Preview
Fred W. Schwinn (SBN 225575)
Raeon R. Roulston (SBN 255622)
Matthew C. Salmonsen (SBN 302854)
CONSUMER LAW CENTER, INC.
38 West Santa Clara Street
San Jose, California 95113-1806
Telephone Number: (408) 294-6100
Facsimile Number: (408) 294-6190
Email Address: fred.schwinn@sjconsumerlaw.com
Attorneys for Cross-Complainant
MARIA ANTONIA CANUL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
VELOCITY INVESTMENTS, LLC Case No. 16CV300096
(Unlimited Civil Case)
Plaintiff,
Assigned for All Purposes to the
Honorable Theodore C. Zayner (Dept. 19)
MARIA CANUL
Defendant. SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS IN
SUPPORT OF CROSS-COMPLAINANT’S
MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, MOTION FOR
SUMMARY ADJUDICATION
MARIA ANTONIA CANULon behalf of
herself and all others similarly situated [C.C.P § 437c and Cal. Rules of Court 3.1350]
Cross-Complainant, Hearing Date: October 25
Hearing Time: 1:30 p.m.
Hearing Dept.:
VELOCITY INVESTMENTS, LLC, a New Hearing Judge: Theodore C. Zayner
Jersey limited liability company; VELOCITY Hearing Location: 161 North First Street
PORTFOLIO GROUP, INC., a Delaware San Jose, California
corporation; and ROES 2 through 10,
inclusive, Complaint Filed: September 20, 2016
Cross-Complaint Filed: February 19,
Cross-Defendants. Trial Date: Not Set
Cross-Complainant and Class Representative, MARIA ANTONIA CANUL (“CANU ”)
submits the following undisputed material facts with reference to supporting evidence, pursuant to
Code of Civil Procedure section 437c(b) and Cal. Rules of Court, Rule 3.1350(d). By reason of these
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
facts, there is no triable issue of fact as to any material issue regarding the following claims and
defenses:
ISSUE 1: CANUL and the certified Class are entitled to summary judgment as to the First Cause of
Action contained in CANUL’s First Amended Class Action Cross-Complaint for Statutory Damages
for Cross-Defendants’ violations of the California Fair Debt Buying Practices Act, California Civil
Code sections 1788.50-1788.64.
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE:
1. The June 6, 2012 Promissory Notes are the
signed contracts that contain the final agreed upon
loan terms, which vary from the disclosures made
on the May 29, 2012 Truth in Lending Disclosure
Statement (e.g., the stated interest rate is 9.76%
APR on the Promissory Notes and an estimated
12.58% APR on the TILA disclosure).
Exhibit “A” at p. 6 (“Exhibit A” attached to
Complaint) attached to Request for Judicial
Notice in Support of Cross-Complainant’s Motion
for Summary Judgment, or in the Alternative,
Motion for Summary Adjudication RJN”)
Exhibit “K” Exhibit “N” Exhibit “L” and
Exhibit “M” attached to Declaration of Fred W.
Schwinn in Support of Cross-Complainant’s
Motion for Summary Judgment (“Schwinn Decl.”)
See also Schwinn Decl. ¶ 5.
2. The debt CANUL incurred from WebBank
through the website www.Lendingclub. com was a
consumer debt, used by CANUL for personal,
family, or household purposes.
Exhibit “O” at 5 4; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
3. A copy of the Truth in Lending Disclosure
Statement provided to CANUL on May 29, 2012
was attached as Exhibit “A” to Cross-Defendants’
Complaint. None of the 144 Promissory Notes for
the debt at issue in this case were attached Cross-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
Defendants’ Complaint
Exhibit “A” at 6 (“Exhibit A” to Complaint)
attached to RJN;
Exhibit “K”, e.g. Exhibit “L” and Exhibit “M”
attached to Schwinn Decl. See also Schwinn Decl.
¶ 5.
4. Cross-Complainant, CANUL, is a “debtor” as
that term is defined by California Civil Code §
1788.2(h), as incorporated by California Civil
Code § 1788.50(c).
Exhibit “C” at ¶ 50 attached to RJN;
Exhibit “O” at 5 ¶ 1; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
5. Cross-Defendant, VELOCITY, is a “debt
collector” as that term is defined by California
Civil Code § 1788.2(c), as incorporated by
California Civil Code § 1788.50(c).
Exhibit “C” at ¶ 51 attached to RJN;
Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
6. Cross-Defendant, VELOCITY, is a “debt buyer”
as that term is defined by California Civil Code §
1788.50(a)(1).
Exhibit “C” at ¶ 52 attached to RJN;
Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
7. Cross-Defendant, VPGI, is a “debt collector” as
that term is defined by California Civil Code §
1788.2(c), as incorporated by California Civil
Code § 1788.50(c).
Exhibit “C” at ¶ 53; Exhibit attached to
RJN;
Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
8. Cross-Defendant, VPGI, is a “debt buyer” as
that term is defined by California Civil Code §
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
1788.50(a)(1).
Exhibit “C” at ¶ 54; Exhibit attached to
RJN;
Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
9. The financial obligation alleged to be owed by
CANUL to Cross-Defendant, VELOCITY, is a
“consumer debt” as that term is defined by
California Civil Code § 1788.2(f), as incorporated
by California Civil Code § 1788.50(c).
Exhibit “C” at ¶ 55 attached to RJN;
Exhibit “O” at 5 ¶ 4; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
10. The financial obligation alleged to be owed by
CANUL to Cross-Defendant, VELOCITY, is a
“charged-off consumer debt” as that term is
defined by California Civil Code § 1788.50(a)(2).
Exhibit “C” at ¶ 56 attached to RJN;
Exhibit “O” at 5 ¶ 5; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
11. Cross-Defendant, VPGI, is the alter ego of
Cross-Defendant, VELOCITY, for all purposes in
this action.
Exhibit attached to RJN.
12. On a date after August 13, 2014, LendingClub
Corporation removed the financial obligation owed
by CANUL from its books as an asset and treated
the alleged debt as a loss or expense.
Exhibit “O” at 5 6; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
13. Cross-Defendants purchased or repurchased
the financial obligation allegedly owed by CANUL
on a date after January 1, 2014.
Exhibit “O” at 5 ¶¶ 7 and 8; Exhibit “P”
Exhibit “Q” attached to Schwinn Decl.
14. Cross-Defendants’ collection of the alleged
debt in this action is subject to the California Fair
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
Debt Buying Practices Act, California Civil Code
§§ 1788.50-1788.64, pursuant to Civil Code
Exhibit “O” at 5 9; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
. Cross-Defendants attached one document
entitled “Truth in Lending Disclosure Statement”
dated May 29, 2012, as “Exhibit A” to the
collection Complaint filed against CANUL on
September 20, 2016, and Cross-Defendants
claimed “Exhibit A” “is a copy of the document
described in California Civil Code § 1788.52(b).
Exhibit “A” at ¶ 5 and “Exhibit A” to
Complaint attached to RJN
Exhibit “O” at 6 10; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
16. The Truth in Lending Disclosure Statement
document was provided to CANUL on May 29,
2012, eight days prior to the date the 144 contracts
evidencing CANUL’s agreement to the debt
“Non-Negotiable Promissory Note”) were signed,
which was June 6, 2012.
Exhibit “A” at “Exhibit A” to Complaint
attached to RJN;
Exhibit “K” Exhibit “N” and e.g. Exhibit
and Exhibit “M” attached to Schwinn Decl.
17. Cross-Defendants attached “Truth in Lending
Disclosure Statement” documents to actions they
brought against CANUL and the each member of
the Class, falsely claiming this document satisfies
Civil Code 1788.52(b), instead of properly
attaching the actual contract(s), in violation of
Civil Code
Exhibit “A” at ¶ 5 and “Exhibit A” to
Complaint attached to RJN;
Exhibit “K” attached to Schwinn Decl.;
Exhibit “F” at 6:13-19 attached to RJN;
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
Exhibit “O” at 6 ¶ 10; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
ISSUE 2: CANUL and the certified Class are entitled to summary adjudication, pursuant to Code of
Civil Procedure 437c(f)(1), as to Cross-Defendants’ First Affirmative Defense for Failure to State a
Claim and Cross-Defendants’ Second Affirmative Defense claiming bona fide error because each of
these affirmative defenses lack merit.
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE:
18. The June 6, 2012 Promissory Notes are the
signed contracts that contain the final agreed upon
loan terms, which vary from the disclosures made
on the May 29, 2012 Truth in Lending Disclosure
Statement (e.g., the stated interest rate is 9.76%
APR on the Promissory Notes and an estimated
12.58% APR on the TILA disclosure).
Exhibit “A” at p. 6 (“Exhibit A” attached to
Complaint) attached to Request for Judicial
Notice in Support of Cross-Complainant’s Motion
for Summary Judgment, or in the Alternative,
Motion for Summary Adjudication RJN”)
Exhibit “K” Exhibit “N” Exhibit “L” and
Exhibit “M” attached to Declaration of Fred W.
Schwinn in Support of Cross-Complainant’s
Motion for Summary Judgment (“Schwinn Decl.”)
See also Schwinn Decl. ¶ 5.
19. The debt CANUL incurred from WebBank
through the website www.Lendingclub. com was a
consumer debt, used by CANUL for personal,
family, or household purposes.
Exhibit “O” at 5 4; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
20. A copy of the Truth in Lending Disclosure
Statement provided to CANUL on May 29, 2012
was attached as Exhibit “A” to Cross-Defendants’
Complaint. None of the 144 Promissory Notes for
the debt at issue in this case were attached Cross-
Defendants’ Complaint
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
Exhibit “A” at 6 (“Exhibit A” to Complaint)
attached to RJN;
Exhibit “K”, e.g. Exhibit “L” and Exhibit “M”
attached to Schwinn Decl. See also Schwinn Decl.
¶ 5.
21. Cross-Complainant, CANUL, is a “debtor” as
that term is defined by California Civil Code §
1788.2(h), as incorporated by California Civil
Code § 1788.50(c).
Exhibit “C” at ¶ 50 attached to RJN;
Exhibit “O” at 5 ¶ 1; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
22. Cross-Defendant, VELOCITY, is a “debt
collector” as that term is defined by California
Civil Code § 1788.2(c), as incorporated by
California Civil Code § 1788.50(c).
Exhibit “C” at ¶ 51 attached to RJN;
Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
23. Cross-Defendant, VELOCITY, is a “debt
buyer” as that term is defined by California Civil
Code § 1788.50(a)(1).
Exhibit “C” at ¶ 52 attached to RJN;
Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
24. Cross-Defendant, VPGI, is a “debt collector”
as that term is defined by California Civil Code §
1788.2(c), as incorporated by California Civil
Code § 1788.50(c).
Exhibit “C” at ¶ 53; Exhibit attached to
RJN;
Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
25. Cross-Defendant, VPGI, is a “debt buyer” as
that term is defined by California Civil Code §
1788.50(a)(1).
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
Exhibit “C” at ¶ 54; Exhibit attached to
RJN;
Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
26. The financial obligation alleged to be owed by
CANUL to Cross-Defendant, VELOCITY, is a
“consumer debt” as that term is defined by
California Civil Code § 1788.2(f), as incorporated
by California Civil Code § 1788.50(c).
Exhibit “C” at ¶ 55 attached to RJN;
Exhibit “O” at 5 ¶ 4; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
27. The financial obligation alleged to be owed by
CANUL to Cross-Defendant, VELOCITY, is a
“charged-off consumer debt” as that term is
defined by California Civil Code § 1788.50(a)(2).
Exhibit “C” at ¶ 56 attached to RJN;
Exhibit “O” at 5 ¶ 5; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
28. Cross-Defendant, VPGI, is the alter ego of
Cross-Defendant, VELOCITY, for all purposes in
this action.
Exhibit attached to RJN.
29. On a date after August 13, 2014, LendingClub
Corporation removed the financial obligation owed
by CANUL from its books as an asset and treated
the alleged debt as a loss or expense.
Exhibit “O” at 5 6; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
30. Cross-Defendants purchased or repurchased
the financial obligation allegedly owed by CANUL
on a date after January 1, 2014.
Exhibit “O” at 5 ¶¶ 7 and 8; Exhibit “P”
Exhibit “Q” attached to Schwinn Decl.
31. Cross-Defendants’ collection of the alleged
debt in this action is subject to the California Fair
Debt Buying Practices Act, California Civil Code
§§ 1788.50-1788.64, pursuant to Civil Code
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
Exhibit “O” at 5 9; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
. Cross-Defendants attached one document
entitled “Truth in Lending Disclosure Statement”
dated May 29, 2012, as “Exhibit A” to the
collection Complaint filed against CANUL on
September 20, 2016, and Cross-Defendants
claimed “Exhibit A” “is a copy of the document
described in California Civil Code § 1788.52(b).
Exhibit “A” at ¶ 5 and “Exhibit A” to
Complaint attached to RJN
Exhibit “O” at 6 10; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
33. The Truth in Lending Disclosure Statement
document was provided to CANUL on May 29,
2012, eight days prior to the date the 144 contracts
evidencing CANUL’s agreement to the debt
“Non-Negotiable Promissory Note”) were signed,
which was June 6, 2012.
Exhibit “A” at “Exhibit A” to Complaint
attached to RJN;
Exhibit “K” Exhibit “N” and e.g. Exhibit
and Exhibit “M” attached to Schwinn Decl.
34. Cross-Defendants attached “Truth in Lending
Disclosure Statement” documents to actions they
brought against CANUL and the each member of
the Class, falsely claiming this document satisfies
Civil Code 1788.52(b), instead of properly
attaching the actual contract(s), in violation of
Civil Code
Exhibit “A” at ¶ 5 and “Exhibit A” to
Complaint attached to RJN;
Exhibit “K” attached to Schwinn Decl.;
Exhibit “F” at 6:13-19 attached to RJN;
Exhibit “O” at 6 ¶ 10; Exhibit “P”; Exhibit “Q”
attached to Schwinn Decl.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
35. None of VELOCITY’s initial or further
responses to CANUL’s special interrogatories,
served on February 19, 2019 revealed a procedure
to avoid the “error” alleged in this case:
VELOCITY’s failure to attach a copy of the actual
contract to its collection Complaint.
Exhibit “R”; Exhibit “S” attached to Schwinn
Decl.
36. VELOCITY’S document production
VELOCITY-CANUL000072-107 does not
evidence that VELOCITY maintains procedures to
avoid VELOCITY failing to attach a copy of the
actual contract to a complaint in actions where
VELOCITY is attempting to collect a consumer
debt for which there is a signed contract.
Exhibit “V” attached to Schwinn Decl.
37. VELOCITY’S document production
CONFIDENTIAL VELOCITY- CANUL000388-
421 does not evidence that VELOCITY maintains
procedures to avoid VELOCITY failing to attach a
copy of the actual contract to the complaint in
actions where VELOCITY is attempting to collect
a consumer debt for which there is a signed
contract.
Exhibit “W” attached to Schwinn Decl.
38. VELOCITY’S document production
CONFIDENTIAL VELOCITY- CANUL000423-
462 does not evidence that VELOCITY maintains
procedures to avoid VELOCITY failing to attach a
copy of the actual contract to the complaint in
actions where VELOCITY is attempting to collect
a consumer debt for which there is a signed
contract.
Exhibit “X” attached to Schwinn Decl.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
CONSUMER LAW CENTER, INC.
Dated: July 21, 2023 By:
✓ Fred W. Schwinn (SBN 225575)
Raeon R. Roulston (SBN 255622)
Matthew C. Salmonsen (SBN 302854)
CONSUMER LAW CENTER, INC.
38 West Santa Clara Street
San Jose, California 95113-1806
Telephone Number: (408) 294-6100
Facsimile Number: (408) 294-6190
Email Address: fred.schwinn@sjconsumerlaw.com
Attorneys for Defendant/Cross-Complainant
MARIA ANTONIA CANUL
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096
Preview
Fred W. Schwinn (SBN 225575) Raeon R. Roulston (SBN 255622) Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 38 West Santa Clara Street San Jose, California 95113-1806 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Cross-Complainant MARIA ANTONIA CANUL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA VELOCITY INVESTMENTS, LLC Case No. 16CV300096 (Unlimited Civil Case) Plaintiff, Assigned for All Purposes to the Honorable Theodore C. Zayner (Dept. 19) MARIA CANUL Defendant. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF CROSS-COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION MARIA ANTONIA CANULon behalf of herself and all others similarly situated [C.C.P § 437c and Cal. Rules of Court 3.1350] Cross-Complainant, Hearing Date: October 25 Hearing Time: 1:30 p.m. Hearing Dept.: VELOCITY INVESTMENTS, LLC, a New Hearing Judge: Theodore C. Zayner Jersey limited liability company; VELOCITY Hearing Location: 161 North First Street PORTFOLIO GROUP, INC., a Delaware San Jose, California corporation; and ROES 2 through 10, inclusive, Complaint Filed: September 20, 2016 Cross-Complaint Filed: February 19, Cross-Defendants. Trial Date: Not Set Cross-Complainant and Class Representative, MARIA ANTONIA CANUL (“CANU ”) submits the following undisputed material facts with reference to supporting evidence, pursuant to Code of Civil Procedure section 437c(b) and Cal. Rules of Court, Rule 3.1350(d). By reason of these SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 facts, there is no triable issue of fact as to any material issue regarding the following claims and defenses: ISSUE 1: CANUL and the certified Class are entitled to summary judgment as to the First Cause of Action contained in CANUL’s First Amended Class Action Cross-Complaint for Statutory Damages for Cross-Defendants’ violations of the California Fair Debt Buying Practices Act, California Civil Code sections 1788.50-1788.64. MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE EVIDENCE: 1. The June 6, 2012 Promissory Notes are the signed contracts that contain the final agreed upon loan terms, which vary from the disclosures made on the May 29, 2012 Truth in Lending Disclosure Statement (e.g., the stated interest rate is 9.76% APR on the Promissory Notes and an estimated 12.58% APR on the TILA disclosure). Exhibit “A” at p. 6 (“Exhibit A” attached to Complaint) attached to Request for Judicial Notice in Support of Cross-Complainant’s Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication RJN”) Exhibit “K” Exhibit “N” Exhibit “L” and Exhibit “M” attached to Declaration of Fred W. Schwinn in Support of Cross-Complainant’s Motion for Summary Judgment (“Schwinn Decl.”) See also Schwinn Decl. ¶ 5. 2. The debt CANUL incurred from WebBank through the website www.Lendingclub. com was a consumer debt, used by CANUL for personal, family, or household purposes. Exhibit “O” at 5 4; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 3. A copy of the Truth in Lending Disclosure Statement provided to CANUL on May 29, 2012 was attached as Exhibit “A” to Cross-Defendants’ Complaint. None of the 144 Promissory Notes for the debt at issue in this case were attached Cross- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 Defendants’ Complaint Exhibit “A” at 6 (“Exhibit A” to Complaint) attached to RJN; Exhibit “K”, e.g. Exhibit “L” and Exhibit “M” attached to Schwinn Decl. See also Schwinn Decl. ¶ 5. 4. Cross-Complainant, CANUL, is a “debtor” as that term is defined by California Civil Code § 1788.2(h), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 50 attached to RJN; Exhibit “O” at 5 ¶ 1; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 5. Cross-Defendant, VELOCITY, is a “debt collector” as that term is defined by California Civil Code § 1788.2(c), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 51 attached to RJN; Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 6. Cross-Defendant, VELOCITY, is a “debt buyer” as that term is defined by California Civil Code § 1788.50(a)(1). Exhibit “C” at ¶ 52 attached to RJN; Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 7. Cross-Defendant, VPGI, is a “debt collector” as that term is defined by California Civil Code § 1788.2(c), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 53; Exhibit attached to RJN; Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 8. Cross-Defendant, VPGI, is a “debt buyer” as that term is defined by California Civil Code § SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 1788.50(a)(1). Exhibit “C” at ¶ 54; Exhibit attached to RJN; Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 9. The financial obligation alleged to be owed by CANUL to Cross-Defendant, VELOCITY, is a “consumer debt” as that term is defined by California Civil Code § 1788.2(f), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 55 attached to RJN; Exhibit “O” at 5 ¶ 4; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 10. The financial obligation alleged to be owed by CANUL to Cross-Defendant, VELOCITY, is a “charged-off consumer debt” as that term is defined by California Civil Code § 1788.50(a)(2). Exhibit “C” at ¶ 56 attached to RJN; Exhibit “O” at 5 ¶ 5; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 11. Cross-Defendant, VPGI, is the alter ego of Cross-Defendant, VELOCITY, for all purposes in this action. Exhibit attached to RJN. 12. On a date after August 13, 2014, LendingClub Corporation removed the financial obligation owed by CANUL from its books as an asset and treated the alleged debt as a loss or expense. Exhibit “O” at 5 6; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 13. Cross-Defendants purchased or repurchased the financial obligation allegedly owed by CANUL on a date after January 1, 2014. Exhibit “O” at 5 ¶¶ 7 and 8; Exhibit “P” Exhibit “Q” attached to Schwinn Decl. 14. Cross-Defendants’ collection of the alleged debt in this action is subject to the California Fair SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 Debt Buying Practices Act, California Civil Code §§ 1788.50-1788.64, pursuant to Civil Code Exhibit “O” at 5 9; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. . Cross-Defendants attached one document entitled “Truth in Lending Disclosure Statement” dated May 29, 2012, as “Exhibit A” to the collection Complaint filed against CANUL on September 20, 2016, and Cross-Defendants claimed “Exhibit A” “is a copy of the document described in California Civil Code § 1788.52(b). Exhibit “A” at ¶ 5 and “Exhibit A” to Complaint attached to RJN Exhibit “O” at 6 10; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 16. The Truth in Lending Disclosure Statement document was provided to CANUL on May 29, 2012, eight days prior to the date the 144 contracts evidencing CANUL’s agreement to the debt “Non-Negotiable Promissory Note”) were signed, which was June 6, 2012. Exhibit “A” at “Exhibit A” to Complaint attached to RJN; Exhibit “K” Exhibit “N” and e.g. Exhibit and Exhibit “M” attached to Schwinn Decl. 17. Cross-Defendants attached “Truth in Lending Disclosure Statement” documents to actions they brought against CANUL and the each member of the Class, falsely claiming this document satisfies Civil Code 1788.52(b), instead of properly attaching the actual contract(s), in violation of Civil Code Exhibit “A” at ¶ 5 and “Exhibit A” to Complaint attached to RJN; Exhibit “K” attached to Schwinn Decl.; Exhibit “F” at 6:13-19 attached to RJN; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 Exhibit “O” at 6 ¶ 10; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. ISSUE 2: CANUL and the certified Class are entitled to summary adjudication, pursuant to Code of Civil Procedure 437c(f)(1), as to Cross-Defendants’ First Affirmative Defense for Failure to State a Claim and Cross-Defendants’ Second Affirmative Defense claiming bona fide error because each of these affirmative defenses lack merit. MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE EVIDENCE: 18. The June 6, 2012 Promissory Notes are the signed contracts that contain the final agreed upon loan terms, which vary from the disclosures made on the May 29, 2012 Truth in Lending Disclosure Statement (e.g., the stated interest rate is 9.76% APR on the Promissory Notes and an estimated 12.58% APR on the TILA disclosure). Exhibit “A” at p. 6 (“Exhibit A” attached to Complaint) attached to Request for Judicial Notice in Support of Cross-Complainant’s Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication RJN”) Exhibit “K” Exhibit “N” Exhibit “L” and Exhibit “M” attached to Declaration of Fred W. Schwinn in Support of Cross-Complainant’s Motion for Summary Judgment (“Schwinn Decl.”) See also Schwinn Decl. ¶ 5. 19. The debt CANUL incurred from WebBank through the website www.Lendingclub. com was a consumer debt, used by CANUL for personal, family, or household purposes. Exhibit “O” at 5 4; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 20. A copy of the Truth in Lending Disclosure Statement provided to CANUL on May 29, 2012 was attached as Exhibit “A” to Cross-Defendants’ Complaint. None of the 144 Promissory Notes for the debt at issue in this case were attached Cross- Defendants’ Complaint SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 Exhibit “A” at 6 (“Exhibit A” to Complaint) attached to RJN; Exhibit “K”, e.g. Exhibit “L” and Exhibit “M” attached to Schwinn Decl. See also Schwinn Decl. ¶ 5. 21. Cross-Complainant, CANUL, is a “debtor” as that term is defined by California Civil Code § 1788.2(h), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 50 attached to RJN; Exhibit “O” at 5 ¶ 1; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 22. Cross-Defendant, VELOCITY, is a “debt collector” as that term is defined by California Civil Code § 1788.2(c), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 51 attached to RJN; Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 23. Cross-Defendant, VELOCITY, is a “debt buyer” as that term is defined by California Civil Code § 1788.50(a)(1). Exhibit “C” at ¶ 52 attached to RJN; Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 24. Cross-Defendant, VPGI, is a “debt collector” as that term is defined by California Civil Code § 1788.2(c), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 53; Exhibit attached to RJN; Exhibit “O” at 5 ¶ 2; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 25. Cross-Defendant, VPGI, is a “debt buyer” as that term is defined by California Civil Code § 1788.50(a)(1). SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 Exhibit “C” at ¶ 54; Exhibit attached to RJN; Exhibit “O” at 5 ¶ 3; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 26. The financial obligation alleged to be owed by CANUL to Cross-Defendant, VELOCITY, is a “consumer debt” as that term is defined by California Civil Code § 1788.2(f), as incorporated by California Civil Code § 1788.50(c). Exhibit “C” at ¶ 55 attached to RJN; Exhibit “O” at 5 ¶ 4; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 27. The financial obligation alleged to be owed by CANUL to Cross-Defendant, VELOCITY, is a “charged-off consumer debt” as that term is defined by California Civil Code § 1788.50(a)(2). Exhibit “C” at ¶ 56 attached to RJN; Exhibit “O” at 5 ¶ 5; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 28. Cross-Defendant, VPGI, is the alter ego of Cross-Defendant, VELOCITY, for all purposes in this action. Exhibit attached to RJN. 29. On a date after August 13, 2014, LendingClub Corporation removed the financial obligation owed by CANUL from its books as an asset and treated the alleged debt as a loss or expense. Exhibit “O” at 5 6; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 30. Cross-Defendants purchased or repurchased the financial obligation allegedly owed by CANUL on a date after January 1, 2014. Exhibit “O” at 5 ¶¶ 7 and 8; Exhibit “P” Exhibit “Q” attached to Schwinn Decl. 31. Cross-Defendants’ collection of the alleged debt in this action is subject to the California Fair Debt Buying Practices Act, California Civil Code §§ 1788.50-1788.64, pursuant to Civil Code SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 Exhibit “O” at 5 9; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. . Cross-Defendants attached one document entitled “Truth in Lending Disclosure Statement” dated May 29, 2012, as “Exhibit A” to the collection Complaint filed against CANUL on September 20, 2016, and Cross-Defendants claimed “Exhibit A” “is a copy of the document described in California Civil Code § 1788.52(b). Exhibit “A” at ¶ 5 and “Exhibit A” to Complaint attached to RJN Exhibit “O” at 6 10; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. 33. The Truth in Lending Disclosure Statement document was provided to CANUL on May 29, 2012, eight days prior to the date the 144 contracts evidencing CANUL’s agreement to the debt “Non-Negotiable Promissory Note”) were signed, which was June 6, 2012. Exhibit “A” at “Exhibit A” to Complaint attached to RJN; Exhibit “K” Exhibit “N” and e.g. Exhibit and Exhibit “M” attached to Schwinn Decl. 34. Cross-Defendants attached “Truth in Lending Disclosure Statement” documents to actions they brought against CANUL and the each member of the Class, falsely claiming this document satisfies Civil Code 1788.52(b), instead of properly attaching the actual contract(s), in violation of Civil Code Exhibit “A” at ¶ 5 and “Exhibit A” to Complaint attached to RJN; Exhibit “K” attached to Schwinn Decl.; Exhibit “F” at 6:13-19 attached to RJN; Exhibit “O” at 6 ¶ 10; Exhibit “P”; Exhibit “Q” attached to Schwinn Decl. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 35. None of VELOCITY’s initial or further responses to CANUL’s special interrogatories, served on February 19, 2019 revealed a procedure to avoid the “error” alleged in this case: VELOCITY’s failure to attach a copy of the actual contract to its collection Complaint. Exhibit “R”; Exhibit “S” attached to Schwinn Decl. 36. VELOCITY’S document production VELOCITY-CANUL000072-107 does not evidence that VELOCITY maintains procedures to avoid VELOCITY failing to attach a copy of the actual contract to a complaint in actions where VELOCITY is attempting to collect a consumer debt for which there is a signed contract. Exhibit “V” attached to Schwinn Decl. 37. VELOCITY’S document production CONFIDENTIAL VELOCITY- CANUL000388- 421 does not evidence that VELOCITY maintains procedures to avoid VELOCITY failing to attach a copy of the actual contract to the complaint in actions where VELOCITY is attempting to collect a consumer debt for which there is a signed contract. Exhibit “W” attached to Schwinn Decl. 38. VELOCITY’S document production CONFIDENTIAL VELOCITY- CANUL000423- 462 does not evidence that VELOCITY maintains procedures to avoid VELOCITY failing to attach a copy of the actual contract to the complaint in actions where VELOCITY is attempting to collect a consumer debt for which there is a signed contract. Exhibit “X” attached to Schwinn Decl. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096 CONSUMER LAW CENTER, INC. Dated: July 21, 2023 By: ✓ Fred W. Schwinn (SBN 225575) Raeon R. Roulston (SBN 255622) Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 38 West Santa Clara Street San Jose, California 95113-1806 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Defendant/Cross-Complainant MARIA ANTONIA CANUL SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Case No. 16CV300096