In Aho v. AmeriCredit Financial Services, Inc., 2012 WL 273780 (S.D.Cal. 2012), Judge Sabraw granted summary judgment to the Plaintiffs on their claims regarding post-repossession letters under Juarez. As to the claim under the ASFA, Judge Sabraw held:
Accordingly, that the information may be available to the consumer does not relieve Defendant of its obligation to include that information in the NOI. Defendant’s argument of waiver fares no better. On the contrary, the concept of waiver only reinforces that these amounts are both conditions precedent and that Defendant knew or should have known about them. In sum, the monthly payments and late fees were conditions precedent to reinstatement that Defendant knew, or reasonably should have known, and thus they should have been included in the NOI. The second amount that should have been included in the NOI is the law enforcement fee. See Mora v. Harley–Davidson Credit Corp., No. 1:08–CV–01453–OWW–GSA, 2010 WL 4321602 (E.D.Cal. Oct. 25, 2010) (holding law enforcement fee should have been included in NOI). Defendant argues the law enforcement fee is a prerequisite to physical recovery of the vehicle, but it is not a condition precedent to reinstatement of the contract, therefore it need not be included in the NOI. However, this argument ignores the consumer’s primary purpose for reinstatement, which is to regain possession of the vehicle. To accomplish that purpose, the consumer must pay the law enforcement fee. Thus, although Defendant may not require payment of the law enforcement fee to reinstate the contract, payment of the fee is necessary to fulfill the purpose of reinstatement for the consumer, namely regaining possession of the vehicle. ¶ Plaintiff has demonstrated the absence of a genuine issue of material fact that payment of additional monthly installments, late fees and the law enforcement fee is a condition precedent to reinstatement of the contract. He has also demonstrated the absence of genuine issue of material fact that Defendant knew, or should have known, the specifics of those fees and charges. Defendant’s failure to include this information in the NOI is a violation of the ASFA.
Judge Sabraw found that the Plaintiff’s payment of a small sum following the issuance of the NOI conferred UCL standing:
However, Plaintiff has come forward with evidence to support a finding of injury in the form of his $25 payment toward his deficiency as well as his negative credit report. Defendant does not show there are triable issues of fact on these injuries. Rather, Defendant’s focus is on the element of causation. ¶ Previously, the Court found the evidence was susceptible to competing inferences about causation: One inference was that Plaintiff’s injury was caused by Defendant’s conduct. The other inference was that Plaintiff made the payment to manufacture standing for this case. That argument holds true on the $25 payment, but it carries less weight with respect to the negative credit report. Indeed, it is unreasonable to suggest that Plaintiff would have manufactured that kind of injury for standing purposes. With this injury, there is no dispute Defendant reported the deficiency to the credit rating agencies. Defendant argues Plaintiff had other delinquent accounts that negatively impacted his credit report, but that argument does not defeat a showing of causation sufficient to satisfy the statutory standing requirement. As stated by the California Supreme Court, “a ‘plaintiff is not required to allege that [the challenged] misrepresentations were the sole or even the decisive cause of the injury-producing conduct.’ “ Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 327, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) (quoting In re Tobacco II Cases, 46 Cal.4th 298, 327, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009)). Rather, the plaintiff need only show that the Defendant’s conduct “ ‘was an immediate cause of the injury-producing conduct.’ “ Id. (quoting In re Tobacco II, 46 Cal.4th at 326, 93 Cal.Rptr.3d 559, 207 P.3d 20). Plaintiff has made that showing here, and thus he has satisfied the statutory standing requirements for his UCL claim.
In a companion decision, Judge Sabraw found that Plaintiff’s claim under the Rosenthal Act was not barred by the 1-year statute of limitations:
The statute of limitations for Plaintiff’s Rosen-thal Act claim is one year. Cal. Civ.Code § 1788.30(f). Defendant argues this claim is untimely because it did not initiate any collection activity on Plaintiff’s account after February 3, 2009, which is more than one year prior to the filing of the Complaint on June 29, 2010. However, whether Defendant initiated any collection activity in the year prior to the filing of the Complaint is not the issue. Rather, the issue is whether Defendant engaged in any conduct that violates the Rosenthal Act within that one year. On this issue, there is, at a minimum, a genuine issue of material fact. For instance, Defendant’s phone logs reflect that Defendant followed up on payment on Plaintiff’s account in May and June of 2010, after Plaintiff initiated contact on his account. (Docket No. 51–2.) Therefore, Defendant is not entitled to summary judgment on the Rosenthal Act claim on the ground the claim is time-barred.
Aho v. AmeriCredit Financial Services, Inc., 2012 WL 273763 (S.D.Cal. 2012). Judge Sabraw also found that billing statements sent after notice of representation were distinguishable from those send in the Marcotte case.
The firm sent a letter to the defendant informing the defendant of its representation of the plaintiff, and asking that all future communications be sent to the firm. Id. Thereafter, the defendant sent two billing statements to the plaintiff. Id. Based thereon, the plaintiff alleged the defendant violated that portion of the Rosenthal Act that “prohibits certain communications by creditors to debtors represented by counsel.” Id. ¶ The defendant moved for judgment on the pleadings. It noted the Rosenthal Act’s definition of prohibited communications did not include billing statements, therefore its conduct could not be a violation of the Act. Id. at 997. However, the plaintiff did not allege a substantive violation of the Rosenthal Act. Instead, he alleged the defendant violated a substantive provision of the FDCPA, which also prohibited certain communications by debt collectors to debtors represented by counsel. Id. at 997–98. The defendant urged the court to “harmonize these provisions by applying the exception for billing statements to both sections.” Id. at 998. ¶ The court did so for three reasons. First, the court found that although the Rosenthal Act incorporated certain specific provisions of the FDCPA, those provisions “must be read in the context of a statutory scheme that permits and requires credit-card companies to send billing statements.” Id. at 1001. Second, the court found that portion of the Rosenthal Act that incorporates the FDCPA was modified by the specific exception for billing statements. Id. “Any other interpretation would result in an implied repeal-a result disfavored by both California and federal law.” Id. at 1001–02. Third, the court found the plaintiff’s construction of the state and federal statutes “would result in the preemption and partial invalidity of § 1788.17[.]” Id. at 1002. ¶ Defendant asserts the facts of this case are simi-lar to those alleged in Marcotte, therefore this Court should likewise find that Plaintiff’s claim is not viable. However, none of the reasons for the Marcotte decision apply here. First, unlike in Marcotte, there is no specific provision of federal law that allows, much less requires, that Defendant engage in the specific conduct at issue in this case. In Marcotte, that conduct was the transmission of billing statements, which was required by TILA. There is no similar law that requires or allows for false representations, threats or the use of deceptive means to collect debts, which is the alleged conduct at issue here. Second, there is no specific exception for this conduct in the Rosenthal Act. This is in contrast to Marcotte, where billing statements were specifically excluded from the definition of prohibited communications. Third, there is no conflict between the FDCPA and Rosenthal Act that would lead to preemption. Although the Rosenthal Act and the FDCPA define “debt collector” differently, that difference does not create a conflict like the one discussed in Marcotte. Indeed, “nothing indicates that Congress intended to preempt the CFDCPA or to completely occupy the field of debt collection.” Alkan v. Citimortgage, Inc., 336 F.Supp.2d 1061, 1065 (N.D.Cal.2004). Thus, Marcotte is distinguishable from the facts of this case, and does not support Defendant’s argument in its request for summary judgment. Absent any other authority, Defendant’s argument that it is not a debt collector under the FDCPA does not warrant summary judgment in its favor.