*2 REINHARDT, Before WALLACE *3 II STEPHENS,* Judges, and Circuit the first that notice Swanson Judge. District Senior (initial Oregon him that Southern sent to communication) of violates the validation CURIAM: PER provision contained in 15 U.S.C. debts appeals the district court’s Swanson 1692g(a). provides That section that § judgment to entry summary send debt collectors must consumers writ Service, (Southern Oregon Inc. Ore- Credit containing ten notice certain information alleges some gon). that of South- Swanson alleged advising the debt and practices vio- collection ern debt them inter alia that will be assumed to be Practices Fair Debt Collection lated the the its valid unless consumer contests accu (1982)(Feder- Act, seq. 1692 et 15 U.S.C. §§ validity days. or The racy thirty within Act), Oregon Debt al and the Unlawful section reads follows: Act, Or.Rev.Stat. Collection Practices (a) the initial Within five after Act). (1987)(Oregon The district 646.639 a communication with consumer in con- Act jurisdiction the Federal court had over debt, any nection the collection of a 1692k(d). It de- U.S.C. claims under 15 shall, following debt collector unless the jurisdiction pen- over the to exercise clined is contained in the initial information jurisdiction claims. We have dent state paid communication or the consumer has pursuant to 28 1291. We affirm U.S.C. § debt, a the send the consumer written part. part, and remand in and reverse containing— notice debt; (1) the amount the I (2) name of the creditor to the whom owed; to Com- the debt is owed Cascade $262.20 Hospital. hospital The referred col- munity (3) a statement unless the con- Oregon. the debt to Southern lection of sumer, thirty days after the re- within Oregon sent various notices notice, disputes ceipt validity the the num- and made indeterminate debt, portion thereof, or the attempt telephone calls in an ber of by debt will be assumed be valid the collect the debt. collector; debt statement that if the consumer against suit Southern Ore- Swanson’s writing the notifies debt collector gon, alleged some of Southern Ore- period thirty-day within the practices gon’s collection violated thereof, debt, any portion or is dis- Act. dis- Oregon Act and the Federal puted, will obtain judgment granted summary for trict court copy of a verification or respect Swan- against judgment the consumer and a Act, son’s under the Federal denied claims copy judgment of such verification partial summary Swanson’s motion by will be mailed to consumer judgment, jurisdic- exercise and declined to collector; and pendent state law over Swanson’s that, upon the a statement con- claims under the Act. The district request within the Oregon’s request sumer’s written denied Southern period, timely thirty-day the debt collector fees and costs. Swanson attorneys’ * fornia, Jr., sitting designation. Stephens, Senior Unit- Honorable Albert Lee Judge, ed Cali- States District Central District of rating if he should himself with the credit avail provide the consumer original day period. credi- of Act’s 30
name and address of the cur- tor, from that if different magistrate, findings whose were creditor. rent adopted without or comment revision designed 1692g(a). Congress court, 15 U.S.C. argu- termed Swanson’s recurring to “eliminate “frivolous,” Federal Act concluding ment that “[noth- dunning the collectors of debt problem ing in notice con- reasonably can attempting to wrong person or collect threatening strued as with ad- [Swanson] already has the consumer which debts consequences.” verse This conclusion Cong.2d S.Rep. Sess. No. 95th paid.” patently at odds with the tenor and text of Cong. & reprinted 1977 U.S.Code itself. The reference the un- 1695, 1699. It added the vali Admin.News file,” juxtaposed defined “master with the to en provision specifically of debts dation rating admonition Swanson’s credit gave collectors consumers that debt asset,” sure was his “most valuable cannot rea- *4 concerning their le adequate information interpreted sonably anything as but a be id., Cong. rights. 1977 U.S.Code & gal See pay if did not 10 threat: Swanson within circuit, Admin.News at days, placed in his name would be Southern alleged to violate sec impact language he “master file” and a result “least so 1692g judged is under the would lose his “most valuable asset.” . standard. Baker v. phisticated debtor” magistrate’s conclusion dem Corp., 677 G.C. Services misconception a onstrates fundamental Cir.1982) (Baker). is, That if we find that 1692g. is the nature of section The statute sophisticated likely debtor merely by of the satisfied inclusion by notice Swanson misled which be notice; required notice debt validation Oregon, we must from received Southern Congress required conveyed effec must be has violated the credit service hold tively large to the debtor. It must be Act. enough sufficiently easily to read and be that the initial communi- Swanson admits prominent by the least to be noticed—even from contained cation Southern Baker, sophisticated F.2d at debtor. 1692g, required by section language basic effective, Furthermore, the no to be message contradict- argues that its was but or contra tice must not be overshadowed by the balance ed and “overshadowed” appear messages or notices by dicted other The notice the notice. ing in the initial communication contained, type faced bold sent Nation agency. E.g., Thomas v. collection larger times than the vali- several Inc., Assistants, No. N82-469 al Business by 1692g, required notice dation 5, 1984) and (D.Conn. (“inconspicuous Oct. following message: did “not grossly overshadowed” notice THIS PAID WITHIN “IF ACCOUNT IS recipients of their vali properly notify DAYS THE NEXT 10 rights”); v.Ost Collection dation of debt (D.N.D.1980) Bureau, Inc., F.Supp. IN BE RECORDED OUR IT WILL NOT (O (communication st) must not be COL- MASTER FILE AS AN UNPAID designed spirit of the to “evade LECTION ITEM. dis into statute, and mislead the debtor RATING—IS YOUR A GOOD CREDIT notice”). regarding the ASSET.” MOST VALUABLE Oregon no small, Reviewing the Southern language, stan- Beneath this through the received required by tice type, which was the notice dard-face debtor, there eyes the least argued to the dis- statute. Swanson misleading in here, question court, is little again trict and contends required large type both form and content. of the lan- the “visual effect” very bot placed at the validation notice is the debt validation guage overshadowed small, ordinary face form in notice, tom of the language and tone con- and that its faced, underlined type, dwarfed a bold of harm to impermissible threat stituted domi- times the size which message three accounts) your arrangements are made page. impor- More nates center complete investigation within 48 hours a language tantly, the substance employment begin concerning your and threatening contradiction to the stands in the second assets.” Swanson notice. The text of the debt U.S.C. notice violates 15 message of the “master prominence and legally contact Oregon could language, asset” file” “most valuable concerning the debt. Swanson’s debtor, and lead the least Swanson relies on 15 U.S.C. §§ debtor, average quite probably even 1692c(b), 1692a(2). 1692e(5)1 Section ignore his he must only to one conclusion: making bars a debt collector from a threat days verify his debt and right to take 30 legally that cannot “to take action immediately be remembered act or will 1692c(b)2prohibits taken.” Section a debt “master file” of his in the as a deadbeat “communicating” collector from with most will, according- agency and local collection parties, including employer. third a debtor’s asset,” good valuable ly, lose his “most 1692a(2)defines a “communication” Section rating. credit conveying as “the of information 1692g pro- designed section Congress directly indirectly any person ques- alleged with 30 vide debtors through any medium.” the initial communica- respond tion and question our Our threshold concerns The form used agency. tion of a collection Obviously, evaluation of the threat. one Oregon in this case invokes might perceive reader the communication period, promising harm to response shorter *5 employer as a threat to contact the reader’s beyond days. the who waits debtor might while another not. In Jeter Cred- attempt the represents an “on form thus Bureau, Inc., it agency to evade the part of the collection Cir.1985), the Eleventh Circuit concluded spirit notice statute and mislead the of the interpret that it should not the threat disregarding [required the debt debtor into through eyes of the least Ost, F.Supp. notice.” at 703 validation] evaluating debtor certain violations of (collection requesting payment in form five 1692e(5). The section Eleventh Circuit printed in validation notice small with stated that “the subsection issue is sim- comply sec- print on reverse did not ply or whether not debt in- [the collector] 1692g). tion to take the action threatened. tended Accordingly, we hold that Southern Ore- Thus, (5) requires proof of a subsection gon’s with Swanson initial communication per fact which amounts to a se violation of 1692g Act. violated section of the Federal sophistication 1692e. The or lack there-
of, of the is to consumer irrelevant whether to take [the collector] ‘threat[ened] Ill any action ... that not intended to be [was] ” Thus, analyzing the second taken.’ Id. Swanson also attacks when him which stat- that sent claim that the debt collector threatened ac- take, in full or definite ed: did not intend to the Eleventh “Unless 1692e(5) prior given provides: 1. Section without the consent of the consumer collector, false, directly express any to the debt or the may decep- A debt collector not use tive, permission competent jurisdiction, misleading representation or of a or means court of any reasonably necessary post- connection with the collection debt. as to effectuate application limiting general of the Without judgment judicial remedy, may a debt collector foregoing, following conduct is a violation communicate, not in connection with the collec- of this section: debt, any any person tion of other than the any The threat to take action that can- consumer, attorney, reporting a consumer legally be taken or that is not intended to law, agency permitted by if the credi- otherwise be taken. creditor, tor, attorney attorney of the or the 1692c(b) collector. provides: 2. Section (b) parties third Communication with —Ex- title, cept provided in section 1692b of this Although this ticated debtor standard. that the least indicated Circuit apply objective, standard is the standard is lower standard would ticated debtor chal- simply examining particular nature of the threat than whether evaluation as to as well a rea- lenged language section would deceive or mislead under debt collector’s intent. debtor. question sonable 1692e(5) two However, delineates section The district court determined that threat threats: a types prohibited not violate be- notice did section legally tak- that cannot be any take action the least sophisticated cause even debtor taken. not intended to be en or that is not construe the notice as a threat to is sophistication of the debtor Even if the legally that could taken. take action be question of the collector’s to the irrelevant “[njotice The district court concluded that question intent, not answer the this does investigate the defendant intended arguably threat- a statement that plaintiff’s employment assets cannot legally ens action cannot to take ‘least reasonably be construed even through eyes be viewed taken should threatening any sophisticated consumer’ as In the latter unsophisticated debtor. regarding the nature illegal communication context, understanding of the the debtor’s obligation.” or existence of a debtor’s clearly communication relevant. differently. see it Under We conclude, therefore, We standard, we sophisticated debtor least ap debtor does standard threat that Southern hold allegation that a debt collector ply to an concerning “complete investigation make a any to take action made a “threat your employment” violates legally be taken.” 15 U.S.C. cannot 1692c(b)prohib 1692e(5). Because section Otherwise, 1692e(5). collector a debt and unauthorized its such unconsented language threatened action could couch with a debtor’s communication as to what the that misleads some debtors Allowing legally could do. debt, constitutes a concerning the the threat “misleading” run coun such threats would legal any cannot to take action that “threat language 1692e. plain ter of section 1692e(5). taken.” 15 U.S.C. ly be false, (“A collector not use *6 Oregon argues that the second Southern misleading or representation deceptive, or misleading threat that vio- notice is not a in connection with the collection means so- the least lates section debt.”) can be any To the extent that Jeter no- construe the phisticated debtor would reject read the least debtor in hours merely stating that 48 tice as alleged any threats to violate standard seeking per- Oregon begin Southern disagree. we There 15 U.S.C. § 15 U.S. location information. See fore, in missible the threatened conduct we evaluate however, believe, that the We under the least C. 1692b.3 the second notice card; (4) by post provides: not communicate 3. Section 1692b any (5) any symbol language not use or communicating any Any with debt collector any envelope communi- purpose or in the contents of person for the other than consumer telegram con- acquiring information about the or location effected the mails cation shall— sumer collector is in indicates that the debt himself, (1) identify he is con- state that the communication collection business or that correcting firming information or location debt; the collection of a and relates to and, consumer, only concerning ex- if (6) con- knows the after the debt collector identify employer; pressly requested, his attorney represented by re- sumer is any (2) such owes not state that consumer of, knowledge subject gard debt and has to the debt; ascertain, readily attorney’s name such or can (3) person any such not communicate with address, any per- not communicate with and requested to do so than once unless more attorney, attor- than that unless the son other person unless collector rea- or the debt such sonably peri- respond ney within a reasonable fails response that the believes earlier of time to communication od incomplete person such is erroneous or collector. complete person now has correct or that such information; location 1228 receiving the debtor sec- IV associate the threat ond notice would Swanson next investigation complete “a undertake [of] master file statement in contained South and assets” with an em-
your employment Oregon’s communication, (2) ern initial barrassing inquiry with his con- statement in Oregon’s contained debt, concerning perform- his cerning the second notice that in full “[u]nless concerning employee, and arrangements your ance as an or definite are made on added.) accounts) complete within 48 hours in (Emphasis The word job security. vestigation begin concerning your em “possessing all “complete” means neces- assets,” ployment and the state elements; items, components, or sary parts, ment in contained third necessary.” anything in lacking Web- “[b]y paying notice that this in account full Dictionary Third New International ster’s bureau, notify we will each credit where we (1971). phrase “complete 465 investi- information, derogatory sent paid of its something more gation” than sim- connotes status,” together, when taken constitute obtaining permissible location ply informa- oppressive practices debt collection that vi Oregon merely tion. If Southern meant to olate 15 U.S.C. 1692d. Section 1692d begin state that after 48 hours it would provides, part, in “[a] information, permissible seek location “ may engage any conduct the natural notice should so stated. have who ‘[0]ne harass, consequence of which is to oppress, goes perilously close deliberately to an area any person abuse connection proscribed conduct the risk that [takes] Congress adopted collection of debt.” ” line.’ Colgate- cross the FTC v. general language in order to “enable Co., 374, 393, 380 U.S. 85 Palmolive S.Ct. courts, appropriate, proscribe when 1047, (1965), 1035, 904 quoting 13 L.Ed.2d improper specifi ... conduct which is not Lines, States, Boyce Motor Inc. v. United cally 1692d(l)-(6) addressed [in ].” 337, 340, 329, 331, 72 S.Ct. U.S. 382, S.Rep. Cong.2d 4, No. 95th Sess. re (1952). L.Ed. 367 crossed printed Cong. U.S.Code & Admin. 382, S.Rep. No. Cong.2d the line. 95th See News 4, reprinted Cong. Sess. in 1977 U.S.Code The district court did not address this (the “extremely & Admin.News issue. Southern contends that important protection” that the Federal did raise the issue in the provides except Act in that for contacts court, and, therefore, that we for location information under 15 U.S.C. should not consider the appeal. issue on 1692b, prohibits the Federal Act See, e.g., Commissioner, Bolker v. contacting per- debt collector from “third 1039, 1042(9th Cir.1985)(Bolker). At sons such as a employer. consumer’s ... argument, oral disputed the as legitimate Such contacts are not collection *7 sertion he did not raise the issue in the practices in and result serious invasions of court, relying Paragraph district on 4 of his privacy, jobs.”). as the loss of as well complaint. amended debtor, To the least the no Paragraph 4 of Swanson’s amended com- Oregon tice threatens that which Southern plaint states that creditor threatened “[t]he legally could not do. See 15 U.S.C. improper plain- communication the 1692e(5); Rutyna v. Collection Ac § employer tiff’s others the Terminal, Inc., F.Supp. counts 478 debt, plaintiff’s employment, assets or oth- (N.D.Ill.1979)(threat personally 981-82 “to topics.” er paragraph put This did not the neighbors call” a consumer’s and district court on sufficient notice that the concerning the debt violates section arising claim was under section 1692d. 1692e(5)). Thus, Southern violated paragraph neither mentions the statute summary judgment section in and “harass, nor oppress, mentions the words its favor on that issue should not Rather, have been paragraph appears or abuse.” the granted. Oregon allegedly to state that Southern WALLACE, Judge, concurring sec- its Circuit 15 U.S.C. violated § dissenting: Moreover, and paragraph the does notice. ond Oregon’s con- of Southern not mention all in all II of part majority I concur but alleges violated section that Swanson duct I opinion. part, As to that dissent. communication, the mas- initial 1692d—the does not contend that the debt statement, in- “derogatory and file ter clause ini- validation was omitted from the contained in the third statement formation” the contrary, tial communication. On he Therefore, address we decline to notice. Rather, agrees it was included. Bolker, 760 1692d issue. See the section there was of a violation 15 U.S.C. at F.2d 1692g(a) the debt because validation
clause, print ordinary which inwas at the communication, bottom initial was V eclipsed by provision using very a different de Oregon appeals large print in the middle initial com- fees attorneys’ munication which “If nial court of stated: this account district paid within the next 10 not is 15 U.S.C. pursuant costs and in our file unpaid recorded master as an 1692k(a)(3), 1692k(a)(3). a section Under good rating collection item. A credit attorneys’ fees recover your most asset.” valuable finding upon the district court’s costs and Act was an action under Federal rejected The district court Swanson’s purposes for brought in faith and argument. bad “visual effect” court con- court’s review district cluded that Southern notice suffi- harassment. We ciently notified Swanson his section finding faith issue under on the bad 1692g rights. v. clearly erroneous standard. See Juras Service, Inc., 829 F.2d
Aman Collection
considering
After
case law
limited
Cir.1987)
curiam).
(9th
(per
We
739, 745
I
discussing
1692g,
that we
section
believe
grant or
for an
the ultimate
denial
review
in
review the document
a whole
should
Perry
Ti
of discretion.
v. Stewart
abuse
given
order
evaluate
(5th
1197, 1211
Cir.),
Co.,
mod
756 F.2d
tle
sufficiently inform least
cluded that “the demand hours so interferes with the
act within 72 right statutory to dis-
consumer’s absolute debt[, 1692g,] as to
pute the 15 U.S.C. § purpose negate the effect and
totally particularly, where as provision, here, every there is reason to believe DAVIS, Terry L. Administrator for the grave perceive the consumer some will Davis, Deceased; Estate of Ronald D. consequence follow within hours.” Davis, Davis, Terry Jacqueline L. D. state does not Fardell letter Individuals, Plaintiffs-Appellants, 1692g rights clearly set the section were v. forth in reviewed. the communication ELLENSBURG; Joseph OF K. CITY advisory opinions express Such informal Delozier; Newbry; Michael A. William then-existing posi the FTC’s enforcement Hutton, Defendants-Appellees. J. opinions carry advisory tion. These do No. 87-4245. weight congressionally authorized agency Congress expressly regulations. Appeals, United States Court of prohibited issuing additional FTC Ninth Circuit. regulations. rules U.S.C. 1692l 5, (c), (d); Argued Capital & Col and Submitted Oct. 1988. Pressley v. Credit 922, Service, Inc., 925 n. 2 lection 760 F.2d 1, Decided March Thus, Cir.1985) curiam). although (per As Amended March weight give courts should to such some opinions, they do not bind courts. See 925;
Pressley, Harris, 760 F.2d at Staub (3d Cir.1980). reviewing
After the initial communica-
tion, I conclude that the fact that clearly printed on the notice is page ordinary typesize,
same al- and is in