Henry v. Consumer Portfolio Services

Filed 4/10/07 Henry v. Consumer Portfolio Services CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed.

Plaintiff Jeremy Henry appeals from an order denying his motion for class certification to litigate claims against defendants Consumer Portfolio Services (CPS), The Finance Company, Inc. (TFC), and TFC president and director Ronald G. Tray. Henry's operative complaint alleged causes of action against defendants for violations of the Automobile Sales Finance Act (AFSA, also known as the Rees-Levering Act) (Civ. Code, 2981, et seq.); California Uniform Commercial Code (CUCC)^[1]section 9601 and its predecessor statute (CUCC,  9-504); Unfair Competition Law (UCL) (Bus. & Prof. Code, 17200, et seq.); Fair Debt Collection Practices Act (FDCPA) (15 U.S.C.

1692, et seq.); and declaratory relief stemming from allegations that TFC, which had repossessed Henry's vehicle, sent Henry a defective post-repossession notice and along with CPS demanded deficiency monies without any legal right to do so under the AFSA and the CUCC.

On appeal, Henry contends the court erred in denying class certification because (1) he is an adequate class representative; (2) his claims are typical of the claims alleged on behalf of his proposed class; (3) individual issues do not predominate as to tolling of the various statutes of limitation and CUCC claims; (4) a nationwide class is manageable; and (5) his FDCPA claim does not fail as a matter of law. We affirm.

PROCEDURAL BACKGROUND

We set out the procedural history relevant to the issues on appeal.^[2] Following repossession of his vehicle, Henry, an active enlisted person in the Navy, filed a putative class action complaint against CPS asserting that CPS operated a division, TFC, which provided automobile financing to consumers who were United States military personnel and purchased or received assignments of conditional sales contracts provided to military service members. Henry alleged TFC repossessed Henry's vehicle while he was deployed, and thereafter sent him a standardized "Notification of Reinstatement and Redemption Rights" (the post-repossession notice) that was backdated by five calendar days.^[3]In part, Henry alleged that by backdating the post-repossession notice, TFC expedited the date by which it would dispose of his vehicle and cut short his right to reinstate, redeem and extend the payment due dates under the AFSA. Henry set forth causes of action for violations of the AFSA, CUCC, and UCL against CPS, alleging that the post-repossession notice failed to contain certain mandated disclosures and information, that the violations precluded his liability for any deficiency following repossession and disposition of his vehicle, and that by virtue of the post-repossession notice and its attempt to collect deficiency monies from consumer debtors such as Henry, CPS had engaged in unlawful, unfair and fraudulent business acts and practices. Henry also sought a judicial declaration as to CPS's violations of the AFSA and CUCC.

In April 2005, Henry unsuccessfully moved for class certification of his claims.^[4] Thereafter, Henry filed a second amended class action complaint adding TFC as a defendant as well as a cause of action against CPS for violation of the FDCPA.^[5] In the second amended class action complaint, Henry sought to sue on behalf of all persons who, between July 20, 1996, and the date of trial, entered into a motor vehicle conditional sales contract for personal, family or household purposes that was subsequently assigned to CPS or TFC and were issued a post-repossession notice by CPS, TFC or any controlled subsidiary, agent or affiliate that did not comply with the notice requirements of Civil Code sections 2983.2, subdivisions (a)(3) and (a)(6) of the AFSA or the requirements of CUCC section 9614, subdivision (1)(A) or former CUCC section 9-504(3) (operative until July 1, 2001) and were assessed a deficiency balance following the disposition of the vehicle. Henry alleged: "For the period from July 20, 1996, to July 19, 2000, the Class only comprises members who were in the active military . . . ." Henry added allegations that the post-repossession notice failed to satisfy disclosure requirements because it "purports to be a notice of both public and private sale," and that CPS's demands and attempts to demand payment in deficiency monies were per se unlawful because it had no legal right to such monies under the AFSA and CUCC. In his UCL cause of action, Henry sought an injunction on allegations on information and belief that defendants "reported deficiency balances to credit reporting agencies for outstanding debts owed for plaintiff and Class members who were not liable for such outstanding debts as a matter of law." In the fourth cause of action, Henry alleged CPS violated the FDCPA by using false, deceptive or misleading representations or means in collecting an alleged debt; falsely representing the character, amount, and/or legal status of a debt; threatening to take actions that it did not intend to take; using unfair or unconscionable means to attempt to collect an alleged debt by attempting to collect amounts not permitted by law; and failing to provide a notice of debt.

Based in part on the filing of the second amended complaint, the court granted reconsideration, vacated its class certification order, and ordered further briefing on the propriety of class certification, including Henry's adequacy as a class representative. Henry filed a "supplemental" motion for class certification in which he summarized the law assertedly relevant to his claims and addressed the requirements for class certification. He argued a creditor's failure to strictly comply with post-repossession notice requirements in a consumer transaction was an absolute bar to any deficiency under Union Safe Deposit Bank v. Floyd (1999) 76 Cal.App.4th 25, 31; the strict compliance rule applied to consumer loan transactions; and the rule applied in both California and Virginia. As for the merits of class certification, Henry argued: (1) he was an adequate class representative because he was without any conflict of interest and had retained qualified and experienced class counsel; (2) there was a common issue, namely "whether the preprinted [n]otice, sent to all class members, violated the law and whether [d]efendants may be enjoined from collecting deficiencies from class members and ordered to disgorge monies collected"; (3) his claim was typical of the class because he pleaded that noncompliance with required disclosure prohibits a secured creditor from demanding or collecting deficiency monies, and therefore he was only required to prove defendants' post-repossession notice failed to comply with the law; (4) various factual issues raised by the defendants including the consequences of his active military service were legally irrelevant to his claims; and (5) a nationwide class was manageable, i.e., application of the laws of different states would not occur, because all persons who received the post-repossession notice in California would be protected by California law, and Virginia law, which was identical to California law, applied to each class member because the notices were sent by TFC from Virginia. Henry asked the court to take judicial notice of various orders in other superior court actions involving claims of deficient post-repossession notices and improper assessment of deficiency balances "as a matter of decisional law and public record." In the supplemental motion, Henry pointed out that he sought leave to file a fourth amended class action complaint including claims made under Virginia law in addition to California law.

The court again denied class certification. It ruled Henry had not adequately demonstrated that a nationwide class was manageable given differing state Uniform Commercial Codes and motor vehicle finance laws. It ruled individualized questions of law and fact predominated on the causes of action under the AFSA, UCC, and UCL: for all of those causes of action, the trial court concluded individual issues existed on tolling of the various statutes of limitation (one year for the AFSA and UCC claims, and four years for the UCC claim) in that "[e]ach member of a purported class would be required to show why the limitations period should be lengthened for up to eight years." The AFSA claim further required individualized proof of "an alleged 'backdating' scheme." Individual proof predominated the UCC claims since the act differed from state to state. The UCL cause of action would require individualized proof for members alleging a violation due to collection efforts against them and information communicated to credit bureaus. The court further ruled Henry's FDCPA claim against CPS failed as a matter of law under the "in house" exemption of 15 U.S.C. section 1962a(6)(B), precluding class certification as to that claim. Finally, the court ruled Henry did not have claims typical of the class because he was not entitled to receive statutory post-repossession notice where his car was seized by governmental authorities; his claims arose before a 2001 revision to the CUCC, making his claims different from many in the purported class; and his military status would make it difficult for him to fulfill the duties of a class representative.

Henry timely filed the present appeal.

DISCUSSION

I. Standard of Review

"Code of Civil Procedure section 382 authorizes class actions 'when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. . . .' The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citations.] The 'community of interest' requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.]
"The certification question is 'essentially a procedural one that does not ask whether an action is legally or factually meritorious.' [Citation.] A trial court ruling on a certification motion determines 'whether . . . the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.' . . . .
"We review the trial court's ruling for abuse of discretion. 'Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. . . . [Accordingly,] a trial court ruling supported by substantial evidence generally will not be disturbed "unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]" [citation]. . . . "Any valid pertinent reason stated will be sufficient to uphold the order." ' " (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327.)

Because the focus in a certification dispute is not on the merits of the case but rather on whether common or individual questions are likely to arise in the action, in determining whether there is substantial evidence to support a trial court's certification order we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. (Sav-on Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 328.) " 'Reviewing courts consistently look to the allegations of the complaint and the declarations of attorneys representing the plaintiff class to resolve this question.' " (Id. at p. 327.) Despite these principles, there are instances where a merits analysis is appropriate: "[W]hen the merits of the claim are enmeshed with class action requirements, the trial court must consider evidence bearing on the factual elements necessary to determine whether to certify the class." (Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 357.)

II. Manageability of Nationwide Class

The trial court concluded Henry's proposed nationwide class was not manageable given varying state uniform commercial laws and differing motor vehicle finance laws. It found Henry had not met his burden under Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906 (Washington Mutual)to "credibly demonstrate, through a thorough analysis of the applicable state laws, that state law variations will not swamp common issues and defeat predominance." (Id at p. 926.)

Rather than explain why the trial court incorrectly concluded that he failed to meet this burden or why the Washington Mutual burden does not fall upon him, Henry reasserts his contentions made below attacking the implicit underlying premise of the trial court's order: that varying state laws apply. He argues that a class limited to California consumers would be manageable because persons who received a notice in California are protected by California law, and that Virginia law (which he asserts is identical to California law) would apply to all class members because the notice was sent from TFC in Virginia. Henry further argues we have the discretion to judicially notice the analyses contained in other trial court rulings in similar post-repossession notice class action cases in which the courts assertedly found a manageable class. In his reply brief, Henry asserts we should reject CPS's arguments concerning manageability because CPS stipulated to class action certification in "the same type of lawsuit" pending in the Riverside Superior Court, and he asks that we judicially notice motions for preliminary and final approval of the class settlement and final certification of a settlement class.

We deny Henry's requests for judicial notice. Henry does not attempt to argue that the unpublished trial court orders and decisions have any res judicata, collateral estoppel, or law-of-the case effect on this appeal. (See Cal. Rules of Court, rule 8.1115(b).) He only states they involve "identical issues" and thus offer "relevant guidance here since no precedential decisions exist yet over a dozen trial courts throughout Northern and Southern California have uniformly decided deficiency matters with consistently pro-consumer, strict liability outcomes." Henry relies on In re Luke L. (1996) 44 Cal.App.4th 670, Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254, fn. 2, and People v. McDaniels (1994) 21 Cal.App.4th 1560, 1566, fn. 2, the latter two standing for the proposition that analysis from unpublished opinions may properly be considered.^[6] To the extent Cynthia D. and People v. McDaniels state such a proposition, they involve appellate court decisions, not superior court orders, and they do not persuade us to grant Henry's request for judicial notice. Further, we disagree the cases that are the subject of Henry's request involve identical issues: only one of the orders addresses class certification and involves a class of persons who received deficient post-repossession notices while in California; another order (a statement of decision) likewise involves coordinated class actions consisting of persons who were issued a post-repossession notice to an address in California; and the other two orders (in different cases) grant summary adjudication of a declaratory relief cause of action, and say nothing about the propriety of a nationwide class. Henry has not demonstrated the relevance of these orders sufficient to convince us they are properly the subject of judicial notice on the issues presented here as to the viability of a nationwide class. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)
With respect to Henry's request for judicial notice of motions for final approval of the settlement class in the Riverside County action, the same principals apply and the same deficiencies appear. CPS's decision to stipulate to class treatment for purposes of settlement in an entirely unrelated matter (as to which Henry does not describe the nature of the case or the class other than to say it is a "Notice case[]") is not a general concession of the propriety of class certification in any other matter. Henry has not demonstrated otherwise with any meaningful argument or authority.

Turning to the trial court's ruling concerning Henry's failure to meet his burden to show manageability of a multi-state class action under varying state laws under Washington Mutual, supra, 24 Cal.4th 906, Henry has not shown an abuse of discretion. In J.P. Morgan & Co., Inc. v. Superior Court (2003) 113 Cal.App.4th 195 (J.P. Morgan), we addressed the class action proponent's burdens set forth in Washington Mutual, which arise "[w]here . . . an issue is raised regarding conflict of laws due to the presence of putative class members from different states of residency." (J.P. Morgan, supra, 113 Cal.App.4th at p. 210.) Under Washington Mutual,"a three-step governmental interest analysis must be applied to address conflict of laws claims and to ascertain the most appropriate law applicable to the issues. This requires the foreign law proponent (1) to make a showing identifying the applicable rule of law in each potentially concerned state and how it materially differs from the law of California; (2) if the applicable laws differ, to make a showing what interest, if any, each state has in having its own law applied to the case; (3) assuming that these laws are materially different and that each state has an interest in having its own law applied, such that there is an actual conflict of laws, the proponent must then make a showing on why the court should select the law of one state, e.g., because its interests would be 'more impaired' if its law were not applied. [Citation.] At all times, the class action proponent will bear the burden of establishing the propriety of class certification, by demonstrating the predominance of common issues of law and fact, and manageability of the proposed class. [Citation.] [] Also in Washington Mutual, supra, 24 Cal.4th 906 . . . the Supreme Court further explained the burden that the class action proponent must bear to 'demonstrate . . . that state law variations will not swamp common issues and defeat predominance.' [Citation.] A thorough analysis of all the applicable state laws is required, so that the trial court may 'make a detailed assessment of how any state law differences could be managed fairly and efficiently at trial, for example, through the creation of a manageable number of subclasses.' [Citation.] Nationwide class actions should be certified only where they will result in substantial benefits both to the litigants and the courts." (J.P. Morgan, supra, 113 Cal.App.4th at p.219.)

Under Washington Mutual, where the trial court determines that class claims will `1 require adjudication under the laws of multiple states, it must then decide whether sufficient variations exist to make class action unmanageable due to lack of common questions and issues. (Washington Mutual, supra, 24 Cal.4th at p. 922.) When the case reaches this point, California law places the burden on the class action proponent of demonstrating "predominance and manageability." (Ibid.) On this point, the Washington Mutual court surveyed federal law, concluding it requires " 'extensive analysis' of state law variances" as well as "a detailed assessment of how the difficulties posed by the variations in state law will be managed at trial." (Id. at p. 923.) "For example, certification may be appropriate if the class action proponent shows that state law variations can be effectively managed through the creation of a small number of subclasses grouping the states that have similar legal doctrines." (Ibid.) Alternatively, "so long as the requisite significant contacts to California exist, a showing that is properly borne by the class action proponent, California may constitutionally require the other side to shoulder the burden of demonstrating that foreign law, rather than California law, should apply to class claims." (Id. at p. 921.) The court in Washington Mutual found the federal decisions "stress that a district court considering certification of a nationwide class cannot simply rely on counsel's assurances of manageability. [Citations.] Put another way, the court cannot accept 'on faith' an assertion that variations in state laws relevant to the case do not exist or are insignificant; rather, the party seeking certification must affirmatively demonstrate the accuracy of the assertion." (Washington Mutual, supra, 24 Cal.4th at p. 924.)

In opposing Henry's motion for class certification, the defendants argued the Uniform Commercial Code (UCC) of each state applied, that each state's UCC had its own nuances, and each had to be read in conjunction with the state's other applicable automobile finance laws, which could modify or supersede the UCC requirements. Defendants cited the automobile finance laws of all 50 states and summarized some of the differences, stating some but not all (1) permitted a private right of action; (2) required either pre- or post-repossession notice (with variations in the requirements for pre-repossession notice); and (3) required post-sale notice. Henry effectively conceded these propositions in the trial court; he acknowledged below that "it would be difficult to demonstrate a nationwide class is 'manageable' if a court were required to apply materially different laws of numerous other states." Rather, Henry sought to apply the law of California or the state of Virginia relating to post-repossession notice, namely Virginia Commercial Code section 8.9-A-613(1)(E), which he asserted was identical to section 9613 of the CUCC. He maintained also that California and Virginia law are identical as to the consequences when a secured party fails to give notice in strict compliance with the required disclosures, i.e., that they are both eliminate that party's right to obtain a deficiency. Henry repeats these propositions almost verbatim on appeal.

Even if we assume arguendo that California and Virginia law are identical as to required content of post-repossession notice and the legal consequence of failure to strictly comply with those requirements, we would nevertheless uphold the trial court's ruling on this point. As defendants point out, Henry's appellate arguments misunderstand the applicable review standard, which as stated requires us to afford great deference to the trial court's ruling. Applying that standard, we note Henry did not persuasively demonstrate to the trial court under Washington Mutual, supra, 24 Cal.4th 906 that the state of California, for purposes of applying California law to the nationwide class, "has a ' "significant contact or significant aggregation of contacts" ' to the claims asserted by each member of the plaintiff class, contacts "creating state interests," in order to ensure that the choice of [the forum's] law is not arbitrary or unfair.' " (Washington Mutual, at p. 921 [class action proponent bears burden of showing requisite significant contacts to California exist].)^[7]In his supplemental motion for class certification, Henry pointed out that he had alleged in his second amended complaint that TFC became a wholly-owned CPS subsidiary in March 2003, and that thereafter the functions of TFC's accounting, finance, payroll, human resources, and information technology departments were performed by CPS in its Irvine, California offices. He also alleged that all collection efforts from August 2003 emanated from CPS. However, Henry raised these matters only to establish that CPS "may be held to be the alter-ego and agent of TFC," not to show that California had significant contacts with the class members' claims to justify application of California law to the nationwide class.

Nor did Henry demonstrate that the interests of other states would not be found to outweigh California's interest in having its law applied. (Id., citing Bernard v. Harrah's Club (1976) 16 Cal.3d 313, 320 & Clothesrigger, Inc. v. GTE Corp., supra, 191 Cal.App.3d at p. 614.) Having invoked Virginia law as the applicable law, Henry was obligated to "demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it" or, stated another way, show that Virginia's interests would be " 'more impaired' " if its law were not applied. (Bernard v. Harrah's Club, at pp. 317-318; Washington Mutual, at p. 919; J.P. Morgan, supra, 113 Cal.App.4th at p. 210.) While Henry attempted to make a showing below that California and Virginia law were identical, he did not justify either state's interest in seeing its laws apply as he was required to do.

Henry's first effort to address the choice of law burdens under Washington Mutual occurs too late, in his reply brief on appeal. It is not our province, however, to decide the question de novo. Given Henry's failure to make the required showing below or otherwise challenge the trial court's conclusion concerning the Washington Mutual burdens in his opening brief on appeal, we conclude he has not demonstrated its ruling as to manageability of the class was an abuse of discretion.

III. Individual Questions of Fact and Law Predominate

In his second amended class action complaint, Henry alleged that common questions of law and fact existed among the class members, including: (1) "Whether CPS and TFC provided post-repossession notices to individuals whose motor vehicles were repossessed which contained disclosures required by the [ASFA]; and [CUCC section] 9614(1)(A), or former Section 9-504(3) (operative until January 1, 2001)"; (2) "Whether CPS and/or TFC assessed, attempted to collect and/or collected deficiency balances from members of the proposed Class that it had no legal right to demand or collect, and for which Class members were not liable as a matter of law"; and (3) "Whether CPS and/or TFC reported derogatory information to credit reporting agencies for outstanding debts owed to CPS and/or TFC for Class members who were not liable for outstanding debts as a matter of law." The trial court reached a different conclusion, and again, Henry has not shown its ruling was an abuse of discretion.

" ' [A] class action cannot be maintained where each member's right to recover depends on facts peculiar to his case. . . . The rule exists because the community of interest requirement is not satisfied if every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the 'class judgment' determining issues common to the purported class. [Citation.]' [Citation.] 'Only in an extraordinary situation would a class action be justified where, subsequent to the class judgment, the members would be required to individually prove not only damages but also liability.' " (Frieman v. San Rafael Rock Quarry, Inc. (2004) 116 Cal.App.4th 29, 40, quoting City of San Jose (1974) 12 Cal.3d 447, 459, 463.) " '[W]here, after the common questions have been determined, each class claimant would still have to litigate a number of substantial questions peculiar to himself in order to recover, there does not exist a necessary community of interest and there is no assurance the class representative would indeed be representative. A class action is therefore improper.' " (Frieman, at p. 40, quoting Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1281; see also Washington Mutual, supra, 24 Cal.4th at pp. 913-914; In re Cipro Cases I and II (2004) 121 Cal.App.4th 402, 410 [" 'The ultimate question in every case of this type is whether . . . the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants"; trial court must " 'carefully weigh respective benefits and burdens and . . . allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts' "].)
A. UCL

" '[A] trial court may certify a UCL claim as a class action when the statutory requirements of section 382 of the Code of Civil Procedure are met.' [Citation.] That authority is now explicit in the amended statute, which authorizes the pursuit of 'representative claims or relief on behalf of others' provided that the claimant 'complies with Section 382 of the Code of Civil Procedure . . . . ' " (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1015.) Here, the trial court ruled Henry could not meet those requirements because each class member, in order to prevail on their UCL claim, would have to present their own proof as to CPS's collection efforts against them and the information communicated to credit bureaus for their outstanding debts. Henry does not challenge the court's ruling on this ground on appeal, and we agree such proof would require a case-by-case factual evaluation as to each absent class member. Accordingly, we conclude the court did not abuse its discretion in ruling individual questions predominated preventing maintenance of the UCL claim as a class action.

B. Backdating for Purposes of AFSA claim

Nor does Henry challenge the court's conclusion that for purposes of proving a viable claim under the AFSA, each class member would have to prove they were subject to a "backdating scheme," i.e., make a make a case-by-case showing that their post-repossession notice was dated in some manner as to shorten the required notice period. Henry's contention that all class members received the same form notice (made in connection with his arguments as to typicality) does not contradict the trial court's conclusion, where at issue in his cause of action under the ASFA is not merely the content of the notice but defendants' failure to provide timely notice. In the absence of any showing that the court's conclusion was based on improper criteria or an erroneous legal assumption, we uphold this aspect of the trial court's order.

C. UCC Claim

The trial court concluded that individual proof would predominate on class claims under the UCC given the differences in the UCC as adopted from state to state. As defendants point out, Henry does not challenge that proposition. Rather, focusing on the merits and analyzing only California law, he maintains that an amendment to the relevant CUCC provision effective as of July 2001 does not give rise to predominant individual issues. As Henry puts it, "At issue . . . is whether a 2001 amendment to the [CUCC] cured TFC's legally inadequate notice." Henry argues TFC's notice violates the CUCC whether one applies the law pre- or post-July 2001.

Setting aside Henry's failure to address the trial court's actual ruling on this point, there are several flaws in Henry's argument. First, he presumes only California law will apply to the claims of the class. The trial court rejected this claim, and we have upheld its decision in section II, ante. Second, the pertinent question for purposes of his class certification motion is not a determination of the merits, i.e. whether TFC's post-repossession notice complies with the applicable law, but whether in proving a cause of action and establishing a right to recover based on these facts, the absent class members would have to resort to litigating numerous and substantial individual questions.

Henry's focus on pre- and post-1991 California law on this issue simply does not rebut or otherwise demonstrate error in the trial court's conclusion supporting its denial of class certification: that individual proof would predominate the UCC claims given the differences in the UCC from state to state. We therefore affirm that portion of the trial court's order.

IV. FDCPA Cause of Action

As stated, in denying class certification, the trial court concluded Henry's claim against CPS under the FDCPA failed as a matter of law under the so-called "in house" exemption of 15 United States Code section 1962a(6)(B). Challenging that ruling, Henry contends there is a genuine issue of material fact preventing dismissal of his FDCPA cause of action, as evidenced by the trial court's ruling denying defendants' joint summary judgment motion. Henry asserts "the documents and deposition testimony presented to the trial court established that there is a genuine issue of material fact of whether CPS is liable as a principle or agent [of TFC], and the trial court held that a genuine issue of material fact precludes resolution of the FDCPA claims." He asks us to vacate that portion of the trial court's class certification order and remand the matter for consideration of whether certification is appropriate on his FDCPA claim.

The record shows that the order to which Henry refers is a tentative ruling providing only that "[a] material issue of fact exists whether or not, and in what amounts [Henry] may have been damaged by [defendants'] sale of [Henry's] vehicle following what is alleged to be faulty notice under the Rees-Levering Act, alleged failure to comply with the Uniform Commercial Code, Business and Professions Code section 17200, and Fair Debt Collection Practices Act." Henry does not provide authority for the proposition that this non-final order has any res judicata or collateral estoppel effect on the court's class certification ruling, nor does he provide any other authority demonstrating that such an order would compel us to reverse the trial court's ruling. Thus, we decline to consider the assertion. (Trinkle v. California State Lottery (2003) 105 Cal.App.4th 1401, 1413 ["unless a party's brief contains a legal argument with citation of authorities on the point made, the court may treat it as waived and pass on it without consideration"]; People v. Stanley (1995) 10 Cal.4th 764, 793; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,

594, p. 627.)

Further, Henry has not shown error in the court's ruling on the merits of the FDCPA cause of action. The FDCPA was enacted "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." (15 U.S.C.

1692(e).) The Act applies principally to "debt collectors," and defines that term as "any person who uses any instrumentality of interstate commerce or the mails in any business, the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." (15 U.S.C. 1692a(6).) The FDCPA expressly excludes from that definition, however, "[a]ny person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts. . . ." (15 U.S.C.  1692a(6)(B); Pavone v. Citicorp Credit Services, Inc. (S.D. Cal. 1997) 60 F.Supp.2d 1040, 1046 (Pavone).) Pavone explains that "Congress considered that creditors themselves 'generally are restrained by the desire to protect their good will when collecting past due accounts,' while 'independent collectors are likely to have no future contact with the consumer and often are unconcerned with the consumer's opinion of them.' " (Id. at pp. 1046-1047, quoting S. Rep. No. 95-382, 95th Cong., 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1696.)

Henry does not challenge the implicit factual premise of the court's ruling: that CPS and TFC are "related by common ownership or affiliated by corporate control," nor does he challenge any other implicit factual basis for the court's conclusion that CPS's debt collection efforts are exempt under the aforementioned provisions of the FDCPA. (See Pavone, supra, 60 F.Supp.2d at p. 1047 [Citicorp Credit Services Inc. presented evidence demonstrating that it was affiliated by corporate control with the actual creditor, Citibank; it did not collect debts for unaffiliated entities; and its principal business was not the collection of debts].) Rather, relying on Hulse v. Ocwen Federal Bank (D. Or. 2002) 195 F.Supp.2d 1188 and Perry v. Stewart Title (5th Cir. 1985) 756 F.2d 1197 (modified on other grounds in Perry v. Stewart Title (5th Cir. 1985) 761 F.2d 237), he argues the in house exception applies only to "originating" creditors; it does not apply to a debt buyer who subsequently purchases or is assigned an already delinquent loan. He appears to argue CPS is such a debt buyer because "the facts suggest" CPS purchased and serviced all TFC accounts, and TFC management decisions emanate from CPS's Irvine, California headquarters. He cites to the allegations of his second amended complaint, as well as the declaration of his counsel and deposition testimony by CPS's comptroller submitted in opposition to defendant's motion for summary judgment.
The threshold flaw with Henry's argument is that it was not made to the trial court below. In response to defendants' argument in opposition to class certification that Henry's FDCPA cause of action failed as a matter of law under the in-house exception in view of Henry's pursuit of an alter ego theory, Henry asserted only he was "entitled to plead alternative theories of relief." Given the factual underpinnings of the originating creditor theory, we are not inclined to consider it for the first time on appeal. (See Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468 [theory of the trial principle that a party is not permitted to adopt new and different theories on appeal applies to motions]; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 [same], disagreed with on other grounds in San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879.)

On the merits, Henry's argument lacks any persuasive authority. The originator exception to which he refers is a separate exclusion within the FDCPA, excluding from the definition of debt collector "any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was originated by such person; . . ." (15 U.S.C. 1692a(6)(F)(ii); Buckman v. American Bankers Ins. Co. of Florida (11th Cir. 1997) 115 F.3d 892, 895; Perry v. Stewart Title Co., supra, 756 F.2d at p. 1208; Hulse v. Ocwen Federal Bank, supra, 195 F.Supp.2d at p. 1202.) Contrary to Henry's assertion, neither Hulse nor Perry addresses the separate in-house exception or the interaction between these two independent exceptions within the FDCPA. Nor do they purport to hold that a non-originating entity cannot fall within the in-house exception, if the criteria for the in-house exception otherwise applies.

Our resolution of Henry's contentions as to manageability, the predominance of individual questions of law and fact, and the merits of his FDCPA claim renders it unnecessary to address his remaining contentions.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

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^[1] We refer to this state's Commercial Code as the California Uniform Commercial Code or CUCC in order to distinguish between our Commercial Code and the Uniform Commercial Code. (Bank of America v. Lallana (1998) 19 Cal.4th 203, 206, fn. 1.)

^[2] As the initial complaint does not appear in the record, we take Henry's allegations from his first amended class action complaint, as well as from the operative pleading at the time the trial court denied class certification, Henry's second amended class action complaint dated July 11, 2005.

^[3] The notice provides in part: "Upon your written request, THE FINANCE COMPANY will extend, without further notice, for an additional ten (10) day period, both the reinstatement and redemption periods. The request for a ten (10) day extension will only be granted if your written request is received within the initial 20 day period stated above. Any request for an extension received after the initial 20 day reinstatement or redemption period will be denied . . . [] . . . [] If you fail to reinstate the contract or redeem the vehicle before the expiration of the reinstatement or redemption period, the vehicle will be offered for sale 20 days after the date of this letter, (30 days if a written request for an extension is received within the time period set forth above) at a public sale on October 31, 2000[,] at 10:00 AM located at SAN DIEGO A/A, or at a private sale after October 31, 2000, by THE FINANCE COMPANY as provided under the law."

^[4] In part, the court ruled Henry was not an adequate class representative because "(1) he appears to lack standing as to the only named defendant, [CPS] because only [TFC] sent him notices under Rees-Levering and/or the UCC; (2) his vehicle was impounded by authorities following his arrest and then subjected to a pending lien sale, all of which removes him from the notice requirements of both Rees-Levering and UCC; (3) his claims arose prior to the 2001 UCC revisions which partially alter the analysis of the claims of the proposed class; (4) Henry's active duty status in the military make him both unavailable and difficult to communicate with, and avail him of unique tolling arguments not available to the entire class with respect to the limitations period; and (5) he was never subjected to any legal action to recover the deficiency, which both deprives him of a viable UCL claim and renders him unfit to represent a class on such a claim."

^[5] The court granted Henry leave to file a second amended class action complaint that added TFC as a defendant. The parties later stipulated that Henry could file a substitute second amended class action complaint that further added the fourth cause of action against CPS for violation of the FDCPA. Our references to the second amended class action complaint are to the latter pleading, which was filed after Henry submitted his supplemental motion on class certification.

^[6] In In re Luke L., supra, 44 Cal.App.4th at p. 674, fn. 3,the court took judicial notice of its own prior unpublished decision for purposes of setting forth the factual and procedural background in a case involving the same parties in a dependency proceeding. We see nothing analogous to the circumstances here.

^[7] For example, in Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 613, the court found sufficient contacts with California to allow constitutional application of California law to the claims of a nationwide class where the defendant did business in California; the defendant's principal offices were located in California; a significant number of class members were located in California; and defendant's agents who prepared the promotional and advertising literature at issue in the litigation did so in California. (See also Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 241-242.)