Simmonds & Narita, LLP

We're a California Law Firm with Special Emphasis on
Defending Consumer Finance Litigation

Representative Matters

Federal court grants summary judgment for debt buyer and its attorneys in putative class action

Simmonds & Narita obtained a summary judgment on behalf of its debt buyer client and the client’s lawyers in a class action alleging that the defendants violated the Fair Debt Collection Practices Act by using declarations in lieu of personal testimony in state-court collection trials, pursuant to California Code of Civil Procedure § 98, where the declarant was physically located more than 150 miles from the place of trial.  Section 98 of the California Code of Civil Procedure permits a party, in certain cases, to submit direct testimony by declaration or affidavit if the party serves the declaration or affidavit at least thirty days before 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.”  Relying on the plain language and legislative history of section 98, and rejecting the decisions of the Appellate Divisions of two California Superior Courts, the Northern District of California held that section 98 of the California Code of Civil Procedure did not require that the declarant be physically located at the address identified in the declaration for service of process during the twenty days before trial.  Finding that the declaration at issue was valid, the Court held that it did not contain any misrepresentation and therefore did not violate the Fair Debt Collection Practices Act.  Accordingly, the Court granted summary judgment for Defendants and denied Plaintiff’s motion for class certification as moot.



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