Duell v. First National Bank of Omaha et al

MOTION for Summary Judgment or alternatively, Summary Adjudication against Defendant The Dunning Law Firm

S.D. Cal.July 15, 2016

PLAINTIFF KAREN DUELL’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (249203) ak@kazlg.com Matthew M. Loker, Esq. (279939) ml@kazlg.com 245 Fisher Avenue, Unit D1 Costa Mesa, California 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (225557) josh@westcoastlitigation.com Sara Khrosroabadi, Esq. (299642) sara@westcoastlitigation.com 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff, Karen Duell UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA /// KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA; AND, THE DUNNING LAW FIRM, Defendants. Case No.: 14-cv-2774 WQH (JLB) PLAINTIFF KAREN DUELL’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION AGAINST DEFENDANT THE DUNNING LAW FIRM DATE: August 22, 2016 COURTROOM: 14B HON. WILLIAM Q. HAYES NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:14-cv-02774-WQH-BGS Document 59 Filed 07/15/16 Page 1 of 2 PLAINTIFF KAREN DUELL’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on AUGUST 22, 2016 or as soon thereafter as the matter may be heard in COURTROOM 14B of the above-captioned Court located at 333 WEST BROADWAY, SAN DIEGO, CA 92101, Plaintiff KAREN DUELL (“Plaintiff”) through Plaintiff’s attorney of record, will move the Court, for an entry of Summary Judgment, or alternatively, Summary Adjudication, against Defendant THE DUNNING LAW FIRM (“Dunning”) with respect to Plaintiff’s causes of action for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.; and, the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§1788 et seq. (“RFDCPA”). As established in Plaintiff’s Memorandum of Points and Authorities in support of Plaintiff’s Motion, Defendant violated the FDCPA; and, RFDCPA by misrepresenting that co-Defendant FIRST NATIONAL BANK OF OMAHA (“FNBO”) was aware of the new payment terms negotiated between Dunning and Plaintiff. This motion is made pursuant to Fed. R. Civ. P. 56, on the grounds that there is no defense to the action, there is no triable issue as to any material fact, and that Plaintiff is entitled to a judgment as a matter of law. Said Motion is supported by Plaintiff’s Memorandum of Points and Authorities, the attached declaration of Plaintiff, the attached Declaration of Abbas Kazerounian, Esq., the Separate Statement of Undisputed Facts, the evidence and case law, the pleadings, documents, records and files in this action, and such oral and documentary evidence and argument which may be presented at the hearing on this motion. Date: July 15, 2016 KAZEROUNI LAW GROUP, APC BY: ___/s/ Abbas Kazerounian___ ABBAS KAZEROUNIAN, ESQ. ATTORNEY FOR PLAINTIFF Case 3:14-cv-02774-WQH-BGS Document 59 Filed 07/15/16 Page 2 of 2 PLAINTIFF KAREN DUELL’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (249203) ak@kazlg.com Matthew M. Loker, Esq. (279939) ml@kazlg.com 245 Fisher Avenue, Unit D1 Costa Mesa, California 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (225557) josh@westcoastlitigation.com Sara Khrosroabadi, Esq. (299642) sara@westcoastlitigation.com 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff, Karen Duell UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA /// /// KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA; AND, THE DUNNING LAW FIRM, Defendants. Case No.: 14-cv-2774 WQH (JLB) PLAINTIFF KAREN DUELL’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM DATE: August 22, 2016 COURTROOM: 14B HON. WILLIAM Q. HAYES NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 1 of 20 TABLE OF CONTENTS & TABLE OF AUTHORITIES PAGE I OF V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 FI SC H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................. 1 II. STATUTORY BACKGROUND ...................................................................... 1 A. FEDERAL FAIR DEBT COLLECTION PRACTICES ACT ............................... 1 B. ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT .......................... 2 III. FACTUAL BACKGROUND ............................................................................ 3 IV. LEGAL STANDARD ....................................................................................... 5 V. ARGUMENT ..................................................................................................... 6 A. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AGAINST DUNNING PURSUANT TO THE FDCPA; AND, THE RFDCPA ................................. 7 1. Plaintiff is a “debtor” as defined by Cal. Civ. Code § 1788.2(h) .................................................................................. 8 2. Plaintiff is a “consumer” as that term is defined by 15 U.S.C. § 1692a(3) ................................................................................ 8 3. Dunning was attempting to collect a “consumer debt” as that term is defined by Cal. Civ. Code § 1788.2(f) ......................... 9 4. Dunning was attempting to collect a “debt” from Plaintiff as that term is defined by 15 U.S.C. § 1692a(5) ........................... 9 5. Plaintiff’s debt was incurred by reason of a “consumer credit transaction” as defined by Cal. Civ. Code § 1788.2(e) ......... 10 6. Dunning is a “debt collector” as defined by Cal. Civ. Code § 1788.2(c) ................................................................................ 11 7. Dunning is a “debt collector” as that term is defined by 15 U.S.C. § 1692a(6) .................................................................. 11 8. Dunning’s collection activity violated the FDCPA; and, RFDCPA ................................................................................ 12 a. Dunning’s conduct herein constitutes a violation of Cal. Civ. Code § 1788.17 and 15 U.S.C. § 1692e since Dunning’s February 24, 2014 written communication gave the false impression of FNBO’s prior approval ..... 13 b. FNBO’s conduct herein constitutes a violation of Cal. Civ. Code § 1788.17 and 15 U.S.C. § 1692e(10) since FNBO used false representations and deceptive means to collect Plaintiff’s alleged debt ........................................ 13 Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 2 of 20 TABLE OF CONTENTS & TABLE OF AUTHORITIES PAGE II OF V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 FI SC H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 VI. CONCLUSION ................................................................................................ 14 Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 3 of 20 TABLE OF CONTENTS & TABLE OF AUTHORITIES PAGE III OF V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 FI SC H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 TABLE OF AUTHORITIES CASES PAGE(S) A&E Prods. Grp. L.P. v. Mainetti USA, Inc., 2004 U.S. Dist. LEXIS 2904 (S.D.N.Y 2004) .............................................. 10 Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986) .................................................................................... 5, 6 Ansari v. Elec. Document Processing Inc., 2013 U.S. Dist. LEXIS 124798 (N.D. Cal. 2013) ......................................... 12 Baker v. G.C. Services Corp., 677 F.2d 775 (9th Cir. 1982) ............................................................................ 2 Branco v. Credit Collection Servs. 2011 U.S. Dist. LEXIS 94077 (E.D. Cal. 2011) ............................................. 2 Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772 (9th Cir. 1998) ............................................................................ 5 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................................................ 5 Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir. 2006) .......................................................................... 2 Clomon v. Jackson, 988 F.2d 1314-1318-19 (2d Cir. 1993) ........................................................... 2 Cutler ex rel. Jay v. Sallie Mae, Inc., 2014 U.S. Dist. LEXIS 181914 (C.D. Cal. 2014) ..................................... 3, 12 Duell v. First Nat’l Bank of Omaha, 2015 U.S. Dist. LEXIS 99169 (S.D. Cal. 2015) ........................................... 12 Dunaway v. JBC & Assocs., 2005 U.S. Dist. LEXIS 48621 ......................................................................... 2 Fox v. Citicorp Credit Servs., 15 F. 3d 1507 (9th Cir. 1994) ....................................................................... 2, 3 Gates v. MCT Grp., Inc., 2015 U.S. Dist. LEXIS 41223 (S.D. Cal. 2015) ........................................... 12 Gonzales v. Arrow Fin. Servs. LLC, 233 F.R.D. 577 (S.D. Cal. 2006) ................................................................... 12 Gordon v. Credit Bureau of Lancaster & Palmdale, 2012 U.S. Dist. LEXIS 72868 (C.D. Cal. 2012) ............................................. 2 Gouskos v. Aptos Vill. Garage, 94 Cal. App. 4th 754 (2001) ............................................................................. 9 Graziano v. Harrison, 960 F.2d 107 (3d Cir. 1991) ............................................................................ 2 Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 4 of 20 TABLE OF CONTENTS & TABLE OF AUTHORITIES PAGE IV OF V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 FI SC H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 Hansen v. Am. W. Airlines, Inc., 544 F. Supp. 2d 1038 (C.D. Cal. 2008) ........................................................... 6 Hawaiian Paradise Park Corp. v. Friendly Broad. Co., 414 F.2d 750 (9th Cir. 1969) ............................................................................ 6 Hoot Winc., L.L.C. v. RSM McGladrey Fin. Process Outsourcing, LLC, 2011 U.S. Dist. LEXIS 16994 (S.D. Cal. 2011) ............................................. 3 Hosseinzadeh v. M.R.S. Assoc., 287 F. Supp. 2d 1104 (C.D. Cal. 2005) ..................................................... 7, 12 Huy Thanh Vo. v. Nelson & Kennard, 931 F. Supp. 2d 1080 (E.D. Cal. 2013) ........................................................... 8 In re Eastman, 419 B.R. 711 (W.D. Tex. 2009) .................................................................... 14 Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th Cir. 1985) ........................................................................ 2 Lewis v. ABC Bus. Servs. Inc., 135 F.3d 389 (6th Cir. 1998) ............................................................................ 2 Long v. Nationwide Legal File & Serve, Inc., 2013 U.S. Dist. LEXIS 132971 (N.D. Cal. 2013) ........................................... 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ........................................................................................ 2 McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011) ............................................................................ 3 McCollough v. Lennar Corp., 2011 U.S. Dist. LEXIS 44804 (S.D. Cal. 2011) ............................................. 3 Mejia v. Marauder Corp., 2007 U.S. Dist. LEXIS 21313 (N.D. Cal. 2007) ........................................... 11 Miranda v. Law Office of D. Scott Carruthers, 2011 WL 2037556 (E.D. Cal. 2011) ............................................................... 7 Munekiyo v. Capital One Bank, N.A., 2011 U.S. Dist. LEXIS 140213 (C.D. Cal. 2011) ........................................... 2 Murphy v. Bronson, Cawley & Bergman, LLP, 2011 WL 2413447 (S.D. Cal. 2011) ......................................................... 2, 12 Palmer v. Strassinos, 233 F.R.D. 546 (N.D. Cal. 2006) .................................................................. 12 Reichert v. National Credit Systems, Inc., 531 F.3d 1002 (9th Cir. 2008) .......................................................................... 5 Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 5 of 20 TABLE OF CONTENTS & TABLE OF AUTHORITIES PAGE V OF V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 FI SC H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 Resolution Trust Corp. v. Farmer, 1994 U.S. Dist. LEXIS 8755 (E.D. Pa. 1994) ............................................... 10 Roche v. Bank of America, 2013 U.S. Dist. LEXIS 95646 (S.D. Cal. 2013) ............................................. 9 Smith v. Transworld Systems, Inc., 953 F.2d 1025 (6th Cir. 1992) .......................................................................... 2 Teemogonwuno v. Todd, Bremer & Larsen, Inc., 1991 U.S. Dist. LEXIS 21720 (N.D. Ga. 1991) ............................................ 14 Tong v. Capital Management Services Group, Inc., 520 F. Supp. 2d 1145 (N.D. Cal. 2007) .......................................................... 7 Townsend v. National Arbitration Forum, Inc., 2012 WL 12736 (C.D. Cal. 2012) ................................................................... 7 Turner v. Cook 362 F.3d 1219 (9th Cir. 2004) .......................................................................... 7 Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989) .......................................................................... 5 Vasquez-Estrada v. Collecto, Inc., 2015 U.S. Dist. LEXIS 142280 (D. Or. 2015) ................................................ 8 Wade v. Regional Credit Association, 87 F.3d 1098 (9th Cir. 1996) ........................................................................ 1, 2 Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 6 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 1 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 I. INTRODUCTION This lawsuit arises out of Defendant THE DUNNING LAW FIRM’s (“Dunning”) violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.; and, the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§1788 et seq. (“RFDCPA”). As demonstrated by Plaintiff KAREN DUELL’s (“Plaintiff”) Motion, there is no dispute regarding the material facts that make up Plaintiff’s claims against Dunning entitling Plaintiff to summary judgment as a matter of law. Dunning deceptively misrepresented that co-Defendant FIRST NATIONAL BANK OF OMAHA (“FNBO”) had actual knowledge of the February 24, 2014 payment arrangement between Plaintiff and Dunning. While Plaintiff complied with this agreed-upon payment arrangement, FNBO failed to accurately document said payments on Plaintiff’s credit report causing Plaintiff damages. Therefore, Plaintiff respectfully requests the Court grant Plaintiff’s Motion for Summary Judgment as Dunning’s liability to Plaintiff. In the alternative, Plaintiff also seeks Summary Adjudication in order to more narrow the issues for trial. II. STATUTORY BACKGROUND A. FEDERAL FAIR DEBT COLLECTION PRACTICES ACT Congress enacted the Fair Debt Collection Practices Act in 1977 to eliminate abusive debt collection practices, to insure 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. § 1692e; see also Wade v. Regional Credit Association, 87 F.3d 1098, 1099 (9th Cir. 1996) (discussing the purpose of the FDCPA). 1 As such, the statute is liberally construed to protect the “least 1 “Collection abuse takes many forms, including obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer’s legal rights, disclosing a consumer’s personal affairs to friends, neighbors, or an employee, obtaining Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 7 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 2 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 sophisticated consumer.” Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1171 (9th Cir. 2006). This standard has been adopted by all federal appellate courts that have considered the issue, including the Ninth Circuit. See Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1028 (6th Cir. 1992); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1174-74 (11th Cir. 1985); Baker v. G.C. Services Corp., 677 F.2d 775, 778 (9th Cir. 1982). This objective standard will ensure that the FDCPA protects all consumers, the gullible as well as the shrewd, the ignorant, the unthinking and the credulous. Clark, 634 F.Supp.2d at 1171 (citing Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993)). B. ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT The RFDCPA, like its federal counterpart, is designed to protect consumers from unfair and abusive debt collection practices. See Cal. Civ. Code § 1788.1. The RFDCPA is a strict liability statute. See Branco v. Credit Collection Servs., 2011 U.S. Dist. LEXIS 94077, 26 (E.D. Cal. Aug. 23, 2011); Clark v. Capital Credit & Collection Servs., 460 F.3d 1162 (9th Cir. 2006); Gordon v. Credit Bureau of Lancaster & Palmdale, 2012 U.S. Dist. LEXIS 72868, 4 (C.D. Cal. Apr. 20, 2012). “Whether or not a communication or debt collection practice is deceptive under the RFDCPA is [also] determined from the standpoint of the ‘least sophisticated debtor.’” Munekiyo v. Capital One Bank, N.A., 2011 U.S. Dist. LEXIS 140213, 15 (C.D. Cal. Dec. 5, 2011) (citing Wade v. Regional Credit Ass'n, 87 F.3d 1098, 1100 (9th Cir. 1996). The RFDCPA, California’s version of the FDCPA, “either mimics the relevant provisions of the FDCPA or incorporates them by reference. Murphy v. Bronson, Cawley & Bergmann, LLP, 3:10-cv-1929 AJG (RBB), 2011 WL information about a consumer through false pretense, impersonating public officials and attorneys, and simulating legal process.” See Lewis v. ABC Bus. Servs., Inc., 135 F.3d 389, 398 (6th Cir. 1998) quoting S. Rep. No. 382 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696). See also Dunaway v. JBC & Assocs., 2005 U.S. Dist. LEXIS 48621, at *6-7, 2005 WL 1529574. Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 8 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 3 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 2413447, at *6 (S.D. Cal. Jun 13, 2011)…” Cutler ex rel. Jay v. Sallie Mae, Inc., EDCV13-2142 MWF (DTBx), 2014 U.S. Dist. LEXIS 181914, at *3 (C.D. Cal. Sept. 9, 2014). In the interest of judicial economy, Plaintiff analyzes Dunning’s violations of the FDCPA and RFDCPA identically. III. FACTUAL BACKGROUND Sometime before 2014, Plaintiff allegedly incurred financial obligations to the original creditor, FIRST NATIONAL BANK OF OMAHA (“FNBO”), for a credit card. [Plaintiff’s Separate Statement of Undisputed Material Facts (“SSUMF”) No. 1; Declaration of Karen Duell (“KD Decl.”), ¶ 3; Karen Duell Deposition Transcript (“KD Transcript”), 46:19-21 (“Q: Was the First National Bank of Omaha a credit card that you opened? A: Yes.”); Michael Duell Deposition Transcript (“MD Transcript”), 15:15-24 (“Q: Was that a credit card [Plaintiff] took out individually? A: Yes, sir.”)]. Said financial obligations constitute a “consumer debt” as that term is defined by California Civil Code § 1788.2(f); and, a “debt” as that term is defined by 15 U.S.C. § 1692a(5). [SSUMF Nos. 2 and 3; and, KD Decl. ¶¶ 4-5]. Sometime after incurring this alleged debt, Plaintiff allegedly fell behind in the payments allegedly owed on the alleged debt. [SSUMF, No. 4; and, KD Decl. ¶ 6]. As a result, FNBO transferred Plaintiff’s debt to Dunning to collect on behalf of FNBO. [See Exhibit 1 attached to KD Decl.; and, KD Decl., ¶ 7]. FNBO admits that Dunning has authority to settle accounts on behalf of FNBO without FNBO’s prior approval if the terms of said settlement are within a predetermined range. [SSUMF No. 4; Deposition Transcript of Paul Osborne attached as Exhibit 1 to the Declaration of Abbas Kazerounian (“Kazerounian Decl.”), 15:8-10; 20:13-18; and, 21:17-23]. This relationship was confirmed by Dunning. [Deposition Transcript of James MacLeod attached as Exhibit 2 to Kazerounian Decl., 17:18-25; 18:2-9; 22:21-24; and, 35:3-9]. /// Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 9 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 4 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 In this regard, Dunning sent a written communication to Plaintiff dated February 14, 2014. [SSUMF No. 5; and, Exhibit 1 attached to KD Decl.]. Shortly thereafter, Plaintiff’s husband, Michael Duell (“Mr. Duell”), contacted Dunning to settle this consumer account. [SSUMF No. 6; MacLeod Transcript, 17:7-25; and, MD Decl., 6]. During this telephonic communication, Mr. Duell and Mr. MacLeod settled Plaintiff’s FNBO debt for payments of $170.00 per month. [SSUMF No. 7; MacLeod Transcript, 21:18-21; KD Decl., ¶ 10; and, MD Decl., ¶ 8]. To dispel any ambiguity, Mr. MacLeod memorialized the new payments terms in a written communication dated February 24, 2014. [SSUMF No. 8; see Exhibit 2 attached to KD Decl.; Dunning’s Answer to Plaintiff’s Second Amended Complaint, ECF No. 55 (“Dunning Answer”), ¶ 29; and, MacLeod Transcript, 34:18-21].2 Mr. MacLeod’s February 24, 2014 written communication confirmed that “[a]s long as [Plaintiff was] current on [Plaintiff’s] payments, [FNBO] will refrain from further collection activities.” [Id.; and, Deposition Transcript of John Ulzheimer (“Ulzheimer Transcript”), 24:1-5 (“It is my understanding that plaintiff had a credit card relationship with one of the defendants, First National Bank of Omaha, and she went into default on that particular account. And I guess she working [sic] with the other defendant in this case, the Dunning Law Firm, to work out some sort of payment arrangement with them.”)]. Pursuant to the terms of this Agreement, Plaintiff made minimum payments of $170 each month to satisfy Plaintiff’s FNBO obligation. [KD Decl., ¶ 13; MD Decl., ¶ 9 and, MD Transcript, 47:5-7].3 In fact, Plaintiff often paid more than $170 in order to resolve Plaintiff’s FNBO credit card more expeditiously. [Id.]. Despite Dunning’s representation that payment of at least $170 per month would preclude further collection activity, FNBO reported to the Credit Bureaus that 2 Q: ...my understanding is that the minimum obligation was $170 a month; is that correct? A: Yes. 3 Q: Were you ever untimely on any of the $170 checks? A: No. Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 10 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 5 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 Plaintiff was delinquent each month. This false representation by Dunning constitutes Dunning’s violations of the FDCPA; and, RFDCPA. Therefore, Plaintiff respectfully requests the Court grant Plaintiff’s Motion for Summary Judgment as to the liability of Dunning to Plaintiff. In the alternative, Plaintiff also seeks Summary Adjudication in order to more narrow the issues for trial. IV. LEGAL STANDARD Summary judgment, or alternatively, summary adjudication, is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (Ninth Circuit applied same standard to both Summary Judgment and Summary Adjudication Motions). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party so moving bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non- moving party’s case. Celotex Corp. v. Catrett,, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Alternatively, the movant can demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). The court must view any inferences drawn from the underlying facts in the light most favorable to the non- Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 11 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 6 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In its inquiry, the court cannot engage in credibility determinations or weigh the evidence because these functions are reserved for the jury. Anderson, 477 U.S. at 255. As established below, Summary Judgment is warranted because Dunning violated the FDCPA; and, RFDCPA by falsely representing that payments of $170 per month would avoid further collection activity by FNBO and that FNBO was on notice of this payment arrangement in February 2014. In the alternative, Plaintiff requests Summary Adjudication in order to narrow the issues at trial. V. ARGUMENT Neither Dunning nor FNBO dispute that Dunning was authorized to act as FNBO’s agent. [See Osborne Transcript, 15:8-10; 20:13-18; and, 21:17-23; and, MacLeod Transcript, 17:18-25; 18:2-9; 22:21-24; and, 35:3-9]. As a result of this undisputed relationship, Dunning was permitted to resolve debts with consumers within certain payment thresholds. [Osborne Transcript, 49:13-15]. Given the relationship between the Parties, any payment arrangements agreed to by Dunning on behalf of FNBO were binding upon FNBO. See McCullough v. Lennar Corp., 2011 U.S. Dist. LEXIS 44804, at *32-33 (S.D. Cal. 2011). (“An agent ‘has the power to bind his principal only if he has actual or apparent authority to do so.’”); Hawaiian Paradise Park Corp. v. Friendly Broad. Co., 414 F.2d 750, 755 (9th Cir. 1969) (same); Hoot Winc., L.L.C. v. RSM McGladrey Fin. Process Outsourcing, LLC, 2011 U.S. Dist. LEXIS 16994, at *6 (S.D. Cal. 2011) (“As a general rule, a principal is bound by, and is liable upon, a contract executed by his agent within the actual or apparent authority of the agent, and with the understanding the agent is contracting on behalf of the principal.”); and, Hanson v. Am. W. Airlines, Inc., 544 F. Supp. 2d 1038, 1043 (C.D. Cal. 2008) (same). FNBO; however, was only notified of a payment arrange between Dunning and a consumer on behalf of FNBO if said payment arrangement was outside the Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 12 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 7 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 predetermined parameters. [Osborne Transcript, 49: 16-20; and, 50:8-11]. Here, Plaintiff’s payment arrangement of $170 per month was within these acceptable parameters. [MacLeod Transcript, 22:1-13 (“The bank lets me do up to 36 months. If we do the max it’s $170.”). Since the payment arrangement was a maximum of 36 months, Dunning was within the threshold permitted by FNBO and did not need special permission to agree to this payment term. [Id. at 23:1-5]. As such, the modified payment terms did not appear in FNBO’s account notes. [Osborne Transcript, 49: 16-20; and, 50:8-11]. Unbeknownst to Plaintiff, Dunning did not provide notice of said payment arrangement to FNBO. [Id.]. This lack of notation and/or notice from Dunning caused FNBO to disregard the binding payment arrangements and inaccurately report Plaintiff’s payment status to the Credit Bureaus. As such, Plaintiff seeks summary judgment against Dunning with regard to the FDCPA and RFDCPA. A. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AGAINST DUNNING PURSUANT TO THE FDCPA; AND, RFDCA. When alleging a claim under the FDCPA and/or RFDCPA, a plaintiff must establish that (1) the plaintiff is a “debtor”; (2) who was the object of a collection activity arising from a “consumer debt”; (3) the defendant is a “debt collector”; and, (4) the defendant violated a provision of the FDCPA and/or RFDCPA. Townsend v. National Arbitration Forum, Inc., 2012 WL 12736, *8 (C.D. Cal. Jan. 4 2012) (citing Miranda v. Law Office of D. Scott Carruthers, 2011 WL 2037556, *4 (E.D. Cal. May 23, 2011); Turner v. Cook, 362 F.3d 1219, 1227-28 (9th Cir. 2004)). The provisions of the FDCPA are incorporated in the RFDCPA under Cal. Civ. Code § 1788.17; consequently, conduct by a debt collector that violates the FDCPA violates the RFDCPA as well. See Cal. Civ. Code § 1788.17; see also, Hosseinzadeh v. M.R.S. Assoc., 387 F.Supp.2d 1104, 1118 (C.D. Cal. 2005); Tong v. Capital Management Services Group, Inc., 520 F.Supp.2d 1145, 1149 (N.D. Cal. 2007); Alkan v. Citimortgage, Inc., 336 F.Supp.2d 1061, 1065 (N.D. Cal. 2004). /// Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 13 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 8 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 Here, Plaintiff is entitled to summary judgment because: (1) Plaintiff is a “debtor” as defined by the FDCPA and RFDCPA; (2) FNBO was attempting to collect a “consumer debt” as defined by the FDCPA and RFDCPA; (3) FNBO is a “debt collector” as defined by the FDCPA and RFDCPA; and, (4) FNBO violated multiple provisions of the FDCPA and RFDCPA. 1. Plaintiff is a “debtor” as defined by Cal. Civ. Code § 1788.2(h). Pursuant to the RFDCPA, the term “debtor” means “a natural person from whom a debt collector seeks to collect a consumer debt which is due and owing or alleged to be due and owing from such person.” See Cal. Civ. Code § 1788.2(h); Huy Thanh Vo. v. Nelson & Kennard, 931 F. Supp. 2d 1080, 1090 (E.D. Cal. 2013). Here, there is no credible dispute that Plaintiff is a “debtor.” [Declaration of Karen Duell (“KD Decl.”), ¶¶ 3-5]. While Dunning lacked sufficient information on this issue, FNBO, the Party with access to the records, admitted that Plaintiff is a “debtor” in responding to Plaintiff’s Request for Admission No. 4. [See Exhibit 3 attached to Kazerounian Decl.].4 Thus, Plaintiff’s Motion should be granted with regard to this element since there is no triable issue of fact that Plaintiff is a “debtor” as defined by the RFDCPA. 2. Plaintiff is a “consumer” as that term is defined by 15 U.S.C. § 1692a(3). Similarly, the term “consumer” means “any natural person obligated or allegedly obligated to pay any debt.” See 15 U.S.C. § 1692a(3); and, Vasquez- Estrada v. Collecto, Inc., 2015 U.S. Dist. LEXIS 142280, at *22-23 (D. Or. 2015). Quite simply, Plaintiff is a natural person that was obligated to pay an alleged debt to FNBO. [KD Decl., ¶¶ 3-5]. Thus, Plaintiff’s Motion should be granted with regard to this element since there is no triable issue of fact that Plaintiff is a “consumer” as defined by the FDCPA. 4 Request No. 5: Admit that Plaintiff is a ‘debtor’ as that term is defined by Cal. Civ. Code § 1788.2(h). Response: Object to the form calls for a legal conclusion [sic]. Without waiving said objection, [FNBO] admits that Plaintiff is a debtor. Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 14 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 9 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 3. Dunning was attempting to collect a “consumer debt” as defined by Cal. Civ. Code § 1788.2(f) from Plaintiff. The RFDCPA defines the term “consumer debt” as “money, property or their equivalent, due or owing or alleged to be due or owing from a natural person by reason of a consumer credit transaction.” See Gouskos v. Aptos Vill. Garage, 94 Cal. App. 4th 754, 759 (2001); and, Roche v. Bank of America, 2013 U.S. Dist. LEXIS 95646 (S.D. Cal. 2013). As before, Dunning lacked sufficient information regarding the nature of Plaintiff’s alleged debt. However, FNBO, the Party with access to these records, again admitted that Plaintiff “ha[d] an outstanding credit card obligation with FNBO.” [See FNBO’s Answer to Plaintiff’s Second Amended Complaint, ECF No. 56 (“FNBO Answer”), ¶ 13]. Said admission is also confirmed by Plaintiff in Response to Dunning’s Requests for Admissions when Plaintiff confirmed that Plaintiff owed an alleged debt to FNBO. [See Plaintiff’s Responses to Requests for Admissions Nos. 7; and, 8 attached as Exhibit 4 to the Declaration of Abbas Kazerounian; see also KD Transcript, 46:19-21 (“Q: Was the First National Bank of Omaha a credit card that you opened? A: Yes.”)]. Plaintiff further explained that Plaintiff’s alleged debt was solely personal in nature during Plaintiff’s Deposition as well as in the attached Declaration. [KD Decl., ¶ 6]. Thus, Plaintiff’s Motion should be granted with regard to this element since there is no triable issue of fact that Plaintiff’s alleged debt was a “consumer debt” as defined by the RFDCPA. 4. Dunning was attempting to collect a “debt” from Plaintiff as that term is defined by 15 U.S.C. § 1692a(5). The term “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for person, family, or household purposes, whether or not such obligation has been reduced to judgment. See 15 U.S.C. § 1692a(5); and, Long v. Nationwide Legal File & Serve, Inc., 2013 U.S. Dist. LEXIS 132971, at *34-35 (N.D. Cal. 2013). Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 15 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 10 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 Likewise, Plaintiff’s consumer credit card also constitutes a “debt” as defined by the FDCPA as admitted by Dunning. [See FNBO Answer, ¶ 13; Plaintiff’s Responses to Requests for Admissions Nos. 7- 8; and, KD Transcript, 46:19-21.] Thus, Plaintiff’s Motion should be granted with regard to this element since there is no triable issue of fact that Plaintiff’s alleged debt was a “consumer debt” as defined by the FDCPA. 5. Plaintiff’s debt was incurred by reason of a “consumer credit transaction” as defined by Cal. Civ. Code § 1788.2(e). The phrase “consumer credit transaction” means a “transaction between a natural person and another person in which property, services or money is acquired on credit by the natural person from such other person primarily for personal, family, or household purposes.” Cal. Civ. Code § 1788.2(e); Gouskos v. Aptos Vill. Garage, 94 Cal. App. 4th 754, 759 (2001); and, Roche v. Bank of America, 2013 U.S. Dist. LEXIS 95646 (S.D. Cal. 2013). As previously stated, FNBO, the party with access to the information, admits that Plaintiff’s alleged debt was for a credit card. [SAC, ¶ 13]. In addition, said credit card was used solely for personal, family and household purposes. [KD Decl., ¶¶ 4-6]. At no point did Plaintiff utilize Plaintiff’s FNBO credit card to make any purchases of any kind in furtherance of any business. [Id.]. Moreover, Dunning’s witness designated pursuant to Federal Rule 30(b)(6), James MacLeod, Esq., also characterized Plaintiff’s alleged debt as a “consumer credit transaction.” [See MacLeod Transcript, 20:6-11].5 Thus, Plaintiff’s Motion should be granted with regard to this element since there is no triable issue of fact that Plaintiff’s alleged debt was incurred by reason of a “consumer credit transaction” as defined by the RFDCPA. /// 5 Testimony of a witness so designated is binding upon a corporation. See, e.g., A&E Prods. Grp., L.P. v. Mainetti USA, Inc. 2004 U.S. Dist. LEXIS 2904, at *19 (S.D.N.Y. Feb. 25, 2004); Resolution Trust Corp. v. Farmer, 1994 U.S. Dist. LEXIS 8755, at *5 (E.D. Pa. June 23, 1994) (“The purpose behind Rule 30(b)(6) is to create testimony that will bind the corporation.”) Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 16 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 11 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 6. Dunning is a “debt collector” as defined by Cal. Civ. Code § 1788.2(c). The RFDCPA defines the term “debt collector” as “any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.” See Cal. Civ. Code § 1788.2(c); Mejia v. Marauder Corp., 2007 U.S. Dist. LEXIS 21313 (N.D. Cal. 2007). Here, there is no triable issue of fact with regard to Dunning’s status as a “debt collector” as defined by the RFDCPA. Dunning readily admitted that Dunning is a debt collector in Dunning’s Answer to Plaintiff’s Second Amended Complaint, ¶ 15. [See ECF No. 55]. Thereafter, Dunning again admitted as such in Dunning’s response to Plaintiff’s Request for Admission on the issue. [A true and correct copy of Dunning’s Response is attached to Kazerounian Decl. as Exhibit 1].6 Moreover, Mr. MacLeod, Dunning’s Fed. R. Civ. P. 30(b)(6) witness, confirmed Dunning’s status as a debt collector during Mr. MacLeod’s Deposition. [See MacLeod Transcript, 12:15-20 (“Our firm is focused on business litigation and collections, so I will have contact with debtors who call in, clients who call in. I have direct contact with clients and people who are being sued”); 13:9-12 (“We have templates for our collection letters...”); and, 38:1-2 (confirming that FNBO hired Dunning to act as a debt collector on behalf of FNBO). Thus, Plaintiff’s Motion should be granted with regard to this element since there is no triable issue of fact that Dunning is a “debt collector” as defined by the RFDCPA. 7. Dunning is a “debt collector” as that term is defined by 15 U.S.C. § 1692a(6). The term “debt collector” means any person who uses any instrumentality of commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. See 15 6 Request No. 7: Admit that [Dunning] is a “debt collector” as that term is defined by Cal. Civ. Code § 1788.2(c). Response: Admit. Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 17 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 12 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 U.S.C. § 1692a(6); and, Ansari v. Elec. Document Processing Inc., 2013 U.S. Dist. LEXIS 124798, at *22 (N.D. Cal. 2013). Likewise, Dunning also admitted that Dunning is a “debt collector” pursuant to the FCPA in Dunning’s Answer7 as well as Dunning’s Responses to Plaintiff’s Requests for Admissions. [See Exhibit 1 attached to Kazerounian Decl.].8 Thus, Plaintiff’s Motion should be granted with regard to this element since there is no triable issue of fact that Dunning is a “debt collector” as defined by the FDCPA. 8. Dunning’s collection activity violated the FDCPA; and, RFDCPA. As an initial matter, Cal. Civ. Code § 1788.17 states that “...every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of [15 U.S.C. Sections 1692b to 1692j, inclusive...” Hosseinzadah v. M.R.S. Assocs., 387 F. Supp. 1104 (C.D. Cal 2005); Palmer v. Strassinos, 233 F.R.D. 546 (N.D. Cal. 2006); and, Gonzales v. Arrow Fin. Servs. LLC, 233 F.R.D. 577 (S.D. Cal. 2006). In other words, the RFDCPA “either mimics the relevant provisions of the FDCPA or incorporates them by reference. Murphy v. Bronson, Cawley & Bergmann, LLP, 3:10-cv-1929 AJG (RBB), 2011 WL 2413447, at *6 (S.D. Cal. Jun 13, 2011)…” Cutler ex rel. Jay v. Sallie Mae, Inc., EDCV13-2142 MWF (DTBx), 2014 U.S. Dist. LEXIS 181914, at *3 (C.D. Cal. Sept. 9, 2014). Thus, this Court previously explained in this action that the “[RFDCPA] requires compliance with the FDCPA, and a debt collector that violates the FDCPA also violates the [RFDCPA].” Duell v. First Nat’l Bank of Omaha, 2015 U.S. Dist. LEXIS 99169, at *16 (S.D. Cal. July 29, 2015), 2015 WL 4602008 citing to Gates v. MCT Grp., Inc., 2015 U.S. Dist. LEXIS 41223, 2015 WL 1349985, at *9 (S.D. Cal. Mar. 13, 2015); and, Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104, 7 See ECF No. 55, Dunning’s Answer to Plaintiff’s Second Amended Complaint, ¶ 16. 8 Request No. 9: Admit that [Dunning] is a “debt collector” as that term is defined by 15 U.S.C. § 1692a(6). Response: Admit. Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 18 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 13 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 1118 (C.D. Cal 2005). a. Dunning’s conduct herein constitutes a violation of Cal. Civ. Code § 1788.17 and 15 U.S.C. § 1692e since Dunning’s February 24, 2014 written communication gave the false impression of FNBO’s prior approval. 15 U.S.C. § 1692e prohibits the “use of false, deceptive and misleading representations in connection with the collection of any debt.” Here, Dunning violated Cal. Civ. Code § 1788.17 as well as 15 U.S.C. § 1692e by deceptively representing that FNBO had actual knowledge of the change in payment terms. [See Exhibit 2 attached to KD Decl.]. Dunning mislead Plaintiff as to this fact by utilizing deceptive language such as “The Bank is willing to accept…”; “…the Bank will refrain from further collection activity”; and, “the Bank will swiftly move to collect the debt” in Dunning’s February 24, 2014 written communication. [Id.]. Absent these false, deceptive and misleading representations, Plaintiff would not have agreed to the modification and would have continued Plaintiff’s attempts to satisfy Plaintiff’s previous payment arrangement with FNBO. [KD Decl., ¶¶ 10- 14]. However, Dunning never informed FNBO of the new payment arrangements. [Osborne Transcript, 49: 16-20; and, 50:8-11]. This lack of notice to FNBO caused FNBO to inaccurately report Plaintiff’s satisfaction of Plaintiff’s monthly obligations and damaged Plaintiff. [Id. at ¶ 15; and, FNBO’s automated credit dispute verification form (“ADCV”) verifying FNBO’s inaccurate reporting attached as Exhibit 5 to Kazerounian Decl.]. Thus, Plaintiff’s Motion should be granted with regard to Dunning’s violation of 15 U.S.C. § 1692e; and, Cal. Civ. Code § 1788.17. b. FNBO’s conduct herein constitutes a violation of Cal. Civ. Code § 1788.17 and 15 U.S.C. § 1692e(10) since FNBO used false representations and deceptive means to collect Plaintiff’s alleged debt. Like 15 U.S.C. § 1692e, 15 U.S.C. § 1692e(10) prohibits the “use of any false representation or deceptive means to collect an alleged debt.” This provision is broad in scope and operates as a “catch-all” provision. See Teemogonwuno v. Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 19 of 20 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DUNNING LAW FIRM 14 OF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 Todd, Bremer & Larsen, Inc., 1991 U.S. Dist. LEXIS 21720 (N.D. Ga. 1991); and, In re Eastman, 419 B.R. 711 (W.D. Tex. 2009). As repeatedly stated above, Dunning’s February 24, 2014 written communication falsely represented that FNBO had actual knowledge of Plaintiff’s payment arrangement as of that date. [See Exhibit 2 attached to KD Decl.]. To the contrary, Dunning never provided notice to FNBO that Plaintiff agreed to pay $170 per month. [Osborne Transcript, 49: 16-20; and, 50:8-11]. Since FNBO was unaware of the new payment arrangements, FNBO inaccurately reported Plaintiff’s monthly obligation to the Credit Bureaus. Thus, Plaintiff’s Motion should be granted with regard to Dunning’s violation of 15 U.S.C. § 1692e(10); and, Cal. Civ. Code § 1788.17. VI. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that Plaintiff’s Motion for Summary Judgment be granted as to liability with respect to Plaintiff’s claims for violations of the FDCPA; and, RFDCPA against Dunning and that judgment be entered in Plaintiff’s favor against Dunning. Plaintiff will litigate any remaining issues not suitable for summary judgment at trial as well as seek damages based on Dunning’s liability. In the alternative, Plaintiff also seeks Summary Adjudication in order to more narrow the issues for trial. Dated: July 15, 2016 Respectfully submitted, KAZEROUNI LAW GROUP, APC By: ___/s/ Abbas Kazerounian__ ABBAS KAZEROUNIAN, ESQ. ATTORNEY FOR PLAINTIFF Case 3:14-cv-02774-WQH-BGS Document 59-1 Filed 07/15/16 Page 20 of 20 DECLARATION OF ABBAS KAZEROUNIAN IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (249203) ak@kazlg.com Matthew M. Loker, Esq. (279939) ml@kazlg.com 245 Fisher Avenue, Unit D1 Costa Mesa, California 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (225557) josh@westcoastlitigation.com Sara Khrosroabadi, Esq. (299642) sara@westcoastlitigation.com 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff, Karen Duell UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA /// KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA; AND, THE DUNNING LAW FIRM, Defendants. Case No.: 14-cv-2774 WQH (JLB) DECLARATION OF ABBAS KAZEROUNIAN IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM DATE: August 22, 2016 COURTROOM: 14B HON. WILLIAM Q. HAYES NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:14-cv-02774-WQH-BGS Document 59-2 Filed 07/15/16 Page 1 of 3 DECLARATION OF ABBAS KAZEROUNIAN IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM PAGE 1 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 I, ABBAS KAZEROUNIAN, hereby declare as follows: 1. I am attorney licensed to practice law in the State of California and all Districts of California. 2. I am a partner with the Kazerouni Law Group, APC, and co-counsel for Plaintiff KAREN DUELL (“Plaintiff”). 3. I have personal knowledge of the following facts and if called as a witness would testify as follows. 4. This declaration is in support of Plaintiff’s Motion for Summary Judgment, or alternatively, Summary Adjudication against Defendant THE DUNNING LAW FIRM (“Dunning”). 5. The cited excerpts from Paul Osborne’s Deposition Transcript are attached hereto as Exhibit 1. 6. The cited excerpts from James MacLeod’s Deposition Transcript are attached hereto as Exhibit 2. 7. FNBO’s Responses to Plaintiff’s Requests for Admissions Nos. 7; and, 9 are attached hereto as Exhibit 3. 8. A true and correct copy of Plaintiff’s Responses to Dunning’s Requests for Admissions attached hereto as Exhibit 4. 9. A true and correct copy of FNBO’s Automated Credit Dispute Verification form (“ACDV”) produced by FNBO in Response to Plaintiff’s Requests for Production of Documents is attached hereto as Exhibit 5. /// /// /// /// /// /// Case 3:14-cv-02774-WQH-BGS Document 59-2 Filed 07/15/16 Page 2 of 3 DECLARATION OF ABBAS KAZEROUNIAN IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM PAGE 2 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 10. The cited excerpts from John Ulzheimer’s Deposition Transcript are attached hereto as Exhibit 6. 11. The cited excerpts from Karen Duell’s Deposition Transcript are attached hereto as Exhibit 7. 12. The cited excerpts from Michael Duell’s Deposition Transcript are attached hereto as Exhibit 8. I declare under penalty and perjury under the laws of the State of California and the United States of America, that the foregoing is true and correct. Executed on the 15th day of July, 2016, at Costa Mesa, California. By: ___/s/ Abbas Kazerounian___ ABBAS KAZEROUNIAN, ESQ. ATTORNEY FOR PLAINTIFF Case 3:14-cv-02774-WQH-BGS Document 59-2 Filed 07/15/16 Page 3 of 3 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 1 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 1 of 13 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 KAREN DUELL, ) 5 PLAINTIFF, ) CASE NO.: 6 VS. ) 3:14-CV-02774-WQH-BGS 7 FIRST NATIONAL BANK OF ) 8 OMAHA; and THE DUNNING ) 9 LAW FIRM, ) 10 DEFENDANTS. ) 11 - - - - - - - - - - - - - - 12 13 14 VIDEOTAPED TELEPHONIC DEPOSITION OF 15 PAUL OSBORNE, taken before April E. O'Malley, 16 General Notary Public within and for the State of 17 Nebraska, beginning at 10:01 a.m., on the 7th day 18 of March, 2016, taken at 1321 Jones Street, Omaha, 19 Nebraska. 20 21 22 23 24 Job No. 2236414 25 PAGES 1 - 62 Page 1 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 2 of 13 1 series of categories that we are here to discuss. 2 And since we don't know who is the person most 3 knowledgeable at the bank, we send the categories, 4 your counsel picks the witness. 5 MR. LOKER: Actually, Cory, just to 6 fast-track this, is there anything that he's not 7 here to discuss? Do you know? Is he the only 8 witness, I guess? 9 MR. ROONEY: Right. He's the only 10 witness -- 11 MR. LOKER: Okay. 12 MR. ROONEY: -- correct. 13 MR. LOKER: All right. That works. 14 BY MR. LOKER: 15 Q. All right. So we'll just set that to the 16 side then. 17 So let's go into your background with the 18 company just so we can determine, you know, why 19 you're the person most knowledgeable. 20 What's your current position with 21 First National Bank of Omaha? 22 A. The managing director for collections and 23 recovery for bank card. 24 Q. Okay. The managing director. 25 And how long have you been in that Page 13 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 3 of 13 1 capacity? 2 A. That capacity I've been in for almost 3 six years. 4 Q. Six years. 5 And what are your day-to-day activities as 6 a managing director? 7 A. To ensure that our collections operations 8 functions properly and that our recovery functions 9 are -- are working appropriately with our outside 10 vendors and with our internal collectors. 11 Q. Okay. Do you know how many internal 12 collectors there are? 13 A. We have approximately 180 internal 14 collectors. 15 Q. Are they all based here in Omaha? 16 A. No. Actually, the majority of them are 17 based in our shops in Yankton, South Dakota, and 18 Wayne, Nebraska. 19 Q. Okay. Sorry. You said Yankton and where 20 in Nebraska? 21 A. Yankton, South Dakota, and Wayne, 22 Nebraska. 23 Q. Oh, okay. Thank you. 24 A. Uh-huh. 25 Q. And the -- did you say there was out -- Page 14 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 4 of 13 1 out -- outside vendors as well? 2 A. We do have outside vendors that handle 3 accounts once they charge off. 4 Q. Okay. And are those debt collectors or 5 law firms, or who are those? 6 A. Combination of both. I -- law firms and 7 collection agencies. 8 Q. Okay. And is one of those law firms 9 The Dunning Law Firm? 10 A. They are. 11 Q. Okay. Make sure we get to that later. 12 Prior to being the -- prior to becoming 13 the managing director, what -- did you work for 14 First National Bank of Omaha in a different 15 capacity? 16 A. I was just the -- I had the responsibility 17 of our site in Atlanta in which I was the 18 collections manager and operations manager. 19 Q. And what did that entail? 20 A. Responsible for collections of those 21 accounts that resided on that port- -- those 22 portfolios and also all of the backroom office 23 functions for service in the credit card portfolio. 24 Q. Is there a particular portfolio that you 25 oversee now? Page 15 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 5 of 13 1 capacity. You know, that's -- that's for the 2 attorneys. I'm only looking for what you know 3 sitting here today, your -- your factual knowledge 4 and personal knowledge. Do you understand that? 5 A. I do. 6 Q. Okay. So with regard to Dunning and any 7 outside vendors, are -- are -- are these vendors 8 able to file lawsuits on your behalf? 9 A. In -- in the case of Don Dunning and those 10 types of law firms, yes. 11 Q. Okay. Are the -- well, let's just talk 12 about Mr. Dunning in particular. 13 Is Mr. Dunning able to settle accounts on 14 your behalf? 15 A. He is able to settle for a certain 16 threshold. Above that -- or below that he would 17 come back for approval of anything below a certain 18 threshold. 19 Q. Okay. Do you know who determines what 20 that threshold is? 21 A. My department. 22 Q. Does it vary from account to account, or 23 is it set for each account? 24 MR. ROONEY: I'm going to object to 25 any sort of privileged information, attorney/client Page 20 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 6 of 13 1 privilege. 2 BY MR. LOKER: 3 Q. And you can answer, unless he instructs 4 you not to. 5 A. We would set it based off of the type of 6 account it is. 7 Q. Is there a particular criteria that goes 8 into that decision? 9 A. Again, it depends on how far past due the 10 account might be and -- and the type of account. 11 Q. What do you mean by "type of account"? 12 A. If it was a credit card verse a loan, an 13 installment loan. 14 Q. Sure. 15 Any other criteria that's utilized? 16 A. No. 17 Q. So if I heard you correctly, when the 18 account's transferred to Mr. Dunning in particular, 19 he's given a number where he has authority to settle 20 without approval. And then if it's outside of that 21 number, he has to go back to the bank; is that 22 correct? 23 A. For a settlement, that's correct. 24 Q. Okay. If a lawsuit's ultimately filed by 25 Mr. Dunning, does he need to seek approval before Page 21 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 7 of 13 1 the very bottom, January 28, 2014, up to the top, 2 which is March 10, 2014. Do you see that? 3 A. I do. 4 Q. And if you recall Exhibit 4, we were 5 looking at the letter from The Dunning Law Firm 6 dated February 24, 2014. 7 A. Yeah. 8 Q. There's no entry in the account notes here 9 about that -- that letter. Would such information 10 be documented in your account notes? 11 A. No. As I stated earlier, we do not 12 necessarily get information from our law firms if 13 they negotiate a payment arrangement, only if they 14 come back to us to get approval for a settlement 15 that's below the threshold. 16 Q. Okay. If a -- a settlement was below the 17 threshold, would that be documented in the account 18 notes? 19 A. It would be. 20 Q. Okay. So since the settlement isn't 21 documented here in the account notes, was 22 The Dunning Law Firm settlement within the 23 threshold? 24 MR. ROONEY: Objection to the form of 25 the question. Page 49 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 8 of 13 1 But you can go ahead and answer. 2 THE WITNESS: I'm not aware that they 3 negotiated a settlement. 4 BY MR. LOKER: 5 Q. Okay. 6 A. If they negotiated a settlement above the 7 threshold, I wouldn't be aware of it. 8 Q. Okay. The only time you would be -- is it 9 correct to say that the only time you would be aware 10 of it is if it was below the threshold? 11 A. That is correct. 12 Q. And you may have discussed this already, 13 but if it's below the threshold -- or do they reach 14 out to Teresa and Scott? 15 A. Correct. 16 Q. Okay. Never mind then. I just couldn't 17 remember for a moment. 18 Exhibit 7's done. Here's Exhibit 8. 19 And Exhibit 8 is a July 18th, 2014, letter 20 from Karen Duell -- actually, to the credit bureau. 21 Have you seen this letter before? 22 A. I have. 23 Q. And did you see it in preparation for 24 today? 25 A. I did. Page 50 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 9 of 13 1 Q. Have you seen it before preparing for 2 today? 3 A. If I did, I don't recall it. 4 Q. Sure. 5 Actually, you already answered the 6 questions I had for this letter. 7 And Exhibit 9. Take a moment and look at 8 this, and let me know when you're done. 9 A. Okay. 10 Q. Have you seen Exhibit 9 before? 11 A. I have. 12 Q. And what is it? 13 A. It's a -- it's what they call a automated 14 credit dispute verification form. 15 Q. And is that what's generated when the 16 consumer disputes the mark? 17 A. Correct. When they dispute it through the 18 bureaus and the bureaus notify us. 19 Q. Okay. Is there a particular person within 20 the bank that receives -- that handles those 21 disputes? 22 A. There is a group that handles it. In this 23 particular case, Julie Moeller is the one who 24 handled this one. 25 Q. Okay. And what group does Ms. Moeller Page 51 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 10 of 13 1 work with? 2 A. She works in Sue Edwards' team. 3 Q. Oh, I see. 4 And how does that dispute -- dispute 5 process go? 6 A. The disputes are generated from consumers 7 through the bureaus. The bureaus send us this 8 information electronically through a system called 9 e-OSCAR. We receive that information, we validate 10 the information, and respond back to -- through the 11 e-OSCAR system. 12 Q. Okay. And it looks like this dispute was 13 handled on August 15th, 2014. 14 A. That is -- 15 Q. Looking at Page 3 of 3. 16 A. Yes. It's there on Page 3 and also on 17 Page 1. 18 Q. Oh, I see. 19 And do you know what steps Ms. Moeller 20 took to verify the information? 21 A. She would have pulled up the account, 22 reviewed the notes of the account and the 23 information being presented to her in the dispute, 24 and validating whether it was correct or not. 25 Q. And is that pursuant to training that Page 52 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 11 of 13 1 response to the July 28th, 2014, letter? 2 A. The document -- Exhibit 8 document came 3 along with the ACDV through e-OSCAR. 4 Q. I see. 5 And at the bottom, the last paragraph on 6 the July 28th letter, it says that "Enclosed is a 7 copy of the letter from Mr. MacLeod supporting my 8 argument to remove the above-noted errors." 9 So it sounds like there is additional 10 documents provided with this July 28th letter? 11 MR. ROONEY: Objection to foundation 12 of this witness. If he knows, he can answer. 13 THE WITNESS: Yes. The ACDV came in 14 with two supporting documenta- -- documents, this 15 one (indicating) and your Exhibit -- 16 BY MR. LOKER: 17 Q. Is it 4? 18 A. Exhibit 4. 19 Q. And how do you know there is 20 two additional documents? 21 A. Because they are scanned and were in our 22 system. 23 Q. You just remember that? 24 A. It's within the system. It's within the 25 same area that this document is. Page 55 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 12 of 13 1 C E R T I F I C A T E 2 STATE OF NEBRASKA ) ) ss. 3 COUNTY OF DOUGLAS ) 4 I, April E. O'Malley, General Notary 5 Public within and for the State of Nebraska, do 6 hereby certify that the foregoing testimony of 7 PAUL OSBORNE was taken by me in shorthand and 8 thereafter reduced to typewriting by use of 9 Computer-Aided Transcription, and the foregoing 10 sixty (60) pages contain a full, true and correct 11 transcription of all the testimony of said witness, 12 to the best of my ability; 13 That I am not a kin or in any way 14 associated with any of the parties to said cause of 15 action, or their counsel, and that I am not 16 interested in the event thereof. 17 IN WITNESS WHEREOF, I hereunto affix my 18 signature and seal this 22nd day of March, 2016. 19 20 ________________________________ APRIL E. O'MALLEY 21 GENERAL NOTARY PUBLIC 22 23 My Commission Expires: 24 25 Page 61 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-3 Filed 07/15/16 Page 13 of 13 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 2 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 1 of 13 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 ___________________________ Karen Duell, ) 4 ) Plaintiff, ) Case No. 3:14-cv-02774-WQH-BGS 5 ) vs. ) 6 ) First National Bank of ) 7 Omaha; and The Dunning Law ) Firm, ) 8 ) Defendants. ) 9 ) ___________________________) 10 11 12 13 VIDEOTAPED DEPOSITION OF JAMES MACLEOD 14 San Diego, California 15 Thursday, March 17, 2016 16 17 18 19 20 21 Reported By: 22 PATRICIA M. BECK 23 CSR No. 12090 24 Job No. 2268931 25 PAGES 1 - 47 Page 1 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 2 of 13 1 A. Yes. 2 Q. Sitting here today, do you remember the 3 conversation at issue in paragraph 27? 4 A. Yes. 5 Q. Can you give me a general description of 6 that conversation? 7 A. Sure. Mr. Duell contacted our office to 8 talk about setting up a payment plan to pay off a debt 9 that he owed to First National Bank of Omaha. And I 10 recall that he was concerned that he had failed to 11 make payments on a previously agreed plan and -- 12 because it had gotten to be too much. 13 And the bank was calling him a lot so he had 14 sent a notice to the bank to stop calling him. And I 15 said, "That's okay. We can set something up that's 16 more affordable for you, I hope, and that you won't 17 have to have any trouble maintaining." 18 He said, "Well, you know, it was for $250 a 19 month, but it was just too much, and I couldn't afford 20 that. I can afford that sometimes, but not all the 21 time." And I said, "Well, you know, the bank has 22 authorized me to help people set up payment plans on 23 their accounts. They will usually give me up to 24 36 months to get accounts paid off. For instance, if 25 you were to do that on this, it would only be around Page 17 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 3 of 13 1 $170 a month. How much would you like to pay?" 2 And he said, "Well, yes, that would be fine. 3 What do I need to do? Do I need to contact the bank?" 4 I remember telling him, "No, I can help you with that. 5 What you'll do from now on is you'll send your 6 payments through our office, and I'll send you a 7 confirming letter. And if you have any questions once 8 you receive the letter, you can give me a call." And 9 that's pretty much the gist of the conversation. 10 Q. Okay. Do you receive a lot of calls from 11 consumers with regard to the collection by your law 12 firm? 13 A. Yes, a lot. 14 Q. Is it multiple calls a day, or what's the 15 frequency? 16 A. Multiple calls a day. 17 Q. Any estimate as to the number? 18 A. Probably between 5 and 10. 19 Q. About 5, 10 calls a day? 20 A. Uh-huh. Yes, that's correct. 21 Q. Thank you. I appreciate that. 22 A. Sorry. 23 Q. No problem. It's natural in everyday 24 conversation, but "uh-huhs," "huh-huhs," sometimes I 25 forget as well. So just we'll try to remind each Page 18 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 4 of 13 1 that correct? 2 A. Yes. 3 Q. That makes sense. Just for my edification, 4 why did you deem that particular conversation not 5 confidential? 6 A. Well, if somebody is renewing their payment 7 arrangement, that's not confidential for consumer 8 credit transactions. It's only confidential if you're 9 settling the debt maybe for less than the amount of. 10 But if you're just screening to pay the debt under 11 different terms, then it's not confidential. 12 Q. I see. That was discussed in 1152? 13 A. Yes, (c)(2). 14 Q. I meant to look at it but forgot, so I 15 appreciate it. 16 A. It's a very interesting code section in 17 California. Different than in most other states. 18 With the idea that, look, there's a lot of times that 19 you're going to renegotiate a debt and that you're 20 going to have to speak about that quite a bit. 21 Those conversations about just repaying it, 22 you're agreeing to repay the same debt that you owed 23 anyway. All you're talking about is the terms of 24 repayment of the debt. It's basically a renewal of 25 your affirmation that you're going to pay the debt Page 20 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 5 of 13 1 that you owed in the first place, and they're not 2 confidential. 3 Q. That's interesting. I always thought of the 4 general rule of settlement discussions being 5 confidential, but this has different -- a different 6 focus, I guess. 7 A. Right. You know, it's got to be in context. 8 Q. I see. So it's a particular context, and 9 given the nature of your business then, you know it's 10 easier for you to distinguish the context as 11 confidential versus non-confidential; is that correct? 12 MR. HENSRUDE: It's an incomplete 13 hypothetical. Assumes facts. 14 You can answer. If you understand it, then 15 you can go ahead. 16 THE WITNESS: I'll do my best. 17 BY MR. LOKER: 18 Q. Absolutely. Let's see. I think you touched 19 on it before. The payment arrangement ended up being 20 $170 per month; is that correct? 21 A. Yes, that's correct. 22 Q. How did you arrive at $170 per month? 23 MR. HENSRUDE: Asked and answered. 24 Go ahead. 25 /// Page 21 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 6 of 13 1 THE WITNESS: We were working out a payment 2 that he could make each month that he wouldn't default 3 on. That was his biggest concern. In the prior 4 payment arrangement, it was too high. And you hear me 5 saying "he." Payment arrangement was for Karen Duell. 6 But he was like, "The payment arrangement is too 7 high." 8 I'm not sure what the nature of his business 9 was, but however it worked, some months I guess they 10 had more income, some months they had less. As I said 11 to him, "The bank lets me do up to 36 months. If we 12 do the max, it's 170. Is that something you can 13 afford?" 14 I do remember when he first called saying, 15 "Well, let's get you set up on something like 300 or 16 $400." He's like, "No, no, no. I can't do that." I 17 think that would be like 24 months. So it was a 18 conversation I wanted -- it's what I do. I try to 19 help people find a way to resolve these accounts that 20 is in the interest of all people involved. 21 Q. Right. So the bank allows you to enter up 22 into -- enter into payment arrangements of up to 23 36 months? 24 A. That's correct. 25 Q. If you're within 36 months, do you need any Page 22 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 7 of 13 1 approval from the bank? 2 A. No. 3 Q. Is the bank involved in any of those 4 settlement discussions if you're within that range? 5 A. Sometimes. 6 Q. Is that just a case-by-case determination? 7 A. Yes. 8 * Q. If you go longer than 36 months for the 9 payment terms, what is that process? 10 MR. HENSRUDE: I'll object. I think that's 11 attorney-client privilege, unless Mr. Rooney is 12 waiving it. 13 MR. ROONEY: I'll object. I'll instruct the 14 witness not to answer. Assert attorney-client 15 privilege. Thank you. 16 MR. LOKER: We've already discussed it with 17 your witness, so I'd like to get the bank's 18 understanding on the issue. 19 MR. HENSRUDE: What I heard what was 20 discussed was that first part that he already talked 21 about, up to 36 months, but they never talked about 22 what would happen afterwards. It's Mr. Rooney's 23 privilege. I never heard any testimony about that 24 from the bank. 25 MR. LOKER: Well, we discussed the general Page 23 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 8 of 13 1 And the answer as to paragraph 31 states 2 that: "Defendant admits that it told plaintiff's 3 husband that entering into the payment arrangement 4 would mean that it would not file a complaint against 5 plaintiff so long as she made her payments, but as to 6 the remaining allegations, defendant lacks sufficient 7 information or belief necessary to admit or deny these 8 allegations, and on that basis denies these 9 allegations." 10 Does that sound familiar? 11 A. Yes. 12 Q. So my question deals with one aspect of our 13 complaint that says that "including the avoidance of 14 demands for more than $170 per month." If I recall 15 correctly, the payment arrangements were for $170 per 16 month. Is that your recollection? 17 A. I'm sorry. $470 a month? 18 Q. For $170 per month. 19 A. Right. But another aspect of the 20 conversation that you've brought to my recollection 21 was, he's like, "But can I pay more?" I was like, "Of 22 course you can pay more. Every dime you send goes 23 towards the principal. There's no interest accruing." 24 That was the same deal he had with the bank. 25 No interest was accruing on the deal that he had Page 29 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 9 of 13 1 arranged with the bank. I was like, "It's okay. You 2 can pay more than you like. You'll only be required 3 to pay $170 a month. So long as you do" -- 4 And his concern was getting sued. I was 5 like, "No. We're not going to file a lawsuit against 6 you or your wife." She was concerned about her being 7 dragged into court. "No, you're not going to have to 8 go to court." He was like, "Why does it have to be 9 with a law firm? Why can't it be with a bank?" 10 "Well, when you contact the bank and tell 11 them not to call you" -- 12 Q. That's what happens. 13 A. Sometimes. That's what happened here. 14 Q. So the answer -- not your answer, but the 15 answer in the complaint is that as long as he paid 16 $170 a month, that was the minimum; always free to pay 17 more just to pay it off quicker? 18 A. Right. Once it's paid off, you know, we'll 19 send you a letter. You'll be done. 20 Q. Good deal. I don't know if we touched on 21 this or if it was just from reading the file, but the 22 $170 a month, that's a check made payable to The 23 Dunning Law Firm? 24 A. Client trust account. 25 Q. Client trust account. What's the process Page 30 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 10 of 13 1 office refers to it as a payment arrangement; is that 2 correct? 3 A. That's correct. 4 Q. I'll just read the full letter so we're on 5 the same page. "Dear Ms. Duell, I'm writing to 6 confirm the terms of your payment plan. The bank is 7 willing to accept the sum of $6,106.63 in monthly 8 payments of $170, so long as the first payment is 9 received by my office no later than March 7th, 2014. 10 "All payments are due on the 7th of each 11 month. Please make your checks payable to the Dunning 12 Law Firm Client Trust Account. As long as you are 13 current on your payments, the bank will refrain from 14 further collection activities. However, in the event 15 that you fail to make any payment" -- sorry. "If you 16 fail to make any payment, the bank will swiftly move 17 to collect the debt." 18 We've already been through this a little 19 bit, but my understanding is that the minimum 20 obligation was $170 a month; is that correct? 21 A. Yes. 22 Q. And he could pay it off earlier if he so 23 desired? 24 A. Right. 25 Q. Again, I think you testified earlier that Page 34 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 11 of 13 1 the bank didn't review that letter; is that correct? 2 A. What do you mean? 3 Q. Prior to sending the letter to the Duells, 4 did you send the letter to First National Bank of 5 Omaha for approval? 6 A. No. 7 Q. Because it was within the 36-month maximum 8 payment term? 9 A. Right. Not just for that reason. 10 Q. Other reasons? 11 MR. HENSRUDE: If you can answer without 12 disclosing privilege. 13 BY MR. LOKER: 14 Q. Absolutely. 15 A. And I don't think I can. 16 Q. Okay. That's fine. I'm not going to fight 17 you on that one. You can set that to the side. 18 (Exhibit 6 was marked for identification by 19 the court reporter.) 20 BY MR. LOKER: 21 Q. We'll move to Exhibit 6. Exhibit 6 is 22 Defendant The Dunning Law Firm APC's Responses to 23 Plaintiff's Request for Admissions. 24 You know how these work. We have our 25 request and the response. There's a couple of Page 35 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 12 of 13 1 I, the undersigned, a Certified Shorthand 2 Reporter of the State of California, do hereby 3 certify: 4 That the foregoing proceedings were taken 5 before me at the time and place herein set forth; that 6 any witnesses in the foregoing proceedings, prior to 7 testifying, were placed under oath; that a verbatim 8 record of the proceedings was made by me using machine 9 shorthand which was thereafter transcribed under my 10 direction; further, that the foregoing is an accurate 11 transcription thereof. 12 I further certify that I am neither 13 financially interested in the action nor a relative or 14 employee of any attorney of any of the parties. 15 IN WITNESS WHEREOF, I have this date 16 subscribed my name. 17 Dated:March 30, 2016 18 19 20 21 <%signature%> 22 PATRICIA M. BECK 23 CSR NO. 12090 24 25 Page 47 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-4 Filed 07/15/16 Page 13 of 13 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 3 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-5 Filed 07/15/16 Page 1 of 2 REQUEST NO.5: Admit that Plaintiff is a "debtor" as that term is defined by Cal. Civ. Code § 1788.2(h). RESPONSE: Object to the form calls for a legal conclusion. Without waiving said objection, Defendant admits that Plaintiff is a debtor. REQUEST NO. 6: Admit that this action arises out of a conswner debt and "consumer credit" as those terms are defined by Cal. Civ. Code § 1788.2 (t). RESPONSE: Object to the form calls for a legal conclusion. REQUEST NO. 7: Admit that Plaintiff suffered emotional damages as a result of Defendant FNBO's actions as alleged in the operative Complaint in this instant case. RESPONSE: Deny. REQUEST NO. 8: Admit that Defendant FNBO is a "debt collector" as that term is defined by Cal. Civ. Code §1788.2(c). RESPONSE: Object to the form calls for a legal conclusion. Without waiving said objection, Defendant admits that it attempted to collect this debt from Plaintiff at times. REQUEST NO. 9: Admit that Defendant FNBO collected a "debt" as that term is defined by Cal. Civ. Code § 1788.2( d). RESPONSE: Deny. REQUEST NO. 10: Admit that Defendant FNBO collected a "consumer debt" as that term is defmed by Cal. Civ. Code § 1788.2(t). RESPONSE: Deny. REQUEST NO. 11: Admit that Defendant FNBO is a "debt collector" as that term is defined by 15 U.S.C. §1692a (6). RESPONSE: Deny. REQUEST NO. 12: Admit that Defendant FNBO attempted to collect a "debt", as that term is defined by 15 U.S.C. § 1692a (5), from Plaintiff. RESPONSE: Deny. REQUEST NO. 13: Admit that Defendant FNBO has no valid defense of Bona Fide Error to this action. Case 3:14-cv-02774-WQH-BGS Document 59-5 Filed 07/15/16 Page 2 of 2 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 4 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-6 Filed 07/15/16 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ______________________________________________________________________________________________________ PLAINTIFF KAREN DUELL’S RESPONSES TO DEFENDANT’S REQUESTS FOR ADMISSIONS, SET ONE -1- 3:14-cv-02774-WQH-BGS Joshua B. Swigart, Esq. (SBN: 225557) josh@westcoastlitigation.com Sara F. Khosroabadi, Esq. (SBN: 299642) sara@westcoastlitigation.com HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Additional Counsel for Plaintiff Listed on Signature Page Attorneys for Plaintiff, Karen Duell UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA PROPOUNDING PARTY: DEFENDANT THE DUNNING LAW FIRM RESPONDING PARTY: PLAINTIFF KAREN DUELL SET NO.: ONE KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA and THE DUNNING LAW FIRM, Defendant. Case No: 3:14-cv-02774-WQH-BGS PLAINTIFF KAREN DUELL’S RESPONSES TO DEFENDANT’S REQUESTS FOR ADMISSIONS, SET ONE Case 3:14-cv-02774-WQH-BGS Document 59-6 Filed 07/15/16 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ______________________________________________________________________________________________________ PLAINTIFF KAREN DUELL’S RESPONSES TO DEFENDANT’S REQUESTS FOR ADMISSIONS, SET ONE -4- 3:14-cv-02774-WQH-BGS RESPONSE TO REQUEST FOR ADMISSION NO. 6: Deny. REQUEST FOR ADMISSION NO. 7: Admit that YOU were delinquent on your debt to FNBO prior to February 2014. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Admit. REQUEST FOR ADMISSION NO. 8: Admit that FNBO had reported to credit agencies prior to February 2014, that YOU were delinquent on YOUR debt. RESPONSE TO REQUEST FOR ADMISSION NO. 8: Admit. REQUEST FOR ADMISSION NO. 9: Admit that FNBO’s credit reports prior to February 2014, where accurate. RESPONSE TO REQUEST FOR ADMISSION NO. 9: Deny. REQUEST FOR ADMISSION NO. 10: Admit that THE DUNNING LAW FIRM has never reported any information about YOU to a credit reporting agency. RESPONSE TO REQUEST FOR ADMISSION NO. 10: After making a reasonable inquiry, the information known or readily obtainable to Plaintiff is insufficient to enable Plaintiff to admit or deny this request. Since discovery is continuing, Plaintiff reserves Plaintiff’s right to amend Plaintiff’s response. REQUEST FOR ADMISSION NO. 11: Admit that THE DUNNING LAW FIRM took no action to collect a debt from YOU after February 2014. Case 3:14-cv-02774-WQH-BGS Document 59-6 Filed 07/15/16 Page 3 of 3 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 4 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-7 Filed 07/15/16 Page 1 of 4 Image Information: Image ID: Yes FCRA Relevant Information: |/CURR ACCT ||||||||||||||||||||||| 8843256 Associated Images: 2nd Prev. City: 5.12E+11ACDV Response: Control Number: Response Date: DF Contact Number: 2nd Prev. State: 2nd Prev. Zip: 2nd Prev. Street Address: Prev. Zip: Prev. State: Prev. City: Prev. Street Address: Zip: 92071 State: CA:California City: SANTEE Street Address: ECOA Code: 1:Individual Telephone Number: Date Of Birth: /1971 SSN: 2951 Prev. Last Name: Prev.Generation Code: Prev. Middle Name: ANN First Name: Prev. First Name: Generation Code: Last Name: DUELL KAREN Middle Name: Consumer Information: Yes Request Data Response Data Same / Diff Image Accessed Indicators: DF Authorized Name: Dispute Information: Dispute Code 1: Queue Name: default1000628 Response Due Date: 08/27/2014 Account Number: SSN: 2951+14 5.12E+11 Response Code: 2216850 KAREN ANN DUELL Subscriber Code:2: Consumer Name: 106:Disputes present/previous Account Status/Payment History Profile/Payment Rating. Verify Payment History Profile, Account Status, and Payment Rating. Julie Moeller Dispute Code 2: 08/15/2014 AV1.03 1 of 3 Case 3:14-cv-02774-WQH-BGS Document 59-7 Filed 07/15/16 Page 2 of 4 Year Dec Nov Oct Sep Aug Jul Jun May Apr Mar Feb Jan Req. Resp. Req. Resp. Req. Resp. Req. Resp. Req. Resp. Req. Resp. Req. Resp. Req Res Payment Rating: Account Information: Request Data MOP: CCC: 78:Account 60 days past the due date.71:Account 30 days past the due date. 14 17 16 15 13 Account History 20 19 18 Purchased From / Sold To: Narrative / Remarks: Balloon Payment Due Date: Portfolio Indicator: Defrd. Payment Start Date: Balloon Payment Amt.: Mortgage ID Number (MIN): Specialized Payment Ind.: Agency ID: Sec. Mktg. Agency Acct Num: Original Creditor Name: Creditor Classification: Actual Payment: 200 Scheduled Monthly Payment: 255 Credit Limit: 12500 Original Charge Off Amount: Amount Past Due: 700 700 High Credit / Original Amt.: 13071 FCRA DOFD: 02/06/2014 Current Balance: 5016 5016 Terms Frequency: M:Monthly Date Closed: Date of Account Information: 08/09/2014 08/09/2014 Date of Last Payment: SCC: M:Account closed at credit grantor's request. Portfolio Type: Account Type: 18:Credit Card REV Cond. / Cum. Status: CLOSED/ DEL WAS 90 CII: 5.12E+11 Account Status: Response Data Interest Type Indicator: Terms Duration: 07/15/2014 05/01/2007Date Opened: AV1.03 2 of 3 Case 3:14-cv-02774-WQH-BGS Document 59-7 Filed 07/15/16 Page 3 of 4 Date: Zip: City: State: ECOA Code: CII: Street Address: Telephone Number: Date Of Birth: SSN: Middle Name: Generation Code: Last Name: First Name: Associated Consumer Information By submitting this ACDV, you certify that you have verified the accuracy of the data in compliance with all legal requirements, and your computer and/or manual records will be adjusted to reflect the changes noted. Submitted by: 08/15/2014Julie Moeller AV1.03 3 of 3 Case 3:14-cv-02774-WQH-BGS Document 59-7 Filed 07/15/16 Page 4 of 4 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 5 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-8 Filed 07/15/16 Page 1 of 5 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 KAREN DUELL, 4 Plaintiff, 5 Case No. 6 vs. 7 14-cv-2774 WQH (JLB) 8 FIRST NATIONAL BANK OF 9 OMAHA; AND, THE DUNNING 10 LAW FIRM, 11 Defendants. 12 VIDEOTAPED DEPOSITION OF JOHN ULZHEIMER 13 June 16, 2016 - 10:00 a.m. 14 1075 Peachtree Street, NE 15 Suite 3625 16 Atlanta, Georgia 17 18 19 20 21 22 23 24 J. David Brown, B-1401 25 Page 1 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-8 Filed 07/15/16 Page 2 of 5 1 There's nothing different about it. A model that 2 was built in 1999 and being used in 1999, if 3 someone is using it 15 years later, they're just 4 using it 15 years later. It is the same model. It 5 is like driving a car that's 15 years old. It is 6 still a Ford Explorer. It was a Ford Explorer 15 7 years ago. It is a Ford Explorer today. It is the 8 same exact car. It is the same thing with that 9 particular FICO score, it just happens to be old 10 but it is the same exact model. 11 Q. I'm going to come back to this. 12 MR. ROONEY: Please. 13 A. Okay. 14 BY MR. KAZEROUNIAN: 15 Q. What is your understanding this case is 16 about, Mr. Ulzheimer? 17 A. It is my understanding -- well, my 18 understanding of the case is that apparently your 19 client had a credit card relationship with the 20 defendant and went into default and she worked out 21 some sort of payment arrangement with I guess the 22 co-defendant. Sorry for -- let me start over 23 again. I'm commingling defendants. 24 It is my understanding that the plaintiff 25 had a credit card relationship with one of the Page 23 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-8 Filed 07/15/16 Page 3 of 5 1 defendants, First National Bank of Omaha, and she 2 went into default on that particular account. And 3 I guess she was working with the other defendant in 4 this case, The Dunning Law Firm, to work out some 5 sort of payment arrangement with them. 6 And I think it looks like that there was 7 some disconnect or misunderstanding as to the terms 8 of the settlement agreement or the payback 9 agreement with Dunning and the plaintiff is 10 objecting to or complaining about the way that the 11 account was reported by First National Bank of 12 Omaha I guess after the date that the settlement 13 agreement was or that this agreement with Dunning 14 was executed and that she is now claiming that 15 somehow the reporting of this item is harming her. 16 That's kind of my 50,000-foot understanding of the 17 issue. 18 Q. Now, you described in what capacity you 19 were hired as an expert before. Who actually hired 20 you? 21 A. I'm actually retained by outside counsel 22 for both First National Bank of Omaha and Dunning. 23 Q. And when were you first contacted? 24 A. Well, I know you don't want me to guess. 25 I'm going to give you my best estimate. My best Page 24 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-8 Filed 07/15/16 Page 4 of 5 1 CERTIFICATE 2 STATE OF GEORGIA: COUNTY OF FULTON: 3 4 I hereby certify that the foregoing transcript was taken down, as stated in the caption, and the 5 colloquies, questions and answers were reduced to typewriting under my direction; that the transcript 6 is a true and correct record of the evidence given upon said proceeding. 7 I further certify that I am not a relative or employee or attorney of any party, nor am I 8 financially interested in the outcome of this action. 9 I have no relationship of interest in this matter which would disqualify me from maintaining 10 my obligation of impartiality in compliance with the Code of Professional Ethics. 11 I have no direct contract with any party in this action and my compensation is based solely on 12 the terms of my subcontractor agreement. Nothing in the arrangements made for this 13 proceeding impacts my absolute commitment to serve all parties as an impartial officer of the court. 14 15 This the 23rd day of June, 2016. 16 17 18 J. DAVID BROWN, CCR-B-1401 19 20 21 22 23 24 25 Page 127 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-8 Filed 07/15/16 Page 5 of 5 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 7 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-9 Filed 07/15/16 Page 1 of 5 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 _____________________________ ) 5 KAREN DUELL, ) ) 6 Plaintiff, ) ) CASE NO. 7 vs. ) 3:14-CV-02774 WQH(BGS) ) 8 FIRST NATIONAL BANK OF OMAHA ) and THE DUNNING LAW FIRM, ) 9 ) Defendants. ) 10 _____________________________) 11 12 13 14 15 16 DEPOSITION OF KAREN DUELL 17 San Diego, California 18 Wednesday, February 17, 2016 19 Volume I 20 21 Reported by: 22 ELAINE SMITH, RMR 23 CSR No. 5421 24 Job No. 2221859 25 PAGES 1 - 104 Page 1 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-9 Filed 07/15/16 Page 2 of 5 1 Q Were you responsible for any of these 2 inquiries? 3 A I don't know. 4 Q Why don't you look through it and tell me if 5 there's any that you recognize. 6 A Kohl's. 7 Q The Kohl's account, who opened that? 8 A I did. 9 Q Was it in your name only? 10 A Yes. 11 Q Did you make all the payments for Kohl's, or 12 did Michael make payments on the Kohl's account? 13 A We both did. 14 Q Do you know when that changed over? 15 A No. 16 Q Any other inquiries here that you believe you 17 initiated? 18 A The First National Bank. 19 Q Was the First National Bank of Omaha a credit 20 card that you opened? 21 A Yes. 22 Q How was that credit card branded? 23 A I don't know. 24 Q Did it say, "First National Bank of Omaha" on 25 it? Page 46 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-9 Filed 07/15/16 Page 3 of 5 1 A Yes. 2 Q Who wrote this? 3 A Michael. 4 Q Did you see it before it went out? 5 A Yes. 6 Q Is that your signature? 7 A Yes. 8 Q Did you read it before you signed it? 9 A Yes. 10 Q Was everything in Exhibit 22 true and accurate 11 to the best of your knowledge and belief at the time you 12 signed it? 13 A Yes. 14 Q Do you know if it was sent on or around July 28 15 of 2014? 16 A I do -- I'm not sure. 17 Q Did Michael Duell ever tell you that he was -- 18 that he had sent it? 19 A Yes. 20 Q And when did he tell you that? 21 A I don't know. 22 Q Do you know if it was sent within a few days of 23 the date on here? 24 A I believe so. 25 Q Did you ask your husband to write this? Page 72 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-9 Filed 07/15/16 Page 4 of 5 1 I, the undersigned, a Certified Shorthand 2 Reporter of the State of California, do hereby certify: 3 That the foregoing proceedings were taken before 4 me at the time and place herein set forth; that any 5 witnesses in the foregoing proceedings, prior to 6 testifying, were administered an oath; that a record of 7 the proceedings was made by me using machine shorthand 8 which was thereafter transcribed under my direction; that 9 the foregoing transcript is a true record of the testimony 10 given. 11 Further, that if the foregoing pertains to the 12 original transcript of a deposition in a federal case, 13 before completion of the proceedings, a review of the 14 transcript [ ] was [ ] was not requested. 15 I further certify I am neither financially 16 interested in the action nor a relative or employee of any 17 attorney or any party to this action. 18 IN WITNESS WHEREOF, I have this date subscribed 19 my name. 20 21 Dated: 03/01/2016 22 23 24 <%signature%> ELAINE SMITH, RMR 25 CSR No. 5421 Page 104 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-9 Filed 07/15/16 Page 5 of 5 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 8 RE: DECLARATION OF ABBAS KAZEROUNIAN –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-10 Filed 07/15/16 Page 1 of 5 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 _____________________________ ) 5 KAREN DUELL, ) ) 6 Plaintiff, ) ) CASE NO. 7 vs. ) 3:14-CV-02774 WQH(BGS) ) 8 FIRST NATIONAL BANK OF OMAHA ) and THE DUNNING LAW FIRM, ) 9 ) Defendants. ) 10 _____________________________) 11 12 13 VIDEOTAPED DEPOSITION OF MICHAEL DUELL 14 San Diego, California 15 Thursday, January 28, 2016 16 Volume I 17 18 19 20 21 Reported by: 22 ELAINE SMITH, RMR 23 CSR No. 5421 24 Job No. 2210856-1 25 PAGES 1 - 211 Page 1 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-10 Filed 07/15/16 Page 2 of 5 1 Q Sure. And we'll talk about the specifics of 09:46:32 2 that in a moment. But one of the elements of that, I 3 assume, is your credit and Ms. Duell's credit, 4 correct? 5 A Yes. 09:46:45 6 Q And I see here this is an Identity Guard. 7 Are you a member of one of those -- 8 A Yes, sir. 9 Q -- organizations? That's one of those times 10 you didn't let me finish. 09:46:52 11 A Yes, sir. I apologize. 12 Q No problem. It probably won't be the last 13 time today, but I appreciate your attempt. Part of 14 one of the organizations that helps you with credit 15 monitoring? 09:47:02 16 A Yes. 17 Q And have you -- well, strike that. Let me 18 ask it differently. 19 Has -- the FNBO debt that we're here to talk 20 about today, has that ever been on your credit? 09:47:11 21 A No, it has not. 22 Q Was that a credit card that your wife took 23 out individually? 24 A Yes, sir. 25 Q All the times you've ever seen your own 09:47:20 Page 15 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-10 Filed 07/15/16 Page 3 of 5 1 Q So you thought -- you got Exhibit 5 and 10:22:10 2 said, "All right. Let's close up that. We'll move 3 on to the next" -- 4 A Write a check. 5 Q Were you ever untimely on any of the $170 10:22:21 6 checks? 7 A No, sir. 8 Q During your call with Mr. MacLeod, did you 9 ever talk about what would happen if you were 10 untimely on any of the $170 checks? 10:22:40 11 A I don't believe we spoke about what-ifs. I 12 think we would -- again, it was a very short, brief 13 conversation. 14 Q When did the FNBO debt next come to mind 15 other than making payments? 10:23:07 16 A It was in May or June. 17 Q What happened in May or June? 18 A We received a e-mail or a call from our -- 19 we were working with a -- we were looking at 20 refi'ing, and we were very close to pulling the 10:23:22 21 trigger on it when suddenly I received a message that 22 we had a problem with Karen's credit. 23 Q And was it articulated what that problem 24 was? 25 A It was an account -- it was an account with 10:23:39 Page 47 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-10 Filed 07/15/16 Page 4 of 5 1 I, the undersigned, a Certified Shorthand 2 Reporter of the State of California, do hereby certify: 3 That the foregoing proceedings were taken before 4 me at the time and place herein set forth; that any 5 witnesses in the foregoing proceedings, prior to 6 testifying, were administered an oath; that a record of 7 the proceedings was made by me using machine shorthand 8 which was thereafter transcribed under my direction; that 9 the foregoing transcript is a true record of the testimony 10 given. 11 Further, that if the foregoing pertains to the 12 original transcript of a deposition in a federal case, 13 before completion of the proceedings, a review of the 14 transcript [ ] was [ ] was not requested. 15 I further certify I am neither financially 16 interested in the action nor a relative or employee of any 17 attorney or any party to this action. 18 IN WITNESS WHEREOF, I have this date subscribed 19 my name. 20 21 Dated: 02/10/2016 22 23 24 <%signature%> ELAINE SMITH, RMR 25 CSR No. 5421 Page 211 Veritext Legal Solutions 866 299-5127 Case 3:14-cv-02774-WQH-BGS Document 59-10 Filed 07/15/16 Page 5 of 5 DECLARATION OF KAREN DUELL IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (249203) ak@kazlg.com Matthew M. Loker, Esq. (279939) ml@kazlg.com 245 Fisher Avenue, Unit D1 Costa Mesa, California 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (225557) josh@westcoastlitigation.com Sara Khrosroabadi, Esq. (299642) sara@westcoastlitigation.com 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff, Karen Duell UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA /// KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA; AND, THE DUNNING LAW FIRM, Defendants. Case No.: 14-cv-2774 WQH (JLB) DECLARATION OF PLAINTIFF KAREN DUELL’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM DATE: August 22, 2016 COURTROOM: 14B HON. WILLIAM Q. HAYES NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:14-cv-02774-WQH-BGS Document 59-11 Filed 07/15/16 Page 1 of 3 DECLARATION OF KAREN DUELL IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM PAGE 1 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 I, KAREN DUELL, hereby declare as follows: 1. I am an individual, consumer, and the Plaintiff in the above-captioned matter. I have personal knowledge of the information contained in this Declaration and could testify to such if called to do so. 2. I submit this Declaration in support Plaintiff’s Motion for Summary Judgment, or alternatively, Summary Adjudication against Defendant THE DUNNING LAW FIRM (“Dunning”) 3. Sometime prior to this action, I incurred the alleged debt that is subject of this action to co-Defendant FIRST NATIONAL BANK OF OMAHA (“FNBO”). 4. This account was primarily for family, personal and household purposes. 5. Specifically, the alleged debt was incurred for my personal expenses. 6. FNBO claims that I became delinquent on my financial obligations. 7. Thereafter, FNBO transferred my account to Dunning for collection. 8. A true and correct copy of the February 14, 2014 written communication that I received from Dunning is attached hereto as Exhibit 1. 9. Following receipt of the letter, my husband, Michael Duell (“Mr. Duell”), contacted Dunning. 10. Mr. Duell informed me that the account was settled for monthly payments of $170. 11. I received a letter dated from Dunning dated February 24, 2014 confirming the payment arrangement of $170 per month. 12. A true and correct copy of this February 24, 2014 written communication is attached hereto as Exhibit 2. 13. Thereafter, I paid at least $170 per month towards the FNBO account. Case 3:14-cv-02774-WQH-BGS Document 59-11 Filed 07/15/16 Page 2 of 3 DECLARATION OF KAREN DUELL IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM PAGE 2 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 14. I never missed a payment as required by the payment arrangement documented by Dunning in the February 24, 2014 written communication. 15. I reviewed Mr. Duell’s Declaration prior to its filing. 16. I agree that each statement in Mr. Duell’s Declaration is accurate and true. 17. I reviewed Abbas Kazerounian’s Declaration prior to its filing 18. I agree that each statement in Mr. Kazerounian’s Declaration is accurate and true. 19. I also reviewed each of the documents attached to Mr. Kazerounian’s Declaration. 20. To the extent possible, I agree that each Exhibit attached to Mr. Kazerounian’s Declaration is a true and correct copy of what it is purported to be in said Declaration. I declare under the penalty of perjury, pursuant to the laws of the State of California and those of the United States of America that the foregoing is true and correct. Executed on July 14, 2016, at San Diego, California. Case 3:14-cv-02774-WQH-BGS Document 59-11 Filed 07/15/16 Page 3 of 3 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 1 RE: DECLARATION OF KAREN DUELL –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-12 Filed 07/15/16 Page 1 of 2 Case 3:14-cv-02774-WQH-JLB Document 8-2 Filed 01/09/15 Page 4 of 6Case 3:14-cv-02774-WQH-BGS Document 59-12 Filed 07/15/16 Page 2 of 2 KAZEROUNI LAW GROUP, APC 245 FISCHER AVENUE, UNIT D1, COSTA MESA, CA 92626 (800) 400-6808 PLAINTIFF’S EXHIBIT 2 RE: DECLARATION OF KAREN DUELL –––––––––––––––––––––––––––––––––––––––––––––––––––– In The Case Of Karen Duell, v. First National Bank of Omaha; and, The Dunning Law Firm, 14-cv-2774 WQH (JLB) Case 3:14-cv-02774-WQH-BGS Document 59-13 Filed 07/15/16 Page 1 of 2 Case 3:14-cv-02774-WQH-BGS Document 59-13 Filed 07/15/16 Page 2 of 2 DECLARATION OF MICHAEL DUELL IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (249203) ak@kazlg.com Matthew M. Loker, Esq. (279939) ml@kazlg.com 245 Fisher Avenue, Unit D1 Costa Mesa, California 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (225557) josh@westcoastlitigation.com Sara Khrosroabadi, Esq. (299642) sara@westcoastlitigation.com 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff, Karen Duell UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA /// KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA; AND, THE DUNNING LAW FIRM, Defendants. Case No.: 14-cv-2774 WQH (JLB) DECLARATION OF MICHAEL DUELL’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM DATE: August 22, 2016 COURTROOM: 14B HON. WILLIAM Q. HAYES NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:14-cv-02774-WQH-BGS Document 59-14 Filed 07/15/16 Page 1 of 3 DECLARATION OF MICHAEL DUELL IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM PAGE 1 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 I, MICHAEL DUELL, hereby declare as follows: 1. My wife KAREN DUELL (“Mrs. Duell”) is the Plaintiff in the above- captioned matter. 2. I have personal knowledge of the information contained in this Declaration and could testify to such if called to do so. 3. I submit this Declaration in support Mrs. Duell’s Motion for Summary Judgment, or alternatively, Summary Adjudication against Defendant THE DUNNING LAW FIRM (“Dunning”) 4. I reviewed the February 14, 2014 written communication that Dunning sent to Mrs. Duell. 5. A true and correct copy of this February 14, 2014 written communication is attached to Mrs. Duell’s Declaration as Exhibit 1. 6. Following receipt of the letter, I contacted Dunning via telephone. 7. During this telephonic communication, I spoke with James MacLeod, an attorney with Dunning’s office. 8. I made payment arrangements with Mr. MacLeod to pay $170 each month to satisfy Mrs. Duell’s FNBO account. 9. Thereafter, Mrs. Duell and I paid at least $170 per month towards the FNBO account. 10. In or about July 2014, I learned that FNBO had marked that Mrs. Duell was delinquent on Mrs. Duell’s monthly payments. 11. I reviewed Mrs. Duell’s Declaration prior to its filing. 12. I agree that each statement in Mrs. Duell’s Declaration is accurate and true. 13. I reviewed Abbas Kazerounian’s Declaration prior to its filing. Case 3:14-cv-02774-WQH-BGS Document 59-14 Filed 07/15/16 Page 2 of 3 DECLARATION OF MICHAEL DUELL IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM PAGE 2 OF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O S T A M E S A , C A 9 26 26 14. I agree that each statement in Mr. Kazerounian’s Declaration is accurate and true. 15. I also reviewed each of the documents attached to Mr. Kazerounian’s Declaration. 16. To the extent possible, I agree that each Exhibit attached to Mr. Kazerounian’s Declaration is a true and correct copy of what it is purported to be in said Declaration. I declare under the penalty of perjury, pursuant to the laws of the State of California and those of the United States of America that the foregoing is true and correct. Executed on July 14, 2016, at San Diego, California. Case 3:14-cv-02774-WQH-BGS Document 59-14 Filed 07/15/16 Page 3 of 3 PLAINTIFF KAREN DUELL’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (249203) ak@kazlg.com Matthew M. Loker, Esq. (279939) ml@kazlg.com 245 Fisher Avenue, Unit D1 Costa Mesa, California 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (225557) josh@westcoastlitigation.com Sara Khrosroabadi, Esq. (299642) sara@westcoastlitigation.com 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA /// KAREN DUELL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA; AND, THE DUNNING LAW FIRM, Defendants. Case No.: 14-cv-2774 WQH (JLB) PLAINTIFF KAREN DUELL’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, AGAINST DEFENDANT THE DUNNING LAW FIRM DATE: August 22, 2016 COURTROOM: 14B HON. WILLIAM Q. HAYES NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:14-cv-02774-WQH-BGS Document 59-15 Filed 07/15/16 Page 1 of 4 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 OF 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD: PLEASE TAKE NOTICE that Plaintiff KAREN DUELL (“Plaintiff”) submits this Separate Statement of Undisputed Facts, together with references to supporting evidence, in support of Plaintiff’s Motion for Summary Judgment, or alternatively, Summary Adjudication against Defendant THE DUNNING LAW FIRM (“Dunning”). PLAINTIFF’S UNDISPUTED MATERIAL FACTS: SUPPORTING EVIDENCE: 1. Plaintiff incurred financial obligations to FNBO. Declaration of Karen Duell (“KD Decl.”), ¶ 3; Karen Duell’s Deposition Transcript (“KD Transcript”), 46:19-21; Michael Duell’s Deposition Transcript (“MD Transcript”), 15:15-24; and, Exhibits 1; and, 2 attached to KD Decl. 2. Plaintiff’s alleged debt was delinquent. KD Decl., ¶ 3; Exhibits 1; and, 2 attached to KD Decl.; FNBO’s Requests for Admissions attached as Exhibits 3 to Kazerounian Decl. 3. FNBO transferred Plaintiff’s debt to Dunning for collection KD Decl., ¶ 7; and, Exhibits 1; and, 2 attached to KD Decl. Case 3:14-cv-02774-WQH-BGS Document 59-15 Filed 07/15/16 Page 2 of 4 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 2 OF 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 4. Dunning had authority to settle Plaintiff’s debt on behalf of FNBO Paul Osborne’s Deposition Transcript (“Osborne Transcript”), 15:8-10; 20:13-18; and, 21:17-23; Exhibits 1; and, 2 attached to KD Decl.; and, James MacLeod’s Deposition Transcript, (“MacLeod Transcript”), 17:18-25; 18:2-9; 22:21-24; and, 35:3- 9. 5. Dunning sent Plaintiff a written communication dated February 14, 2014 on behalf of FNBO. Declaration of Karen Duell (“KD Decl.”), ¶ 3; Exhibits 1 attached to KD Decl. 6. Plaintiff’s husband, Michael Duell, placed a telephone call to Dunning after receipt of the February 14, 2014 written communication. MacLeod Transcript, 17:7-25; and, MD Decl., ¶ 6. 7. During this telephonic communication, Mr. Duell and Mr. MacLeod agreed to a new payment arrangement of $170 per month for Plaintiff’s FNBO debt. MacLeod Transcript, 17:7-25; and, MD Decl., ¶ 6. Case 3:14-cv-02774-WQH-BGS Document 59-15 Filed 07/15/16 Page 3 of 4 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 3 OF 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 8. Dunning sent Plaintiff a written communication dated February 24, 2014 on behalf of FNBO. Exhibit 2 attached to KD Decl.; KD Decl., ¶ 12; Dunning’s Answer to Plaintiff’s Second Amended Complaint, ECF No. 55 (“Dunning Answer”), ¶ 29; and, MacLeod Transcript, 34:18-21. 9. Dunning is FNBO’s agent. Osborne Transcript, 15:8-10; 20:13-18; and, 21:17-23 MacLeod Transcript, 17:18-25; 18:2-9; 22:21-24; and, 35:3-9. Dated: July 15, 2016 KAZEROUNI LAW GROUP, APC BY: __/S/ ABBAS KAZEROUNIAN___ ABBAS KAZEROUNIAN, ESQ. ATTORNEY FOR PLAINTIFF Case 3:14-cv-02774-WQH-BGS Document 59-15 Filed 07/15/16 Page 4 of 4 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K A Z E R O U N I L A W G R O U P , A P C 24 5 F IS C H E R A V E N U E , U N IT D 1 C O ST A M E SA , C A 9 26 26 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Kazerouni Law Group, APC, 245 Fischer Avenue, Unit D1, Costa Mesa, CA 92626. On July 15, 2016, I served the within document(s): PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION AGAINST DEFENDANT THE DUNNING LAW FIRM £ FACSIMILE - by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 5:00 p.m. £ MAIL - by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Costa Mesa, California addressed as set forth below. £ PERSONAL SERVICE - by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. S CM/ECF - by transmitting electronically the document(s) listed above to the electronic case filing system on this date before 11:59 p.m. The Court’s CM/ECF system sends an e-mail notification of the filing to the parties and counsel of record who are registered with the Court’s CM/ECF system. Cory J. Rooney, Esq. BRUMBAUGH & QUANDAHL, P.C., LLP 4885 South 118th Street Omaha, NE 68122 e-mail: crooney@bqlaw.com Amy V. Bianchini, Esq. KLINEDINST PC 501 West Broadway, Suite 600 San Diego, CA 92101 abianchini@klinedinstlaw.com I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 15, 2016, at Costa Mesa, California. ___/s/ Abbas Kazerounian___ ABBAS KAZEROUNIAN Case 3:14-cv-02774-WQH-BGS Document 59-16 Filed 07/15/16 Page 1 of 1