Riggs v. Prober & Raphael
- Citation:
- 2012 US App Lexis 11631
- Tag(s):
-
- Ruling:
- The Ninth Circuit held that a debt validation notice only violates 15 U.S.C. 1692g(a)(3) of the Fair Debt Collection Practices Action (FDCPA), or its state equivalent, the Rosentahal Fair Debt Collection Practices Action (Rosenthal Action), Cal Civ Code 1788, et seq., where it expressly requires a consumer to dispute his/her debt in writing
- Procedural context:
- Prober filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and, in the alternative, for partial summary judgment. The district court granted in part the motion to dismiss with leave to amend, and granted partial summary judgment for Prober on two claims pertaining to the validation notice. The court held that Prober's validation notice did not mpermissibly require Riggs to dispute her debt in writing and did not falsely misrepre-sent her right to dispute the debt. The district court entered final judgment at Riggs's request, and Riggs timely appealed. Riggs appeals only the district court's summary judgment order, not its order granting in part Prober's motion to dismiss.
- Facts:
- In November 2006, Riggs purchased a car under a retail installment contract that was later assigned to Fireside Bank. Riggs borrowed $13,361.21 of the purchase price. Between September and December 2008, Riggs failed to make her monthly payments. During that time, Fireside Bank repossessed the car and notified Riggs that it would sell the car unless she made the required payments, which she did not. Fireside sold the car, applied the proceeds to Riggs's debt, and hired Prober to collect the $8,191.89 balance.
In a validation notice dated April 10, 2009, Prober requested repayment of the remaining debt, plus accrued interest. The notice read, in relevant part:
Dear Joanna [sic] Riggs:
This communication is made in an attempt to collect on a debt or judgment and any information obtained will be used for that purpose. My office has been retained by FIRESIDE BANK in order to obtain repayment of the sum of $8,191.89, together with accrued interest to which you are obligated under the terms of a contract and security agreement dated November 4, 2006. The present balance owing is currently $8,191.89.
I am, therefore, requesting that you contact this office so that I can arrange the terms of your repayment to FIRESIDE BANK. As I am sure you know, if we are unable to work this matter out, and I am able to secure a judgment, you may be subject to payment of FIRESIDE BANK's attorney's fees and costs incurred, as well as jeopardizing your credit.
Please be advised that if you notify my office in writing within 30 days that all or a part of your obligation or judg-ment to FIRESIDE BANK is disputed, then I will mail to you written verification of the obligation or judgment and the amounts owed to FIRESIDE BANK. In addition, upon your written request within 30 days of receipt of this letter, I will pro-vide you with the name and address of the original creditor, if different from the current creditor.
If I do not hear from you within 30 days, I will assume that your debt to FIRESIDE BANK is valid.
The last page of the notice consisted of two disclosures:
SPECIAL NOTICE
THE FOLLOWING NOTICE IS GIVEN TO YOU IN THE EVENT THAT THE FEDERAL FAIR DEBT COLLECTIONS ACT APPLIES TO THIS COMMUNICATION.
The following statement provides you with notice of certain rights which you may have by law. Nothing in this statement modifies or changes the hearing date or response time specified in the attached documents or your need to take legal action to protect your rights in this matter. No provision of the following statement modifies or removes your need to comply with local rules concerning the attached documents.
CONSUMER DISCLOSURE
This communication is made in an attempt to collect on a debt or judgment and any information obtained will be used for that purpose. Please be advised that if you notify FIRESIDE BANK's attorneys in writing within 30 days that all or a part of your obligation or judgment to FIRESIDE BANK is disputed, then FIRESIDE BANK's attorneys will mail to you a written verification of the obligation or judgment and the amounts owed to FIRESIDE BANK. In addition and upon your written request within 30 days of receipt of this letter, I will provide you with the name and address of the original creditor, if different from the current creditor.
Riggs did not contact Prober and made no payment towards her debt. Prober filed an action on behalf of Fireside Bank in California Superior Court. After Riggs filed a cross-claim for alleged violations of the FDCPA and the Rosenthal Act, the parties settled the action by dismissing both claims.
In March 2010, Riggs brought the action presently at issue in federal court. Riggs alleged, among other things, that Prober's validation notice (1) required her to dispute her debt in writing, in violation of 15 U.S.C. § 1692g(a)(3) and California Civil Code § 1788.17, and (2) therefore misrepresented her right to dispute the debt in violation of 15 U.S.C. § 1692e, 1692e(10), and California Civil Code § 1788.17.
- Judge(s):
- J. Clifford Wallace, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges. Opinion by Judge Callahan
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