Clark v. Capital Credit & Collection Serv., 04-35563.

Decision Date24 August 2006
Docket NumberNo. 04-35795.,No. 04-35563.,04-35563.,04-35795.
Citation460 F.3d 1162
PartiesLinda L. CLARK; Jerry V. Clark, Plaintiffs-Appellants, v. CAPITAL CREDIT & COLLECTION SERVICES, INC., an Oregon corporation; Janine Brumley; Jeffrey I. Hasson, Defendants-Appellees. Linda L. Clark; Jerry V. Clark, Plaintiffs-Appellees, v. Capital Credit & Collection Services, Inc., an Oregon corporation; Janine Brumley, Defendants-Appellants, and Jeffrey I. Hasson, Defendant. Linda L. Clark; Jerry V. Clark, Plaintiffs-Appellees, v. Capital Credit & Collection Services, Inc., an Oregon corporation; Janine Brumley, Defendants, and Jeffrey I. Hasson, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Danny H. Gerlt, Portland, OR, for the plaintiffs-appellants.

William R. Goode, Portland, OR, for defendants-appellees Capital Credit & Collection Services, Inc., and Janine Brumley.

Thomas W. Brown, Frank H. Lagesen, Wendy Margolis, and Christine Coers-Mitchell, Cosgrave Vergeer Kester LLP, Portland, OR, for defendant-appellee Jeffrey I. Hasson.

Appeal from the United States District Court for the District of Oregon; John Jelderks, Magistrate Judge, Presiding. D.C. Nos. CV-03-00340-JE, CV-03-00340-JE, CV-03-00340-JE.

Before: BROWNING, D.W. NELSON, and O'SCANNLAIN, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:

In their action pursuant to the federal Fair Debt Collection Practices Act and the Oregon Unfair Debt Collection Practices Act, Linda and Jerry Clark make several assignments of error. Here, we address only their appeal of the following: (1) the district court's order granting summary judgment in favor of Jeffrey Hasson and granting partial summary judgment to Capital Credit & Collection Services, Inc., and Janine Brumley with respect to the cease communication directive and debt verification; and (2) the district court's failure to rule on a pending discovery motion before deciding the summary judgment motions.1

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm, in part, and reverse, in part.


For a number of years, Linda Clark ("Mrs.Clark") was treated for mental health problems by Dr. J. Michael Sullivan at the Evans & Sullivan Clinic in Beaverton, Oregon. When Dr. Sullivan retired, Dr. Kathryn Evans, his business partner, purchased his interest in the clinic and claimed an interest in all of the outstanding accounts. After approximately one year of direct and indirect discussions regarding "serious errors" in billing, Dr. Evans referred Mrs. Clark's outstanding account to Capital Credit & Collection Services, Inc. ("Capital"), for collection. Eventually, Dr. Evans assigned her claim against Mrs. Clark to the collection agency.

In connection with Mrs. Clark's alleged debt, Janine Brumley (the Capital employee responsible for collection activities on the Clark account) followed Capital's standard procedures. Relevant to the instant appeal, she first sent Mrs. Clark a collection notice on March 29, 2002. In subsequent written and oral communications, Mrs. Clark disputed the validity of the alleged debt and explained in detail billing problems she had experienced at the Evans & Sullivan Clinic.

After these communications (initiated by Mrs. Clark), Brumley sent a second notice and a letter, enclosing a copy of an itemized statement of the Clark account received from Dr. Evans. Capital claimed the itemized statement verified the debt. The second notice and verification letter were addressed to both Mrs. Clark and her husband, Jerry Clark ("Mr.Clark"). Brumley added him to the Clark account because his insurance policy had paid for Mrs. Clark's mental health treatment. On April 10, 2002, Brumley also requested authorization to file suit against the Clarks. Brumley's collection activities continued until Mr. Clark wrote to Capital. In his letter, dated April 24, 2002, he disputed the alleged debt, requested "proper verification," and directed the collection agency not to call Mrs. Clark at work or to call Mr. or Mrs. Clark at home.

On behalf of Capital, Jeffrey Hasson, the collection agency's attorney, also sent the Clarks a collection notice. That notice recited information about the Clark account that Hasson had taken from a "complaint praecipe" Capital provided to him. On May 1, 2002, Hasson received a letter from Mr. Clark that disputed the alleged debt, requested verification, and "of course preclude[d] any phone calls to our home or employment." In response, Hasson mailed a verification letter, enclosing "documents to substantiate" Capital's claim against the Clarks. The enclosure consisted of the same itemized statement sent by Brumley.

A few months after both Capital and Hasson had received Mr. Clark's letters, Mrs. Clark called Hasson's office to request information about the alleged debt. Although the parties disagree as to the exact nature of Mrs. Clark's request, that she spoke to Hasson's secretary is undisputed. When Hasson's secretary called Capital to relay the message, Capital instructed her not to talk with debtors. Later the same day, Brumley returned Mrs. Clark's telephone call. The parties do not agree on the substance of that call, but the Clarks presented evidence that the interaction so upset Mrs. Clark that she was required to obtain therapy.

Following resolution of a state lawsuit filed by Capital, the Clarks initiated the instant action against Capital, Brumley and Hasson in the district of Oregon, alleging violations of both the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., and the Oregon Unfair Debt Collection Practices Act, Or.Rev.Stat. 646.639 et seq. Initially, the Clarks sought partial summary judgment on their federal claims, and Capital, Brumley and Hasson sought summary judgment on all of the Clarks' claims. After the district court heard oral argument on the original cross-motions the Clarks filed a motion to compel additional discovery and moved for summary judgment on their state law claims.

The district court never considered fully the motion to compel on its merits. Rather, it issued an opinion and order denying the Clarks' summary judgment motions and granting Hasson's motion for summary judgment. In the same disposition, the district court denied Capital and Brumley's motion for summary judgment as to claims relating to Brumley's oral communications with Mrs. Clark on July 30, 2002, but granted the motion as to the balance of the Clarks' claims. Later, the district court granted the Clarks' motion to compel documents relating to the July 30, 2002, conversation and denied as moot the remainder of the motion.2

This appeal followed.

I. District Court's Ruling on Cross-Motions for Summary Judgment

We review de novo both the district court's interpretation of the Fair Debt Collection Practices Act ("FDCPA"), Romine v. Diversified Collection Serv., Inc., 155 F.3d 1142, 1145(9th Cir.1998), and the district court's rulings on cross-motions for summary judgment, see Slenk v. Transworld Systems, Inc., 236 F.3d 1072, 1074 (9th Cir.2001).


The Clarks argue that, because of Mr. Clark's letters "preclud[ing] any phone calls to [Mrs. Clark] . . . or to [their] home," Brumley's telephone call of July 30, 2002, constituted a violation of § 1692c(c), which provides the following:

If a consumer notifies a debt collector in writing ... that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt....

15 U.S.C. § 1692c(c).

With regard to Capital and Brumley, the district court granted summary judgment because it concluded that — within the scope of Mrs. Clark's request for information from Hasson — the Clarks had waived "any objection to a return call that sought merely to provide the information requested." Whether a consumer may waive a so-called "cease communication directive" appears to be an issue of first impression in this and other circuits, so we are charged with interpreting the FDCPA to determine the scope of § 1692c(c).


Well-established canons of statutory construction provide that any inquiry into the scope and meaning of a statute must begin with the text of the statute itself. E.g., Int'l Ass'n of Machinists & Aerospace Workers v. BF Goodrich Aerospace Aerostructure Group, 387 F.3d 1046, 1051 (9th Cir.2004). They further caution that, "where the statute's language is plain, the sole function of the courts is to enforce it according to its terms ... for courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Id. (citing United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) and Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)) (internal quotation marks omitted).

The plain language of § 1692c(c) includes explicit exceptions permitting a debt collector subject to a cease communication directive to contact the consumer in three circumstances:

(1) to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

15 U.S.C. § 1692c(c).3 None of those exceptions provide that a debt collector may contact a consumer at the consumer's request, nor does the plain language of § 1692c(c) contemplate waiver.

Because the statute affirmatively designates certain manners of operation, we are counseled that, under the doctrine of expressio unius est exclusio alterius, these omissions are the equivalent of exclusions. See ARC Ecology v. U.S. Dept. of Air Force, 411...

To continue reading

Request your trial
565 cases
  • Warner v. Midland Credit Mgmt., Inc.
    • United States
    • U.S. District Court — Central District of California
    • May 19, 2021
    ...strict liability under the FDCPA," for which defendants bear the burden of proof on summary judgment. Clark v. Cap. Credit & Collection Servs., Inc., 460 F.3d 1162, 1177 (9th Cir. 2006) ; Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1514 (9th Cir. 1994). Accordingly, defendants "must ......
    • United States
    • U.S. District Court — District of Rhode Island
    • February 5, 2010
    ...refers to the bona fide error defense of section 1692k(c),3 this defense is an affirmative defense, Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1177 (9th Cir.2006), which has not been pleaded by defendant and, even if it were pleaded, defendant has not borne its burden......
  • Rockridge Trust v. Wells Fargo, N.A.
    • United States
    • U.S. District Court — Northern District of California
    • September 25, 2013
    ...all consumers, the gullible as well as the shrewd ... the ignorant, the unthinking and the credulous." Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1171 (9th Cir. 2006) (citation omitted).ii. Wells Fargo Wells Fargo's motion to dismiss the FDCPA cause of action is denied beca......
  • Paredes v. Credit Consulting Servs., Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • August 8, 2022
    ...consumers, the gullible as well as the shrewd ... the ignorant, the unthinking and the credulous.’ " ( Clark v. Capital Credit & Collection Servs. (9th Cir. 2006) 460 F.3d 1162, 1171.) The Rosenthal Act is modeled on, and applies more broadly than, the federal FDCPA. ( Best v. Ocwen Loan Se......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT