Lynch v. Suttell & Hammer PS

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON — 8 — AT SEATTLE — 9 — CHELSY LYNCH, a Washington resident, Case No. C23-572-RSM — 10 — Plaintiff, ORDER RE: MOTIONS FOR SUMMARY — 11 — JUDGMENT v. — 12 — SUTTEL & HAMMER, PS, a Washington — 13 — corporation and licensed collection agency, — 14 — Defendant. — 15 — — 16 — I. INTRODUCTION — 17 — This matter comes before the Court on Plaintiff Chelsy Lynch (“Plaintiff”)’s Motion for — 18 — Partial Summary Judgment, Dkt. #18, and Defendant Suttel & Hammer, PS, (“Defendant”)’s — 19 — Motion for Summary Judgment, Dkt. #20. Neither party has requested oral argument. For the — 20 — following reasons, the Court DENIES Plaintiff’s Motion and GRANTS Defendant’s Motion. — 21 — II. BACKGROUND — 22 — Unless otherwise stated, the following facts are adopted from Plaintiff’s Complaint, Dkt. — 23 — #1. — 24 — 1 In November of 2021, Defendant filed a debt collection lawsuit against Plaintiff in Snohomish County District Court. Plaintiff was represented by counsel, attorney Peter — 2 — Schneider, in this case. After Defendant took no action in the case for over a year, the case was — 3 — dismissed for failure to prosecute in December of 2022. On or around March 10, 2023, — 4 — Defendant filed a new debt collection lawsuit in Snohomish County District Court for the same — 5 — debt as the previous suit. Plaintiff became aware of this lawsuit on March 17, 2023, and called — 6 — Defendant that same day. Plaintiff spoke with Defendant’s employee, Mr. Boris Sagal. Upon — 7 — confirming her identity and case number, Mr. Sagal refused to speak with Plaintiff, stating that — 8 — Defendant’s records showed that she was represented by an attorney in the matter, said attorney — 9 — had already filed an answer, and he could not speak to Plaintiff about her debt because she was — 10 — represented. Plaintiff told Mr. Sagal she was not represented regarding the current lawsuit. Mr. — 11 — Sagal told Plaintiff either her attorney must send a revocation letter or Plaintiff should send a — 12 — letter of non-representation to Defendant. Dkt. #18 at 4. Plaintiff attempted to contact — 13 — Defendant’s attorney who signed the complaint in the lawsuit, but she received no response to — 14 — her email. Plaintiff then called her former attorney who represented her on the original dismissed — 15 — lawsuit, Peter Schneider. Plaintiff and Attorney Schneider phoned Defendant together, spoke — 16 — with Mr. Sagal, and were ultimately transferred to speak with Defendant’s attorney. Dkt. #20 at — 17 — 3. At this point, Plaintiff had requested Attorney Schneider represent her in the current debt — 18 — collection lawsuit. Attorney Schneider, that day, served Defendant with a formal notice of — 19 — appearance. All of these actions occurred within a few hours, between 9:34 a.m. and 12:49 p.m. — 20 — on March 17, 2023. — 21 — Plaintiff alleges that Defendant’s refusal to speak with her about the second debt — 22 — collection lawsuit was prohibited behavior meant to confuse and intimidate Plaintiff. Pursuant — 23 — to the Fair Debt Collection Practices Act ( 15 U.S.C. § 1692 ) (“FDCPA”), the Washington — 24 — 1 Collection Agency Act (“WCAA”) via enforcement through the Washington Consumer Protection Act (“WCPA”), Plaintiff seeks injunctive relief, actual damages (including treble — 2 — damages), statutory damages, an immediate stay of the Snohomish County District Court case, — 3 — attorney’s fees and costs, and any other relief deemed proper by this Court. Defendant has also — 4 — filed for Summary Judgment, requesting dismissal of claims. Dkt. #20. — 5 — III. DISCUSSION — 6 — A. Legal Standard — 7 — Summary Judgment is appropriate where “the movant shows that there is no genuine — 8 — dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. — 9 — R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are — 10 — those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 11 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of — 12 — the matter but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, — 13 — Inc., 41 F.3d 5547 , 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & — 14 — Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). — 15 — On a motion for summary judgment, the court views the evidence and draws inferences — 16 — in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255 ; Sullivan v. U.S. — 17 — Dep’t of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable — 18 — inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747 , rev’d — 19 — on other grounds, 512 U.S. 79 (1994). However, the non-moving party must make a “sufficient — 20 — showing on an essential element of her case with respect to which she has the burden of proof” — 21 — to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). — 22 — // — 23 — // — 24 — 1 B. Analysis Given the similarity of Plaintiff’s federal and state CPA claims, the Court collectively — 2 — analyzes these claims below. — 3 — To bring a claim under the FDCPA, a plaintiff must show that: “(1) the plaintiff has been — 4 — the object of collection activity arising from a consumer debt, (2) the defendant collecting the — 5 — ‘debt’ is a ‘debt collector’ as defined in the act, and (3) the defendant has engaged in any act or — 6 — omission in violation of the prohibitions or requirements of the act.” Quintanilla v. Bureaus, — 7 — Inc., 2019 WL 3028104 , at *2 (W.D. Wash. July 11, 2019) (quoting Yrok Gee Au Chan v. N. Am. — 8 — Collectors, Inc., 2006 WL 778642 , at *3 (N.D. Cal. Mar. 24, 2006)). — 9 — Plaintiff brings Counts 1 and 2 of her Complaint under the FDCPA, 15 U.S.C. § 1692e10 f. Plaintiff argues Defendant’s insistence that she was represented by an attorney, that her — 11 — attorney had filed an answer, that Defendant could not speak with her about her debt, and that — 12 — Defendant needed written confirmation she was not represented violated these provisions. Dkt. — 13 — #1 at 4-5. Defendant contends that the statute and ethics rules prohibit Defendant from speaking — 14 — to consumers about their debts if they are represented by counsel, thus in an abundance of caution, — 15 — Defendant’s employee “took the high road” by not seeking to take advantage of Plaintiff and by — 16 — making sure she was or was not represented by an attorney. Dkt. #20 at 6. — 17 — Subsection e, “False or misleading representations,” prohibits debt collectors from using — 18 — “false, deceptive, or misleading representation or means in connection with the collections of any — 19 — debt.” 15 U.S.C. § 1692e. Plaintiff specifically alleges that Defendant violated the statute by — 20 — falsely representing the character, amount, or legal status of her debt (§ 1692e(2)) and threatening — 21 — to take action that Defendant could not legally take (§ 1692e(5)). Under subsection f, “Unfair — 22 — practices,” debt collectors are prohibited from using unfair or unconscionable means to collect — 23 — or attempt to collect a debt. 15 U.S.C. § 1692f. — 24 — 1 Subsection c, “Communication in connection with a debt,” governs when debt collectors may communicate with consumers: — 2 — Without the prior consent of the consumer given directly to the debt collector or the — 3 — express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collections of any debt . . . — 4 — (2) if the debt collector knows the consumer is represented by an attorney with — 5 — respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period — 6 — of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer[.] — 7 — 15 U.S.C. § 1692c. — 8 — Like the FDCPA, to bring claims under the WCAA and WCPA, a plaintiff must show: — 9 — “(1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest — 10 — impact; (4) injury to plaintiff in his or her business or property; [and] (5) causation.” Hangman — 11 — Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780 (1986). — 12 — From the same communications with Defendant, Plaintiff alleges violations of — 13 — Washington law for: (1) the unauthorized practice of law; (2) for communications in a manner — 14 — that were harassing, intimidating, threatening, or embarrassing to Plaintiff; and (3) for taking — 15 — actions Defendant could not legally take at the time the “threat” was made. Dkt. #1 at 5-8. — 16 — The Court agrees with Defendant and finds no violations of the above federal and state — 17 — provisions. The debt at issue was the same debt from the previous suit in state court, where — 18 — Plaintiff was represented by counsel. The Court finds it reasonable that Defendant and its — 19 — employee continued to believe Plaintiff was represented concerning the same debt. See Sylvester — 20 — v. Merchants Credit Corp., 2019 WL 6728854 at *2 (W.D. Wash. 2019) (finding that a debt — 21 — collector knew plaintiffs were represented by counsel because plaintiffs were represented by — 22 — counsel concerning the underlying debt in state court). This, as the various CPA and WCAA — 23 — provisions set out, protected Defendant from making prohibited ex parte communications, — 24 — 1 protected Plaintiff’s interests, and caused nothing more than a three-hour clarification of communications. The Court finds no genuine issue of material fact as to any false, misleading, — 2 — unauthorized, or unconscionable practices by Defendant in connection to collecting a debt. — 3 — Accordingly, the Court shall grant summary judgment to Defendant with respect to all of — 4 — Plaintiff’s claims. — 5 — IV. CONCLUSION — 6 — Having reviewed the parties’ filings and the remainder of the record, the Court finds and — 7 — ORDERS that Plaintiff’s Motion for Summary Judgment, Dkt. #18 is DENIED. Defendant’s — 8 — Motion for Summary Judgment, Dkt. #20, is GRANTED. Plaintiff’s claims against Defendant — 9 — are DISMISSED. This case is CLOSED. — 10 — — 11 — DATED this 14th day of August, 2024. — 12 — 13 A — 14 — RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —