United States District Court, D. Nevada
before the court is defendant Financial Business and Consumer
Solutions, Inc.'s (“Financial Solutions”)
motion for summary judgment. (ECF No. 38). Plaintiff Russell
Patton filed a response (ECF No. 42), to which Financial
Solutions replied (ECF No. 47).
instant action involves an allegation of unauthorized debt
collection in violation of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq. (“the
of 2011, an account was opened in Patton's name for a
credit card with Orchard Bank. (ECF No. 38, Ex. D). In July
of 2013, the account fell into default. Id. at Ex.
A. On January 6, 2014, Patton was mailed a letter from
Capital One describing Capital One's acquisition of
Orchard Bank and the subsequent rolling of the Orchard Bank
card into an account with Capital One. Id. at Ex. D.
From July of 2011 to February of 2014, Orchard Bank and
Capital One mailed monthly statements to Patton's home
address. Id. at Ex. A.
February of 2014, Patton's account was sent to
collections. Id. The unpaid amount for the January
3, 2014 - February 2, 2014, billing period was $503.27.
Id. The debt was subsequently transferred from
Capital One to Midland Funding (“Midland”). (ECF
No. 20 at 6). Midland then sent Patton's account
information to Financial Solutions to commence collection of
the debt. (ECF No. 47, Ex. 3).
February 5, 2016, Financial Solutions sent Patton a
collection letter in an attempt to collect the outstanding
debt from Patton. Id. at Ex. 1. The collection
letter stated that Patton owed $503.27. See Id. This
is the allegedly illegal communication which forms the basis
for the amended complaint. See (ECF No. 20).
November 30, 2016, Patton filed a complaint asserting that
the collection letter violated the FDCPA. (ECF No. 1). On May
4, 2017, Patton filed his first amended complaint. (ECF No.
20). In the instant motion, Financial Solutions moves for
summary judgment. (ECF No. 38).
Federal Rules of Civil Procedure authorize summary judgment
when the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to preclude summary judgment, the nonmoving party
must “set forth specific facts showing that there is a
genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by ...