David Tourgeman v. Collins Financial Services
2014 U.S. App. LEXIS 11940
| 9th Cir. | 2014Background
- Tourgeman purchased a Dell computer and financed via Dell Financial Services; loan originated by CIT Online Bank and serviced by Dell Financial, later charged off and sold to Collins Financial Services.
- Paragon Way, Inc. (Collins's affiliate) mailed three letters to Tourgeman at California addresses (his parents’ home) urging payment of a purported debt; Tourgeman resided in Mexico.
- Nelson & Kennard, hired by Collins, sent its own dunning letter and later filed a state court complaint; letters were sent before Tourgeman’s awareness of them during litigation.
- Addresses used for letters were Tourgeman’s parents’ addresses; Tourgeman did not receive the letters.
- Nelson & Kennard filed a San Diego County Superior Court complaint on Collins’s behalf; it was later dismissed; Tourgeman sued in federal court alleging FDCPA violations and related California-law claims.
- District court granted summary judgment for defendants; Tourgeman appeals seeking reversal and entry of judgment for him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue under the FDCPA | Tourgeman has Article III and statutory standing despite not receiving letters | No injury in fact; FDCPA does not confer standing without receipt | Tourgeman has both Article III and statutory standing under the FDCPA. |
| Materiality of misidentification under 1692e(2) and e(10) | Misidentifying the original creditor as American Investment Bank was material and misleading | Mislabeling or non-substantive error could be non-material or easily clarified by consumer ACTION | Paragon Way letters contained material misrepresentations—liable under 1692e(2) and 1692e(10). |
| State court complaint as a communication under FDCPA | The state court complaint replicated the misleading identification and violated FDCPA | Complaint format differs; may be less misleading | State court complaint violated the FDCPA for similar misidentification. |
| Nelson & Kennard letter and meaningful involvement under 1692e(3) | The attorney signature/participation implied by the letter violated 1692e(3) | Meaningful involvement doctrine not settled; not necessary for liability | Court did not need to decide meaningful involvement to hold liability under 1692e(2) and 1692e(10); liability established; meaningful-involvement question left unresolved. |
| Remand and scope of liability for other entities | Potential liability against Collins itself | Liability not decided for vicarious liability | Reversal and remand; liability determined against Paragon Way and Nelson & Kennard; potential liability against Collins left undecided. |
Key Cases Cited
- Havens Real. Co. v. Coleman, 455 F.3d 363 (U.S. 1982) (standing based on statutory rights; injury not required in some contexts)
- Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208 (10th Cir. 2006) (statutory rights sustain standing without pecuniary harm)
- Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055 (9th Cir. 2011) (least sophisticated debtor standard; materiality analysis under FDCPA §1692e)
- Donoghue v. Bulldog Investors Gen. P’ship, 696 F.3d 170 (2nd Cir. 2012) (materiality and strict liability nature of FDCPA; misrepresentations must be material)
- Clomon v. Jackson, 988 F.2d 1314 (2nd Cir. 1993) (meaningful involvement doctrine origin under §1692e(3))
- Phillips v. Asset Acceptance, LLC, 736 F.3d 1076 (7th Cir. 2013) (standing without actual injury; statutory rights focus)
- Edwards v. First Am. Corp., 610 F.3d 514 (9th Cir. 2010) (injury can arise from statutory misrouting or referrals; standing)