Preview
16CV300096
Santa Clara — Civil
System System
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 2/11/2021 3:28 PM
Reviewed By: System System
Case #16CV300096
Envelope: 5829938
Fred W. Schwinn (SBN 225575) Gregory K. Sabo (SBN 169760)
fred.schwinn@sjconsumerlaw.com gsabo@cgdrlaw.com
Raeon R. Roulston (SBN 255622) Molshree Gupta (SBN 275101)
raeon.roulston@sjconsumerlaw.com mgupta@cgdrlaw.com
Matthew C. Salmonsen (SBN 302854) CHAPMAN GLUCKSMAN DEAN & ROEB
matthew.salmonsen@sjconsumerlaw.com 11900 West Olympic Boulevard, Suite 800
CONSUMER LAW CENTER, INC. Los Angeles, California 90064-0704
1435 Koll Circle, Suite 104 Telephone: (310) 207-7722
10 San Jose, California 95112-4610 Facsimile: (310) 207-6550
Telephone Number: (408) 294-6100
ll Facsimile Number: (408) 294-6190 Attorneys for Cross-Defendant
VELOCITY INVESTMENTS, LLC
12
Attorneys for Cross-Complainant
13 MARIA ANTONIA CANUL
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
15
16 VELOCITY INVESTMENTS, LLC, Case No. 16CV300096
(Unlimited Civil Case)
17 Plaintiff,
v. Assigned for All Purposes to
18
The Honorable Patricia M. Lucas
MARIA CANUL,
19
Defendant.
20
MARIA ANTONIA CANUL, on behalf of JOINT CASE MANAGEMENT
21 herself and all others similarly situated, CONFERENCE STATEMENT
22 Cross-Complainant, Hearing Date: February 17, 2021
Hearing Time: 2:30 p.m.
23 a Hearing Dept.: 3
24 Hearing Location: CourtCall
VELOCITY INVESTMENTS, LLC, a New
Jersey limited liability company; and ROES
25
1 through 10, inclusive,
26
Cross-Defendants.
27
28
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
1. INTRODUCTION
Defendant/Cross-Complainant, MARIA ANTONIA CANUL, and Plaintiff/Cross-Defendant,
VELOCITY INVESTMENTS, LLC, hereby submit this Joint Case Management Conference Statement
for the February 17, 2021 Case Management Conference.
2. ADDITIONAL PARTIES
Cross-Complainant recently filed an Amendment to Cross-Complainant Naming Roe 1 as
Velocity Portfolio Group, Inc. As of this Statement, the Amendment remains pending. Therefore,
Velocity Portfolio Group, Inc. remains to be served in this case.
10
The Parties reserve the right to seek leave of the Court to join additional parties should either
ll
discover additional facts or claims necessitating such joinder.
12
13 3. SERVICE LISTS
14 Fred W. Schwinn (SBN 225575) Gregory K. Sabo (SBN 169760)
fred.schwinn@sjconsumerlaw.com gsabo@cgdrlaw.com
15
Raeon R. Roulston (SBN 255622) Molshree Gupta (SBN 275101)
16 raeon.roulston@sjconsumerlaw.com mgupta@cgdrlaw.com
Matthew C. Salmonsen (SBN 302854) CHAPMAN GLUCKSMAN DEAN & ROEB
17 matthew.salmonsen@sjconsumerlaw.com 11900 West Olympic Boulevard, Suite 800
CONSUMER LAW CENTER, INC. Los Angeles, California 90064-0704
18
1435 Koll Circle, Suite 104 Telephone: (310) 207-7722
19 San Jose, California 95112-4610 Facsimile: (310) 207-6550
Telephone: (408) 294-6100
20 Facsimile: (408) 294-6190 Attorneys for Cross-Defendant
21 Attorneys for Cross-Complainant
22
4, STATUS OF DISCOVERY
23
a. Cross-Complainant’s Statement
24
25 Prior to the Order Deeming Case Complex, Cross-Complainant served written discovery on
26 VELOCITY INVESTMENTS, LLC. Having received no response, Cross-Complainant filed motions to
27
Compel and Deem Admitted, which were granted on July 23, 2019. On July 7, 2020, the Honorable
28
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
Socrates P. Manoukian heard Cross-Defendant’s Motion to Set Aside Deemed Admissions. However,
Cross-Complainant is not aware that the Court ever entered an Order on this Motion.
After the Order Granting Cross-Complainant’s Motion to Compel, Cross-Defendant served
initial responses to Cross-Complainant’s discovery in this case, which responses are incomplete and
contain objections that have been waived. After attempting to meet and confer regarding Cross-
Defendant’s incomplete responses and document production, Cross-Complainant was forced to file a
Motion to Compel Further Responses, which is set to be heard by this Court on February 24, 2021.
Notably, Cross-Defendant has not provided any information relating to the size or identification of the
10
putative class members in this case, nor has Cross-Defendant provided discovery relating to its net
ll
worth.
12
13 Cross-Complainant is opposed to delaying discovery any further. If Cross-Defendant is still
14 contemplating dispositive motion practice, then Cross-Defendant should file its motion. Cross-
15 Defendant can not delay this matter any longer.
16
Regarding Cross-Defendant’s alleged inability to understand the difference between “final”
17
Truth in Lending Disclosures and “a copy of a contract or other document evidencing the debtor’s
18
19 agreement to the debt” within the meaning of California Civil Code § 1788.52(b), Cross-Complainant
20 again refers Cross-Defendant to 15 U.S.C. § 1638(b)(1) and 12 C.F.R. § 1026.17(b) regarding Truth in
21 Lending Disclosures. “TILA was enacted in 1968 ‘to assure a meaningful disclosure of credit terms so
22
that the consumer will be able to compare more readily the various credit terms available to him and
23
avoid the uninformed use of credit.’”' To effectuate this legislative purpose, Truth in Lending
24
25 Disclosures “shall be made before the credit is extended”? “in a form that the consumer may keep. 293,
26
27 1 Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1170 (9th Cir. 2003) (citing 15 U.S.C. § 1601(a)).
7
28
15 U.S.C. § 1638(b)(1). Emphasis added.
3 12 CER. § 1026.17(a).
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
“The Creditor shall make disclosures before consummation of the transaction.’ Therefore, final Truth
in Lending Disclosures are merely an offer to extend credit and do not evidence “the debtor’s
agreement to the debt” within the meaning of California Civil Code § 1788.52(b). This authority was
provided to Cross-Defendant most recently on June 24, 2020, and Cross-Complainant has not heard
further from Cross-Defendant regarding this issue until the preparing of this Statement. This authority
is also contained in the Cross-Complaint.
b. Cross-Defendant’s Statement
The Cross-Complaint contains almost no factual allegations. The only substantive allegation,
10
which pertains to both Cross-Complainant’s individual and putative class action, is that it is Cross-
ll
Defendant’s “standard practice and policy... to file and serve collection Complaints in the form of
12
13 Exhibit ‘1’ which fail to contain an attached ‘copy of the contract or other document described in
14 subdivision (b) of Section 1788.52’ as required by the CFDBPA...” (Cross-Complaint, {{ 18-20.)
15 However, the complaint which attached as Exhibit “1” to the Cross-Complaint does in fact
16
attach the final Truth in Lending Disclosure associated with the underlying loan transaction, which is a
17
“document evidencing [Cross-Complainant]’s agreement to the debt” under Section 1788.52. (Cal.
18
19 Civ. Code §1788.52(b) (emphasis added); see Cal. Evid. Code § 140.) Given that a final Truth in
20 Lending Disclosure is a document which establishes the likelihood of Cross-Complainant agreement to
21 the subject debt, Cross-Defendant has maintained the position it is legally sufficient under Section
22
1788.52.
23
Cross-Defendant cannot meaningfully search for class information until it understands why
24
25 Cross-Complaint believes that a final Truth in Lending Disclosure associated with the underlying loan
26 transaction is not a document evidencing Cross-Complainant’s agreement to the debt under Section
27 1788.52, and, if so, what characteristics a document must have to qualify as an “other document
28
+ 12 CFR.§ 1026.17(b). Emphasis added.
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
evidencing the debtor's agreement to the debt” under Civil Code section 1788.52(b) (emphasis added).
Furthermore, given that Cross-Complainant has never been able to articulate a legally
cognizable theory of liability, she is not entitled to conduct discovery regarding Cross-Defendant’s net
worth until she does do.
5. ARBITRATION
None of the parties have sought to invoke arbitration.
6. RELATED CASES
None at this time.
10
7, FACTUAL AND LEGAL ISSUES
ll
Cross-Complainant contends that the common questions to the class include:
12
13 a. Whether Cross-Defendant is a “debt buyer” as that term is defined by California Civil
14 Code § 1788.50(a)(1);
15 Whether Cross-Defendant is a “debt collector” as that term is defined by the RFDCPA,
16
California Civil Code § 1788.2(c); and
17
Whether Cross-Defendant filed against Cross-Complainant and the putative class
18
19 collection Complaints in the form of Exhibit “1,” which: falsely state that “Plaintiff has
20 complied with Civil Code section 1788.52”; and fail to contain an attached “copy of the
21 contract or other document described in subdivision (b) of Section 1788.52” as required
22
by the CFDBPA, California Civil Code § 1788.58(b).
23
Cross-Defendant contends that additional common questions to the class include:
24
25 d. Whether of a final Truth in Lending Disclosure associated with a underlying loan
26 transaction is legally sufficient as a document evidencing a debtor’s agreement to the
27 debt under California Civil Code Section 1788.52(b); and
28
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
e If not, which records associated with a loan transaction are legally sufficient as an “other
document evidencing a debtor’s agreement to the debt under California Civil Code
Section 1788.52(b) (emphasis added).”
This case involves the following factual and legal issues:
a, Whether Cross-Complainant is a “debtor” as that term is defined by California Civil
Code § 1788.2(h), as incorporated by California Civil Code § 1788.50(c);
Whether VELOCITY INVESTMENTS, LLC is a “debt buyer” as that term is defined by
California Civil Code § 1788.50(a)(1);
10
Whether Cross-Defendants are each a “debt collector” as that term is defined by the
ll
RFDCPA, California Civil Code § 1788.2(c);
12
13 Whether the financial obligation alleged to be owed by Cross-Complainant is a
14 “consumer debt” as that term is defined by California Civil Code § 1788.2(f), as
15 incorporated by California Civil Code § 1788.50(c);
16
Whether the financial obligation alleged to be owed by Cross-Complainant is a
17
“charged-off consumer debt” as that term is defined by California Civil Code §
18
19 1788.50(a)(2); and
20 Whether Cross-Defendants filed against Cross-Complainant a collection Complaint in
21 the form of Exhibit “1,” which: falsely states that “Plaintiff has complied with Civil
22
Code section 1788.52”; and fails to contain an attached “copy of the contract or other
23
document described in subdivision (b) of Section 1788.52” as required by the CFDBPA,
24
25 California Civil Code § 1788.58(b).
26 Cross-Defendant contends the following additional legal issues are at issue:
27 g. Whether of a final Truth in Lending Disclosure associated with a loan transaction is
28
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
legally sufficient as a document evidencing a debtor’s agreement to the debt under
California Civil Code Section 1788.52(b); and
If not, which records associated with the underlying loan transaction are legally
sufficient as an “other document evidencing a debtor’s agreement to the debt under
California Civil Code Section 1788.52(b) (emphasis added).”
8. ALTERNATIVE DISPUTE RESOLUTION
Cross-Complainant will agree to Mediation and to participate in a mandatory settlement
conference once class discovery has been completed. Cross-Defendant will agree to participate in a
10
mandatory settlement conference. Cross-Defendant will consider a Mediation is resolution cannot be
11
achieved through a settlement conference.
12
13 9. DISCOVERY TIMELINE
14 a. Cross-Complainant’s Statement
15 Discovery is already well on its way in this case. Due to Cross-Defendant’s failure to serve
16
adequate, substantive discovery responses, discovery matters are now in the hands of the Court.
17
Cross-Complainant anticipates that the settlement posture of the case will be very different
18
19 depending on whether the Court certifies a class. As such, promptly addressing certification by
20 completing the related discovery will greatly assist in making ADR meaningful. Cross-Complainant is
21 hopeful that Cross-Defendant will reconsider its position and promptly provide class size, class list, and
22
net worth information.
23
b Cross-Defendants’ Statement
24
25 As discussed in section 4b., Cross-Defendant does not believe that further discovery by Cross-
26 Complainant’s should net be ordered until Cross-Complainant amends the Cross-Complaint to further
27 clarify the alleged theory of liability. Furthermore, the underlying debt collection action against Cross-
28
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
Complaint has been dismissed for over 18 months. As such, until Cross-Complainant does so, or this
Court settles the legal issue of the sufficiency of a final Truth in Lending Disclosure associated with the
underlying loan transaction as a document evidencing Cross-Complainant’s agreement to the debt
under Section 1788.52(b), Cross-Defendant cannot allow the intrusive, burdensome discovery sought
by Cross-Complainant.
10. STATUS OF THE PLEADINGS
a. Cross-Complainant’s Statement
Cross-Complainant may seek leave of the Court to file a First Amended Cross-Complaint as
10
discovery is likely to reveal a violation of California Civil Code § 1788.58(a)(6).
ll
b. Cross-Defendant’s Statement
12
13 Cross-Defendant is evaluating a dispositive motion regarding the legal issue of the sufficiency
14 of a final Truth in Lending Disclosure associated with the underlying loan transaction as a document
15 evidencing a debtor’s agreement to a debt under Section 1788.52(b).
16
However, Cross-Defendant is awaiting Cross-Complainant’s Reply in support of her Motion to
17
Compel Further Responses from Cross-Defendant, and the February 24, 2021 hearing on the Motion, to
18
19 determine whether Cross-Complainant is able to cognizably articulate the present theory of liability
20 alleged in the operative Cross-Complaint.
21 11. OTHER MATTERS
22
a. Issues Related to Recusal or Disqualification
23
None at this time.
24
25 b. Preservation of Evidence
26 The parties have been given the appropriate instruction with respect to the preservation of
27 evidence.
28
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
The parties will Bates-number all documents produced in discovery. Cross-Complainant will
designate his documents with a four-digit number beginning with “CAN0001.” Cross-Defendant will
designate his documents as follows: “VELOCITY-CANUL 000001.”
¢c. Protection of Evidence and Confidentiality
Cross-Complainant will agree to use the Model Confidentiality Order published by the Complex
Division of the Santa Clara County Superior Court. Cross-Complainant has offered to stipulate to this
order. Cross-Defendant will stipulate to use the Model Confidentiality Order.
d. Publicity Issues
10
None at this time.
ll
CONSUMER LAW CENTER, INC.
12
13
Dated: February 11, 2021 By: /s/ Matthew C. Salmonsen
14 O Fred W. Schwinn (SBN 225575)
ORaeon R. Roulston (SBN 255622)
15
Matthew C. Salmonsen (SBN 302854)
16
Attorneys for Cross-Complainant
17 MARIA ANTONIA CANUL
18
19 CHAPMAN GLUCKSMAN DEAN & ROEB
20
Dated: February 11, 2021 By:
2 O Gregory K. Sabo (SB 9760)
22 Molshree Gupta (SBN 275101)
23 Attorneys for Cross-Defendant
VELOCITY INVESTMENTS, LLC
24
25
26
27
28
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096
Preview
16CV300096 Santa Clara — Civil System System Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/11/2021 3:28 PM Reviewed By: System System Case #16CV300096 Envelope: 5829938 Fred W. Schwinn (SBN 225575) Gregory K. Sabo (SBN 169760) fred.schwinn@sjconsumerlaw.com gsabo@cgdrlaw.com Raeon R. Roulston (SBN 255622) Molshree Gupta (SBN 275101) raeon.roulston@sjconsumerlaw.com mgupta@cgdrlaw.com Matthew C. Salmonsen (SBN 302854) CHAPMAN GLUCKSMAN DEAN & ROEB matthew.salmonsen@sjconsumerlaw.com 11900 West Olympic Boulevard, Suite 800 CONSUMER LAW CENTER, INC. Los Angeles, California 90064-0704 1435 Koll Circle, Suite 104 Telephone: (310) 207-7722 10 San Jose, California 95112-4610 Facsimile: (310) 207-6550 Telephone Number: (408) 294-6100 ll Facsimile Number: (408) 294-6190 Attorneys for Cross-Defendant VELOCITY INVESTMENTS, LLC 12 Attorneys for Cross-Complainant 13 MARIA ANTONIA CANUL 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 15 16 VELOCITY INVESTMENTS, LLC, Case No. 16CV300096 (Unlimited Civil Case) 17 Plaintiff, v. Assigned for All Purposes to 18 The Honorable Patricia M. Lucas MARIA CANUL, 19 Defendant. 20 MARIA ANTONIA CANUL, on behalf of JOINT CASE MANAGEMENT 21 herself and all others similarly situated, CONFERENCE STATEMENT 22 Cross-Complainant, Hearing Date: February 17, 2021 Hearing Time: 2:30 p.m. 23 a Hearing Dept.: 3 24 Hearing Location: CourtCall VELOCITY INVESTMENTS, LLC, a New Jersey limited liability company; and ROES 25 1 through 10, inclusive, 26 Cross-Defendants. 27 28 -1- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 1. INTRODUCTION Defendant/Cross-Complainant, MARIA ANTONIA CANUL, and Plaintiff/Cross-Defendant, VELOCITY INVESTMENTS, LLC, hereby submit this Joint Case Management Conference Statement for the February 17, 2021 Case Management Conference. 2. ADDITIONAL PARTIES Cross-Complainant recently filed an Amendment to Cross-Complainant Naming Roe 1 as Velocity Portfolio Group, Inc. As of this Statement, the Amendment remains pending. Therefore, Velocity Portfolio Group, Inc. remains to be served in this case. 10 The Parties reserve the right to seek leave of the Court to join additional parties should either ll discover additional facts or claims necessitating such joinder. 12 13 3. SERVICE LISTS 14 Fred W. Schwinn (SBN 225575) Gregory K. Sabo (SBN 169760) fred.schwinn@sjconsumerlaw.com gsabo@cgdrlaw.com 15 Raeon R. Roulston (SBN 255622) Molshree Gupta (SBN 275101) 16 raeon.roulston@sjconsumerlaw.com mgupta@cgdrlaw.com Matthew C. Salmonsen (SBN 302854) CHAPMAN GLUCKSMAN DEAN & ROEB 17 matthew.salmonsen@sjconsumerlaw.com 11900 West Olympic Boulevard, Suite 800 CONSUMER LAW CENTER, INC. Los Angeles, California 90064-0704 18 1435 Koll Circle, Suite 104 Telephone: (310) 207-7722 19 San Jose, California 95112-4610 Facsimile: (310) 207-6550 Telephone: (408) 294-6100 20 Facsimile: (408) 294-6190 Attorneys for Cross-Defendant 21 Attorneys for Cross-Complainant 22 4, STATUS OF DISCOVERY 23 a. Cross-Complainant’s Statement 24 25 Prior to the Order Deeming Case Complex, Cross-Complainant served written discovery on 26 VELOCITY INVESTMENTS, LLC. Having received no response, Cross-Complainant filed motions to 27 Compel and Deem Admitted, which were granted on July 23, 2019. On July 7, 2020, the Honorable 28 -2- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 Socrates P. Manoukian heard Cross-Defendant’s Motion to Set Aside Deemed Admissions. However, Cross-Complainant is not aware that the Court ever entered an Order on this Motion. After the Order Granting Cross-Complainant’s Motion to Compel, Cross-Defendant served initial responses to Cross-Complainant’s discovery in this case, which responses are incomplete and contain objections that have been waived. After attempting to meet and confer regarding Cross- Defendant’s incomplete responses and document production, Cross-Complainant was forced to file a Motion to Compel Further Responses, which is set to be heard by this Court on February 24, 2021. Notably, Cross-Defendant has not provided any information relating to the size or identification of the 10 putative class members in this case, nor has Cross-Defendant provided discovery relating to its net ll worth. 12 13 Cross-Complainant is opposed to delaying discovery any further. If Cross-Defendant is still 14 contemplating dispositive motion practice, then Cross-Defendant should file its motion. Cross- 15 Defendant can not delay this matter any longer. 16 Regarding Cross-Defendant’s alleged inability to understand the difference between “final” 17 Truth in Lending Disclosures and “a copy of a contract or other document evidencing the debtor’s 18 19 agreement to the debt” within the meaning of California Civil Code § 1788.52(b), Cross-Complainant 20 again refers Cross-Defendant to 15 U.S.C. § 1638(b)(1) and 12 C.F.R. § 1026.17(b) regarding Truth in 21 Lending Disclosures. “TILA was enacted in 1968 ‘to assure a meaningful disclosure of credit terms so 22 that the consumer will be able to compare more readily the various credit terms available to him and 23 avoid the uninformed use of credit.’”' To effectuate this legislative purpose, Truth in Lending 24 25 Disclosures “shall be made before the credit is extended”? “in a form that the consumer may keep. 293, 26 27 1 Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1170 (9th Cir. 2003) (citing 15 U.S.C. § 1601(a)). 7 28 15 U.S.C. § 1638(b)(1). Emphasis added. 3 12 CER. § 1026.17(a). -3- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 “The Creditor shall make disclosures before consummation of the transaction.’ Therefore, final Truth in Lending Disclosures are merely an offer to extend credit and do not evidence “the debtor’s agreement to the debt” within the meaning of California Civil Code § 1788.52(b). This authority was provided to Cross-Defendant most recently on June 24, 2020, and Cross-Complainant has not heard further from Cross-Defendant regarding this issue until the preparing of this Statement. This authority is also contained in the Cross-Complaint. b. Cross-Defendant’s Statement The Cross-Complaint contains almost no factual allegations. The only substantive allegation, 10 which pertains to both Cross-Complainant’s individual and putative class action, is that it is Cross- ll Defendant’s “standard practice and policy... to file and serve collection Complaints in the form of 12 13 Exhibit ‘1’ which fail to contain an attached ‘copy of the contract or other document described in 14 subdivision (b) of Section 1788.52’ as required by the CFDBPA...” (Cross-Complaint, {{ 18-20.) 15 However, the complaint which attached as Exhibit “1” to the Cross-Complaint does in fact 16 attach the final Truth in Lending Disclosure associated with the underlying loan transaction, which is a 17 “document evidencing [Cross-Complainant]’s agreement to the debt” under Section 1788.52. (Cal. 18 19 Civ. Code §1788.52(b) (emphasis added); see Cal. Evid. Code § 140.) Given that a final Truth in 20 Lending Disclosure is a document which establishes the likelihood of Cross-Complainant agreement to 21 the subject debt, Cross-Defendant has maintained the position it is legally sufficient under Section 22 1788.52. 23 Cross-Defendant cannot meaningfully search for class information until it understands why 24 25 Cross-Complaint believes that a final Truth in Lending Disclosure associated with the underlying loan 26 transaction is not a document evidencing Cross-Complainant’s agreement to the debt under Section 27 1788.52, and, if so, what characteristics a document must have to qualify as an “other document 28 + 12 CFR.§ 1026.17(b). Emphasis added. -4- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 evidencing the debtor's agreement to the debt” under Civil Code section 1788.52(b) (emphasis added). Furthermore, given that Cross-Complainant has never been able to articulate a legally cognizable theory of liability, she is not entitled to conduct discovery regarding Cross-Defendant’s net worth until she does do. 5. ARBITRATION None of the parties have sought to invoke arbitration. 6. RELATED CASES None at this time. 10 7, FACTUAL AND LEGAL ISSUES ll Cross-Complainant contends that the common questions to the class include: 12 13 a. Whether Cross-Defendant is a “debt buyer” as that term is defined by California Civil 14 Code § 1788.50(a)(1); 15 Whether Cross-Defendant is a “debt collector” as that term is defined by the RFDCPA, 16 California Civil Code § 1788.2(c); and 17 Whether Cross-Defendant filed against Cross-Complainant and the putative class 18 19 collection Complaints in the form of Exhibit “1,” which: falsely state that “Plaintiff has 20 complied with Civil Code section 1788.52”; and fail to contain an attached “copy of the 21 contract or other document described in subdivision (b) of Section 1788.52” as required 22 by the CFDBPA, California Civil Code § 1788.58(b). 23 Cross-Defendant contends that additional common questions to the class include: 24 25 d. Whether of a final Truth in Lending Disclosure associated with a underlying loan 26 transaction is legally sufficient as a document evidencing a debtor’s agreement to the 27 debt under California Civil Code Section 1788.52(b); and 28 -5- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 e If not, which records associated with a loan transaction are legally sufficient as an “other document evidencing a debtor’s agreement to the debt under California Civil Code Section 1788.52(b) (emphasis added).” This case involves the following factual and legal issues: a, Whether Cross-Complainant is a “debtor” as that term is defined by California Civil Code § 1788.2(h), as incorporated by California Civil Code § 1788.50(c); Whether VELOCITY INVESTMENTS, LLC is a “debt buyer” as that term is defined by California Civil Code § 1788.50(a)(1); 10 Whether Cross-Defendants are each a “debt collector” as that term is defined by the ll RFDCPA, California Civil Code § 1788.2(c); 12 13 Whether the financial obligation alleged to be owed by Cross-Complainant is a 14 “consumer debt” as that term is defined by California Civil Code § 1788.2(f), as 15 incorporated by California Civil Code § 1788.50(c); 16 Whether the financial obligation alleged to be owed by Cross-Complainant is a 17 “charged-off consumer debt” as that term is defined by California Civil Code § 18 19 1788.50(a)(2); and 20 Whether Cross-Defendants filed against Cross-Complainant a collection Complaint in 21 the form of Exhibit “1,” which: falsely states that “Plaintiff has complied with Civil 22 Code section 1788.52”; and fails to contain an attached “copy of the contract or other 23 document described in subdivision (b) of Section 1788.52” as required by the CFDBPA, 24 25 California Civil Code § 1788.58(b). 26 Cross-Defendant contends the following additional legal issues are at issue: 27 g. Whether of a final Truth in Lending Disclosure associated with a loan transaction is 28 -6- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 legally sufficient as a document evidencing a debtor’s agreement to the debt under California Civil Code Section 1788.52(b); and If not, which records associated with the underlying loan transaction are legally sufficient as an “other document evidencing a debtor’s agreement to the debt under California Civil Code Section 1788.52(b) (emphasis added).” 8. ALTERNATIVE DISPUTE RESOLUTION Cross-Complainant will agree to Mediation and to participate in a mandatory settlement conference once class discovery has been completed. Cross-Defendant will agree to participate in a 10 mandatory settlement conference. Cross-Defendant will consider a Mediation is resolution cannot be 11 achieved through a settlement conference. 12 13 9. DISCOVERY TIMELINE 14 a. Cross-Complainant’s Statement 15 Discovery is already well on its way in this case. Due to Cross-Defendant’s failure to serve 16 adequate, substantive discovery responses, discovery matters are now in the hands of the Court. 17 Cross-Complainant anticipates that the settlement posture of the case will be very different 18 19 depending on whether the Court certifies a class. As such, promptly addressing certification by 20 completing the related discovery will greatly assist in making ADR meaningful. Cross-Complainant is 21 hopeful that Cross-Defendant will reconsider its position and promptly provide class size, class list, and 22 net worth information. 23 b Cross-Defendants’ Statement 24 25 As discussed in section 4b., Cross-Defendant does not believe that further discovery by Cross- 26 Complainant’s should net be ordered until Cross-Complainant amends the Cross-Complaint to further 27 clarify the alleged theory of liability. Furthermore, the underlying debt collection action against Cross- 28 -7- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 Complaint has been dismissed for over 18 months. As such, until Cross-Complainant does so, or this Court settles the legal issue of the sufficiency of a final Truth in Lending Disclosure associated with the underlying loan transaction as a document evidencing Cross-Complainant’s agreement to the debt under Section 1788.52(b), Cross-Defendant cannot allow the intrusive, burdensome discovery sought by Cross-Complainant. 10. STATUS OF THE PLEADINGS a. Cross-Complainant’s Statement Cross-Complainant may seek leave of the Court to file a First Amended Cross-Complaint as 10 discovery is likely to reveal a violation of California Civil Code § 1788.58(a)(6). ll b. Cross-Defendant’s Statement 12 13 Cross-Defendant is evaluating a dispositive motion regarding the legal issue of the sufficiency 14 of a final Truth in Lending Disclosure associated with the underlying loan transaction as a document 15 evidencing a debtor’s agreement to a debt under Section 1788.52(b). 16 However, Cross-Defendant is awaiting Cross-Complainant’s Reply in support of her Motion to 17 Compel Further Responses from Cross-Defendant, and the February 24, 2021 hearing on the Motion, to 18 19 determine whether Cross-Complainant is able to cognizably articulate the present theory of liability 20 alleged in the operative Cross-Complaint. 21 11. OTHER MATTERS 22 a. Issues Related to Recusal or Disqualification 23 None at this time. 24 25 b. Preservation of Evidence 26 The parties have been given the appropriate instruction with respect to the preservation of 27 evidence. 28 -8- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096 The parties will Bates-number all documents produced in discovery. Cross-Complainant will designate his documents with a four-digit number beginning with “CAN0001.” Cross-Defendant will designate his documents as follows: “VELOCITY-CANUL 000001.” ¢c. Protection of Evidence and Confidentiality Cross-Complainant will agree to use the Model Confidentiality Order published by the Complex Division of the Santa Clara County Superior Court. Cross-Complainant has offered to stipulate to this order. Cross-Defendant will stipulate to use the Model Confidentiality Order. d. Publicity Issues 10 None at this time. ll CONSUMER LAW CENTER, INC. 12 13 Dated: February 11, 2021 By: /s/ Matthew C. Salmonsen 14 O Fred W. Schwinn (SBN 225575) ORaeon R. Roulston (SBN 255622) 15 Matthew C. Salmonsen (SBN 302854) 16 Attorneys for Cross-Complainant 17 MARIA ANTONIA CANUL 18 19 CHAPMAN GLUCKSMAN DEAN & ROEB 20 Dated: February 11, 2021 By: 2 O Gregory K. Sabo (SB 9760) 22 Molshree Gupta (SBN 275101) 23 Attorneys for Cross-Defendant VELOCITY INVESTMENTS, LLC 24 25 26 27 28 -9- JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. 16CV300096