THOMAS S. ZILLY, District Judge.
THIS MATTER comes before the Court on motions for summary judgment brought by defendant Daniel N. Gordon, P.C., docket no. 60, and defendant Midland Funding, LLC, docket no. 57. Having reviewed all papers filed in support of, and in opposition to, each motion, the Court enters the following order.
On July 30, 2010, Capital One Bank (USA), N.A. ("Capital One") "charged off" debt in the amount of $5,025.54 owed to it by plaintiff Lisa Grochowski, formerly known as Lisa Wallace. Newton Decl. at ¶¶ 5 & 9, Ex. A to Radbil Decl. (docket no. 66-1);
Equable Ascent Financial in turn sold the debt to defendant Midland Funding, LLC ("Midland") on May 14, 2012. Minford Dep. at 14:16-15:21, Ex. C to Rivera Decl. (docket no. 58-1). On June 1, 2012, Midland Credit Management, Inc. ("MCM"), which is not a party to this case, sent a notice to plaintiff indicating that Midland had acquired the Capital One debt, stating that the current balance was $5,025.54, and announcing a payment due date of July 16, 2012. Ex. B to Complaint (docket no. 1-2). The notice advised plaintiff that "[b]ecause of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater," and it provided a telephone number through which plaintiff could obtain an exact payoff amount or further information.
The notice also included the statutorily required warning that "[u]nless you notify MCM within thirty (30) days after receiving this notice that you dispute the validity of the debt, or any portion thereof, MCM will assume this debt to be valid."
On September 24, 2012, defendant Daniel N. Gordon, P.C. (the "Gordon Firm"), a law firm located in Eugene, Oregon, sent a letter to plaintiff, indicating that it had "been retained with the authority to file a lawsuit" against her, but that "at the time of the writing of this letter, no decision has been made whether or not we will file a lawsuit." Ex. D to Complaint (docket no. 1-4). The letter further stated:
Plaintiff commenced this putative class action on February 22, 2013. The gravamen of her claims under federal and state law is that Midland had no right to charge interest at the state statutory rate, and that the Gordon Firm's correspondence with her therefore violated various provisions of the FDCPA and was "unfair or deceptive" within the meaning of Washington's Consumer Protection Act ("CPA"). Both defendants move for summary judgment as to the merits of plaintiff's claims concerning the accrual of interest, and Midland further argues that it is not a "debt collector" within the meaning of the FDCPA and is not vicariously liable for the actions of the Gordon Firm. The Court addresses this latter issue first, before discussing the merits of plaintiff's claims.
A. Standard for Summary Judgment
The Court shall grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.
B. Claims Against Midland
In moving for summary judgment, Midland contends that it is not a "debt collector" within the meaning of the FDCPA and is therefore not subject to the provisions of the statute. This argument lacks merit. Because Midland acquired plaintiff's debt after it was in default, Midland is a "debt collector" as defined in the FDCPA.
Plaintiff, however, has not pleaded and has not presented any evidence of a direct action taken by Midland that violated the FDCPA. Instead, plaintiff's claims against Midland are premised on the theory that Midland is vicariously liable for the conduct of the Gordon Firm. In support of this proposition, plaintiff offers a copy of the Collection Agreement dated October 6, 2006, between MCM and the Gordon Firm, and she argues that "MCM controlled nearly every aspect of [the Gordon Firm's] conduct regarding its efforts to collect Ms. Grochowski's debt." Pla. Resp. at 5 (docket no. 66); Ex. B to Radbil Decl. (docket no. 66-2). MCM, however, is not a party to this action, and plaintiff has provided no basis for imputing to Midland any principal/agent or attorney/client relationship between MCM and the Gordon Firm.
C. Claims Against the Gordon Firm
Plaintiff contends that, in "charging off" plaintiff's debt, Capital One waived its right to collect interest at the contractual rate and, as a result, Midland is not entitled to interest at the state statutory rate. The Court is persuaded that the "charge off" itself did not operate to waive interest at the state statutory rate,
For the foregoing reasons, the Court ORDERS:
(1) Midland Funding, LLC's motion for summary judgment, docket no. 57, is GRANTED in part as to vicarious liability, and plaintiff's claims against Midland Funding, LLC are DISMISSED with prejudice;
(2) Daniel N. Gordon, P.C.'s motion for summary judgment, docket no. 60, is DEFERRED and RENOTED to May 16, 2014; the parties shall file supplemental briefs on or before the new noting date; and
(3) Plaintiff's motion to certify class, docket no. 47, is RENOTED to May 16, 2014.
IT IS SO ORDERED.