The Ninth Circuit Court of Appeals last week vacated a lower court’s summary judgment ruling after a plaintiff sued a collection agency in a California federal court for allegedly violating the Fair Debt Collection Practices Act by filing a declaration in state court that violated state law.
A copy of the ruling in Meza v. Portfolio Recovery Associates and Hunt & Henriques can be accessed by clicking here.
The plaintiff alleged the defendants violated the FDCPA by making a false or misleading statement in an attempt to collect on a debt. The defendants had filed suit against the plaintiff in seeking to collect on the debt, but the signatory on a declaration did not live or work within 150 miles of the relevant county courthouse where the trial would have occurred.
A federal court judge granted summary judgment in favor of the defendants, ruling that they had not violated Section 98 of the California Code of Civil Procedure, which allows for the submission of prepared testimony, provided that:
A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.
After the plaintiff appealed the summary judgment to the Ninth Circuit, the Ninth Circuit submitted the following question to the California Supreme Court for its interpretation of the state law: Under Section 98(a) of the California Code of Civil Procedure, must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial?
The California Supreme Court ruled “Section 98(a) requires an affiant to provide an address within 150 miles of the place of trial at which lawful service can be made of a form of process that directs the affiant to attend trial.”
The defendants attempted to argue that even if Section 98 had been violated, it did not rise to a materially false or misleading statement under the FDCPA. But the Ninth Circuit handed the case back to the lower court rather than address the arguments for the first time on appeal.
Thus, the Ninth Circuit vacated the lower court’s summary judgment and remanded the case for further proceedings.
