Curtis Glawe v. Carpenter Hazlewood ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS G. GLAWE, No. 19-17090
Plaintiff-Appellant, D.C. No. 2:18-cv-01282-JAS
v.
MEMORANDUM*
CARPENTER, HAZLEWOOD, DELGADO
& BOLEN PLC; JAVIER DELGADO;
MARK HOLMGREEN; MARK K. SAHL;
GREGORY A. STEIN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted May 6, 2021**
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and DONATO,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
Curtis G. Glawe (“Glawe”) appeals the district court’s order granting
summary judgment on Glawe’s Fair Debt Collection Practices Act (“FDCPA”)
claim in favor of Appellees and the entry of judgment against him.1 We have
jurisdiction under 28 U.S.C. § 1291, and we reverse the entry of judgment and
remand for further proceedings consistent with this disposition.
In 2009, Glawe and his wife, Lorri Glawe, both Iowa residents, purchased
the Mohave Property, a residence located in Buckeye, Arizona. Neither Glawe nor
any member of his family have lived in the home at any time, and they have
consistently rented out the Mohave Property. In their affidavits, the Glawes state
that they purchased the Mohave Property, initially intending to use it as a
retirement home in ten to twelve years, and that they only decided to rent the house
out sometime after they purchased it. As owners of the Mohave Property, the
Glawes are members of the Sundance Residential Homeowners Association, Inc.
(“the HOA”), and are subject to the Declaration of Residential Homeowner
Benefits and Covenants, Conditions and Restrictions of the Sundance Residential
Community (“CC&Rs”). The record also states that the Glawes bought a second
1
Glawe also appeals the denial of his motion to amend the complaint. Because we
reverse and remand with respect to the motion for summary judgment, we do not
reach this issue. Further, we do not reach Glawe’s appeal of the district court’s
denial of his motion for reconsideration of the district court’s order granting
summary judgment for Appellees. See Shimko v. Guenther, 505 F.3d 987, 993 (9th
Cir. 2007).
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property (“228th Lane Property”) within the relevant housing development, and
according to the deposition of Curtis Glawe, the Glawes purchased “both of these
properties” with the intention of “hav[ing] them occupied by tenants until” the
Glawes “were going to move into one of them.”
The HOA—represented by Appellees, attorneys at the law firm Carpenter,
Hazelwood, Delgado, & Boren PLC—twice sued the Glawes in Arizona state court
for failure to pay HOA assessments and late fees associated with the Mohave
Property. In those suits, the HOA also sought and was awarded court costs and
attorneys’ fees. Glawe sued Appellees in federal court, alleging that Appellees’
attempts to collect the money violated the FDCPA. The district court granted
summary judgment in favor of Appellees. The district court concluded that,
because there is no genuine dispute that the Mohave Property was a rental
property, the obligation associated with the property is commercial, not consumer,
in nature. Because the obligation was not consumer in nature, the district court
determined that it does not qualify as a “debt” subject to the FDCPA.
The FDCPA applies only to consumer—as opposed to commercial—debt.
Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir. 1992). It defines “debt” as:
“any obligation or alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family, or household purposes
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. . . .” 15 U.S.C. § 1692a(5). In other words, to establish that the relevant
obligation is a consumer debt, Glawe must show that (1) there was an obligation
arising out of a transaction; and (2) the money, property, insurance, or services
which are the subject of the transaction were primarily for personal, family, or
household purposes.
Appellees urge that we should focus our analysis on the assessments and
attorneys’ fees incurred after the Glawes purchased the Mohave Property and while
they used it as a rental property. However, the “transaction” at issue is the
purchase of the Mohave Property itself. See 15 U.S.C. § 1692a(5). The Glawes
purchased the Mohave Property in 2009 and were at that time subject to the HOA’s
CC&Rs. The CC&Rs required the Glawes to pay assessments. Appellees’
attempts to collect the allegedly late assessments and the related late fees, court
costs, and attorneys’ fees resulted in this FDCPA case. Under a plain reading of
the statutory language, the “obligation” underlying Glawe’s FDCPA claim “ar[ose]
out of” the purchase of the Mohave Property. See 15 U.S.C. § 1692a(5). The
relevant inquiry, then, is whether the purchase of the Mohave Property was
primarily consumer or commercial in nature. See In re Cherrett, 873 F.3d 1060,
1067 (9th Cir. 2017) (“Courts determine the debtor’s purpose as of the time the
debt was incurred.”).
The district court erred in concluding that an obligation associated with a
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rental property cannot be primarily consumer in nature. To determine whether the
transaction was primarily consumer or commercial in nature, the court must
“examine the transaction as a whole, paying particular attention to the purpose for
which the credit was extended.” Slenk v. Transworld Sys., Inc., 236 F.3d 1072,
1075 (9th Cir. 2001) (cleaned up). This determination may be made as a matter of
law. See Bloom, 972 F.2d at 1069. But a genuine dispute of fact relevant to the
inquiry may preclude summary judgment. See Slenk, 236 F.3d at 1075.
We reverse the entry of judgment for Appellees and remand with
instructions that the district court, after being informed by whatever procedures the
district court thinks appropriate, make a factual determination of the true purpose
of the Glawes’ acquisition of the Mohave Property and the 228th Lane Property.
REVERSED and REMANDED.
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