In Vester v. Asset Acceptance, L.L.C., 2011 WL 4591948 (D.Colo. 2011), Judge Krieger was asked to reconsider an FDCPA ruling adverse to the consumer on the basis that the 9th Circuit’s decision in McCullough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir.2011) and its holding regarding the evidentiary value of generic credit card agreements to prove-up a debt (and a debt collector’s entitlement to attorneys’ fees). Judge Krieger explained the procedural history of the Vester case as follows:
The Court issued an oral ruling on March 3, 2011. A threshold issue was whether the filing of an unfounded collections lawsuit would result in strict federal liability under the FDCPA. The Court, re-viewing case law from other circuits, including Harvey v. Great Seneca Fin. Corp., 453 F.3d 324 (6th Cir.2006), concluded that the Tenth Circuit would likely hold that a lawsuit based on a claim that is stale by virtue of the expiration of the applicable statute of limitation (or invalid because the plaintiff collector had no standing to sue) could be actionable under the FDCPA. Such a claim, however, would be subject to the collector’s assertion of a bona fide error defense. ¶ With respect to the merits of the case, the Court determined, inter alia, that AA had voluntarily dismissed the state court case and no legal determination had been made at the state court level regarding the statute of limitation. The Court concluded that Mr. Vester failed to carry his burden of proof to establish that the claim was stale or time-barred at the time that AA initiated the state collections lawsuit. The Court also concluded that Mr. Vester had failed to come forward with evidence sufficient to show that AA knew that the accounts were stale at the time the ac-tion was brought. It was noted that the accounts were purchased as part of a portfolio to which representations were made as to the currency of the debt. Accordingly, the Court held that even if the claims had been time-barred, AA would be able to establish by a preponderance of the evidence a defense of bona fide error. Since Mr. Vester had failed to prove that AA had violated the FDCPA, judgment entered in favor of AA.
Judge Krieger found McCullough distinguishable, explaining:
Mr. Vester appears to argue that, based on the “new law” presented in McCollough, he could prove a violation of the FDCPA based on AA’s claim for attorney’s fees in the underlying collections law-suit.FN1 Mr. Vester contends that McCollough stands for the proposition that “presentation of generic evidence that all credit cards contain attorney’s fees provisions and variable interest rates, is insufficient to create a genuine issue for a fact finder. It follows that issues based on generic card agreements, must, as a matter of new law, be decided in Plaintiff’s favor, either after a new trial or upon reconsideration of the judgment.” Pl.’s Mot., # 139, at 2. [FN1. The FDCPA prohibits the collection of any amount, including attorney’s fees, “unless such amount is expressly authorized by the agreement creating the debt or per-mitted by law.” 15 U.S.C. § 1692e(2)(B).] ¶ Mr. Vester misapprehends the basis of the ruling in McCollough. There, the defendant presented no evidence of any credit card agreement with the plain-tiff and attempted to argue, without evidence, that all such agreements were the same and that therefore, the plaintiff’s agreement must contain an attorney’s fees provision. In addition, the law of the forum state (Montana) prohibited recovery of attorney’s fees for such actions. ¶ Here, by contrast, AA produced evidence of the actual credit card agreement applying to the underlying accounts and did not rely on “generic evidence that all credit cards contain attorney’s fees provisions.” Those agreements, attached to the underlying state court complaint, contained a choice of law pro-vision of New Hampshire and Nevada; in addition, at the time of the underlying lawsuits, Mr. Vester was a resident of Colorado. The state law of these three states all permit recovery of reasonable attorney’s fees for a successful collector. Plaintiff did not establish that any other state’s law should apply to the dispute; indeed, the Court expressly determined that Mr. Vester failed to offer other agreements which would specify the applicable law. Therefore, even if McCollough represented new law in this regard, it would be inapplicable to the facts of this case and provides no basis to reexamine the decision here.