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December 3, 2004.

JOSEPH MAZZEI, on behalf of himself and all others similarly situated Plaintiff(s),

The opinion of the court was delivered by: JOHN SPRIZZO, Senior District Judge


Plaintiff Joseph Mazzei brings the above-captioned action on behalf of himself and all others similarly situated against defendants The Money Store and TMS Mortgage, Inc.*fn1 (collectively "The Money Store") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), the Truth In Lending Act ("TILA"), the Real Estate Settlement Procedures Act ("RESPA"), and various pendent state law claims in conjunction with defendants' alleged debt collection practices. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56(a). For the reasons that follow, defendants' motion for summary judgment is granted in part and denied in part. BACKGROUND

FDCPA Background

  Unless otherwise noted, the following facts are uncontested. In November 1994, plaintiff took out a mortgage loan from The Money Store on a property in Sacramento, California. See Second Amended Complaint ("Compl.") ¶ 13. Beginning in the winter of 1998 plaintiff was periodically delinquent on his loan, and defaulted in or about December 1999. See Compl. ¶ 20; Plaintiff's 56.1 Statement in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s St.") ¶ 2. On or about February 25, 2000, plaintiff received a standardized debt collection letter on the letterhead of law firm Moss, Codilis, Stawiarski, Morris, Schneider & Prior LLP ("Moss Codilis") complete with their Colorado office address, phone and fax numbers on the bottom.*fn2 See Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment, dated June 9, 2003 ("Pl.'s Declar."), Declaration of Mark S. Kaufman, dated June 9, 2003 ("Kaufman Declar.") ¶ 5; Pl.'s Declar., Exhibit ("Ex.") A; Compl. ¶ 21. Moss Codilis is a self proclaimed "debt collector." Defendants' 56.1 Statement in Support of Its Motion for Summary Judgment ("Defs.' St.") ¶ 10. The pertinent portions of the February 23, 2000 letter read as follows: Dear Joseph Mazzei:
This firm has been retained by the Servicer, (TMS Mortgage Inc.) and authorized by the Creditor of the above-referenced home loan (hereinafter referred to as "the Debt") to contact you regarding the status of your account. . . . You are hereby provided formal notice that you are in default . . . for failure to pay the required installments when due. This letter serves as further notice that TMS Mortgage Inc. intends to enforce the provisions of the Note and Security Instrument. You must pay the full amount of the default on this loan by the thirtieth (30th) day from the date of this letter. . . . This law firm is attempting to collect a debt for our client, and any information obtained will be used for that purpose. . . . All communication about this matter must be made through TMS Mortgage Inc. except those specified in this letter. TMS Mortgage Inc.'s phone number is (800) 795-5125. TMS Mortgage Inc. requires that all payments must be . . . mailed to TMS Mortgage Inc. at Post Office Box 96053, Charlotte, NC 28296-0053. . . .
See Pl.'s Declar., Ex. A. Plaintiff claims that, through this breach letter, "the Money Store Defendants sought to convey the false impression that independent debt collectors were attempting to collect on its behalf, when in reality it was attempting to collect its own debts." Compl. ¶ 26.
  The breach letter was sent pursuant to an agreement between Moss Codilis and defendants (the "Letter of Agreement") whereby Moss Codilis issued thirty day breach letters after receiving a spreadsheet from defendants detailing the various loans in default. See Pl.'s St. ¶ 4, Defs.' St. ¶ 14. Moss Codilis acted only in the pre-acceleration phase of the collection effort. See Pl.'s Declar., Kaufman Declar. ¶ 11; Defs.' St. ¶ 12. The specific relevant provisions of the Letter of Agreement are as follows:
1. TMS Mortgage Inc. desires to have Moss, et al facilitate the issuance of thirty (30) day breach letters by periodically taking delivery of an ACCESS spreadsheet. . . . Moss, et al will generate the thirty (30) day breach letters based on information provided within the ACCESS spreadsheet. . . . Moss, et al will perform the necessary duties to prepare for attorney signature and send via certified and first class US Mail the aforementioned letters within a twenty-four (24) hour period of time upon receipt of accurate and complete data from TMS Mortgage Inc. essential to the breach letter program. TMS Mortgage Inc. reserves the right to initially and from time to time review and approve sample forms of the breach letters as forwarded to the borrowers. Review and approval of the breach letters by TMS Mortgage Inc. shall be based on the format of the breach letter only.
2. Moss, et al will charge fifty dollars ($50.00) for each breach letter generated. . . .
4. TMS Mortgage Inc. agrees to provide Moss, et al with access to books, records, databases, investor guidelines, and files necessary for the completion of the contract duties. . . .
10. Notifications will be addressed as follows: In the case of Moss, et al: Moss, et al . . . Englewood, CO 80112. . . . In the case of TMS Mortgage Inc: The Money Store . . . Sacramento, CA 95821. . . .
Pl.'s Declar., Ex. C, Letter of Agreement. The Moss Codilis employee who oversaw the Breach Letter program, Christina Nash,*fn3 estimated that she received around a hundred phone calls from borrowers during the Breach Letter program and probably 400 pieces of correspondence at her Moss Codilis location during her time supervising. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, dated June 9, 2003 ("Pl.'s Mem."), at 15; Pl.'s Declar., Ex. G, Deposition of Christina Nash ("Nash Dep.") at 186-87. Nash also testified to
`instances' during 3½ years of the Breach Letter program when Moss Codilis decided not to send out a breach letter despite Money Store's request to send the letter. (See Kaufman Ex. G., at 87-88.) However, Nash also admitted that she had `absolutely no recollection as to how many times' this occurred (Kaufman Ex. G, at 89, 241), and neither Moss Codilis nor Money Store produced any documents confirming a single such instance.
Pl.'s St. ¶ 20; see also Defs.' St. ¶ 15.

  In October 2000, approximately eight months after receiving the aforementioned breach letter, plaintiff sold his house and used the proceeds to pay off in full the then-posted balance on his loan. Compl. ¶ 30; Defs.' St. ¶ 24; see Pl.'s Declar., Ex. U. Defendants contend that plaintiff's defaults caused him to incur additional charges that had not yet been posted to his account at the time of this pay-off, "resulting in a continuing debit balance" even after plaintiff's pay-off. Defs.' St. ¶ 25.

  TILA Claim

  In order to receive a loan from The Money Store plaintiff executed certain loan documents. Pl.'s St. ¶ 62. These documents permitted a ten dollar fee to be charged against the borrower for any payment that was subsequently dishonored by the borrower's bank. Pl.'s St. ¶ 63. When plaintiff bounced a check, however, The Money Store imposed a fifteen dollar fee instead of the ten dollar amount permitted. See Pl.'s St. ¶ 65. In a letter to plaintiff dated February 27, 2001, The Money Store admitted that the fee should have been ten dollars and promised to refund the overpayment of five dollars. Pl.'s St. ¶ 71; Defs.' St. 29. Plaintiff claims the five dollars was never refunded. Pl.'s St. ¶ 72. Defendants disagree, claiming that the overpayment was applied to plaintiff's unpaid corporate advances. Defs.' St. ¶ 57; Pl.'s St. ¶ 73.

  Plaintiff also claims that there was not a legitimate debit balance in his account because The Money Store debited his account for "Attorney Outsourcing Fees" and "Unpaid Other Fees" which it had no right to collect. Pl.'s Mem. at 21. Specifically plaintiff claims defendants improperly charged him $140.00 in attorney's fees for the four breach letters, $133.55 for five months of late charges, $50.00 for the preparation of the payoff quote, $125.00 in attorneys fees for a bankruptcy proof of claim, $190.00 to post the notice of sale on Mazzei's door, $100.00 for a broker price opinion, $17.00 for property inspections and $13.00 for a substitution of trustee. Pl.'s St. ¶¶ 75, 76.

  Defendants, on the other hand, contend that plaintiff's account never had a credit balance in excess of $1 as required by TILA. Defs.' St. ¶ 57. Even after plaintiff sold his house in October 2000 and used the proceeds to pay off the then-posted balance of his loan, defendants contend that plaintiff had incurred additional charges that had not yet been posted to his account, and that he therefore had "a continuing debit balance in his account." Defs.' St. ¶¶ 24-25. Defendants also contend that in a February 27, 2001 letter to plaintiff, The Money Store explained that, even after plaintiff had paid off his loan, his account had a deficit debit balance of $39.26, which was written off. Defs.' St. ¶ 30.


  Three months after plaintiff paid off his loan, he wrote a letter to defendants, dated January 16, 2001, in which he requested certain information. The pertinent portions of plaintiff's letter read as follows:
Dear Sirs: In connection with the above-referenced loan, under which I was the borrower, I request the following information from The Money Store:
1. A copy of any documents distributed to or signed by me relating to the Automatic Payment Plan. . . .
2. An explaination [sic] for the $15.00 NSF charge on the October 2, 2000 payoff statement. (My original note limits such fees to $10.00);
3. An explaination [sic] of your right to collect (and itemized breakdown of) "the expenses of collection and attorney's fees and cost" referred to in the February 23, 2000 letter providing me with formal notice of default.
4. An explaination [sic] of your right to collect (and an itemized breakdown of? the "Attorney Outsourcing Fees" and "Unpaid Other Fees" referred to in the October 2, 2000 Payoff Letter.
Please send such information to me. . . .
Defendants' Notice of Motion for Summary Judgment ("Defs.' Notice of Motion"), Ex. P. The Money Store sent a letter in reply dated February 2, 2001 acknowledging plaintiff's "recent inquiry." Defs.' Notice of Motion, Ex. Q.
  In a follow-up letter dated February 27, 2001, The Money Store provided plaintiff with another more detailed response, which largely addressed plaintiff's earlier requests:
Dear Mr. Mazzei:
Thank you for your recent inquiry. . . . Please refer to the enclosed copy of your correspondence regarding the information provided below:
1. Per your request, enclosed is a copy of your signed agreement with The Money Store relating to the Automatic Payment Plan (APP).
2. The returned-draft fee to which your correspondence refers originated with your APP payment dated September 6, 1999, in the amount of $535.16. Please note, having reviewed your signed Note, we concur that the returned-draft fee should have been assessed at $10.00. Consequently your overpayment of $5.00 will be refunded to you. Please allow 7-10 business days to receive it.
3. Having completed the research associated with your inquiry, we have confirmed that the Corporate Advances on your loan, in the amount of $2,458.07, are valid. The following is a summary of the items paid on your behalf due to the status of your loan.
• 4 Breach/Notice of Default Letters (3/98,5/98, 11/98,2/00) $140.00
• 3 Broker Price Opinions (12/98,2/00,6/00) $300.00
• 5 Property Inspections (10/99,1/00,3/00,5/00,6/00) $42.50
• Delinquent Property Taxes 1999-2000 (3/00) $416.30
• Bankruptcy Attorney/Court Costs (7/00,10/00,11/00) $260.00
• Foreclosure Attorney/Court Costs (12/00) $1,299.27
To date, a total of $2,418.81 has been paid toward Corporate Advances. The remaining balance of $39.26 has been written-off as uncollectible. Regarding the right of The Money Store to assess, and collect Corporate Advances, we refer you to section 4, paragraph D, of your signed Note entitled Payment of Note Holder's Costs and Expenses.
4. The "other fees" listed on your Payoff Statement originated with the following:
• Demand Fee (10/00) $50.00
• Loan Cancellation Fee (10/00) $55.00
Please note, Section 2943 of the Civil Code of California provides for the assessment of demand fees associated with the cost of furnishing a statement of obligation or Payoff Statement. Additionally, it provides for the assessment of ...

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