Bergida v. PlusFour, Inc.
2:22-cv-02150
| D. Nev. | Oct 31, 2023Background
- Plaintiff Rachel Bergida received an undated debt-collection letter from PlusFour, Inc. seeking $103.69 for medical services; the letter referenced an earlier date (Sept. 27, 2022) and used terms like "today" and "now" but lacked a signature date.
- Bergida alleges the omission of a date made the letter seem illegitimate, caused confusion about the debt amount and timeline, led her to spend time/money investigating, and resulted in her not paying and suffering credit harm.
- She sued under the FDCPA §§ 1692d, 1692e(2)(A), 1692e(10), 1692f, and 1692g (validation/overshadowing).
- PlusFour moved to dismiss, arguing (1) it used the CFPB Model Form B-1 and is protected by a regulatory safe harbor and (2) Bergida failed to plead any inaccurate, misleading, harassing, or unfair conduct.
- The court held the CFPB safe harbor does not shield debt collectors from FDCPA liability generally, but dismissed all of Bergida’s claims for failure to plead plausible violations, granting leave to amend by November 30, 2023.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CFPB Model-Form safe harbor | Model-form usage should shield PlusFour from FDCPA claims | Model-form safe harbor applies to certain Regulation F provisions and negates liability | Court: Safe harbor limited to specific regulatory provisions and does not bar FDCPA claims generally; safe harbor not controlling here |
| §1692g(a) (validation notice — date requirement) | Undated letter fails to give a definite "amount now" tied to a date, so debt amount may be outdated | FDCPA does not require a date; the letter states “Total amount of the debt now” which satisfies §1692g(a) | Court: No §1692g(a) violation; statute and CFPB Model B-1 do not require dating the notice |
| §1692g(b) (overshadowing) | Lack of a date prevents enforcement of 30-day dispute period and could overshadow validation rights | 30-day period runs from receipt, not the letter date; PlusFour used an estimated date per CFPB practice | Court: Dismissed — complaint is conclusory and lacks facts about initial communication or receipt date; omission of date does not overshadow rights |
| §1692d (harassment/abuse) | Omitting a date and defining the debt by that omitted date is oppressive/harassing | An undated letter is not harassing; letter content is routine | Court: Dismissed — plaintiff conceded by failing to oppose and omission does not amount to harassment under §1692d |
| §1692e(2)(A) (false representation of amount/status) | Letter falsely represents character/legal status/amount by pegging to unknown date | Plaintiff has not alleged any actual inaccuracy in the letter’s information | Court: Dismissed — plaintiff pled only conclusory allegations and offered no factual basis that information was false |
| §1692e(10) (deceptive practices) | Omission of date renders the communication misleading/deceptive | Subjective confusion alone is insufficient; no Ninth Circuit support for that theory here | Court: Dismissed — subjective confusion is insufficient; failure to state §1692g claim dooms this theory too |
| §1692f (unfair or unconscionable means) | Omitting date unreasonably disadvantages consumer from making informed decision | Omission is not unfair to a least sophisticated debtor; harms are avoidable | Court: Dismissed — omission not unfair as a matter of law; harm was reasonably avoidable and not substantial |
Key Cases Cited
- Stimpson v. Midland Credit Mgmt., 944 F.3d 1190 (9th Cir. 2019) (discussing least-sophisticated-debtor standard and CFPB model-form context)
- Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055 (9th Cir. 2011) (FDCPA deception test and least-sophisticated-debtor analysis)
- Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984 (9th Cir. 2017) (application of §1692g validation notice standard)
- Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th Cir. 2012) (FDCPA remedial purpose and interpretive guidance)
- Afewerki v. Anaya Law Grp., 868 F.3d 771 (9th Cir. 2017) (objective least-sophisticated-debtor standard explanation)
- Donohue v. Quick Collect, Inc., 592 F.3d 1027 (9th Cir. 2010) (analysis under §1692f)
- Kaiser v. Cascade Capital, LLC, 989 F.3d 1127 (9th Cir. 2021) (strict liability for misleading FDCPA practices)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard — plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard — legal conclusions not accepted)