Maryann Sivongxay v. Medcah, Inc. ( 2019 )

FILED
NOT FOR PUBLICATION
FEB 26 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARYANN SIVONGXAY, No. 17-17400
Plaintiff-Appellant, D.C. No.
1:16-cv-00415-DKW-KSC
v.
MEDCAH, INC., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted February 11, 2019
Honolulu, Hawaii
Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
Maryann Sivongxay brought suit against collection agency, Medcah, Inc.,
alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692e and 1692f, and Hawaii’s Unfair or Deceptive Acts and Practices
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Act (“UDAPA”), Haw. Rev. Stat. §§ 443B-18 and 443B-19. The district court
granted summary judgment to Medcah on all of Sivongxay’s claims. We affirm.
1. The district court did not err in granting summary judgment to Medcah on
Sivongxay’s interest collection claims. For a debt collector to collect interest, the
amount collected must be “expressly authorized by the agreement creating the debt
or permitted by law.” 15 U.S.C. § 1692f(1); see also Haw. Rev. Stat. § 443B-19(4).
Under Hawaii law, “[w]hen there is no express written contract fixing a different
rate of interest, interest shall be allowed at the rate of ten per cent a year . . . .”
Haw. Rev. Stat. § 478-2.
Medcah imposed ten percent interest on all of Sivongxay’s debts. Four of
Sivongxay’s creditors had agreements that expressly authorized the collection of
interest on past due accounts, but the agreements either did not provide an interest
rate or provided one above Hawaii’s statutory rate. These underlying agreements
entitled Medcah to collect interest, and section 478-2 provided the statutory
interest rate. The fifth creditor’s agreement was silent with respect to interest, but
Medcah was entitled to the collection of interest at a rate of ten percent per year by
section 478-2. See Kalawaia v. AIG Hawai’i Ins. Co., 977 P.2d 175, 183 n.13
(Haw. 1999) (recognizing that lessor was “statutorily entitled to interest” under
what is now Haw. Rev. Stat. § 478-2); see also Diaz v. Kubler Corp., 785 F.3d
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1326, 1330 (9th Cir. 2015) (stating that a debt collector need not be “entitled by
judgment to a type of relief in order for that relief to be ‘permitted by law’ within
the meaning of 15 U.S.C. § 1692f(1)”). Because Medcah’s collection of interest
was authorized by the underlying agreements or permitted by law, the collection of
interest was not a violation of the FDCPA or UDAPA.
2. The district court did not err in granting summary judgment to Medcah on
Sivongxay’s claims that Medcah engaged in false or deceptive debt collection
practices by attempting to collect interest on Sivongxay’s debts but reporting only
the principal amounts owed to consumer reporting agency Experian. Sivongxay
concedes that Medcah accurately reported the principal balances owed to Experian.
Sivongxay has provided no precedent requiring Medcah to report both principal
and interest to Experian, nor has she alleged that Medcah improperly represented
the reported amount due as consisting of both principal and interest. Additionally,
Sivongxay has provided no support for her assertion that a debt collector is strictly
liable for misleading a consumer when its demand letters (which are not false or
misleading) do not exactly match an independent consumer credit reporting
agency’s report of the debt (which is based on a debt collector’s accurate reporting
of the principal amount due).
AFFIRMED.
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