                                                                            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                           NOT FOR PUBLICATION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.




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