FILED
NOT FOR PUBLICATION
APR 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW PETERS, No. 14-15813
Plaintiff - Appellant, D.C. No. 2:12-cv-02600-FJM
v.
MEMORANDUM*
COFACE COLLECTIONS NORTH
AMERICA INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Argued and Submitted April 13, 2016
San Francisco, California
Before: O’SCANNLAIN, CLIFTON, and N.R. SMITH, Circuit Judges.
Andrew Peters appeals the district court’s summary judgment in his action
under the Fair Debt Collection Practices Act (“FDCPA”) against Coface
Collections North America, Inc. (“Coface”). We reverse the grant of summary
judgment, finding the existence of a genuine dispute of material fact.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review de novo a district court’s order on summary judgment.
Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1118 (9th Cir. 2014). We
also review de novo a district court’s interpretation of the FDCPA. Id. at 1119.
“We must determine, viewing the evidence in the light most favorable to the
nonmoving party, whether (1) there are any genuine issues of material fact, and (2)
whether the district court correctly applied the relevant substantive law.” Slenk v.
Transworld Sys., Inc., 236 F.3d 1072, 1074 (9th Cir. 2001).
There is a genuine issue of material fact, because, “[v]iewing the transaction
as a whole,” it is unclear whether the software “was purchased primarily for
consumer purposes.” Id. at 1075. Similar to the district court in Slenk, the district
court here “relied upon numerous facts in concluding as a matter of law that the
[software] was purchased . . . for commercial purposes.” Id. at 1075. While those
facts militate against Peters’s argument that he purchased the software for personal,
family, or household purposes, “they are not dispositive.” Id. “The record is replete
with undisputed [and disputed] . . . facts which, when viewed in the aggregate,
create a genuine issue of material fact.” Id. Although some facts suggest the
purchase was for commercial purposes, Peters testified that he purchased the
software in furtherance of a personal hobby. Peters also testified that he told the
software company and Coface over the phone that he intended to purchase the
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software as an individual, not as a business. Furthermore, it is undisputed that,
unlike the business owner in Slenk, Peters had not formally organized or operated
his business. He did not sell any products or services under the business name, he
purchased the software with two personal checks, he did not deduct the purchase of
the software as a business expense, and there is no evidence in the record
suggesting that Peters paid less sales tax when purchasing the software.
“[T]he district court appears to have overlooked the foregoing facts in
concluding that no genuine issue of material fact existed as to whether the
[software debt] constituted a consumer debt.” Id. at 1076. Although these facts
contradict the representations made by Peters to the software company, “it is not
the province of the district court to weigh conflicting evidence for purposes of
summary judgment.”1 Id. “By focusing . . . on select documentary evidence, rather
than looking to the facts illustrating the actual use to which the [software] was
[intended to be] put, the forest was lost for the trees.” Id.
We REVERSE the grant of summary judgment for Coface and VACATE
the judgment dismissing Peters’s complaint. We AFFIRM the denial of summary
1
We note that the only question of fact in Slenk was the nature of the debt
itself. The other facts were undisputed. Thus, even if the communication between
Peters and the software company were not disputed, a genuine issue of material
fact would still exist in determining the nature of the debt.
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judgment for Peters and REMAND for further proceedings. The parties shall bear
their own costs on appeal.
4