Joann Riggs v. Prober & Raphael, a Law Corp.
2012 U.S. App. LEXIS 11631
| 9th Cir. | 2012Background
- Riggs sued Prober & Raphael for FDCPA and Rosenthal Act violations over a validation notice seeking debt disputes in writing.
- Prober’s April 10, 2009 validation letter stated the debt amount, demanded contact, and warned that disputes could lead to verification and possibly judgment against Riggs.
- The notice contained a separate Consumer Disclosure reiterating 30-day dispute rights and verification; no express writing requirement is stated.
- Riggs did not respond or pay; Prober filed suit in California Superior Court; claims were settled.
- Riggs later filed federal suit alleging that the validation notice violated FDCPA §1692g(a)(3) and Rosenthal Act, and that it misrepresented her right to dispute; district court granted partial summary judgment in Prober’s favor, Riggs appeals only the summary judgment ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the validation notice violated FDCPA §1692g(a)(3) by requiring a written dispute | Riggs argues implicit writing requirement; Prober's notice coerces a written dispute | Notice does not expressly require writing; implicit requirement acknowledged but permissible | No violation; only express writing requirement violates §1692g(a)(3) |
| Whether the notice violated FDCPA §§1692e and 1692e(10) based on misrepresentation of rights | Misrepresentation of right to dispute, based on writing requirement | No §1692g(a)(3) violation means no §1692e/e(10) violation | No violation of §§1692e or 1692e(10) |
| Whether Riggs waived or improperly raised additional §1692g(a)(3) arguments on appeal | Arguments not in complaint should be considered on appeal | Waiver applies; new theories not allowed on appeal | Arguments not raised in the complaint are barred on appeal |
Key Cases Cited
- Camacho v. Bridgeport Fin., Inc., 430 F.3d 1078 (9th Cir. 2005) (validation notice cannot require disputes in writing)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605 (S. Ct. 2010) (Supreme Court on FDCPA writing dispute notions (recognizing split))
- Terran v. Kaplan, 109 F.3d 1428 (9th Cir. 1997) (concept of least sophisticated debtor in FDCPA)
- McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011) (FDCPA deception standard for least sophisticated debtor)