Bellini v. Patenaude & Felix APC

• Court: District Court, D. Arizona
• Decided: September 26, 2023
• Docket: 2:22-cv-02188
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Christine Bellini, No. CV-22-02188-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Patenaude & Felix APC, et al.,

13 Defendants. 14 15 This matter arises under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et 16 seq. (“FDCPA”). Plaintiff Christine Bellini (“Plaintiff”) filed a Class Action Complaint 17 (Doc. 1) (“Complaint”) bringing four Counts against Defendants Patenaude & Felix APC 18 (“Defendant Felix”) and Credit Corporation Solutions Incorporated (“Defendant Credit 19 Corp”) (collectively “Defendants”). Before the Court is Defendants’ Motion to Dismiss 20 (Doc. 14)1 Plaintiff’s Complaint. The Court must decide whether Plaintiff has adequately 21 stated a claim under Federal Rule of Civil Procedure 12(b)(6). She has as to Counts II 22 and IV but has not as to Counts I and III. Defendants’ Motion is therefore granted in part. 23 I. Background2 24 Defendants are both “debt collectors” as defined by the FDCPA.3 (Doc. 1 at ¶¶ 9,

25 1 The matter is fully briefed. (Docs. 15 (Plaintiff’s Response); 16 (Defendants’ Reply)).

26 2 Unless otherwise noted, these facts are taken from Plaintiff’s Class Action Complaint (Doc. 1). The Court will assume the Complaint’s factual allegations are true, as it must in 27 evaluating a motion to dismiss. See Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001).

28 3 The FDCPA defines a debt collector as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the 1 12). Plaintiff is a “consumer” as defined by the FDCPA.4 (Id. at ¶ 26). Some time prior 2 to March 26, 2017, Plaintiff allegedly incurred a debt to nonparty Synchrony Bank, a 3 “creditor” as defined by the FDCPA.5 (Id. at ¶ 24). Synchrony Bank sold or otherwise 4 assigned the rights to collect Plaintiff’s alleged debt to Defendant Credit Corp, who then 5 contracted with Defendant Felix to collect the alleged debt. (Id. at ¶¶ 29–30). 6 Defendant Felix sent Plaintiff a collection letter that stated, inter alia, the following: 7 Our information shows: 8 You had a Synchrony Bank account with account number [ ] As of March 26, 2017 you owed: $5,800.38 9 Between March 26, 2017 and today: 10 You were charged this amount in interest: + $0.00 You were charged this amount in fees: + $0.00 11 You paid or were credited this amount toward the debt: - ($1,997.37) 12 Total amount of the debt now: $3,803.01

13 How can you dispute the debt? Call or write to us by May 15, 2022, to dispute all or part of the debt. . . . 14 If you write to us by May 15, 2022, we must stop collection on any amount 15 you dispute until we send you information that shows you owe the debt. . . . . 16

17 What else can you do? Write to ask for the name and address of the original creditor, if different 18 from the current creditor If you write by May 15, 2022, we must stop 19 collection until we send you that information. . . . . . . . 20 21 (Doc. 1-2) (the “Letter”) (emphasis added). The Letter was not dated. (Doc. 1 at ¶ 33). 22 Plaintiff construed the Letter’s lack of date and references to “today” and “now” as 23 an “attempt to improperly extort money from Plaintiff and coerce Plaintiff to pay.” 24 collection of any debts, or who regularly collects or attempts to collect, directly or 25 indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692(a)(6). 26 4 The FDCPA defines a consumer as “any natural person obligated or allegedly obligated 27 to pay any debt.” 15 U.S.C. § 1692a(3).

28 5 The FDCPA defines a creditor as “any person who offers or extends credit creating a debt or to whom a debt is owed.” 15 U.S.C. § 1692a(4). 1 (Id. at ¶ 53). To Plaintiff, the Letter seemed “suspicious, misleading, and out of character 2 for a legitimate debt collection”, and she was misled as to the amount and status of the debt 3 because it was not associated with a particular date. (Id. at ¶ 41, 36, 43). Plaintiff thus did 4 not pay the debt because she believed the Letter was illegitimate. (Id. at ¶ 55). Plaintiff’s 5 inaction/non-payment caused Defendants to furnish negative credit reporting against 6 Plaintiff that was detrimental to her financial reputation. (Id. at ¶ 64). 7 On December 28, 2022, Plaintiff filed a Complaint on behalf of herself and others 8 similarly situated6 alleging Defendants’ debt collection practices violated the FDCPA. 9 Plaintiff brought the following four causes of action against Defendants: 10 Count I under Section 1692d7 for harassing or abusive conduct; 11 Count II under Section 1692e for false and misleading representations of the 12 true character and legal status of Plaintiff’s debt; 13 Count III under Section 1692f for omitting a material term to disadvantage 14 Plaintiff from making an educated decision with respect to her debt; and 15 Count IV under Section 1692g for failing to provide the amount of Plaintiff’s debt and engaging in collection activities and communication during the 16 thirty-day period that overshadowed the consumer’s right to dispute the debt. 17 18 (Id. at ¶¶ 71–92). Plaintiff alleged Defendants’ violations were willful, negligent, and 19 intentional, and they failed to maintain reasonable procedures to avoid the violations. 20 (Id. at ¶ 51). Defendants now move to dismiss all Counts under Rule 12(b)(6).8 (Doc. 14). 21 / / /

22 6 Plaintiff sought to bring all Counts as a class action under Federal Rules of Civil Procedure 23(a) and 23(b)(3). (Doc. 1 at ¶ 14). The putative class consists of all 23 individuals with addresses in the State of Arizona to whom Defendant Felix sent a letter on behalf of Defendant Credit Corp attempting to collect a consumer debt, where the 24 collection letter (1) provided an amount owed based on a particular date range between a certain date and “today,” (2) contained no date or correspondence, and (3) was sent on or 25 after a date one year prior to the filing of this action and on or before a date twenty-one days after the filing of this action. (Id. at ¶ 15). 26 7 Unless where otherwise noted, all Section references are to the FDCPA as codified under 27 Title 15, Chapter 41 of the United States Code.

28 8 Unless where otherwise noted, all Rule references are to the Federal Rules of Civil Procedure. 1 II. Legal Standard 2 A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a 3 complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199–1200 (9th Cir. 2003). A complaint 4 need not contain detailed factual allegations to avoid a Rule 12(b)(6) dismissal; it simply 5 must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 6 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A complaint has facial plausibility when 7 the plaintiff pleads factual content that allows the court to draw the reasonable inference 8 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 9 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a 10 ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has 11 acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted). “Where a complaint pleads 12 facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line 13 between possibility and plausibility of entitlement to relief.’” Id. (citation omitted). 14 When ruling on a motion to dismiss, the court accepts all factual allegations in the 15 complaint as true and views the pleadings in light most favorable to the nonmoving party. 16 See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). That rule does not apply, 17 however, to legal conclusions. Iqbal, 556 U.S. at 678. A complaint that provides “labels 18 and conclusions” or “a formulaic recitation of the elements of a cause of action will not 19 do.” Twombly, 550 U.S. at 555. Nor will a complaint suffice if it presents nothing more 20 than “naked assertions” without “further factual enhancement.” Id. at 557. 21 III. Discussion 22 Defendants request the Court to dismiss this action for failing to state a claim under 23 the FDCPA. Defendants first argue they are entitled to safe harbor for compliance with 24 Section 1692g because the Letter “tracks the exact format” of the model validation notice 25 that is included in the FDCPA regulations. (Doc. 14 at 8–9). Additionally, Defendants 26 contend Plaintiff has not pled sufficient facts to sustain claims under Sections 1692d–g. 27 (Id. at 11–16). Plaintiff responds that while Defendants’ use of the model validation notice 28 may entitle them to safe harbor against violation of the FDCPA regulations, it does not 1 protect them from liability under the statute itself. (Doc. 15 at 14–21). She further 2 contends that by not dating the Letter, Defendants’ collection practices violated the FDCPA 3 because it misled her from verifying the amount of her alleged debt owed. (Id. at 8–14). 4 The Court will provide an overview of the FDCPA before addressing each of 5 Defendant’s arguments. 6 A. The Fair Debt Collection Practices Act 7 The FDCPA is a remedial statute designed to “protect vulnerable and 8 unsophisticated debtors from abuse, harassment, and deceptive collection practices.” 9 Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 938 (9th Cir. 2007); see also 10 15 U.S.C. § 1692(e). The FDCPA measures a debt collector’s behavior according to the 11 “least sophisticated debtor” standard. Clark v. Capital Credit & Collection Servs., 460 12 F.3d 1162, 1171 (9th Cir. 2006). The standard entails an “objective analysis that takes into 13 account whether ‘the least sophisticated debtor would likely be misled by a 14 communication.’” Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) 15 (citing Guerrero, 499 F.3d at 934). These principles “ensure that the FDCPA protects all 16 consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking, and the 17 credulous.” McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 952 (9th 18 Cir. 2011) (quoting Clark, 460 F.3d at 1171). “At the same time, the standard ‘preserv[es] 19 a quotient of reasonableness and presum[es] a basic level of understanding and willingness 20 to read with care.’” Gonzales v. ICSow Fin. Servs., LLC, 660 F.3d 1055, 1062 (9th Cir. 21 2011) (quoting Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008)). The FDCPA 22 does not impose liability on debt collectors for “bizarre,” “idiosyncratic,” or “peculiar” 23 misinterpretations. Id. 24 The FDCPA obligates debt collectors to send collection letters—or “validation 25 notices”—that “disclose information about the debt that helps consumers identify the debt 26 and facilitates resolution of the debt.” Debt Collection Practices (Regulation F), 86 Fed. 27 Reg. 5766, 5801 (Jan. 19, 2021) (codified at 12 C.F.R. Part 1006). The requirements of 28 these validation notices are set forth under Section 1692g. 15 U.S.C. § 1692g(a). Plaintiff 1 alleged Defendants’ Letter violated these requirements and other provisions of the FDCPA. 2 1. Notice Under Section 1692g(a) 3 Section 1692g provides that “[w]ithin five days after the initial communication with 4 a consumer in connection with the collection of any debt, a debt collector shall, unless the 5 following information is contained in the initial communication or the consumer has paid 6 the debt, send the consumer a written notice containing,” the amount of the debt, the name 7 of the creditor, and statements about the consumer’s rights to dispute the debt and request 8 information about the original creditor. Id. As to the former consumer right, validation 9 notices must further explain the debt collector will assume the debt to be valid “unless the 10 consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or 11 any portion thereof[.]” Id. § 1692g(a)(3). If a consumer disputes the debt within the 12 proscribed thirty-day period, the debt collector must (1) obtain and send verification of the 13 debt; and (2) cease collection of the debt until it is verified to the consumer. 14 Id. § 1692g(a)(4), (b). Furthermore, “[a]ny collection activities and communication during 15 the 30-day period may not overshadow or be inconsistent with the disclosure of the 16 consumer’s right to dispute the debt or request the name and address of the original 17 creditor.” Id. 18 Section 1692g does not specify the form a validation notice must take, only that it 19 must effectively relay certain information to the consumer. Defendants agree as much. 20 (Doc. 14 at 7). Thus, Section 1692g provides debt collectors with at least some discretion 21 in how they wish to craft their validation notices. 22 2. Regulation F and the Model Notice 23 The Consumer Financial Protection Bureau (“CFPB”)9 has recognized that the 24 requirements under Section 1692g(a) alone “may not be sufficient for the consumer to 25 recognize the debt[.]” Debt Collection Practices (Regulation F), 86 Fed. Reg. at 5767. 26 This is especially so in scenarios where a debt amount “has changed over time due to 27 interest, fees, payment, or credits, or if the debt collector has changed since an original

28 9 The CFPB is the regulatory authority tasked with enforcing the FDCPA. See 15 U.S.C. § 1692l(b)(6). 1|| collection attempt.” Jd. Thus, on January 19, 2021, the CFPB promulgated 2|| 12 C.F.R. § 1006.34 (“Regulation F’) to clarify and expand on the validation notice 3|| requirements listed in Section 1692g. See generally 12 C.F.R. §§ 1006.34(a)-(c). 4|| Regulation F also contains a model validation notice (the “Model Notice’): 5 B-1 Model Form for Validation Notice 6 7 North South Group Te Parson A Pio. Box 12456 2323 Park Street Pasadena, CA S1111-2222 Apeortrrient S42 8 (B00) 123-4567 from Bam to 8pm EST, Monday to Satuniay Bathoada, MD 20816. We Goa ple coer Reforence: 664-345 North South Group is a debt collector. We are trying to collect a debt that you owe to Bank of 10 Rockville. We will use any information you give us to help collect the debt. ll Our information shows: How can you dispute the debt? You had a Main Street Department Store credit card from Bank = Call or write to us by August 28, 2020, to dispute all or part of Rockville wilh account number 123-456-789 of the debt. if you do nol, we will assume thal our information 12 Theg. As of January 2, 2007, you § 223456 = I you write to os by August 2B, 2020, we mus! atop 13 Beiwoen January 2, 2017 and today collection on any arount you dispute until we send you You were changed this amount in interest + § 75.00 information that shows you owe the debL You may use You were changed this amount in fees: + § 25.00 the form below or weite to us without the form. You mary 14 also include supporting documents, We ascepl diepules You paid or ware crecdiied this aenournt 5 50.00 alectronically at weew example com/dispule toward the debt: 15 Total amount of the debt now: s2za4so Whatelse can you do? « Write to ask forthe name and address of the original ] 6 creditor, if different from the current creditor. ff you write by August 26, 2020, we musi slop cofiection until wr send you 1 7 that information. You may use the form below or write to us without the form. We accept such requests electronically al Wy! Ban ple omy request 1 8 * Go to www. clpb.gov/debt-collection to leam more about your rights under federal law, For instance, jou have the 1 fight to stop or lenil how we contact you 9 * Contact us about your payment options. = Péngase en contacto con nosotros para soticiar una copia de 20 Notice: See reverse side for important information. este formulario en espafol, 21 How do you want to respond? 22 Gheek a that apply Mail this form to: O |wantto dispute the debt because | think: 23 Morth South Group C0 This isnot my debe. PO. Box 123456 □ Pasadena, CA 91111-2222 Cpe emoatl ts Hens 6 Other (pense describe on reverse or 24 attach add ifianal information). O Iwant send me the name and 25 address of the original creditor. Person A 242% Perk Siveat 0 lenciosed this amount § 26 Apartment 342 Make your check payable io Worth South Bethesda, MD 20815 Group, Inchde the sehersnoe number 584-345 O Quiero este formulario en esparol., 28 || Jd. pt. 1006, app. B (Model Form B-1).

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1 The CFPB established a safe harbor provision to incentivize debt collectors to use 2 the Model Notice or a “substantially similar form.” Debt Collection Practices (Regulation 3 F), 86 Fed. Reg. at 5786–87; id. at 5820 (“The [CFPB] determines that a safe harbor is 4 appropriate because the model validation notice will effectively disclose information 5 required by [Regulation F] and the safe harbor will incentivize debt collectors to use the 6 model notice.”). Regulation F provides that “[a] debt collector who uses Model Form B– 7 1 complies with the information and form requirements of paragraphs (c) and (d)(1) of this 8 section[.]” 12 C.F.R. § 1006.34(d)(2)(i). The CFPB further clarified that safe harbor does 9 not apply if a debt collector uses the Model Notice but conducts other collection activities 10 during the validation period. Debt Collection Practices (Regulation F), 86 Fed. 11 Reg. at 5835. 12 B. The Model Notice Does not Necessarily Preclude A Debt Collector’s Liability Under the FDCPA 13 14 The Court will first clarify why an undated validation notice may still pose FDCPA 15 violations notwithstanding its use of the Model Notice. Defendants’ primary theory is 16 because they used the Model Notice, the Letter cannot violate Section 1692g or 17 Regulation F as a matter of law. (Doc. 14 at 8–9). They argue Regulation F and the Model 18 Notice are entitled to judicial deference under Chevron U.S.A., Inc. v. Natural Res. Def. 19 Council, 467 U.S. 837 (1984) and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). 20 (Id. at 4–10). Defendants further reason Regulation F’s safe harbor provision shields them 21 from liability under Section 1692g because Regulation F interprets and implements 22 Section 1692g. (Docs. 14 at 8–9; 16 at 1–5). 23 Plaintiff disagrees. She argues nothing in the FDCPA says use of the Model Notice 24 provides safe harbor for compliance with Section 1692g. (Doc. 15 at 14–21). She further 25 contends a date is a basic piece of information that is critical to informing the least 26 sophisticated consumer that other information required under the FDCPA are ascertainable 27 and verifiable—namely, the amount of the debt owed and the bounds of the thirty-day 28 dispute period. (Id. at 8, 5). She maintains a missing date can mislead consumers and 1 therefore violate the FDCPA. (Id. at 4). 2 The Court finds Plaintiff’s position is the more reasonable one. 3 1. The Model Notice is not a Strict Limitation 4 To start, nothing in the FDCPA mandates a validation notice to take a certain form, 5 only that it effectively relays requisite information to the consumer. See 15 U.S.C. 6 1692g(a); 12 C.F.R. §§ 1006.34(a)–(c). Although the CFPB initially proposed 7 Regulation F should require validation notices to take the same form as the Model Notice, 8 it ultimately decided against any such requirement. Debt Collection Practices (Regulation 9 F), 86 Fed. Reg. at 5787. So, the CFPB suggested the Model Notice as a template. 10 Id. at 5789 (“[D]ebt collectors may use the model validation notice, specified variations of 11 the model notice, or a substantially similar form if providing validation notices[.]”) 12 (emphasis added); id. at 5786 (explaining Regulation F also “describes optional disclosures 13 that debt collectors may, but are not required to, provide with the validation information”). 14 Like Section 1692g, Regulation F affords debt collectors with discretion when drafting 15 their validation notices, including whether and to what extent to use the Model Notice. 16 See id. at 5789 (“Different debt collectors may design their communications in different 17 ways, and the Bureau does not believe it is necessary or warranted to specify such details, 18 as long as the disclosure satisfies the clear and conspicuous standard.”). 19 Room for discretion, however, leaves room for insufficiency. When a debt collector 20 opts to use the Model Notice, it must remain vigilant in inputting accurate and necessary 21 information. The CFPB drafted the Model Notice with following fields that are obviously 22 fictitious: a placeholder website “www.example.com”; placeholder dates “January 2, 23 2017” and “August 28, 2020”; a placeholder bank “Main Street Department Store credit 24 card from Bank of Rockville”; a placeholder account number “123-456-789”; and a 25 placeholder debtor “Person A”. Although the CFPB did not expressly signal that certain 26 fields must be altered accordingly, the necessity to do so is self-evident.10 A debt collector 27 must still tailor the Model Notice to reflect the true and correct details of the specific debt

28 10 For example, it would be false and misrepresentative for a debt collector to use the Model Notice but convey to a consumer they owe a debt on their account “123-456-789”. 1 the debt collector seeks. When they fail to adequately do so, they run the risk of violating 2 the FDCPA. 3 Accordingly, the mere fact that Defendants used the Model Notice as a debt 4 validation notice does not automatically prevent the Court from finding FDCPA violations. 5 The Court must go on to inquire whether they used the Model Notice in a manner that 6 effectively conveyed requisite information to consumers. See Swanson v. Southern Oregon 7 Credit Servs, Inc., 869 F.2d 1222, 1225 (9th Cir. 1989) (“The statute is not satisfied merely 8 by inclusion of the required debt validation notice; the notice Congress required must be 9 conveyed effectively to the debtor”). The Court rejects Defendants’ proposition that they 10 complied with the FDCPA, as a matter of law, by using the Model Notice. See Roger v. 11 GC Servs. Ltd. P’ship, 2023 WL 2124298, at *5 (S.D. Fla. Feb. 9, 2023) (“[U]se of the 12 Model Form alone does not provide a per se bar to Plaintiff’s claims.”). 13 2. Regulation F’s Safe Harbor Does not Apply to the FDCPA Statute 14 Furthermore, the Court agrees with Plaintiff that while the Model Notice may entitle 15 Defendants to safe harbor against violation of Regulation F, it does not necessarily protect 16 them from liability under the FDCPA statute itself. (Doc. 15 at 11). Regulation F states 17 that “[a] debt collector who uses Model Form B–1 complies with the information and form 18 requirements of paragraphs (c) and (d)(1) of this section[.]” 12 C.F.R. § 1006.34(d)(2)(i) 19 (emphasis added). It is expressly limited to Regulation F and makes no mention of 20 compliance with any section of the FDCPA. See Roger, 2023 WL 2124298, at *4–5 21 (finding Regulation F’s safe harbor was not intended to be a broader statutory one). The 22 CFPB repeatedly highlighted the safe harbor’s limited application. See Debt Collection 23 Practices (Regulation F), 86 Fed. Reg. at 5835, 5855 (“The safe harbor protects only the 24 use of the [M]odel [] [n]otice to comply with the information and form requirements of § 25 1006.34(c) and (d)(1).”); id. at 5787 (“[T]he final rule provides certain safe harbors for 26 compliance with the information and form requirements in § 1006.34(c) and (d)(1) for debt 27 collectors who use the model validation notice . . . .”); id. at 5789 (“[A] debt collector who 28 uses the model validation notice, specified variations of the model notice, or a substantially 1 similar form, receives a safe harbor for the information requirements in § 1006.34(c) and 2 for the clear-and conspicuous requirement in § 1006.34(d)(1).”). 3 In light of the above implications of the Model Notice and Regulation F’s safe 4 harbor provision, the Court need not engage in a Chevron analysis. The Court rejects 5 Defendants’ proposition that the Letter entitles them to safe harbor from FDCPA liability. 6 C. Plaintiff’s Counts 7 Having clarified that Defendants’ use of the Model Notice does not prevent this case 8 from moving forward, the Court now turns to Plaintiff’s Counts. To state a claim under 9 the FDCPA, a plaintiff must allege “‘factual content that allows the court to draw the 10 reasonable inference’ that the defendants: (1) are debt collectors, and (2) used ‘any false, 11 deceptive, or misleading representation or means in connection with the collection of any 12 debt’ or otherwise engaged in conduct that violates a provision of the FDCPA.” Banks v. 13 ACS Educ., 638 F. App’x 587, 590 (9th Cir. 2016) (quoting Schlegel v. Wells Fargo Bank, 14 NA, 720 F.3d 1204, 1208 (9th Cir. 2013)). A debt collector’s behavior under the FDCPA 15 is measured according to an objective “least sophisticated debtor” standard. Clark, 460 16 F.3d at 1171; see supra Section III.A. As a strict liability statue, the FDCPA does not 17 ordinarily require proof of intentional violation. Gonzales, 660 F.3d at 1061. 18 As to the first element, Defendants are undisputedly debt collectors under the 19 FDCPA. As to the second element, Counts I–IV allege Defendants’ representations in the 20 Letter violated Sections 1692d–g. The Court will address Count IV before turning to 21 Plaintiff’s remaining Counts. 22 1. Count IV 23 Plaintiff’s Count IV claims Defendants violated the validation notice requirements 24 under Sub-sections 1692g(a) and (b).11 See supra Section III.A. 25 a. Sub-section 1692g(a) 26 First, Plaintiff alleged Defendants failed to adequately represent the amount of 27 Plaintiff’s debt under Sub-section 1692g(a) when “pegging it to an unknown date.”

28 11 Unless where otherwise noted, all Sub-section references are to the FDCPA as codified under Title 15, Chapter 41, of the United States Code. 1 (Doc. 1 at ¶ 89). It is true that nothing in the FDCPA or its regulations expressly instruct 2 debt collectors to date validation notices. It is also true that the Model Notice does not 3 itself contain a date of correspondence. However, grounding a validation notice in a date 4 is especially important in the FDCPA context for a number of reasons. For example, as 5 emphasized by the CFPB, Sub-section 1692g(a) requires that a consumer must be able to 6 verify the amount of their debt as it may change over time due to interest, fees, payment, 7 or credits. See Debt Collection Practices (Regulation F) 86 Fed. Reg. 5766, 5767 (Jan. 19, 8 2021); see also 15 U.S.C. § 1692g(a)(1) (validation notices must state the amount of the 9 debt owed). Moreover, a consumer who has thirty days to challenge a debt’s validity under 10 the FDPCA must be able to verify when that thirty-day accrual period runs. See 15 U.S.C. 11 § 1692g(a)(3) (validation notices must state the consumer’s right to dispute the debt within 12 thirty days after receipt of the notice). A contemporaneous date is axiomatic to ensuring 13 this information is relayed to the consumer as mandated by Sub-section 1692g(a). 14 Here, Defendants used the Model Notice to draft the Letter, but chose not to input 15 firm dates in the “today” and “now” fields. (Compare Doc. 1-2 with 12 C.F.R. pt. 1006, 16 app. B). And, when accepting Plaintiff’s allegations as true, Defendants’ omission of a 17 date (1) misled Plaintiff into thinking the Letter was illegitimate and (2) prevented her from 18 verifying the amount due.12 (Doc. 1 at ¶¶ 35–59). Plaintiff further explained the impact 19 the lack of date had when she read the Letter: 20 From the face of the Letter, it is [was] impossible to determine whether the amount of the debt, $3,803.01, is accurate, because it [was] impossible to 21 determine whether the $0 accruals in interest and/or fees and the $1,997.37 22 in credits applied to the account between March 26, 2017 and “today” make the “total amount of the debt now” at all relevant anymore. 23 (Doc. 15 at 12). 24 By claiming Defendants used the Model Notice in a manner that failed to convey 25

26 12 Plaintiff also alleged in her Response that the lack of date “overshadowed Plaintiff’s validation rights” because she did not have a method to verify the thirty day dispute period. 27 (Doc. 15 at 8). Because these new factual allegations were raised for the first time in the Response, the Court will not consider them for the purpose of this Order. See Lee v. City 28 of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). To the extent Plaintiff wishes to add these allegations in her Count IV, she may do so in an amended complaint. 1 information required by the FDCPA, Plaintiff has sufficiently stated a claim under Sub- 2 section 1692g(a). This conclusion is consistent under the objective, least sophisticated 3 consumer standard, which seeks to ensure that “even the least sophisticated debtor is able 4 to understand, make informed decisions about, and participate fully and meaningfully in 5 the debt collection process.” Clark, 460 F.3d at 1171. To be clear, it is not Defendants’ 6 use of the Model Notice that serves the basis for Plaintiff’s claim; rather, it is Plaintiff’s 7 allegation that Defendants’ failed to sufficiently tailor the Model Notice to the facts 8 surrounding the debt they sought to collect. 9 b. Sub-section 1692g(b) 10 Second, Plaintiff alleged Defendants engaged in collection activities and 11 communication during the thirty-day dispute period “that overshadowed and/or was 12 inconsistent with the disclosure of the consumer’s right to dispute the debt” under Sub- 13 section 1692g(b). (Doc. 1 at ¶ 92). Indeed, if a consumer disputes the debt within the 14 proscribed thirty-day period, Sub-section 1692g(b) obligates the debt collector to (1) cease 15 collection of the debt until it is verified to the consumer; and (2) cease all activities that 16 overshadow the debt collector’s dispute and validation rights. 15 U.S.C. § 1692g(b). But 17 Plaintiff did not set forth any additional facts describing Defendants’ collection activities 18 apart from sending the Letter as an initial communication. Plaintiff simply stated “labels 19 and conclusions” under Sub-section 1692g(b) without “further factual enhancement.” 20 Twombly, 550 U.S. at 555, 557. This will not do. Id. 21 When taking the allegations in the Complaint as true, as the Court must, Plaintiff’s 22 Count IV adequality states a claim for relief under Sub-section 1692g(a). The Court, 23 however, will dismiss Plaintiff’s Sub-section 1692g(b) claim under Rule 12(b)(6). 24 2. Count I: Section 1692d 25 Plaintiff’s Count I claims Defendants violated Section 1692d, which prohibits debt 26 collectors from engaging in conduct having the natural consequence to harass, oppress, or 27 abuse any person in connection with the collection of a debt. 15 U.S.C. § 1692d. While 28 nonexclusive, Section 1692d sets forth six circumstances that constitute harassing or 1 abusive conduct: 2 (1) using or threating to use violence or other criminal means to harm the 3 physical person, reputation, or property of any person; 4 (2) using obscene or profane language that would abuse the hearer or reader; 5 6 (3) publishing of a list of consumers who allegedly refused to pay debts; 7 (4) advertising sale of a debt to coerce payment of the debt; 8 (5) repeatedly or continuously calling any person “with intent to annoy, 9 abuse, or harass”; or 10 (6) placing telephone calls without disclosing the caller’s identity. 11 15 U.S.C. § 1692d(1)–(6); see Fox v. Citicorp Credit Servs., 15 F.3d 1507, 1516 (9th Cir. 12 1994) (finding that multiple “threatening and intimidating calls to a consumer at an 13 inconvenient time or place could rationally support a jury finding of harassing conduct”). 14 Plaintiff alleged Defendants harassed or abused her by sending her an undated 15 validation notice. (Doc. 1 at ¶ ¶ 71–75). The Court finds that sending a single letter without 16 a date does not rise to the level of threats and intimidations exemplified in Section 1692d. 17 Cf. Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1228 (E.D. Cal. 2010) 18 (“[S]ome conduct does not constitute harassment as a matter of law”) (collecting cases). 19 Thus, Plaintiff has not alleged harassment or abuse under the FDCPA as a matter of law. 20 The Court will therefore dismiss Count I under Rule 12(b)(6). 21 3. Count II: Section 1692e 22 Plaintiff’s Count II claims Defendants violated Section 1692e, which prohibits debt 23 collectors from using false, deceptive, or misleading representations or means in 24 connection with their debt collection practices. 15 U.S.C. § 1692e. In the Ninth Circuit, 25 Section 1692e claims must suffice a materiality requirement as a “corollary” to the least 26 sophisticated debtor standard. Afewerki v. Anaya L. Grp., 868 F.3d 771, 775 (9th Cir. 27 2017); Donohue, 592 F.3d at 1033–34. That is, “false but non-material representations are 28 not likely to mislead the least sophisticated consumer and therefore are not actionable under 1 [Section] 1692e.” Afewerki, 868 F.3d at 775 (quoting Donohue, 592 F.3d at 1033). 2 Material false representations are those that could “cause the least sophisticated debtor to 3 suffer a disadvantage in charting a course of action in response to the collection effort.” 4 Id. at 776 (internal citation omitted). By contrast, immaterial false representations are those 5 that are “literally false, but meaningful only to the ‘hypertechnical’ reader.” Id. 6 Section 1692e specifies sixteen acts that are deemed to be false, deceptive, or 7 misleading. 15 U.S.C. § 1692e(1)–(16). Among those, Plaintiff claimed Defendants 8 violated Sub-sections 1692e(2)(A) and (10). (Doc. 1 at ¶¶ 76–80). 9 a. Sub-section 1692e(2)(A) 10 Sub-section 1692e(2)(A) holds debtors liable for falsely representing the character, 11 amount, or legal status of any debt[.]” 15 U.S.C. 1692e(2)(A). Plaintiff alleged the undated 12 Letter was out of character for a legitimate debt collection, suspicious, and misleading. 13 (Doc. 1 at ¶ 41). She claimed she could not understand exactly how much of the debt was 14 currently owed because the amount was defined on a “nebulous date.” (Id. at ¶¶ 39, 41). 15 She further stated she was “misled as to the status of the subject debt, for it was not 16 associated with a particular date.” (Id. at ¶ 36). 17 The Ninth Circuit explained that “[w]hether a debt is legally enforceable is a central 18 fact about the character and legal status of that debt.” Kaiser v. Cascade Capital, LLC, 989 19 F.3d 1127, 1134 (9th Cir. 2021) (quoting McMahon v. LVNV Funding, LLC, 744 F.3d 20 1010, 1020 (7th Cir. 2014)) (holding a debt collector violated the FDCPA when attempting 21 to collect a time barred debt through threat of suit). Defendants argue the lack of date has 22 nothing to do with the character or legal status of a debt. (Doc. 14 at 11). The Court agrees 23 Plaintiff has not alleged that the Letter’s lack of date falsely represented enforceability of 24 her debt to Synchrony Bank.13 See Kaiser, 989 F.3d at 1134. Moreover, although a missing 25 date could cast ambiguity as to the current amount owed on Plaintiff’s debt at a given time, 26 the Court finds the lack of date is not an affirmatively false representation of the amount

27 13 Defendants cite to Seventh Circuit case law for the proposition that the “character” of a debt refers to the “kind of obligation”, such as a secured auto loan or unsecured credit card 28 debt. (Doc. 14 at 11–12 citing Rhone v. Med. Bus. Bureau, LLC, 915 F.3d 438, 440 (7th Cir. 2019). A date does not go to the character of a debt under either standard. 1 owed. See Heffington v. Gordon, 2018 WL 3763799, at *3 (D. Or. Aug. 8, 2018) (“By its 2 terms, [Section] 1692e(2)(A) prohibits only ‘false’ representations about a debt’s character, 3 amount, or legal status— not representations that are merely misleading or deceptive.”). 4 Nor has Plaintiff alleged that the debt she allegedly owes to Synchrony Bank does not 5 amount to $3,803.01, as stated in the Letter. (See Doc. 1-2). 6 b. Sub-section 1692e(10) 7 Sub-section 1692e(10) is a “catchall” provision that holds debtors liable for “use of 8 any false representation or deceptive means to collect or attempt to collect any debt or to 9 obtain information concerning a consumer.” Gonzales, 660 F.3d at 1062; 10 15 U.S.C. § 1692e(10). “[I]t is well established that ‘[a] debt collection letter is deceptive 11 where it can be reasonably read to have two or more different meanings, one of which is 12 inaccurate.’” Gonzales, 660 F.3d at 1062 (quoting Brown v. Card Serv. Ctr., 464 F.3d 450, 13 455 (3d Cir. 2006)). Thus, the issue is whether the Letter’s lack of date renders its terms 14 susceptible to a materially inaccurate interpretation. If so, Plaintiff has sufficiently stated 15 a claim under Sub-section 1692e(10) 16 Plaintiff claimed “[t]here [was] no way to determine from the Letter which date 17 ‘today’ and ‘now’ refer to, as the Letter is not dated” and the vague terms made the Letter 18 appear as an illegitimate “attempt to improperly extort money from Plaintiff and coerce 19 Plaintiff to pay.” (Doc. 1 at ¶ 25, 53). Plaintiff alleged that “[b]y withholding the date of 20 the letter, Defendant[s] withheld a material term from Plaintiff which made it confusing 21 for her to understand the nature of the subject debt.” (Id. at ¶ 43). For example, she states 22 that when the balance of the debt is not static, a date range must be provided for her to 23 understand exactly how much of the debt is owed. (Id. at ¶ 39). On the other hand, 24 Defendants argue the words “today” and “now” are unambiguous. (Doc. 14 at 13). They 25 reason “[t]he only plain, rational interpretation of the letter is that the ‘Total amount of the 26 debt now’ is the present tense, whenever the consumer reads the letter.” (Id. at 13–14). 27 Because the consumer can read the Letter “whenever,” Defendants’ reasoning that 28 “today” and “now” have one meaning is inherently flawed. The exact opposite is true—it 1 is possible the consumer could read the Letter on any given day of the year, which gives 2 the temporal terms a wide range of potential meanings. Additionally, to the least 3 sophisticated debtor, the phrases “today” and “now” could suggest circumstances other 4 than the day the debtor reads the Letter, for example: the day the debt collector printed the 5 letter; the date the debt collector placed the letter in the mail; or the date the consumer 6 received the letter in the mail. Plaintiff further alleged the phrases “today” and “now” 7 suggested to her that the Letter was illegitimate. (Doc. 1 at ¶¶ 38, 41, 53). 8 Moreover, uncertain meanings of “today” and “now” are material for multiple 9 reasons: differing dates could affect the amount of the debt (due to changes in interest, fees, 10 payment, or credits) and alter the bounds of the thirty-day validation period. See supra 11 Section III. C(1)(a). Not knowing the relevant date could therefore “cause the least 12 sophisticated debtor to suffer a disadvantage in charting a course of action in response to 13 the collection effort.” Afewerki, 868 F.3d at 776. Plaintiff indeed alleged as much. 14 (Doc. 1 at ¶¶ 39, 43, 54, 55). Furthermore, that Plaintiff has stated a claim under 15 Section 1692g lends as additional support that she has stated a claim under Section 16 1692e(10). See supra Section III.C(1); c.f. Renick v. Dun & Bradstreet Receivable Mgmt. 17 Servs., 290 F.3d 1055, 1057–58 (9th Cir. 2002) (a finding that a notice did not violate 18 Section 1692g(a) necessarily means the notice did not violate Section 1692e(10)). 19 When taking the allegations in the Complaint as true, as the Court must, Plaintiff’s 20 Count II adequality states a claim for relief under Sub-section 1692e(10). The Court, 21 however, will dismiss Plaintiff’s Sub-section 1692e(2)(A) claim under Rule 12(b)(6). 22 4. Count III: Section 1692f 23 Plaintiff’s Count III claims Defendants violated Section 1692f, which prohibits debt 24 collectors from using “unfair or unconscionable means to collect or attempt to collect any 25 debt.” 15 U.S.C. § 1692f. Whether conduct violates this Section is determined under the 26 least sophisticated consumer standard. Donohue, 592 F.3d at 1030. The materiality 27 requirement for Section 1692e claims also applies to Section 1692f claims. Id. at 1034. 28 Section 1692f specifies eight acts that are deemed to be unfair or unconscionable: 1 (1) collection of an amount that is not expressly authorized; 2 (2) acceptance of a payment instrument postdated by more than five days 3 in certain circumstances; 4 (3) solicitation of a postdated payment instrument for the purpose of threatening or instituting criminal prosecution; 5 6 (4) depositing or threatening to deposit any postdated payment instrument prior to its indicated date; 7 (5) “causing charges to be made to any person for communications by 8 concealment of the true purpose of the communication”; 9 (6) “taking or threatening to take any nonjudicial action to effect 10 dispossession or disablement of property” under certain 11 circumstances; 12 (7) communicating about a debt by post card; 13 (8) using any language or symbol, other than the debt collector’s address, 14 on any envelope when communicating with a consumer by use of the mails by telegram, except that a debt collector may use his business 15 name if such name does not indicate that he is in the debt collection 16 business. 17 15 U.S.C. § 1692f(1)–(8). The Ninth Circuit has not yet articulated a standard for ‘unfair 18 or unconscionable’ conduct outside of these eight examples. Cunningham v. Meridian 19 Credit Grp., LLC, 2019 WL 643966, at *4 (C.D. Cal. Feb. 11, 2019). “However, district 20 courts in the Ninth Circuit have held that, when the conduct alleged is not ‘remotely 21 similar’ to the enumerated examples, the conduct is not ‘unfair or unreasonable’ within the 22 meaning of § 1692f.” Id. (collecting cases). 23 Plaintiff did not claim Defendants engaged in any of the above eight acts. Rather, 24 Plaintiff alleged Defendants violated Section 1692f “[b]y omitting a material term [(the 25 date of correspondence)] from the dunning letter to disadvantage the Plaintiff from making 26 an educated decision regarding the subject debt.” (Doc. 1 at ¶¶ 84). Plaintiff maintains 27 these acts are, “at the very least, unfair” under Section 1692f. (Doc. 15 at 9). Defendants 28 argue the absence of a date in a letter is unlike any of the eight acts under Section 1692f 1 and “is not unscrupulous nor affronts a sense of justice or reasonableness.” (Doc. 14 at 14). 2 The Court agrees with Defendants. 3 Plaintiff’s allegations of unfairness are insufficient even when accepted as true. By 4 simply claiming Defendants acted unfairly, Plaintiff pled facts that are “merely consistent” 5 with Defendants’ liability under the language of Section 1692f, and “stops short of the line 6 between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 7 (citation omitted). Plaintiff has neither cited to any legal support within this circuit finding 8 an undated Letter “unfair” within the meaning of the statute nor explained how it is similar 9 to the eight acts listed above. Plaintiff’s “naked assertions”, without more, do not 10 adequately state a Section 1692f claim under Rule 12(b)(6) standards. Twombly, 550 U.S. 11 at 555. The Court will therefore dismiss Count III under Rule 12(b)(6). 12 IV. Conclusion 13 An undated Model Notice may still pose FDCPA violations if it does not effectively 14 convey requisite information to consumers. The Model Notice entitles debt collectors to 15 safe harbor for compliance with Regulation F, but does not guarantee compliance with all 16 of the FDCPA’s provisions. Under these principles, the Court finds Plaintiff has 17 adequately stated Sub-section 1692e(10) claims under Count II and Sub-section 1692g(a) 18 claims under Count IV. However, Plaintiff has not sufficiently stated Section 1692d claims 19 under Count I; Sub-section 1692e(2)(A) claims under Count II; Section 1692f claims under 20 Count III; or Sub-section 1692g(b) claims under Count IV. The Court will dismiss those 21 claims without prejudice. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendants Patenaude & Felix APC and Credit 3 || Corporation Solutions Incorporated’s Motion to Dismiss (Doc. 14) is GRANTED in part and DENIED in part. Plaintiffs Section 1692d claims under Count I; Sub-section 1692e(2)(A) claims under Count II; Section 1692f claims under Count IJ; and Sub-section 6 || 1692g(b) claims under Count IV are DISMISSED without prejudice. 7 Dated this 26th day of September, 2023. 8 9 fe □□ 10 norable'Diang/. Hunfetewa 1 United States District Fudge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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