Debbie Donohue v. Quick Collect, Inc. ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBBIE DONOHUE, and all other 
similarly situated persons,
No. 09-35183
Plaintiff-Appellant,
v.  D.C. No.
2:08-cv-00150-LRS
QUICK COLLECT, INC., an Oregon
OPINION
Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted
December 10, 2009—Seattle, Washington
Filed January 13, 2010
Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Roger T. Benitez,* District Judge.
Opinion by Judge Gould
*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
997
1000 DONOHUE v. QUICK COLLECT, INC.
COUNSEL
Michael J. Beyer (argued), Spokane, Washington, for
plaintiff-appellant Debbie Donohue and all other similarly sit-
uated persons.
Christopher J. Kerley (argued), Evans, Craven & Lackie, P.S.,
Spokane, Washington, for defendant-appellee Quick Collect,
Inc.
DONOHUE v. QUICK COLLECT, INC. 1001
OPINION
GOULD, Circuit Judge:
Debbie Donohue appeals the district court’s order denying
her motions and granting summary judgment to Quick Col-
lect, Inc. (“Quick Collect”) dismissing all of her claims. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
Donohue was a customer of a pediatric dental practice cal-
led the Children’s Choice (“Children’s Choice”) located in
Spokane, Washington. Children’s Choice has an “Office
Financial Policy” outlining customers’ payment obligations,
which Donohue signed in 2003. The policy states, in pertinent
part, as follows: “I understand that all services are due to be
paid in full within ninety (90) days of date of service . . . . A
finance charge of 1-1/2 % per month will be applied to all
accounts over 90 days . . . .”
In October 2007, Children’s Choice assigned to Quick Col-
lect, a collection service incorporated in Oregon, the principal
and finance charges Donohue owed to Children’s Choice.
Upon receipt of the assignment, Quick Collect mailed a for-
mal demand letter to Donohue seeking $270.99 in “principal,”
$24.07 in “assigned interest,” and $2.23 in “post assigned
interest.” Quick Collect did not immediately receive a
response from Donohue and referred the matter to attorney
Gregory Nielson to commence litigation to collect the
amounts due.
In January 2008, Quick Collect brought an action against
Donohue and Donohue was served with a summons and com-
plaint (the “Complaint”). The Complaint stated that Quick
Collect sought a judgment against Donohue for, among other
amounts, “the sum of $270.99, together with interest thereon
of 12% per annum . . . in the amount of $32.89.” In February
1002 DONOHUE v. QUICK COLLECT, INC.
2008, Nielson, on behalf of Quick Collect, sent another
demand letter to Donohue (the “Nielson Demand Letter”).
The Nielsen Demand Letter stated that Donohue owed, in
addition to litigation-related costs, $270.99 for “Principal,”
and $35.57 for “Interest.”
In April 2008, Donohue filed a class-action lawsuit in
Washington state court against Quick Collect. Donohue
brought the following two federal claims: (1) Quick Collect
violated the Fair Debt Collection Practices Act (“FDCPA”) by
charging a usurious rate of interest—i.e., the Complaint and
the Nielsen Demand Letter sought annual interest above 12%,
the maximum permitted under Washington law; and (2) Quick
Collect violated the FDCPA’s prohibition against the use of
false, deceptive, or misleading statements in connection with
collecting a debt by “misrepresenting the amount of interest”
—i.e., the Complaint incorrectly stated that $32.89 was “inter-
est [on the principal] of 12% per annum.” Donohue also
alleged violations of Washington state law arising out of the
same events.
The action was removed to the United States District Court
for the Eastern District of Washington and Quick Collect
moved for summary judgment on all of Donohue’s claims.
Donohue thereafter cross-moved for partial summary judg-
ment as to Quick Collect’s liability, moved to certify the
class, and moved to strike Quick Collect’s motion for sum-
mary judgment.
Faced with these conflicting motions, on December 31,
2008, the district court granted summary judgment to Quick
Collect dismissing Donohue’s claims, and denied Donohue’s
motions. The district court concluded as follows as to Dono-
hue’s two FDCPA claims: (1) Quick Collect, through the
Complaint and the Nielsen Demand Letter, did not charge a
usurious interest rate and so did not violate the FDCPA; and
(2) the Complaint accurately set forth the total sum Donohue
owed and was not false, deceptive, or misleading under the
DONOHUE v. QUICK COLLECT, INC. 1003
FDCPA. Because Quick Collect did not violate the FDCPA,
the district court concluded that Donohue could not succeed
on her state-law claims either. Donohue timely appeals.
II
[1] We review de novo the district court’s interpretation of
the FDCPA and its rulings on cross-motions for summary
judgment. See Clark v. Capital Credit & Collection Servs.,
Inc., 460 F.3d 1162, 1168 (9th Cir. 2006). Seeking somewhat
to level the playing field between debtors and debt collectors,
the FDCPA prohibits debt collectors “from making false or
misleading representations and from engaging in various abu-
sive and unfair practices.” Heintz v. Jenkins, 514 U.S. 291,
292 (1995). The FDCPA is a strict liability statute that
“makes debt collectors liable for violations that are not know-
ing or intentional.” Reichert v. Nat’l Credit Sys., Inc., 531
F.3d 1002, 1005 (9th Cir. 2008).
[2] The two FDCPA provisions at issue in this case are 15
U.S.C. §§ 1692e and 1692f. Section 1692e prohibits the use
by a debt collector of “any false, deceptive, or misleading rep-
resentation or means in connection with the collection of any
debt.” Section 1692e(2) prohibits “[t]he false representation
of . . . the character, amount, or legal status of any debt.” Sec-
tion 1692f prohibits a debt collector from using “unfair or
unconscionable means to collect or attempt to collect any
debt.” “The collection of any amount . . . unless such amount
is expressly authorized by the agreement creating the debt or
permitted by law” is a violation of § 1692f(1). Whether con-
duct violates §§ 1692e or 1692f requires an objective analysis
that takes into account whether “the least sophisticated debtor
would likely be misled by a communication.” See Guerrero
v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir. 2007)
(internal quotation marks omitted).
A
First, Donohue claims that Quick Collect, through the Niel-
sen Demand Letter and the Complaint, violated the FDCPA—
1004 DONOHUE v. QUICK COLLECT, INC.
in particular §§ 1692e and 1692f—by charging more than
12% annual interest in contravention of Washington usury
law. Washington law prohibits charging more than 12%
annual interest “for the loan or forbearance of any money,
goods, or things in action.” Wash. Rev. Code § 19.52.020.
Donohue calculates that the Nielsen Demand Letter sought an
interest payment of $35.57 for a period of 289 days, for an
effective annual interest rate of 16.6%, and that the Complaint
sought an interest payment of $32.89 for a period of 259 days,
for an effective annual interest rate of 17.1%.
[3] Quick Collect contends that these so-called interest
amounts in the Nielsen Demand Letter and the Complaint are
largely comprised of pre-assignment finance charges assessed
by Children’s Choice, and that the assessment by Children’s
Choice of the finance charges to Donohue’s overdue account
does not implicate the usury statute because there is no loan
or forbearance under Washington law. Quick Collect argues
that, setting aside those finance charges, the interest it charged
did not exceed 12%. Donohue replies that, under Children’s
Choice’s Office Financial Policy, the ninety-day “grace peri-
od” during which payment is due before a finance charge is
applied is consistent with a forbearance and therefore the
finance charges must be considered interest. Whether Quick
Collect charged a usurious interest rate, therefore, turns on
whether or not the finance charges assessed by Children’s
Choice pursuant to its Office Financial Policy constitute a for-
bearance under Washington law.
[4] The leading Washington State Supreme Court case on
the definition of forbearance under Washington law is
Whitaker v. Spiegel Inc., 623 P.2d 1147, 1149 (Wash. 1981),
which concerned a financial arrangement between consumers
and a mail-order retailer called a “revolving charge account.”
After consumers made an initial purchase, the purchase price
of subsequently purchased items, if there was an unpaid bal-
ance, would be added to the existing balance as one account.
Id. The Whitaker court defined a forbearance as “a contractual
DONOHUE v. QUICK COLLECT, INC. 1005
obligation of a lender or creditor to refrain, during a given
period of time, from requiring the borrower or debtor to pay
a loan or debt then due and payable.” Id. at 1152 (quoting
Hafer v. Spaeth, 156 P.2d 408, 411 (Wash. 1945)). The Wash-
ington State Supreme Court applied this definition and con-
cluded that the revolving charge account was a forbearance:
The relationship between the respondents and appel-
lant is clearly that of debtor and creditor. Respon-
dents are indebted to appellant upon delivery of the
goods and acceptance of them. Appellant, by its
credit agreement, has agreed to refrain from immedi-
ately requiring respondents or any other debtors to
pay their debts. In return, respondents have agreed to
pay a constant service charge percentage which is
applied against a changeable balance.
Id.
[5] The reasoning of Whitaker makes clear that Children’s
Choice’s payment arrangement, unlike a revolving charge
account such as was considered in Whitaker, does not consti-
tute a forbearance under Washington law. Children’s Choice
did not have a contractual obligation to “refrain, during a
given period of time, from requiring [Donohue] to pay a loan
or debt then due and payable.” Id. (emphasis added). Instead,
payment was “due to be paid in full within ninety (90) days
of service.” Children’s Choice was free to enforce the require-
ment of payment any time after the ninety days in which pay-
ment was finally due. Donohue notes that Washington law
requires that courts “look through the form of the transaction
and consider its substance.” Id. But the substance here is late
fees assessed to encourage timely payment—Children’s
Choice did not agree to forbear requiring payment from
Donohue on her past-due account in exchange for exacting a
fee nominally called a “finance charge.” We conclude that
Children’s Choice’s assessment of finance charges under
these circumstances was not a forbearance. Therefore, Quick
1006 DONOHUE v. QUICK COLLECT, INC.
Collect did not charge usurious interest in the Complaint or in
the Nielsen Demand Letter, and Donohue’s FDCPA claim
founded on Quick Collect charging a usurious interest rate
cannot succeed.
B
Second, Donohue claims the Complaint violated the
FDCPA because it contained a false, deceptive, or misleading
representation, in particular, a false representation concerning
the character of the debt that Donohue owed. See 15 U.S.C.
§ 1692e. The Complaint stated that Donohue owed an interest
payment of $32.89 calculated by applying 12% annual inter-
est to the principal owed. That statement is not entirely accu-
rate. $32.89 is actually comprised of two components: $24.07
in pre-assignment finance charges assessed by Children’s
Choice and calculated at the rate of 1.5% per month, and
$8.82 in post-assignment interest calculated at an annual rate
of 12%.
[6] As a preliminary matter, Quick Collect suggests that a
complaint is not a communication subject to the requirements
of §§ 1692e and 1692f. The authority Quick Collect provides
for this proposition is Beler v. Blatt, Hasenmiller, Leibsker &
Moore, LLC, 480 F.3d 470 (7th Cir. 2007). But the Seventh
Circuit in Beler did not decide this issue and, instead, stated,
“We postpone to some future case, where the answer matters,
the decision whether § 1692e covers the process of litigation.”
Id. at 473. We decide this issue and conclude that a complaint
served directly on a consumer to facilitate debt-collection
efforts is a communication subject to the requirements of
§§ 1692e and 1692f.
Concluding otherwise would put our decision in tension
with the Supreme Court’s reasoning in Heintz. In Heintz, Dar-
lene Jenkins defaulted on a loan from a bank. 514 U.S. at 293.
A lawyer from the bank’s law firm, George Heintz, wrote a
letter to Jenkins’s lawyer listing an amount that Jenkins pur-
DONOHUE v. QUICK COLLECT, INC. 1007
portedly owed. Id. Jenkins sued Heintz under §§ 1692e(2) and
1692f. Id. Heintz contested the applicability of the FDCPA to
his debt-collection efforts because he was a lawyer engaged
in litigation. Id. at 295. The Supreme Court held that the
FDCPA “applies to attorneys who ‘regularly’ engage in
consumer-debt-collection activity, even when that activity
consists of litigation.” Id. at 299. The Supreme Court rea-
soned that “the plain language of the [FDCPA] itself says
nothing about” an “exemption [for lawyers] in respect to liti-
gation.” Id. at 297. Nor did it make sense to differentiate
between lawyers acting in the capacity of debt collectors and
those litigating: “The line . . . between ‘legal’ activities and
‘debt collection’ activities was not necessarily apparent to
those who debated the legislation, for litigating, at first blush,
seems simply one way of collecting a debt.” Id.
[7] We have recognized a limited exception to this rule. In
Guerrero, we concluded that communications sent only to a
debtor’s attorney are not actionable under the FDCPA. 499
F.3d at 935-36. We reasoned that Heintz only addressed the
question of whether the FDCPA applies to lawyers collecting
debts through litigation, but Heintz did not address how the
identity of the recipient of the communication impacts
FDCPA liability. Id. at 937-38. When the recipient of the
communication is solely a debtor’s attorney, the FDCPA’s
purpose of protecting unsophisticated consumers is not impli-
cated. Id. at 939. Thus, we there concluded that a letter
directed “to counsel, and not to his client—‘the consumer’—
was not a prohibited collection effort.” Id. at 934. But the lim-
ited exception that we outlined in Guerrero is inapplicable
here. Donohue was personally served with the Complaint.
Therefore, Donohue herself, not her lawyer, was the recipient
of the communication. Because the complaint was communi-
cated to the consumer, the requirements of the FDCPA apply.
While the communication at issue in Heintz was a letter,
not a legal pleading as here, the logic of Heintz controls our
analysis. Quick Collect caused Donohue to be served with the
1008 DONOHUE v. QUICK COLLECT, INC.
Complaint to further Quick Collect’s effort to collect the debt
through litigation. The Supreme Court in Heintz stated clearly
that the FDCPA “applies to attorneys who ‘regularly’ engage
in consumer-debt-collection activity, even when that activity
consists of litigation.” 514 U.S. at 299 (emphasis added). To
limit the litigation activities that may form the basis of
FDCPA liability to exclude complaints served personally on
consumers to facilitate debt collection, the very act that for-
mally commences such a litigation, would require a nonsensi-
cal narrowing of the common understanding of the word
“litigation” that we decline to adopt.1
[8] Turning to the merits, we conclude that the Complaint
did not violate §§ 1692e or 1692f. The Complaint correctly
calculated the total debt Donohue owed, accurately stated the
principal owed, and accurately listed the total non-principal
amount owed inclusive of interest and finance charges. The
Complaint sought recovery of sums to which Quick Collect
was clearly and lawfully entitled, including $270.99 in princi-
pal, $24.07 in late fees assessed pursuant to Children’s
Choice’s Office Financial Policy signed by Donohue, and
$8.82 in interest assessed at a lawful rate. The Complaint did
not contain a false, deceptive, or misleading representation for
purposes of liability under §§ 1692e or 1692f just because
$32.89, labeled as 12% interest on principal, was actually
comprised of finance charges of $24.07 and post-assignment
interest of $8.82, but not labeled as such.
1
Quick Collect suggests that a complaint, because it can be corrected by
amending the offending pleading, should not constitute an actionable com-
munication. But all communications can be “amended” in this way by
simply sending out a subsequent communication correcting the error. Sec-
tions 1692e and 1692f do not suggest that otherwise unlawful representa-
tions are permitted so long as they are followed up, at some later time,
with a communication correcting the statements that gave rise to the com-
munication’s unlawful nature. We see no reason to treat complaints differ-
ently where there was no effort to correct the error before an answer was
filed.
DONOHUE v. QUICK COLLECT, INC. 1009
[9] In Hahn v. Triumph Partnerships LLC, 557 F.3d 755
(7th Cir. 2009), Chief Judge Easterbrook concluded for a
panel of the Seventh Circuit that a false or misleading state-
ment is not actionable under § 1692e unless it is material.
With reasoning that we consider persuasive, Chief Judge
Easterbrook observed that “[m]ateriality is an ordinary ele-
ment of any federal claim based on a false or misleading
statement.” Id. at 757 (citing Carter v. United States, 530 U.S.
255 (2000); Neder v. United States, 527 U.S. 1 (1999)). There
is no “reason why materiality should not equally be required
in an action based on § 1692e.” Id. The purpose of the
FDCPA, “to provide information that helps consumers to
choose intelligently,” would not be furthered by creating lia-
bility as to immaterial information because “by definition
immaterial information neither contributes to that objective (if
the statement is correct) nor undermines it (if the statement is
incorrect).” Id. at 757-58. The Seventh Circuit framed materi-
ality as a corollary to the well-established proposition that
“[i]f a statement would not mislead the unsophisticated con-
sumer, it does not violate the [Act]—even if it is false in some
technical sense.” Id. at 758 (quoting Wahl v. Midland Credit
Mgmt., Inc., 556 F.3d 643, 646 (7th Cir. 2009) (alterations in
original)). Thus, “A statement cannot mislead unless it is
material, so a false but non-material statement is not action-
able.” Id. The Sixth Circuit has reached the same conclusion.
See Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596
(6th Cir. 2009) (concluding that a false but non-material state-
ment is not actionable under § 1692e).
[10] We agree with the approach adopted by the Sixth and
Seventh Circuits. We have consistently held that whether con-
duct violates §§ 1692e or 1692f requires an objective analysis
that considers whether “the least sophisticated debtor would
likely be misled by a communication.” Guerrero, 499 F.3d at
934 (internal quotation marks omitted) (stating this standard
applies to §§ 1692d, 1692e, and 1692f); see Wade v. Reg’l
Credit Ass’n, 87 F.3d 1098, 1099-1100 (9th Cir. 1996); Swan-
son v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1227 (9th Cir.
1010 DONOHUE v. QUICK COLLECT, INC.
1988). We now conclude that false but non-material represen-
tations are not likely to mislead the least sophisticated con-
sumer and therefore are not actionable under §§ 1692e or
1692f.
Our conclusion is in harmony with our recognition in Clark
that “the remedial nature of the [FDCPA] . . . requires us to
interpret it liberally.” 460 F.3d at 1176. We noted in Clark
that the FDCPA’s remedial purpose is animated by “the likely
effect of various collection practices on the minds of unso-
phisticated debtors.” Id. at 1179. But immaterial statements,
by definition, do not affect a consumer’s ability to make intel-
ligent decisions. See Hahn, 557 F.3d at 757-58. We recognize,
as the Seventh Circuit already has, that the materiality
requirement functions as a corollary inquiry into whether a
statement is likely to mislead an unsophisticated consumer.
The materiality inquiry focuses our analysis on the same ends
that concerned us in Clark—protecting consumers from mis-
leading debt-collection practices.
[11] Applying this standard to the statement at issue in the
Complaint, we conclude that it is immaterial and not action-
able under §§ 1692e or 1692f. We agree with the reasoning in
Hahn, in which Chief Judge Easterbrook concluded, under
analogous facts, that the statement at issue there was immate-
rial. Id. at 757. In Hahn, a demand letter stated that Marylou
Hahn owed $1,134.55, of which $1,051.91 was the “amount
due” and of which $82.64 was “interest due.” Id. at 756. Hahn
argued that the letter contained a false representation concern-
ing the character of the debt in violation of § 1692e. The total
owed was conceded to be accurate, but the labels for the two
sums comprising the total debt were technically incorrect:
$82.64, labeled “interest,” included only post-assignment
interest, and $1,051.91, labeled “amount due,” included pre-
assignment interest and principal. Id. Similarly, here, the total
owed was accurately stated in the Complaint, but the label for
at least one of the two sums comprising the total debt was
technically incorrect: $32.89, labeled “interest . . . of 12%,”
DONOHUE v. QUICK COLLECT, INC. 1011
included pre-assignment finance charges and interest. In
Hahn, the Seventh Circuit concluded that mislabeling a sum
“interest” when it included only part of the interest owed, and
mislabeling a sum “amount due” when it included both princi-
pal and interest, was not a materially false characterization of
the debt. Chief Judge Easterbrook explained that “[a]pplying
an incorrect rate of interest would lead to a real injury” but
“reporting interest in one line item rather than another (or in
two line items) harms no one and . . . may well assist some
people.” Id. at 757. We conclude, consistent with Hahn, that
the Complaint’s mislabeling $32.89 as 12% interest, when
$32.89 included both interest and pre-assignment finance
charges, is not materially false.
[12] The reason for applying the materiality requirement is
also implicated by the facts of this case. In assessing FDCPA
liability, we are not concerned with mere technical falsehoods
that mislead no one, but instead with genuinely misleading
statements that may frustrate a consumer’s ability to intelli-
gently choose his or her response. See id. Here, the statement
in the Complaint did not undermine Donohue’s ability to
intelligently choose her action concerning her debt. Based on
the information in the Complaint, Donohue could have chal-
lenged the accuracy or legality of the total debt and principal
owed, futile as that may have been, or Donohue could have
paid the accurately stated sum to settle her debt. Even if the
Complaint had separated $32.89 into interest and finance
charges, we can conceive of no action Donohue could have
taken that was not already available to her on the basis of the
information in the Complaint—nor has Donohue articulated
any different action she might have chosen. Therefore, we
conclude that the statement in the Complaint was not material
and hence not actionable under §§ 1692e and 1692f.
C
[13] Donohue concedes that her state-law claims “are
totally predicated upon the court finding a violation of the
1012 DONOHUE v. QUICK COLLECT, INC.
FDCPA.” We have concluded that Quick Collect did not vio-
late the FDCPA. Therefore, Donohue cannot prevail on her
state-law claims either.
III
We affirm the district court’s order granting summary judg-
ment to Quick Collect, denying Donohue’s motion for sum-
mary judgment, and denying Donohue’s motion to strike
Quick Collect’s motion for summary judgment. We also
affirm the district court’s denial of Donohue’s motion for
class certification as moot.
AFFIRMED.