Duvall v. Portfolio Recovery Associates, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JEANNIE DUVALL,
Plaintiff,
vs.
PORTFOLIO RECOVERY
ASSOCIATES, LLC,
Defendant.
Case No. 3:22-cv-00068-JMK
ORDER DENYING
MOTION TO DISMISS
Before the Court at Docket 8 is Defendant Portfolio Recovery Associates,
LLC’s Motion to Dismiss (the “motion”). Plaintiff Jeannie Duvall responded in opposition
at Docket 10, to which Defendant replied at Docket 11. For the reasons stated below, the
motion is DENIED.
I. 	BACKGROUND1
Portfolio Recovery Associates, LLC (“PRA”) is one of the largest debt
collectors in the United States. On or about August 20, 2019, PRA filed a collection action
against Ms. Duvall in Alaska Superior Court (“Superior Court”) to collect an unpaid credit
1 The parties do not appear to dispute the facts of this case. 	See Docket 8 at 3–4;
Docket 10 at 3–5. Regardless, for the purposes of this motion, the Court presumes Ms. Duvall’s
allegations to be true, see infra at 3–4.
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card debt.2 On December 7, 2021, the Superior Court found Ms. Duvall liable to PRA for
the debt’s principal amount of $1,699.3 PRA then moved to recover litigation costs under
Alaska Rule of Civil Procedure 79. PRA filed a Cost Bill totaling $7,532.10.4
Ms. Duvall contested the Cost Bill and requested documentation of the
specific costs claimed by PRA.5 	Before producing the documentation, PRA filed an
Amended Cost Bill for $6,272.85, along with a Notice of Errata stating that the original
Cost Bill included over $1,200 in costs attributable to another case.6 Ms. Duvall asserted
that the Amended Cost Bill still included over $2,300 in transcript costs attributable to yet
another case.7 Ultimately, the Superior Court awarded PRA $3,569.10 in costs, “less than
60% of the amount claimed in PRA’s Amended Cost Bill.”8
On March 25, 2022, Plaintiff filed her Complaint before this Court alleging
various violations of the Fair Debt Collection Practices Act (“FDCPA”). First, Ms. Duvall
alleges that PRA violated 15 U.S.C. § 1692f(1) by attempting to collect litigation costs that
were unauthorized by law or contract.9 	Second, Ms. Duvall alleges that PRA falsely
represented the amount of costs in violation of 15 U.S.C. § 1692e(2) and (10).10
2 Docket 1 ¶ 7.
3 Id. ¶ 9.
4 Id. ¶ 10.
5 Id. ¶ 11.
6 Id. ¶ 12.
7 Id. ¶ 13.
8 Id. ¶ 14.
9 Id. ¶ 19.
10 Id. ¶ 20.
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PRA now moves to dismiss Ms. Duvall’s Complaint for both lack of subject
matter jurisdiction and failure to state a claim.11 In doing so, PRA asks this Court to take
judicial notice of the filings in the underlying debt collection action in Superior Court.12
II. 	LEGAL STANDARD
A. 	Federal Rule of Civil Procedure 12(b)(1)
PRA first moves to dismiss Ms. Duvall’s claim for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). 	“A federal court is
presumed to lack jurisdiction in a particular case unless the contrary affirmatively
appears.”13 	As such, the party asserting subject matter jurisdiction has the burden of
proving its existence.14
A jurisdictional attack under Rule 12(b)(1) may be facial or factual. A facial
attack accepts the plaintiff’s allegations as true but asserts that they are legally insufficient
to invoke jurisdiction.15 A factual attack contests the truth of the plaintiff's allegations, and
accordingly, the defendant may introduce evidence outside the pleadings.16 The court no
longer presumes plaintiff’s allegations to be true, and the plaintiff must support her
jurisdictional allegations with “competent proof.”17
11 Docket 8 at 4–11.
12 See generally Docket 9.
13 A–Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (quotation omitted).
14 Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017); Laborers’
Int’l Union of N. Am., Loc. 341 v. Main Building Maint., Inc., 435 F. Supp. 3d 995, 999 (D. Alaska
2020). 15 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
16 Id.
17 Id. (quoting Hertz Corp. v. Friend, 559 U.S. 77, 96–97 (2010)).
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“When faced with a challenge to its subject matter jurisdiction under
Rule 12(b)(1), the court must resolve that issue before determining whether the complaint
states a claim under Rule 12(b)(6).”18
B. 	Federal Rule of Civil Procedure 12(b)(6)
If the Court finds that subject matter jurisdiction exists, PRA argues that
Ms. Duvall’s 	Complaint 	should 	be 	dismissed 	pursuant 	to 	Federal 	Rule 	of 	Civil
Procedure 12(b)(6) for failure to state a claim. To survive dismissal under Rule 12(b)(6),
a complaint must contain enough facts that, if taken as true, would state a legal claim to
relief that is “plausible on its face.”19 	The court assumes that the facts alleged in the
complaint are true and construes them in the light most favorable to the plaintiff.20
However, conclusory statements, unwarranted inferences, and naked assertions of law will
not suffice; the claim “must be supported by factual allegations” to survive a motion to
dismiss.21
Overall, dismissal for failure to state a claim is proper “if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
[her] to relief.”22 A court may dismiss a case based on an affirmative defense “only if the
defendant shows some obvious bar to securing relief on the face of the complaint.”23 	In
18 Laborers’ Int’l Union, 435 F. Supp. 3d at 999 (citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998)).
19 Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
20 Id. (quoting Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012)).
21 Ashcroft, 556 U.S. at 679.
22 Laborers’ Int’l Union, 435 F. Supp. 3d at 1000 (quoting Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 923 (9th Cir. 2001)).
23 ASARCO, LLC v. Union Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
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that situation, a motion to dismiss will be granted only when the affirmative defense “raises
no disputed issues of fact.”24
III. 	DISCUSSION
As a preliminary matter, the Court takes limited judicial notice of the relevant
Superior Court documents.25 	Judicial notice is appropriate for facts that are “not subject
to reasonable dispute” because they “can be accurately and readily determined from
sources whose accuracy cannot be reasonably questioned.”26 This can include matters of
public record, such as court documents.27 Because the state court documents at issue here
are not subject to reasonable dispute, the Court takes judicial notice of the existence of the
parties’ filings and the Superior Court’s cost award.28 	However, judicial notice does not
extend to any factual statements in the parties’ filings or findings of fact in the Superior
Court’s order.29
Turning to the merits, PRA urges the Court to dismiss this action because
(1) it is a de facto appeal from a state court judgment and thus barred by the Rooker-
Feldman abstention doctrine; (2) the Superior Court’s judgment precludes successive
24 Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).
25 See generally Docket 9 at 1–2 (requesting judicial notice of PRA’s Cost Bill, PRA’s
Notice of Errata to Cost Bill, Ms. Duvall’s Cost Bill Objections, PRA’s Reply in Support of its
Amended Cost Bill, and Judge Guidi’s Order Granting Costs to PRA). PRA’s request for judicial
notice appears to be unopposed.
26 Fed. R. Evid. 201(b)(2).
27 See Lee v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001).
28 See United States v. Chaplin, Case No. 3:19-cr-00121-SLG, 2021 WL 149677, at *1 (D.
Alaska Jan. 15, 2021) (taking judicial notice of the fact of state court records).
29 See id.; Lee, 250 F.3d at 690 (“On a Rule 12(b)(6) motion to dismiss, when a court takes
judicial notice of another court’s opinion, it may do so not for the truth of the facts recited therein,
but for the existence of the opinion, which is not subject to reasonable dispute over its
authenticity.”) (internal quotation omitted).
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litigation on this issue; and (3) the filing of a post-judgment cost bill is not “an attempt to
collect a debt” within the meaning of the FDCPA. 	The Court rejects each of these
arguments in turn.
A. 	The Rooker-Feldman Abstention Doctrine Does Not Apply to Ms. Duvall’s
Claims Because She Does Not Allege a Legal Error by the Superior Court and
Does Not Seek Relief From Its Judgment
The 	Rooker-Feldman 	doctrine 	“prohibits 	a 	federal 	district 	court 	from
exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court
judgment.”30 A de facto appeal occurs when “the federal plaintiff both asserts as her injury
legal error or errors by the state court and seeks as her remedy relief from the state court
judgment.”31 	As the Supreme Court explains, the Rooker-Feldman doctrine applies to
“cases 	brought 	by 	state-court 	losers 	complaining 	of 	injuries 	caused 	by 	state-court
judgments . . . and inviting district court review and rejection of those judgments.”32 This
doctrine is a narrow exception to the Court’s jurisdiction, and it is increasingly disfavored
by federal courts.33
The 	Rooker-Feldman 	doctrine 	simply 	does 	not 	apply 	to 	this 	case.
Ms. Duvall’s Complaint is not a de facto appeal of a state court judgment, as she neither
asserts a legal injury by the Superior Court nor seeks relief from its judgment.34 	In fact,
30 Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004).
31 Id. at 1140 (emphasis in original).
32 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
33 See, e.g., id. at 293–94 (cabining Rooker-Feldman’s application and stating that the
“disposition of the federal action, once the state-court adjudication is complete, would be governed
by preclusion law.”); Vanderkodde v. Mary Jane M. Elliot, P.C., 951 F.3d 397, 405–09 (6th Cir.
2020) (Sutton, J., concurring).
34 See Docket 1 at 5 (requesting damages under the FDCPA); also Bianchi v. Rylaarsdam,
334 F.3d 895, 900 (9th Cir. 2003) (“[W]e cannot simply compare the issues involved in the state-
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Ms. Duvall explicitly agrees with the Superior Court’s order granting PRA $3,569.10 in
litigation costs.35 In the instant action, Ms. Duvall alleges that PRA’s conduct before the
Superior Court—namely, including erroneous amounts in its original Cost Bill and
Amended Cost Bill—violated the FDCPA. 	This claim does not require this Court to
interrogate the Superior Court’s rationale or invalidate its final cost award.36 	Similar
FDCPA claims are often brought in federal district courts, which routinely find that the
Rooker-Feldman doctrine is not triggered.37
PRA argues that the Complaint is a de facto appeal of the Superior Court’s
cost award because Ms. Duvall’s FDCPA claims are “inextricably intertwined” with the
state court decision.38 This is a subtle but crucial misunderstanding of the Rooker-Feldman
doctrine. 	In the Ninth Circuit, courts decline to exercise jurisdiction over issues that are
“inextricably intertwined” with the state court decision only when the plaintiff’s complaint
is a de facto appeal from that judgment.39 Federal courts do not abstain whenever a federal
court proceeding to those raised in the federal-court plaintiff’s complaint . . . [r]ather, under
Rooker-Feldman, we must pay close attention to the relief sought by the federal-court plaintiff.”)
(internal quotation omitted) (emphasis in original).
35 Docket 10 at 2, 5, 12.
36 See Kourgasian, 359 F.3d at 1140 (allegations of extrinsic fraud committed by adverse
party on the state court was not a de facto appeal because it was not an error by the state court).
37 See, e.g.,. Parker v. Peters & Freedman, LLP, No. 8:17-cv-00667-JLS-DFM, 2018 WL
590416, at *3 (C.D. Cal. Apr. 9, 2018) (finding that FDCPA claim alleging time-barred complaint
in state court was not barred by Rooker-Feldman); Maronyan v. Fin. Credit Network, Inc.,
No. 2:15-cv-02953-SVW-AGR, 2017 WL 57835, at *5 (C.D. Cal. Jan. 3, 2017) (finding that
FDCPA claim alleging misrepresentation of attorney’s fees in state court complaint was not barred
by Rooker-Feldman); Riding v. Cach LLC, 992 F. Supp. 2d 987, 994–95 (C.D. Cal. 2014) (finding
that FDCPA claims alleging improper collection methods were not barred by Rooker-Feldman).
38 Docket 8 at 5 (quoting Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir.
2008)).39 See Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003) (“Only when there is already a
forbidden de facto appeal in federal court does the ‘inextricably intertwined’ test come into play:
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claim presents similar issues to those raised in state court.40 	Although PRA seems to
understand that Rooker-Feldman abstention only applies when a plaintiff, in effect, “seeks
to set aside a state court judgment,”41 it does not explain how adjudication of Ms. Duvall’s
FDCPA claims would “undercut the state ruling or require the district court to interpret the
[state court’s] application of state laws or procedural rules.”42
In 	sum, 	Ms. 	Duvall’s 	Complaint 	does 	not 	require 	“improper 	federal
review”43 of the Superior Court’s judgment when Ms. Duvall explicitly agrees that the
judgment is correct and not at issue in this case.44 The Court retains jurisdiction over her
claim.
Once a federal plaintiff seeks to bring a forbidden de facto appeal, as in Feldman, that federal
plaintiff may not seek to litigate an issue that is ‘inextricably intertwined’ with the state court
judicial decision from which the forbidden de facto appeal is brought.”); Bell v. City of Boise, 709
F.3d 890, 897 (9th Cir. 2013) (“The ‘inextricably intertwined’ language from Feldman is not a test
to determine whether a claim is a de facto appeal, but is rather a second and distinct step in the
Rooker–Feldman analysis. Should the action not contain a forbidden de facto appeal, the Rooker–
Feldman inquiry ends.”) (internal citation omitted); Ismail v. Cnty. of Orange, 693 F. App’x 507,
510 (9th Cir. 2017) (applying the “inextricably intertwined” test only after the court found a de
facto appeal under Kourgasian).
40 Kourgasian, 359 F.3d at 1142–43 (“But the ‘inextricably intertwined’ test does not
mean that a federal plaintiff can never raise issues that are ‘inextricably intertwined’ with issues
already decided in completed state court litigation. 	If that were so, Rooker-Feldman would in
some cases give greater preclusive effect to state court judgments than the states themselves would
give those judgments.”).
41 Docket 11 at 2 (quoting Kourgasian, 359 F.3d at 1141).
42 Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008). Contrary to PRA’s
assertion, Reusser does stand for a blanket prohibition on federal courts applying state procedural
rules. See Docket 8 at 5–6 (citing id.). In Reusser, plaintiff’s claim was barred because it required
the district court to review and possibly reject the state court’s application of state court rules—
not simply because a federal court would have interpreted those rules. 525 F.3d at 860.
43 Docket 8 at 5.
44 See Bell, 709 F.3d at 897 (“Without a direct challenge to a state court’s factual or legal
conclusion, 	Plaintiffs’ 	suit 	is 	not 	a 	forbidden 	de 	facto 	appeal, 	and 	Rooker-Feldman 	is
inapplicable.”).
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B. 	The Superior Court’s Judgment Does Not Preclude Ms. Duvall’s Claim
Because the Issue of Whether PRA Violated the FDCPA Has Not Been
Litigated
PRA next argues that Ms. Duvall’s claim is barred by issue preclusion.45
Issue preclusion, or collateral estoppel, prevents a party from relitigating any legal or
factual issue that has been raised and resolved by a prior judgment.46 Here, the Superior
Court’s cost award likely has preclusive effect on which litigation costs in the underlying
debt collection suit were recoverable under Alaska law.47 But even if this Court is bound
by the Superior Court’s judgment on that issue, that does not warrant dismissal of
Ms. Duvall’s FDCPA entire claim. In fact, the opposite is true.
In the Superior Court filings, Ms. Duvall objected to more than $3,000 of
costs included in PRA’s Amended Cost Bill, and as a sanction she requested that the court
deny PRA’s motion for costs in its entirety.48 The Superior Court granted PRA’s motion
for costs in part, ultimately awarding $3,569.10 after PRA conceded that its Amended Cost
Bill erroneously included $2,703.75 in transcript fees.49 	This amount, however, does
appear to include $399.60 in deposition costs that Ms. Duvall had contested.50 Assuming,
45 Docket 8 at 6–7. The Court notes that res judicata and estoppel are affirmative defenses.
See Fed. R. Civ. P. 8(c). Ordinarily, the proper way to dismiss an action based on an affirmative
defense is to answer and then move for judgment on the pleadings under Rule 12(c). However,
the Court may dismiss an action under Rule 12(b)(6) based on an affirmative defense if that defense
is both obvious in the complaint and does not depend on evidence outside the pleadings. 	See
ASARCO, LLC v. Union Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
46 Allen v. McCurry, 449 U.S. 90, 94–95 (1980).
47 Issue preclusion is decided under the law of the state in which the judgment was entered.
Ross v. Alaska, 189 F.3d 1107, 1110–11 (9th Cir. 1999). Whether the cost award has a preclusive
effect is unnecessary to the Court’s analysis, as such, it declines to rule on that issue.
48 Docket 9-3 at 2.
49 Docket 9-5 at 3.
50 Compare id. with Docket 9-3 at 2–3.
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arguendo, that the Superior Court’s cost award has a preclusive effect, this prevents
argument from either party on which costs are allowed under Alaska Rule of Civil
Procedure 79: 	PRA cannot argue that its transcript fees are recoverable, and Ms. Duvall
cannot argue that the deposition costs are not recoverable.51 	But this certainly does not
warrant dismissal of Ms. Duvall’s Complaint. Rather, preclusion would support her claim
by stripping PRA of argument that its stated costs were, in fact, permitted by law.
More importantly, the key legal issue raised by Ms. Duvall’s Complaint is
entirely new. Ms. Duvall asks this Court to decide whether PRA violated the FDCPA by
including costs in its original and Amended Cost Bill that were not authorized by law.
PRA’s liability under the FDCPA has never been litigated and is not foreclosed by the
Superior Court’s judgment, despite PRA’s assertion that “[t]he issues raised by Duvall in
this action are identical to those litigated in [the Superior Court action].”52 	That issue
simply was not before the Superior Court; therefore, Ms. Duvall’s FDCPA claim is not
barred by issue preclusion.
C. 	Ms. Duvall Has Stated a Claim for Relief Under the FDCPA
Lastly, PRA asks the Court to dismiss the Complaint for failure to state a
cognizable claim under the FDCPA. 	In broad strokes, PRA argues that filing a cost bill
does not trigger the FDCPA’s protections. PRA states that its alleged misrepresentations
of litigation costs were not an “attempt to collect a debt” because the false statements were
51 As discussed, neither party appears to disagree with the Superior Court’s ruling.
52 Docket 8 at 7.
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“unrelated to Duvall’s liability for her Account.”53 PRA also posits that the FDCPA is not
implicated when a debtor is “protected by the court system and its officers.”54 	These
arguments are refuted by both the statute’s plain language and binding Ninth Circuit and
Supreme Court precedent.
Congress enacted the FDCPA to “eliminate abusive debt collection practices
by debt collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.”55 Section 1692f prohibits debt
collectors from using “unfair or unconscionable means to collect or attempt to collect any
debt,” including “[t]he collection of any amount (including interest, fee, charge, or expense
incidental to the principal obligation) unless such amount is expressly authorized by the
agreement creating the debt or permitted by law.”56 	Section 1692e prohibits the false
representation of “any services rendered or compensation which may be lawfully received
by any debt collector for the collection of a debt.”57 	The FDCPA plainly contemplates
attempts to collect costs or expenses beyond the principal account liability.58 Here, PRA’s
53 Id. at 8.
54 Id. at 10.
55 15 U.S.C. § 1692(e).
56 15 U.S.C. § 1692f(1).
57 15 U.S.C. § 1692e(2)(B).
58 See McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 949–50 (9th
Cir. 2011) (pursuit of unauthorized attorney’s fees in a collection suit violated both § 1692f(1) and
§ 1692e(2) of FDCPA); Reichert v. Nat’l Credit Sys., Inc., 531 F.3d, 1002, 1006–07 (imposition
of an unlawful charge for attorney’s fees violated § 1692f(1) of FDCPA); Foster v. D.B.S.
Collection Agency, 463 F. Supp. 2d 783, 802 (S.D. Ohio 2006) (request for unlawful attorney’s
fees in a collection suit violated § 1692e(2) of the FDCPA).
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original and Amended Cost Bill attempt to collect expenses incidental to Ms. Duvall’s
principal obligation and certainly relate to her underlying consumer debt.
Equally unfounded is PRA’s assertion that the court system insulates
creditors from the FDCPA. In 1995, the Supreme Court held that the FDCPA’s protections
extend to litigation activities.59 More recently, in McCullough v. Johnson, Rodenburg &
Lauinger, LLC (hereafter, “McCullough”), the Ninth Circuit held that a debt collection law
firm violated the FDCPA by requesting unauthorized attorney’s fees in its state court
collection complaint.60 Like PRA, the defendant in McCullough argued that “a request for
attorney’s fees in a prayer for relief of a complaint does not violate the FDCPA because
the prayer for relief is directed at the court,” citing to the same 1998 District of
Massachusetts case upon which PRA relies.61 	Both the Montana District Court and the
Ninth Circuit found this logic unpersuasive, as does this Court.62
PRA attempts to circumvent the Supreme Court and the Ninth Circuit’s
holdings by arguing that the FDCPA only applies to “pre-judgment” conduct, such as
misrepresenting amounts in settlement offers, pleadings, or requests for admission.63 PRA
59 Heintz v. Jenkins, 514 U.S. 291, 297–299 (1995) (explaining that legislative history and
plain language of FDCPA does not distinguish between “legal” activities to collect a debt and other
“debt collection” activities).
60 637 F.3d 939, 949–950 (9th Cir. 2011).
61 McCollough v. Johnson, Rodenberg & Lauinger, 587 F. Supp. 2d 1170, 1178 (D. Mont.
2008), aff’d sub nom. McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th
Cir. 2011) (citing Argentieri v. Fisher Landscapes, Inc., 15 F. Supp. 2d 55, 61–62 (D. Mass.
1998)).62 See also Maronyan v. Fin. Credit Network, Inc., No. 2:15-cv-02953-SVW-AGR, 2017
WL 57835, at *4 (C.D. Cal. Jan. 3, 2017) (declining to follow Argentieri and its progeny in light
of McCullough).
63 Docket 8 at 9.
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argues that a post-judgment misrepresentation “cannot reasonably be said to involve an
attempt to collect a debt, because the amount of the ‘debt’ and the defendant’s liability
therefore has already been conclusively established.”64 In short, PRA argues that, because
it attempted to recover litigation costs after Ms. Duvall was found liable for the underlying
debt, those communications fall outside the FDCPA.
The Court cannot locate this distinction in law. 	The statute does not
differentiate between pre- and post-judgment debts or collection activity.65 	The Ninth
Circuit’s rationale in McCullough holds true regardless of whether the debt collector
moved for unauthorized attorney’s fees pre- or post-judgment—in either circumstance, the
party pursued an unauthorized expense “incidental to the principal obligation.”66 To wit,
multiple courts have applied the FDCPA to conduct that occurred post-judgment.67 	In
support of its argument, PRA cites to an unpublished District of Arizona case holding that
attorney’s fees are not a “debt” within the meaning of the FDCPA.68 	Respectfully, this
Court declines to follow this non-binding case as it runs afoul of the Ninth Circuit’s holding
64 Id.
65 See 15 U.S.C. § 1692a(5) (defining debt as any obligation of a consumer that arises out
of certain transactions “whether or not such obligation has been reduced to judgment”); 15 U.S.C.
§ 1692e(2)(B) (prohibiting false representation of any compensation which may be received for
the collection of a debt); 15 U.S.C. § 1692f(1) (prohibiting the collection of any unauthorized
amount incidental to principal obligation).
66 15 U.S.C. § 1692f(1); see also 15 U.S.C. § 1692e(2)(B).
67 See, e.g., Fox v. Citicorp Credit Servs., 15 F. 3d 1507, 1511–18 (9th Cir. 1994); Aris v.
Gutman, Mintz, Baker & Sonnenfeldt LLP, 875 F. 3d 128, 135–140 (2d Cir. 2017); Todd v.
Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432, 447 (6th Cir. 2006) (affirming denial of
judgment on the pleadings for FDCPA claim where counsel filed false affidavit after state court
judgment was entered).
68 Zizlsperger v. Maxwell & Morgan, PC, No. CV 11-01376-PHX-FJM, 2011 WL
5027034, at *2 (D. Ariz. Oct. 21, 2011) (citing Argentieri v. Fisher Landscapes, Inc., 15 F. Supp.
2d 55, 61 (D. Mass. 1998)).
Case 3:22-cv-00068-JMK Document 12 Filed 12/13/22 Page 13 of 14

Duvall v. Portfolio Recovery Associates, LLC 	Case No. 3:22-cv-00068-JMK
Order Denying Motion to Dismiss 	Page 14
in McCollough.69 	Indeed, the Ninth Circuit did not endorse the District of Arizona’s
rationale, instead affirming its opinion on the ground that the attorney’s fees were permitted
by law.70
In sum, Ms. Duvall alleges facts that plausibly suggest a claim under § 1692e
and § 1692f of the FDCPA: (1) PRA is a debt collector; (2) it misrepresented an expense
Ms. Duvall owed for the collection of the debt; and (3) through such misrepresentation, it
attempted to collect an amount unauthorized by law. 	PRA alludes that its “inadvertent
error” and “prompt action correcting that mistake” protects it from liability,71 but these are
affirmative defenses for which PRA bears the burden of proof.72 PRA does not adequately
brief these defenses, nor do they reveal an “obvious bar to securing relief on the face of the
complaint”; thus, Ms. Duvall’s Complaint survives.73
IV. 	CONCLUSION
None of PRA’s arguments justify dismissal of Ms. Duvall’s Complaint.
Defendant’s Motion to Dismiss at Docket 8 is DENIED.
IT IS SO ORDERED this 13th day of December, 2022, at Anchorage,
Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
69 637 F.3d 939, 950 (holding that debt collection firm violated the FDCPA by requesting
unauthorized attorney’s fees in its underlying state collection complaint).
70 Zizlsperger v. Maxwell & Morgan, PC, 565 F. App’x 633, 636 (9th Cir. 2014).
71 Docket 8 at 10.
72 Urbina v. Nat’l Bus. Factors Inc., 979 F.3d 758, 763 (9th Cir. 2020).
73 ASARCO, LLC v. Union Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
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