Newfield v. City Nat'l Bank, NA, No. CV163833DSFJPRX, 2017 WL 540944, at *1–4 (C.D. Cal. Jan. 27, 2017)

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Newfield v. City Nat'l Bank, NA, No. CV163833DSFJPRX, 2017 WL 540944, at *1–4 (C.D. Cal. Jan. 27, 2017)

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Newfield v. City Nat'l Bank, NA, No. CV163833DSFJPRX, 2017 WL 540944, at *1–4 (C.D. Cal. Jan. 27, 2017)

(In Chambers) Order DENYING Plaintiff's Motion for Summary Judgment (Dkt. 23), GRANTING Defendant City National Bank, NA's Motion for Summary Judgment (Dkt. 48), and GRANTING Defendants SMS Financial LLC and SMS Financial XI, LLC's Motion for Summary Judgment (Dkt. 58)
DALE S. FISCHER, United States District Judge

*1 Plaintiff Marc Newfield and Defendants City National Bank, NA (CNB), SMS Financial LLC (SMS), and SMS Financial XI, LLC (SMS XI) move for summary judgment.1 For the following reasons, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendants' motions for summary judgment


A. Legal Standard

“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “This burden is not a light one.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). But the moving party need not disprove the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rather, if the moving party satisfies this burden, the party opposing the motion must set forth specific facts, through affidavits or admissible discovery materials, showing that there exists a genuine issue for trial. Id. at 323–24; Fed. R. Civ. P. 56(c)(1).

The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue of fact is a genuine issue if it reasonably can be resolved in favor of either party. Id. at 250–51. “[M]ere disagreement or the bald assertion that a genuine issue of material fact exists” does not preclude summary judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury ... could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict....” Anderson, 477 U.S. at 252. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248.

“A district court's ruling on a motion for summary judgment may only be based on admissible evidence.” Oracle, 627 F.3d at 385. A party seeking to admit evidence bears the burden of proof to show its admissibility. Id. But courts need not scour the record to determine if evidence is admissible. Id. at 385–86.

B. Background

On January 13, 2004, the California Superior Court entered a judgment pursuant to stipulation for credit card debt owed by Newfield to CNB. SMS Mot., RJN, Ex. 6 (Dkt. 63). On August 18, 2008, CNB filed an assignment of judgment to SMS XI. Id., Ex. 7. (Hemar, Rousso & Heald) HRH, acting as SMS XI's attorney, filed an application for renewal of the judgment. Id., Ex. 8. Newfield filed motions and subsequent appeals challenging the judgment renewal on various grounds, including the statute of limitations for renewing a judgment. Id., Exs. 11, 14, 16, 18, 19. The California trial and appellate courts ruled against Newfield each time. Id., Exs. 13, 15, 17, 20. HRH requested a judgment debtor's examination in the state court proceedings and on September 15, 2015, served Newfield with the court-issued order to appear for examination. Id., Ex. 21; FAC, Ex. F. On September 30, 2015, Hemar, Rousso &Heald (HRH) sent an e-mail to Newfield advising him that he must appear, pursuant to court order, for a judgment debtor's examination. Id., Ex. G.

C. Discussion

1. Fair Debt Collection Practices Act (FDCPA) Claims23

*2 A plaintiff must bring an action under the FDCPA “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k. Actions under the Rosenthal Act must also be brought “within one year from the date on which the violation occurs.” Cal. Civ. Code § 1788.30. Newfield filed his complaint alleging FDCPA and Rosenthal Act violations on September 13, 2016. Compl. (CV 16-6872 DSF (JPRx), Dkt. 1). Accordingly, all alleged violations that occurred before September 13, 2015 are barred by the statute of limitations, leaving only the alleged violations occurring on September 15, 2015 and September 30, 2015. Further, Newfield cannot bring the time-barred violations under a continuing violation theory because the Court finds no liability for the alleged violations on September 15, 2015 and September 30, 2015, as discussed below.

a. September 15, 2015 service of subpoena

Newfield alleges SMS XI caused HRH to serve a subpoena on him on September 15, 2015. Compl. ¶ 16. He pleads that this subpoena, which included an application for order to appear for examination, erroneously listed SMS XI as a judgment creditor. Id. Although Newfield proffers the application for order to appear for examination, he fails to submit the subpoena. The application lists SMS XI as an assignee of record, not a judgment creditor. The Court notes that under section 680.240 of the California Code of Civil Procedure, the term “judgment creditor” includes an “assignee of record.” In his opposition to Defendants' motions for summary judgment, Newfield contends SMS XI is not a proper assignee of record because it did not file an acknowledgement of assignment of judgment as required by section 673 of the California Code of Civil Procedure. Opp. at 4-5. But section 673 “does not limit or restrict[ ] any other means by which an assignee may become an assignee of record.” Cal. Civ. Proc. Code § 673(d).

CNB filed an assignment of judgment to SMS XI with the Superior Court of California. SMS Mot., RJN, Ex. 7. SMS XI thereafter filed, as judgment creditor, for renewal of judgment to the Superior Court of California. Id., Ex. 8. The Superior Court of California issued a notice of renewal of judgment. Id., Ex. 9. Because the Superior Court recognized SMS XI as a judgment creditor, this Court, even if it were to assume that the subpoena listed SMS XI as a judgment creditor, finds SMS XI cannot be liable for its service of this subpoena.

Newfield also pleads that SMS XI is a debt collector and thus could not have lawfully caused HRH to serve him with a subpoena to appear for a judgment debtor's examination. Compl. ¶ 16. But an assignee of record is entitled to enforce a judgment. See Cal. Civ. Proc. Code § 681.020. As part of the enforcement process, a judgment creditor can apply for an order for a judgment debtor's examination and serve this order on the judgment debtor. See id. §§ 708.110(a), (d). The Court finds SMS XI's actions were lawful.4

b. September 30, 2015 e-mail

Newfield alleges HRH and SMS XI violated various sections of the FDCPA and Rosenthal Act by failing to include a “mini-Miranda” notice in HRH's first e-mail sent to Newfield on September 30, 2015.5 FAC ¶ 27. But the record shows that this e-mail, which does not even mention SMS XI, was sent by HRH and not SMS XI.6 FAC, Ex. G. Newfield has provided no evidence regarding any communications from SMS XI. Nor does he argue that SMS XI should be vicariously liable for the actions of HRH. But even if he had done so, the Court would not find such vicarious liability. Although there is not much authority on vicarious liability under the FDCPA, the Third Circuit has laid out the following rule based on its reading of Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir. 1994) and Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 106–07 (6th Cir. 1996):

*3 [F]ederal courts that have considered the issue have held that the client of an attorney who is a “debt collector,” as defined in § 1692a(6), is vicariously liable for the attorney's misconduct if the client is itself a debt collector as defined in the statute. Thus, vicarious liability under the FDCPA will be imposed for an attorney's violations of the FDCPA if both the attorney and the client are debt collectors as defined in § 1692a(6).

Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 404 (3d Cir. 2000) (quoting First Interstate Bank of Fort Collins v. Soucie, 924 P.2d 1200, 1202 (Colo. Ct. App. 1996)). Indeed, the “distinction between creditors and debt collectors is fundamental to the FDCPA, which does not regulate creditors' activities at all.” Randolph v. IMBS, Inc., 368 F.3d 726, 729 (7th Cir. 2004). A non-moving party who bears the burden of proof at trial as to an element essential to its case must make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element of the case or be subject to summary judgment. See Celotex Corp., 477 U.S. at 322. Newfield proffers no evidence showing that HRH is a debt collector and thus fails to make a sufficient showing.

Newfield also fails to make a factual showing that SMS XI is a debt collector. SMS XI denies Newfield's allegations that it is in the business of collecting debts and regularly attempts to collect debts using the mail or telephone. Answer ¶¶ 4, 6 (CV 16-6872 DSF (JPRx), Dkt. 16). Newfield proffers no evidence supporting these allegations. In his opposition, Newfield argues that SMS XI is a debt collector because it obtained debt that was in default at the time of assignment. Opp. at 6. But finding debt collector status for an entity based on a single assignment of delinquent debt “would render superfluous the second definition of ‘debt collector,’ which includes those ‘who regularly collect [ ] or attempt[ ] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.’ ” Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1209 (9th Cir. 2013) (citing 15 U.S.C. § 1692a(6)). The Court grants summary judgment for Defendants on Newfield's FDCPA claims.78

2. Fair Credit Reporting Act (FCRA) Claims

Newfield contends CNB, SMS, and SMS XI violated the FCRA and California Consumer Credit Reporting Agencies Act (CCRAA) by requesting a credit report without a permissible purpose.9 Compl. ¶ 1 (Dkt. 1).

The FCRA imposes liability for obtaining a consumer report for an unauthorized purpose. 15 U.S.C. §§ 1681b(f), 1681n(a). The FCRA does, however, authorize distribution of a consumer report to an entity that “intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer.” Id. § 1681b(a)(3)(A). Newfield argues that SMS XI and SMS are not proper assignees of the debt. Compl. ¶ 11. Based on the Court's discussion above, SMS XI is a proper assignee of record of Newfield's debt. Further, it is undisputed that SMS obtained the credit report on SMS XI's behalf.10 SMS Mot., Hoffer Decl. ¶ 14. When presented with nearly identical facts, the Third Circuit held that Section 1681b(a)(3)(A) authorized the acquisition of a plaintiff's consumer report by an entity retained by a defendant who purchased plaintiff's debt from his original lender. Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 31, 34 (3d Cir. 2011) (citations omitted). SMS, on behalf of SMS XI, obtained Newfield's credit report in connection with collection efforts on Newfield's delinquent debt, which was properly assigned to SMS XI. The Court finds no violation of the FCRA.

*4 “The CCRAA ‘mirrors’ the provisions of the FCRA.” See Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1335 (9th Cir. 1995). “[B]ecause the CCRAA ‘is substantially based on the Federal Fair Credit Reporting Act, judicial interpretation of the federal provisions is persuasive authority and entitled to substantial weight when interpreting the California provisions.’ ” Carvalho v. Equifax Information Services, LLC, 629 F.3d 876, 889 (9th Cir. 2010) (citing Olson v. Six Rivers Nat'l Bank, 111 Cal. App. 4th 1, 3 (2003)). For the same reasons, the Court finds no violation of the CCRAA. The Court grants summary judgment for CNB, SMS, and SMS XI.


For the same reasons as above, the Court finds that Plaintiff's claims against CNB, SMS, and SMS XI fail. Plaintiff's motion for summary judgment is denied.


Plaintiff's Motion for Summary Judgment is DENIED. Defendant City National Bank, NA's Motion for Summary Judgment is GRANTED. Defendants SMS Financial LLC and SMS Financial XI, LLC's Motion for Summary Judgment is GRANTED.


All Citations
Not Reported in Fed. Supp., 2017 WL 540944


Newfield filed two separate actions against CNB SMS, and SMS XI. Compl. (CV 16-3833 DSF (JPRx), Dkt. 1); Compl. (CV 16-6872 DSF (JPRx), Dkt. 1). On November 7, 2016, the Court consolidated these two cases. Mins. (CV 16-3833 DSF (JPRx), Dkt. 35); Mins. (CV 16-6872 DSF (JPRx), Dkt. 29).

After the Court dismissed his FDCPA claims against HRH, Newfield filed a first amended complaint that added SMS as a party. FAC (Dkt. 42). But CNB, SMS, and SMS XI were not served with the FAC. Id. Nonetheless, CNB, SMS, and SMS XI have stipulated to the addition of SMS to the FAC and the merging of allegations in the FAC with the allegations in the prior complaints. Stipulation ¶¶ 2, 4 (Dkt. 44). The Court approved this stipulation. Order (Dkt. 64).

Although Newfield included claims for intentional infliction of emotional distress and malicious prosecution on the caption page of his complaint, he does not assert these claims in the body of the complaint.

Therefore, the Court need not address SMS and SMS XI's Rooker-Feldman doctrine and issue preclusion arguments. SMS Mem. ISO Mot. at 8-11 (Dkt. 59).

The Court, in a prior order, dismissed Newfield's first amended FDCPA claims against HRH. Order (Dkt. 73).

Contrary to Newfield's allegations, HRH had sent an earlier written communication to Newfield on September 26, 2014 when it sent him a letter regarding the assignment of judgment from CNB to SMS XI. Mot. Dismiss FAC, Cox Decl., Ex. 2 (Dkt. 74). Newfield does not dispute this fact.

Newfield also pleads liability for a “false claim of judgment creditor” in the September 30, 2015 email. FAC ¶ 27. For the same reasons, the Court does not find SMS XI liable for HRH's e-mail.

Newfield seeks to impose liability against CNB based on agency and respondeat superior theories. Opp. at 7. Because the Court finds no liability against SMS XI, it need not decide whether these theories apply to CNB.

Newfield improperly includes HRH in his motion for summary judgment on these claims: HRH was neither included in his complaint alleging FCRA violations nor served with this complaint.

Newfield failed to provide, as required by L.R. 16-2.8, contentions of law and fact in his opposition to Defendants' motions for summary judgment. Nonetheless, after reviewing his opposition, the Court finds no dispute as to this fact.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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