Clark v. Capital Credit & Collection Services, Inc.

concurring in part, dissenting in part.

While I agree generally with the Court’s desire “to reinforce that the broad remedial purpose of the [Fair Debt Collection Practices Act] is concerned primarily with the likely effect of various collection practices on the minds of unsophisticated debtors,” and while I specifically join parts I.B., I.C., and II. of the majority’s opinion, I must respectfully dissent from part I.A. I cannot agree that Mrs. Clark’s waiver of § 1692c(c)’s protections did not extend to Janine Brumley (“Brumley”) or Capital Credit & Collection Service (“Capital”); the trial court properly concluded that Brumley did not violate § 1692c(c) by returning Mrs. Clark’s call. For that reason, I must dissent to that extent.

I

The majority properly holds that a debt- or may waive the protections of 15 U.S.C. § 1692c(c), which requires a debt collector to cease communication with the debtor upon written request. Here, Mrs. Clark did so by initiating a communication with Jeffrey Hasson (“Hasson”) to obtain information. The majority extends her waiver only to Hasson, but in my view, the waiver should also apply to Brumley and Capital.

A

Congress enacted the Fair Debt…

In their action pursuant to the federal Fair Debt Collection Practices Act and the Oregon Unfair Debt Collection Practices Act, Linda and Jerry Clark make several assignments of error. Here, we address only their appeal of the following: (1) the district court’s order granting summary judgment in favor of Jeffrey Hasson and granting partial summary judgment to Capital Credit & Collection Services, Inc., and Janine Brumley with respect to the cease communication directive and debt verification; and (2) the district court’s failure to rule on a pending discovery motion before deciding the summary judgment motions.

We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm, in part, and reverse, in part.

BACKGROUND

For a number of years, Linda Clark (“Mrs.Clark”) was treated for mental health problems by Dr. J. Michael Sulli *1167 van at the Evans & Sullivan Clinic in Bea-verton, Oregon. When Dr. Sullivan retired, Dr. Kathryn Evans, his business partner, purchased his interest in the clinic and claimed an interest in all of the outstanding accounts. After approximately one year of direct and indirect discussions regarding “serious errors” in billing, Dr. Evans referred…

BACKGROUND

For a number of years, Linda Clark (“Mrs. Clark”) was treated for mental health problems by Dr. J. Michael Sullivan at the Evans & Sullivan Clinic in Beaverton, Oregon. When 1 In a separately filed memorandum disposition, we reject the Clarks’ other assignments of error and affirm the district court’s denial of attor- neys’ fees under the Oregon statute to Capital, Brumley, and Hasson fol- lowing entry of judgment in their favor. CLARK v. CAPITAL CREDIT 10143 Dr. Sullivan retired, Dr. Kathryn Evans, his business partner, purchased his interest in the clinic and claimed an interest in all of the outstanding accounts. After approximately one year of direct and indirect discussions regarding “serious errors” in billing, Dr. Evans referred Mrs. Clark’s outstanding account to Capital Credit & Collection Services, Inc. (“Capital”), for collection. Eventually, Dr. Evans assigned her claim against Mrs. Clark to the collection agency.

In connection with Mrs. Clark’s alleged debt, Janine Brum- ley (the Capital employee responsible for collection activities on the Clark account) followed Capital’s standard procedures. Relevant to the instant appeal, she first sent…