Robel Afewerki v. Anaya Law Group , 868 F.3d 771 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBEL A. AFEWERKI, No. 15-56510
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-07132-
RGK-JPR
ANAYA LAW GROUP; LOS ANGELES
FEDERAL CREDIT UNION,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 7, 2017
Pasadena, California
Filed August 18, 2017
Before: Richard R. Clifton and John B. Owens, Circuit
Judges, and John Antoon II,* District Judge.
Opinion by Judge Clifton
*
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
2 AFEWERKI V. ANAYA LAW GROUP
SUMMARY**
Fair Debt Collection Practices Act
The panel affirmed in part and vacated in part the district
court’s summary judgment in favor of the defendants in an
action under the Fair Debt Collection Practices Act and
California’s Rosenthal Fair Debt Collection Practices Act.
A debt collector filed a complaint in state court to collect
an unpaid credit card debt, but the complaint overstated both
the debtor’s principal due and the applicable interest rate.
The panel held that the false statements made by the debt
collector were material because they could have
disadvantaged a hypothetical debtor in deciding how to
respond to the complaint. The panel therefore vacated the
grant of summary judgment as to the FDCPA claim.
The panel affirmed the district court’s grant of summary
judgment on the Rosenthal Act claim on the alternative
ground that the debt collector corrected the misstatements
within fifteen days of discovering the violation and thus
satisfied the requirements necessary to avail itself of a
defense under the Rosenthal Act.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AFEWERKI V. ANAYA LAW GROUP 3
COUNSEL
Abbas Kazerounian (argued), Kazerouni Law Group APC,
Costa Mesa, California; Robert L. Hyde, Joshua B. Swigart,
and Sara F. Khosroabadi, Hyde & Swigart, San Diego,
California; for Plaintiff-Appellant.
Jonathan A. Malek (argued), Anaya Law Group, Westlake
Village, California, for Defendants-Appellees.
OPINION
CLIFTON, Circuit Judge:
The federal Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., prohibits debt
collectors from making false statements when attempting to
collect debts from consumers. 15 U.S.C. § 1692e. Not all
false statements are actionable, however. To constitute a
violation of the FDCPA, a false statement must be “material.”
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir.
2010).
What makes a false statement material or immaterial in
the debt collection world? Material false statements, we have
held, are those that could “cause the least sophisticated debtor
to suffer a disadvantage in charting a course of action in
response to the collection effort.” Tourgeman v. Collins Fin.
Servs., Inc., 755 F.3d 1109, 1121 (9th Cir. 2014). This appeal
requires us to consider the materiality of modest
overstatements of an amount due and an interest rate.
4 AFEWERKI V. ANAYA LAW GROUP
Here, a debt collector filed a complaint in state court to
collect an unpaid credit card debt, but the complaint
overstated both the debtor’s principal due and the applicable
interest rate. The debtor sued the debt collector in federal
court for violations of the FDCPA and of California’s
Rosenthal Fair Debt Collection Practices Act (“Rosenthal
Act”), Cal. Civ. Code § 1788 et seq. The district court
granted summary judgment to the debt collector on both
claims because it concluded that the errors in the complaint
were not material. We conclude, however, that the false
statements made by the debt collector in this case were
material because they could have disadvantaged a
hypothetical debtor in deciding how to respond to the
complaint. Accordingly, we vacate the grant of summary
judgment as to the FDCPA claim and remand for further
proceedings.
As for the Rosenthal Act claim, we affirm the grant of
summary judgment on an alternative ground. The debt
collector corrected the misstatements within fifteen days of
discovering the violation and thus satisfied the requirements
necessary to avail itself of a defense under the Rosenthal Act.
I. Background
Los Angeles Federal Credit Union (“LAFCU”) was owed
money by Plaintiff Robel Afewerki, a credit card customer of
LAFCU who had fallen behind on payments. LAFCU hired
Anaya Law Group to collect the debt and correctly informed
Anaya Law Group that the principal due was $26,916.08 and
that the debt was subject to a 9.65 percent interest rate.
Anaya Law Group filed a complaint on behalf of LAFCU
against Afewerki on May 6, 2014, in Los Angeles County
Superior Court alleging that the principal of Afewerki’s debt
AFEWERKI V. ANAYA LAW GROUP 5
was $29,916.08 ($3,000 more than he in fact owed) and that
the debt was subject to an interest rate of 9.965 percent (a
figure that was 0.315 percent too high). Anaya Law Group
served the complaint directly on Afewerki, who was not
represented by counsel at that time.
Given this circumstance, Afewerki retained a lawyer, who
sent a demand for a bill of particulars to Anaya Law Group
on June 6, 2014. As she later set out in a declaration, an
Anaya Law Group attorney discovered the errors in the
complaint for the first time on June 16, 2014, while preparing
a response to the demand. She asserted that the errors were
inadvertent. Two days later, on June 18, 2014, Anaya Law
Group filed a notice of errata correcting the errors.
Relying on two statutes that prohibit debt collectors from
making false representations in connection with efforts to
collect consumer debts, Afewerki filed this lawsuit in federal
court. Specifically, in his first amended complaint, Afewerki
alleged a violation of the FDCPA against Anaya Law Group
and a violation of the Rosenthal Act against both Anaya Law
Group and LAFCU.1 See 15 U.S.C. § 1692e; Cal. Civ. Code
§ 1788.17.
Each of the parties moved for summary judgment. The
district court granted Defendants’ motion for summary
judgment and denied Afewerki’s motion for summary
judgment, concluding that the errors in the state court
1
Afewerki did not sue LAFCU under the FDCPA. Under the
FDCPA, a creditor collecting debts on its own behalf is not a “debt
collector.” 15 U.S.C. § 1692a(6); Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1721 (2017).
6 AFEWERKI V. ANAYA LAW GROUP
complaint were “not material.” The district court reaffirmed
its decision after Afewerki filed a motion for reconsideration.
Notice of appeal was timely filed. We have jurisdiction.
28 U.S.C. § 1291.
II. Discussion
We review de novo a grant of summary judgment.
Tourgeman, 755 F.3d at 1118. We also review de novo a
district court’s interpretation of the FDCPA. Id. at 1119.
A. Materiality under FDCPA and Rosenthal Act
The district court determined that Defendants were not
liable under either the FDCPA or the Rosenthal Act because
it concluded that the complaint’s misstatements of the
principal owed and interest rate were “not material.” Even if
Afewerki had not appeared and LAFCU had been granted
default judgment in the state court case, the district court
believed that LAFCU would have been required to prove the
amount owed prior to entry of judgment, so the judgment
ultimately entered would have been in the correct amount. In
addition, the district court noted that Afewerki had not
presented evidence that he would have proceeded differently
had the complaint alleged the correct principal amount and
interest rate. We conclude, however, that the false statements
made by the debt collector in this case were material because
they could have disadvantaged the least sophisticated debtor
in responding to the complaint.
The FDCPA prohibits debt collectors from using “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
AFEWERKI V. ANAYA LAW GROUP 7
§ 1692e. Specifically, 15 U.S.C. § 1692e(2) prohibits “[t]he
false representation of . . . the character, amount, or legal
status of any debt.” The Rosenthal Act incorporates these
prohibitions by reference. Cal. Civ. Code § 1788.17
(“[E]very debt collector collecting or attempting to collect a
consumer debt shall comply with the provisions of Sections
1692b to 1692j, inclusive, of . . . Title 15 of the United States
Code.”). The complaint that was filed misrepresented the
amount of the debt owed by Afewerki.
The text of the FDCPA does not itself establish either the
least sophisticated debtor standard or the materiality
requirement, nor does the statute define these terms. The
FDCPA’s broad prohibition on misleading statements poses
the question, “Misleading to whom?” We answered this
question in 1982, when we explained that, “[i]n evaluating
the tendency of language to deceive, [we] should look not to
the most sophisticated readers but to the least.” Baker v. G.
C. Servs. Corp., 677 F.2d 775, 778 (9th Cir. 1982). We
concluded that the FDCPA does not ask the subjective
question of whether an individual plaintiff was actually
misled by a communication. Rather, it asks the objective
question of whether the hypothetical least sophisticated
debtor would likely have been misled. “If the least
sophisticated debtor would likely be misled by a
communication from a debt collector, the debt collector has
violated the Act.” Guerrero v. RJM Acquisitions LLC,
499 F.3d 926, 934 (9th Cir. 2007) (internal quotation marks
omitted). We recognized that “the least sophisticated debtor
may be uninformed, naive, and gullible.” Tourgeman,
755 F.3d at 1119. To be sure, “her interpretation of a
collection notice cannot be bizarre or unreasonable,” id., but
it is still the perspective of the least sophisticated debtor that
counts.
8 AFEWERKI V. ANAYA LAW GROUP
More recently, in Donohue v. Quick Collect, Inc.,
592 F.3d at 1033–34, we adopted the materiality requirement
as a “corollary” to the least sophisticated debtor standard.
We held “that false but non-material representations are not
likely to mislead the least sophisticated consumer and
therefore are not actionable under §[] 1692e.” Id. at 1033.
By asking whether false statements were material, we took
the least sophisticated debtor standard that we had long
applied to misleading statements and expanded it to other
conduct covered by the FDCPA. In doing so, we followed
the lead of the Seventh Circuit, which explained that the
FDCPA “is designed to provide information that helps
consumers to choose intelligently, and by definition
immaterial information neither contributes to that objective
(if the statement is correct) nor undermines it (if the statement
is incorrect).” Hahn v. Triumph P’ships LLC, 557 F.3d 755,
757–58 (7th Cir. 2009). Other circuits have also adopted a
materiality requirement for FDCPA claims. See, e.g., Jensen
v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015);
Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 571 (8th
Cir. 2015); Miller v. Javitch, Block & Rathbone, 561 F.3d
588, 596 (6th Cir. 2009).
In Donohue, a debt collector filed a complaint that listed
a principal due of $270.99 and interest due of $32.89, which,
the complaint indicated, was calculated at a 12 percent
interest rate. 592 F.3d at 1033. In reality, the $32.89
included finance charges assessed by the creditor in addition
to the 12 percent interest rate. Id. While the complaint’s
characterization of the amount was literally false, we
determined that it did not matter. The total amount due was
correct, and the mistake, we concluded, would “not affect a
consumer’s ability to make intelligent decisions.” Id. at
1034.
 AFEWERKI V. ANAYA LAW GROUP 9
We have applied this concept in subsequent cases. For
example, we held that a voicemail message that failed to
fulfill a statutory requirement to identify each communication
as being from “a debt collector” was not a material violation
when the debtor clearly knew who the debt collector was
because the two had exchanged eight emails and a phone call
in the two preceding weeks. Davis v. Hollins Law, 832 F.3d
962, 967 (9th Cir. 2016).
Nevertheless, the materiality requirement remains a fairly
narrow exception to the general rule requiring accuracy in
communications from debt collectors. Thus, we concluded
that misidentification of a consumer’s original creditor in a
dunning letter was material because such a mistake could lead
to “confusion and delay in trying to contact the proper party
concerning payment on the loan.” Tourgeman, 755 F.3d at
1121 (original brackets omitted). Without knowing the
identity of the original creditor, we explained, a debtor might
be frustrated in an attempt to discover how he incurred the
debt or to obtain his payment records. Id.
Material false representations, then, are those that could
“cause the least sophisticated debtor to suffer a disadvantage
in charting a course of action in response to the collection
effort.” Id. Immaterial false representations, by contrast, are
those that are “literally false, but meaningful only to the
‘hypertechnical’ reader.” Id. To the extent that a Rosenthal
Act claim is derivative of a 15 U.S.C. § 1692e claim, as is
true in this case, false statements are also subject to the
materiality requirement for purposes of the Rosenthal Act
claim. See Davis, 832 F.3d at 966 n.3.
Because the materiality inquiry focuses on the objective
question of how the least sophisticated debtor could have
10 AFEWERKI V. ANAYA LAW GROUP
reacted to a misstatement, the question of what Afewerki
himself would actually have done differently had Anaya Law
Group not misstated the amount of his debt is irrelevant in
determining materiality. As we have explained:
[A] consumer possesses a right of action even
where the defendant’s conduct has not caused
him or her to suffer any pecuniary or
emotional harm. An FDCPA plaintiff need
not even have actually been misled or
deceived by the debt collector’s
representation; instead, liability depends on
whether the hypothetical “least sophisticated
debtor” likely would be misled.
Tourgeman, 755 F.3d at 1117–18 (citations omitted). The
district court’s determination that Afewerki would not have
proceeded differently absent the error might mean that he did
not suffer actual damages and might disqualify him from
obtaining such damages, but that determination does not
mean that overstating his debt by $3,000 and overstating the
applicable interest rate were “mere technical falsehoods.” Id.
at 1119.
There are a number of circumstances in which the errors
in the complaint filed by Anaya Law Group might have
impacted the least sophisticated debtor. The Fourth Circuit
recently considered a similar case, Powell v. Palisades
Acquisition XVI, LLC, 782 F.3d 119 (4th Cir. 2014). In that
case, a judgment for a consumer’s credit card debt was
assigned to a debt collector. Id. at 121. The debt collector
filed an assignment of judgment with the court that reported
a principal amount of $11,727.99 instead of the correct
amount of $10,497.21. Id. at 122. It also stated that the
AFEWERKI V. ANAYA LAW GROUP 11
debtor had not made any payments even though she had made
$2,700 in payments. Id. Thus, the assignment over-reported
the amount the debtor owed by $3,930.78. After the debtor
challenged the assignment, the debt collector filed an
amended assignment of judgment to correct the errors. Id.
The Fourth Circuit determined that the misstatement in the
initial assignment was a material misrepresentation because
“the least sophisticated consumer could be led to decide to
pay far more than she otherwise would have paid.” Id. at
127.
We agree and conclude that Anaya Law Group’s $3,000
overstatement of the principal due in the state court
complaint,2 exacerbated by the statement of an inflated
interest rate, was material. Just as in Powell, the fact that the
debt collector corrected its mistake after the debtor
challenged it does not mean that a less sophisticated debtor
would have been so lucky. Unlike the debtor in Donohue,
who was served with a complaint that was correct in stating
the amount owed, the least sophisticated debtor in Afewerki’s
position would not have had the option to avoid the lawsuit
by simply “pa[ying] the accurately stated sum to settle [the]
debt.” 592 F.3d at 1034; see also id. (“[A]pplying an
incorrect rate of interest would lead to a real injury . . . .”).
Rather, the least sophisticated debtor in Afewerki’s position,
concerned that he had been sued, may well have simply paid
the amount demanded in the complaint and would have
overpaid by approximately $3,000.
2
Defendants contend that a complaint is not a communication with
a debtor subject to the prohibitions of the FDCPA. We explicitly held in
Donohue, however, that “a complaint served directly on a consumer to
facilitate debt-collection efforts is a communication subject to the
requirements of §[] 1692e.” 592 F.3d at 1031–32.
12 AFEWERKI V. ANAYA LAW GROUP
There are other circumstances in which the errors in the
complaint Anaya Law Group filed might have impacted the
least sophisticated debtor. One circumstance discussed by the
district court and the parties is the possibility that the state
court case could have proceeded to default judgment.
Contrary to Anaya Law Group’s argument, it is not certain
that LAFCU would have been required to submit copies of its
accounts or otherwise would have proved that the amount it
sought was correct prior to entry of a default judgment. The
Appellate Division of the Los Angeles County Superior Court
has held that a credit card company attempting to collect a
debt from a customer need not submit documentary evidence
in order to obtain a clerk’s default judgment for a definite
sum. HSBC Bank Nev., N.A. v. Aguilar, 141 Cal. Rptr. 3d
206, 211 (App. Dep’t Super. Ct. 2012). This decision could
have guided proceedings in the Los Angeles County Superior
Court had Afewerki’s case proceeded to default judgment.
Thus, the least sophisticated debtor in Afewerki’s position
might not only have been misled as to the amount owed, but
could also have had a judgment for an inflated amount
entered against him.
For these reasons, we conclude that the incorrect
statement of the principal due in the state court complaint,
which was further inflated by the incorrect interest rate, was
material.3
3
Although “[t]he FDCPA is a strict liability statute that makes debt
collectors liable for violations that are not knowing or intentional,”
Donohue, 592 F.3d at 1030, the statute provides for a bona fide error
defense, 15 U.S.C. § 1692k(c); see also Cal. Civ. Code § 1788.30(e).
Defendants have not attempted to invoke that defense, however.
AFEWERKI V. ANAYA LAW GROUP 13
B. Rosenthal Act Defense
Although we disagree with the district court’s conclusion
that the misstatements were not material, which was the basis
on which the district court granted summary judgment to
Defendants, “[w]e may affirm on any basis supported by the
record.” Fisher v. Kealoha, 855 F.3d 1067, 1069 (9th Cir.
2017). We conclude that Defendants are entitled to the
benefit of a separate defense under the Rosenthal Act, and on
that basis we affirm the district court’s grant of summary
judgment to Defendants as to the Rosenthal Act claim.
California Civil Code § 1788.30(d) states:
A debt collector shall have no civil liability
under this title if, within 15 days either after
discovering a violation which is able to be
cured, or after the receipt of a written notice
of such violation, the debt collector notifies
the debtor of the violation, and makes
whatever adjustments or corrections are
necessary to cure the violation with respect to
the debtor.
Defendants argue they are absolved of liability under the
Rosenthal Act because they corrected their error in
accordance with this provision and served Afewerki with
notice of the correction. Defendants pleaded this defense in
their answer and argued it in their motion for summary
judgment before the district court.
An attorney from Anaya Law Group filed a declaration in
the district court stating that the errors were inadvertent and
that she discovered the errors only while reviewing the file to
14 AFEWERKI V. ANAYA LAW GROUP
respond to Afewerki’s demand for a bill of particulars. The
notice of errata was filed on June 18, 2014, which was within
fifteen days of June 6, 2014, when the demand for a bill of
particulars was served. Accordingly, Defendants satisfied the
criteria to invoke the defense provided by § 1788.30(d).
Afewerki does not cite any evidence to contradict the
declaration by the Anaya Law Group attorney. Instead,
Afewerki argues that § 1788.30(d) was eliminated in 1999 by
California Civil Code § 1788.17, which states:
Notwithstanding any other provision of this
title, every debt collector collecting or
attempting to collect a consumer debt shall
. . . be subject to the remedies in Section
1692k of[] Title 15 of the United States Code.
The California Supreme Court has not addressed the impact
of § 1788.17 on § 1788.30(d), nor have the California Courts
of Appeal done so in a published opinion. “When a state’s
highest court has not yet ruled on an issue, we must
reasonably determine the result that the highest state court
would reach if it were deciding the case.” Gonzales v.
CarMax Auto Superstores, LLC, 840 F.3d 644, 649 (9th Cir.
2016).
Afewerki argues that legislative history documents
suggest that, in approving § 1788.17, the California
legislature intended to remove the § 1788.30(d) defense. We
must start, however, with the text of the statute, and when the
statutory “language is unambiguous, the plain meaning
controls.” Voices of the Wetlands v. State Water Res. Control
Bd., 257 P.3d 81, 93 (Cal. 2011). The text of § 1788.17 does
not support the interpretation Afewerki urges.
AFEWERKI V. ANAYA LAW GROUP 15
Section 1788.17 makes debt collectors “subject to the
remedies in Section 1692k” but says nothing about defenses.
Section 1788.30(d) is a defense, not a remedy. To be sure,
there are remedies included in 15 U.S.C. § 1692k that were
not available under the Rosenthal Act prior to enactment of
§ 1788.17. For example, as Afewerki notes, § 1788.17 made
class remedies available under the Rosenthal Act. Gonzales
v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1065 (9th Cir.
2011). The 1999 amendment also permitted individuals suing
under the Rosenthal Act to claim statutory damages without
regard to whether a debt collector acted knowingly. Compare
Cal. Civ. Code § 1788.30(b), with 15 U.S.C.
§ 1692k(a)(2)(A). But, again, these are remedies, not
defenses.
Furthermore, as we explained in a previous decision,
§ 1788.17 did not delete § 1788.30, but rather nullified some
of § 1788.30’s limitations on remedies to the extent that those
limitations did not apply to the remedies described in
§ 1692k. Gonzales, 660 F.3d at 1065. There is nothing in
§ 1692k that would suggest nullification of § 1788.30(d)’s
defense for cured violations. Accordingly, it appears to us
that the defense provided by § 1788.30(d) remains available
under the Rosenthal Act. “California, of course, remains free
to tell us if, in this respect, we [a]re wrong.” Evans v. Chavis,
546 U.S. 189, 200 (2006). In the absence of such direction,
however, we conclude that Defendants are not liable under
the Rosenthal Act because Defendants cured the violation
within fifteen days of discovering it. Cal. Civ. Code
§ 1788.30(d). On this basis, we affirm the district court’s
16 AFEWERKI V. ANAYA LAW GROUP
grant of summary judgment to Defendants as to the Rosenthal
Act claim.4
III. Conclusion
On the FDCPA claim, we vacate the district court’s
summary judgment in favor of Anaya Law Group. As to the
Rosenthal Act claim, we affirm the district court’s summary
judgment in favor of Defendants. We remand for further
proceedings on the FDCPA claim. Because Anaya Law
Group is the only defendant sued under the FDCPA claim,
LAFCU will no longer be part of the case on remand.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
4
Because we affirm on this ground, we do not consider Defendants’
contention that law firms are not “debt collectors” subject to the Rosenthal
Act. Additionally, Defendants seek summary affirmance on the ground
that the excerpts of record Afewerki submitted were inadequate. Although
the excerpts of record were deficient, see 9th Cir. R. 30-1.4(c)(ii),
summary affirmance is not an appropriate remedy for these omissions, see
9th Cir. R. 30-2 (detailing the actions the court may take when the
excerpts of record omit required materials).