Motion for Partial 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 MOTION FOR PARTIAL 

SUMMARY JUDGMENT

I. INTRODUCTION

The sole act that Plaintiff alleges violated the FDCPA in this matter was the sending of a 

letter by Defendant, National Credit Systems, Inc. Plaintiff contends that the letter, dated February 

5, 2015, violates the FDCPA by failing to effectively and unambiguously disclose two pieces of 

information required to be contained in such a letter, to wit: (1) the identity of the current creditor; 

and (2) the amount of the debt. 

II. STATEMENT OF FACTS

(1) Defendant attempted to collect from Plaintiff a “debt” as defined by 15 USC 

1692a(5). Declaration of Joshua Trigsted, § 2, Exhibit “A”, Bates # 003, validation of debt 

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document sent by Defendant to Plaintiff, showing that the debt was for rent and cleaning charges 

under a residential lease contract.

(2) Defendant is a “debt collector” – Defendant admits it is a debt collector with respect 

to other debts, so it must regularly collect consumer debts by definition, and is a debt collector 

here for this “debt.” Id. at § 3, Exhibit “B”, Defendant’s Response to Requests for Admission, p. 

2, Response to Requests for Admission

(3) Plaintiff is a “consumer” under 15 USC 1692a(3). Id. at § 4, Exhibit “C”, Initial 

letter to Plaintiff, dated February 5, 2015. 

(4) Defendant’s February 5, 2015 letter does not comply with 15 USC 1692g(a). Id. 

III. THE FDCPA BROADLY PROHIBITS UNFAIR OR UNCONSCIONABLE 

COLLECTION METHODS, CONDUCT WHICH HARASSES, OPPRESSES OR 

ABUSES ANY DEBTOR, AND ANY FALSE, DECEPTIVE OR MISLEADING 

STATEMENTS, IN CONNECTION WITH THE COLLECTION OF A DEBT. 

The Fair Debt Collection Practices Act (“FDCPA”) is a comprehensive statute which 

prohibits a catalog of activities in connection with the collection of debts by third parties. See 15 

U.S.C. §1692 et seq. The FDCPA imposes civil liability on any person or entity that violates its 

provisions, and establishes general standards of debt collector conduct, defines abuse, and provides 

for specific consumer rights. 15 U.S.C. §1692k. The operative provisions of the FDCPA declare 

certain rights to be provided to or claimed by debtors, forbid deceitful and misleading practices, 

both generally and in a specific list of disapproved practices, and prohibit harassing and abusive 

tactics, both generally and in a specific list of disapproved practices.

In enacting the FDCPA, the United States Congress found that “[t]here is abundant 

evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt 

collectors,” which “contribute to the number of personal bankruptcies, to marital instability, to the 

loss of jobs, and to invasions of individual privacy.” 15 U.S.C. § 1692(a). Congress additionally 

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found existing laws and procedures for redressing debt collection injuries to be inadequate to 

protect consumers. 15 U.S.C. § 1692(b). It is the express purpose of the FDCPA to “eliminate 

abusive debt collection practices by debt collectors, to ensure that debt collectors who refrain from 

using abusive debt collection practices are not competitively disadvantaged, and to promote 

consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e).

Accordingly, the FDCPA broadly enumerates several practices considered contrary to its 

stated purpose, and forbids debt collectors from taking such action. The substantive heart of the 

FDCPA lies in three broad prohibitions. First, a “debt collector may not engage in any conduct 

the natural consequence of which is to harass, oppress, or abuse any person in connection with the 

collection of a debt.” 15 U.S.C. § 1692d. Second, a “debt collector may not use any false, 

deceptive, or misleading representation or means in connection with the collection of any debt.” 

15 U.S.C. § 1692e. And third, a “debt collector may not use unfair or unconscionable means to 

collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Simply, designed to protect consumers 

from unscrupulous collectors, whether or not there exists a valid debt, the FDCPA broadly 

prohibits unfair or unconscionable collection methods, conduct which harasses, oppresses or 

abuses any debtor, and any false, deceptive or misleading statements, in connection with the 

collection of a debt. Baker v. G.C. Services Corp., 677 F. 2d 775 (9th Cir. 1982); Heintz v. Jenkins, 

514 U.S. 291 (1995); McCartney v. First City Bank, 970 F.2d 45 (5th Cir. 1992). 

IV. THE FDCPA IMPOSES A STRICT LIABILITY STANDARD. 

The FDCPA is a strict liability statute. Taylor v. Perrin, Landry, deLaunay & Durand, 103 

F.3d 1232 (5th Cir. 1997); see also Irwin v. Mascott, 112 F. Supp. 2d 937 (N.D. Cal. 2000); 

Pittman v. J.J. Mac Intyre Co. of Nevada, Inc., 969 F. Supp. 609 (D. Nev.1997). “Because the Act 

imposes strict liability, a consumer need not show intentional conduct by the debt collector to be 

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entitled to damages.” Russell v. Equifax A.R.S., 74 F. 3d 30 (2d Cir. 1996); see also Gearing v. 

Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000) (holding unintentional misrepresentation of 

debt collector’s legal status violated FDCPA); Turner v. J.V.D.B. & Associates, Inc., 330 F. 3d 

991, 995 (7th Cir. 2003) (holding unintentional misrepresentation that debtor was obligated to pay 

a debt discharged in bankruptcy violated the FDCPA); Foti v. NCO Financial Systems, Inc., 424 

F. Supp. 2d 643 (S.D. N.Y. 2006); Clomon v. Jackson, 988 F. 2d 1314 (2d Cir. 1993).

V. THE FDCPA MUST BE LIBERALLY CONSTRUED IN FAVOR OF CONSUMERDEBTORS. 

The FDCPA is a remedial statute, and therefore must be construed liberally in favor of the 

debtor. Sprinkle v. SB&C Ltd., 472 F. Supp. 2d 1235 (W.D. Wash. 2006). The remedial nature of 

the FDCPA requires that courts interpret it liberally. Clark v. Capital Credit & Collection Services, 

Inc., 460 F. 3d 1162 (9th Cir. 2006). “Because the FDCPA, like the Truth in Lending Act (TILA) 

15 U.S.C §1601 et seq., is a remedial statute, it should be construed liberally in favor of the 

consumer.” Johnson v. Riddle, 305 F. 3d 1107 (10th Cir. 2002); see e.g. Plummer v. Gordon, 193 

F.Supp.2d 460, 463 (D.Conn.2002); Ross v. Commercial Fin. Servs., 31 F.Supp.2d 1077, 1079 

(N.D. Ill. 1999); Harrison v. NBD, Inc., 968 F. Supp. 837 (E.D. N.Y.1997). 

VI. THE FDCPA IS TO BE INTERPRETED IN ACCORDANCE WITH THE LEAST 

SOPHISTICATED CONSUMER STANDARD. 

The FDCPA is to be interpreted in accordance with the “least sophisticated” or 

“unsophisticated” consumer standard. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th Cir. 

1985) (adopting the “least sophisticated” consumer standard); Graziano v. Harrison, 950 F. 2d 

107 (3d Cir. 1991) (noting that statutory notice under FDCPA is to be interpreted from perspective 

of “least sophisticated debtor” standard); Swanson v. Southern Oregon Credit Service, Inc., 869 

F.2d 1222 (9th Cir. 1988) (holding that provisions of the FDCPA are to be judged under the “least 

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sophisticated debtor” standard); Gammon v. GC Services Ltd. Partnership, 27 F. 3d 1254 (7th Cir. 

1994) (using the “unsophisticated consumer,” rather than the “least sophisticated consumer,” in 

order to protect consumers who are uninformed, naive or trusting, while admitting objective 

element of reasonableness). The least sophisticated consumer standard serves a dual purpose in 

that it ensures protection of all consumers, even naive and trusting, against deceptive debt 

collection practices, and protects debt collectors against liability for bizarre or idiosyncratic 

interpretations of collection notices. Clomon v. Jackson, 988 F. 2d 1314 (2d Cir. 1993). 

VII. DEFENDANT DID NOT EFFECTIVELY DISCLOSE THE IDENTITY OF THE 

CURRENT CREDITOR

15 USC 1692g(a)(2) requires that debt collectors disclose “the name of the creditor to 

whom the debt is owed” in the initial communication with the debtor or within 5 days thereof. 15 

USC 1692a(2). A recent 7th Circuit case discussed in detail the requirements of 15 USC 

1692g(a)(2) and why the letter in that case violated the FDCPA. In Janetos, a debt collector 

Defendant law firm, Fulton Friedman & Gullace, sent an initial letter to the debtor Plaintiff, 

Janetos. Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 320-321 (7th Cir. 2016). 

Asset Acceptance, LLC (“Asset Acceptance”), was the “current creditor” at the time the letter was 

sent. Id. At the top of the letter, it stated: “Re: Asset Acceptance, LLC, Assignee of Chase Bank. 

Id. at Appendix, which includes an actual photocopy of the letter. Further down, it stated the 

account “has been transferred” from Asset Acceptance, LLC to Fulton Friedman and Gullace, 

LLP. Id. Defendants argued that the letter complied because the letter stated that Asset 

Acceptance was the “assignee” of the original creditor, and that the word “transfer” below could 

not reasonably be taken by a debtor to mean that the debt had then been sold to Fulton Friedman 

and Gullace. Id. at 321-25. The Court held not only that the word “transfer” was ambiguous and 

could imply a transfer of ownership, but that the word “assigned” by itself does not mean 

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unequivocally that Asset Acceptance had ever been the creditor. Id. The Court also established 

that “standing alone, the fact that the form letter included the words “Asset Acceptance, LLC” did 

not establish compliance with § 1692g(a)(2).” The letter had to make that identification clearly 

enough that the recipient would likely understand it. Id. at 321. The Court rejected a defense that 

the failure to disclose the current creditor was not “material” by finding that a “materiality” 

requirement does not apply to violations of 15 USC 1692g(a). Id. at 324. 

The detailed analysis of the specific requirements 15 USC 1692(a)(2) by the 7th Circuit is 

wholly in keeping with the 9th Circuit’s own position on the requirements of 15 USC 1692g(a) 

generally, which has remained unchanged in this Circuit since the 1988 Swanson case. Swanson 

v. Southern Oregon Credit Service, Inc., 869 F.2d 1222 (9th Cir. 1988). In that case, the Court held 

that “The statute is not satisfied merely by inclusion of the required debt validation notice; the 

notice Congress required must be conveyed effectively to the debtor.” Id. at 1225. 

If anything, the letter at issue here (See Statement of Facts §§ 3-4, above) even more clearly 

failed to disclose who the “current creditor” than the letter at issue in Janetos. In Janetos, the 

Defendants could at least point to the language at the top of the letter stating that Asset Acceptance 

was the “assignee” of the original creditor. Here, there is no such language. In fact, the letter 

makes no statement of any kind that could be reasonably interpreted as a representation about who 

the current creditor is. 

There are two statements in the letter that could possibly be referencing a current creditor, 

even though both fail to actually state that that entity is the current creditor. First, the header of 

the letter states “Re: Encompass Management Consultants.” Unlike the statement that Asset 

Acceptance was the “assignee of” the original creditor in the Janetos letter, this statement makes 

no representation whatsoever about what role “Encompass Management Consultants” is playing. 

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Given the context of the letter, however, it seems placed there merely to indicate that Encompass 

Management Consultants is the original creditor, and merely has the effect of disclosing what debt 

the letter is about. 

The only other possible clue as to who owns the right to be paid on the debt at the time of 

the letter is in the body of the letter, where it states “The above referenced account has been placed 

with this office for collection.” We contend that this language has the identical effect of the 

language in Janetos that the debt had been “transferred” to the attorney’s office. The verb “placed” 

in context could mean that the debt was sold to National Credit Systems, Inc. by a previous owner, 

or it could also mean that National Credit Systems, Inc. was hired by the current creditor to take 

action to collect the debt. There are no other clues that would allow anybody, let alone a “least 

sophisticated consumer,” to determine the identity of the current creditor.

Finally, Plaintiff notes that to the extent “Encompass Management Consultants” was the 

current creditor as of the date of the letter, Defendant may have failed to indicate their identity by 

failing to accurately sate the name of that entity. The “validation documents” sent by Defendant 

to Plaintiff indicate that the name of the original creditor is actually “Encompass Management & 

Consulting, LLC,” which is a substantially different name than the one listed on the letter. 

VIII. DEFENDANT DID NOT EFFECTIVELY DISCLOSE THE AMOUNT OF THE 

DEBT

15 USC 1692g(a)(1) requires that the letter disclose the amount of the debt, in addition to 

who owns it. Again, this is something the letter fails to do with sufficient clarity, and in this case 

the lack of clarity mainly pertains to the ability of the application of future interest and fees to 

increase the balance. A statement about whether interest is or is not accruing on a balance as stated 

by a debt collector is important. The reason why it is so important was explained most eloquently 

by the New Jersey District Court in Marucci. Marucci v. Cawley & Bergmann, LLP, 66 F.Supp.3d 

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559 (2014). In Marucci, a debt collector was sent by an attorney’s office, Cawley & Bergmann, 

LLP, to a debtor, Marucci. The issue before the Court was a Motion to Dismiss filed by the 

Defendants. The Court denied the Motion with respect to the 15 USC 1692g(a)(1) violation. 

Quoting that opinion regarding the letter: “The Letter made no statement regarding interest; it did 

not disclose, for example, whether interest was accruing, the interest rate, or the portion of the total 

Debt that was attributable to accrued interest or other fees. (Id. ¶ 17).” Id. at 561. In Marucci, the 

Court denied the Motion to Dismiss because “there is no indication of whether interest has accrued 

or will continue to accrue” and because “the complaint supports the inference that interest is 

running with a plausible factual allegation.” Id. at 567. The Marucci court also cited numerous 

other cases both for and against the position that interest must be disclosed as part of a 15 USC 

1692g(a) violation, finding those that did require interest to be disclosed as more persuasive. Id. 

at 565-566. 

A recent 2nd Circuit appellate case came to a similar conclusion, but, in addition, required 

a disclosure that the debt could also be increased due to fees, as well as interest. Avila v. Riexinger 

& Associates, LLC, 817 F.3d 72: 

Because the statement of an amount due, without notice that the 

amount is already increasing due to accruing interest or other charges, 

can mislead the least sophisticated consumer into believing that 

payment of the amount stated will clear her account, we hold that the 

FDCPA requires debt collectors, when they notify consumers of their 

account balance, to disclose that the balance may increase due to 

interest and fees.

More close to home, in Snyder, a District Court in Washington held that a letter violated 

the FDCPA by failing to disclose whether or not interest was accruing on a balance. Snyder v. 

Daniel N. Gordon, PC, No. C11-1379 RAJ, 2012 WL 3643673 (W.D. Wash. Aug. 24, 2012). In 

Snyder, the Defendant Daniel N. Gordon, PC, sent several letters to Plaintiff, none of which 

included any disclosure of whether interest was accruing on the balance. The court held that:

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the “least sophisticated consumer” could have read these 

letters in at least two different ways. On one hand, an 

unsophisticated consumer could reasonably conclude that the 

balance was a fixed amount that would not be subject to further 

interest, late fees, or other charges. On the other, an 

unsophisticated consumer could just as reasonably determine 

that the balance would continue to grow over time as interest 

accrued. One of those meanings would necessarily be 

inaccurate. Therefore, the court finds that Defendants' letters 

were deceptive as a matter of law.2 Courts in other districts 

have reached the same conclusion on similar 

facts. See Michalek v. ARS Nat'l. Sys., Inc. ., No. 3:11–CV–

1374, 2011 WL 6180498, at *4 (M.D.Pa. Dec.13, 

2011) (holding that the term “balance” has more than one 

meaning); Dragon v. I.C. Sys., 483 F.Supp.2d 198, 203 

(D.Conn.2007) (holding that a reference to a “sum certain” was 

deceptive as a matter of law). The court grants Ms. Snyder's 

motion for summary judgment on this issue.

It is important to note that the Snyder Court did not find the question of whether interest 

was in fact accruing on the balance to be relevant to the question of whether the balance statement 

was confusing. Rather, the violation consisted in the fact that no indication was given either way 

regarding interest, such that it would be reasonable for a consumer to take either view, either that 

interest was accruing or it was not. 

Applying the standards as set out by Snyder and other cases, the letter in question here is 

also deceptive and does not adequately state the amount of the debt. The question of whether 

interest or fees are actually accruing should not be relevant. The question should be whether the 

letter itself makes that point clear. Defendant could have satisfied this requirement by simply 

stating that “no interest or fees will accrue on this balance” in the letter, but it did not do so and 

therefore the initial letter to Plaintiff was confusing and deceptive.

IX. BONA FIDE ERROR

Defendant has pled the bona fide error defense, but such defense does not apply in a case 

where the violation is contained in a form letter that Defendant has purposefully designed to use 

to send to debtors. Such a violation can only result from a “mistake of law,” which cannot form 

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the basis of a bona fide error defense. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 

559 US 573 (2010). 

X. CONCLUSION

The evidence and legal reasoning provided herein establishes that Plaintiff has standing to 

bring an FDCPA claim, that Defendant was subject to the FDCPA’s provisions as a “debt 

collector” when it sent the letter, that Defendant’s letter of February 5, 2015, violated 15 USC 

1692g(a) in 2 discrete ways, and that Defendant is not entitled to the bona fide error defense with 

regard to either violation. As such, Plaintiff asks this Court to enter summary judgment in 

Plaintiff’s favor as to liability against Defendant in the sole cause of action, with damages to 

remain as an issue for trial. 

 

Dated this 23rd day of September, 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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