DEFENDANT COLLECTO, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 1 

CIVIL NO. 3:14-CV-01422-ST 24397770\2

Melissa O’Loughlin White 

OSB No. 102294 

E-mail: mwhite@cozen.com 

Ryan J.P. Dyer 

admitted pro hac vice

E-mail: rdyer@cozen.com 

COZEN O'CONNOR 

999 Third Avenue, Suite 1900 

Seattle, WA 98104 

Telephone: 206.340.1000 

Toll Free Phone: 800.423.1950 

Facsimile: 206.621.8783 

Attorneys for Defendant Collecto, Inc. 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

CARLOS A. VASQUEZ-ESTRADA, 

Plaintiff, 

v. 

COLLECTO, INC., a foreign corporation, 

Defendant. 

Case No. 3:14-cv-01422-ST

DEFENDANT COLLECTO, INC.'S 

REPLY IN SUPPORT OF MOTION 

FOR SUMMARY JUDGMENT 

Oral Argument Requested: 10/7/2015 

Defendant Collecto, Inc. (“Collecto”) respectfully submits this reply memorandum in 

support of its Motion for Summary Judgment.1

// 

// 

// 

// 

 

1

 Dkt. 35. 

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I. ARGUMENT 

A. Collecto had a “Permissible Purpose” in Accessing Plaintiff’s Credit Score under 

FCRA Section 1681b(f). 

Plaintiff attempts to defeat summary judgment on the issue of whether Collecto obtained 

his credit score without a permissible purpose by arguing that (1) Collecto has not shown that it 

complied with § 1681b(f)’s certification requirement and (2) Collecto cannot possibly have had a 

permissible purpose since Plaintiff’s debt was the result of identity theft. As explained below, 

Plaintiff is wrong on both counts. 

First, Collecto does not have the burden to show that it complied with the certification 

requirements of § 1681b(f). The burden of proof at the summary judgment stage is on the same 

party who would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 

(1986). Plaintiff alleges that Collecto obtained his consumer report without a permissible 

purpose, in violation of 15 U.S.C. § 1681b(f).2

 Thus, the burden is on Plaintiff to identify 

evidence establishing a genuine issue of material fact as to whether Collecto failed to properly 

certify the request. See Celotex Corp., 477 U.S. at 323 (holding that it is not necessary for the 

movant-defendant to introduce evidence negating the plaintiff’s claim). Plaintiff ignores this 

burden and instead insists that Collecto must first come forward with evidence establishing that it 

properly certified its request for Plaintiff’s credit score. Plaintiff’s only excuse, buried in a 

footnote, is that Collecto failed to produce any certifications in response to his requests for 

production.3

 But Collecto stated in its responses to the relevant requests that it does not keep 

 

2 See Am. Compl. (Dkt. 23). Interestingly, Plaintiff only alleges that Collecto violated the “permissible purpose” 

provisions under § 1681b(f). See Am. Compl. ¶ 19. Plaintiff does not allege that Collecto violated the certification 

requirements under § 1681b(f). This in and of itself is enough to negate Plaintiff’s arguments against summary 

judgment on this issue. Nevertheless, assuming Plaintiff properly plead a violation of the certification prong, he still 

has failed to come forward with any evidence establishing a material issue of fact. 

3 See Pl.’s Opposition at p. 3, n. 1 (Dkt. 41). 

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records of such certifications nor is it required to under the FCRA.4

 Collecto did, in fact, 

produce the only document it possessed responsive to Plaintiff’s request, although the document 

contained only cursory information about the August 21, 2012 credit score request.5 In any 

event, Plaintiff fails to explain or cite any legal authority as to how his burden is somehow 

obviated by Collecto’s discovery responses. Indeed, it is not. Because Plaintiff cannot point to 

any evidence that Collecto failed to comply with the certification requirements under the FCRA, 

he cannot avoid summary judgment dismissal of his § 1681b(f) claims on this basis. 

Next, Plaintiff claims that Collecto did not have a permissible purpose in obtaining his 

credit score because he was never involved in the underlying credit transaction. Put another 

way, Plaintiff argues that because the AT&T debt was the result of identity theft, it was not a 

“credit transaction involving” him and, thus, there could never be a “permissible purpose” under 

the FCRA. As support, Plaintiff relies on the Ninth Circuit’s decisions in Andrews and Pintos. 

Both cases are distinguishable. In Andrews, the court was dealing with a “furnisher’s” separate 

and distinct duty to confirm a proper purpose under 15 U.S.C. § 1681b(a)(3). See Andres v. 

TRW, Inc., 225 F.3d 1063, 1067 (9th Cir. 2000). In Pintos, the court relied on the unique fact 

pattern in which the underlying debt arose from the consumer’s vehicle being involuntary 

towed/impounded in ultimately holding that the consumer was not “involved” in the credit 

transaction. See Pintos v. Pacific Creditors Ass’n, 565 F.3d 1106, 1113 (9th Cir. 2009). Neither 

holding is factually applicable here. But more to the point, the implications of Plaintiff’s theory 

are disconcerting: anytime a collection company pulls a credit score on a debt that is discovered, 

 

4 See 3d Declaration of Melissa O’Loughlin White (“3d White Decl.”), Ex. A. 5 See 3d White Decl., Ex. B. Plaintiff did not raise this issue in a meet-and-confer or motion to compel and made no 

effort whatsoever to questions Collecto’s 30(b)(6) witness, Ms. Catherine Belmore, on this issue. Having made a 

strategic decision not to obtain additional discovery on this issue, Plaintiff cannot now be permitted to use his own 

action as a sword against Collecto. 

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years later, to be the result of identity theft, it has necessarily violated the FCRA § 1681b(f). 

Plaintiff’s construction is incorrect, unworkable, and would lead to absurd results. 

The real touchstone in determining a permissible purpose is the intent of the entity 

obtaining the information. And rather than belabor this point any further, Collecto would simply 

and respectfully refer the Court to one of the numerous cases that has already dealt with the 

scenario at issue here. Specifically, the district court’s order in Crehin dealt with an 

indistinguishable situation in which the plaintiff claimed that the underlying debt did not belong 

to him: 

Although the complaint avers that no such debt existed, if Defendant “was 

attempting to collect” a debt, as the complaint states, Defendant’s actions would 

be permitted even if Plaintiff did not in fact have such a debt. Both the FCRA 

and the CCRAA focus on whether the entity pulling the credit report “intends” to 

use the information in connection with collecting a debt. See 15 U.S.C. § 

1681(a)(3)(A); Cal. Civ.Code § 1785.11(a)(3)(A). A good faith belief that a 

debt exists is thus sufficient to satisfy these provisions. See Trikas v. Universal 

Card Services Corp., 351 F. Supp. 2d 37, 42 (E.D.N.Y. 2005) (“[T]he plain 

language of [15 U.S.C. § 1681(a)(3)(A) ] . . . focuses on the intent of the party 

obtaining the consumer report.” (emphasis in original)); Korotki v. Attorney 

Services Corp., 931 F. Supp. 1269, 1276 (D. Md. 1996) (“[S]o long as a user has 

reason to believe that a permissible purpose exists, that user may obtain a 

consumer report without violating the FCRA.”); Myers v. Stoneleigh Recovery 

Assocs., 2012 WL 1356752 at *5–6 (E.D. Cal. Apr. 18, 2012) (dismissing

plaintiff's FCRA claim even though the complaint stated that plaintiff did not owe 

the debt at issue because the complaint also stated that defendant was attempting 

to collect a debt from plaintiff). 

Crehin v. ARS Nat. Servs., No. 8:13-cv-01497-SVW-JPRx, 2014 U.S. Dist. LEXIS 5487, at *5–6 

(C.D. Cal. Jan. 9, 2014) (emphasis added).6

 Here, there is no evidence that Collecto’s intent in requesting Plaintiff’s credit report was 

for a purpose other than attempting to collect on the AT&T Mobility debt. Instead, the evidence 

 

6 Cf. Thomas v. U.S. Bank, N.A., No. cv 05-1725-MO, 2007 U.S. Dist. LEXIS 17516, at *24 (D. Ore. Mar. 8, 2007) 

(holding that “where a furnisher tries to collect a debt it knows is not collectible, it does not act with the ‘inten[t] to 

use the information in connection with . . . collection’” (emphasis added, citation omitted)). It should also be noted 

that the plaintiff’s FCRA § 16819(f) claim in Crehin was dismissed under the more stringent Rule 12(b)(6) standard.

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establishes the opposite. Collecto’s 30(b)(6) witness, Ms. Catherine Belmore, testified that 

Collecto routinely obtains consumer’s credit scores to assess the collectability of each debt.7

 Ms. 

Belmore confirmed that this was precisely the case when Collecto obtained Plaintiff’s consumer 

report on August 21, 2012.8

 The undisputed evidence establishes that Collecto had a good faith 

believe that it was attempting to collect a valid debt when it obtained Plaintiff’s credit score. 

This is a permissible purpose under the FCRA. Accordingly, there is no question of material fact 

and Plaintiff’s FCRA § 1681b(f) claim must be dismissed.9

B. Plaintiff’s Section 1681s-2(b) FCRA Claims are Time-Barred. 

Plaintiff is incorrect in stating that the “dicta” is Drew does not apply to this case. In 

reality, the holding in Drew, and subsequent cases citing it, is dispositive: once a consumer 

provides a furnisher with information disputing a debt directly and subsequently learns that the 

debt remains, the consumer is deemed to have sufficient knowledge to realize that the error is 

attributable to an unreasonable investigation. See Drew, 690 F.3d at 1111. Whether or not a 

plaintiff is aware of the actual ACDV verification process is irrelevant. Instead, the two-year 

statute of limitations is triggered based on a plaintiff’s direct dispute with a furnisher coupled 

with the subsequent discovery that the faulty debt remains. See, e.g., Grigoryan v. Experian 

Info. Solutions, Inc., No. cv 13-07450 MMM (PLAx), 84 F. Supp. 3d 1044 (C.D. Cal. 2014);

Rogers v. Equifax Info. Servs. LLC, No. cv 14-1708-JFW (AGRx), 2015 U.S. Dist. LEXIS 16654 

(C.D. Cal. Jan. 13, 2015). 

 

7 See White Decl., Ex. A, at pp. 20-21, 38-40 (Dkt. 36). 

8 See White Decl., at pp. 95-96. 

9

 Plaintiff also claims that Hasbun is inapplicable because it only applies to a “judgment creditor.” See Pl.’s Opp. at 

p. 6. This is incorrect. Properly read, Hasbun generally states that the collection of a debt is considered to be the 

“collection of an account” as that term is used in § 1681b(a)(3)(A). See Hasbun v. County of Los Angeles, 323 F.3d 

801, 803 (9th Cir. 2003). The court in Hasbun did go on to hold that when a debt has been judicially established, as 

is the case with a “judgment creditor,” a permissible purpose is established as a matter of law. See id. at 804–05; see 

also Pintos, 565 F.3d at 1113–14. But that specific holding did not serve to negate the general proposition that a 

collection of a debt may be considered the “collection of an account.” 

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The undisputed evidence establishes that Plaintiff became aware that Collecto was 

reporting the AT&T Mobility debt on his credit report in October 2011.10 Plaintiff claims to 

have sent at least two dispute letters directly to Collecto on October 27, 2011 and November 9, 

2011.11 In those letters, Plaintiff detailed the circumstances surrounding his identity theft and 

expressed his belief that the AT&T debt was fraudulent and should be removed from his credit 

report.12 Collecto received one of these letters on December 2, 2011.13 On February 3, 2012, 

Plaintiff received a collection letter from a different company, Enhanced Recovery Company, 

LLC, attempting to collect on the same $659.56 AT&T debt.14 This letter notified Plaintiff that 

the allegedly fraudulent debt continued to exist despite his direct dispute to Collecto. The mere 

fact that the letter came from Enhanced Recovery Company and not Collecto does not negate 

this. Thus, under Drew, Plaintiff’s receipt of the February 3, 2012 collection letter triggered the 

two-year statute of limitations. 

“[S]tatutory limitation periods are designed to promote justice by preventing surprises 

through the revival of claims that have been allowed to slumber until evidence has been lost, 

memories have faded, and witnesses have disappeared.” Am. Pipe & Constr. Co. v. Utah, 414 

U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) quoted in Hells Canyon Pres. Council v. 

U.S. Forest Serv., 593 F.3d 923, 933-34 (9th Cir. 2010) (internal quotation marks omitted)). 

Plaintiff could have and should have acted diligently to assert his FCRA claims, but failed to do 

so. Under these circumstances, compelling Collecto to defend itself against stale claims would 

defeat the important interests served by statute of limitations in the FCRA. Because he waited 

 

10 See White Decl., Ex. H, at p. 43. 11 See id., Ex. F. 12 See id. 

13 See id., Ex. A, at pp. 71-73; Ex. B, at “COLL 0019.” 14 See id., Ex. F; Ex. H, at pp. 69-72. 

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too long to file suit, Plaintiff’s FCRA claims based on the 2011 ACDV notices are barred as a 

matter of law and cannot serve as a basis for liability under § 1681s-2(b). 

C. Collecto’s Investigation in Response to the 2013 ACDV Was Reasonable as a Matter 

of Law. 

As stated in Collecto’s Motion, an investigation under the FCRA, “is not necessarily 

unreasonable because it results in a substantive conclusion unfavorable to the consumer, even if 

that conclusion turns out to be inaccurate.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 

1147, 1161 (9th Cir. 2009). The touchstone is “whether the furnisher’s procedures were 

reasonable in light of what it learned about the nature of the dispute from the description in the 

CRA’s notice of dispute. Id. (citing Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th 

Cir. 2005)). Reasonableness is not a question for the trier of fact where, as here, “only one 

conclusion about the conduct’s reasonableness is possible.” Id. at 1157 (citing In re Software 

Toolworks Inc., 50 F.3d 615, 622 (9th Cir. 1994)). 

Plaintiff’s reliance on the Ninth Circuit’s decision in Gorman is misplaced, and taken out 

of context. In Gorman, the court separately analyzed the reasonableness of three distinct types 

ACDV notices received by the defendant. The first ACDV notice, and the one applicable here, 

contained no specific information regarding the dispute and requested only that the furnisher 

“[v]erify all account information.” Gorman, 584 F.3d at 1157. No mention was made of “fraud” 

or “identity theft.” See id. In response to this notice, the court concluded that the furnisher 

conducted a reasonable investigation as a matter of law when it merely confirmed the 

consumer’s identifying information. See id. at 1158. The second types of ACDV notices in 

Gorman also contained only cursory dispute information but specifically mentioned “fraudulent 

charges.” Id. The court again held that the investigation was reasonable but this time noted that 

the furnisher took additional steps to review its internal account notes for evidence of fraud in 

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response to the specifics provided in the ACDV. See id. at 1158–59. The third type of ACDV 

notice did provide the furnisher with specific information regarding the nature of the consumer’s 

dispute. See id. at 1159. The Gorman court specifically relied on this fact in holding that 

additional steps may be required beyond those taken in response to the first two sets of ACDV 

notices. See id. Specifically, “[s]imply verifying that the basic reported account data matched 

MBNA’s internal records may not have been a reasonably sufficient investigation of this 

particular dispute.” Id. And it was in analyzing this third type of dispute that the Gorman court 

cited the Fourth Circuit’s holding in Johnson.

In the present case, the ACDV notice received by Collecto were identical in virtually 

every respect to the first type of ACDV analyzed in Gorman. The February 18, 2013 ACDV 

notice did not contained any mention of “fraud” or “identity theft”. And it provided no specifics 

that could have prompted Collecto to undertake a more thorough investigation. Accordingly, 

Collecto was under the lessened duty to review the account information it received from AT&T 

and compare it with the consumer’s information provided in the ACDV, which is precisely what 

Collecto did. Collecto could not have reasonably been expected to undertake a more thorough 

investigation and its efforts to verify the account information based on its own records was 

appropriate under the circumstances. Thus, as in Gorman, summary judgment confirming as a 

matter of law the reasonableness of Collecto’s investigation in accordance with the FCRA’s 

requirements is warranted. 

D. Having Refused to Disclose His Confidential Settlements with Other Parties, 

Plaintiff is Not Entitled to a Presumption That the Settlement Terms Support His 

Damages Claims. 

Plaintiff has not and cannot prove a nexus between Collecto’s actions and his claimed 

damages in order to establish the required elements of causation and damages under the FDCPA 

and the FCRA. See Dawson v. Wash. Mut. Bank, 390 F.3d 1139, 1149-50 (9th Cir. 2004) 

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(FDCPA); Saenz v. Trans Union, LLC, 621 F. Supp. 2d 1074, 1082 (D. Or. 2007) (FCRA). As 

discussed in Collecto’s Motion, Plaintiff himself testified that his alleged damages were caused 

by non-parties (not Collecto), and that those nonparties already, in his assessment, adequately 

compensated him. Collecto formally requested discovery about those settlements, but Plaintiff 

refused to provide it. Collecto then asked this Court to order Plaintiff to produce that evidence, 

but Collecto’s request was denied.15 

Plaintiff’s response on the causation issue is to claim that his proof of causation is in 

selected portions of the withheld settlements. But Plaintiff’s refusal to disclose the settlement 

evidence renders that evidence inadmissible and, as a result, not properly before this Court on 

summary judgment. See generally Chao v. Westside Drywall, Inc., 709 F. Supp. 2d 1037, 1050 

(D. Or. 2010), as amended (May 13, 2010) (citing FRCP 56(e)). Instead, Plaintiff is limited to 

use of the evidence he disclosed in discovery that is admissible at trial; under no circumstances 

can he be permitted to rely upon selective portions of that withheld evidence to defeat Collecto’s 

summary judgment motion. As it was Plaintiff’s strategic decision to refuse to disclose any 

information about those settlements, he cannot rely on his own one-sided characterizations of 

those same settlements in an effort to meet his heavy burden of proof. 

Plaintiff’s self-serving statements made after the close of discovery and attorney 

arguments should be stricken and/or disregarded. The presumption to be applied, if any, is that 

the evidence Plaintiff withheld does not support his causation argument. See generally Glover 

v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (explaining, in spoliation context, that short of 

excluding evidence, a trial court also has the broad discretionary power to draw an adverse 

inference from the unavailable evidence). In the alternative, if evidence of the other settlements 

is considered, then this Court should compel Plaintiff to produce to Collecto all evidence of the 

 

15 See Aug. 8, 2015 Minute Order (Dkt. 32). 

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CRA settlements, including all terms of the confidential settlement agreements, and provide 

Collecto the opportunity to respond to Plaintiff’s one-sided characterizations. See generally 

Jaramillo v. Ford Motor Co., 116 F. App’x 76, 77 (9th Cir. 2004) (“Invited error occurs when [a 

party] opens the door to objectionable testimony by introducing it[.]”). 

Based on the evidence that Collecto was allowed to develop during discovery, namely 

Plaintiff’s own deposition testimony, the only conclusion to be drawn is that Plaintiff has been 

adequately compensated for his damages. Under these circumstances, no “nexus” can possibly 

be established and, consequently, one of the required elements of the FCRA and the FDCA 

(causation) cannot be established as a matter of law. Accordingly, summary judgment is 

warranted. 

II. CONCLUSION 

In short, Plaintiff has failed to come forward with evidence creating a genuine issue of 

material fact for trial. Accordingly, Collecto respectfully requests that the Court grant its Motion 

for Summary Judgment and dismiss Plaintiff’s claims. 

DATED: October 2, 2015 COZEN O'CONNOR 

By: /s/ Melissa O’Loughlin White 

Melissa O’Loughlin White 

OSB No. 102294 

E-mail: mwhite@cozen.com 

Ryan J.P. Dyer 

admitted pro hac vice

E-mail: rdyer@cozen.com 

999 Third Avenue, Suite 1900 

Seattle, WA 98104 

Telephone: 206.340.1000 

Toll Free Phone: 800.423.1950 

Facsimile: 206.621.8783 

Attorneys for Defendant Collecto, Inc. 

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CERTIFICATE OF SERVICE 

I hereby certify that on October 2, 2015, I electronically filed the foregoing document 

with the Clerk of the Court using the CM/ECF system which will send notification of such filing 

to the following: 

Robert S. Sola rssola@msn.com 

Shidon B. Aflatooni saflatooni@outlook.com 

DATED this October 2, 2015. 

COZEN O'CONNOR 

By: /s/ Melissa O’Loughlin White 

Melissa O’Loughlin White 

OSB No. 102294 

E-mail: mwhite@cozen.com 

999 Third Avenue, Suite 1900 

Seattle, WA 98104 

Telephone: 206.340.1000 

Toll Free Phone: 800.423.1950 

Facsimile: 206.621.8783 

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