Clark v. Capital Credit & Collection Services, Inc. , 460 F.3d 1162 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA L. CLARK; JERRY V. CLARK, 
Plaintiffs-Appellants,
v. No. 04-35563
CAPITAL CREDIT & COLLECTION  D.C. No.
SERVICES, INC., an Oregon CV-03-00340-JE
corporation; JANINE BRUMLEY;
JEFFREY I. HASSON,
Defendants-Appellees.

LINDA L. CLARK; JERRY V. CLARK, 
Plaintiffs-Appellees,
v.
CAPITAL CREDIT & COLLECTION No. 04-35795
SERVICES, INC., an Oregon
corporation; JANINE BRUMLEY,  D.C. No.
Defendants-Appellants, CV-03-00340-JE
and
JEFFREY I. HASSON,
Defendant.

10135
10136 CLARK v. CAPITAL CREDIT
LINDA L. CLARK; JERRY V. CLARK, 
Plaintiffs-Appellees,
v.
CAPITAL CREDIT & COLLECTION No. 04-35842
SERVICES, INC., an Oregon
corporation; JANINE BRUMLEY,  D.C. No.
CV-03-00340-JE
Defendants, OPINION
and
JEFFREY I. HASSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding
Argued and Submitted
December 5, 2005—Portland, Oregon
Filed August 24, 2006
Before: James R. Browning, Dorothy W. Nelson, and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge D.W. Nelson;
Partial Concurrence and Partial Dissent by
Judge O’Scannlain
CLARK v. CAPITAL CREDIT 10141
COUNSEL
Danny H. Gerlt, Portland, Oregon, for the plaintiffs-
appellants.
10142 CLARK v. CAPITAL CREDIT
William R. Goode, Portland, Oregon, for defendants-
appellees Capital Credit & Collection Services, Inc., and
Janine Brumley.
Thomas W. Brown, Frank H. Lagesen, Wendy Margolis, and
Christine Coors-Mitchell, Cosgrove, Vergeer, Kester LLP,
Portland, Oregon, for defendant-appellee Jeffrey I. Hasson.
OPINION
D.W. NELSON, Senior Circuit Judge:
In their action pursuant to the federal Fair Debt Collection
Practices Act and the Oregon Unfair Debt Collection Prac-
tices 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 Brum-
ley 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.
BACKGROUND
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
1
In a separately filed memorandum disposition, we reject the Clarks’
other assignments of error and affirm the district court’s denial of attor-
neys’ fees under the Oregon statute to Capital, Brumley, and Hasson fol-
lowing entry of judgment in their favor.
CLARK v. CAPITAL CREDIT 10143
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 Brum-
ley (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 col-
lection 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 treat-
ment. On April 10, 2002, Brumley also requested authoriza-
tion 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 agen-
cy’s attorney, also sent the Clarks a collection notice. That
notice recited information about the Clark account that Has-
son had taken from a “complaint praecipe” Capital provided
10144 CLARK v. CAPITAL CREDIT
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 let-
ter, enclosing “documents to substantiate” Capital’s claim
against the Clarks. The enclosure consisted of the same item-
ized 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 par-
ties 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, Capi-
tal 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 pre-
sented 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 Prac-
tices 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 sum-
mary judgment on their state law claims.
The district court never considered fully the motion to com-
pel on its merits. Rather, it issued an opinion and order deny-
ing the Clarks’ summary judgment motions and granting
Hasson’s motion for summary judgment. In the same disposi-
tion, the district court denied Capital and Brumley’s motion
CLARK v. CAPITAL CREDIT 10145
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.
DISCUSSION
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).
A.
[1] 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 con-
sumer with respect to such debt . . . .
2
The parties proceeded to trial on the residual issue of whether Brumley
had violated the federal or Oregon law during the July 30, 2002, commu-
nication.
10146 CLARK v. CAPITAL CREDIT
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 communi-
cation 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).
1.
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 (1989) and Conn. Nat’l Bank v. Germain, 503 U.S.
249, 253-54 (1992)) (internal quotation marks omitted).
[2] The plain language of § 1692c(c) includes explicit
exceptions permitting a debt collector subject to a cease com-
munication directive to contact the consumer in three circum-
stances:
(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
CLARK v. CAPITAL CREDIT 10147
debt collector or creditor intends to invoke a speci-
fied 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) contem-
plate waiver.
Because the statute affirmatively designates certain man-
ners 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 F.3d 1092, 1099-1100 (9th Cir. 2005); In re
Gerwer, 898 F.2d 730, 732 (9th Cir. 1990) (“The express enu-
meration [of an exception] indicates that other exceptions
should not be implied.”). Nevertheless, we have long held that
however helpful . . . rules of construction may be,
the courts will . . . “construe the details of an act in
conformity with its dominating general purpose, will
read text in the light of context and will interpret the
text so far as the meaning of the words fairly permits
so as to carry out in particular cases the generally
expressed legislative policy.”
Matheson v. Armbrust, 284 F.2d 670, 674 (9th Cir. 1960)
(quoting S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344,
3
The Federal Trade Commission, charged with administering the
FDCPA, has taken the position that this language permits the debt collec-
tor to communicate with the consumer with respect to the debt “only once
more,” not three separate times, with each contact relating to one of the
permissible purposes. Federal Trade Commission, 27th Annual Report to
Congress on the Fair Debt Collection Practices Act (FDCPA) 17-18
(2005), available at http://www.ftc.gov/reports/fdcpa05/050729fdcpa
rpt.pdf.; see also Federal Trade Commission, 28th Annual Report to Con-
gress on the Fair Debt Collection Practices Act (FDCPA) 11-12 (2006),
available at http://www.ftc.gov/os/2006/04/P0648042006FDCPA
Report.pdf.
10148 CLARK v. CAPITAL CREDIT
350-51 (1943)); see also Longview Fibre Co. v. Rasmussen,
980 F.2d 1307, 1313 (9th Cir. 1992) (holding that expressio
unius “is a rule of interpretation, not a rule of law. The maxim
is ‘a product of logic and common sense,’ properly applied
only when it makes sense as a matter of legislative purpose.”)
(citation omitted).
[3] Moreover, we are not bound by the plain meaning of a
statute where its literal application will produce a result “de-
monstrably at odds with the intention of its drafters.” In re
Been, 153 F.3d 1034, 1036 (9th Cir. 1998) (citing United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989));
see also United States v. Combs, 379 F.3d 564, 569 (9th Cir.
2004) (“[W]e are not required to interpret a statute in a for-
malistic manner when such an interpretation would produce
a result contrary to the statute’s purpose or lead to unreason-
able results.”) (citing Comm’r v. Brown, 380 U.S. 563, 571
(1965)). In the present context, strictly abiding by the plain
language of § 1692c(c) would do just that. Cf. Lewis v. ACB
Business Services, Inc., 135 F.3d 389, 398 (6th Cir. 1998)
(“While Congress appears to have intended the [FDCPA] to
eliminate abusive collection practices, the language of
§ 1692c(c) is broader. . . .”).
[4] Legislative history indicates that Congress enacted the
FDCPA to protect consumers from “improper conduct” and
illegitimate collection practices “without imposing unneces-
sary restrictions on ethical debt collectors.” S. Rep. No. 95-
382, at 1 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696,
1698-99. Certainly, there is nothing inherently abusive,
harassing, deceptive or unfair about a return telephone call.4
4
Legislative history also reveals a non-exhaustive list of practices that,
in enacting the FDCPA, Congress considered to be illegitimate: “threats
of violence; obscene language; the publishing of ‘shame lists;’ harassing
or anonymous telephone calls; impersonating a government official or
attorney; misrepresenting the consumer’s legal rights; simulating court
process; obtaining information under false pretenses; collecting more than
is legally owing; and misusing postdated checks.” S. Rep. No. 95-382 at
2, 4, reprinted in 1977 U.S.C.C.A.N. 1695, 1696, 1698. A return tele-
phone call, in and of itself, is disanalogous to these practices.
CLARK v. CAPITAL CREDIT 10149
Indeed, to hold that a debt collector may not respond to a
debtor’s telephone call regarding his or her debt would, in
many cases, “force honest debt collectors seeking a peaceful
resolution of the debt to file suit in order to resolve the debt
—something that is clearly at odds with the language and pur-
pose of the FDCPA.” Lewis v. ACB Business Services, 135
F.3d at 399 (discussing a possible restriction on debt collec-
tor’s ability to offer payment options in a § 1692c(c)(2) com-
munication).
[5] We further note that, as a general rule, “a party may
waive a benefit of a provision of a statute . . . enacted . . . for
his protection.” Globe Grain & Milling Co. v. De Tweede
Northwestern & Pacific Hypotheekbank, 69 F.2d 418, 422
(9th Cir. 1934). With respect to rights secured by federal stat-
ute, “absent some affirmative indication of Congress’ intent to
preclude waiver, we have presumed that statutory provisions
are subject to waiver by voluntary agreement of the parties.”
United States v. Mezzanatto, 513 U.S. 196, 201 (1995). There
is no such indication in the FDCPA.
Of course, “[n]ot all rights are waivable.” United States v.
Perez, 116 F.3d 840, 845 n.7 (1997) (citing United States v.
Olano, 507 U.S. 725, 733 (1993)). For instance, “waiver is
not appropriate when it is inconsistent with the provision cre-
ating the right sought to be secured,” New York v. Hill, 528
U.S. 110, 116 (2000), and “a right conferred on a private
party, but affecting the public interest, may not be waived or
released if such waiver or release contravenes the statutory
policy.” Id. (quoting Brooklyn Savings Bank v. O’Neil, 324
U.S. 697, 704 (1945)). Because the right comes into existence
only when the debtor affirmatively directs the debt-collector
to cease communications, permitting the debtor to waive or
revoke such a directive is hardly inconsistent with the provi-
sion creating the right or with the public policy of the
FDCPA.
10150 CLARK v. CAPITAL CREDIT
[6] Applying these principles to the protections of
§ 1692c(c), we hold that a debtor may waive the rights created
by a cease communication directive.
[7] Under the generally accepted definition, a waiver is “the
voluntary relinquishment . . . —express or implied—of a legal
right or advantage.” Black’s Law Dictionary 1574 (7th ed.
2004); see also Olano, 507 U.S. at 733; Johnson v. Zerbst,
304 U.S. 458, 464 (1938). What constitutes a waiver depends,
in the first instance, on the nature of the right at issue. See
Hill, 528 U.S. at 114. Where waivers are permissible, they are
often enforced only if the waiver was “knowing” or “intelli-
gent,” which means the individual has “sufficient awareness
of the relevant circumstances and likely consequences” of his
decision, Brady v. United States, 397 U.S. 742, 748 (1970).
See generally United States v. Navarro-Botello, 912 F.2d 318,
321 (9th Cir. 1990) (“A knowing and voluntary waiver of a
statutory right is enforceable.”) (emphasis added); United
States v. Michlin, 34 F.3d 896, 898 (9th Cir. 1994) (“A know-
ing and voluntary waiver is a prerequisite to our enforcement
of a plea agreement waiving appellate rights.”); Leonard v.
Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (“First Amend-
ment rights may be waived upon clear and convincing evi-
dence that the waiver is knowing, voluntary and intelligent.”).
[8] We conclude that a heightened standard of voluntari-
ness is appropriate here because the statute now before us
measures the behavior of debt collectors under the rubric of
the “least sophisticated debtor.” E.g., Baker v. G. C. Services
Corp., 677 F.2d 775, 778 (9th Cir. 1982); Swanson v. South-
ern Oregon Credit Service, Inc., 869 F.2d 1222, 1227 (9th
Cir. 1988). This objective standard “ensure[s] that the FDCPA
protects all consumers, the gullible as well as the shrewd . . .
the ignorant, the unthinking and the credulous.” Clomon v.
Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993) (internal
quotations and citations omitted). Focusing on that level of
sophistication, we will enforce a waiver of the cease commu-
nication directive only where the least sophisticated debtor
CLARK v. CAPITAL CREDIT 10151
would understand that he or she was waiving his or her rights
under § 1692c(c).5
Although we have not before employed the least sophisti-
cated debtor standard to evaluate the meaning a debtor would
attach to his or her own conduct, we are convinced that its use
is appropriate here. We find support for our decision from the
manner in which we have already employed the standard. In
judging the actions of a debt collector, we invariably ask
whether the information it provided was or its actions were
confusing or misleading. E.g., Terran v. Kaplan, 109 F.3d
1428, 1432-33 (9th Cir. 1997). Quite simply, we seek to
ensure that even the least sophisticated debtor is able to
understand, make informed decisions about, and participate
fully and meaningfully in the debt collection process. Cf. Ter-
ran, 109 F.3d at 1434 (debt collector did not violate FDCPA
because it did “not threaten or encourage the least sophisti-
cated debtor to waive his statutory right[s]”); Swanson, 869
F.2d at 1226 (debt collector’s notice violated the FDCPA
because it encouraged debtor to “ignore his right to take 30
days to verify his debt and act immediately”). That goal—
and, therefore, the least sophisticated debtor standard—is no
less important or relevant when considering the actions of the
debtor than when considering the actions of a debt collector.
Most important, because the FDCPA is a remedial statute
aimed at curbing what Congress considered to be an industry-
wide pattern of and propensity towards abusing debtors, it is
logical for debt collectors—repeat players likely to be
acquainted with the legal standards governing their industry—
5
Out of an abundance of caution, we further note what should be obvi-
ous: a consumer’s consent cannot waive protection from the practices the
FDCPA seeks to eliminate, such as false, misleading, harassing or abusive
communications. Permitting such a waiver would violate the public policy
goals pursued by the FDCPA. See Hill, 528 U.S. at 116; accord Johnson
v. Eaton, 873 F. Supp. 1019, 1028 (M.D. La. 1994) (finding that an
alleged waiver defense could not “operate as a waiver of the plaintiff’s
protection against receiving false or misleading communications”).”
10152 CLARK v. CAPITAL CREDIT
to bear the brunt of the risk.6 As we have oft repeated, it does
not seem “unfair to require that one who deliberately goes
perilously close to an area of proscribed conduct shall take the
risk that he may cross the line.” FTC v. Colgate-Palmolive
Co., 380 U.S. 374, 393 (1965); see also Swanson, 869 F.2d
at 1228. Other than as permitted by § 1692c(c), a debt collec-
tor who has received a cease communications order from a
debtor must not contact the debtor unless it has received a
clear waiver of that order.
2.
[9] Applying our newly articulated waiver standard to the
facts before us, it is obvious that even the least sophisticated
debtor would recognize that Mrs. Clark’s request for informa-
tion constituted consent for Hasson, Capital’s attorney, to
return Mrs. Clark’s telephone call in order to provide the spe-
cific information she requested. In other words, no reasonable
trier of fact could conclude that Mrs. Clark did not waive the
cease communications directive with respect to Hasson.
[10] Whether Mrs. Clark’s actions also constituted a waiver
of the cease communications directive as to Capital and
Brumley is a more difficult question. In this regard, we
decline to create a rule that by waiving the protection of
§ 1692c(c) as to one debt collector, a debtor waives that pro-
tection with regard to any other debt collector with which that
debt collector may be collaborating to collect the same debt.7
6
Although we appreciate that “common sense”—the dissent’s preferred
standard—is an attractive and necessary first step to judging the actions
of debtors and debt collectors alike, we are not sure that “common sense”
is sufficiently common to provide any reasoned and uniform basis to guide
individual conduct and, then, review. The dissent’s common sense led it
to be assured that a request for information from one individual welcomed
a response from another, but, apparently, Mrs. Clark’s did not.
7
To hold otherwise would—rather than support the remedial purpose of
the FDCPA—pave the way for novel abusive practices necessitating fur-
CLARK v. CAPITAL CREDIT 10153
The instant case justifies perfectly our decision. It is obvious
that Mrs. Clark did not realize that by calling Hasson, she was
consenting to a return telephone call from Brumley. Crediting
Mrs. Clark’s characterization of her interactions with Brum-
ley, it is perfectly clear that Mrs. Clark’s choice of Hasson
over Brumley (or any other employee at Capital) was not for-
tuitous. That Capital was a better source of information about
the Clark account is undisputed; still, Mrs. Clark chose to call
Hasson because her mental health suffered following her talks
with Brumley.
[11] The subjective reason for Mrs. Clark’s (or any other
debtor’s) behavior, however, is not the focus of the inquiry.
The question that must be answered is this: “Was it clear from
Mrs. Clark’s request for information that she consented to a
return telephone call from any debt collector?” We know that
Mrs. Clark did not give her consent to receive communica-
tions directly to the debt collector, but whether she otherwise
demonstrated her waiver of the cease communication direc-
tive with respect to Capital and Brumley is unclear. As we
noted, the parties offered conflicting testimony with regard to
the substance of Mrs. Clark’s request. Thus, the answer is
inextricably linked to disputed issues of fact, which we do not
decide on appeal, and partial summary judgment in favor of
Capital and Brumley was improper.8
ther litigation. Debt collectors working together could routinely attempt to
bypass the strictures of § 1692c(c). As the dissent notes, a return telephone
call is not inherently deceptive or harassing; however, neither are many
other practices proscribed by the FDCPA. It is the task of courts to deter-
mine whether, in light of the facts before it, a particular telephone call vio-
lated the FDCPA. Though the dissent finds it “nonsensical” to allow one
debt collector to return the phone call while preventing that debt collec-
tor’s cohorts to do so, we find it nonsensical to create needless loopholes
that work to the disadvantage of the individuals the FDCPA was enacted
to protect.
8
The parties’ disagreement on the substance of the July 30, 2002, con-
versation also demonstrates that Capital’s and Brumely’s contention that
10154 CLARK v. CAPITAL CREDIT
[12] Conversely, the district court properly granted sum-
mary judgment to Hasson. First, under the principles just set
forth, Mrs. Clark waived the cease communication directive
as to Hasson. See op. supra at 10150. Second, as a matter of
law, Hasson could not be held liable for the actions of his cli-
ent.
Although we have recognized vicarious liability under the
FDCPA, see Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507,
1516 (9th Cir. 1994) (holding that “Congress intended the
actions of an attorney to be imputed to the client on whose
behalf they are taken”), there is no legal authority for the
proposition that an attorney is generally liable for the actions
of his client. Nor are we impressed that the facts underlying
this case provide any reason for holding Hasson liable for
Capital’s actions. Under general principles of agency—which
form the basis of vicarious liability under the FDCPA, see
Newman v. Checkrite California, 912 F. Supp. 1354, 1370
(E.D. Cal. 1995)—to be liable for the actions of another, the
“principal” must exercise control over the conduct or activi-
ties of the “agent.” See Restatement (Second) of Agency § 1
(1958). The Clarks offered no evidence upon which a reason-
able trier of fact could conclude that Hasson exercised control
over Capital or Brumley. In fact, the evidence demonstrates
the opposite: Hasson’s office was instructed by Capital not to
speak with debtors and complied with that instruction. Thus,
summary judgment was proper.
B.
[13] The Clarks also argue that Capital and Hasson failed
summary judgment was proper because the communication fell within the
exception to § 1692c(c) for invoking specified remedies that are ordinarily
invoked by the debt collector, see 15 U.S.C. § 1692c(c)(2), is without
merit. Clearly, a genuine issue of material fact exists. Slenk, 236 F.3d at
1074.
CLARK v. CAPITAL CREDIT 10155
to verify properly the alleged debt, violating §1692g.9 As this
contention is without merit, summary judgment was proper.
[14] In Mahon v. Credit Bureau of Placer County Inc., we
described one way to provide proper verification:
[T]he Credit Bureau, when it received the [verifi-
cation] request, promptly contacted [the creditor’s]
office, verified the nature and balance of the out-
standing bill, learned that monthly statements had
been sent from [the creditor’s] office to the [debtors]
for over two years, and established that the balance
was still unpaid. The Credit Bureau then promptly
conveyed this information to the [debtors], along
with an itemized statement of the account.
171 F.3d 1197, 1203 (9th Cir. 1999). Now, the Clarks urge us
to hold that Mahon sets a standard below which a debt collec-
tor’s verification efforts must not fall. We decline to impose
such a high threshold. Rather, we adopt as a baseline the more
reasonable standard articulated by the Fourth Circuit in
Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). At the
minimum, “verification of a debt involves nothing more than
the debt collector confirming in writing that the amount being
demanded is what the creditor is claiming is owed.” Id. at 406
(citing Azar v. Hayter, 874 F. Supp. 1314, 1317 (N.D. Fla.),
aff’d, 66 F.3d 342 (11th Cir. 1995)).
Undisputed facts demonstrate that, upon the Clarks’ request
for verification, Capital obtained information from Dr. Evans
about the nature and balance of the outstanding bill and pro-
vided the Clarks with documentary evidence in the form of
the itemized statement. Hasson also sent the Clarks a copy of
the itemized statement, which he had received from Capital.
9
The pertinent portion of § 1692g requires a debt collector to “obtain
verification of the debt” upon the request of the consumer, 15 U.S.C.
§ 1692g(a)(4), and to cease collection efforts until the debt collector
obtains verification and mails it to the consumer, 15 U.S.C. § 1692g(b).
10156 CLARK v. CAPITAL CREDIT
[15] Within reasonable limits, Capital and Hasson were
entitled to rely on their client’s statements to verify the debt.
Accord Bleich v. Revenue Maximization Group, Inc., 233 F.
Supp.2d 496, 500-01 (E.D.N.Y. 2002), Beattie v. D.M. Col-
lections, Inc., 754 F. Supp. 383, 392 (D. Del. 1991)
(“Generally, a debt collector may reasonably rely upon infor-
mation provided by a creditor who has provided accurate
information in the past.”). Moreover, the FDCPA did not
impose upon them any duty to investigate independently the
claims presented by Dr. Evans. Accord Ducrest v. Alco Col-
lections, Inc., 931 F. Supp. 459, 462 (M.D. La. 1996). Capi-
tal’s and Hasson’s actions, then, satisfied the requirement that
they confirm with their client the particular amount being
claimed. Chaudhry, 174 F.3d at 406 (holding that debt collec-
tors do not have to “vouch for the validity of the underlying
debt”), and they did not violate §§ 1692g(a)(4) or 1692g(b).
No reasonable trier of fact could conclude otherwise.
C.
[16] Our inquiry into the verification of the debt does not
end with the conclusion that neither Capital nor Hasson vio-
lated § 1692g’s verification provisions. The Clarks also argue
that the evidence establishes conclusively that Capital and
Hasson knew the debt alleged by Dr. Evans was invalid and
misstated, amounting primarily to a violation of
§ 1692e(2)(a), which prohibits the false representation of “the
character, amount, or legal status of any debt.”
1.
[17] Whether a violation of § 1692e may be predicated
upon conduct that is neither knowing nor intentional appears
to be an issue of first impression in the Ninth Circuit, so again
we must thrust ourselves into the murky waters of statutory
interpretation. As before, we start with the text of the statutory
provision at issue:
CLARK v. CAPITAL CREDIT 10157
A debt collector may not use any false, deceptive, or
misleading representation or means in connection
with the collection of any debt. Without limiting the
general application of the foregoing, the following
conduct is a violation of this section . . . .
(2) The false representation of—
(A) the character, amount, or legal status of
any debt; or
(B) any services rendered or compensation
which may be lawfully received by any
debt collector for the collection of a debt.
15 U.S.C. § 1692e. Though the plain language of § 1692e
does not include an intent element, it employs words—“false,
deceptive, or misleading”—that connote volition.10 Examining
the provision in isolation, then, it is reasonable to conclude—
as have some other courts—that “[t]o successfully state a
claim pursuant to § 1692e(2), [the plaintiff] must show that
[the debt collector] knowingly or intentionally misrepresented
the amount of the debt in its collection letters.” McStay v. I.C.
System, Inc., 174 F. Supp. 2d 42 (S.D.N.Y. 2001) (citing
Stonehart v. Rosenthal, No. 01 Civ. 651, 2001 WL 910771,
*6 (S.D.N.Y. Aug. 13, 2001) ); see also Bleich, 233 F.
Supp.2d at 500-01; Ducrest, 931 F. Supp. at 462; Beattie, 754
F. Supp. at 392.
10
False may be defined as “intentionally untrue . . . adjusted or made so
as to deceive . . . intended or tending to mislead,” Webster’s Ninth New
Collegiate Dictionary 447 (1987). Something is deceptive if it tends or has
the power to “give a false impression.” Id. at 329. And, something is mis-
leading if it “lead[s] in a wrong direction or into a mistaken action or
belief often by deliberate deceit.” Id. at 759. Of course, false, deceptive,
and misleading each have innocent definitions as well. E.g., id. at 447
(also defining “false” simply as “not true” or “inconsistent with the
facts”).
10158 CLARK v. CAPITAL CREDIT
However, “[i]n analyzing a statutory text, we do not look
at its words in isolation. Textual exegesis necessarily is a
holistic endeavor. . . . Thus, we look not only to the language
itself, but also to . . . the broader context of the statute as a
whole.” BF Goodrich, 387 F.3d at 1051 (internal quotations
and citations omitted). Indeed, elsewhere we have explained
that “[t]he words of a statute are, of course, dead weights
unless animated by the purpose of the statute.” Favish v.
Office of Indep. Counsel, 217 F.3d 1168, 1171 (9th Cir.
2000).
[18] To that end, we are “obliged to give effect, if possible,
to every word Congress used,” Baker, 677 F.2d at 778 (citing
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)), and
“[w]e have consistently . . . reject[ed] interpretations that
would render a statutory provision surplusage or a nullity,” In
re Cervantes, 219 F.3d 955, 961 (9th Cir. 2000). See also id.
(noting that “statutes should not be construed in a manner
which robs specific provisions of independent effect”) (cita-
tions omitted). This requirement demands that we pursue con-
sistency not only within a particular provision but also among
the provisions of the FDCPA. See Am. Bankers Ass’n v.
Gould, 412 F.3d 1081, 1086 (9th Cir. 2005) (“Our goal in
interpreting a statute is to understand the statute as a symmet-
rical and coherent regulatory scheme and to fit, if possible, all
parts into a harmonious whole”) (internal quotation and cita-
tion omitted).
[19] Parsing the FDCPA with the aim of placing § 1692e
in its proper context, we encounter § 1692k(c), which pro-
vides:
A debt collector may not be held liable in any action
brought under this subchapter if the debt collector
shows by a preponderance of evidence that the viola-
tion was not intentional and resulted from a bona
fide error notwithstanding the maintenance of proce-
dures reasonably adapted to avoid any such error.
CLARK v. CAPITAL CREDIT 10159
As our colleagues in other circuits have concluded, this
broad language seems to make the FDCPA a strict liability
statute. See Taylor v. Perrin, Landry, deLaunay & Durand,
103 F.3d 1232, 1238-39 (5th Cir. 1997); Russell v. Equifax
A.R.S., 74 F.3d 30, 33 (2d Cir. 1996); see also Irwin v.
Mascott, 112 F. Supp. 2d 937 (N.D. Cal. 2000); Pittman v. J.J.
Mac Intyre Co. of Nevada, Inc., 969 F. Supp. 609 (D. Nev.
1997); Kuhn v. Account Control Technology, Inc., 865 F.
Supp. 1443, (D. Nev. 1994).
Latching onto that conclusion, the Seventh Circuit has held
that Ҥ 1692e applies even when a false representation was
unintentional.” Gearing v. Check Brokerage Corp., 233 F.3d
469, 472 (7th Cir. 2000) (holding unintentional misrepresen-
tation of debt collector’s legal status violated FDCPA); see
also Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 995
(7th Cir. 2003) (holding unintentional misrepresentation that
debtor was obligated to pay a debt discharged in bankruptcy
violated FDCPA); Patzka v. Viterbo College, 917 F. Supp.
654, 658-59 (W.D. Wis. 1996) (holding that an attempt to col-
lect fee prohibited by law and threat to take action that could
not be taken legally violated FDCPA). The Second Circuit has
adopted a similar position. See Russell, 74 F.3d at 33, 36
(holding that sending contradictory notices violated FDCPA
even though plaintiff did not offer proof of intent); Cacace v.
Lucas, 775 F. Supp. 502, 505-06 (D. Conn. 1990) (holding
that an overstatement of debt “that was a mistake” violated
FDCPA).
[20] We agree with the Second and Seventh Circuits.
Requiring a violation of § 1692e to be knowing or intentional
needlessly renders superfluous § 1692k(c). See, e.g., Security
Pac. Nat’l Bank v. Resolution Tr. Corp., 63 F.3d 900, 904
(9th Cir. 1995) (“We must avoid a construction which renders
any language of the enactment superfluous.”); Hearn v. W.
Conference of Teamsters Pension Tr. Fund, 68 F.3d 301, 304
(9th Cir. 1995) (“Only where a sensible result isn’t reachable
may we resort to the drastic step of ignoring . . . statutory lan-
10160 CLARK v. CAPITAL CREDIT
guage. . . .”) (citation omitted).11 Instead, intent is only rele-
vant to the determination of damages. Taylor, 103 F.3d at
1238, 1239 (“the fact that violations were innocuous and not
abusive may be considered only in mitigating liability, and
not as defenses”); Bentley v. Great Lakes Collection Bureau,
6 F.3d 60, 63 (2d Cir. 1993) (“the degree of a [debt collec-
tor’s] culpability may only be considered in computing dam-
ages”). We are convinced that this reading of the FDCPA is
more in harmony with the remedial nature of the statute,
which requires us to interpret it liberally. Cf., e.g., Eby v. Reb
Realty, Inc., 495 F.2d 646, 650 (9th Cir. 1974) (concluding
the remedial purpose of the Truth in Lending Act, 15 U.S.C.
§ 1601 et seq., required liberal construction); accord Johnson
v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002) (“Because the
FDCPA . . . is a remedial statute, it should be construed liber-
ally in favor of the consumer.”).
At summary judgment, the Clarks presented evidence pur-
porting to establish that the debt collectors’ reliance on Dr.
Evans’ representations regarding their debt was unreasonable.
Notes taken by Brumley indicated that she knew of the seri-
ous bookkeeping difficulties and billing problems Dr. Evans’
office was experiencing. Arguably, Brumley’s collection
11
As thoroughly discussed in Kaplan v. Assetcare, Inc., 88 F. Supp. 2d
1355 (S.D. Fla. 2000), that “Congress took care to require an element of
knowledge or intent in certain portions of the FDCPA where it deemed
such a requirement necessary” further supports our conclusion that
§ 1692k(c) generally makes the FDCPA a strict liability statute. Id. at
1362; see, e.g., 15 U.S.C. § 1692d(5) (“Causing a telephone to ring or
engaging any person in telephone conversation repeatedly or continuously
with intent to annoy, abuse, or harass any person at the called number.”)
(emphasis added); 15 U.S.C. § 1692f(3) (“The solicitation of a debt collec-
tor of any postdated check . . . for the purpose of threatening or instituting
criminal prosecution.”) (emphasis added); 15 U.S.C. § 1692c (“a debt col-
lector may not communicate with a consumer in connection with the col-
lection of any debt at any unusual time or place . . . known or which
should be known to be inconvenient to the consumer.”) (emphasis added).
Here, we are persuaded that Congress employed such specific qualifiers
to limit the more general language of § 1692k. See Hearn, 68 F.3d at 304.
CLARK v. CAPITAL CREDIT 10161
notes also evidenced her concern over possible inconsisten-
cies between the debt Dr. Evans claimed with respect to the
Clark account and the itemized statement Dr. Evans provided.
Affidavits from other patients of the Evans & Sullivan Clinic
attested to successful litigation over previous false claims
involving Dr. Evans, as well as Capital and Hasson. As dis-
cussed below, the Clarks also moved to compel the produc-
tion of additional documents allegedly relating to this claim.
Given the district court’s failure to consider the merits of that
motion, discussed below, we need not determine whether this
evidence sufficed to withstand summary judgment.
[21] Pursuant to § 1692k(c)’s bona fide error defense, a
debt collector is not liable for its violations of the FDCPA if
“the violation was not intentional and resulted from a bona
fide error notwithstanding the maintenance of procedures rea-
sonably adapted to avoid any such error.” 15 U.S.C.
§ 1692k(c). Logically, if a debt collector reasonably relies on
the debt reported by the creditor, the debt collector will not be
liable for any errors. On the other hand, the bona fide error
defense will not shield a debt collector whose reliance on the
creditor’s representation is unreasonable or who represents to
the consumer a debt amount that is different from the credi-
tor’s report. Accord Smith v. Transworld Systems, Inc., 953
F.2d 1025, 1032 (6th Cir. 1992) (finding no violation because
the creditor listed incorrectly the amount owed when it
referred the debt to the debt collector); Ralph C. Clontz, Jr.,
Federal Fair Lending and Credit Practices Manual
¶ 14.09[3][a][ii] (“[A] debt collector cannot intentionally
claim an amount greater than is actually owed in order to get
the consumer to admit owing the true amount of the debt.”).
This narrow exception to strict liability under the FDCPA is
an affirmative defense, so Capital, Brumley and Hasson bore
the burden of proof at summary judgment. Fox, 15 F.3d at
1514. Yet, they presented no evidence to demonstrate that
their reliance on Dr. Evans’ representations was reasonable or
that they maintained procedures to avoid errors. Thus, the
debt collectors were not entitled to summary judgment on
10162 CLARK v. CAPITAL CREDIT
either the alleged violation of § 1692e or the affirmative
defense.
2.
The Clarks also argue that seeking to collect a debt known
to be invalid or insufficiently verified constitutes a violation
of § 1692d (which states debt collectors cannot “harass,
oppress, or abuse” consumers in connection with the collec-
tion of a debt), § 1692f(1) (prohibiting the collection of a debt
not authorized by law), and § 1692g(a)(1) (which requires the
debt collectors to inform consumers of the amount of the
debt). For the reasons discussed above, appellants may have
raised triable issues of material fact precluding summary
judgment on these issues, as well.
[22] Although we have never squarely addressed the issue
of overlapping liability under the FDCPA, our prior cases
leave us convinced that one action can give rise to multiple
violations of the Act. In Fox v. Citicorp, we reversed sum-
mary judgment on a debtor’s § 1692d claim because she had
presented evidence that the debt collector had called her at
work despite her requests that it not do so, which violates
§ 1692c(a)(1). 15 F.3d at 1516 n.10. In so holding, we noted
specifically that “it is not unusual for an action to violate
more than one FDCPA provision.” Fox, 15 F.3d at 1516 n.10
(citing Statements of General Policy or Interpretation Staff
Commentary on the Fair Debt Collection Practices Act, 53
Fed. Reg. 50,097, 50,101 (Fed. Trade Comm’n Dec. 13,
1988) (“In many cases several different sections or subsec-
tions of the FDCPA may apply to a given factual situation.”)).
And, it appears that we (as well as other courts) routinely
have allowed debtors to pursue causes of actions under multi-
ple sections of the FDCPA, even though each violation was
based upon the same circumstances. See, e.g., Renick v. Dun
& Bradstreet Receivable Management Services, 290 F.3d
1055, 1057-58 (9th Cir. 2002) (“Because the notice did not
violate the requirements of 15 U.S.C. § 1692g(a), it would not
CLARK v. CAPITAL CREDIT 10163
support a finding that [debt collector] used “false representa-
tion or deceptive means to collect or attempt to collect any
debt.”); Charles v. Lundgren & Associates, P.C., 119 F.3d
739 (9th Cir. 1997) (same course of conduct stated claim for
violations of three sections of FDCPA); accord Fields v. Wil-
ber Law Firm, P.C., 383 F.3d 562 (7th Cir. 2004) (contem-
plating violations under §§ 1692e, 1692f, and 1692g for one
collection letter).
[23] We have little difficulty accepting the wisdom of our
conclusion in Fox and the Federal Trade Commission com-
mentary upon which it relied. For instance, a trier of fact
would certainly be reasonable in finding that, if Brumley
knew the debt she was collecting was invalid, the natural con-
sequence of repeatedly calling Mrs. Clark to demand payment
of that debt was to “harass, oppress, or abuse” Mrs. Clark. See
15 U.S.C. § 1692d. In the same way, when Capital pursues a
debt it knows is overstated, Capital simultaneously misrepre-
sents the debt in contravention of § 1692e and seeks to collect
an amount that is not permitted by law in contravention of
§ 1692f(1).12
Moreover, as the Federal Trade Commission has explained,
the applicability to the same conduct of multiple subsections
of the Act “results from the effort by Congress in drafting the
FDCPA to be both explicit and comprehensive, in order to
limit the opportunities for debt collectors to evade the under-
lying legislative intention.” 53 Fed. Reg. at 50,101. We see no
reason to second guess the decision of Congress.
[24] Still, we cannot believe that, in its quest to avoid loop-
holes, Congress intended to create windfalls. Thus, we con-
12
That it is not unusual for an action to violate more than one FDCPA
provision, Fox, 15 F.3d at 1517 n.10, in no way implies that a violation
of one provision of the FDCPA automatically constitutes a violation of
another. Rather, the applicability of more than one section of the Act
depends on the particular factual underpinnings of each violation.
10164 CLARK v. CAPITAL CREDIT
clude that the fact that numerous violations of the FDCPA are
predicated upon one set of circumstances should be consid-
ered and that it is best considered during the calculation of
damages. See 15 U.S.C. § 1692k(a)(1) & (2)(A) (limiting
damages to the actual damages suffered by debtor and addi-
tional damages, not to exceed $1,000); 15 U.S.C.
§ 1692k(b)(1) (including “nature of . . . noncompliance” as
factor to be considered when determining damages).
II. Failure To Rule on Motion To Compel Discovery
Finally, we address the Clarks’ contention that the district
court erred by ruling on the cross-motions for summary judg-
ment before ruling on the Clarks’ motion to compel additional
discovery. Generally, the district court’s refusal to permit fur-
ther discovery is reviewed for an abuse of discretion. Garrett
v. City and County of San Francisco, 818 F.2d 1515, 1518
(9th Cir. 1985). However, by denying as moot the bulk of
appellants’ motion without considering its merits, the district
court failed to exercise its discretion, so we review de novo.
Id. at 1518-19.
[25] Among the relevant information the Clarks’ motion to
compel sought to elicit were Capital’s procedures for debt
verification and a document identified at Brumley’s deposi-
tion that purportedly provides additional verification of the
debt beyond the itemized statement. It is neither necessary nor
appropriate for us to pass on the merits of the motion. Garrett,
818 F.2d at 1519 n.4. Nonetheless, it is obvious that the evi-
dence the Clarks sought could have provided “potentially
favorable information,” particularly relating to appellants’
claim that appellees knew that the debt they sought to collect
was invalid. Id. (“summary judgment should not be granted
while opposing party timely seeks discovery of potentially
favorable information”) (citing Schering Corp. v. Home Ins.
Co., 712 F.2d 4, 10 (2d Cir. 1983)); see also VISA Intern. Ser-
vice Ass’n v. Bankcard Holders of America, 784 F.2d 1472,
CLARK v. CAPITAL CREDIT 10165
1475-76 (9th Cir. 1986) (discussing the general rule and
exceptions thereto).
[26] In other circumstances, we might be inclined to excuse
this error: had the Clarks failed to pursue the discovery sought
in their motion to compel, cf. Brae Transp., Inc. v. Coopers
& Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) (“the movant
cannot complain if it fails to pursue discovery diligently
before summary judgment”), had they moved the court to
compel discovery only after the deadlines for discovery or
submission of dispositive motions had passed, or had they
waited until after the district court ruled on the motions for
summary judgment, cf. Gault v. Nabisco Biscuit Co., 184
F.R.D. 620, 622 (D. Nev. 1999) (explaining that motion to
compel filed during the discovery period would rarely be con-
sidered untimely). However, they did not. The Clarks actively
pursued the information until the eve of oral argument on the
cross motions for summary judgment. They also requested
that the summary judgment motions be continued pending the
completion of discovery. In such circumstances, the district
court was required to determine the merits of the Clarks’
pending discovery motion before ruling on the summary judg-
ment motions. Garrett, 818 F.2d at 1519.
CONCLUSION
This case presents a complicated web of problems that has
required us to address a litany of issues for which there is a
dearth of applicable precedent. In so doing, we have endeav-
ored to adopt a construction of the FDCPA that recognizes
“there is room within the [FDCPA] for ethical debt collectors
to make occasional unavoidable errors,” Beattie, 754 F. Supp.
at 392, and avoids imposing unreasonable restrictions on the
collection of debt. Simultaneously, we wish to reinforce that
the broad remedial purpose of the FDCPA is concerned pri-
marily with the likely effect of various collection practices on
the minds of unsophisticated debtors.
10166 CLARK v. CAPITAL CREDIT
AFFIRMED, in part, REVERSED, in part, and
REMANDED for further proceedings consistent with this
opinion.
O’SCANNLAIN, Circuit Judge, concurring in part, dissenting
in part:
While I agree generally with the Court’s desire “to rein-
force that the broad remedial purpose of the [Fair Debt Col-
lection Practices Act] is concerned primarily with the likely
effect of various collection practices on the minds of unso-
phisticated debtors,” and while I specifically join parts I.B.,
I.C., and II. of the majority’s opinion, I must respectfully dis-
sent from part I.A. I cannot agree that Mrs. Clark’s waiver of
§ 1692c(c)’s protections did not extend to Janine Brumley
(“Brumley”) or Capital Credit & Collection Service
(“Capital”); the trial court properly concluded that Brumley
did not violate § 1692c(c) by returning Mrs. Clark’s call. For
that reason, I must dissent to that extent.
I
The majority properly holds that a debtor may waive the
protections of 15 U.S.C. § 1692c(c), which requires a debt
collector to cease communication with the debtor upon writ-
ten request. Here, Mrs. Clark did so by initiating a communi-
cation with Jeffrey Hasson (“Hasson”) to obtain information.
The majority extends her waiver only to Hasson, but in my
view, the waiver should also apply to Brumley and Capital.
A
Congress enacted the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692-1692o, in order to eliminate
“abusive debt collection practices by debt collectors [and] to
insure that those debt collectors who refrain from using abu-
CLARK v. CAPITAL CREDIT 10167
sive debt collection practices are not competitively disadvan-
taged.” 15 U.S.C. § 1692(e). As the majority acknowledges,
“there is nothing inherently abusive, harassing, deceptive or
unfair about a return phone call.” Maj. Op. at 10148. This is
so regardless of who makes the call. The fact that Brumley
returned Mrs. Clark’s call instead of Hasson does not sud-
denly transform the call into an abusive practice. The majority
recognizes the possibility of waiver of § 1692c(c)’s protec-
tions because failure to do so would be inconsistent with the
purposes of the FDCPA. Refusing to extend Mrs. Clark’s
waiver to Brumley and Capital is similarly inconsistent.
B
The majority argues that a waiver of § 1692c(c)’s protec-
tions must be knowing and intelligent, Maj. Op. at 10150, and
I do not disagree. But, in any conceivable case, a debtor who
phones a debt collector to request information must be said to
have “sufficient awareness of the relevant circumstances and
likely consequences” of her action, United States v. Larson,
302 F.3d 1016, 1021 (9th Cir. 2002), namely that someone
will return the call with the requested information. In fact, one
would almost certainly expect the person with the information
to be the one to place the return call. But the majority con-
cludes that the “least sophisticated debtor” would not have
expected Brumley, or anyone at Capital, to return Mrs.
Clark’s call. In my view, the majority errs in applying such
standard.
Use of the “least sophisticated debtor” standard here, to
determine the meaning a debtor would ascribe to her own
actions, is unique. Previously, we have employed it only to
determine whether a debt collector’s communications to a
debtor violate the FDCPA. See Dunlap v. Credit Prot. Ass’n.,
L.P., 419 F.3d 1011, 1012 (9th Cir. 2005) (judging “[t]he
impact of language alleged to violate the FDCPA”). To that
end, we examine communications with an eye towards the
“tendency of language to deceive” the “least sophisticated
10168 CLARK v. CAPITAL CREDIT
debtor.” Baker v. G.C. Servs. Corp., 677 F.2d 775, 778 (9th
Cir. 1982); see also Renick v. Dun & Bradstreet Receivable
Mgmt. Servs., 290 F.3d 1055, 1057 (9th Cir. 2002) (holding
that a communication “was not misleading even to the least
sophisticated debtor”); Terran v. Kaplan, 109 F.3d 1428,
1431 (9th Cir. 1997) (stating that “whether the initial commu-
nication violates the FDCPA depends on whether it is likely
to deceive or mislead a hypothetical ‘least sophisticated debt-
or’ ” (internal quotation marks and citation omitted)); Wade v.
Reg’l Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir. 1996) (stat-
ing that a communication violates the FDCPA if “likely to
deceive or mislead a hypothetical ‘least sophisticated debt-
or’ ”). We have also used it to determine whether such a
debtor would understand a debt collector’s communication as
a threat. See Swanson v. S. Or. Credit Serv., Inc., 869 F.2d
1222, 1227 (9th Cir. 1988).
Significantly, Clomon v. Jackson, 988 F.2d 1314, 1320 (2d
Cir. 1993), cited by the majority, notes that the “least sophisti-
cated consumer” standard serves a dual purpose. “[I]t (1)
ensures the protection of all consumers, even the naive and
the trusting, against deceptive debt collection practices, and
(2) protects debt collectors against liability for bizarre or idio-
syncratic interpretations of collection notices.” Id. When used
to determine whether a debtor “would understand that he or
she was waiving his or her rights under § 1692c(c),” the stan-
dard serves neither of these purposes. Maj. Op. at 10150-51.
Because returning a debtor’s call is not a deceptive practice,
I see no reason for the majority’s novel application of the
“least sophisticated debtor” standard here.1
1
Even were the “least sophisticated debtor” standard appropriate, the
majority errs by injecting a subjective element into what is, by its own
admission, an “objective” standard. Majority Op. at 10151. Mrs. Clark’s
subjective intentions and expectations are not relevant; nor is her charac-
terization of her previous interactions with Brumley. Mrs. Clark may have
been upset by Brumley’s collection efforts; however, § 1692c(c), and the
FDCPA generally, prohibits only deceptive and abusive practices, not any
CLARK v. CAPITAL CREDIT 10169
C
Indeed, I see no reason to use any standard other than com-
mon sense. Mrs. Clark called Hasson’s office seeking infor-
mation concerning a specific debt, despite her earlier cease
communication instruction. In my view, by doing so, Mrs.
Clark waived her right to avoid a return communication—
albeit one specifically limited to providing the information
requested. Although Hasson and Brumley’s employer, Capi-
tal, are different entities, they were working together to col-
lect the specific debt about which Mrs. Clark inquired.
Allowing one of the parties to return the call while preventing
the others from doing so is nonsensical, particularly where
one party has better access to the information. Here, Capital,
and Brumley specifically, had the information Mrs. Clark
requested; thus, Mrs. Clark’s waiver should, as a matter of
common sense, apply to both Capital and Brumley.2
In my view, then, Capital and Brumley did not violate
§ 1692c(c) of the FDCPA by returning Mrs. Clark’s call, and
the district court’s grant of summary judgment on the issue
was proper.
and all actions that upset debtors. Thus, Mrs. Clark’s alleged need for ther-
apy is relevant only on the issue of damages flowing from actual viola-
tions of the FDCPA. Her unhappiness with the collection process
generally is not relevant to the issue of whether her limited waiver of
§ 1692c(c) should extend to Brumley and Capital.
2
A debtor might claim that a debt collector exceeded the scope of the
waiver or was abusive. Abusive conduct violates § 1692d of the FDCPA,
and a debt collector who exceeds the scope of a waiver might still violate
§ 1692c(c). However, it is unnecessary to reach that question because,
although the majority states that the parties dispute the substance of Brum-
ley’s return call, this specific issue was tried to a jury following the district
court’s partial grant of summary judgment. The jury found that Brumley
was not abusive and did not exceed the scope of Mrs. Clark’s information
request.
10170 CLARK v. CAPITAL CREDIT
II
Because Mrs. Clark waived her cease-communication
directive as to both Hasson and Brumley, I would affirm the
district court’s grant of summary judgment to all parties on
the Clarks’ § 1692c(c) claim.