Kathleen Gates v. McT Group, Inc. , 678 F. App'x 539 ( 2017 )

FILED
NOT FOR PUBLICATION
FEB 23 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN D. GATES, No. 15-55728
Plaintiff-Appellant, D.C. No.
3:13-cv-02611-MMA-DHB
v.
MCT GROUP, INC. and THE LAW MEMORANDUM*
OFFICES OF PETER W. SINGER,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted February 15, 2017**
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and KORMAN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Plaintiff-Appellant Kathleen D. Gates (Gates) appeals from the district
court’s grant of summary judgment to Defendant-Appellee The Law Offices of
Peter W. Singer (Singer). Gates’ claims arise out of a levy on her bank accounts
authorized by Singer, which Gates claims resulted in the levying of exempt Social
Security benefits in contravention of 42 U.S.C. § 407(a). Gates contends that the
district court erred in rejecting her claims that Singer violated the Fair Debt
Collection Practices Act (FDCPA) and California’s Rosenthal Act by
(1) threatening to take an action that could not legally be taken, and (2) using
unfair or unconscionable means to collect a debt. Because the parties are familiar
with the facts, we do not recount them here. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
The district court correctly held that Singer did not violate the FDCPA, 15
U.S.C. § 1692e(5), by “threat[ening] to take an[] action that cannot legally be
taken.” A hypothetical “least sophisticated debtor” who received the Notice of
Levy and accompanying documentation received by Gates would not have viewed
the levy as a threat to levy her exempt Social Security benefits, and would have
been “able to understand, make informed decisions about, and participate fully and
meaningfully in the debt collection process,” because the documentation she
received informed her that those benefits were exempt and instructed her as to the
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process for claiming an exemption. Clark v. Capital Credit & Collection Servs.,
Inc., 460 F.3d 1162, 1171 (9th Cir. 2006). All parties involved in the levy
complied with federal law and state procedures that are consistent with 42 U.S.C.
§ 407(a) and its implementing regulations and provide additional protection to
debtors. See 31 C.F.R. § 212.9 (consistent state law is not preempted); see also
Cal. Code Civ. Proc. § 704.080 (establishing automatic exemptions for deposit
accounts and procedure for claiming exemptions above automatic amount); id.
§§ 703.520, 703.550 (additional procedures for claiming exemptions).
Accordingly, the process worked to protect Gates’ potentially exempt funds, and
the district court correctly granted summary judgment to Singer on this claim.
The district court also correctly granted summary judgment to Singer on
Gates’ claim that Singer violated the FDCPA, 15 U.S.C. § 1692f, by “us[ing]
unfair or unconscionable means to collect or attempt to collect a[] debt.” Gates
contends that Singer violated this provision by authorizing the levy without first
investigating whether Gates’ accounts contained exempt Social Security benefits;
however, Gates fails to provide any authority demonstrating that Singer was
required to do anything more than comply with California’s procedures. Singer is
not required to show that it maintained “procedures reasonably adapted to avoid
an[] error” when Gates fails to establish that an error in the form of an FDCPA
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violation has occurred. 15 U.S.C. § 1692k(c). Furthermore, the California
procedures followed here do not conflict with federal law and are distinct from
those at issue in Bennett v. Arkansas, 485 U.S. 395 (1988) (per curiam), Crawford
v. Gould, 56 F.3d 1162 (9th Cir. 1995), and Brinkman v. Rahm, 878 F.2d 263 (9th
Cir. 1989) (per curiam).
Because the district court correctly granted summary judgment on Gates’
FDCPA claims, her Rosenthal Act claims also fail. See Riggs v. Prober &
Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012) (California’s “Rosenthal Act mimics
or incorporates by reference the FDCPA’s requirements . . . and makes available
the FDCPA’s remedies for violations.”); see also 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, and shall be
subject to the remedies in Section 1692k of, Title 15 of the United States Code.”).
AFFIRMED.
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