                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 13 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PAUL STRASTERS, a married person;                No. 12-35120
ZADELLE STRASTERS, a married
person,                                          D.C. No. 2:10-cv-03070-RHW

              Plaintiffs - Appellees,
                                                 MEMORANDUM *
  v.

WEINSTEIN & RILEY PS,

              Defendant - Appellant.



PAUL STRASTERS, a married person;                No. 12-35283
ZADELLE STRASTERS, a married
person,                                          D.C. No. 2:10-cv-03070-RHW

              Plaintiffs - Appellants,

  v.

WEINSTEIN & RILEY PS,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Eastern District of Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                Robert H. Whaley, Senior District Judge, Presiding

                     Argued and Submitted December 7, 2012
                               Seattle, Washington

Before: TALLMAN and WATFORD, Circuit Judges, and FITZGERALD, District
Judge.**

      Defendant Weinstein & Riley, P.S., appeals a civil judgment for violation of

the Fair Debt Collection Practices Act (FDCPA). We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

      The district court properly analyzed whether a settlement agreement between

plaintiffs Paul and Zadelle Strasters and co-defendant Wells Fargo released

Weinstein & Riley from liability. The district court properly concluded that the

settlement agreement was ambiguous as to whether it released Weinstein & Riley,

and therefore properly denied Weinstein & Riley’s motion for summary judgment

on that ground. See Hearst Comm’ns v. Seattle Times Co., 154 Wash. 2d 493, 510,

115 P.3d 262 (2005). It was also not clear error for the court to find after a bench

trial that extrinsic evidence demonstrated the agreement did not release Weinstein

& Riley from liability. See Saint John’s Organic Farm v. Gem County Mosquito




        **
             The Honorable Michael W. Fitzgerald, United States District Judge
for the Central District of California, sitting by designation.

                                          2
Abatement Dist., 574 F.3d 1054, 1058 (9th Cir. 2009) (reviewing district court’s

factual findings for clear error).

      The district court erred, however, when it granted partial summary judgment

to plaintiffs on a prima facie FDCPA violation. The facts submitted to support the

plaintiffs’ motion, whether contested or not, did not suffice to entitle them to

judgment as a matter of law. See Fed. R. Civ. P. 56(a), (e). Interrogatory

responses that only demonstrated the defendant had collected some debts in the

past, or had occasionally taken a contingent fee interest in any recovery, did not

allow the court to conclude, as a matter of law, that the defendant “regularly”

collects debts under 15 U.S.C. § 1692a(6). Compare Shroyer v. Frankel, 197 F.3d

1170, 1176 (6th Cir. 1999) (holding that defendant did not “regularly” collect debts

when only 7.4 percent of cases involved debt collection) with Garrett v. Derbes,

110 F.3d 317, 318 (5th Cir. 1997) (holding that a defendant who attempts to collect

debts from 639 individuals in a nine-month period “regularly” collects debts).

      Although the defendant failed to specifically address this issue in its

opposition brief, “summary judgment cannot be granted by default even if there is

a complete failure to respond to the motion . . . .” Fed. R. Civ. P. 56(e) advisory

committee’s note to 2010 Amendments; see also Henry v. Gill Indus., Inc., 983

F.2d 943, 950 (9th Cir. 1993). We vacate the judgment, including the award of


                                           3
attorneys’ fees to plaintiffs, and remand to the district court, which may reopen

discovery and reconsider whether the defendant is a “debt collector” on summary

judgment or, if necessary, proceed to resolve the issue at trial. In light of our

disposition, plaintiffs’ cross-appeal is dismissed as moot.

      The judgment in 12-35120 is AFFIRMED IN PART, REVERSED IN

PART, and REMANDED to the district court for further proceedings consistent

with this disposition. Each party shall bear its own costs.

      No. 12-35283 is DISMISSED. Each party shall bear its own costs.




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