David Tourgeman v. Collins Financial Services

selecting a consecutive sen- The record discretion is clear that the court consid- 3553(a) factors, § Carty, tence. See United States v. 520 ered the including (9th Cir.2008). criminal history Shouse’s and probation offenses, violations for similar the need for Challenge III. Reasonableness just punishment that was “sufficient but greater necessary,” than public safety, Finally, relies on Shouse United deterrence, and as discussed above. The argue States v. Booker to the district weighed court all of the provided, evidence court an imposed unreasonable sentence including the comprehensive presentence by ignoring in favor of arguments his le investigation report and objec- Shouse’s niency sentencing adjust and downward tions to the report, sentencing Shouse’s 220, 264, ments. 543 U.S. S.Ct. memorandum, and arguments by extensive (2005) (plurality opinion). 160 L.Ed.2d 621 counsel, plus statement Shouse. The pointing specific arguments Rather than explained court it had conducted a or claims that the district court failed to thorough review of Shouse’s claims and the consider, general plea Shouse makes a 3553(a) § factors and it suf- demonstrated sentencing reconsideration of our court’s ficient consideration of all support- basis, review standard. We have no ing evidence provided to the court. Noth- authority, to conduct such a review here. ing Rita, required. more was See 551 U.S. Holder, Avagyan See 358-59, 2456; Carty, S.Ct. (9th Cir.2011) (“A judge panel three can at 991. prece not reconsider or overrule circuit intervening Supreme dent unless an Court AFFIRMED. existing precedent

decision undermines an Circuit,

of the Ninth and both cases are (internal

closely point.” quotation marks

omitted)). review,

Upon if “[t]he record TOURGEMAN, David Plaintiff- clear that sentencing judge makes lis Appellant, argument” tened to each and “considered evidence,” the supporting the reasons the provides district court for a within-guide SERVICES, COLLINS FINANCIAL “legally

line sentence are sufficient.” Rita INC., Recovery Analyt DBA Precision States, 338, 358, v. United U.S. ics, Inc., corporation; a Texas (2007). S.Ct. 168 L.Ed.2d 203 The Kennard, partnership; Paragon & only district court explain need the sen Way, Inc.; Collins Financial Services whole, tence as a while considering the USA, Inc., Defendants-Appellees, 3553(a) factors and whether the sen “sufficient, tence is greater but not than Services, LP, Dell Financial Defendant. necessary.” Carty, 520 F.3d at 991-92 (internal omitted). quotation marks No. 12-56783. imposing guide- sentence within the Appeals, United States Court of range, line the district explanation court’s Ninth Circuit. cursory.

was neither brief nor The court Argued April and Submitted specific discussed the nature of the offense 25, 2014. Filed June involving extremely young “an female of approximately years age” and “horrif-

ic predatory dangerous behavior.”

Before: JEROME FARRIS HURWITZ, D. CIRCUIT ANDREW FRIEDMAN, JUDGES, and PAUL L. Judge.* District FRIEDMAN; by Judge Opinion by Judge Dissent FARRIS.

OPINION FRIEDMAN, Judge. District brought under the This is a class action Practices Act Fair Debt Collection (“FDCPA” Act”), § 1692 or “the 15 U.S.C. seq. et con- Tourgeman Plaintiff David Finan- tends that the defendants —Collins Services, Inc.; Inc.; Way, Paragon cial Kennard; Nelson & Financial and Collins USA, represen- false Services Inc.—made to him in connection with their tations purported Spe- to collect a debt.1 efforts cifically, Tourgeman argues the defen- by misidentifying Act dants violated the original creditor in a series of collection his him, letters sent to as well as a com- him in plaint against filed state court. He defendant, also maintains that one & (argued), Brett M. Weaver Johnson Kennard, represented that misleadingly & LLP, California, Weaver, Diego, San and attorney from an its collection letter was Murphy, Daniel P. Law Offices of Daniel when, facts, account of the Tourgeman’s California, Diego, for Plain- Murphy, San “meaningfully in- attorney no had been tiff-Appellant. evaluating his case. The volved” dis- granted summary judgment trict court Jeffrey A. (argued) Tomio B. Narita and jurisdiction un- the defendants. We have LLP, Topor, & Narita San Simmonds § der 28 U.S.C. 1291. We now reverse Francisco, California, Defendant-Ap- for judgment and hold that should be entered & Kennard. pellee Nelson Tourgeman. for appearance Defendants-Appel- No I. BACKGROUND Services, Inc., Financial lees Collins Col- USA, Inc., or Para- comput- lins Financial Services a Dell Tourgeman bought David Tourge- purchase, Inc. er. At the time of the gon Way, * Friedman, Tourgeman's legal question that underlies The Honorable Paul L. District Judge, for the District of U.S. District Court the class’s claims under one section Columbia, sitting by designation. FDCPA, 15 U.S.C. 1692e. For ease of ref- erence, only plaintiff Tourgeman we refer plain- Tourgeman the named serves here as than to the class. similarly rather tiff on behalf of a class of consumers appeal the essential situated. This resolves Mexico, Inc., 08-cv-1392, man resided in and he ordered the No. 2011 WL (S.D.Cal. computer shipped parents’ be to his July *6 pur- home California. He financed the Tourgeman then went on the offensive. Services, through chase Dell Financial He filed this lawsuit in federal district arranged originated for a loan to be court, Collins, alleging that Paragon Way, Bank. Dell Financial CIT Online then and Nelson & Kennard had violated the According Tourge- serviced the loan. FDCPA, law, as well as California in their man, completed repayment he within two efforts to purported collect the debt from years buying computer. But Dell him.3 Tourgeman’s complaint survived Financial’s records reflected otherwise. motions to dismiss filed the several Tourgeman’s allegedly outstanding debt defendants, id., see and the district court sold, charged therefore was off and then later certified a class of plain consumer 85,000 along with more than other Dell tiffs, Servs., see v. Collins Fin. debts, Financial to Collins Financial Ser- Inc., 08-cv-1392, No. 2012 WL vices.2 (S.D.Cal. 17, 2012). *4-10 Apr. But upon Collins Tourgeman’s transferred file the defendants’ motions for summary judg along with the other Dell Financial ac- ment Tourgeman’s cross-motion, counts to Collins’s affiliated collection granted court judgment to the defendants. Inc., agency, Paragon Way, which mailed See Tourgeman Servs., v. Collins Fin. three Tourgeman letters to encouraging Inc., 08-cv-1392, No. 2012 WL 3731807 him pay purported to off the debt. Collins (S.D.Cal. 2012). 29, Aug. then referred the file to the law firm of appeal, On Tourgeman makes two claims Kennard, Nelson & which sent its own under the FDCPA. His main claim arises dunning Tourgeman. letter to All of these from the fact that the defendants —both in letters were mailed to addresses in Cali- their letters and in the state court com- fornia at which Paragon and Nelson & plaint falsely identified his credi- — Tourgeman Kennard believed might re- Bank, tor N.A.,” as “American Investment fact, side. In belonged the addresses to when, in actuality, CIT Bank origi- Online Tourgeman’s parents, Tourgeman and nated Tourgeman the loan. contends that himself remained resident in Af- Mexico. this misidentification violated the Act’s receiving letters, ter response no to the prohibition false, any on the “use [of] de- Nelson & Kennard a complaint filed ceptive, misleading representation or or behalf of Collins in Diego County San Su- means in connection with the collection of perior Tourgeman Court. retained coun- any § debt.” 15 Tourge- U.S.C. 1692e. sel, eventually and Nelson & Kennard man’s second claim relates to the letter elected to dismiss the It action. was dur- by sent to him the firm of law Nelson & ing this state court litigation Tourge- that argues man Kennard. He that attorney learned of the several letters that had signed been mailed to him at his who parents’ address- letter had not been “mean- Servs., Tourgeman es. See v. ingfully case, Collins Fin. evaluating involved” in his 2. appeal It is immaterial agon Way to this whether have elected neither to file briefs full; Tourgeman actually paid had argument his loan in appeal, nor to offer on this but we none depends of his FDCPA claims on the obligated nonetheless are to review the record validity of the debt. Bag Symantec, in full. See Brown v. Software 1465, Corp., 960 F.2d 1478 In Financial, event, Tourgeman also argu sued Dell with Nelson & Kennard offers settled; entity which he equally applicable later is not there- ments to the letters sent appeal. Paragon Way. fore involved in this Collins and Par- in the outcome’ of “possess a ‘direct stake runs afoul of therefore the letter

and that — case,” Perry, 1692e(3), proscribes Hollingsworth § which 15 U.S.C. 2662, implication -, or U.S, 133 S.Ct. representation false “[t]he attorney (2013) or that an any individual is Arizonans (quoting L.Ed.2d 768 attorney.” from an Arizona, is any communication 520 U.S. English Official damages, only statutory (1997)). seeks Tourgeman 1055, 137 L.Ed.2d 170 S.Ct. no pecuniary that he suffered conceding standing, plaintiff possess To conduct. the defendants’ as a result of loss fact,” “injury in an must have suffered legally protected meaning “an invasion of II. STANDING (a) particu and which is concrete interest argues first Kennard Nelson & (b) imminent, larized, actual or statutory Arti- lacks both Tourgeman Lujan, conjectural hypothetical.” any claims standing assert based cle III (internal cita U.S. S.Ct. letters, collection on the omitted). quotation tions and marks they admittedly received when were never addition, a causal connec “there must be firm contends sent. The law injury and the conduct tion between action a cause of provide FDCPA does not likely, of ... it must be complained [and] Tourgeman’s position, a consumer in that the merely speculative, opposed broad lan- notwithstanding the statute’s by a injury will be redressed favorable “any debt collector guage providing 560-61, 112 decision.” Id. at S.Ct. any provision of comply who fails to (internal quotation citations and marks respect any person subchapter with this omitted). person.” liable to such U.S.C. 1692k(a). & Kennard further required by Art. injury “The ... if the does maintains that even of ‘statutes may solely exist virtue consumers with purport to endow such the invasion of which creating legal rights, it, action, Article III would forbid cause of ” standing.’ creates Id. S.Ct. who never receive the because consumers Warth, 500, 422 at 95 (quoting 2130 U.S. have suffered no offending communication Massachusetts, 2197); 549 S.Ct. see also position is injury Tourgeman’s in fact. 516, (“Congress 127 has U.S. at S.Ct. 1438 “in the FDCPA violation of injuries and articulate power to define standing.” III itself confers Article [ ] give rise to a chains of causation will controversy where none existed case or Standing A. Article III 580, Lujan, 504 U.S. at (quoting before.” limits “Article III of the Constitution J., (Kennedy, concurring in 112 S.Ct. 2130 jurisdiction to federal-court ‘Cases’ ” concurring judgment))) in the part and v. ‘Controversies.’ Massachusetts omitted). (internal In marks quotation E.P.A., 516, 1438, 497, 127 549 S.Ct. U.S. par involving statutory rights, “the cases (2007). requirement The 167 L.Ed.2d 248 rights conveys it [ ] ticular statute and the limitation. Lu standing flows from this standing determination.” Dono guide the 555, Wildlife, 504 U.S. jan v. Defenders of P’ship, 696 ghue Bulldog v. Investors Gen. 2130, 560, 119 L.Ed.2d 351 112 S.Ct. (2d 170, Cir.2012); see also Ham F.3d 178 that, (1992). Standing doctrine assures East, Inc., 492, 498 mer v. Sam’s to have the court litigant “the is entitled (8th 3, 2524534, *4 n. at & 3 & n. 2014 WL dispute or of decide the merits 2014) 5, that “the actual- (noting Cir. June Seldin, issues,” v. particular Warth solely may be satisfied 2197, injury requirement 490, 498, 95 S.Ct. 45 L.Ed.2d U.S. (1975), legal right that Con- by by that he or she the invasion of demanding ”); [by statute],” Robey Shapiro, Maria made unlawful gress created Havens Real- L.L.C., 1208, Coleman, 363, 373, Cejda, ty Corp. nos & U.S. Cir.2006) (where “dealing (1982), a court is S.Ct. 71 L.Ed.2d 214 assured- by Congress “individual, created un legal rights ly collective, is an rather than in ‘injury harm,” (internal ... fact’ der the FDCPA Beaudry, 579 F.3d at 707 omitted). of Article III is di analysis purposes quotation marks gravamen The rectly question to the of whether linked rather, argument, Nelson & Kennard’s cognizable suffered a plaintiff] has [the truly is that is not “among the statutory injury”). Supreme As the Court is, injured.” That Tourge- contends that explained, “[essentially, standing has man has not suffered the “actual” injury in is whether the con question such cases required Article III because he never statutory provision stitutional or received letter that contained the al- properly the claim rests can be understood legedly misleading representations. Ac- granting persons plaintiffs posi Kennard, cording to Nelson & a consumer Warth, right judicial tion a relief.” 422 who never a dunning receives letter can at 95 S.Ct. 2197. For this rea U.S. suffer neither pecuniary nor emotional son, statutory of a right “the violation harm, nor can such a consumer be hin- usually injury a sufficient in fact to confer deciding dered in respond how to to the Inc., standing.” Spokeo, Robins v. 742 effort to collect the debt. (9th Cir.2014). F.3d Supreme The Court’s decision Havens time, require Coleman, At the same Realty however, “the Corp. v. makes injury ment of in fact ais hard floor of pecuniary clear that such or emotional jurisdiction Article III that cannot be re necessary harms are not to a finding of moved statute.” Summers v. Earth Havens, injury in fact. the Court held Inst., 488, 497, Island 555 U.S. 129 S.Ct. who, that an African-American “tester” — (2009). Thus, 173 L.Ed.2d 1 there hunter, by posing apartment as an aimed Congress’s ability are limits on to elevate to ferret out violations of Fair Housing legally cognizable injuries to the status of (“FHA”) possessed Act standing bring — particular types of harm that previ were falsely telling suit based on the defendants’ ously recognized Lujan, law. apartments particular her that no in a U.S. S.Ct. 2130. As this court available, housing complex were even observed, has there are “two constitutional though the tester had no intention of actu- congressional power limitations on to con ally renting apartment an from the defen- Robins, standing.” fer and, indeed, may “fully dant well have “First, plaintiff among a in ‘must be expect[ed] that he would in- receive false jured, in the sense that she alleges 374, formation.” 455 at 102 U.S. S.Ct. ” statutory defendants violated her rights.’ 1114. The Court concluded that the “al- Servs., (quoting Beaudry Id. v. TeleCheck leged injury statutorily to plaintiffs’] [the Inc., (6th Cir.2009)) (in 702, 579 F.3d 707 right truthful housing created informa- omitted). quotation “Second, ternal marks cognizable injury tion” was a in of statutory right protect at issue must regardless plaintiff of whether the itself — ‘individual, collective, against rather than actually hoped to in the reside defendant’s ” (quoting Beaudry, harm.’ Id. 579 F.3d housing complex therefore “the Art. —and 707). at injury Ill of in requirement fact [was] (cit- 374, Id. at 102 1114 poses problem The second limitation no satisfied.” S.Ct. Warth, 500, ing at this case. The interest in not U.S. 95 S.Ct. personal being object misrepresentation plaintiff possessed standing “the of a The tester not variety a other federal stat involving ... “deprived been she had

because living in an inte- from utes, that result benefits have held that the regularly courts community,” id. at S.Ct. grated no bar to pecuniary absence of loss is “statutorily 1114, her simply but because if has standing, plaintiff Article III housing informa- truthful right created alleged rights a violation of the conferred 374-75, id. at infringed, tion” had been See, Hammer, at e.g., statute. 754 F.3d S.Ct. (action 497-99, 2524534, at *3-4 2014 WL that a have held where Similarly, we Accurate Transac under Fair and Credit by her settlement buyer is referred home Act); Donoghue, tions 696 F.3d at 174-80 as a title insurer agent particular to a 16(b) (action of Securities under section deal between result of a kickback Act); Exchange Robey, 434 F.3d 1211— insurer, the consumer suf- agent and the (action FDCPA); under DeMando injury though even she fers Article III (9th Cir.2000) Morris, 1300, 206 F.3d insurance than she paid no more for the (action Act). Lending Truth in under Edwards v. First otherwise would have. Cir.2010), (9th 514, 517-18 Corp., Am. — U.S. -, part, granted rt. could not Although ce (2011), L.Ed.2d 843 131 S.Ct. or mental pecuniary have suffered loss improvidently grant cert. dismissed as distress as the result of a letter he did — ed, -, 132 S.Ct. U.S. until months after it was not encounter (2012) curiam); accord (per L.Ed.2d 611 litigation already sent—when related was Corp., Countrywide Fin. Alston underway injury he claims have —the (3d Cir.2009) (recognizing right suffered was the violation of his injury III can be that because Article misleading target to be the debt collec statutory the violation of predicated on alleged tion communications. The viola need not demonstrate rights, plaintiff “[a] statutory right tion of this those —like monetary actual he or she suffered Havens, Robins, rights at issue in and the v. Welles-Bow damages”); United States have other cases we noted —consti Inc., Realty, en cognizable injury a under Article III. tutes Cir.2009) (“Just rights a violation of the “[wjhen injury And fact is the viola ‘truthful information’ of ‘testers’ to receive supports standing, statutory right so does violation of tion of a we inferred right untainted receive referrals private cause of from the existence of Havens, 455 (quoting conflicts of interest.” action, redressability” causation and —the 1114)). 373-74, More U.S. 102 S.Ct. standing two other elements of usu —“will recently, that an individual we concluded Robins, ally 742 F.3d at 414. be satisfied.” operator a website standing had to sue alleged Such is the case here. The viola allegedly inaccurate in published had Tourgeman’s statutory rights tion of stems him, regardless of wheth formation about solely having mailed from the defendants’ any financial plaintiff er the had suffered letters, and that to him their collection consequence. or emotional harm as See injury by an award of would be redressed Robins, 412-14; 742 F.3d at accord Beau the statutory damages, FDCPA 707; dry, Zynga 579 F.3d at see also In re consumers. prevailing makes available to 1098, Privacy F.3d 1105 n. 5 Litig., 750 1692k(a)(2) § (providing 15 U.S.C. See (9th Cir.2014) III (affirming Article stand conclude, We damages”). “additional in ing based on Facebook user’s interest therefore, has constitu of her online iden maintaining privacy the information). standing. tional tification and URL cases

1117 Statutory Standing alia, B. sentation” as meaning, inter “[a] presentation of by fact—either words or III Satisfied that Article of the Constitu by conduct—made to induce someone to Congress creating would not bar from tion [especially] act ... the manifestation to private cause of action for consumer fact, another that a including a state of Tourgeman’s position, we now turn to ask mind, added)). (emphases exists” But actually Congress whether has done so these definitions do speak to the na- start with the text of the FDCPA. We Int’l, ture of the intended recipient’s statute.4 See Lexmark Inc. v. Static role in the —Inc., U.S. -, Components, transaction, Control statutory and the text itself is 1377, 4, & n. S.Ct. 1387-88 squarely aimed at the debt collector’s con- (2014); L.Ed.2d 392 United States v. duct, rather than at its effect on the con- (9th Johnson, 680 F.3d Cir. k(a) sumer. §§ See 15 U.S.C. 1692e & provides “any The FDCPA (proscribing any false, decep- [of] “use comply any debt collector who fails to with tive, misleading representation or ... with provision subchapter respect this added)). respect any person” (emphasis any person person.” is liable to such 15 A debt collector who addresses a mislead- 1692k(a). § U.S.C. And the substantive ing dunning letter to a consumer as a provision Tourgeman alleges was vio collecting means of that consumer’s debt may lated states that debt collector “[a] practice an unlawful respect “use[s]” “with false, any not use or deceptive, misleading consumer, regardless to” the of whether representation or means connection with interceding some condition—such as non- any the collection of debt.” Id. 1692e. letter, receipt of the or the consumer’s then, question, The is whether the “use it, failure to read or the fact that false, deceptive, misleading rep [of] or savvy enough consumer is not to be misled resentation ... with respect any per by practice it—renders the ineffective. corollary requirement son” entails a person representation whom the The manner in which the majority actually was addressed have received it. applied aligns courts have the FDCPA with this construction of the statute. To imposes The statute’s text no with, begin possesses a consumer a right Still, requirement. such it is not unrea of action even where the defendant’s con sonable for Nelson & Kennard to contend duct him has not caused or her to suffer very concept that the of a “representation” any pecuniary or E.g., emotional harm. contemplates presence parties: of two LLC, Phillips v. Asset Acceptance, party making representation Cir.2013); Robey, F.3d See, party to whom it e.g., is made. 1212; Wolpoff Miller v. & Abram WEBSTER’S THIRD NEW INT’L DIC son, L.L.P., (2d (1993) (defining TIONARY 1926 “repre 2003); Baker v. Corp., G.C. Servs. alia, sent” as meaning, inter “to set forth (9th Cir.1982). An (as place by statement, or someone before plaintiff account, (a actually need not even have been discourse),” and “[to] exhibit fact) (em misled or deceived the debt collector’s language” to another mind in added)); instead, phases representation; liability depends BLACK’S LAW DICTIO (9th ed.2009) NARY (defining “repre- hypothetical sophis- whether the “least noted, Supreme recently 4. As the Court what ular statute a cause of action in which a class "statutory Lexmark, the courts have sometimes called plaintiffs is authorized to sue. standing” perhaps addressed better ask- S.Ct. 1387-88 & n. 4. ing Congress by partic- whether has created 1118 See, e.g., marketplace. Gon or”—in be misled. likely would ticated debtor” addition, In zales, at 1061. Servs., LLC, F.3d 660 Fin. v. Arrow

E.g., Gonzales ... is a remedial the FDCPA (9th Cir.2011); 1055, “[b]ecause n. 2 1061 & 660 F.3d liberally in (9th statute, construed it should be 1428, 1431 109 F.3d Kaplan, Terran v. Capital v. consumer.” Clark favor of the Cir.1997). objective and is is inquiry This Inc., 460 F.3d Gonzales, Collection Servs. Credit & law. a matter of undertaken Cir.2006) (9th (quoting Johnson addition, 1176 by making F.3d at (10th Riddle, F.3d both consumers prevailing to available (omission 2002)) This rule of fees, original). attorneys’ damages and statutory that a our conclusion fortifies construction private that “clearly intended Congress did not Tourgeman, who such as consumer primacy actions would be enforcement directed Baker, dunning letter actually receive the Act.” tool of enforcement sent, none at the time was toward him (citing elements at 780-81 F.2d challenging may bring an action theless history); see also legislative FDCPA’s Act. letter under the Mickell, of that the lawfulness Sidney v. Law Evon Offices (“The Cir.2012) (9th F.3d reasons, Tourgeman has both For these statute protection a consumer FDCPA statutory cause standing and a Article III even encour permit, to was intended under the FDCPA.5 of action class coun [plaintiffs’ like attorneys age, to attorney generals THE private act as III. UNDER sel] CLAIMS Gonzales, claims.”); pursue FDCPA Tourge- merits of turn now to the We “Congress en (noting F.3d at 1061 claims, that we deter- require man’s which [of enforcement couraged private communica- the defendants’ mine whether individu aggrieved by permitting FDCPA] “misleading” under section were tions attorneys gen bring private suit as als to Although Tourge- the FDCPA. 1692e of Fin., Bridgeport (citing eral” Camacho charge against man the same basic levels Cir.2008))). (9th Inc., creditor, his all defendants —that Bank, statutory falsely features identified interlocking was These CIT Online are Bank —there Congress intended American Investment be demonstrate the various collec- between regulating debt a few distinctions goal achieve its differ- and these challenged consumers to documents by motivating tors’ conduct separate dis- dividing our they if are the ences warrant actions bring enforcement first address the of them. We And cussion efforts. targets of unlawful collection letters, complaint then the Paragon Way is ef- regulatory purpose the Act’s broad and filed by Nelson & Kennard of a drafted the lawfulness by measuring fectuated in California state impact against its collector’s conduct debt sent court, with the letter and conclude happens consumer who particular on the de novo We exercise lawsuit, likely & Kennard. rather on its but bring summary grant over a denial review vulnerable consumers— effect on the most Evon, at 1023-24. judgment. debt- sophisticated “least hypothetical court lawsuit complaint in state conten- mons reject Nelson & Kennard’s 5. We also 2007,” litigation dis- after in October Tourgeman's based on claims tion the collection covery existence of revealed the court The district letters are time-barred. *6; 3176453, at Tourgeman, WL time letters. that "the first appropriately concluded Serv., Mangum Collection v. Action see also [Tourgeman] reasonably could have be- Cir.2009) Inc., allegedly false and mis- aware of come discovery applies in FDCPA (holding rule letters leading representations in Defendants’ actions). with sum- was served was when his father This also “reviews a district Evon, court court’s or bizarre unreasonable.” 688 F.3d interpretation of the FDCPA de novo.” 1027.

Id. at 1024. addition, assessing “[i]n “comprehensively

The FDCPA liability, we are not concerned collectors,” regulates the conduct of debt mere technical falsehoods that mis liability and “is a strict one, statute.” Gon lead no but instead with genuinely zales, 1060-61; Clark, 660 F.3d at see also misleading statements that may frustrate (concluding F.3d 1174-77 that the ability a consumer’s intelligently choose strictly FDCPA holds debt collectors lia response.” Donohue, his or her ble). “broadly Section 1692e therefore words, at 1034. In other a debt collector’s false, prohibits ‘any deceptive, the use of false or misleading representation must be or misleading representation or means in “material” in order to be actionable any connection with the collection of under the FDCPA. Id. at 1033. “The ” Gonzales, debt.’ (quot at 1061 F.3d FDCPA, purpose provide ‘to infor 1692e). ing § 15 U.S.C. The section also helps mation that consumers to in choose provides a non-exhaustive list of sixteen telligently,’ would not be furthered cre practices that violate this general prohibi ating liability as to immaterial information tion; Tourgeman relies on three of the ‘by because definition immaterial informa 1692e(2)(A), proscribing subsections: (if tion neither objective contributes to that representation character, “false correct) the statement is nor undermines it ” amount, legal debt”; or any status of (if incorrect).’ the statement is (quot Id. 1692e(3),prohibiting representa the “false ing LLC, Hahn v. Triumph P’ships tion implication that any individual is an (7th Cir.2009)). Thus, attorney any or that communication is “false but representations non-material are attorney”; 1692e(10), from an forbid likely not to mislead the sophisticated least ding any “use of representation false consumer and therefore are not actionable or deceptive means to attempt collect or to under [section] 1692e.” Id. collect debt.” A. Paragon Way Letters circuit,

“In this a debt collector’s Paragon Way mailed three letters to liability under 1692e of the FDCPA is an Tourgeman falsely Gonzales, identified his origi- issue of law.” F.3d at 1061. nal creditor as “American The Investment analysis objective is and “takes into Bank, N.A.,” when in fact CIT Online account whether sophisticated ‘least originated Bank his loan. The would letters likely debtor be also misled commu ” ” displayed an “Original Account # (quoting Quick Id. nication.’ Donohue v. Collect, Inc., Tourgeman’s did match CIT 2010)). loan number. “The The first two of sophisticated ‘least these debtor’ let- ters, however, did simply “Description” standard is ‘lower than include examining particular stated, whether line item that “Dell language Computer would deceive Cor- ” or mislead a poration.” question debtor.’ The presented reasonable Id. Terran, (quoting 109 F.3d at whether this “Most combination of features —in agree courts that although the least so particular, letters’ misidentification of phisticated may uninformed, Tourgeman’s debtor be original creditor —rendered naive, gullible, her inter materially misleading nonetheless these letters under pretation of a collection notice cannot be section 1692e.6 Tourgeman places emphasis little on the number. At argument, oral his counsel sim- presence in the letters of incorrect an account Kennard, Thus, because says Nelson & false these contends respond ability intelligently to to reach a consumer consumer’s lead could

statements understandings have been adverse- would not incorrect letters of the any number information, he or predicament the by of the incorrect ly the nature affected about “material,” the consumer example, For not faces. statements were she the false erroneous that the Way be concerned did not might Paragon consequently and attempted of an is indicative information Act. the violate might assume consumer Or the fraud. Donohue, we held that defendant’s In collect a seeks to letter the that because of a debt as “inter- mislabeling portion of a him, belong to not evidently does that debt in fact the sum ... of 12%”—when est Al- safely disregarded. be letter can the and inter- charges pre-finance “included be con- might ternatively, the consumer 1692e because not violate section est”—did by to the letter responds that if he cerned falsity “did not undermine the statement’s demanded, he later will amount paying the intelligently choose ability to Donohue’s from a different letter another receive her debt.” Id. concerning her action the attempting collect collector debt on Seventh Circuit’s relied the 1034. We that be- contends Tourgeman debt. same Hahn, compara- in which involved decision the na- about beliefs each of these cause (“[T]he 557 F.3d at facts. See ble just as reasonable of the situation ture interest principal and between difference understanding, he has been one true the to the Fair Debt important is no more meaning the of within or deceived misled the color of than Practices Act Collection the Act.7 used.”); see creditor] that paper [the the maintains that de- & Kennard Inc., Mgmt, Credit v. Midland also Wahl of identification the erroneous spite Cir.2009) (“[Plain- (7th creditor, refer- the Tourgeman’s original showing [the that simply by win tiff] can’t Way Paragon in first two to Dell the ences ‘principal term collector’s] use of the debt off even the tip were sufficient letters sense; she in a technical balance’ is false the sub- about debtor sophisticated least it would mislead has to show And a collection effort. ject matter of the consumer.”). unsophisticated by men- puzzled genuinely consumer CDA, Ltd., contrast, in Lox v. By Bank, need Investment of American tion (7th Cir.2012), the court conclud- F.3d 818 call up phone only picked have could that a tribunal the statement ed that dispute debt. or to information more alone, statement, standing would be sufficient number unfamiliar account stated that the ply FDCPA. to violate the confusing.” "doubly Coun- made the letters Kennard, argument, in his & for Nelson sel summary judg argues also any made the basis claim on maintained that granted to been Collins not have should ment pled had not in been the account number of light deposition Paragon Way of testi and only and had been Tourgeman's complaint, Collins, the founder mony given by Walt district clear- appeal. But the court on raised Services, in Financial CEO of Collins former allegation in its de- ly factual considered this opined the misidentifi- Mr. Collins which Tourge- summary judgment. See cision original creditor violat Tourgeman's cation man, at *3. WL argument is fore This line ed FDCPA. event, misiden- we that the have by precedents, we conclude our closed indepen- a wit original bound recognized creditor is "we not tification of are Miller opinions the law.” dently constitute about sufficient to violation ness’s (9th n. 7 Cir. Cnty., num- Although incorrect account Clark 2003); the Act. violation, Serv. McHugh v. United Auto. we do see also compounds the certainly ber Ass’n, particular false determine whether attorneys’ fees payable award the con- frustrate a ability consumer’s to intelli- when, fact, such an outcome gently choose his response”).8 or her sumer — legal impossibility was a material —was The debtor who Paragon Way’s takes because, misrepresentation for the con- letters at face value—either because he case, sumer who believed that were the does not remember the details concerning a fact “would undoubtedly such have been his financing of a computer bought several a factor in his decision-making process, beforehand, years perhaps because he very have well could led to a decision never knew identity of his pay a debt that he preferred to would have creditor begin to might in engage with— to contest.” Id. at 827. And the Sixth attempt fruitless to investigate the facts of Circuit has held that a allega- consumer’s debt, this non-existent in a responsible ef- tions that she endured “confusion and de- fort to determine effectively how to most in lay trying to contact proper party the respond to the collection notice. This concerning payment on her loan and reso- might, quite debtor reasonably, contact problem,” lution of which allegedly [her] American Investment Bank to obtain was caused the false defendant’s state- background information so that he can re- particular ment that a held her mort- bank member what had transpired, earlier or to note, gage sufficiently stated a claim under obtain records that the bank holds materiality the court’s FDCPA standard. pertaining to his debt so that he can prove Bank, FA, Wallace Wash. Mut. off, he already paid had if he believes (6th Cir.2012). F.3d 327-28 But, course, such is the case. of American that, persuaded

We are in the Investment Bank have would no record of collection, of identity context debt the agreement; of a a loan the and unknown ac- original consumer’s creditor is a critical count number certainly is of in help no information, piece of and therefore its false to getting of things. bottom Even if in a dunning identification letter would eventually be the consumer way finds his to likely to mislead some learning consumers a ma the letter referred to the way. mislabeling terial Unlike portions of Dell debt he had incurred CIT Online principal Bank, a total debt as rather than delay already inter would have cost false, literally meaningful only but him portion to some thirty days est— “hypertechnieal” reader, Wahl, see 556 the grants FDCPA to consumers before F.3d at 645—the factual errors in Paragon having respond notice, to a collection Way’s letters to Tourgeman easily could lest the debt be collector entitled to as- cause the least sophisticated debtor to validity suf sume the of the debt. See 15 a disadvantage charting fer 1692g. course of U.S.C. And such “confusion and in response action delay the collection effort. in trying to proper party contact the Donohue, (a See 592 F.3d at concerning payment false loan” pre- [the] statement violates the FDCPA if it “may cisely the kind of infringement of con- Donohue, 8. The persuaded district court was "not WL (quoting at *5 creditor, original however, the misidentification of the approach, F.3d at This de number, or the account in this purpose case would feats the sophisticated of the least standard, ability 'frustrate a intelligently consumer’s debtor is to "ensure that the ’ response,” consumers, choose protects his or her gullible because "the FDCPA all sophisticated Clark, least would not have rec debtor well as the shrewd.” 460 F.3d at 1171 creditor, ognized Jackson, (quoting or account Clomon v. 988 F.2d number, (2d they correctly 1993)) (alteration omitted) even if been had iden Tourgeman, added). tified (emphases first instance.” call like- making such a false the FDCPA interests sumer’s best information — to the Wallace, first reaction F.3d would not be their ly to combat. seeks that it require letter, does the FDCPA nor 327.9 explained, previously we have be so. As fully are consumers ensuring that By obligation are no “consumers under of the facts and truthfully apprised or mislead- confusing explanation seek “to them enables the FDCPA rights, their letters.” ing language in debt collection decisions understand, make informed Gonzales, (citing at 1062 Fields 660 F.3d meaning- fully and about, participate Firm, P.C., Law Wilber process.” collection in the debt fully (7th Cir.2004)). Indeed, & Ken- Donohue, 1171; see also Clark, furthest to its argument, nard’s taken (“The purpose at 1033 reach, many of the would transform information ‘to provide [is] ” into sur- provisions FDCPA’s substantive intelligently.’ to choose helps consumers 757-58)).10 converting any dunning letter Hahn, plusage, F.3d at (quoting num- phone a return address and bearing would representations Paragon Way’s false misleading manner that a in a ber into communication consumers likely mislead Fields, enjoy right to these of those features. See of their virtue deprives them that these (noting therefore hold that Seventh We F.3d at 566 benefits. misleading materially that a “rejected proposition letters contained has Circuit liability under sec- in- trigger incomplete provide statements could debt collector Accordingly, the Act. of the long tion 1692e as it dunning in a letter so formation his judgment on entitled to appellant is the debt- telephone number for provided Way under subsec- against Paragon claims call”). materiality Interpreting or to e(10). 1692e(2)and tions the FDCPA’s gut fashion would such a misleading representations, prohibition of repeatedly suggests Kennard Nelson & must avoid a construction and “[w]e simply could that a consumer perplexed of the enactment any language renders collector to call the debt place phone to Pac. Nat’l Bank Security superfluous.” many But for any confusion. up clear Corp., Trust 63 F.3d Resolution who do not those particularly consumers— Cir.1995). (9th have encountered they recognize even the debtor who waits representa "promis harm to [ed] not make 9. Debt collectors must beyond days”). forego to consumers tions that tend to lead granted to them rights the valuable Collecto, Inc., See, Easterling v. e.g., may that the Act. & Kennard be correct 10. (collection (2d Cir.2012) original letter require does not “capacity to due to its sent section 1692e in collection letters violated be identified creditor fully availing them discourage from debt collector has debtors to consumers—but where creditor, Equi legal rights''); Russell v. identify selves of their to chosen Cir.1996) (2d A.R.S., inaccurately, representa- 34-36 the false done so has fax 1692g (collection ability both sections likely letters thwart a consumer’s violated tion would 1692e(10) language that by employing navigate action in re- freely a course of Congress's "uncertain as consumer notice. sponse tend to make to the would collection thirty-day period with that this informa- rights” enjoy recognition to her in the FDCPA not so essential dispute important demand validation if tion is in which debt —even collector); without first v. S. Or. Credit must disclose Swanson debt collectors from debt asked, 1692g(a)(5)— Serv., Inc., being 15 U.S.C. see provi- false curiam) (debt that its 1988) supports the conclusion (per collector violated im- type of detrimental have this overshadowing notice of sion could 1692g by section pact on the consumer. including language that thirty-day period by B. Complaint judgment State Court a default rather than the mere continuation of attempts. collection complaint We next address the prepared by Nelson & Kennard and filed C. Nelson & Kennard Letter Tourgeman in against California state Finally, court, we come to the letter which Nelson & Kennard delivered mailed to father, directly Tourgeman’s Tourgeman by who then Nelson & Kennard. That transmitted it to his son in Mexico. letter informed him client, that the firm’s *2, Tourgeman, 2012 WL Services, *8- Collins Financial forward- “ha[d] aspect 9.11 Because the one material ed account [his] to this office with instruc- complaint this same as that which tions that we take appropriate action to Paragon Way’s renders letters mislead effect collection of the above-referenced ing namely, the inclusion of erroneous — balances due.” The Nelson & Kennard references to American Investment letter did not mention Dell. It did refer- preceding Bank —the applies discussion Bank, ence “American N.A.,” Investment equal force to this document. The but, letters, Paragon Way unlike the it did complaint presented the information in a not label the bank Tourgeman’s “origi- format, however; somewhat different Rather, nal creditor.” both the bank’s body complaint twice referred to a name and the same incorrect account num- agreement loan between American Invest appeared ber in Paragon’s letters Tourgeman. ment Bank and Attached to placed were in a “Re:” line atop item the complaint was a blank exemplar of body of the letter. explana- There was no agreement such an between the bank and tion as to the meaning significance or of customer, a Computer Dell which featured pieces these of information. logos the of both American Investment Nelson & argues Kennard that Although Bank and Dell. complaint the the absence of a label informing Tourge any lacked reference to the erroneous ac man that American Investment Bank was number, count reasoning based on the original the creditor somehow makes the the preceding opinion, section of this we letter misleading less than by those sent necessarily conclude that Nelson & Ken Paragon Way, by nard violated Act because the credi transmitting the this complaint Tourgeman. tor was not “misidentified.” On the con trary, Nelson gives & Kennard’s letter the Furthermore, a consumer could be sophisticated least debtor even less of a by complaint harmed opposed to a —as clue as to to investigate how the claim dunning ways yet letter —in distinct equal- him, being against made making more ly problematic as those already we have likely that the consumer will waste valu example, discussed. For the consumer able time and in suffer confusion his ef engages legal who might counsel be unable forts to response. formulate a Nelson & to accurately apprise lawyer the of the emphasizes Kennard also its circumstances, letter potentially relevant leading correctly does identify Tourgeman’s cur opportunities lost to settle the debt. And the stakes are rent undoubtedly higher creditor —Collins Financial Services— but, fact, when the consumer faces the possibility of in simply the letter states that Donohue, 11. In this complaint merely court held that a com and concluded that a that is plaint directly filed, that is served served, on a consumer actually give but not also can qualifies subject as a "communication” that is liability Phillips, rise to under the FDCPA. to the strictures of section 1692e. 592 F.3d at 736 F.3d at 1082-83. gone 1031-32. At least one court has further contrast, which doctrine”—to ingful involvement By firm’s “client.” the Collins is passing, in see has once referred clearly describe this court letters Way’s Paragon Gonzales, which we “current creditor.” but Tourgeman’s Collins letter does & Kennard out squarely adopted grows Nelson have never Because — 1692e(3), Investment American who in 15 U.S.C. language not describe be, cannot and as one purports representation Bank false prohibits “[t]he debtor sophisticated that the least assume is an any individual implication or firm’s “client”—Col- understands any communication attorney or that entity to Services—is lins Financial attorney.”12 from an money, the con- currently owes whom he v. Jack case is Clomon The foundational the letter think that very well might sumer Cir.1993). (2d son, Clo F.2d 1314 currently by Amer- owned a debt concerns mon, part- as the the defendant worked a misunder- Bank. Such ican Investment collection counsel of debt general time consum- impede the could further standing agency to send agency, authorized rights under ability exercise his er’s and a bearing letters his name dunning FDCPA. he signature though facsimile of his —even that be- argues also & Kennard either the indi review personally did not on the heels of letter came cause its the files of the consumers vidual letters Paragon Way letters sent —two Id. at the letters were sent. to whom Computer Corpora- Dell which mentioned Second Circuit concluded 1316. The position Tourgeman’s consumer tion—a thereby violated attorney subsection the letter concerned what would know 1692e(3) “the collection letters because by the ab- not be misled would therefore defendant] ‘from’ [the were not need to Dell. We any reference sence of that word.” Id. at sense of meaningful may there be some decide whether conclusion, in part, was Driving this appro- it would be in which circumstances of an finding “use the court’s dunning letter’s determining a priate, in least implies attorney’s signature —at mislead, the con- tendency to to consider contrary— language to the the absence sent earlier letters receipt sumer’s -of formed attorney signing the letter that the already collector. As we debt different manage the case opinion an about how Way’s letters Paragon explained, have to whom the letter was sent.” of the debtor materially misleading notwithstand- were subsec This construction of Id. 1321. to Dell. The references ing having included 1692e(3) by adopted has since been tion sent the had Tourgeman fact that been See, e.g., circuits. Lesher four other Way letters therefore misleading Paragon P.C., Kay, N. Mitchell Law help Nelson & Kennard. does not Offices of (3d Cir.2011); 993, Kistner F.3d indepen- also advances an Tourgeman Margelefsky, P. Michael Law Offices of Nelson & finding that ground dent (6th Cir.2008); 433, Tay letter violated dunning Kennard’s Perrin, deLaunay & Du Landry, lor v. lawyer who alleges He FDCPA. (5th Cir.1997); rand, was letter signed the Nelson & Kennard Cir.1996). Rubin, Avila v. the evalua- “meaningfully involved” in ratio explained the The Circuit Seventh sending a case before Tourgeman’s tion of “An way: unso- doctrine this nale for the The “mean- letter law firm letterhead. claims, e(10) phrase has devel- because the "meaningful concept involvement” The through oped. courts’ construction brought pertinent under sub- only to claims e(3). e(2) 1692e(3), unique language of and not to subsection section consumer, phisticated getting “[vjiola- a letter from Tourgeman. in favor of Because ‘attorney,’ price poker an knows the has tion of a single provision [FDCPA] is suffi- Avila, just gone up.” 84 F.3d at 229. Gonzales, cient to liability,” establish F.3d at 1064 n. we need not decide granted The district court summary whether Nelson & Kennard also violated judgment to Nelson & Kennard on 1692e(3) subsection on a based lack of Tourgeman’s claim under subsection 1692e(3). meaningful attorney involvement.14 meaningful It assumed that the applicable, involvement doctrine was see IV. CONCLUSION Tourgeman, *6, per WL haps because an earlier decision reasons, For the foregoing we conclude case—when the action was before another judgment of the district court judge district on Nelson & Kennard’s mo granting judgment Collins, Paragon complaint- tion to dismiss the judge Way, and —that Nelson & Kennard must be re- adopted had Tourge doctrine. See versed, judgment and that should instead man, 2011 WL at *8-9. In ruling Tourgeman be entered for against Para- summary motion, on the judgment howev Way and gon Nelson & Kennard. We er, the district court found it undisputed express no view regarding whether attorney that the who signed the collection Tourgeman is entitled judgment against involved, letters was meaningfully and itself, Tourgeman’s Collins claims granted judgment to Nelson & Kennard on against entity theory were based on a the meaningful claim. involvement liability of vicarious that was neither decid- 3731807,at WL *6-7. by ed the district court nor briefed on this We need not determine whether to appeal. We remand proceed- for further 1692e(3) adopt a construction of section ings consistent with opinion. this that incorporates requirement of mean- REVERSED AND REMANDED. ingful attorney involvement an who sends a dunning We already letter.13 have FARRIS, dissenting. Circuit Judge, concluded that Nelson & Kennard violated I respectfully dissent. As I view the including misleading refer- record, the trial court got right. I would ences to American Investment Bank in affirm. both its letter to state court complaint against it filed him.

These conclusions are sufficient to warrant

both reversal of the judgment granted to entry

Nelson & Kennard of judgment reason, deny 1692k(a), (b))); 13. For this we the motion of the U.S.C. Peter v. GC Servs. L.P., National Association Retail of Collection At- (5th Cir.2002). 352 n. 5 torneys for leave to an file amicus curiae brief respect Should there arise a dispute with support appellees. damages implicates a need to decide 1692e(3), Tourgeman’s claim under dis- only potential finding The relevance an presumably trict court will adhere to the law respect additional violation be could apply meaningful of the case and involve- calculating statutory damages amount court, ment But doctrine. the district unlike Clark, Tourgeman. to be awarded to See equivocal we view the evidence be as to (concluding F.3d at 1178 that “the fact that attorney what the did or did not do before the predi- numerous violations the FDCPA are letter; record, dunning firm sent the on this upon cated one set of circumstances should party summary neither would be entitled to be considered it is best considered judgment on this claim. during damages” (citing calculation of

Case Details

Case Name: David Tourgeman v. Collins Financial Services

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 25, 2014

Citation: 755 F.3d 1109

Docket Number: 12-56783

Court Abbreviation: 9th Cir.