M&C concedes two of the factors, noting that prejudice from such a delay was 14 “minimal” and that the length of delay was “not great.” (Dkt. No. 90 at 3.) Yet it opposes, 15 suggesting that the proffered reason, illness, was “weak” in light of the overall time Plaintiff had 16 to oppose, and that Plaintiff’s actions were not taken in good faith. (Dkt. No. 90 at 3–4.) 17 Plaintiff’s counsel’s behavior suggests a lack of planning. She had significant time to 18 craft a response prior to her illness. Nevertheless, M&C presents no evidence supporting a lack 19 of good faith on counsel’s part. Most importantly, the minimal delay here could not have resulted 20 in substantial prejudice to M&C. The Court views any assertion that M&C would otherwise have 21 been working on a reply brief from 12:01 a.m. to 7:35 a.m. on November 10, 2020 with great 22 skepticism. Accordingly, the Court FINDS that the neglect here was excusable. 23
24 1 Plaintiff later filed a preacipe, (Dkt. No. 88), seeking to submit a revised opposition brief, (Dkt. No. 88-1), correcting both citation errors and a single statement regarding the alleged 25 nature of M&C’s debt collection practices. The proposed modifications are not prejudicial to M&C. The Court, therefore, accepts the revised opposition brief. All remaining references in this 26 order to Plaintiff’s opposition brief are to the revised brief (Dkt. No. 88-1). 1 Plaintiff’s motion for relief from a deadline (Dkt. No. 85) is GRANTED. 2 B. Legal Standard for Summary Judgment 3 A court must grant summary judgment “if the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 5 Civ. P. 56(a). A dispute of fact is genuine if there is sufficient evidence for a reasonable jury to 6 find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 7 dispute of fact is material if the fact “might affect the outcome of the suit under the governing 8 law.” Id. At the summary judgment stage, evidence must be viewed in the light most favorable to 9 the nonmoving party, and all justifiable inferences are to be drawn in the nonmovant’s favor. Id. 10 at 255. 11 C. FDCPA 12 Plaintiff asserts that M&C violated the FDCPA, 15 U.S.C. §§ 1692d, 1692e, 1692f, when 13 it filed what a court later determined to be a time-barred judicial foreclosure complaint against 14 her on behalf of Defendant Bank of New York Mellon (“BONY”). (Dkt. No. 45 at 22–24.) M&C 15 moves for summary judgment on Plaintiff’s FDCPA claim, arguing that the claim is now 16 precluded by the Ninth Circuit’s decision in Barnes v. Routh Crabtree Olsen PC, 963 F.3d 993 17 (9th Cir. 2020), and even if it were not precluded, Plaintiff offers no evidence supporting 18 colorable claims under the FDCPA. (Dkt. No. 76 at 9–15.) 19 As this Court’s prior order on M&C’s motion to dismiss makes clear, prior to Barnes, 20 there was some question whether a judicial foreclosure action could be considered a debt 21 collection activity under the FDCPA, rather than an activity relating to the enforcement of a 22 security interest. (See Dkt. No. 38 at 9.) That question was settled in Barnes, where the Ninth 23 Circuit held that the enforcement of a security interest by “retaking or forcing a sale of the 24 property” is not a debt collection activity for purposes of the FDCPA, irrespective of the nature 25 of the foreclosure proceeding, so long as no debt other than the one associated with the security 26 interest is pursued through the proceeding. 963 F.3d at 995–96; see id. at 998–99 (Ninth Circuit’s 1 discussion of this Court’s prior order, noting the previous existence of a question regarding 2 “whether those who judicially enforce mortgages fall within the scope of [the FDCPA’s rules 3 regarding debt collection activities]”). Therefore, there is now no doubt that M&C’s attempted 4 enforcement of BONY’s security interest through the foreclosure action was not a debt collection 5 activity, as there are no credibly supported allegations that M&C also pursued a judgment on 6 additional debt owed by Plaintiff through that failed action. 7 Plaintiff argues that, even if M&C’s actions in this case did not amount to a debt 8 collection activity for FDCPA purposes, M&C regularly engages in debt collection activities in 9 other instances. (Dkt. No. 88-1 at 5–12.) Therefore, according to Plaintiff, M&C is, in general, a 10 debt collector for purposes of the FDCPA and, accordingly, is subject to the FDCPA’s 11 limitations on its conduct in this case. (Id.) But the evidence Plaintiff presents only suggests that 12 M&C routinely engages in the kind of security-interest enforcement proceedings at issue in this 13 case. (See Dkt. Nos. 83-1 at 2–9, 83-2 at 11–12, 83-5 at 2–64.) This is insufficient to establish a 14 genuine issue of material fact regarding whether M&C, more broadly, is a debt collector for 15 purposes of the FDCPA. As a result, the Court need not consider whether the activities M&C 16 engaged in on BONY’s behalf here constituted FDCPA violations. 17 Summary judgment is GRANTED on Plaintiff’s FDCPA claim. 18 D. CPA 19 To establish a CPA violation, a plaintiff must prove an “(1) unfair or deceptive act or 20 practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in 21 his or her business or property; [and] (5) causation.” Hangman Ridge Training Stables, Inc. v. 22 Safeco Title Ins. Co., 710 P.3d 531, 533 (Wash. 1986). The first two elements may be established 23 independently or “by a showing that the alleged act constitutes a per se unfair trade practice.” Id. 24 at 535. “A per se unfair trade practice exists when a statute which has been declared by the 25 Legislature to constitute an unfair or deceptive act in trade or commerce has been violated.” Id. 26 “[A]ny person or entity[’s]” violation “of the duty of good faith under RCW § 61.24.163,” a 1 component of Washington’s Foreclosure Fairness Act (“FFA”),” is a per se unfair trade practice. 2 Wash. Rev. Code § 61.24.135(2). Similarly, acting as a collection agency without the requisite 3 license, as provided by Washington’s Collection Agency Act (“CAA”), Wash. Rev. Code 4 § 19.16.440, is a per se unfair trade practice. 5 Plaintiff asserts that M&C violated the CPA, Wash. Rev. Code ch. 19.86, when it: (1) 6 acted as an unlicensed debt collector in violation of the CAA; (2) breached its duty to mediate in 7 good faith in violation of the FFA; and (3) filed a time-barred judicial foreclosure action. (Dkt. 8 No. 45 at 11–23.) But the CPA does not apply to the practice of law. Michael v. Mosquera-Lacy, 9 200 P.3d 695, 699 (Wash. 2009). It only applies to the “entrepreneurial aspects of legal 10 practice—how the price of legal services is determined, billed, and collected and the way a law 11 firm obtains, retains, and dismisses clients.” Short v. Demopolis, 691 P.2d 163, 168 (Wash. 12 1984). 13 Plaintiff describes M&C’s business as a “form pleadings” practice, necessitating little 14 “attorney involvement.” (Dkt. No. 88-1 at 16.) She argues this means that M&C engages in a 15 debt collection business by non-attorneys and, on this basis, her claims are actionable under the 16 CPA. (Id.) She cites Mandelas v. Gordon, 785 F. Supp. 2d 951, 953 (W.D. Wash. 2011), for the 17 proposition that a law firm can engage in debt collection activities. (Id.) But in Mandelas, the 18 plaintiff put forth evidence detailing the staffing and practices of the firm, thereby establishing a 19 genuine issue of material fact whether the firm was a debt collector rather than a law firm 20 practicing law. 785 F. Supp at 961–62. Plaintiff presents little, if any, comparable evidence. (See 21 Dkt. No. 83-2 at 11, 84-7 at 2.) Therefore, she fails to establish a genuine issue of material fact. 22 Summary judgment is GRANTED on Plaintiff’s CPA claims. 23 E. Negligent Misrepresentation 24 To support a negligent misrepresentation claim, Plaintiff must prove that: (1) M&C 25 supplied false information for Plaintiff’s guidance, (2) M&C knew or should have known the 26 information was supplied to guide Plaintiff in her business transaction, (3) M&C was negligent 1 in obtaining or communicating the information, (4) Plaintiff relied on the information, (5) that 2 reliance was justified, and (6) the false information proximately caused Plaintiff’s damages. 3 ECSA v. KPMG Peat Marwick, 959 P.2d 651, 654 (Wash. 1988). To survive summary judgment, 4 Plaintiff must put forth sufficient evidence on each element to establish a genuine issue of 5 material fact. Plaintiff’s briefing is notable in that she points to no evidence specific to this claim. 6 (See Dkt. No. 88-1 at 23–24.) However, viewing the evidence in the light most favorable to 7 Plaintiff, see Anderson v. Liberty Lobby, Inc., 477 at 255, the Court notes that some of the 8 evidence put forward in support of her other claims may also support some of the elements for 9 this claim. But it does not support all of the elements. Specifically, the Court fails to see the 10 connection between the evidence presented, even viewed in the most favorable light, and the 11 following elements: the falsity of the information M&C supplied, M&C’s negligence in 12 obtaining the information provided to Plaintiff, Plaintiff’s justifiable reliance on the information 13 provided by M&C, and proximate cause of Plaintiff’s injuries. (Id.) Therefore, Plaintiff fails to 14 establish genuine issues of material fact on all of the elements she must prove at trial on her 15 negligent misrepresentation claim. 16 Summary judgment is GRANTED on Plaintiff’s negligent misrepresentation claim. 17 III. CONCLUSION 18 For the foregoing reasons, the Court GRANTS M&C’s motion for summary judgment 19 (Dkt. No. 76) and Plaintiff’s motion for relief from a deadline (Dkt. No. 85). 20 21 DATED this 5th day of May 2021. A 22 23 24 John C. Coughenour 25 UNITED STATES DISTRICT JUDGE