Joann Riggs v. Prober & Raphael, A Law Corp., et al

Filing

FILED OPINION (J. CLIFFORD WALLACE, CONSUELO M. CALLAHAN and CARLOS T. BEA) AFFIRMED. Judge: JCW write, Judge: CMC Authoring, Judge: CTB . FILED AND ENTERED JUDGMENT. [8207030]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOANN JOSEPHINE RIGGS,
Plaintiff-Appellant,
v.
PROBER & RAPHAEL, A LAW
CORPORATION, a California
Corporation formerly known as
Polk, Prober & Raphael, A Law
Corporation; DEAN RUSSELL
PROBER, individually and in his
official capacity,
Defendants-Appellees.




No. 10-17220
D.C. No.
5:10-cv-01215-JF
OPINION



Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
March 14, 2012—San Francisco, California
Filed June 8, 2012
Before: J. Clifford Wallace, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Callahan

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COUNSEL
Fred W. Schwinn, Esq., Consumer Law Center, San Jose,
California, for the plaintiff-appellant.
Jonathan M. Blute, Esq., Murphy Pearson Bradley & Feeney,
San Francisco, California, for the defendants-appellees.

OPINION
CALLAHAN, Circuit Judge:
Plaintiff-Appellant Joann Riggs filed an action against
Defendants-Appellees Prober & Raphael, a debt-collection
law firm, and Dean Prober, Esq. (together, “Prober”) after
Prober sought to collect a debt Riggs owed to Prober’s client,

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Fireside Bank. Riggs alleged that Prober’s debt collection letter did not comply with the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., or its state equivalent,
the Rosenthal Fair Debt Collection Practices Act (“Rosenthal
Act”), Cal. Civ. Code § 1788 et seq., namely by impermissibly requiring her to dispute her debt in writing and, as a
result, misrepresenting her rights to dispute her debt. The district court granted Prober summary judgment and Riggs
appeals.
We have previously held that a collection letter, called a
“validation notice” or “Dunning letter,” violates § 1692g(a)(3)
of the FDCPA “insofar as it state[s] that [the debtor’s] disputes must be made in writing.” Camacho v. Bridgeport Fin.,
Inc., 430 F.3d 1078, 1082 (9th Cir. 2005). Unlike the validation notice at issue in Camacho, Prober’s notice did not state
that Riggs must dispute her debt in writing. Riggs argues that
Prober’s notice nonetheless violates § 1692g(a)(3) because it
implicitly requires written disputes. Assuming without deciding that Prober’s notice can be understood implicitly to
require written disputes, we hold that a validation notice violates § 1692g(a)(3) of the FDCPA only where it expressly
requires a consumer to dispute her debt in writing.
I.
A.

Background

Statutory background

The FDCPA seeks to eliminate “abusive debt collection
practices by debt collectors [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.” 15 U.S.C.
§ 1692(e). Toward that end, the FDCPA imposes certain
requirements on debt collectors and imposes strict liability for
violations. Cruz v. Int’l Collection Corp., 673 F.3d 991, 997
(9th Cir. 2012); Donohue v. Quick Collect, Inc., 592 F.3d
1027, 1030 (9th Cir. 2010); see also 15 U.S.C. § 1692k (providing for civil damages).

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Section 1692g(a) of the FDCPA requires a debt collector to
send a consumer debtor, within five days of the debt collector’s initial attempt to collect any debt, a written validation
notice containing:
(1)

the amount of the debt;

(2)

the name of the creditor to whom the debt is
owed;

(3)

a statement that unless the consumer, within
thirty days after receipt of the notice, disputes
the validity of the debt, or any portion thereof,
the debt will be assumed to be valid by the debt
collector;

(4)

a statement that if the consumer notifies the
debt collector in writing within the thirty-day
period that the debt, or any portion thereof, is
disputed the debt collector will obtain verification of the debt or a copy of a judgment against
the consumer and a copy of such verification or
judgment will be mailed to the consumer by the
debt collector; and

(5)

a statement that upon the consumer’s written
request within the thirty-day period the debt
collector will provide the consumer with the
name and address of the original creditor, if
different from the current creditor.

15 U.S.C. § 1692g(a)(1)-(5).
Section 1692e provides that a “debt collector may not use
any false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. A debt collector violates this rule where, among
other things, it “use[s] . . . any false representation or decep-

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tive means to collect or attempt to collect any debt or to
obtain information concerning a consumer.” Id. § 1692e(10).
[1] California has adopted a state version of the FDCPA,
called the Rosenthal Act. See Cal. Civ. Code § 1788 et seq.
The Rosenthal Act mimics or incorporates by reference the
FDCPA’s requirements, including those described above, and
makes available the FDCPA’s remedies for violations. Id.
§ 1788.17. Thus, for purposes of this case, whether a validation notice violates the Rosenthal Act turns on whether it violates the FDCPA.
B.

Factual background

The facts of this case are undisputed. In November 2006,
Riggs purchased a car under a retail installment contract that
was later assigned to Fireside Bank. Riggs borrowed
$13,361.21 of the purchase price. Between September and
December 2008, Riggs failed to make her monthly payments.
During that time, Fireside Bank repossessed the car and notified Riggs that it would sell the car unless she made the
required payments, which she did not. Fireside sold the car,
applied the proceeds to Riggs’s debt, and hired Prober to collect the $8,191.89 balance.1
In a validation notice dated April 10, 2009, Prober
requested repayment of the remaining debt, plus accrued
interest. The notice read, in relevant part:
Dear Joanna [sic] Riggs:
1

The parties do not dispute that Riggs’s debt is a “debt” under the
FDCPA, 15 U.S.C. § 1692a(5), and a “consumer debt” under California
Civil Code § 1788.2(f), or that Prober is a “debt collector” under the
FDCPA, 15 U.S.C. § 1692a(6), and California Civil Code § 1788.2(c).
The only issue is whether Prober violated the FDCPA and the Rosenthal
Act.

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This communication is made in an attempt to collect
on a debt or judgment and any information obtained
will be used for that purpose. My office has been
retained by FIRESIDE BANK in order to obtain
repayment of the sum of $8,191.89, together with
accrued interest to which you are obligated under the
terms of a contract and security agreement dated
November 4, 2006. The present balance owing is
currently $8,191.89.
I am, therefore, requesting that you contact this
office so that I can arrange the terms of your repayment to FIRESIDE BANK. As I am sure you know,
if we are unable to work this matter out, and I am
able to secure a judgment, you may be subject to
payment of FIRESIDE BANK’s attorney’s fees and
costs incurred, as well as jeopardizing your credit.
Please be advised that if you notify my office in
writing within 30 days that all or a part of your obligation or judgment to FIRESIDE BANK is disputed,
then I will mail to you written verification of the
obligation or judgment and the amounts owed to
FIRESIDE BANK. In addition, upon your written
request within 30 days of receipt of this letter, I will
provide you with the name and address of the original creditor, if different from the current creditor.
If I do not hear from you within 30 days, I will
assume that your debt to FIRESIDE BANK is valid.
The last page of the notice consisted of two disclosures:
SPECIAL NOTICE
THE FOLLOWING NOTICE IS GIVEN TO YOU
IN THE EVENT THAT THE FEDERAL FAIR
DEBT COLLECTIONS ACT APPLIES TO
THIS COMMUNICATION.

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The following statement provides you with notice of
certain rights which you may have by law. Nothing
in this statement modifies or changes the hearing
date or response time specified in the attached documents or your need to take legal action to protect
your rights in this matter. No provision of the following statement modifies or removes your need to
comply with local rules concerning the attached documents.
CONSUMER DISCLOSURE
This communication is made in an attempt to collect
on a debt or judgment and any information obtained
will be used for that purpose. Please be advised that
if you notify FIRESIDE BANK’s attorneys in writing within 30 days that all or a part of your obligation or judgment to FIRESIDE BANK is disputed,
then FIRESIDE BANK’s attorneys will mail to you
a written verification of the obligation or judgment
and the amounts owed to FIRESIDE BANK. In
addition and upon your written request within 30
days of receipt of this letter, I will provide you with
the name and address of the original creditor, if different from the current creditor.
Riggs did not contact Prober and made no payment towards
her debt. Prober filed an action on behalf of Fireside Bank in
California Superior Court. After Riggs filed a cross-claim for
alleged violations of the FDCPA and the Rosenthal Act, the
parties settled the action by dismissing both claims.
In March 2010, Riggs brought this action in federal court.
Riggs alleged, among other things, that Prober’s validation
notice (1) required her to dispute her debt in writing, in violation of 15 U.S.C. § 1692g(a)(3) and California Civil Code
§ 1788.17, and (2) therefore misrepresented her right to dis-

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pute the debt in violation of 15 U.S.C. § 1692e, 1692e(10),
and California Civil Code § 1788.17.
Prober filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) and, in the alternative, for partial
summary judgment. The district court granted in part the
motion to dismiss with leave to amend, and granted partial
summary judgment for Prober on the two claims described
above. The court held that Prober’s validation notice did not
impermissibly require Riggs to dispute her debt in writing and
did not falsely misrepresent her right to dispute the debt. The
district court entered final judgment at Riggs’s request, and
Riggs timely appealed. Riggs appeals only the district court’s
summary judgment order, not its order granting in part Prober’s motion to dismiss.
II.

Standard of Review

[2] We review de novo a summary judgment. Gonzales v.
Arrow Fin. Servs., LLC, 660 F.3d 1055, 1060 (9th Cir. 2011).
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56. “We review
questions of law, including the district court’s interpretations
of the FDCPA and the Rosenthal Act, de novo.” Gonzales,
660 F.3d at 1060. “[W]hether [an] initial communication violates the FDCPA depends on whether it is likely to deceive or
mislead a hypothetical ‘least sophisticated debtor.’ ” Terran v.
Kaplan, 109 F.3d 1428, 1431 (9th Cir. 1997) (citation and
internal quotation marks omitted); see also McCollough v.
Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 952
(9th Cir. 2011) (“This [least sophisticated debtor] standard
ensure[s] that the FDCPA protects all consumers, the gullible
as well as the shrewd . . . the ignorant, the unthinking, and the
credulous.” (internal quotation marks and citations omitted)).

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III.
A.

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Discussion

Written disputes under FDCPA § 1692g(a)(3)

[3] It is settled law in the Ninth Circuit that the FDCPA
allows debtors to dispute a debt orally or in writing. Camacho, 430 F.3d at 1081-82. Accordingly, a debt validation
notice that requires that a dispute be in writing violates
§ 1692g(a)(3) of the FDCPA.2 Id. at 1082. The primary issue
presented here is whether Prober’s validation notice runs
afoul of this rule.
In Camacho, we considered a debt validation notice that
imposed an express writing requirement by stating: “Unless
you notify this office in writing within 30 days after receiving
this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid.” Id. at
1079 (emphasis in Camacho). Applying the FDCPA’s “plain
meaning,” we held that a validation notice “violate[s] § 1692g
insofar as it state[s] that disputes must be made in writing.”
Id. at 1082 (emphasis added).
[4] Here, in contrast, Prober’s validation notice did not
expressly require Riggs to dispute her debt in writing. Instead,
Riggs argues that the notice implicitly required her to do so.
We assume, without deciding, that the least sophisticated consumer could understand Prober’s validation notice to imply
that any dispute of her debt must be in writing. Nevertheless,
we conclude that the notice does not violate the FDCPA.
As we have explained, Camacho held only that debt collec2

The Third Circuit has reached the opposite conclusion: “[S]ubsection
(a)(3) must be read to require that a dispute, to be effective, must be in
writing.” Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991). The
Supreme Court recently recognized this split but declined to resolve it. See
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, ___ U.S. ___,
130 S. Ct. 1605, 1610 & nn.2-3, 176 L. Ed. 2d 519 (2010).

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tors may not expressly require that disputes be in writing;
Camacho did not decide whether the FDCPA also prohibits
debt collectors from implicitly requiring that disputes be in
writing. We do not believe the FDCPA can support such a
prohibition. Subsections (a)(4) and (a)(5) of § 1692g prominently require a consumer to do certain things in writing,
including “notif[y] the debt collector in writing . . . that the
debt, or any portion thereof, is disputed” in order to obtain
verification, while subsection (a)(3) is silent as to what form
a general dispute of an alleged debt must take. When these
subsections are read together, they could be read to imply that
a debtor must dispute her debt in writing. Court decisions
applying these provisions do nothing to dispel this implication. See, e.g., Bicking v. Law Offices of Rubenstein & Cogan,
783 F. Supp. 2d 841, 844-45 (E.D. Va. 2011) (collecting cases
that hold that debt collectors must include the writing requirements in § 1692g(a)(4)-(5) in their validation notices).
[5] Thus, if the FDCPA itself can be read to imply that a
consumer must dispute an alleged debt in writing, a validation
notice like Prober’s, which more or less simply reverses the
order of the § 1692g(a)(3)-(5) advisories, cannot be unlawful
merely because it allows for the same implication. Put another
way, any confusion over what a consumer must do in writing,
versus what she may do in writing, stems at least in part from
the FDCPA itself. It would be untenable to read the FDCPA
to prohibit validation notices that simply mimic the statute’s
own shortcomings.3 See Jacobson v. Healthcare Fin. Servs.,
Inc., 516 F.3d 85, 90 (2d Cir. 2008) (explaining that
3

For this reason we reject Riggs’s argument that Prober’s validation
notice violates the FDCPA because its language, “[i]f I do not hear from
you,” can be interpreted in more than one way. See Campuzano-Burgos
v. Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir. 2008) (“A communication is deceptive for purposes of the Act if it can be reasonably
read to have two or more different meanings, one of which is inaccurate.”
(citation and internal quotation marks omitted)). Given our reading of the
statute above, only an express requirement for written disputes would be
“inaccurate” under § 1692g(a)(3).

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FDCPA’s “dual purpose” requires a court to both “protect[ ]
consumers against deceptive debt collection practices . . .
[and] protect[ ] debt collectors from unreasonable constructions of their communications”).
All published cases of which we are aware in which the
courts have found a violation of § 1692g(a)(3) have involved
notices that expressly required the recipient to dispute the
alleged debt in writing. See, e.g., In re Turner, 436 B.R. 153,
156-58 (M.D. Ala. 2010) (“If we do not receive payment or
you do not notify us in writing, [sic] that you dispute this debt
within thirty (30) days from the date of this letter, we will
proceed with recovery of the debt based on the laws allowed
in your state.”); Campbell v. Hall, 624 F. Supp. 2d 991, 995,
1000-01 (N.D. Ind. 2009) (“If you dispute this debt, or any
portion thereof, you must notify this office in writing of that
fact within 30 days of this letter.”) (emphasis removed); Baez
v. Wagner & Hunt, P.A., 442 F. Supp. 2d 1273, 1274-77 (S.D.
Fla. 2006) (“Unless you notify this office in writing within
thirty days after receiving this notice that you dispute the
validity of the debt, or any portion thereof, this office will
assume this debt is valid.”) (emphasis in Baez); In re Sanchez,
173 F. Supp. 2d 1029, 1031, 1033-34 (N.D. Cal. 2001) (“You
may dispute the validity of this debt, or any portion thereof,
by sending our office written notice within thirty (30) days
after receiving this notice.”) (emphasis in In re Sanchez).4
4

The only arguably contrary case is Register v. Reiner, Reiner & Bendett, P.C., 488 F. Supp. 2d 143 (D. Conn. 2007), which concerned a validation notice that stated: “[P]lease be advised that you may dispute the
validity of the debt or any portion thereof. If you do so in writing within
thirty days of receipt of this letter, this firm will obtain and provide you
with written verification thereof; otherwise, the debt will be assumed to be
valid.” Id. at 146-47 (emphasis removed). However, this language violates
§ 1692g(a)(3) not because it requires that a dispute be written, but because
it expressly makes the debt collector’s assumption of the validity of the
debt, which is part of the notice required by § 1692g(a)(3), contingent on
the written dispute in the previous sentence.

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In short, we hold that, even assuming Prober’s validation
notice could be read to implicitly require Riggs to dispute her
debt in writing, such a requirement nevertheless does not violate § 1692g(a)(3). A validation notice violates § 1692g(a)(3)
only where it expressly requires a consumer to dispute her
debt in writing.
B.

FDCPA §§ 1692e and 1692e(10)

Section 1692e of the FDCPA provides that a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”
15 U.S.C. § 1692e. A debt collector violates this rule if it
“use[s] . . . any false representation or deceptive means to collect or attempt to collect any debt or to obtain information
concerning a consumer.” Id. § 1692e(10).
[6] Riggs’s only argument that Prober’s validation notice
violated 15 U.S.C. § 1692e and § 1692e(10) is that the notice
made a “false representation” by “misrepresenting Riggs’
right to dispute the debt” by means other than a writing under
§ 1692g(a)(3). Accordingly, because Riggs fails to establish a
violation of § 1692g(a)(3), she also fails to establish a violation of §§ 1692e and 1692e(10) based on the same theory.
C.

Other alleged violations of FDCPA § 1692g(a)(3)

[7] Riggs argues for the first time on appeal that Prober’s
validation notice does not comply with other purported
requirements of § 1692g(a)(3), namely that she be informed
that she could dispute the validity of her debt, she could dispute only a portion of her debt, and that she could make a dispute within 30 days of receiving the notice. Riggs also argues
that the language, “If I do not hear from you,” is too general
to constitute an adequate notice under § 1692g(a).
Riggs’s arguments are barred because she did not raise
them in her complaint, which alleges as the only violation of

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§ 1692g that Prober “required that disputes be in writing to
prevent [Prober] from considering the debt valid, in violation
of § 1692g(a)(3).” A plaintiff may not try to amend her complaint through her arguments on appeal. See Vincent v. Trend
W. Technical Corp., 828 F.2d 563, 570 (9th Cir. 1987) (plaintiff may not present a new theory for the first time on appeal,
particularly where he could have presented it to the district
court by seeking to amend his complaint); Forbush v. J.C.
Penney Co., 98 F.3d 817, 822 (5th Cir. 1996) (“[T]he Court
will not allow a party to raise an issue for the first time on
appeal merely because a party believes that he might prevail
if given the opportunity to try a case again on a different theory.” (citation omitted)).
IV.

Conclusion

We hold that Prober’s notice does not violate § 1692g(a)(3)
of the FDCPA by impermissibly requiring Riggs to dispute
her debt in writing. The notice does not expressly state such
a requirement. Assuming without deciding that the notice
could be understood to imply a writing requirement, that
implication is part of the statute itself. Such an implicit
requirement does not violate § 1692g(a)(3). Because Riggs’s
alleged § 1692g(a)(3) violation served as the only basis for
her alleged violations of §§ 1692e and 1692e(10), we also
hold that Prober’s notice did not violate those provisions. The
district court’s judgment is AFFIRMED.