On July 3, 2008, Judge Conti ruled in Cruz v. MRC Receivables, Inc. — F.Supp.2d — 2008 WL 2627143 (N.D.Cal. 2008) on a debt collector’s summary judgment motion in an FDCPA claim alleging that inclusion of the Notice of potentially adverse credit reporting required by California Civil Code § 1785.26 and 15 U.S.C. 1681s-2(a)(7)(A)(i) constituted an unfair collection tactic because the adverse credit already had been reported. Judge Conti applied the “least sophisticated consumer” test, and held that
Cruz offered no admissible evidence to prove that either HSBC or Defendants had previously notified her that they might file negative credit reports on her account. Nor did she offer any evidence that HSBC or Defendants had actually filed such a negative credit report. Absent such evidence, there can be no doubt that the notice contained in the collection letters Defendants sent Cruz was required by law, so the Court must grant Defendants’ Motion on this issue.
Of greater interest, Judge Conti excluded the plaintiff’s evidence of her credit report from TransUnion on the grounds of hearsay:
Exhibit B to the Cruz Declaration, an excerpt from her TransUnion credit report dated February 8, 2008, is inadmissible hearsay. Like Exhibit A, Exhibit B is an out-of-court statement made by a non-party (TransUnion), which Cruz offers to prove that Defendants filed a negative credit report on her account. Cruz provides no foundation for admission of this document under any of the exceptions to hearsay defined in the Federal Rules of Evidence. See Capital Funding, VI, Inc. v. Chase Manhattan Bank,No. 01-6093, 2005 U.S. Dist. LEXIS 2212, at *5-6 (E.D.Pa. Feb. 11, 2005) (exclusion of TransUnion credit report appropriate where Plaintiff did not offer testimony of qualified witness to authenticate its contents pursuant to Federal Rules of Evidence 803(6)