Response to Motion for Summary Judgment - 1

Joshua Trigsted

Oregon State Bar ID Number 06531

Trigsted Law Group, P.C.

5200 SW Meadows Rd Ste 150

Lake Oswego, OR 97035

888 595 9111 ext. 216

866 927 5826 facsimile

jtrigsted@attorneysforconsumers.com

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

CARLOS SANTIBANEZ,

Plaintiff,

vs.

NATIONAL CREDIT SYSTEMS, INC.,

Defendant.

Case No.: 6:16-cv-00081-AA

PLAINTIFF’S RESPONSE TO 

DEFENDANT’S MOTION FOR PARTIAL 

SUMMARY JUDGMENT

I. RESPONSE TO DEFENDANT’S POINTS AND AUTHORITIES [DOCUMENT 10]

A. BACKGROUND

1. Not disputed for purposes of this motion.

2. Not disputed for purposes of this motion.

3. Not disputed for purposes of this motion.

4. Not disputed for purposes of this motion.

5. Not disputed for purposes of this motion.

6. Not disputed for purposes of this motion.

7. Not disputed for purposes of this motion.

8. Not disputed for purposes of this motion.

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9. Not disputed for purposes of this motion.

10. Not disputed for purposes of this motion.

11. Not disputed for purposes of this motion.

12. Not disputed for purposes of this motion.

13. Plaintiff denies that the disclosures were effectively conveyed in the initial 

letter of February 5, 2015.

14. Sufficient evidence is not available to determine whether interest is accruing 

on the balance as stated by Defendant.

II. CONFUSING REPRESENTATION ABOUT “AMOUNT OF DEBT” 

Defendant cites two cases to support its position that no clarification of any kind is required 

about whether interest is or is not accruing, where, as here, the letter simply states “balance: 

$XXX” and the evidence has established that the debt collector itself had no intention to add 

interest or otherwise increase the balance over time. Plaintiff acknowledges that these cases are 

on point and the facts of the cases are sufficiently analogous to the facts at issue here. However, 

Plaintiff contends that these cases were decided in error, and this Court should hold that further 

disclosures beyond “balance: $XXX” should be required in order to comply with 15 USC 

1692g(a), for three reasons.

First, even assuming that “balance: $XXX” is sufficient to satisfy 15 USC 1692g(a) where 

a debt is not accruing interest, this fact is not determined as a matter of law by what the debt 

collector understands to be the case. Chuway, cited by Defendant, seems to hold that whether the 

current creditor actually intends to add interest or not is irrelevant to such determinations, and the 

only thing that matters is whether the debt collector intends to add interest while it is collecting. 

Chuway v. National Action Financial Services, 362 F.3d 944, 947 (7th Cir. 2004) (“The credit card 

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Response to Motion for Summary Judgment - 3

company, which is to say the creditor, not the debt collector, may charge the plaintiff interest on 

the $367.42 between when that debt accrued and when the plaintiff finally pays and may add the 

interest accruing in the interim to the plaintiff's current balance. But that would not be a part of 

“the amount of the debt” for which the defendant was dunning her, and hence it would not 

precipitate a violation by the defendant.”). This position makes no sense and is an invitation to 

mislead consumers. It is misleading to state that a debt is not accruing interest where such debt is 

in fact legally accruing interest. A debtor who pays a debt on which it has been informed no 

interest is accruing, only later to be billed again by a new debt collector for the unpaid interest that 

the debt collector failed to inform the debtor about, has been misled. For this reason, it is not the 

opinion of the collector, but the opinion of the current creditor that is relevant for determining 

whether interest is actually accruing or not. Here, we have evidence only of the opinion of the 

collector, not the current creditor. Thus, it is quite possible that, if the court resolves this issue in 

favor of Defendant, that Plaintiff could receive another letter in the mail from a different debt 

collector indicating that interest is actually accruing on the debt. If Plaintiff did receive such a 

letter, it would prove that Defendant’s original representations as reflected in the letters at issue 

here were misrepresentations, because these letters indicated or at least implied that its client had 

no intention of seeking interest. Thus, Plaintiff asks that the court deny Defendant’s motion to the 

extent that such a ruling would be based on the fact that no interest is actually accruing. Because 

no evidence has been submitted about the current creditor’s intentions as to seeking interest, only 

that of the debt collector, it is not known whether interest is accruing or not and therefore it cannot 

be said that a simple statement of “Balance: XXX” is accurate or not.

Second, as a matter of common understanding, the term “balance,” with nothing more, is 

susceptible to multiple interpretations and does not effectively convey the nature of the debt owed. 

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The accruing of interest is an important aspect of a debt. Information about whether a debt is or 

is not accruing interest, and the amount of that interest, obviously has an effect on the ability of a 

consumer to make educated decisions about its actions with respect to that debt. For instance, if a 

debtor owes two debts of the same current “balance,” one which accrues interest and the other 

which does not, that debtor would be better served by paying the debt that was accruing interest 

first, and the greater the amount of interest, the more important it is that the interest-accruing debt 

be paid first. Therefore, when, as here, a debtor receives a letter, it is important that it be clear in 

the letter whether the debt is accruing interest, and it is not sufficient that a debt collector make a 

disclosure about interest only when interest is actually accruing. It is potentially equally important 

to the consumer to know that interest is not accruing, when it comes to the ability of a consumer 

to make educated decisions about their debts. Furthermore, the term “balance” connotes a change 

over time in a way that “amount of the debt” does not. “Amount of the debt” can be interpreted 

reasonably as unequivocal. The word “Balance” on the other hand, a word that is associated with 

credit card accounts, and which connotes the idea of interest accruing on a running balance, is not 

unequivocal by nature and is bound up with the concept of interest. 

Third, and perhaps most important, debts can be and often are sold. There is no law 

requiring subsequent owners of a debt to act consistently with the decisions of a previous owner. 

Therefore, if, as many previous cases have suggested, the possible increase in the amount of the 

debt in future is relevant to a debtors’ ability to effectively respond to a letter, it arguably actually 

should not play a decisive role what the creditors’ current intent is with regard to interest. 

Ultimately what is most relevant to a debtor, and what should be required to be disclosed, are two 

things: (1) what legal rights to interest does the current creditor have; AND (2) to what extent does 

the current creditor intend to take advantage of that right? Thus, even if it is eventually established 

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that the creditor here never intended to add interest, Plaintiff still could have been misled by a 

statement that no interest is accruing, to the extent that the creditor later sold the debt to a new 

owner and that owner decided to take advantage of the right to interest. Thus, the appropriate 

disclosure for a debt where statutory interest is allowed but a creditor decided not to pursue it, 

would be something along the lines of the following: “Balance: $XXX; Creditor is entitled to 9% 

interest according to ORS 82.010, and future creditors may decide to seek such interest from you. 

Creditor, however, has decided not to pursue interest, and thus interest will not accrue while in the 

hands of this creditor.” Such a disclosure would give an unsophisticated debtor an accurate picture 

of what is happening now and the potential changes that could occur in the future. That did not 

happen in this case, and thus Plaintiff alleges that there was a misrepresentation with regard to 

interest. 

III. IDENTITY OF “CURRENT CREDITOR”

Defendant does not address Plaintiff’s allegation that Defendant failed to effectively 

disclose the current creditor in its initial letter. Therefore, Defendant cannot be granted overall 

summary judgment as to liability based on its motion, but only, at best, partial judgment as to 

liability on the single issue of whether Defendant effectively disclosed the amount of the debt. 

 

Dated this 17th day of October, 2016.

By_s/Joshua Trigsted __

Joshua Trigsted

Trigsted Law Group, P.C.

5200 SW Meadows Rd Ste 150

Lake Oswego, OR 97035

888 595 9111 ext. 216

866 927 5826 facsimile

Attorney for Plaintiff

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