1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JODI HINGSTON,

No. 3:15-cv-1202-HZ

Plaintiff,

OPINION & ORDER

v.

QUICK COLLECT, INC., &

KENNETH MITCHELL-PHILLIPS, SR.,

individually,

Defendants.

Joshua Trigsted

Trigsted Law Group, P.C.

5200 SW Meadows Rd., Ste. 150

Lake Oswego, OR 97035

Attorney for Plaintiff

Jesse D. Conway

The Law Offices of Jesse D. Conway, PLLC

1014 Franklin St., Ste. 106

Vancouver, WA 98660

Attorney for Defendant Quick Collect, Inc. 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 1 of 11
2 - OPINION & ORDER

Kenneth S. Mitchell-Phillips, Sr. 

The Law Offices of Ken Mitchell-Phillips, P.C.

5500 N.E. 107th Ave.

Vancouver, WA 98662

Attorney for Defendant Kenneth Mitchell-Phillips

HERNÁNDEZ, District Judge:

Plaintiff Jodi Hingston (“Plaintiff”), brings this action against Defendants Quick Collect, 

Inc. (“QCI”) and Kenneth Mitchell-Phillips (“Mitchell-Phillips”) alleging violation of the Fair 

Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. § 1692.

Beginning in December 2013, QCI hired Mitchell-Phillips, an attorney, to help with the 

“legal portion” of collecting consumer debts. Dep. of Kenneth Mitchell-Phillips, Sr. at 10:18–21 

(Jan. 20, 2016) (“Dep. of Mitchell-Phillips”). On March 10, 2015, Mitchell-Phillips issued a 

$250 writ of garnishment to Plaintiff’s employer in an attempt to collect a debt related to a 

medical expense.

1 Dep. of Jason Garner at 8:18, 7:15; Dep. of Mitchell-Phillips at 10:4–7. 

Plaintiff moves for partial summary judgment on the allegation that Mitchell-Phillips, 

individually, and his vicariously liable client QCI, failed to send proper notice to Plaintiff as 

required by 15 USC § 1692g(a). Plaintiff’s motion is granted in part, and denied in part. Plaintiff 

has not shown that Mitchell-Phillips is a debt collector as a matter of law. However, the record 

establishes that QCI is a debt collector under the FDCPA and that both QCI and MitchellPhillips failed to notify Plaintiff of her rights pursuant to § 1692g(a).

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact 

and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The 

 1 Plaintiff’s motion specifies a date of March 2013, but examination of the complaint, answer, and depositions 

indicate this to be a typo. The Court assumes the date to be March 2015. 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 2 of 11
3 - OPINION & ORDER

moving party bears the initial responsibility of informing the court of the basis of its motion, and 

identifying those portions of “ ‘the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 

(quoting FED. R. CIV. P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine 

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” 

showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28 

(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the 

pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 

(9th Cir. 2007) (citing Celotex, 477 U.S. at 324). 

The substantive law governing a claim determines whether a fact is material. Suever v. 

Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the 

light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 

1108, 1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the 

existence of a material issue of fact implausible, that party must come forward with more 

persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

I. Contradicting Prior Deposition Testimony 

As a preliminary matter, it is necessary to address Mitchell-Phillips’s claim that he is inhouse counsel for QCI. Def. Resp. at 5, ECF 23; Mitchell-Phillips Decl. ¶6, ECF 23.

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 3 of 11
4 - OPINION & ORDER

Mitchell-Phillips’s declaration that he is “in house attorney” for QCI directly contradicts 

his earlier deposition testimony that “Quick Collect is a client of mine.”2 Dep. of MitchellPhillips at 5:15–19. When attempting to reconcile the discrepancy, “[t]he general rule in the 

Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior 

deposition testimony.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, at 998 (9th Cir. 2009) 

(reasoning that if a party who has been examined at length could raise an issue of fact simply by 

contradicting his own prior testimony, the utility of summary judgment as a procedure for 

screening out sham issues of fact would be greatly diminished), see also, Cleveland v. Policy 

Mgmt. Sys. Corp., 526 U.S. 795, 806–807 (1986) (recognizing that lower courts have virtually 

unanimously held that a party cannot survive summary judgment simply by contradicting his or 

her own previous sworn statement).

However, Van Asdale recognized that “the sham affidavit rule is in tension with the 

principle that a court’s role in deciding a summary judgment is not to make credibility 

determinations or weigh conflicting evidence.” Van Asdale, 577 F.3d at 998. Further, 

‘[a]ggresive invocation of the rule also threatens to ensnare parties who may have simply been 

confused . . . .” Id. To ensure the rule is “applied with caution . . . there are two important 

limitations on this Court’s discretion to invoke the sham affidavit rule.” Id. First, there must be a 

factual determination that the contradiction is actually a sham, and second, the inconsistency 

must be clear and unambiguous. Id. This two-step process is necessary to ensure that the 

inconsistency was not the result of “an honest discrepancy, a mistake, or newly discovered 

evidence.” Id. at 999. 

At step one, the Court finds that, during Mitchell-Phillips’s deposition, he testified no less 

than six separate times that Quick Collect is a client of his firm. Dep. of Mitchell-Phillips at 

 2 Mitchell-Phillips represented QCI in this matter. He has since withdrawn. Jesse D. Conway now represents QCI. 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 4 of 11
5 - OPINION & ORDER

5:15.3 In response to Plaintiff’s motion for summary judgment on the matter, Mitchell-Phillips 

changed his testimony and now claims, “I am an in-house attorney for QCI . . .” Decl. of Ken 

Mitchell-Phillips at 2. The only reasonable inference the Court can draw from such a switch in

testimony is that Mitchell-Philips is seeking to create an issue of fact to survive summary 

judgment. 

At step two, the Court finds Mitchell-Phillips’s new testimony clearly and 

unambiguously contradicts his deposition testimony that QCI is a client of his firm. MitchellPhillips offers no explanation for the discrepancy. There is no evidence that the contradiction

between Mitchell-Phillips’s deposition and his subsequent declaration is the result of a mistake 

or confusion. Thus, the Court applies the sham affidavit rule here, and disregards MitchellPhillips’s declaration that he is in house counsel in determining the appropriateness of summary 

judgement. See, Van Asdale, 577 F. 3d at 998 (holding it appropriate for a district court to apply 

the sham affidavit rule only when both steps in the analysis are satisfied). 

II. FDCPA

Plaintiff alleges that Defendants are debt collectors who violated § 1692g(a) of the 

FDCPA by failing to provide Plaintiff with the statutorily required notice within five days of the 

initial communication with her, the March 10, 2015 writ of garnishment. Mitchell-Phillips 

responds that he is in-house counsel for QCI, a position not considered a “debt collector” under 

the FDCPA. As such, Mitchell-Phillips claims he was not required to send additional notices to 

Plaintiff. QCI argues it sent the required notices to Plaintiff, so it did not violate the FDCPA. 

The FDCPA describes a debt collector, in relevant part, as “any person . . . who regularly 

collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or 

due another.” 15 U.S.C. § 1692a(6).

 3 Variations of this same testimony occur at 6:16–17, 8:4–10, 9:9–14, 10:18–20, and 11:1–2. 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 5 of 11
6 - OPINION & ORDER

The FDCPA requires a debt collector to send notice of debt “[w]ithin five days after the 

initial communication with a consumer in connection with the collection of any debt . . .” 15 

U.S.C. § 1692g(a).

III. Kenneth Mitchell-Phillips as a Debt Collector

The Court must first determine whether Mitchell-Phillips, an attorney hired by QCI, is a 

debt collector under the Act. 

As mentioned above, a debt collector is “any person . . . who regularly collects or 

attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due 

another.” 15 U.S.C. § 1692a(6). The Supreme Court has held that the FDCPA’s definition of 

“debt collector” includes lawyers who regularly, through litigation, attempt to collect consumer 

debts. Heintz v. Jenkins, 514 U.S. 291, 292 (1995). A plaintiff in an FDCPA action bears the 

burden of proving a defendant’s debt collector status. See, Goldstein v. Hutton, et al., 374 F.3d 

56 (2nd Cir. July 1, 2004).

Plaintiff relies on the deposition of QCI’s General Manager Jason Garner, who, when

asked whether “Mr. Mitchell-Phillips regularly does work for [QCI],” answered “[y]es.” Dep. of 

Jason Garner at 4:9. Mitchell-Phillips also testified that, “I have a law firm . . . Quick Collect is 

one of my clients that collects debts, and I help them with the legal portion of that . . . .” Dep. of 

Mitchell-Phillips at 10:18–21. These statements are not enough to prove that Mitchell-Phillips 

falls within the definition of a debt collector under the FDCPA. 

The Ninth Circuit has addressed this issue of regularity only once, finding without any 

meaningful analysis that an attorney whose practice during the period in question included 80 

percent debt collection work was a “debt collector” for the purposes of the FDCPA. Fox v. 

Citicorp Credit Services, Inc., 15 F. 3d 1507, 1513 (9th Cir. 1994). Later, the Second Circuit 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 6 of 11
7 - OPINION & ORDER

outlined a number of factors to consider when determining whether an attorney qualifies as a 

“debt collector.” Goldstein, 374 F.3d at 62–63. Factors the court considered “illustrative rather 

than exclusive” included, among others, the absolute number of debt collection communications 

issued over the relevant period, the frequency of such communications, any discernable patterns

of debt collection, whether the law firm has specific personnel assigned to work on debt 

collection activity, whether the activity is undertaken in connection with ongoing client 

relationships with entities that have retained the lawyer to assist in the collection of consumer 

debts, and whether the firm advertises its services for debt collection. Id. In Goldstein, evidence 

of an attorney issuing over 140 notices within a 12 month period aided a determination that the 

attorney was a debt collector, but the court cautioned that the determination of debt collector 

status under the FDCPA should be analyzed on a case-by-case basis. Id.

At present, the record is insufficient to determine that Mitchell-Phillips regularly

attempts to collect consumer debts for QCI. For instance, there is no evidence that MitchellPhillips advertises his firm as one that aids in debt collection, the exact number of debt collection 

communications Mitchell-Phillips issued over a particular period of time, or whether MitchellPhillips’s firm has specific personnel assigned to debt collection. The Court cannot determine, on 

the present record, that Mitchell-Phillips is a debt collector under § 1692a(6).

Plaintiff’s motion for summary judgement as to Mitchell-Phillips’s liability as a debt 

collector is denied. 

IV. QCI as a Debt Collector

The parties agree and the record reflects that QCI is “a debt collector as defined by USC 

§ 1692a(6).” Def. Resp. to First Req. for Admis. at 3 (Nov. 16, 2015). At this point in the 

analysis, it is important for the Court to note that QCI attempted to collect a debt through their 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 7 of 11
8 - OPINION & ORDER

attorney, Mitchell-Phillips. QCI is vicariously liable for any action (or inaction) of their attorney 

Mitchell-Phillips because “Congress intended the actions of an attorney to be imputed to the 

client on whose behalf they are taken.” Fox v. Citicorp, 15 F.3d at 1516 (holding a client 

vicariously liable for an attorney’s incorrect venue decision), see also, Clark v. Capital Credit & 

Collection Service, Inc., 460 F.3d 1162, 1173 (9th Cir. 2006) (adopting a lower court’s holding 

that general principles of agency form the basis for vicarious liability under the FDCPA). Thus, 

even if Mitchell-Phillips is not a debt collector on his own, the determination of whether QCI or 

Mitchell-Phillips sent the proper notice to Plaintiff directly affects QCI’s liability. 

The FDCPA requires a debt collector to send notice of debt “[w]ithin five days after the 

initial communication with a consumer in connection with the collection of any debt . . .” 15 

USC § 1692g(a). A writ of garnishment is an “initial communication” with a consumer. Adams 

v. Schumacher, No. 13-cv-02301-AC, 2014 WL 6977695, at *4 (D. Or. Dec. 9, 2014) (broadly 

defining “communication” under the FDCPA and holding that correspondence between a lawyer 

debt collector and a consumer constituted an initial communication triggering the five day notice 

requirement). The required information includes the amount of debt, the name of the creditor to 

whom the debt is owed, notice of the right of the consumer to dispute the validity of the debt, 

the right to verification of the judgement against the consumer, and the right to the name and 

address of the original creditor. 

A. Mitchell-Phillips’s Notice

Mitchell-Phillips testifies that his firm does not send out the notices, and instead relies on 

QCI to send “those types of letters.” Dep. of Mitchell-Phillips at 8:15–16, 9:9–14. Moreover, 

there is no evidence that Plaintiff received any additional notice from Mitchell-Phillips.

Therefore, Mitchell-Phillips failed to meet the notice requirements of § 1692g(a). See, Adams, 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 8 of 11
9 - OPINION & ORDER

2014 WL 6977695, at *4 (finding that when a debt collection agency’s attorney made the initial 

communication with a debtor, the attorney was required to meet the notice requirements of § 

1692g(a) of the FDCPA). 

B. QCI’s Notice

QCI asserts that it sent proper notice to Plaintiff, and offers a declaration from their clerk, 

who states “[o]n or around . . . March 24, 2015, I sent a garnishment letter to Plaintiff’s place of 

employment.” Decl. of Hannah Fenimore at 1 (March 1, 2016). This alleged garnishment letter 

was not submitted as an exhibit, so there is no way of knowing whether it included the complete 

notice required by § 1692g(a). QCI has not demonstrated that it included the required disclosures 

with the garnishment letter. Further, even if the March 24th garnishment letter Ms. Fenimore 

referenced contained such notice, it was sent fourteen days after the March 10 initial 

communication, falling nine days too late to satisfy § 1692g(a). In sum, QCI failed to provide 

Plaintiff with notice, and thus violated the FDCPA. 

V. Strict Liability

Regarding liability, the FDCPA states “[a] debt collector may not be held liable in any 

action . . . if the debt collector shows by a preponderance of evidence that the violation was not 

intentional or resulted from a bona fide error . . . .” 15 USC § 1692k(c). Defendants do not claim 

that the violation was due to a technical or factual mistake, but rather that there has been no 

violation at all. Thus, this bona fide error defense does not apply, and QCI is strictly liable. See,

Clark, 460 F.3d at 1176 (holding that the broad language and remedial nature of the FDCPA 

favored strict liability, with knowledge or intentional violation only relevant to the determination 

of damages). 

//

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 9 of 11
10 - OPINION & ORDER

VI. Local Rule 7.1

Defendants also urge the Court, even if summary judgment is appropriate, to deny this 

motion based on Plaintiff’s failure to confer prior to filing. Defendants claim Plaintiff’s only 

attempt to confer consisted of leaving a voicemail message on February 16, 2016 at 7:24 pm, the 

same day Plaintiff filed this motion. Def. Opp’n at 6–7. Plaintiff contends she called Defendants

earlier, but confirms that she left the voicemail the same day as filing the motion. Pl. Reply at 3, 

ECF 24. The specific time Plaintiff left the voicemail does not change the analysis. 

Local Rule 7.1 (“LR 7.1”) requires parties to confer in good faith to resolve a dispute 

prior to filing a motion. The court may deny any motion that fails to comply with this rule. In the 

present case, Plaintiff thwarted “the purpose of LR 7.1 . . . by waiting until the last minute and 

leaving a short message with insufficient time before filing a motion.” Arboireau v. Adidas 

Salomon AG, No. CV-01-105-ST, 2002 WL 31466564, at *1 (D. Or. June 14, 2002) (finding the 

defendant’s attempts to confer by leaving two voice messages the same day as filing the motion 

lacked good faith, violating LR 7.1).

The Court must now decide whether Plaintiff’s failure to confer in good faith is fatal to 

this motion. It is not. In Arboireau, the court recognized that “the parties would not have reached 

an agreement,” that “conferral would have been futile,” and, “[b]ecause this court does not 

require futile acts, [the motion] is not denied for failing to confer.” Id. After reviewing the 

parties’ briefs on this matter, it is clear that had Plaintiff conferred with Defendants before filing,

the parties would not have resolved the dispute, particularly in light of Mitchell-Phillips’s 

contradictory testimony as to his relationship with QCI. 

Because conferral on the present matter would have been futile, the Court recognizes 

Plaintiff frustrated the purpose of LR 7.1, but will not deny Plaintiff’s motion as a result. 

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 10 of 11
11 - OPINION & ORDER

CONCLUSION

For the reasons stated, Plaintiff’s motion [17] is GRANTED in part and DENIED in part. 

IT IS SO ORDERED.

Dated this day of July, 2016.

 

MARCO A. HERNÁNDEZ

United States District Judge

Case 3:15-cv-01202-HZ Document 39 Filed 07/28/16 Page 11 of 11