Heidi Anglin v. Merchants Credit Corporation ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 30 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEIDI ANGLIN, et al., No. 20-35820
Plaintiffs-Appellants, D.C. No. 2:18-cv-00507-BJR
v.
MEMORANDUM*
MERCHANTS CREDIT CORPORATION,
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted February 15, 2022
San Francisco, California
Before: GOULD and RAWLINSON, Circuit Judges, and ADELMAN,** District
Judge.
Heidi and Ernest Anglin owe approximately $3,000 in medical debt.
Merchants Credit Corporation (Merchants), the assignee of the debt, filed a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
collection action in state court in Washington state, and the Anglins counterclaimed.
The state court granted Merchants’ summary judgment motion and entered judgment
against the Anglins for $3,490.65 but did not resolve the counterclaims. Merchants
and its attorney, Jason Woehler (Woehler), sought to enforce the judgment by
issuing a writ of garnishment on Heidi Anglin’s wages. On the Anglins’ motion, the
state court quashed the writ because Merchants’ judgment was not final,1 and Heidi
Anglin’s employer returned her garnished wages. Later, after a bench trial, the state
court entered judgment for Merchants on the counterclaims. The Anglins then filed
this action, alleging that Merchants and Woehler violated the Fair Debt Collection
Practices Act (FDCPA) and that Merchants violated the Washington Consumer
Protection Act (WCPA) by garnishing Heidi’s wages to enforce a nonfinal judgment.
The district court dismissed the Anglins’ complaint for failure to state a claim. The
Anglins now appeal.
The district court stated that “at worst, Defendants violated a state court
procedural rule—not substantive law—when they applied for the writ of
garnishment based on the valid, albeit, not final judgment” and that “[g]enerally,
1
In Washington, only final judgments are enforceable. See Fluor Enters., Inc. v.
Walter Constr., Ltd., 172 P.3d 368, 371–73 (Wash. Ct. App. 2007). A judgment that
does not dispose of all the claims in an action is final “only upon an express
determination in the judgment that there is no just reason for delay and upon an
express direction for the entry of judgment.” WASH. CIV. R. CTS. LTD. JURISDICTION
54(b). Merchants’ judgment did not contain such determinations.
2
such procedural mishaps in state court cannot be the basis for a FDCPA claim.” The
Anglins argue that they stated an FDCPA claim by alleging a violation of state
garnishment law. But debt collection practices in violation of state law are not per
se violations of the FDCPA. Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1100 (9th
Cir. 1996). The issue is not whether Merchants and Woehler violated state law but
whether they violated the FDCPA. Id. The Anglins do not address this question. In
McNair v. Maxwell & Morgan PC, 893 F.3d 680 (9th Cir. 2018), we held that a debt
collector falsely represented the legal status of a debt by implicitly claiming in an
application for a writ of execution that its attorneys’ fees had been approved by a
court, when, in fact, they had not yet been approved. Id. at 684. The Anglins might
have argued that Merchants and Woehler falsely represented the legal status of their
debt by implicitly claiming in the garnishment application that the debt was subject
to a final judgment. But they do not make this argument, so it is waived. Greenwood
v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Accordingly, we affirm
the district court’s dismissal of the FDCPA claims.
The district court also considered the Anglins’ supplemental WCPA claim.
There are five elements to a WCPA claim: “(1) unfair or deceptive act or practice;
(2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff
in his or her business or property; (5) causation.” Hangman Ridge Training Stables,
Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash. 1986) (en banc). The district
3
court stated that the Anglins could not satisfy the “trade or commerce” element
because Merchants’ “conduct taken in the course of litigation is not conduct in trade
or commerce.” See Blake v. Fed. Way Cycle Ctr., 698 P.2d 578, 584 (Wash. Ct. App.
1985).2 The district court failed to consider whether the Anglins alleged a violation
of the Washington Collection Agency Act (WCAA), which would have established
an unfair or deceptive act in trade or commerce for purposes of the WCPA. See
Wash. Rev. Code § 19.16.440. But the Anglins do not argue or explain how their
allegations amount to a WCAA violation. Thus, that argument is also waived.
Greenwood, 28 F.3d at 977. Accordingly, we affirm the district court’s dismissal of
the WCPA claim.
AFFIRMED.
2
The Anglins only appeal the district court’s dismissal of their per se WCPA claim
based on violations of the WCAA. Consequently, they do not argue that Blake
should not apply to a collection agency’s litigation activities in a stand-alone WCPA
claim.
4