Hernandez v. Williams, Zinman & Parham PC, 072016 FED9, 14-15672

Docket Nº:14-15672
Opinion Judge:FRIEDLAND, Circuit Judge:
Party Name:Maria Hernandez, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. Williams, Zinman & Parham PC, Defendant-Appellee.
Attorney:Aaron D. Radbil (argued), Greenwald Davidson PLLC, Boca Raton, Florida, for Plaintiff-Appellant. Victoria Orze (argued), Anne L. Tiffen, and Charles H. Oldham, Dickinson Wright PLLC, Phoenix, Arizona, for Defendant-Appellee. Kristin Bateman (argued), Attorney; Nandan M. Joshi, Senior Litigation C...
Judge Panel:Before: John T. Noonan, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.
Case Date:July 20, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Maria Hernandez, on behalf of herself and all others similarly situated, Plaintiff-Appellant,

v.

Williams, Zinman & Parham PC, Defendant-Appellee.

No. 14-15672

United States Court of Appeals, Ninth Circuit

July 20, 2016

Argued and Submitted March 17, 2016 San Francisco, California

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding D.C. No. 2:12-cv-00731-SMM

Aaron D. Radbil (argued), Greenwald Davidson PLLC, Boca Raton, Florida, for Plaintiff-Appellant.

Victoria Orze (argued), Anne L. Tiffen, and Charles H. Oldham, Dickinson Wright PLLC, Phoenix, Arizona, for Defendant-Appellee.

Kristin Bateman (argued), Attorney; Nandan M. Joshi, Senior Litigation Counsel; To-Quyen Truong, Deputy General Counsel; Meredith Fuchs, General Counsel; Consumer Financial Protection Bureau, Washington, D.C.; for Amicus Curiae Consumer Financial Protection Bureau.

Burke W. Kappler, Colin Hector, and Thomas E. Kane, Attorneys; David C. Shonka, Principal Deputy General Counsel; Jonathan E. Nuechterlein, General Counsel; Federal Trade Commission, Washington, D.C.; for Amicus Curiae Federal Trade Commission.

Before: John T. Noonan, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.

SUMMARY[*]

Fair Debt Collection Practices Act

The panel reversed the district court's summary judgment in favor of the defendant in an action under the Fair Debt Collection Practices Act.

The Act requires that within five days of "the initial communication" with a consumer about the collection of a debt, a debt collector must send the consumer a notice containing specific disclosures. The panel held that this requirement, set forth in 15 U.S.C. § 1692g(a), does not apply only to the initial debt collector that tries to collect, but also applies to subsequent collectors that communicate about the same debt.

OPINION

FRIEDLAND, Circuit Judge:

The Fair Debt Collection Practices Act ("FDCPA") requires that within five days of "the initial communication" with a consumer about the collection of a debt, a debt collector must send the consumer a notice containing specified disclosures. 15 U.S.C. § 1692g(a). The question presented here is whether the phrase "the initial communication" as used in the FDCPA means the first communication from the initial debt collector that tries to collect, or whether it means the first communication a consumer receives from any collector about a debt, including subsequent collectors that communicate about the same debt.

Applying well-established tools of statutory interpretation and construing the language in § 1692g(a) in light of the context and purpose of the FDCPA, we hold that the phrase "the initial communication" refers to the first communication sent by any debt collector, including collectors that contact the debtor after another collector already did. In other words, if there are multiple debt collectors that try to collect a debt, each one must send the required notice after its first communication with the alleged debtor about the debt. Because the district court held otherwise, we reverse and remand for further proceedings.

I.

This case began with a loan that Maria Hernandez took out to finance an automobile purchase. After Hernandez stopped making payments on the loan, Thunderbird Collection Specialists, Inc. ("Thunderbird"), a debt collector, sent her a letter seeking to collect the debt. Hernandez did not respond to the letter.

Following Thunderbird's unsuccessful attempt to collect Hernandez's debt, Thunderbird retained the law firm Williams, Zinman & Parham PC ("WZP") as counsel to assist in its collection efforts. In December 2011, WZP sent Hernandez a collection letter, which was its initial communication with her. The letter notified Hernandez that WZP, a debt collector, represented Thunderbird regarding a debt incurred by Hernandez with the original creditor.1 While it informed Hernandez that she could dispute the debt or request additional information about the original creditor, it did not tell her that she could do so only in writing.

Hernandez filed the instant lawsuit against WZP in the United States District Court for the District of Arizona as a putative class action, alleging that WZP violated the FDCPA by sending a debt collection letter that lacked the disclosures required under § 1692g(a) of the FDCPA. That section provides in full: (a) Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a).2 We refer herein to the written notice containing these disclosures as a "validation notice."

Hernandez alleged that WZP's failure to notify her that any dispute about the debt had to be in writing to obtain verification of it, or that any request had to be in writing to obtain the name and address of the original creditor, violated §§ 1692g(a)(4) and (a)(5), respectively.

The parties filed cross-motions for summary judgment on Hernandez's FDCPA claims. In its motion, WZP did not address whether its letter lacked the content required by § 1692g(a). Rather, it contended that it was not required to comply with that provision because Thunderbird's March letter was the "initial communication" sent to Hernandez with respect to the debt at issue and therefore the sole communication triggering § 1692g(a)'s requirements. The district court agreed and granted summary judgment in favor of WZP.

Hernandez timely appealed, contending that § 1692g(a) imposes the requirement to send a validation notice on each and every debt collector that communicates with a consumer about a given debt.3

II.

We review de novo the district court's interpretation of § 1692g(a), as well as its rulings on cross-motions for summary judgment based on that interpretation. Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1168 (9th Cir. 2006).

III.

The sole dispute on appeal is whether the phrase "the initial communication" as used in § 1692g(a) refers only to the very first communication sent about a debt or instead to the first communication sent by each and every debt collector that seeks to collect it, including those collectors that take over collection efforts from a prior debt collector. Although this question has divided the district courts, it is an issue of first impression for this court, and it has not yet been addressed in a published opinion by any of our sister circuits.4

In answer to this question, we hold that although the sentence in § 1692g(a) in which the phrase "the initial communication" appears is ambiguous when read in isolation, when the sentence is read in the context of the FDCPA as a whole and in light of the statute's remedial purpose, it is clear that the validation notice requirement applies to each debt collector that attempts to collect a debt.

A.

In ascertaining the meaning of § 1692g(a), we begin, as always, with the statutory text. BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). Because we must "presume that [the] legislature says in a statute what it means and means in a statute what it says there, " id. (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992)), if we find that the statutory meaning is plain and unambiguous, then our "sole function . . . is to enforce it according to its terms, " United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).

In deciphering the meaning of a statute, we "do not look at its words in isolation." Int'l Ass'n of Machinists, Local Lodge 964 v. BF...

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