Maryann Sivongxay v. Medcah, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 26, 2019
• Docket: 17-17400
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 26 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARYANN SIVONGXAY, No. 17-17400

Plaintiff-Appellant, D.C. No. 1:16-cv-00415-DKW-KSC v.

MEDCAH, INC., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted February 11, 2019 Honolulu, Hawaii

Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.

Maryann Sivongxay brought suit against collection agency, Medcah, Inc.,

alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15

U.S.C. §§ 1692e and 1692f, and Hawaii’s Unfair or Deceptive Acts and Practices

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Act (“UDAPA”), Haw. Rev. Stat. §§ 443B-18 and 443B-19. The district court

granted summary judgment to Medcah on all of Sivongxay’s claims. We affirm.

1. The district court did not err in granting summary judgment to Medcah on

Sivongxay’s interest collection claims. For a debt collector to collect interest, the

amount collected must be “expressly authorized by the agreement creating the debt

or permitted by law.” 15 U.S.C. § 1692f(1); see also Haw. Rev. Stat. § 443B-19(4).

Under Hawaii law, “[w]hen there is no express written contract fixing a different

rate of interest, interest shall be allowed at the rate of ten per cent a year . . . .”

Haw. Rev. Stat. § 478-2.

Medcah imposed ten percent interest on all of Sivongxay’s debts. Four of

Sivongxay’s creditors had agreements that expressly authorized the collection of

interest on past due accounts, but the agreements either did not provide an interest

rate or provided one above Hawaii’s statutory rate. These underlying agreements

entitled Medcah to collect interest, and section 478-2 provided the statutory

interest rate. The fifth creditor’s agreement was silent with respect to interest, but

Medcah was entitled to the collection of interest at a rate of ten percent per year by

section 478-2. See Kalawaia v. AIG Hawai’i Ins. Co., 977 P.2d 175, 183 n.13

(Haw. 1999) (recognizing that lessor was “statutorily entitled to interest” under

what is now Haw. Rev. Stat. § 478-2); see also Diaz v. Kubler Corp., 785 F.3d

2 1326, 1330 (9th Cir. 2015) (stating that a debt collector need not be “entitled by

judgment to a type of relief in order for that relief to be ‘permitted by law’ within

the meaning of 15 U.S.C. § 1692f(1)”). Because Medcah’s collection of interest

was authorized by the underlying agreements or permitted by law, the collection of

interest was not a violation of the FDCPA or UDAPA.

2. The district court did not err in granting summary judgment to Medcah on

Sivongxay’s claims that Medcah engaged in false or deceptive debt collection

practices by attempting to collect interest on Sivongxay’s debts but reporting only

the principal amounts owed to consumer reporting agency Experian. Sivongxay

concedes that Medcah accurately reported the principal balances owed to Experian.

Sivongxay has provided no precedent requiring Medcah to report both principal

and interest to Experian, nor has she alleged that Medcah improperly represented

the reported amount due as consisting of both principal and interest. Additionally,

Sivongxay has provided no support for her assertion that a debt collector is strictly

liable for misleading a consumer when its demand letters (which are not false or

misleading) do not exactly match an independent consumer credit reporting

agency’s report of the debt (which is based on a debt collector’s accurate reporting

of the principal amount due).

AFFIRMED.