Judge Elaine Lu, Case Number: 20NWLC00063, Date: 2025-04-22 Tentative Ruling

This is a certified consumer class action. Defendant/Cross-Complainant Ian Anwar Musa (“Musa”) alleges that Plaintiff/Cross-Defendant Student Loan Solutions, LLC (“SLS”) served debt collection letters and complaints on Musa and the Class Members that violated various state and federal debt collection statutes.

On January 2, 2020, SLS filed its complaint against Musa seeking to collect on a student loan. In the complaint, SLS asserts two causes of action for (1) breach of contract and (2) common count.

On May 27, 2020, Musa filed his cross-complaint against SLS and its counsel Steven Alfred Booksa (“Booksa”) (jointly “Cross-Defendants”). In the cross-complaint, Musa asserts the following causes of action: (1) violation of the California Fair Debt Buying Practices Act (“CFDBPA”); (2) violation of the federal Fair Debt Collection Practices Act (“FDCPA”); and (3) violation of the California Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”).

On June 15, 2023, the Court – presided by the Honorable Yvette M. Palazuelos – conditionally granted Musa’s motion for class certification on the condition that Musa submit a concrete trial plan. (Order 6/15/23.) On August 9, 2023, the Court – presided by Judge Palazuelos – unconditionally granted Musa’s motion for class certification and certified the following class:

All persons with addresses in California to whom Cross-Defendants sent collection letters . . . and against whom Cross-Defendants subsequently filed a collection Complaint . . . in an attempt to collect a charged-off consumer debt originally owed to Bank of America, N.A., which was purportedly sold to Cross-Defendant, Student Loan Solutions, LLC, pursuant to the Loan Sale Agreement dated as of October 31, 2017, during the period May 27, 2019, through the date of class certification.

On April 2, 2024, Cross-Defendant Booska filed the instant motion for summary judgment or in the alternative summary adjudication of the claims against him in the cross-complaint. On March 25, 2025, Cross-Complainant Musa filed an opposition. On April 8, 2025, Cross-Defendant Booska filed a reply.

Defendant Musa obtained a private student loan from third party Bank of America, N.A. for schooling at the University of Virginia and failed to pay the full amount due. (Complaint ¶ 6, Exh. B.) Plaintiff SLS purchased this debt from third party Bank of America, N.A. (Id. ¶ 12, Exh. A.)

Defendant Musa owes $22,700.31 on the private student loan and went into default on January 23, 2016. (Id. ¶¶ 8-9.)

On July 12, 2006, Cross-Complainant Musa obtained a private student loan from third party Bank of America, N.A. (Cross-Complaint ¶ 14.) This debt was “transferred to The National Collegiate Funding, LLC (a subsidiary of The First Marblehead Corp.), guaranteed by The Education Resources Institute, Inc. (‘TERI’)(another subsidiary of The First Marblehead Corp.), packaged into an asset-based investment security, and sold to Wall Street investors. TERI subsequently filed for bankruptcy protection on April 7, 2008.” (Id. ¶ 15.) On August 11, 2006, the “debt was thereafter sold, assigned, or otherwise transferred to NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3.” (Id. ¶ 16.)

No payments were ever made on the debt. (Id. ¶ 17.) “[O]n or about July 1, 2010, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, accelerated the alleged debt, removed the alleged debt from its books as an asset, and thereafter treated the alleged debt as a loss or expense.” (Id. ¶ 18.) “[O]n or about July 2, 2014, the four year statute of limitations expired on the alleged debt, pursuant to California Code of Civil Procedure § 337.” (Id. ¶ 19.)

On October 31, 2017, the debt was sold or resold to SLS for collection. (Id. ¶ 20.) On November 12, 2019, Cross-Defendants sent a collection letter misrepresenting the character, amount, and legal status of the debt. (Id. ¶¶ 22-24, Exh. 1.) In addition, the collection letter allegedly failed to give the notices required under Civil Code § 1788.52(d)(3) and Civil Code § 1788.14(d)(2). (Id. ¶¶ 25-26.)

In conjunction with the moving papers, SLS requests that the Court take judicial notice of the following:

2. Final Rulings/Orders Re: Motion For Class Certification in the instant action filed June 15, 2023

3. SLS and Steven Booska's Answer to Ian A. Musa's Class Action Cross-Complaint filed on July 9, 2020 in the instant action

4. Cross-Complainant and the class have only alleged the First Cause of Action for alleged violations of the California Fair Debt Buying Practices Act, Civil Code §§ 1788.50-1788.64 against SLS and ROES 1-10, and not against Booska.

As to requests 1 through 4, the Court may take judicial notice of the existence of court records and government records. (See Evid. Code, § 452(c), (d).) Accordingly, the Court grants judicial notice of the existence of these orders and pleadings . However, the Court cannot take judicial notice of the truth of any allegations within these pleadings. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [“While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.”].)

In conjunction with the reply, Booska objects to portions of (1) the declaration of Ian. A Musa, (2) the declaration of Osman Yunus Guracar, and (3) the declaration of Steven A. Simons. The Court rules as follows:

10. Objection 10 is to the entirety of Exhibit “A” to the Declaration of Steven A. Simons. (Evid. Obj No. 10 [“Exhibit ‘A’ to the Declaration of Steven A. Simons (i.e., highlighted excerpts of the July 2, 2024 deposition transcript of Mr. Winkler) in its entirety.”].) This is improper. California Rules of Court, Rule 3.1354(2) and 3.1354(3) require that each objection “(2) State the exhibit, title, page, and line number of the material objected to; [and] (3) Quote or set forth the objectionable statement or material[.]” Here, objection 10 makes no attempt to identify which lines and which pages of many pages of deposition transcripts are objectionable. Nor does objection 10 quote any objectionable language. Objection 10 is overruled.

“On or about July 12, 2006, Musa applied for a private student loan from Bank of America (the ‘loan’) in the principal amount of $32,624.00, and finance charges in the amount of $45.812.72, to be paid back in 240 consecutive monthly installments beginning December 23, 2009 and ending on November 23, 2029. The loan was granted, and disbursed to Musa in two payments of $16,312, on August 11, 2006 and January 5, 2007 respectively.” (Undisputed Material Fact “UMF” 1.)

“In connection with obtaining the loan, Musa electronically signed a document titled ‘NONNEGOTIABLE NOTE’ (the ‘Note’), certifying that he had ‘read all four (4) pages) of th[e] Note BA.06-07.UNGT.10.0306 in their entirety, understand[s] them, and agree[s] to be bound by their terms.’ By signing the Note electronically, Musa agreed, inter alia, that he ‘intend[ed]…[his] electronic signature to be an electronic signature under applicable federal and state law, [and that] any…printout of Lender’s electronic record of this Note and related notices to be an original document’.” (UMF 2.) “The Note’s related notices, incorporated by reference (BA.06-07.UNGT.10.0306) contains a California choice of law provision.” (UMF 3.) “The Note’s related notices, incorporated by reference (BA.06-07.UNGT.10.0306) also contains a ‘Default and Acceleration’ clause allowing the creditor to declare the whole loan due in the event of a default.” (UMF 4.) “Under the terms of the Note, the first 239 installment payments, inclusive of principal and interest, are for $326.81 each, with the last installment payment on the Note, inclusive of principal and interest for the amount of $329.13.” (UMF 5.) “Defendant/Cross-Complainant Musa never made any payments toward his debt obligation under the Note.” (UMF 6.)

“On October 31, 2017, SLS entered into a ‘Loan Sale Agreement’ with Bank of America to purchase a portfolio of student loans via a Bill of Sale and a Blanket Endorsement, executed by Bank of America and SLS, which included Musa’s student loan from Bank of America for which Musa applied for on or around July 12, 2006 and received the two disbursements of $16,312 each, on August 11, 2006 and January 5, 2007 respectively.” (UMF 7.)

“On November 19, 2019, Musa sent a letter to Booska disputing the debt and requesting validation; Booska responded with a letter enclosing validation information and documentation.” (UMF 10.)

“Neither SLS nor Booska ever attempted to collect interest or finance charges from Musa.” (UMF 13.)

“None of the documents provided by Bank of America to SLS, and in turn from SLS to Booska, with respect to Musa include any indication that Bank of America, nor any prior holder of the Note, made any earlier acceleration of the loan nor that anyone other than Bank of America was the charge-off creditor. If any such document existed, Bank of America would have been required pursuant to the terms of the Loan Sale Agreement to provide SLS with any such document, which it did not as to Musa (although Bank of America did as to other debt accounts within the portfolio purchased on October 31, 2017).” (UMF 15.)

“Musa received the full benefit of the loan pursuant to the terms of the Note which he agreed to by electronically signing the ‘NONNEGOTIABLE NOTE’ without making any payments against the loan whatsoever.” (UMF 17.)

“In the documents Bank of America provided to SLS pursuant to the Loan Sale Agreement related to Musa's debt, which were in turn provided to Booska by SLS, specifically, the “Annex I” of Bank of America's records show that the debt was charged off by Bank of America on September 20, 2010, with a charge-off amount of $38,729.08.” (UMF 18.) “SLS is the only post charge-off purchaser of Musa’s debt.” (UMF 19.)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense for each claim of the complaint. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has shifted the burden, the party opposing the motion must produce substantial responsive evidence to establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Booska seeks summary judgment or in the alternative summary adjudication of the claims against him in Musa’s Cross-Complaint on the grounds that (1) the debt SLS – through Booska – is attempting to collect is not time barred, and (2) Booska is relieved from liability under the “bona fide error” affirmative defense.

There is a Triable Issue of Fact as to Whether SLS’s Collection Claims Are Time Barred

Booska moves for summary judgment on grounds that the debt Booska attempted to collect on was not time barred. To the extent that Booska moves for summary adjudication. Booska raises the same arguments for both causes of action asserted against him and fails to differentiate between the two causes of action against him. Thus, the Court will address the two causes of action against Booska together.[1]

“[T]he nature of the right sued upon, not the form of action or the relief demanded, determines the applicability of the statute of limitations.” (Jefferson v. J. E. French Co. (1960) 54 Cal.2d 717, 718.) “An action upon any contract, obligation or liability founded upon an instrument in writing” including common counts based on a written contract must be brought within four years. (CCP § 337(a).)

“The statute of limitations usually commences when a cause of action ‘accrues,’ and it is generally said that ‘an action accrues on the date of injury.’ [Citation.]” (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 743.) “Thus, where performance of contractual obligations is severed into intervals, as in installment contracts, the courts have found that an action attacking the performance for any particular interval must be brought within the period of limitations after the particular performance was due.” (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1388.) “Where a note contains an acceleration clause, ‘the statute does not begin to run on installments not yet due until the creditor, by some affirmative act, manifests his election to declare the entire sum due.’” (Garver v. Brace (1996) 47 Cal.App.4th 995, 1000.)

On July 12, 2006, Musa applied for a private student loan from Bank of America in the principle amount of $32,624.00 (the “loan”). (UMF 1.) The loan was to be paid back in 240 consecutive monthly payments beginning December 23, 2009 and ending on November 23, 2029. (UMF 1.) The loan was disbursed to Musa in two payments of $16,312.00 on August 11, 2006 and January 5, 2007 respectively. (UMF 1.) The loan was secured and memorialized by a Note containing a California choice of law provision and a “Default and Acceleration” clause permitting the creditor to accelerate and collect on the whole debt in the event of a default. (UMFs 2-4.) Musa never made any payments on the loan. (UMF 6.)

On October 31, 2017, SLS purchased Musa’s loan from Bank of America as part of a portfolio of student loans. (UMF 7.) As part of the loan purchase agreement between Bank of America and SLS, Bank of America agreed to produce copies of the purchased executed loan applications and respective notes memorializing and securing the loans. (Booska’s Compendium of Evidence, Exh. K [Loan Purchase Agreement at p.3].) Bank of America also agreed to produce records reflecting the purchased loans account numbers, an itemization of the balances owed, the date of each borrower’s last payment, the date of first delinquency, the date of charge off, any information regarding unresolved disputes and fraud claims, any information regarding any settlements or other arrangements agreed to, information regarding collection efforts, as well as the borrower’s name, address, and social security number. (Ibid.) However, “[n]one of the documents provided by Bank of America to SLS, and in turn from SLS to Booska, with respect to Musa include any indication that Bank of America, nor any prior holder of the Note, made any earlier acceleration of the loan nor that anyone other than Bank of America was the charge-off creditor.” (UMF 15.)

On July 10, 2019, Booska – on behalf of SLS – sent Musa a demand letter purporting to accelerate the entirety of the Note and demanding all payments due under the Note. (Booska’s Compendium of Evidence, Exh. D [Acceleration and Demand Letter].) Because the first 73 scheduled payments under the Note were no longer collectible under California’s four-year statute of limitations, Booska – on behalf of SLS –demanded payment of only $22,700.31 – the principle for the remaining 167 payments. (Booska’s Compendium of Evidence, Exh. G [Complaint]; Exh. D [Acceleration and Demand Letter], Exh. N [Amortization Report for Principal Plus Origination Fees related to Musa’s loan].)

As the loans on which Booska sent a demand letter to collect – on behalf of SLS – are premised on a written loan and note memorializing the loan, any claim to enforce said loans would be subject to a four-year statute of limitations. (CCP § 337(a).) Moreover, because Musa’s repayment of the loan was set in intervals – i.e., consecutive monthly payments starting December 23, 2009 and ending on November 23, 2029 – the four-year statute of limitations would run separately for each repayment interval. (Armstrong Petroleum Corp., supra, 116 Cal.App.4th at p.1388.)[2] Thus, the statute of limitations for the last payment of the loan would not run until November 24, 2033 – i.e., four years after the last payment is due – unless repayments for loan were accelerated under the Default and Acceleration clause at which point the statute of limitations would begin to run from the date of acceleration. (Garver, supra, 47 Cal.App.4th at p.1000.)

Under the Loan Sale Agreement between Bank of America and SLS, Bank of America was required to produce records in conjunction with the loan purchase agreement that should have shown whether Musa’s loan had been accelerated prior to SLS’s purchase of Musa’s loan – e.g., records showing collection attempts by Bank of America. It is undisputed that Bank of America never produced any records showing that Musa’s loan had been accelerated. Thus, Booska relies heavily on the absence of any records showing acceleration of Musa’s loan prior to Booska’s demand letter accelerating only the remaining 167 payments remaining or due after the July 10, 2019 demand letter. However, the only evidence Booska presents as to Bank of America’s production of record to SLS is cursory at best – merely Chris Ruh’s declaration that “[a]s part of this purchase from Bank of America, SLS received certain standard documents from Bank of America, including the Agreement, Note Disclosure Statement, electronically-signed Loan Request, and the payment history (of disbursements to Mr. Musa).” (Booska’s Compendium of Evidence, Exh. T [Ruh Decl. ¶ 7].) Notably, Ruh fails to describe how and when Bank of America produced its records to SLS, which is crucial in evaluating whether the manner of production shows completeness as a matter of law. Further, there is no evidence that SLS – or Booska – undertook any efforts at all to confirm the thoroughness or completeness of Bank of America’s production of loan documents.

Accordingly, it is unclear whether Booska meets his moving burden as to whether Booska’s attempts to collect any amount of Musa’s loan is barred by the statute of limitations.

In any event, even if Booska meets his moving burden, and even if the burden shifts to Musa, a triable issue of fact exists as to whether the statute of limitations to collect on Musa’s loan had run prior to Booska’s attempt to collect on Musa’s loan with the July 10, 2019 demand letter.

Musa declares that “[d]uring the time period between 2010 and October 31, 2017, [Musa] received collection letters from debt collectors seeking full payment of $39,408.00 – the alleged final charged-off balance owed on the private student loan obligation alleged to be originally owed to Bank of America, N.A.” (Musa Decl. ¶ 7.) These collection letters demanded that the entire loan “be paid in full immediately.” (Musa Decl. ¶ 6.) However, due to the extended passage of time, Musa claims that he no longer has any of these collection letters. (Musa Decl. ¶ 7.)

Further bolstering Musa’s declaration, Jerry Winkler – the person most qualified for third-party debt collector Sunrise Credit Service – testified in his deposition that Musa’s loan account was assigned to Sunrise Credit Service for collection of the total amount of the loan as of October 13, 2012. (Simons Decl. ¶ 3, Exh. A [Winkler Depo. at pp. 33:7-11, 33:15-17, 34:17 to 35:1, 37:2-15, 45:19-25, 55:5-7, 55:11-25].)

Musa’s evidence, including Musa’s declaration asserting that he received collection letters demanding full payment of the loan as early as 2010 and the deposition testimony of Jerry Winkler attesting to the fact that third-party debt collector Sunrise Credit Service had been assigned to collect the total amount of the loan from Musa as of October 13, 2012, is sufficient to raise a triable issue of fact as to whether Musa’s loan had been accelerated as of at least October 13, 2012 – if not earlier. Consequently, there is a triable issue of fact as to whether the statute of limitations had run on the entirety of Musa’s loan prior to Booska’s attempt to collect on the loan with the July 10, 2019 demand letter on behalf of SLS. (See e.g., Veera v. Banana Republic, LLC (2016) 6 Cal.App.5th 907, 922 [“ ‘[T]he sole declaration of a party opposing a summary judgment motion which raises a triable issue of fact is sufficient to deny that motion.’ ”].) A reasonable jury could conclude that Musa’s loan had been accelerated by no later than October 13, 2012, and thus, that Booska’s claims to collect on Musa’s loans are barred by the statute of limitations.

In reply, Booska claims that Musa’s opposition attempts to improperly deviate from issues raised by the pleadings.

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) On a motion for summary judgment, or adjudication, a defendant need only “negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493 [bold added].)

Here, Musa alleged on information and belief that the loan was “transferred to The National Collegiate Funding, LLC (a subsidiary of The First Marblehead Corp.), guaranteed by The Education Resources Institute, Inc. (‘TERI’)(another subsidiary of The First Marblehead Corp.), packaged into an asset-based investment security, and sold to Wall Street investors. TERI subsequently filed for bankruptcy protection on April 7, 2008.” (Cross-Complaint ¶ 15.) The Cross-Complaint further alleges that on August 11, 2006, the “debt was thereafter sold, assigned, or otherwise transferred to NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3.” (Id. ¶ 16.) “[O]n or about July 1, 2010, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, accelerated the alleged debt, removed the alleged debt from its books as an asset, and thereafter treated the alleged debt as a loss or expense.” (Id. ¶ 18.) “[O]n or about July 2, 2014, the four year statute of limitations expired on the alleged debt, pursuant to California Code of Civil Procedure § 337.” (Id. ¶ 19.)

Based on these allegations, Booska claims that Musa’s opposition improperly deviates from the Cross-Complaint because “Musa's opposition… is [instead] based on the theory that Bank of America ( or Sunrise Credit Services, … accelerated Musa’s debt by demanding the charge-off amount.” (Reply at p.4:6-7.) Booska’s contention is unavailing. A plaintiff cannot change the theory of liability in the opposition to a summary judgment motion. (See e.g., Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1254 [“The [Defendants], accordingly, had the burden on summary judgment of negating only those ‘ “theories of liability as alleged in the complaint ” ’ and were not obliged to ‘ “ ‘ “refute liability on some theoretical possibility not included in the pleadings,” ' ” ’ simply because such a claim was raised in plaintiff's declaration in opposition to the motion for summary judgment.”] [bold and underline added].)

Here, Musa’s opposition does not change the theory of liability alleged in the Cross-Complaint – i.e., that any attempts to collect on Musa’s loan are barred by the statute of limitations because the loan had been accelerated more than four years before Booska attempted to collect on the debt through the July 10, 2019 demand letter. (Cross-Complaint ¶ 19 [“[O]n or about July 2, 2014, the four year statute of limitations expired on the alleged debt, pursuant to California Code of Civil Procedure § 337.”].) Booska fails to cite any authority holding that an opposition to a summary judgment motion cannot deviate from the specific factual allegations in a complaint even if the theory of liability is the same.

Accordingly, Booska’s motion for summary judgment or in the alternative summary adjudication on the grounds that the statute of limitations had not run prior to Booska’s attempt to collect on Musa’s loan is DENIED.

Booska contends that he is entitled to summary judgment on the claims against him in the Cross-Complaint under the “bona fide error” affirmative defense.

Under the bona fide error defense, “a debt collector is not liable for its violations of the FDCPA if ‘the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.’ 15 U.S.C. § 1692k(c)” (Clark v. Capital Credit & Collection Services, Inc. (9th Cir. 2006) 460 F.3d 1162, 1176–1177.) “The ‘bona fide error’ defense is an ‘affirmative defense’ and ‘narrow exception to strict liability under the FDCPA,’ for which defendants bear the burden of proof on summary judgment.” (Warner v. Midland Credit Management, Inc. (C.D. Cal. 2021) 540 F.Supp.3d 946, 967.) “The bona fide error defense requires a showing that the debt collector: (1) violated the FDCPA unintentionally; (2) the violation resulted from a bona fide error; and (3) the debt collector maintained procedures reasonably adapted to avoid the violation.” (Urbina v. National Business Factors Inc. (9th Cir. 2020) 979 F.3d 758, 763.)

The Rosenthal Act similarly provide for a bona fide error defense. (Civ. Code, § 1788.30, [“A debt collector shall have no civil liability to which such debt collector might otherwise be subject for a violation of [the Rosenthal Act], if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation.”].)

In support of Booska’s motion for summary judgment or in the alternative summary adjudication, Chris Ruh – the General Manager of SLS – states that “SLS maintains invariable policies and procedures to ensure that it does not attempt to collect any installment that is barred by the applicable statute of limitations. This includes, among other things, reviewing the documents provided by Bank of America to determine how many installments are due, when they are due, how much they are for (separating interest from principal), analyzing whether any payments have been made (including the amounts paid and the date(s) any payments were made), SLS’s expected acceleration notice date, SLS’s expected complaint filing date, and other information related to the underlying loan.” (Booska’s Compendium of Evidence, Exh. T [Ruh Decl. ¶ 7].)

Booska states that “[i]n the context of collecting monthly installment loans, it is [his] invariable practice, for the purpose of avoiding collecting on time-barred installments, to calculate back from the date upon which [he] plan[s] on filing the collection lawsuit to determine the number of installments that are collectible following the acceleration of the debt. [Booska] do[es] this to ascertain the number of monthly installments are within California's four-year statute of limitations as of the date of the complaint where applicable, multiplying it by the balance owed on each installment. [Booska] scrupulously avoid collecting on any amount in excess of that total amount of in-statute, accelerated installments. If there is any doubt, [Booska] give the benefit to the debtor.” (Booska Decl. ¶ 6.) Booska followed this process in calculating Musa’s outstanding loan before commencing any collection activity. (Booska Decl. ¶ 6.)

Booska’s evidence is insufficient to shift the burden. The Court cannot conclude – based on Booska’s evidence – that Booska’s policies were reasonable as a matter of law. Other than reviewing documents provided to him by SLS, Booska fails to set forth any policy to ensure that the debt has not been accelerated. For example, Booska fails to set forth any policy for seeking information on loan accelerations that may have occurred, confirming the completeness of records produced by Bank of America, contacting third-party debt collectors such as Sunrise Credit Service for information on prior attempts to collect on the debt (including the amounts demanded in such prior attempts – whether the prior demand letters sought the full accelerated amount of the loan), addressing when critical documents may be missing, or otherwise ensuring that Booska does not attempt to collect debts barred by the statute of limitations. At most, Booska shows that his policy relies on an assumption that Bank of America provided complete and accurate documentation, and based on this assumption, Booska then calculates the debt as if it is an installment contract that has not been accelerated. (Booska Decl. ¶ 6.) Absent further explanation of Booska’s policy and said reasoning for his policy, the Court cannot presume that his policy is reasonable as a matter of law.

Further, Booska fails to identify any evidence in the separate statement showing that the alleged violations of the FDCPA and the Rosenthal Act were unintentional or that Booska’s attempt to collect on the loan from Musa was a bona fide error – i.e., the first and second elements of the bona fide error defense. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, Fn. 4, [“ ‘[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’ ”].) Similarly, Booska’s memorandum fails to cite any evidence demonstrating that the alleged violations of the FDCPA and the Rosenthal Act were unintentional or that SLS’s attempt to collect on the loan from Musa was a bona fide error. (See Cal. Rules of Court, Rule 3.1113(b).)^{^[3]}

Accordingly, Booska’s motion for summary judgment or in the alternative summary adjudication of the Cross-Complaint based on the bona fide error defense is DENIED.

Based on the foregoing, Cross-Defendant Steven Booska’s motion for summary judgment or in the alternative summary adjudication is DENIED.

Cross-Defendant Steven Booska is ordered to download the instant signed order from the Court's website and to file proof of service of the instant order on all other parties within five (5) days.

[1] As Booska notes in his Request for Judicial Notice, the first cause of action does not name Booska and is not alleged against him. (RJN No. 4.) Booska is only named in the second and third causes of action.

[2] In opposition, Musa asserts that Booska must show that the loan was an installment contract for each repayment period to each have a separate statute of limitations. (See e.g., White v. Moriarty (1993) 15 Cal.App.4th 1290, 1299 [“When an instrument is payable in installments, the cause of action on each installment accrues on the day following the date the installment is due.”].) Musa is mistaken because any contract where performance is split into intervals – like instalment contracts – is subject to separate statute of limitations for each interval of non-performance. (Armstrong Petroleum Corp., supra, 116 Cal.App.4th at p.1388 [“[W]here performance of contractual obligations is severed into intervals, as in installment contracts, the courts have found that an action attacking the performance for any particular interval must be brought within the period of limitations after the particular performance was due.”].) Thus, it is unnecessary for Booska to allege or prove that the loan was necessarily an installment contract.

[3] California Rules of Court, rule 3.1113(b) provides that “[t]he memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” The Court has “no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [where appellant's motion was supported by deficient memorandum, trial court was justified in denying the motion on procedural grounds].)