Norena Burgess v. Portfolio Recovery Associates

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2018
• Docket: 17-55408
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS NORENA BURGESS, No. 17-55408

Plaintiff-Appellant, D.C. No. 2:16-cv-01463-DSF-FFM v.

PORTFOLIO RECOVERY MEMORANDUM* ASSOCIATES, LLC; PRA GROUP, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted June 5, 2018** Pasadena, California

Before: FERNANDEZ and CHRISTEN, Circuit Judges, and BENNETT,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa, sitting by designation. Plaintiff-Appellant Norena Burgess appeals a district court order entering

summary judgment in favor of Defendants-Appellees Portfolio Recovery

Associates, LLC and PRA Group, Inc. We have jurisdiction under 28 U.S.C.

§ 1291, and we review de novo. Folkens v. Wyland Worldwide, LLC, 882 F.3d

768, 773 (9th Cir. 2018). We affirm.1

1. We affirm summary judgment on Burgess’s claim for a violation of

the Fair Debt Collection Practices Act’s (FDCPA) ban on harassment or abuse in

connection with the collection of a debt. 15 U.S.C. § 1692d. Under the FDCPA,

“[t]he term ‘debt’ means any obligation . . . of a consumer to pay money arising

out of a transaction in which the [subject of the transaction is] primarily for

personal, family, or household purposes . . . .” 15 U.S.C. § 1692a(5). Here,

Burgess points to no evidence that the linked accounts are debts within the

meaning of the FDCPA, so calls made in connection with those accounts cannot

support liability under § 1692d on this record. See 15 U.S.C. § 1692d (banning

harassment or abuse “in connection with the collection of a debt”). Viewing the

facts in the light most favorable to Burgess, she has evidence of a single call in

connection with a debt, placed roughly two years after she told Defendants she

1 Because we conclude that summary judgment was proper on both claims Burgess pursues on appeal, we need not address PRA Group’s alternative argument that it is not a “debt collector” subject to liability under the FDCPA. 2 could not pay. She cites no authority suggesting that such a call is unlawful under

§ 1692d.

2. We also affirm summary judgment on Burgess’s claim for a violation

of the FDCPA’s ban on false or misleading representations. 15 U.S.C. § 1692e.

Applying the “least sophisticated debtor” standard, we conclude that the dunning

letter Burgess received was not unlawfully misleading for four reasons. See Davis

v. Hollins Law, 832 F.3d 962, 964 (9th Cir. 2016). First, the dunning letter did not

contain implied threats of litigation or an indication that the debt was legally

enforceable. The letter Burgess received adequately disclosed that the debt was

time-barred. Second, the letter’s offer to pay the debt at a discount was not illusory

because Burgess may have been able to benefit by eliminating a delinquent account

from her credit report. Third, Burgess cites nothing to suggest that enrolling in

LifeCents revives the statute of limitations in whole or part. Finally, the “least

sophisticated debtor” is presumed to read documents with care, Davis, 832 F.3d at

964, so we reject Burgess’s attempt to fault Defendants for the fact that she tore the

dunning letter inadvertently.

AFFIRMED.