Plumb v. Professional Account Services, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSHUA PLUMB,
Plaintiff,
v.
PROFESSIONAL ACCOUNT
SERVICES, INC. and BETTY
SANDERS,
Defendants.
Case No. 3:19-cv-00085-SLG
ORDER RE MOTION FOR JUDGMENT ON THE PLEADINGS
Before the Court at Docket 33 is Defendants’ Motion for Judgment on the
Pleadings.1 Plaintiff Joshua Plumb responded in opposition at Docket 36.
Defendants replied at Docket 37. Oral argument was not requested and was not
necessary to the Court’s decision.2
BACKGROUND
On March 28, 2019, Joshua Plumb commenced this action against
Professional Account Services, Inc. (“PAS”) and Betty Sanders (together,
“Defendants”), alleging violations of the Fair Debt Collection Practices Act
1 Defendants’ memorandum in support of their motion is at Docket 34.
2 Due to the coronavirus pandemic, by Miscellaneous General Order 20-13, the District
of Alaska imposed a stay on all civil matters until June 1, 2020. As the presiding judge
in this matter, the undersigned judge vacates the stay in this case to enter this order,
allow entry of judgment, and the filing of any post-judgment motions. See MGO-20-13.
However, the parties may move or stipulate to extend any filing deadlines.
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(“FDCPA”).3 On August 14, 2019, Mr. Plumb filed the operative First Amended
Complaint (“FAC”).4 According to the FAC, Mr. Plumb was injured in a car
accident in December 2014 and treated at Mat-Su Regional Medical Center
(“MSRMC”).5 As a result of this treatment, Mr. Plumb incurred debt in the form of
medical bills.6 Mr. Plumb alleges that his debt was eventually transferred to PAS
for collection.7 On July 19, 2018, Ms. Sanders sent a fax to Mr. Plumb’s counsel
stating:
I am contacting your office on behalf of Mat-Su Regional Medical
Center. . . I am checking on the status of the case for Joshua
Plumb. . . The patient/client treated on 12/17/14 and has an
outstanding balance with the hospital of $5,121.64. . . I spoke with
Allstate and I was advised that the claim/case settled with the patient
in June 2017. . . Please verify if the patient needs to be contacted for
the balance or is the case still ongoing with your office?8
Mr. Plumb alleges that, contrary to Ms. Sanders’s representations, Ms. Sanders
sent the fax on behalf of PAS, and not MSRMC.9
A month or so later, on August 23, 2018, PAS sent a letter directly to Mr.
Plumb titled “RE: Mat-Su Regional Medical Center,” and stating as follows: “Per
3 Docket 1 at 1, ¶ 1 (Complaint).
4 Docket 18.
5 Docket 18 at 2, ¶¶ 12–13.
6 Docket 18 at 2, ¶ 14.
7 Docket 18 at 2, ¶ 16.
8 Docket 18-1 at 1 (ellipses in original); Docket 18 at 2, ¶ 17.
9 Docket 18-1 at 2–3, ¶¶ 17, 24–26.
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your request, this is to advise you that your current balance is $5121.64.”10 The
letter added in bold font: “This is an attempt to collect a debt by a debt collector.
Any information obtained will be used for that purpose.”11
As a result of these two communications—the fax and the letter—Mr. Plumb
alleges three violations by Defendants of 15 U.S.C. § 1692e: (1) false or
misleading representations; (2) failure to disclose; and (3) time-barred debt
collection.12 Mr. Plumb also seeks to certify a class defined as:
[A]ll persons similarly situated in the State of Alaska:
a. from whom Defendant attempted to collect a time-barred
consumer debt without disclosing that the debt was time-barred,
from one year before the date of this Complaint to the present;
and
b. from whom Defendants attempted to collect a consumer debt
without disclosing that the communication was from a debt
collector, from one year before the date of this Complaint to the
present.13
On August 19, 2019, Defendants answered, denying Mr. Plumb’s allegations and
raising affirmative defenses.14 Defendants now move for judgment on the
pleadings.15
10 Docket 18 at 2, ¶ 18; Docket 18-2.
11 Docket 18-2 at 1.
12 Docket 18 at 3–4, ¶¶ 21–54.
13 Docket 18 at 5, ¶ 55.
14 Docket 21 at 3–6.
15 Docket 33.
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LEGAL STANDARD
I. Jurisdiction
This Court has jurisdiction over Mr. Plumb’s FDCPA claims pursuant to 28
U.S.C. § 1331, which provides for federal question jurisdiction, and pursuant to 15
U.S.C. § 1692k(d), which provides for federal jurisdiction over actions to enforce
the FDCPA.
II. Motion for Judgment on the Pleadings
Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the
pleadings.” “Motions for judgment on the pleadings under [Rule] 12(c) and
motions to dismiss for failure to state a claim under [Rule] 12(b)(6) are ‘functionally
identical,’”16 but Rule 12(c) motions are premature unless an answer has been filed
and the pleadings are closed.17 Accordingly, motions for judgment on the
pleadings under Rule 12(c) are generally evaluated under the relevant Rule 12(b)
standard; here, the relevant standard is Rule 12(b)(6).18
When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim,
16 Pac. W. Grp., Inc. v. Real Time Sols., 321 F. App’x 566, 569 (9th Cir. 2008) (quoting
Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)).
17 Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005).
18 See Nicdao v. Chase Home Fin., 839 F. Supp. 2d 1051, 1061 (D. Alaska 2012) (citing
5C Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1367 (3d ed.
Supp. 2010)).
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a court considers only the pleadings and documents incorporated into the
pleadings by reference, as well as matters on which a court may take judicial
notice.19 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’”20 A claim is plausible on its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”21 Thus, there must be “more than a sheer possibility
that a defendant has acted unlawfully.”22 A court “accept[s] factual allegations in
the complaint as true and construe[s] the pleadings in the light most favorable to
the nonmoving party.”23
When granting a motion to dismiss, a court is generally required to grant the
plaintiff leave to amend, unless amendment would be futile.24 In determining
whether amendment would be futile, a court examines whether the complaint could
be amended to cure the defect requiring dismissal “without contradicting any of the
19 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008)
(citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
21 Id. (citing Twombly, 550 U.S. at 556).
22 Id.
23 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
24 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.
1990).
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allegations of [the] original complaint.”25
III. FDCPA
“The FDCPA ‘comprehensively regulates the conduct of debt collectors,’ and
‘is a strict liability statute.’”26 “[T]he FDCPA prohibits debt collectors ‘from making
false or misleading representations and from engaging in various abusive and
unfair practices.’”27 There are four elements to an FDCPA cause of action:
(1) the plaintiff is a “consumer” under 15 U.S.C. § 1692a(3); (2) the
debt arises out of a transaction entered into for personal purposes; (3)
the defendant is a “debt collector” under 15 U.S.C. § 1692a(6); and
(4) the defendant violated one of the provisions contained in 15 U.S.C.
§§ 1692a–1692o.28
In the instant motion, the parties dispute the fourth prong—whether Plaintiffs have
alleged a violation of a provision of § 1692 and, specifically, whether Defendants’
alleged conduct, if proven, would constitute a violation § 1692e. Section 1692e
provides that “[a] debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt” and provides
a non-exhaustive list of examples of proscribed conduct including, as relevant
here:
(2) The false representation of—
25 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
26 Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1119 (9th Cir. 2014) (quoting
Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1060–61 (9th Cir. 2011)).
27 Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) (quoting Heintz v.
Jenkins, 514 U.S. 291, 292 (1995)).
28 Heejoon Chung v. U.S. Bank, N.A., 250 F. Supp. 3d 658, 680 (D. Hawaii 2017).
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(A) the character, amount, or legal status of any debt . . . .
. . . .
(10) The use of any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information concerning a
consumer.
(11) The failure to disclose in the initial written communication with the
consumer and, in addition, if the initial communication with the
consumer is oral, in that initial oral communication, that the debt
collector is attempting to collect a debt and that any information
obtained will be used for that purpose, and the failure to disclose in
subsequent communications that the communication is from a debt
collector, except that this paragraph shall not apply to a formal
pleading made in connection with a legal action.
In determining whether conduct violates 15 U.S.C. § 1692e, a court
“undertake[s] an objective analysis of the question whether the ‘least sophisticated
debtor would likely be misled by a communication,’” which is “a legal, not a factual,
determination.”29 “The ‘least sophisticated debtor’ standard is ‘lower than simply
examining whether particular language would deceive or mislead a reasonable
debtor’” and is “‘designed to protect consumers of below average sophistication or
intelligence’ or ‘those who are uninformed or naïve,’ particularly when those
individuals are targeted by debt collectors.”30 In the Ninth Circuit, “a debt
29 Stimpson v. Midland Credit Mgmt., Inc., 944 F.3d 1190, 1196 (9th Cir. 2019) (quoting
Gonzales, 660 F.3d at 1061).
30 Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 (9th Cir. 2011) (first quoting
Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997); then quoting Duffy v. Landberg,
215 F.3d 871, 874–75 (8th Cir. 2000)).
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collector’s liability under § 1692e of the FDCPA is an issue of law.”31
DISCUSSION
I. Ms. Sanders’s Fax to Counsel
Counts I and II of the FAC arise from Ms. Sanders’s fax to Plaintiff’s counsel
(“the Fax”). In Count I, Plaintiff alleges that the Fax falsely represents that Ms.
Sanders was acting on behalf of MSRMC, when, in fact, she was acting on behalf
of PAS; Plaintiff alleges that therefore, the Fax violates 15 U.S.C. § 1692(e)(10)’s
prohibition against use of a false representation in connection with collecting a
debt.32 In Count II, Plaintiff alleges that the Fax fails to disclose that it is from a
debt collector, in violation of § 1692(e)(11).33
Defendants contend that both counts based on the Fax should be
dismissed.34 Citing to the Ninth Circuit’s decisions in Guerrero v. RJM Acquisitions
LLC and Donohue v. Quick Collect, Inc., Defendants contend that the Fax is not
actionable under the FDCPA because it is a communication directed solely to an
attorney.35 In Guerrero, the plaintiff sued the purchaser of his consumer debt for
31 Id. at 1061.
32 Docket 18 at 3, ¶¶ 21–35.
33 Docket 18 at 4, ¶¶ 36–40.
34 Docket 34 at 4–6.
35 Docket 34 at 4–5 (citing Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th
Cir. 2007) and Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1032 (9th Cir. 2010)).
Defendants also cite the Second Circuit’s opinion in Kropelnicki v. Siegel, 290 F.3d 118,
127 (2d Cir. 2002) and a decision from the U.S. District Court for the Northern District of
Alabama. Docket 34 at 4–5 (citing Hamilton v. Avectus Health Care Sols., LLC, No.
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violations of the FDCPA, including for misrepresenting to the plaintiff’s counsel that
it was not a debt collection agency, in violation of § 1692(e).36 In reversing the
district court’s denial of the defendant’s motion to dismiss, the Ninth Circuit held
“that communications directed solely to a debtor’s attorney are not actionable
under the Act” and, therefore, the “letter to counsel . . . was not a prohibited
collection effort and did not violate . . . [§] 1692(e).”37 Defendants contend that the
Fax—as a communication directed solely to Mr. Plumb’s attorney—“cannot be a
basis for a claim under the FDPCA” as it is “squarely within the scope of
Guerrero.”38 Defendants emphasize the Ninth Circuit’s observations in Guerrero
that the FDCPA treats a consumer separately from a consumer’s attorney,39 that
the FDCPA is intended to prevent “harassment, deception, and other abuse,” and
that “when an attorney is interposed as an intermediary between a debt collector
5:13-cv-01967-SGC, 2015 WL 5693610, at *7 (N.D. Ala. Sept. 29, 2015)).
36 Guerrero, 499 F.3d at 929. In Guerrero, the letter from the debt collector to plaintiff’s
counsel was in response to an initial letter from counsel asserting violations of the
FDCPA and threatening suit based on the collector’s earlier efforts to collect the debt.
Id. at 930. In its response, the debt collector took the position that it was “not a
collection agency, and therefore not subject to the [Act].” Id. at 931 (alteration in
original).
37 Id. at 934. In Donohue v. Quick Collect, Inc., the Ninth Circuit distinguished the
communication at issue—a complaint served on the debtor—from a communication
directed solely to an attorney. 592 F.3d at 1032. In doing so, the Ninth Circuit reiterated
that “[w]hen the recipient of the communication is solely a debtor’s attorney, the
FDCPA’s purpose of protecting unsophisticated consumers is not implicated.” Id.
38 Docket 34 at 6.
39 Docket 34 at 5 (citing Guerrero, 499 F.3d at 932).
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and a consumer, [a court] assume[s] the attorney, rather than the FDCPA, will
protect the consumer from a debt collector’s fraudulent or harassing behavior.”40
In his opposition to Defendants’ motion, Plaintiff maintains that the Fax falls
within a narrow exception to the Guerrero rule. Plaintiff seizes on the following
statement in Guerrero: “we hold that communications directed only to a debtor’s
attorney, and unaccompanied by any threat to contact the debtor, are not
actionable under the Act.”41 From this statement, Plaintiff posits that “where a
communication otherwise directed only to a debtor’s attorney is accompanied by
‘any threat to contact the debtor,’ it is actionable.”42 Plaintiff contends that the Fax
40 Docket 34 at 6 (quoting Guerrero, 499 F.3d at 937) (internal quotations omitted).
41 Guerrero, 499 F. 3d at 936.
42 Docket 36 at 8 (quoting Guerrero, 499 F.3d at 936) (emphasis in brief). Plaintiff adds
that “Defendants’ reliance on Donohue . . . is equally misplaced,” noting that Donohue
“merely quoted Guerrero and, further, expressly found that the ‘limited exception that we
outlined in Guerrero is inapplicable here.’” Docket 36 at 8–9 (quoting Donohue, 592 F.3d
at 1032). Defendants counter that the “limited exception” mentioned in Donohue is a
reference to “Guerrero’s central holding—that is, that communications directed solely to
a debtor’s attorney are not actionable under the FDCPA.” Docket 37 at 3, n.1.
A complete reading of Donohue confirms that the Ninth Circuit was referring to
Guerrero’s creation of an exception from liability under the FDCPA for communications
directed only to attorneys; the Circuit found that because the plaintiff had received the
communication in question, it was not within the Guerrero exception. The Ninth Circuit
explained:
In Guerrero, we concluded that communications sent only to a debtor’s attorney
are not actionable under the FDCPA. . . . When the recipient of the
communication is solely a debtor’s attorney, the FDCPA’s purpose of protecting
unsophisticated consumers is not implicated. Thus, we there concluded that a
letter directed “to counsel, and not to his client—‘the consumer’—was not a
prohibited collection effort.” But the limited exception that we outlined in
Guerrero is inapplicable here. [The plaintiff] was personally served with the
Complaint. Therefore, [the plaintiff] herself, not her lawyer, was the recipient of
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contains an “express threat”43 insofar as it states: “[p]lease verify if the patient
needs to be contacted for the balance.”44 Plaintiff thus maintains that the Fax is
subject to the FDCPA.45 In their reply brief, Defendants contend that “not a single
court in Guerrero’s thirteen-year history has analyzed or applied the
‘unaccompanied by any threat to contact the debtor’ language.”46 Defendants posit
that Guerrero’s reference to a “threat to contact the debtor” relates to § 1692c(a)(2)
of the FDCPA, which prohibits a debt collector from contacting a debtor directly if
they know the debtor is represented by counsel.47
The Court agrees with Defendants that it is not clear whether Guerrero
the communication. Because the complaint was communicated to the consumer,
the requirements of the FDCPA apply.
Donohue, 592 F.3d at 1032 (citations omitted) (quoting Guerrero, 499 F.3d at 934).
43 Docket 36 at 8.
44 Docket 36 at 8 (emphasis omitted) (quoting Docket 18-1 at 1).
45 Docket 36 at 8–9. Plaintiff alleges that the Fax violates § 1692e’s prohibition on the
use of false, deceptive, or misleading practice in connection with the collection of a debt
because Ms. Sanders “affirmatively stated that she was contacting counsel on behalf of
MSRMC when, in fact, Sanders was at all times an employee of PAS and acting as an
agent for PAS.” Docket 36 at 9. Plaintiff also alleges that Defendants’ “failure to identify
the Fax as being a communication from a debt collector” violates § 1692e(11). Docket
36 at 10–11.
46 Docket 37 at 3.
47 Docket 37 at 4. Defendants suggest that Guerrero adopted the language about a
threat to contact the debtor from Tromba v. M.R.S. Assocs., 323 F. Supp. 2d 424, 427–
28 (E.D.N.Y. 2004). Docket 37 at 3. Defendants contend that Tromba, in turn, was
analyzing the facts in Paulemon v. Tobin, 30 F.3d 307, 308 (2d Cir. 1994), where the
plaintiff alleged a violation of the FDCPA provision that prohibits a debt collector from
knowingly contacting a “represented person” directly. Docket 37 at 3–4.
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created an exception (to the exception) for communications to attorneys that
contain a threat to contact the debtor. For one thing, the statement is to some
degree dicta, in that the communication to the lawyer in Guerrero did not make any
reference to contacting the debtor. Moreover, earlier in its opinion, the Guerrero
court held, without caveats or carveouts, “that communications directed solely to a
debtor’s attorney are not actionable under the Act.”48 In support of its holding, the
Guerrero court cited several out-of-circuit decisions, concluding that “[a]ll but one
published federal decision to have given reasoned consideration to the question
has determined that communications to a debtor’s attorney are not actionable
under the Act.”49 And apart from Tromba v. M.R.S. Assoc., the cited cases do not
carve out any exceptions to the attorney rule for communications that include a
threat to contact the debtor.50 And while a review of district court decisions relying
on Guerrero suggests that some courts have interpreted Guerrero as creating the
disputed exception, none elaborated on the exception or concluded that a
particular communication fell within such an exception.51
48 Guerrero v. RJM Acquisitions, LLC, 499 F.3d 926, 934 (9th Cir. 2007).
49 Id. at 936 (citing Kropelnicki v. Siegel, 290 F.3d 118, 127–28 (2d Cir. 2002); Diesi v.
Shapiro, 330 F. Supp. 2d 1002, 1004 (C.D. Ill. 2004); Zaborac v. Phillips & Cohen
Assocs., Ltd., 330 F. Supp. 2d 962, 966-67 (N.D. Ill. 2004); Tromba v. M.R.S. Assocs.,
Inc., 323 F. Supp. 2d 424, 428 (E.D.N.Y. 2004); but see Sayyed v. Wolpoff & Abramson,
485 F.3d 226, 232-33 (4th Cir. 2007))..
50 In Tromba, the district court concluded that the plaintiff had “no cause of action under
the FDCPA where a communication was solely directed to her attorney and no threat
was made regarding contact with the debtor herself.” Tromba, 323 F. Supp. 2d at 428.
51 See, e.g., Angel v. Am. Recovery Servs., Inc., No. C12-0666-JCC, 2012 WL 3594371,
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However, this Court need not determine whether such an exception exists
because it finds that the Fax does not contain a “threat to contact the debtor.” A
threat implies a statement of some future outcome or harm; it is a “statement of
some . . . bad thing that will happen in the future”52 and an “indication of an
approaching menace . . . the suggestion of an impending detriment.”53 Here, the
allegedly threatening language in the Fax—“[p]lease verify if the patient needs to
be contacted for the balance or is the case still ongoing with your office?”—is
framed as a question and indicates that the sender is aware that Plaintiff may be
represented, and thus off-limits, and seeks to confirm as much.54 This inquiry does
at *2 (W.D. Wash. Aug. 22, 2012) (concluding that a communication was not actionable
in part because “[t]he Complaint contains no allegation that ARSI threatened or
attempted to contact Ms. Angel directly”); Wright v. Phelan, Hallinan & Schmeig, LLP,
No. 09-3538, 2010 WL 786536, at *6 (E.D. Pa. March 8, 2010) (concluding letter
directed to debtor’s attorney was not actionable under FDCPA and noting “[t]he letter
was not addressed to plaintiff, nor it did contain any threat to contact plaintiff directly”);
Tourgeman v. Collins Fin. Servs., No. 08cv1392-CAB (NLS), 2012 WL 3731807, at *10
(S.D. Cal. Aug. 29, 2012) (quoting Guerrero and concluding that “Plaintiff has not
provided the Court with any evidence of harassment that he received as an individual
during the duration of the state court lawsuit.”), rev’d on other grounds by Tourgeman v.
Collins Fin. Servs., 755 F.3d 1109 (9th Cir. 2014).
52 Threat, Bouvier Law Dictionary, (Desk ed. 2012).
53 Threat, Black’s Law Dictionary, (11th ed. 2019).
54 Section 1692c(a)(2) of the FDCPA provides that:
a debt collector may not communicate with a consumer in connection with
the collection of any debt—if the debt collector knows the consumer is
represented by an attorney with respect to such debt and has knowledge
of, or can readily ascertain, such attorney’s name and address, unless the
attorney fails to respond within a reasonable period of time to a
communication from the debt collector or unless the attorney consents to
direct communication with the consumer.
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not suggest future menace or harm, nor any intent to take action to make contact
with the debtor absent confirmation from counsel. Thus, even accepting the factual
allegations in the FAC as true, the language of the Fax simply does not constitute
a threat.
Plaintiff also asserts that the Guerrero court’s rationale for exempting from
the FDCPA’s purview communications made solely to an attorney—that
“[u]nsophisticated consumers are easily bullied and misled” and that “[t]rained
attorneys are not”55—does not apply when there has been “an affirmative
misrepresentation concerning the identity of a person sending a communication.”56
Plaintiff posits that “it does not logically follow that a trained attorney would be able
to detect an affirmative misrepresentation concerning the identity of a person
sending a communication to him.”57 However, the Ninth Circuit in Guerrero did not
create an exception for misrepresentations. Rather, it concluded that:
Section 1692e prohibits debt collectors from ‘us[ing] any false,
deceptive, or misleading representation or means in connection with
the collection of any debt.’ We do not disagree with the dissent that
such prohibited representations or means may take the form of a
communication. But we hold that communications directed only to a
debtor’s attorney, and unaccompanied by any threat to contact the
debtor, are not actionable under the Act.58
55 Guerrero v. FJM Acquisitions, LLC, 499 F.3d 926, 935 (9th Cir. 2007).
56 Docket 36 at 10.
57 Docket 36 at 10 (citing Guerrero, 499 F.3d at 935).
58 Guerrero, 499 F.3d at 936 (footnote omitted).
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Based on the plain language of Guerrero, the Court concludes that its holding
applies to any false, deceptive, or misleading representation made to an attorney
in connection with the collection of a debt, including fraudulent representations
concerning the identity of the sender.59
In light of the foregoing, the Court finds that the Fax is not subject to the
FDCPA. Because the recipient and the content of the communication are not
disputed, the Court finds that any amendment to the complaint would be futile;
Plaintiff cannot cure the defect in his allegations without contradicting the operative
complaint.60 Defendants are therefore entitled to judgment on the pleadings on
Counts I and II of the FAC.
II. PAS’s August 2018 Letter to Mr. Plumb
In Count III of the FAC, Plaintiff alleges that PAS’s letter to Plaintiff (the
“Letter”) demands payment on a time-barred debt without indicating that “no legal
59 Other district courts in this Circuit have concluded the same. For example, in Angel v.
American Recovery Services, the district court addressed the plaintiff’s argument that
“Guerrero involved a misrepresentation of the law, which an attorney would be well-
positioned to address, as opposed to a misrepresentation of fact,” and concluded that
Guerrero “drew no distinction between statements of fact and statements of law, nor did
its reasoning suggest that it would be receptive to such a distinction,” but rather “noted
that concerns about abusive or dishonest tactics by debt collectors ‘quickly evaporate’
when a debtor is represented by counsel who fields all communications relevant to the
debt collection.” No. C12-0666-JCC, 2012 WL 3594371, at *2 (W.D. Wash. Aug. 22,
2012).
60 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
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action could be undertaken to attempt to recover the Debts” or that “any partial
payment by Plaintiff may result in the revival” of the debt.61 Plaintiff alleges that
the Letter therefore violates § 1692e’s prohibition on using “any false, deceptive,
or misleading representation or means in connection with the collection of any
debt,” and specifically violates § 1692e(2)(a)’s prohibition against the false
representation of “the character, amount or legal status of any debt,” and
§ 1692e(10)’s prohibition against the use of “any false representation or deceptive
means to collect or attempt to collect any debt or to obtain information concerning
a consumer.”62
In their motion, Defendants maintain that even if the statute of limitations
had run on the debt, the Letter does not violate the FDCPA because “a statute of
limitations does not extinguish a debt but only prevents a party from pursuing such
a debt in court.”63 Relying on Jones v. Synergetic Communication, Inc.,
Defendants contend that the proper inquiry is “whether the debt collection letter
could plausibly mislead a reasonable unsophisticated consumer into thinking her
debt is enforceable in court.”64 In Jones, the plaintiff alleged violations of the
61 Docket 18 at 4, ¶¶ 47–48.
62 Docket 36 at 4–5, ¶¶ 49–54.
63 Docket 34 at 7 (citing Walker v. Cash Flow Consultants, Inc., 200 F.R.D. 613, 616
(N.D. Ill. 2001)). Defendants dispute whether the statute of limitations has run on the
debt, but assume it has for purposes of this motion. See Docket 34 at 7.
64 Docket 34 at 7 (quoting Jones v. Synergetic Commc’n, Inc., No. 18-cv-1860-BAS-
RBB, 2018 WL 6062414, at *4 (S.D. Cal. Nov. 20, 2018)).
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FDCPA in connection with a debt collection letter that offered an opportunity for
“settlement” of the debt within a window of time; the letter also contained a
disclaimer that the “law limits how long you can be sued on a debt” and indicated
that because of the age of the debt, the collector “will not sue you for it.”65 The
district court granted the collector’s motion to dismiss, holding that the collector’s
statements “could not plausibly mislead the least sophisticated consumer” about
the legal status of the alleged debt.66
Defendants maintain that in the “absence of a threat of litigation or actual
litigation, no violation of the FDCPA has occurred when a debt collector attempts
to collect on a potentially time-barred debt that is otherwise valid.”67 Defendants
conclude that because the August 2018 letter does not threaten litigation or
mention settlement, it does not violate the FDCPA.68
In his opposition to Defendants’ motion, Plaintiff maintains that because the
Letter fails to advise Plaintiff that a legal action to collect the debt was time-barred,
it constitutes a “false, deceptive and/or misleading practice” because the least
65 Jones, 2018 WL 6062414, at *1.
66 Id. at *7.
67 Docket 34 at 8 (quoting Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 33 (3d Cir.
2011)).
68 Docket 34 at 8 (analogizing to Walker v. Cash Flow Consultants, Inc., 200 F.R.D. 613,
616 (N.D. Ill. 2001), where an attempt to collect a time-barred debt did not violate the
FDCPA even though the letter did not contain a disclaimer about the statute of
limitations).
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sophisticated consumer would be led “to believe that the [d]ebt is legally
enforceable, when it is not.”69 Plaintiff distinguishes Jones on the basis that there,
the court “relied heavily on the fact that the collection letter therein included a
sentence stating ‘[t]he law limits how long you can be sued on a debt. Because of
the age of your debt, the creditor listed on the debt will not sue you for it.’”70 Plaintiff
adds that Defendants’ reliance on another case, Buchanan v. Northland Grp., Inc.,
is also misplaced because there, the Sixth Circuit held that an FDCPA claim could
proceed to discovery, where the claim was based on a “settlement offer” sent to
the debtor that failed to include any notice advising the debtor that legal action on
the debt was time-barred.71 Plaintiff maintains that under Alaska law, “a written
promise or acknowledgement (payment) of an alleged debt is sufficient to restart
the statute of limitations.”72 Plaintiff contends that Defendants’ letter could
therefore prompt Plaintiff—under false pretenses—to make a payment toward the
debt, thereby unwittingly resurrecting a time-barred debt.73 Plaintiff contrasts the
instant case with Stimpson v. Midland Credit Management., Inc., where, in
concluding that the debt-collection communication at issue was not actionable
69 Docket 36 at 15.
70 Docket 36 at 14 (alteration in original) (quoting Jones, 2018 WL 6062414 at *1).
71 Docket 36 at 14 (citing Buchanan v. Northland Grp., Inc., 776 F.3d 393, 397 (6th Cir.
2015)).
72 Docket 36 at 15 (citing Walker v. White, 618 P.2d 561, 564 (Alaska 1980)).
73 Docket 36 at 15.
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under the FDCPA, the district court recognized that under governing Nevada law,
“partial payment on a time-barred debt does not revive the statute of limitations.”74
Plaintiffs emphasize that the district court held that “[b]ecause ‘there was no risk
of revival’ . . . [the] letter did not violate the FDCPA by dint of failing to include a
more specific warning that a partial payment might reset the limitations clock.”75
However, it bears noting that the district court in Stimpson expressly declined to
determine whether an FDCPA violation would have occurred had the applicable
law provided for a revival of the statute upon a partial payment.76
In their reply brief, Defendants maintain that the FDCPA does not require
that a communication to a debtor explicitly state that legal action to enforce the
debt was time-barred, as Plaintiff suggests.77 Defendants also cite to Stimpson,
but for the proposition that the “FDCPA does not mandate an explicit statute-of-
limitations disclosure.”78
74 Docket 36 at 14 (citing Stimpson v. Midland Credit Mgmt., Inc., 347 F. Supp. 3d 538,
547 (D. Idaho 2018), aff’d 944 F.3d 1190 (9th Cir. 2019)).
75 Docket 36 at 15 (alteration in original) (quoting Stimpson, 347 F. Supp. 3d at 546).
The letter at issue in Stimpson included a statement that “the law limits how long you
can be sued on a debt” and that “[d]ue to the age of this debt, we will not sue you for it
or report payment or non-payment to a credit bureau.” 347 F. Supp. 3d at 542–43.
76 The district court noted that “[t]he outcome might be different if Idaho law governed
the account, [which has a revival statute], but that issue is not before the Court and will
thus be left for another day.” 347 F. Supp. 3d at 547.
77 Docket 37 at 6.
78 Docket 37 at 6 (quoting Stimpson, 347 F. Supp. 3d at 548).
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The Letter provides: “Per your request, this is to advise you that your current
balance is $5121.64” and adds that “[t]his is an attempt to collect a debt by a debt
collector. Any information obtained will be used for that purpose.”79 Otherwise,
the Letter provides a telephone number, as well as various methods by which
Plaintiff can pay his debt.80 Thus, the Letter contains neither language
threatening litigation or offering settlement nor language informing Plaintiff that the
debt is time-barred and cannot be enforced in court. The question for the Court is
therefore whether an attempt to collect on a time-barred but otherwise valid debt
violates the FDCPA if it does not include a disclaimer that the debt is unenforceable
in court but also does not threaten litigation or offer settlement. Stated differently,
could a straightforward attempt to collect on a time-barred debt, which says nothing
about the statute of limitations, plausibly mislead the “least sophisticated
consumer” to believe that the debt is enforceable in court.
It is undisputed that the FDCPA does not prohibit attempts to collect a time-
barred debt but that it does prohibit any attempts to collect such a debt by false
representation or deceptive means. However, federal courts are divided as to what
constitutes an FDCPA violation in this context.81 For instance, in the Third and
79 Docket 18-2 at 1 (emphasis omitted).
80 Docket 18-2 at 1.
81 See White v. First Step Grp. LLC, No. 2:16–cv–02439–KJM–GGH, 2017 WL 4181121
at *6 (E.D. Cal. Sept. 20, 2017) (collecting cases); Heejoon Chung v. U.S. Bank, N.A.,
250 F. Supp. 3d 658, 689–90 (D. Hawaii 2017) (same).
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Eighth Circuits, efforts to collect a time-barred debt are actionable only if
accompanied by an express threat of litigation.82 In contrast, the Fifth, Sixth, and
Seventh Circuits have held that collection letters that offer to “settle” or fail to
address the effects of a partial payment may violate the FDCPA.83
Recently, the Ninth Circuit addressed the issue of collecting time-barred
debts in Stimpson v. Midland Credit Management, Inc., 944 F.3d 1190 (9th Cir.
2019). It held that the FDCPA does not prohibit a debt collector from attempting
to collect a lawful, outstanding debt after the statute of limitations has run “so long
as the debt collector does not use means that are deceptive or misleading and
otherwise complies with legal requirements.”84 In Stimpson, the collection agency
82 See, e.g., Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32–33 (3d Cir. 2011) ((“[T]he
FDCPA permits a debt collector to seek voluntary repayment of the time-barred debt so
long as the debt collector does not initiate or threaten legal action in connection with its
debt collection efforts.); Freyermuth v. Credit Bureau Servs., 248 F.3d 767, 771 (8th Cir.
2001) (“[I]n the absence of a threat of litigation or actual litigation, no violation of the
FDCPA has occurred when a debt collector attempts to collect on a potentially time-
barred debt that is otherwise valid.”).
83 See, e.g., Buchanan v. Northland Group, Inc., 776 F.3d 393, 399 (6th Cir. 2015)
(holding that a settlement offer may “falsely impl[y] that the underlying debt is
enforceable in court” and a partial-payment offer may lead an unsophisticated consumer
to “assume from the letter that some payment is better than no payment,” which may
revive a time-barred suit); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th
Cir. 2014) (“Whether a debt is legally enforceable is a central fact about the character
and legal status of that debt. A misrepresentation about that fact thus violates the
FDCPA. Matters may be even worse if the debt collector adds a threat of litigation, but
such a threat is not a necessary element of a claim.” (citation omitted)); Daugherty v.
Convergent Outsourcing, Inc., 836 F.3d 507, 513 (5th Cir. 2016) (adopting the reasoning
of McMahon).
84 Stimpson, 944 F.3d at 1194.
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was attempting to collect on a time-barred credit card debt and sent a letter to the
debtor indicating his account balance and presenting three “offer[s]”: “Option 1:
40% OFF. Option 2: 20% OFF Over 6 Months. Option 3: Monthly Payments As
Low As: $50 per month.”85 The letter also explained that the “law limits how long
you can be sued on a debt” and added that “[d]ue to the age of this debt, we will
not sue you for it.”86 The debtor alleged that the collection agency had violated the
FDCPA by attempting to collect on a time-barred debt without expressly disclosing
it was time-barred and legally unenforceable. The district court granted summary
judgment to the debt collection agency, and the Ninth Circuit affirmed.87 The
Circuit reasoned that the letter included language that led to the “natural conclusion
. . . that the debt is time barred” and that “[n]othing in the letter falsely implies that
[the debt collector] could bring a legal action . . . to collect the debt.”88 The Ninth
Circuit noted, “[f]or instance, the letter does not offer him a ‘settlement offer,’ which
could ‘falsely impl[y] that the underlying debt is enforceable in court.’”89
Although the Letter at issue here does not include any disclaimer indicating
that the debt is time-barred or the Stimpson language that the collection agency
85 Id.
86 Id.
87 Id. at 1195, 1201.
88 Id. at 1197.
89 Id. (second alteration in original) (quoting Buchanan v. Northland Grp., Inc., 776 F.3d
393, 399 (6th Cir. 2015)).
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“will not sue,” the Court concludes that nothing in the Letter “falsely impl[ies] that
the underlying debt is enforceable in court” or implies that PAS “could bring a legal
action . . . to collect the debt.”90 This conclusion is bolstered by the Ninth Circuit’s
reasoning in Stimpson that “there is nothing inherently deceptive or misleading in
attempting to collect a valid, outstanding debt, even if it is unenforceable in court.”91
Instead, “liability attaches under § 1692e only if a debt collection letter is ‘false,
deceptive, or misleading.’”92 Here, Plaintiff does not point the Court to any
language in the Letter that is “false, deceptive, or misleading” or that is a “false
representation of . . . the character, amount, or legal status of any debt.”93 Although
the Letter does not include an express disclaimer about the legal status of the debt,
read as a whole, the Letter does not misrepresent the legal character of the debt,
and does not falsely imply it is enforceable in court.94 Accordingly, the Court
concludes that even the least sophisticated debtor would not be deceived by the
90 Id. (quoting Buchanan, 776 F.3d at 399).
91 Id. at 1200.
92 Id. at 1201.
93 15 U.S.C. § 1692e(2)(A).
94 Under Alaska law, courts treat statutes of limitations as procedural and distinct from
substantive matters. See Lillegraven v. Tengs, 375 P.2d 139, 140-41 (Alaska 1962) (“A
statutory limitation on the time for commencing actions is generally considered to be a
matter of procedure.”). Accordingly, the Court concludes that, in line with the majority
rule, under Alaska law, a debt is not extinguished when the statute of limitations to
enforce the debt expires, it is merely unenforceable in court. See Stimpson, 944 F.3d at
1199–1200.
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Letter into thinking that this debt could be or would be enforceable in court. To
hold otherwise—given that the Letter contains little beyond the debtor’s balance
and means of payment—would be to require an express disclaimer that the debt
is time-barred in any attempt to collect on a time-barred debt. Neither the FDCPA
nor the Ninth Circuit has required such a disclosure with every attempt to collect a
time-barred debt.
Lastly, Stimpson also directly addresses Plaintiff’s allegation that the Letter
violates the FDCPA because it does not disclose the effect of partial payments on
an otherwise time-barred debt.95 The debtor in Stimpson made the same
argument, contending that the debt collection letter was “deceptive or misleading
because it [did] not warn debtors regarding the potential dangers of making a
payment on a time-barred debt.”96 The Ninth Circuit rejected this argument,
reasoning that “[a]lthough Congress expressly required debt collectors to provide
specific statements to debtors on certain issues, nothing in the FDCPA requires
debt collectors to make disclosures that partial payment on debts may revive the
statute of limitations in certain states.”97
In light of the foregoing, the Court finds that PAS’s letter to Plaintiff does not
95 Docket 36 at 14–15 (citing Walker v. White, 618 P.2d 561, 564 (Alaska 1980)).
96 Stimpson, 944 F.3d at 1198 (footnote omitted).
97 Id.; see also id. at 1199 (“[The debtor] does not point to any language in the FDCPA
that can reasonably be interpreted as requiring debt collectors to provide legal advice
on revival statutes.”).
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constitute a violation of the FDCPA. Because the content of the communication is
not disputed, the Court finds that any amendment would be futile; Plaintiff cannot
cure the defect in his allegations without contradicting the operative complaint. 98
Accordingly, Defendants are entitled to judgment on the pleadings on Count III of
the FAC.
CONCLUSION
In light of the foregoing, Defendants’ Motion for Judgment on the Pleadings
at Docket 33 is GRANTED and Counts I, II, and III of the FAC are dismissed with
prejudice.
The Clerk of Court is instructed to enter a final judgment accordingly.
DATED this 13th day of May, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
98 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
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