IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RIGOBERTO PORRAS, 

Plaintiffs, 

v. 

VIAL FOTHERINGHAM LLP and 

ANDREA MONTAG, 

Defendants. 

BRET A. KNEWTSON 

3000 N.W. Stucki Place 

Suite 230 f'rl 

Hillsboro, Oregon 97214 

(503) 846-1160 

MARK G. PASSANNANTE 

Broer & Passannante, PS 

1001 S.W. Fifth Avenue 

Suite 1220 

Portland, Oregon 97204 

(503) 294-0910 

Attorneys for Plaintiff '. -- ~ 

1 - OPINION AND ORDER 

3:13-cv-00699-BR 

OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 1 of 39
SHANE P. SWILLEY 

ROBERT E. SABIDO 

Cosgrave Vergeer Kester, LLP 

500 Pioneer Tower 

888 S.W. Fifth Avenue 

Portland, Oregon 97204 

(503) 323-9000 

Attorneys for Defendants 

BROWN, Judge. 

This matter comes before the Court on Plaintiff's Motion 

(#103) for Partial Summary Judgment and Defendants' Motion (#109) 

for Partial Summary Judgment. 

For the reasons that follow, the Court GRANTS in part and 

DENIES in part Plaintiff's Motion for Partial Summary Judgment 

and GRANTS in part and DENIES in part Defendants' Motion for 

Partial Summary Judgment. 

BACKGROUND 

This once-straightforward debt-collection matter that began 

in 2009 and initially revolved around the nonpayment of less than 

$1,000 in homeowners' association assessments is now before this 

Court on the parties' Cross-Motions for Partial Summary Judgment 

as to Plaintiff's unfair debt-collection practices claims in 

which Plaintiff asserts he is entitled to economic, noneconomic, 

and punitive damages well in excess of $1,000,000. What should 

have been resolved by the parties professionally and 

2 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 2 of 39
pragmatically on the then-uncomplicated issues is now before this 

Court as a two-year-old unfair debt-collection practices battle 

royale in which the parties' claims are myriad and the attorneys' 

meters continue to run. 

The following facts are undisputed and derived from the 

parties' submissions on summary judgment: 

In October 2004 Plaintiff purchased a home in the Oak Hill 

Settlement in Forest Grove, Oregon. Oak Hill is a planned 

community development created in 2003 by Skyline Development, 

Inc. Skyline filed a Declaration of Covenants, Conditions, and 

Restrictions for Oak Hill (CCRs) with Skyline named as the 

Declarant and signed by David Huttula as President of Skyline. 

The CCRs created the Oak Hill Settlement Owners' Association (the 

HOA) and reserved to Skyline administrative control of the HOA 

and the right to appoint between one and three persons to serve 

as the HOA's Interim Board of Directors to govern the HOA. 

Under the CCRs all purchasers of property in the Oak Hill 

Settlement become members of the HOA. Notice of a meeting of the 

Board of Directors "shall be posted at a place or places on the 

propertyu at least three days prior to the meeting or otherwise 

provided by a method reasonably calculated to inform lot owners 

of the meeting. 

All members of the HOA are responsible for paying periodic 

assessments established by the HOA. In addition, special 

3 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 3 of 39
assessments may be ordered by a majority vote of the HOA's Board 

of Directors. Assessments collected by the HOA are to be used 

"solely for the operation, care and maintenance of the Oak Hill 

Settlement" and are primarily used for HOA administration, 

insurance, management, and operation and maintenance of common 

areas within Oak Hill. Although none of the HOA assessments are 

used for any owner's individual lot, each owner in Oak Hill has 

an interest in the common areas appurtenant to the owner's lot. 

Article 10.8 of the CCRs contains provisions regarding an 

owner's default in payment of HOA assessments. If a lot within 

Oak Hill is owned by multiple persons, the owners of the lot are 

jointly and severally liable for unpaid assessments. The HOA 

Board of Directors has the power to adopt a resolution to impose 

late fees, fines, and penalties for delinquent HOA assessments. 

If at any time any assessment is delinquent, the HOA, "by 

and through its Board or any management agent," may file a lien 

against the delinquent owner's lot. After a lien is filed, "such 

lien shall accumulate all future assessments or installments, 

interest, late fees, penalties, fines, attorneys' fees (whether 

or not suit or action is instituted) and other appropriate costs 

properly chargeable" to the owner by the HOA until such amounts 

are fully paid. 

On February 27, 2007, Huttula signed the Bylaws of Oak Hill 

Settlement in which Huttula is identified as "President" of the 

4 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 4 of 39
HOA. Although there is not any evidence in the record concerning 

when Huttula was appointed as President of the HOA, the HOA was 

under the control of the ftDeclarantn Skyline and Huttula was 

President of Skyline during the relevant period. 

The HOA engaged Northwest Community Management Company to 

serve as the management company for the HOA. Huttula signed that 

contract on behalf of the HOA. The contract includes a schedule 

of fees that Northwest Community Management charges the HOA for 

particular services, including a schedule of fees specifically 

relating to collection of unpaid HOA assessments. For services 

that are not specifically listed, the fee schedule provides such 

services will be billed based on listed rates for the individual 

components of the service. 

On April 7, 2009, Huttula, as President of the Board of 

Directors, signed a resolution concerning collection of unpaid 

HOA assessments {Collection Resolution) . The Collection 

Resolution describes the procedures to be followed in collecting 

unpaid HOA assessments and provides "all legal fees and costs 

incurred in collection of a delinquent account shall be assessed 

against the delinquent Owner and shall be collected as an 

assessment.n There is not any evidence in the record as to 

whether members of the HOA were given notice of the Collection 

Resolution. That same day Huttula signed on behalf of the HOA an 

agreement with Vial Fotheringham to represent the HOA in 

5 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 5 of 39
collecting delinquent assessments. 

As noted, Plaintiff purchased a home in Oak Hill in October 

2004. Plaintiff fell behind on his HOA assessments on April 1, 

2009, and was sent a First Notice of Default on May 1, 2009. 

Plaintiff missed another HOA assessment on July 1, 2009. 

On September 25, 2009, the HOA filed a lien on Plaintiff's 

property consisting of $158.00 in unpaid assessments, $62.00 in 

recording and mailing costs, and $190.00 in collection charges 

for a total of $410.00. 

On December 7, 2009, Vial Fotheringham sent Plaintiff a 

letter informing him that his debt had increased to $837.24, 

including $489.00 in past-due assessments, late fees, and 

interest and $348.24 in attorneys' fees and collection costs. 

The letter instructed Plaintiff to direct all communication and 

payments to Vial Fotheringham and advised Plaintiff that Vial 

Fotheringham would assume the debt was valid unless Plaintiff 

notified Vial Fotheringham within 30 days that the debt was 

disputed. There is not any evidence in the record that Plaintiff 

communicated to Vial Fotheringham that he disputed the validity 

of the debt within 30 days of the letter. Moreover, Plaintiff 

continued to miss making his HOA assessment payments. 

On June 1, 2010, Vial Fotheringham sent Plaintiff another 

letter informing him that Vial Fotheringham intended to commence 

a lawsuit against Plaintiff unless he paid the back assessments 

6 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 6 of 39
in full or made arrangements for a payment plan within 10 days of 

the date of the letter. The June 1, 2010, letter also advised 

Plaintiff that the amount owing had grown to $1,253.16 and 

included $674.28 in past-due assessments, late fees, and interest 

and $578.88 in attorneys' fees and collection costs. 

Sometime in June 2010 Plaintiff and Vial Fotheringham agreed 

Plaintiff would pay $120.00 per month until the debt was settled 

and Vial Fotheringham would receive a $25.00 monthly fee for 

processing and maintaining the payment plan. As a condition of 

entering into the payment plan, Plaintiff was required to sign 

and to return to Vial Fotheringham a confession of judgment that 

Vial Fotheringham could enter against Plaintiff in the event of a 

default. Plaintiff did not sign and return the confession of 

judgment. Beginning in June 2010, however, Plaintiff made four 

monthly payments of $120.00 each. Vial Fotheringham charged the 

$25.00 payment-plan fee when Plaintiff made the September and 

October 2010 payments. 

Plaintiff's payments ceased in November 2010. On 

November 24, 2010, Vial Fotheringham sent Plaintiff another 10-

day notice letter informing him that Vial Fotheringham intended 

to proceed with a lawsuit unless Plaintiff paid the money he owed 

in full or made arrangements for a payment plan. On November 24, 

2010, the amount owed was $1,539.70, which included $696.14 in 

past-due assessments, late fees, and interest and $843.56 in 

7 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 7 of 39
attorneys' fees and collection costs. 

On December 29, 2010, Vial Fotheringham filed a lawsuit on 

behalf of the HOA in Washington County Circuit Court seeking all 

assessments and charges that Plaintiff owed to the HOA. Although 

Plaintiff was properly served with the complaint, he did not 

answer or otherwise make an appearance. Accordingly, the court 

entered a default judgment on May 17, 2011, in the amount of 

$2,150.47, including $762.35 in principal, $17.62 in "judgment 

interest," $620.50 in court costs, and $750.00 in attorneys' 

fees. The $750.00 the court awarded as attorneys' fees 

represented a write-down of $531.48 from the $1,281.48 that the 

HOA requested. The judgment permitted the HOA to seek a 

supplemental judgment for recovery of any attorneys' fees 

incurred in collection of the judgment. The judgment included 

all assessments and late fees owed by Plaintiff to the HOA 

through May 4, 2011. 

By September 2011 Vial Fotheringham had collected the full 

amount of the judgment by garnishing Plaintiff's wages. 

Sometime in the fall or winter of 2011 Plaintiff decided to 

sell his home in Oak Hill. 

On October 13, 2011, Plaintiff contacted Vial Fotheringham 

to inquire whether he owed any more money. Vial Fotheringham 

informed Plaintiff that he still owed a total of $1,679.85 in 

post-judgment accruals, including $233.37 for assessments and 

8 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 8 of 39
related charges and $1,446.58 for attorneys' fees and costs. 

Plaintiff offered to pay that amount with a payment plan under 

which Plaintiff would pay $100.00 per month, but the HOA insisted 

Plaintiff pay $200.00 per month. The parties could not agree on 

a new payment plan. 

On December 9, 2011, the HOA, through Vial Fotheringham, 

submitted a motion for a supplemental judgment seeking $1,137.92 

in additional attorneys' fees and costs incurred in collecting 

the judgment. The record does not indicate why this number is 

lower than the amount that Vial Fotheringham demanded from 

Plaintiff in Vial Fotheringham's October 13, 2011, letter, but 

the $541.93 difference between the October 13, 2011, accounting 

and the amount sought in the December 9, 2011, motion is roughly 

the same (with interest) as the Washington County Circuit Court's 

May 2011 reduction of $531.48 in attorneys' fees. On December 

14, 2011, Plaintiff, through his counsel Bret Knewtson (who also 

represents Plaintiff in this matter), objected to the HOA's 

motion for supplemental judgment. On December 20, 2011, however, 

the court entered a supplemental judgment for the full amount 

requested by the HOA. 

On December 21, 2011, unaware that the court had entered a 

supplemental judgment the day before, Knewtson and Defendant 

Andrea G. Montag, then an attorney at Vial Fotheringham, engaged 

in settlement discussions. After the discussions were held, 

9 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 9 of 39
Montag sent Knewtson an email memorializing a "counteroffer" by 

which Plaintiff would pay a total of $733.37 ($233.37 in 

assessments and related fees and $500.00 in attorneys' fees and 

costs) over the course of two months and in two separate 

payments. In addition, Montag stated Plaintiff would be 

responsible for payment of all future HOA assessments beginning 

January 1, 2012. Montag instructed Knewtson to respond to her by 

December 30, 2011, with Plaintiff's decision about whether to 

accept or to reject the offer. 

Knewtson responded to Montag's counteroffer with his own 

counteroffer: Plaintiff would pay the $733.37, but he would only 

have to make a $200 payment in January and pay the remainder 

before the end of April 2012. In addition, Knewtson agreed 

Plaintiff would pay "the $48.50 [HOA) due for the regular 

Jan[uary) to April dues at the beginning of January." Although 

the HOA had previously notified all owners that the 2012 

assessments had increased to $70.00 per quarter, Montag did not 

bring this fact to Knewtson's attention. 

Montag replied, however, that she was reluctant to accept a 

counteroffer by which Plaintiff could have until the end of April 

to complete payment because of the substantial reduction in 

attorneys' fees offered by Vial Fotheringham. 

Knewtson responded to Montag by disagreeing that an April 

payment deadline was too far away. Montag replied, however, that 

10 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 10 of 39
if Plaintiff wanted to wait until April to finish paying, he 

would have to set up a plan that would cost approximately $350.00 

with a $25.00 per month maintenance fee. Montag again offered to 

permit Plaintiff to pay the $733.37 in two installments in 

January and February without the additional expense of setting up 

a formal payment plan. 

Knewtson did not respond until Friday, December 30, 2011, 

nine days after the initial email exchange. At that time 

Knewtson informed Montag that Plaintiff ftwill make the two 

payments. Half, $366.69 in Jan[uary], and $366.69 in 

Feb[ruary] ." 

On Tuesday, January 3, 2012, Montag wrote: ftTo clarify, if 

accepted, we will reduce this agreement to writing and your 

Client must timely make these payments on an agreed upon date 

. via certified funds." Knewtson responded that the dates 

for payment would be January 30, 2012, and February 29, 2012. 

On January 4, 2012, Montag responded: ftOne more thing, 

we'll need to file a Motion to Stay the proceedings until the 

funds we receive from your Client clear. I'll incorporate it 

into the Settlement Agreement. Let me know what you decide." 

Knewtson replied seven minutes later: fti am not sure what you 

mean by 'decide.' If you are asking if I agree to the motion to 

stay proceedings I don't see the point of that. The agreement 

would null the motion." Montag responded: fti'll prepare the 

11 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 11 of 39
Settlement Agreement and send it to you. Does that work?" 

Knewtson replied "Thanks." 

Two days later (January 6, 2012) Montag emailed Knewtson to 

inform him that Montag had just received notice from the court 

that it had entered the supplemental judgment in favor of the 

HOA. Montag informed Knewtson that she would "incorporate that 

fact into any settlement agreement. You can expect it today." 

Approximately two hours later Montag sent the settlement 

agreement to Knewtson and stated: "I'll expect to receive it 

from you, signed by your Clients, promptly." 

Approximately 30 minutes later Knewtson replied: "Please 

forward what the court sent you on the fees." Approximately one 

hour later Montag emailed the supplemental judgment to Knewtson. 

Nearly two weeks passed without comment from Knewtson. 

On the morning of January 19, 2012, Montag emailed Knewtson 

again: 

It has been nearly two weeks since I e-mailed you the 

Settlement Agreement as well as the Notice of 

Supplemental Judgment. I am not in receipt'of a signed 

Agreement from your Client. That said, I will assume 

that your Client has not agreed to the terms of the 

Settlement and my only recourse is resume our 

collections efforts. If this is not the case, I expect 

a response from you no later than the close of business 

today. 

That afternoon Knewtson responded: 

My position is that we have an agreement that he will 

make the two payments. 

We never discussed waiving claims he has against the 

12 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 12 of 39
HOA or its agents so your settlement agreement does not 

reflect our agreement. I think he has to appeal the 

supplemental judgment unless you voluntarily vacate it 

and withdraw your motion for fees. I won't be back 

till [sic] 4. Let me know your position. 

Shortly after 4:00p.m. that day Montag responded: 

Settlement Agreement that I sent you is part of our standard 

agreement. Does your Client care to strike that clause and does 

your Client otherwise agree to the other terms of the Agreement 

itself?" 

One hour later Knewtson replied: 

The condition that if he misses a payment you get your 

judgment is not agreeable. As well as para[graph] 2.4 

- he misses a future assessment payment all amounts are 

forgiven? What amounts? We never discussed any of 

that. 

Our deal is he makes the payments on the agreed amount 

and if he does not then you can sue him for whatever is 

left on the balance of the agreed amount. 

Approximately ten minutes later Montag responded: 

The condition that if he misses a payment is 

essentially the same as us executing our judgment as it 

stands and protects my Client against the prospect that 

your Client fails to make a payment. 

Paragraph 2.4 also protects my Client against the 

prospect that your Client fails to pay future 

assessments. Remember, your Client is already 

obligated to pay assessments. All this clause does is 

add another layer of protection for my Client. 

Please review the Agreement in its entirety and let me 

know if and what your Client agrees to and present a 

revised Agreement that my Client may consider. 

Given that it has taken you nearly two weeks to 

respond, kindly respond promptly so that we may 

otherwise resolve this matter. 

13 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 13 of 39
The next afternoon (Friday, January 20, 2012) Plaintiff paid 

$48.50 to Vial Fotheringham as payment of his first-quarter 2012 

HOA fees. This payment of $48.50 was consistent with Knewtson's 

representation to Montag on December 21, 2011, that Knewtson 

believed the quarterly assessments for 2012 were $48.50. As 

noted, although Montag did not correct Knewtson, his belief is 

inconsistent with the HOA's prior notice to all owners in Oak 

Hill (presumably including Plaintiff) that the 2012 quarterly 

assessments were $70.00. 

That same day Knewtson emailed to Montag a document that 

contained Plaintiff's understanding of the agreement. That 

document is not part of the record before this Court on summary 

judgment. 

On Monday morning (January 23, 2012) Montag responded: 

If your Client makes the payments on time and the funds 

clear, there should not be a problem with the Agreement 

I drafted and the clauses you addressed, below, would 

not be activated. Regarding the provision that your 

Client must pay the entire amount of the judgment if 

your Client fails to perform, I must protect my Client 

from the prospect that your Client will again otherwise 

fail to perform its promises. Regarding the provision 

that your Client keep current on its future 

assessments, I must again protect my Client from the 

prospect that your Client again otherwise fails to 

perform its promise to keep current with assessments 

that it is already obligated to pay. In the Agreement 

you presented, your Client asks to be released from any 

liability through December 31, 2011 even if your Client 

fails to perform as agreed upon. I cannot expose my 

Client to additional harm that it may experience as a 

result of your Client failing to perform its 

obligations. Your Client's failure to pay its 

assessments and related fees are the sole reason your 

14 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 14 of 39
Client's account was turned over to this Firm for 

collections and a lawsuit ensued. There are only two 

payments here, for an amount far less than the judgment 

we already obtained. The terms of the Agreement are 

fair, the clauses do not change the material, agreed 

upon terms. In the interest of settling the matter and 

to avoid the back and forth, let's proceed with the 

Agreement I drafted. 

Kindly respond promptly so that we may resolve this 

matter. 

Knewtson did not immediately respond to Montag's email. 

Two days later (January 25, 2012) Montag emailed Knewtson 

again stating that she would ~like to get this matter settled no 

later than close of business on Friday, January 27, 2012. If we 

do not receive the signed Agreement from your Client by then, it 

is null and void." 

Knewtson did not immediately respond to Montag's email. 

That same day (January 25, 2012), however, Plaintiff 

(represented by Knewtson) appealed the Washington County Circuit 

Court's entry of the supplemental judgment. 

The next afternoon (January 26, 2012) Montag emailed 

Knewtson: 

Our offices received a money order from your Client in 

the amount of $366.68. No documents accompanied it and 

there is nothing in the memo line to indicate what the 

payment is for. We will not process the check until we 

have received the signed Settlement Agreement from your 

Client, which I assume should accompany it. 

Rather than reply in a manner consistent with a genuine 

desire to clarify the record and to resolve his client's debt, 

the following morning Knewtson responded: ~If you had to guess, 

15 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 15 of 39
what would you guess the money is for?" Lat'er that afternoon 

Knewtson emailed to Montag a proposed Settlement Agreement and 

Release, which provided: 

In exchange for $733.37 paid by defendants to 

plaintiff, plaintiff [the HOA] releases defendants 

[Porras and Porras's wife, Maria Gonzalez] from any 

liability existing through December 31st, 2012 and 

plaintiff releases any liens against property of 

defendants. Payment: Porras and Gonzalez's 

will make two (2) payments by certified funds including 

money orders, with the first of $366.69 received no 

later than January 31, 2012 and the second of $366.69 

received no later than February 29,2012. 

Approximately two hours later Montag responded: "This is 

not the Agreement I sent you." 

Knewtson did not respond to Montag's email. 

On January 30, 2012, Plaintiff located a buyer for his home 

and opened an escrow account at First American Title Insurance 

Company of Oregon. 

On approximately February 3, 2012, First American requested 

the HOA and Vial Fotheringham provide to First American an 

accounting of the amounts that remained owing on the lien on 

Plaintiff's home. 

On February 6, 2012, The Management Trust (formerly 

Northwest Community Management), on behalf of the HOA, sent a 

summary of the amounts due and a ledger to Vial Fotheringham in 

which The Management Trust represented that $451.91 was due to 

the HOA through escrow even though only $326.91 was required to 

release the lien. The remaining $125.00 appears to be a transfer 

16 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 16 of 39
fee paid to the HOA by the buyer of Plaintiff's home. 

On February 14, 2012, Vial Fotheringham recorded Plaintiff's 

payment of $366.69 on its ledger of Plaintiff's account and in 

its trust-account records. 

On February 21, 2012, Vial Fotheringham sent a "payoff" to 

First American. On the first page of the payoff (which appears 

to be a summary of all amounts owed to Vial Fotheringham and the 

HOA), Vial Fotheringham represented a total of $2,474.80 was due 

from escrow, including $143.56 for "[d]ues, including interest 

and late charges," which was $183.35 less than the amount owing 

to release the lien in The Management Trust's February 6, 2012, 

report to Vial Fotheringham; $2,206.24 for "[a]ttorney fees and 

costs including release of liens"; and the $125.00 transfer fee. 

The first page of the payoff reflected the payoff was valid 

through February 29, 2012. The subsequent pages of the payoff, 

however, contained the February 6, 2012, payoff accounting from 

The Management Trust that reflected $326.91 was owing to The 

Management Trust for release of the lien plus the additional 

$125.00 transfer fee. This part of the payoff record represented 

it was valid through March 6, 2012. 

On February 22, 2012, Plaintiff made his second payment of 

$366.69 to Vial Fotheringham. Vial Fotheringham accepted that 

payment and noted on February 28, 2012, the receipt of 

Plaintiff's payment in the firm's trust-account records. 

17 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 17 of 39
On Friday (February 24, 2012), almost one month after her 

last email to which Knewtson did not respond, Montag emailed 

Knewtson again: 

There seems to be some confusion as to the Agreement 

between your clients and mine. There was clearly some 

disagreement as to the terms of the Agreement a:nd, as a 

result, none was reached with regard to the terms 

outside the exchange of correspondence between you and 

me. I have contacted you several times to clarify 

this, but you have neglected to return my telephone 

calls or reply to the e-mails I have sent. 

That said, it is our position that the Agreement we 

reached, if any, - the terms stated in the exchange of 

e-mails between you and me - discharges your clients of 

liability for assessments and related fees through 

December 31, 2011 and attorneys fees and costs through 

then. We have received the second payment from your 

clients as per the Agreement. But, your clients have 

not paid the quarterly assessments due on January 1, 

2012. Thus, your clients are liable for those 

assessments and related fees and attorney's fees and 

costs. This becomes relevant because your clients 

requested a payoff to discharge the lien on the 

property. Because your clients are still liable for 

past due amounts, the lien remains a cloud on title to 

the property. 

Let me know if you no longer represent Mr. Porras and 

Ms. Gonzalez. I expect to hear from you promptly. 

Approximately 20 minutes later Knewtson responded: "The 

$48.50 payment was sent to your office, by mail, at the beginning 

of January addressed to you. How much are you demanding in 

attorney fees as a result of the 'missed payment'?" Montag 

failed to respond to this crucial inquiry. 

On February 29, 2012, Plaintiff received a copy of the 

payoff sent by Vial Fotheringham and told First American that he 

18 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 18 of 39
had recently made payments against the debt. First American sent 

an email to Vial Fotheringham requesting an updated payoff. With 

that email First American sent a copy of the receipts from 

Plaintiff's January and February 2012 payments. 

On March 1, 2012, Vial Fotheringham sent an email to The 

Management Trust requesting an updated payoff. The Management 

Trust, however, responded that it was no longer the managing 

company for the HOA. 

On Friday, March 2, 2012, an employee of Vial Fotheringham 

spoke with an employee of the HOA's new management company. The 

Vial Fotheringham employee noted the new management company 

employee told him that "as soon as they record payment of 2/28 on 

[the] ledger she will send an updated ledger to prepare updated 

payoff." There are not any more notes regarding an updated 

payoff. 

Plaintiff finalized the sale of his home in Oak Hill on 

Wednesday, March 7, 2012. At that time Vial Fotheringham had not 

yet sent an updated payoff to First American. Although Plaintiff 

believed the February 21, 2012, payoff from Vial Fotheringham was 

inaccurate, Plaintiff approved the payoff for the purpose of 

closing the sale of his home. 

On March 8, 2012, Vial Fotheringham received three checks 

from First American. The first check was made payable to Vial 

Fotheringham in the amount of $2,349.80, which was consistent 

19 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 19 of 39
with the total amount to be sent to Vial Fotheringham pursuant to 

the first page of the February 21, 2012, payoff. The second 

check was made payable to Oak Hill in the amount of $326.91, 

which was consistent with The Management Trust's February 6, 

2012, accounting, but inconsistent with Vial Fotheringham's 

February 21, 2012, accounting. The third check was made payable 

to The Management Trust in the amount of $125.00. 

On March 12, 2012, Vial Fotheringham forwarded to Oak Hill 

checks in the amounts of $326.91 and $125.00. On March 14, 2012, 

Vial Fotheringham sent another check to Oak Hill in the amount of 

$233.37, which was reflective of Plaintiff's January 25, 2012, 

payment. The cause of the delay between Vial Fotheringham's 

receipt of Plaintiff's January 25, 2012, payment and forwarding 

that portion of the payment to the HOA is unclear. Vial 

Fotheringham also forwarded to the HOA $356.80 of the $2,349.80 

check and retained the remainder. 

On March 30, 2012, Vial Fotheringham filed a satisfaction of 

judgment in Washington County Circuit Court on behalf of the HOA. 

On May 2, 2012, Plaintiff filed a motion to vacate judgment 

in Washington County Circuit Court. Montag, in her capacity as 

attorney for the HOA, responded to the motion by arguing that the 

motion was moot because the parties had settled the matter and 

Vial Fotheringham had previously filed a satisfaction of judgment 

on behalf of the HOA. The court agreed with Montag and denied 

20 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 20 of 39
Plaintiff's motion as moot on the basis of the putative 

settlement and satisfaction of judgment. 

On August 20, 2012, Plaintiff dismissed his appeal of the 

supplemental judgment. 

On January 7, 2013, Knewtson sent a letter to Vial 

Fotheringham on behalf of Plaintiff concerning the money taken 

from escrow. That letter is not in the record. In his 

deposition Plaintiff testified he waited until January 2013 to 

raise the issue with Vial Fotheringham because he had been busy 

with personal matters. 

On January 31, 2013, Vial Fotheringham sent to Knewtson a 

letter with a check in the amount of $2,801.71. In that letter 

Vial Fotheringham stated: 

Vial Fotheringham received your letter dated January 7, 

2013 regarding the matters raised in that letter. Tom 

Johnson from our office attempted to contact you both 

by telephone and by email, but has not received a 

response. I left a voice mail for you both yesterday 

and at about 1:10 pm today. 

As Tom Johnson mentioned in his email, and as I 

mentioned in my last telephone message to you, it 

appears Andrea Montag was the attorney handling the 

Porras matter at the time of the sale of the Porras 

residence in March 2012. She is no longer employed at 

Vial Fotheringham, having moved on a few months ago to 

another position elsewhere. 

I did not see a settlement agreement executed by the 

parties nor does it seem that you or your client raised 

an issue with Vial Fotheringham at the time of the sale 

that there was any mistake. Nonetheless, if there has 

been a mistake or some misunderstanding, we want to 

make it right. 

21 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 21 of 39
In an effort to bring this matter to a conclusion, 

enclosed is our firm check in the amount of $2,801.71 

to fully refund your clients the amount sent to Vial 

Fotheringham at the time of closing. By negotiating 

the check, you and your clients agree that this fully 

resolves this matter. 

As I mentioned earlier, I preferred to discuss the 

matter with you by telephone, but you have not 

responded to us. 

On February 20, 2013, Plaintiff filed this action in 

Multnomah County Circuit Court. 

On April 4, 2013, Knewtson wrote a letter to Vial 

Fotheringham in which he stated: "Enclosed is the check you 

sent. Mr. Porras is unwilling to accept the check on the stated 

terms of your letter." 

On April 25, 2013, Defendants removed the Multnomah County 

action to this Court. 

STANDARDS 

Summary judgment is appropriate when there is not a "genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law." Washington Mut. Ins. v. United 

States, 636 F. 3d 1207, 1216 (9th Cir. 2011). See also Fed. R. 

Civ. P. 56(a). The moving party must show the absence of a 

dispute as to a material fact. Rivera v. Philip Morris, Inc., 

395 F. 3d 1142, 1146 (9th Cir. 2005). In response to a properly 

supported motion for summary judgment, the nonmoving party must 

go beyond the pleadings and show there is a genuine dispute as to 

22 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 22 of 39
a material fact for trial. Id. "This burden is not a light one 

The non-moving party must do more than show there is 

some 'metaphysical doubt' as to the material facts at issue." In 

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) 

(citation omitted). 

A dispute as to a material fact is gehuine ''if the evidence 

is such that a reasonable jury could return a verdict for the 

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986)). The court must draw all 

reasonable inferences in favor of the nonmoving party. Sluimer 

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary 

judgment cannot be granted where contrary inferences may be drawn 

from the evidence as to material issues." Easter v. Am. W. Fin., 

381 F. 3d 948, 957 (9th Cir. 2004) (citing Sherman Oaks Med. Arts 

Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 

(9th Cir. 1982)). 

A "mere disagreement or bald assertion" that a genuine 

dispute as to a material fact exists "will not preclude the grant 

of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 

2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 

2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 

1989)). See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or. 

2010). When the nonmoving party's claims are factually 

23 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 23 of 39
implausible, that party must "come forward with more persuasive 

evidence than otherwise would be necessary." LVRC Holdings LLC 

v. Brekka, 581 F. 3d 1127, 1137 (9th Cir. 2009) (citing Blue Ridge 

Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)). 

The substantive law governing a claim or a defense 

determines whether a fact is material. Miller v. Glenn Miller 

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the 

resolution of a factual dispute would not affect the outcome of 

the claim, the court may grant summary judgment. Id. 

DISCUSSION 

In his Second Amended Complaint (#53) Plaintiff alleges in 

Claim One that Plaintiff asserts Defendants' actions violated 

several subsections of the Fair Debt Collection Practices Act 

(FDCPA), 15 U.S.C. § 1692, et seq. In Claim Two Plaintiff 

alleges Defendants' actions violated the Oregon Unfair Debt 

Collection Practices Act (OUDCPA), Oregon Revised Statute 

§ 646.639. In Claim Three Plaintiff asserts Defendants' actions 

give rise to claims for "money had and received or conversion.n 

The myriad claims, subclaims, factual bases, and defenses 

raised by the parties on summary judgment, however, make elusive 

and impractical any comprehensive attempt to resolve the merits 

of the parties' Cross Motions, especially in light of the fact 

that there are many issues that the parties have not adequately 

24 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 24 of 39
addressed in spite of unusually extensive briefing and rebriefing. Accordingly, in this Opinion and Order the Court only 

addresses and resolves the following three issues: (1) Whether 

delinquent HOA assessments and associated fees and costs are a 

"debt" to which the FDCPA applies; (2) whether Defendants were 

required to send a new initial notice letter under 15 U.S.C. 

§ 1692g after Plaintiff's payment of the alleged settlement and 

before Defendants received the escrow payment; and (3) whether 

the parties reached an enforceable settlement agreement between 

December 2011 and Plaintiff's sale of the property in March 2012 

and, if so, on what terms. 

I. Applicability of the FDCPA 

As an initial matter Defendants contend the FDCPA does not 

apply to Plaintiff's claims because the delinquent HOA 

assessments and associated fees and costs are not a "debt" within 

the meaning of the FDCPA, and, therefore, Defendants are entitled 

to summary judgment on Claim One because Plaintiff's FDCPA claims 

fail as a matter of law. 

"Because not all obligations to pay are considered debts 

under the FDCPA, a threshold issue in a suit brought under the 

Act is whether or not the dispute involves a 'debt' within the 

meaning of the statute." Turner v. Cook, 362 F.3d 1219, 1226-27 

(9th Cir. 2004). The FDCPA defines "debt" as "any obligation or 

alleged obligation of a consumer to pay money arising out of a 

25 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 25 of 39
transaction in which the money, property, insurance, or services 

which are the subject of the transaction are primarily for 

personal, family, or household purposes, whether or not such 

obligation has been reduced to judgment." 15 U.S.C. § 1692a(5) 

Defendants specifically contend HOA assessments and 

associated fees and costs are not a "debt" because they (1) do 

not arise out of a "transaction" and (2) are not "primarily for 

personal, family, or household purposes." See id. 

A. Whether the HOA assessments are a "transaction" under 

the FDCPA. 

Defendants first contend the HOA assessments and associated 

fees and costs did not arise out of a "transaction" within the 

meaning of the FDCPA. 

"The ordinary meaning of 'transaction' necessarily implies 

some type of business dealing between the parties . In 

other words, when we speak of 'transactions' we refer to 

consensual or contractual arrangements, not damage obligations 

thrust upon one as a result of no more than her own negligence." 

Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 

1998). See also Turner, 362 F.3d at 1227 (adopting Hawthorne's 

definition of "transaction"). 

The Sixth and Seventh Circuits have concluded the nonpayment 

of HOA assessments gives rise to a "debt" within the meaning of 

the FDCPA because the liability arises from the original 

transaction of purchasing a home in the homeowners' association. 

26 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 26 of 39
Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 698 F.3d 

290, 294 (6th Cir. 2012); Newman v. Boehm, Pearlstein & Bright, 

Ltd., 119 F.3d 477, 481 (7th Cir. 1997). This Court finds the 

reasoning in Haddad and Newman to be persuasive. 

Defendants, however, rely primarily on Mlnarik v. Smith, 

Gardner, Slusky, Lazer, Pohren & Rogers, LLP, No. 14-cv-01849-

BLF, 2014 WL 6657747, at *3-*4 (N.D. Cal. Nov. 21, 2014), and 

similar cases from district courts across the country to support 

their position. Defendants contend the nonpayment of HOA 

assessments does not give rise to a ftdebt" because the unpaid 

assessments do not arise out of a consensual transaction. 

Defendants' reliance on Mlnarik is misplaced, however, because in 

that case the plaintiffs' duty to pay fines ftdid not arise out of 

the Plaintiffs' purchase of the Property, and instead came about 

because of Plaintiffs' subsequent breach of other obligations 

they made when they purchased the Property." Id., at *3. In 

fact, the Mlnarik court distinguished Haddad and Newman because 

ft[n]othing in this case suggests that Defendants' collection 

efforts pertained to homeowners' association assessments." Id. 

Accordingly, Mlnarik and similar cases do not undermine the 

reasoning of the Sixth and Seventh Circuits in Haddad and Newman. 

Defendants also contend even if the HOA assessments arise 

from a transaction, the associated late fees, attorneys' fees, 

and collection costs do not arise from any transaction and are 

27 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 27 of 39
more like the fines at issue in Mlnarik. Although Defendants may 

be correct in their position that late fees, attorneys' fees, and 

collection costs do not, in isolation, arise from a transaction, 

there is nothing in the FDCPA definition of a "debt" that 

requires the liability to arise directly out of a transaction. 

See Medialdea v. Law Office of Evan L. Loeffler, PLLC, No. C09-

55RSL, 2009 WL 1767185, at *3 (W.O. Wash. June 19, 2009). In 

fact, the FDCPA definition of "debt" speaks in broad terms by 

including "any obligation . arising out of a transaction." 

See 15 U.S.C. § 1692a(5) (emphasis added). When, as here, the 

late fees, attorneys' fees, and collection costs are all 

associated with an obligation that arises directly out of a 

transaction (i.e., the payment of HOA assessments associated with 

the purchase of a home), the fees and costs similarly arise out 

of a "transaction" under the FDCPA. 

Accordingly, on this record the Court concludes the HOA 

assessments and the associated fees and costs arise out of the 

"transaction" that was Plaintiff's purchase of the property in 

Oak Hill, and to that extent the Court concludes Plaintiff is 

entitled to summary judgment. 

B. Whether the HOA assessments were for "personal, family, 

or household" purposes. 

Defendants contend the nonpayment of the HOA assessments did 

not create a "debt" under the FDCPA in light of the fact that HOA 

assessments were not paid "primarily for personal, family, or 

28 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 28 of 39
household purposes" (see 15 U.S.C. § 1692a(5)) because the HOA 

assessments were not specifically used to maintain Plaintiff's 

home; they were not for personal, family, or household purposes; 

and, in any event, the associated fees and costs were not for 

such purposes even if the HOA assessments were. 

The Court finds persuasive the reasoning of the Seventh 

Circuit in Newman as foll01vs: 

To the extent that the assessments were to be used to 

improve or maintain commonly-owned areas, that purpose, 

too, qualifies as "personal, family, or household.• In 

our view, when a special assessment is used to repair a 

common roof, or a monthly assessment is used to pay for 

services like snow removal from a common walkway or 

landscaping of a common yard, the assessments are for a 

household purpose even if more than a single household 

benefits. We thus are unable to agree with defendants' 

suggestion that because all unit owners benefit, 

assessments like these can be likened to past-due tax 

obligations, which are not considered "debts• under the 

Act because they generally are used for communal rather 

than personal, family, or household purposes. 

119 F.3d at 481. Even though the parties agree the HOA 

assessments were not used specifically to maintain the property 

of Plaintiff or any other individual homeowner, they were used to 

maintain common areas and to administer the HOA. It is also 

undisputed that each homeowner within Oak Hill had an ownership 

interest in the common areas appurtenant to the homeowner's own 

property as well as the right to use and to benefit from those 

common areas. Moreover, it is undisputed that Plaintiff and his 

family used the common areas in Oak Hill, including the park in 

which Plaintiff's children played. Accordingly, based on the 

29 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 29 of 39
persuasive reasoning of Newman, the Court concludes the HOA 

assessments were paid primarily for personal, family, or 

household purposes. 

For the same reasons the Court rejects Defendants' 

distinction between the unpaid HOA assessments and the associated 

late fees, attorneys' fees, and collection costs. 

Accordingly, on this record the Court concludes Plaintiff is 

entitled to summary judgment that the unpaid HOA assessments and 

associated fees and costs constituted a "debt" within the meaning 

of the FDCPA because the assessments, fees, and costs arose from 

a "transaction" and were "primarily for personal, family, or 

household purposes." See 15 U.S.C. § 1692a(5). 

In summary, the Court concludes the delinquent HOA 

assessments and the associated fees and costs were a "debt" 

within the meaning of the FDCPA because the assessments, fees, 

and costs arose out of a transaction and were primarily for 

personal, family, or household purposes. 

II. Notice Required by 15 U.S.C. § 1692g 

Plaintiff contends he is entitled to summary judgment as to 

liability on the portion of Claim One in which Plaintiff alleges 

Defendants failed to provide Plaintiff with legally sufficient 

notice as to his right to dispute the debt before collecting 

Plaintiff's monies from escrow. Plaintiff specifically argues 

his payment of the alleged settlement in February 2012 rendered 

30 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 30 of 39
any additional collections by Defendants to be collections of a 

new debt that required a separate notice under § 1692g. 

Defendants, in turn, contend they are entitled to summary 

judgment on the portion of Plaintiff's Claim One that alleges a 

violation of § 1692g because Defendants provided the statutorilyrequired notice in their initial letter to Plaintiff on 

December 7, 2009. 

Section 1692g provides: 

Within five days after the initial communication with a 

consumer in connection with the collection of any debt, 

a debt collector shall, unless the following 

information is contained in the initial communication 

or the consumer has paid the debt, send the consumer a 

written notice containing--

* * * 

(3) a statement that unless the consumer, within thirty 

days after receipt of the notice, disputes the validity 

of the debt, or any portion thereof, the debt will be 

assumed to be valid by the debt collector; [and) 

(4) a statement that if the consumer notifies the debt 

collector in writing within the thirty-day period that 

the debt, or any portion thereof, is disputed, the debt 

collector will obtain verification of the debt or a 

copy of a judgment against the consumer and a copy of 

such verification or judgment will be mailed to the 

consumer by the debt collector. 

15 U.S.C. § 1692g(a) (3), (4). 

It is undisputed that Vial Fotheringham sent to Plaintiff a 

letter on December 7, 2009, that stated the amount of the debt, 

advised Plaintiff that additional costs and fees could be 

incurred on the debt, and notified Plaintiff of his right to 

31 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 31 of 39
dispute the debt. Plaintiff does not dispute the December 7, 

2009, letter met the technical requirements of § 1692g. Instead 

Plaintiff contends Defendants were required to send a separate 

§ 1692g letter after the putative settlement and before 

Defendants collected the remainder of the alleged debt from 

escrow. In particular, Plaintiff argues Vial Fotheringham's 

response to First American's payoff request was the initial 

communication with a debtor that triggered Vial Fotheringham's 

duty to send Plaintiff a § 1692g letter. 

Plaintiff's contention, however, is foreclosed by the plain 

meaning and purpose of the statute. Vial Fotheringham sent the 

necessary § 1692g letter to Plaintiff in December 2009. As 

noted, under the FDCPA a "debt" is "any obligation or alleged 

obligation of a consumer to pay money arising out of a 

transaction." 15 U.S.C. § 1692a(5). Ultimately, the purpose of 

§ 1692g is to "ensure[] that consumers receive notice of their 

rights of verification and to dispute the debt." Russell v. 

Absolute Collections Servs., Inc., 763 F.3d 385, 395 (4th Cir. 

2014) 0 

Although the parties now dispute the effect that the 

settlement negotiations had on Plaintiff's debt and whether 

Defendants could thereafter collect any further sums from escrow, 

it is undisputed that the debt (whether valid or invalid) 

collected by Vial Fotheringham from escrow on behalf of the HOA 

32 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 32 of 39
' ' ' ' 

arose from the same transaction that was the subject of Vial 

Fotheringham's December 2009 notice letter (i.e., the nonpayment 

of Plaintiff's HOA assessments and the associated fees and 

costs). Moreover, the lien that the escrow funds were to 

extinguish was the same lien that the HOA placed on Plaintiff's 

property in September 2009. Thus, for purposes of § 1692g, the 

Court concludes the debt that Vial Fotheringham collected from 

escrow was the same debt that was the subject of Vial 

Fotheringham's December 2009 § 1692g notice. 

The Court also concludes Plaintiff's contention that the 

February 21, 2012, payoff accounting was an "initial 

communication" of a new debt fails. Plaintiff did not make his 

second payment on any putative settlement until February 22, 

2012, the day after Vial Fotheringham sent its payoff accounting 

to First American. Plaintiff does not identify any provision in 

any putative settlement that would require Vial Fotheringham to 

discharge the remainder of Plaintiff's debt before Plaintiff 

fully performed the contract. Accordingly, Vial Fotheringham's 

February 21, 2012, payoff accounting could not have been an 

"initial communication" regarding a new debt because even under 

Plaintiff's theory of the settlement the old debt had not yet 

been discharged. 

Finally, finding a violation of § 1692g in these 

circumstances would not serve the purpose of § 1692g. Not only 

33 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 33 of 39
I I o I 

was Plaintiff on notice of his right to dispute and to validate 

the debt, but Plaintiff (through Knewtson) had been disputing and 

ultimately attempting to resolve the debt with Defendants. Thus, 

Defendants did not violate § 1692g by failing to send to 

Plaintiff a redundant notice after Plaintiff's escrow agent 

requested an accounting of the balance remaining on the lien that 

encumbered Plaintiff's property. 

Accordingly, on this record the Court concludes Defendants 

are entitled to partial summary judgment on that portion of Claim 

One in which Plaintiff alleges Defendants violated § 1692g by 

providing Plaintiff with inadequate notice. 

III. Formation of a Settlement Agreement 

Central to many of Plaintiff's claims is his contention that 

he and Vial Fotheringham entered into an enforceable settlement 

agreement that discharged Plaintiff's debt before the closing of 

the sale of Plaintiff's home. 

Under the FDCPA the existence of a debt is determined by the 

underlying contract and applicable state law. See De Dios v. 

Int'l Realty & Invs., 641 F. 3d 1071, 1074 (9th Cir. 2011). Thus, 

whether the parties entered into an enforceable settlement 

agreement is determined by state law. 

ftWhether a binding contract exists between the parties is a 

question of law." Citibank of South Dakota N.A. v. Santoro, 210 

Or. App. 344, 348 (2006). ftA valid contract can be created 'by 

34 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 34 of 39
r ' ' ' 

[an] offer and its unqualified acceptance.'" Bridge City Family 

Med. Clinic, P.C. v. Kent & Johnson, LLP, 270 Or. App. 115, 121 

(2015) (quoting Williams v. A.C. Burdick & Co., 63 Or. 41, 49 

(1912)). "Oregon subscribes to the objective theory of contract, 

which provides that the existence and terms of a contract are 

determined by evidence of the parties' conununications and acts." 

Rhoades v. Beck, 260 Or. App. 569, 572 (2014). Accordingly, the 

parties' "objective manifestations of intent control rather than 

the parties' unconununicated subjective understanding." Butler 

Block, LLC v. Tri-County Metropolitan Transp. Dist. of Oregon, 

242 Or. App. 395, 410 (2011). "Those manifestations of intent 

must show that there has been a 'meeting of the minds' as to the 

contract's terms and that no material terms remain for future 

negotiation." Bridge City Family Med. Clinic, 270 Or. App. at 

121. In addition to an explicit conununication of the acceptance, 

"[c]onduct can manifest acceptance of an offer." Citibank of 

South Dakota, 210 Or. App. at 349. 

The parties dispute whether and on what terms they entered 

into a valid settlement agreement. The record on these CrossMotions certainly makes clear that throughout the early course of 

the email exchanges between Knewtson and Montag, the parties' 

initial objective manifestations never reflected there was a 

"'meeting of the minds' as to the contract's terms and that no 

material terms remain[ed] for future negotiation." See Bridge 

35 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 35 of 39
' ' ' 

City Family Med. Clinic, 270 Or. App. at 121. Indeed, Knewtson 

and Montag appeared to continue to negotiate terms through 

Knewtson's January 27, 2012, email that included his proposed 

settlement agreement. 

As noted, on January 26, 2012, Montag emailed Knewtson to 

inquire about the check that Vial Fotheringham received from 

Plaintiff that day and stated Vial Fotheringham would not process 

the payment until it received a signed settlement agreement. 

Although the next day (January 27, 2012) Knewtson initially 

responded to Montag's email glibly, later that day Knewtson sent 

a proposed settlement agreement that contained a full statement 

of material terms. Knewtson expressly noted there was not any 

agreement as to any terms outside of that writing in response to 

Montag's inquiry about the payment and a signed settlement 

agreement. 

The record, nonetheless, clearly indicates Vial Fotheringham 

processed the payment on February 14, 2012, which is conduct 

manifesting acceptance of Plaintiff's offer to settle according 

to the terms of the January 27, 2012, proposed settlement, 

especially in light of the fact that Montag previously said 

Defendants would not process Plaintiff's payment until Defendants 

received a signed settlement agreement. Accordingly, on this 

record the Court concludes Plaintiff and Defendants reached an 

enforceable settlement agreement according to the terms of the 

36 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 36 of 39
January 27, 2012, proposed agreement when Vial Fotheringham 

processed that payment. 

Although the terms of that settlement agreement provided for 

the timing of Plaintiff's performance, it did not explicitly 

provide for the timing of Defendants' performance (i.e., when 

Defendants were required to discharge Plaintiff's debt). "A 

contract that is silent with regard to the time of performance 

must be performed within a reasonable time, and reasonableness is 

determined by reference to all the facts and circumstances." 

Kaseberg v. Davis Wright Tremaine, LLP, 351 Or. 270, 283 (2011). 

Defendants, therefore, were required to release Plaintiff from 

the remainder of the debt within a reasonable time after 

Plaintiff made his final payment. 

In summary, on this record the Court concludes Plaintiff is 

entitled to partial summary judgment that he and Defendants 

entered into a settlement agreement pursuant to the terms of the 

January 27, 2012, proposed settlement by which Plaintiff was 

required to make payments on January 31, 2012, and February 29, 

2012, and Defendants were required to discharge the debt within a 

reasonable time after Plaintiff made his final payment. 

CONCLUSION 

For these reasons, the Court GRANTS in part and DENIES in 

part Plaintiff's Motion (#103) for Partial Summary Judgment. 

37 - OPINION AND ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 37 of 39
Specifically, the Court GRANTS Plaintiff's Motion insofar as 

(1) the unpaid BOA assessments and associated fees and costs 

constituted a "debt" within the meaning of the FDCPA and (2) the 

parties settled the underlying debt according to the terms of the 

January 27, 2012, proposed settlement agreement, but the Court 

DENIES Plaintiff's Motion in all other respects with leave to 

renew as to those issues that the Court did not address in this 

Opinion and Order. 

The Court also GRANTS in part and DENIES in part Defendants' 

Motion (#109) for Partial Summary Judgment. Specifically, the 

Court GRANTS Defendants' Motion for Partial Summary Judgment as 

to Plaintiff's claim that Defendants failed to provide sufficient 

notice under 15 U.S.C. § 1692g and DENIES Defendants' Motion in 

all other respects with leave to renew as to those issues that 

the Court did not address in this Opinion and Order. 

The Court directs the parties to confer to determine whether 

the matter is now ready for a pretrial order or whether 

additional dispositive-motion practice on a clearer record. is 

warranted as to issues the Court did not address in this Opinion 

and Order. Following their conferral, the parties must file a 

single joint status report no later than June 12, 2015, to 

include case-management recommendations. If the parties seek to 

engage in additional dispositive-motion practice, the parties 

must specify in the joint status report each issue on which they 

38 - OPINION ANb ORDER 

Case 3:13-cv-00699-BR Document 145 Filed 05/21/15 Page 38 of 39
seek a dispositive ruling. After the Court reviews the report, a 

case-management conference will be scheduled. 

IT IS SO ORDERED. 

'61-

DATED this ).\ day of May, 2015. 

ANNA J. BROWN 

United States District Judge 

39 - OPINION AND ORDER 

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