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NEMESIO CASTRO, on behalf of himself and all others similarly situated, Plaintiff, v. COLLECTO, INC. dba COLLECTION COMPANY OF AMERICA, and U.S. ASSET MANAGEMENT INC., Defendants.
EP-08-CA-215-FM
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, EL PASO DIVISION
2009 U.S. Dist. LEXIS 99703
October 27, 2009, Decided
October 27, 2009, Filed
COUNSEL: [*1] For Nemesio Castro, on behalf of himself and all others similarly situated, Plaintiff: Cathleen M. Combs, LEAD ATTORNEY, Edelman Combs Latturner & Goodwin, Chicago, IL; James O. Latturner, LEAD ATTORNEY, Edelman, Combs, Latturner & Goodwin, LLC., Chicago, IL; Scott Alan Vogelmeier, LEAD ATTORNEY, Law Office of Scott A. Vogelmeier, El Paso, TX.
For Collecto, Inc., doing business as Collection Company of America, US Asset Management Inc., Defendants: Keith Wier, LEAD ATTORNEY, Bush & Ramirez, LLC, Houston, TX.
JUDGES: FRANK MONTALVO, UNITED STATES DISTRICT JUDGE.
OPINION BY: FRANK MONTALVO
OPINION
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE COMPLAINT OR, ALTERNATIVELY, FOR JUDGMENT ON THE PLEADINGS AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
On this date, the Court considered Collecto, Inc. dba Collection Company of America ("Collecto"), and U.S. Asset Management Inc.'s ("U.S. Asset") (collectively, "Defendants") "Defendants' Motion to Dismiss the Complaint or, Alternatively, for Judgment on the Pleadings" ("Motion to Dismiss") [Rec. No. 61], filed June 18, 2009; Defendants' "Memorandum in Support of Defendants' Motion to Dismiss the Complaint or, Alternatively, for Judgment [*2] on the Pleadings" ("Memorandum in Support of Motion to Dismiss") [Rec. No. 61-4], filed June 18, 2009; Nemesio Castro's ("Plaintiff") "Plaintiff's Response in Opposition to Defendants' Motion to Dismiss the Complaint or, Alternatively for Judgment on the Pleadings" ("Response Opposing Motion to Dismiss") [Rec. No. 65], filed June 29, 2009; Defendants' "Reply Memorandum in Support of Defendants' Motion to Dismiss the Complaint, or Alternatively for Judgment on the Pleadings" ("Reply in Support of Motion to Dismiss") [Rec. No. 73], filed July 10, 2009; "Plaintiff's Motion for Partial Summary Judgment as to Liability" ("Motion for Partial Summary Judgment") [Rec. No. 57], filed June 16, 2009; Plaintiff's "Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment as to Liability" [Rec. No. 57-2], filed June 16, 2009; "Defendants' Response in Opposition to Plaintiff's Motion for Partial Summary Judgment" ("Response Opposing Partial Summary Judgment") [Rec. No. 66], filed June 29, 2009; and "Plaintiff's Reply in Support of Partial Summary Judgment as to Liability" ("Reply in Support of Partial Summary Judgment") [Rec. No. 69], filed July 10, 2009. Based upon the parties' briefs, [*3] arguments, and the law, the Court will grant Defendants' Motion to Dismiss and deny Plaintiff's Motion for Partial Summary Judgment.
I. BACKGROUND
A. Procedural History
On June 18, 2008, Plaintiff filed a class action lawsuit against Defendants, alleging violations of the Federal Debt Collection Practices Act ("FDPCA"), 15 U.S.C. § 1692 et seq., and the Texas Finance Code § 392.304. In answer, Defendants denied any liability and asserted numerous defenses, including good faith. On March 4, 2009, the Court certified the class, defining it as
(a) all individuals with Texas addresses (b) who were sent a letter in the form represented by Exhibit A to Plaintiff's Complaint, (c) seeking to collect a cellular telephone debt (d) which became delinquent more than 2 years prior to the sending of the letter in the form represented by Exhibit A to Plaintiff's Complaint, (e) which letter was sent between June 16, 2007, and July 6, 2008.
On June 19, 2009, the Court approved the form of Notice to be sent to putative class members [Rec. No. 63]. The Court continued the trial setting and stayed ruling on any dispositive motions until after July 27, 2009, the date on which putative class members were required [*4] to give notice as to whether they wished to be excluded from the certified class. The Court now addresses Defendants' Motion to Dismiss and Plaintiff's Motion for Summary Judgment.