David Tourgeman v. Collins Financial Services

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID TOURGEMAN, No. 12-56783
Plaintiff-Appellant,
D.C. No.
v. 3:08-cv-01392-
CAB-NLS
COLLINS FINANCIAL SERVICES, INC.,
DBA Precision Recovery Analytics,
Inc., a Texas corporation; NELSON & OPINION
KENNARD, a partnership; PARAGON
WAY, INC.; COLLINS FINANCIAL
SERVICES USA, INC.,
Defendants-Appellees,
and
DELL FINANCIAL SERVICES, LP,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted
April 9, 2014—Pasadena, California
Filed June 25, 2014
2 TOURGEMAN V. COLLINS FINANCIAL SERVS.
Before: Jerome Farris and Andrew D. Hurwitz, Circuit
Judges, and Paul L. Friedman, District Judge.*
Opinion by Judge Friedman;
Dissent by Judge Farris
SUMMARY**
Fair Debt Collection Practices Act
The panel reversed the district court’s summary judgment
in favor of the defendants in a class action under the Fair
Debt Collection Practices Act.
The panel held that the plaintiff had Article III standing
to assert claims based on collection letters that he did not
receive because the alleged violation of his statutory right not
to be the target of misleading debt collection communications
constituted a cognizable injury. The panel also held that the
plaintiff had a statutory cause of action under the FDCPA.
The panel reversed the district court’s summary judgment
on claims that the defendants violated § 1692e of the FDCPA
by misidentifying the plaintiff’s original creditor in a series
of collection letters sent to him, as well as in a complaint filed
against him in state court. The panel held that the letters and
*
The Honorable Paul L. Friedman, District Judge, U.S. District Court
for the District of Columbia, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 3
the complaint were materially misleading, and that the
plaintiff was entitled to judgment under § 1692e(2) and (10).
Dissenting, Judge Farris wrote that he would affirm the
district court’s judgment.
COUNSEL
Brett M. Weaver (argued), Johnson & Weaver, LLP, San
Diego, California, and Daniel P. Murphy, Law Offices of
Daniel Murphy, San Diego, California, for Plaintiff-
Appellant.
Tomio B. Narita (argued) and Jeffrey A. Topor, Simmonds &
Narita LLP, San Francisco, California, for Defendant-
Appellee Nelson & Kennard.
No appearance for Defendants-Appellees Collins Financial
Services, Inc., Collins Financial Services USA, Inc., or
Paragon Way, Inc.
OPINION
FRIEDMAN, District Judge:
This is a class action brought under the Fair Debt
Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C.
§ 1692 et seq. Plaintiff David Tourgeman contends that the
defendants — Collins Financial Services, Inc.; Paragon Way,
Inc.; Nelson & Kennard; and Collins Financial Services USA,
Inc. — made false representations to him in connection with
4 TOURGEMAN V. COLLINS FINANCIAL SERVS.
their efforts to collect a purported debt.1 Specifically,
Tourgeman argues that the defendants violated the Act by
misidentifying his original creditor in a series of collection
letters sent to him, as well as in a complaint filed against him
in state court. He also maintains that one defendant, Nelson
& Kennard, misleadingly represented that its collection letter
was from an attorney when, on Tourgeman’s account of the
facts, no attorney had been “meaningfully involved” in
evaluating his case. The district court granted summary
judgment to the defendants. We have jurisdiction under
28 U.S.C. § 1291. We now reverse and hold that judgment
should be entered for Tourgeman.
I. BACKGROUND
David Tourgeman bought a Dell computer. At the time
of the purchase, Tourgeman resided in Mexico, and he
ordered the computer to be shipped to his parents’ home in
California. He financed the purchase through Dell Financial
Services, which arranged for a loan to be originated by CIT
Online Bank. Dell Financial then serviced the loan.
According to Tourgeman, he completed repayment within
two years of buying the computer. But Dell Financial’s
records reflected otherwise. Tourgeman’s allegedly
outstanding debt therefore was charged off and then sold,
1
Tourgeman serves here as the named plaintiff on behalf of a class of
consumers similarly situated. This appeal resolves the essential legal
question that underlies Tourgeman’s and the class’s claims under one
section of the FDCPA, 15 U.S.C. § 1692e. For ease of reference, we refer
only to plaintiff Tourgeman rather than to the class.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 5
along with more than 85,000 other Dell Financial debts, to
Collins Financial Services.2
Collins transferred Tourgeman’s file along with the other
Dell Financial accounts to Collins’s affiliated collection
agency, Paragon Way, Inc., which mailed three letters to
Tourgeman encouraging him to pay off the purported debt.
Collins then referred the file to the law firm of Nelson &
Kennard, which sent its own dunning letter to Tourgeman.
All of these letters were mailed to addresses in California at
which Paragon and Nelson & Kennard believed Tourgeman
might reside. In fact, the addresses belonged to Tourgeman’s
parents, and Tourgeman himself remained resident in
Mexico. After receiving no response to the letters, Nelson &
Kennard filed a complaint on behalf of Collins in San Diego
County Superior Court. Tourgeman retained counsel, and
Nelson & Kennard eventually elected to dismiss the action.
It was during this state court litigation that Tourgeman
learned of the several letters that had been mailed to him at
his parents’ addresses. See Tourgeman v. Collins Fin. Servs.,
Inc., No. 08-cv-1392, 2011 WL 3176453, at *6 (S.D. Cal.
July 26, 2011).
Tourgeman then went on the offensive. He filed this
lawsuit in federal district court, alleging that Collins, Paragon
Way, and Nelson & Kennard had violated the FDCPA, as
well as California law, in their efforts to collect the purported
2
It is immaterial to this appeal whether Tourgeman actually had paid his
loan in full; none of his FDCPA claims depends on the validity of the
debt.
6 TOURGEMAN V. COLLINS FINANCIAL SERVS.
debt from him.3 Tourgeman’s complaint survived motions to
dismiss filed by the several defendants, see id., and the
district court later certified a class of consumer plaintiffs, see
Tourgeman v. Collins Fin. Servs., Inc., No. 08-cv-1392, 2012
WL 1327824, at *4–10 (S.D. Cal. Apr. 17, 2012). But upon
the defendants’ motions for summary judgment and
Tourgeman’s cross-motion, the court granted judgment to the
defendants. See Tourgeman v. Collins Fin. Servs., Inc., No.
08-cv-1392, 2012 WL 3731807 (S.D. Cal. Aug. 29, 2012).
On appeal, Tourgeman makes two claims under the
FDCPA. His main claim arises from the fact that the
defendants — both in their letters and in the state court
complaint — falsely identified his original creditor as
“American Investment Bank, N.A.,” when, in actuality, CIT
Online Bank originated the loan. Tourgeman contends that
this misidentification violated the Act’s prohibition on the
“use [of] any false, deceptive, or misleading representation or
means in connection with the collection of any debt.”
15 U.S.C. § 1692e. Tourgeman’s second claim relates to the
letter sent to him by the law firm of Nelson & Kennard. He
argues that the attorney who signed the letter had not been
“meaningfully involved” in evaluating his case, and that the
letter therefore runs afoul of 15 U.S.C. § 1692e(3), which
proscribes “[t]he false representation or implication that any
individual is an attorney or that any communication is from
an attorney.” Tourgeman seeks only statutory damages,
3
Tourgeman also sued Dell Financial, with which he later settled; that
entity is not therefore involved in this appeal. Collins and Paragon Way
have elected neither to file briefs nor to offer argument on this appeal, but
we nonetheless are obligated to review the record in full. See Brown Bag
Software v. Symantec, Corp., 960 F.2d 1465, 1478 (9th Cir. 1992). In any
event, Nelson & Kennard offers arguments equally applicable to the letters
sent by Paragon Way.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 7
conceding that he suffered no pecuniary loss as a result of the
defendants’ conduct.
II. STANDING
Nelson & Kennard first argues that Tourgeman lacks both
statutory and Article III standing to assert any claims based
on the collection letters, which Tourgeman admittedly never
received when they were sent. The law firm contends that the
FDCPA does not provide a cause of action to a consumer in
Tourgeman’s position, notwithstanding the statute’s broad
language providing that “any debt collector who fails to
comply with any provision of this subchapter with respect to
any person is liable to such person.” 15 U.S.C. § 1692k(a).
Nelson & Kennard further maintains that even if the FDCPA
does purport to endow such consumers with a cause of action,
Article III would forbid it, because consumers who never
receive the offending communication have suffered no injury
in fact. Tourgeman’s position is that a violation of the
FDCPA “in and of itself [] confers Article III standing.”
A. Article III Standing
“Article III of the Constitution limits federal-court
jurisdiction to ‘Cases’ and ‘Controversies.’” Massachusetts
v. E.P.A., 549 U.S. 497, 516 (2007). The requirement of
standing flows from this limitation. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Standing doctrine assures
that “the litigant is entitled to have the court decide the merits
of the dispute or of particular issues,” Warth v. Seldin,
422 U.S. 490, 498 (1975), by demanding that he or she
“possess a ‘direct stake in the outcome’ of the case,”
Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013)
8 TOURGEMAN V. COLLINS FINANCIAL SERVS.
(quoting Arizonans for Official English v. Arizona, 520 U.S.
43, 64 (1997)).
To possess standing, a plaintiff must have suffered an
“injury in fact,” meaning “an invasion of a legally protected
interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical.”
Lujan, 504 U.S. at 560 (internal citations and quotation marks
omitted). In addition, “there must be a causal connection
between the injury and the conduct complained of . . . [and]
it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Id. at
560–61 (internal citations and quotation marks omitted).
“The . . . injury required by Art. III may exist solely by
virtue of ‘statutes creating legal rights, the invasion of which
creates standing.’” Id. at 578 (quoting Warth, 422 U.S. at
500); see also Massachusetts, 549 U.S. at 516 (“Congress has
the power to define injuries and articulate chains of causation
that will give rise to a case or controversy where none existed
before.” (quoting Lujan, 504 U.S. at 580 (Kennedy, J.,
concurring in part and concurring in the judgment))) (internal
quotation marks omitted). In cases involving statutory rights,
“the particular statute and the rights it conveys [] guide the
standing determination.” Donoghue v. Bulldog Investors
Gen. P’ship, 696 F.3d 170, 178 (2d Cir. 2012); see also
Hammer v. Sam’s East, Inc., ___ F.3d ___, 2014 WL
2524534, at *4 & n.3 (8th Cir. June 5, 2014) (noting that “the
actual-injury requirement may be satisfied solely by the
invasion of a legal right that Congress created”); Robey v.
Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1212
(10th Cir. 2006) (where a court is “dealing with legal rights
created by Congress under the FDCPA . . . the ‘injury in fact’
analysis for purposes of Article III is directly linked to the
TOURGEMAN V. COLLINS FINANCIAL SERVS. 9
question of whether [the plaintiff] has suffered a cognizable
statutory injury”). As the Supreme Court has explained,
“[e]ssentially, the standing question in such cases is whether
the constitutional or statutory provision on which the claim
rests properly can be understood as granting persons in the
plaintiff’s position a right to judicial relief.” Warth, 422 U.S.
at 500. For this reason, “the violation of a statutory right is
usually a sufficient injury in fact to confer standing.” Robins
v. Spokeo, Inc., 742 F.3d 409, 412 (9th Cir. 2014).
At the same time, “the requirement of injury in fact is a
hard floor of Article III jurisdiction that cannot be removed
by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497
(2009). Thus, there are limits on Congress’s ability to elevate
to the status of legally cognizable injuries particular types of
harm that were previously not recognized in law. Lujan,
504 U.S. at 578. As this court has observed, there are “two
constitutional limitations on congressional power to confer
standing.” Robins, 742 F.3d at 413. “First, a plaintiff ‘must
be among the injured, in the sense that she alleges the
defendants violated her statutory rights.’” Id. (quoting
Beaudry v. TeleCheck Servs., Inc., 579 F.3d 702, 707 (6th
Cir. 2009)) (internal quotation marks omitted). “Second, the
statutory right at issue must protect against ‘individual, rather
than collective, harm.’” Id. (quoting Beaudry, 579 F.3d at
707).
The second limitation poses no problem in this case. The
personal interest in not being “the object of a
misrepresentation made unlawful [by statute],” Havens Realty
Corp. v. Coleman, 455 U.S. 363, 373 (1982), assuredly is an
“individual, rather than collective, harm,” Beaudry, 579 F.3d
at 707 (internal quotation marks omitted). The gravamen of
Nelson & Kennard’s argument, rather, is that Tourgeman is
10 TOURGEMAN V. COLLINS FINANCIAL SERVS.
not truly “among the injured.” That is, it contends that
Tourgeman has not suffered the “actual” injury required by
Article III because he never received any letter that contained
the allegedly misleading representations. According to
Nelson & Kennard, a consumer who never receives a dunning
letter can suffer neither pecuniary nor emotional harm, nor
can such a consumer be hindered in deciding how to respond
to the effort to collect the debt.
The Supreme Court’s decision in Havens Realty Corp. v.
Coleman, however, makes clear that such pecuniary or
emotional harms are not necessary to a finding of injury in
fact. In Havens, the Court held that an African-American
“tester” —who, by posing as an apartment hunter, aimed to
ferret out violations of the Fair Housing Act (“FHA”) —
possessed standing to bring suit based on the defendants’
falsely telling her that no apartments in a particular housing
complex were available, even though the tester had no
intention of actually renting an apartment from the defendant
and, indeed, may well have “fully expect[ed] that he would
receive false information.” 455 U.S. at 374. The Court
concluded that the “alleged injury to [the plaintiff’s]
statutorily created right to truthful housing information” was
a cognizable injury in and of itself — regardless of whether
the plaintiff actually hoped to reside in the defendant’s
housing complex — and therefore “the Art. III requirement
of injury in fact [was] satisfied.” Id. at 374 (citing Warth,
422 U.S. at 500). The tester plaintiff possessed standing not
because she had been “deprived . . . of the benefits that result
from living in an integrated community,” id. at 375, but
simply because her “statutorily created right to truthful
housing information” had been infringed, id. at 374–75.
 TOURGEMAN V. COLLINS FINANCIAL SERVS. 11
Similarly, we have held that where a home buyer is
referred by her settlement agent to a particular title insurer as
a result of a kickback deal between the agent and the insurer,
the consumer suffers Article III injury even though she paid
no more for the insurance than she otherwise would have.
Edwards v. First Am. Corp., 610 F.3d 514, 517–18 (9th Cir.
2010), cert. granted in part, 131 S. Ct. 3022 (2011), cert.
dismissed as improvidently granted, 132 S. Ct. 2536 (2012)
(per curiam); accord Alston v. Countrywide Fin. Corp.,
585 F.3d 753, 762–63 (3d Cir. 2009) (recognizing that
because Article III injury can be predicated on the violation
of statutory rights, “[a] plaintiff need not demonstrate that he
or she suffered actual monetary damages”); Carter v. Welles-
Bowen Realty, Inc., 553 F.3d 979, 989 (6th Cir. 2009) (“Just
as a violation of the rights of ‘testers’ to receive ‘truthful
information’ supports standing, so does a violation of the
right to receive referrals untainted by conflicts of interest.”
(quoting Havens, 455 U.S. at 373–74)). More recently, we
concluded that an individual had standing to sue a website
operator that allegedly had published inaccurate information
about him, regardless of whether the plaintiff had suffered
any financial or emotional harm as a consequence. See
Robins, 742 F.3d at 412–14; accord Beaudry, 579 F.3d at
707; see also In re Zynga Privacy Litig., ___ F.3d ___, 2014
WL 1814029, at *5 n.5 (9th Cir. May 8, 2014) (affirming
Article III standing based on Facebook user’s interest in
maintaining the privacy of her online identification and URL
information). In cases involving a variety of other federal
statutes, courts regularly have held that the absence of
pecuniary loss is no bar to Article III standing, if the plaintiff
has alleged a violation of the rights conferred by statute. See,
e.g., Hammer, 2014 WL 2524534, at *3–4 (action under Fair
and Accurate Credit Transactions Act); Donoghue, 696 F.3d
at 174–80 (action under section 16(b) of Securities Exchange
12 TOURGEMAN V. COLLINS FINANCIAL SERVS.
Act); Robey, 434 F.3d at 1211–12 (action under FDCPA);
DeMando v. Morris, 206 F.3d 1300, 1303 (9th Cir. 2000)
(action under Truth in Lending Act).
Although Tourgeman could not have suffered any
pecuniary loss or mental distress as the result of a letter that
he did not encounter until months after it was sent — when
related litigation was already underway — the injury he
claims to have suffered was the violation of his right not to be
the target of misleading debt collection communications. The
alleged violation of this statutory right — like those rights at
issue in Havens, Robins, and the other cases that we have
noted — constitutes a cognizable injury under Article III.
And “[w]hen the injury in fact is the violation of a statutory
right that we inferred from the existence of a private cause of
action, causation and redressability” — the two other
elements of standing — “will usually be satisfied.” Robins,
742 F.3d at 414. Such is the case here. The alleged violation
of Tourgeman’s statutory rights stems solely from the
defendants’ having mailed to him their collection letters, and
that injury would be redressed by an award of statutory
damages, which the FDCPA makes available to prevailing
consumers. See 15 U.S.C. § 1692k(a)(2) (providing for
“additional damages”). We conclude, therefore, that
Tourgeman has constitutional standing.
B. Statutory Standing
Satisfied that Article III of the Constitution would not bar
Congress from creating a private cause of action for a
consumer in Tourgeman’s position, we now turn to ask
whether Congress actually has done so in the FDCPA. We
TOURGEMAN V. COLLINS FINANCIAL SERVS. 13
start with the text of the statute.4 See Lexmark Int’l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1387–88 &
n.4 (2014); United States v. Johnson, 680 F.3d 1140, 1144
(9th Cir. 2012). The FDCPA provides that “any debt
collector who fails to comply with any provision of this
subchapter with respect to any person is liable to such
person.” 15 U.S.C. § 1692k(a). And the substantive
provision that Tourgeman alleges was violated states that “[a]
debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” Id. § 1692e. The question, then, is whether the
“use [of] any false, deceptive, or misleading representation
. . . with respect to any person” entails a corollary
requirement that the person to whom the representation was
addressed actually have received it.
The statute’s text imposes no such requirement. Still, it
is not unreasonable for Nelson & Kennard to contend that the
very concept of a “representation” contemplates the presence
of two parties: the party making the representation and the
party to whom it is made. See, e.g., WEBSTER’S THIRD NEW
INT’L DICTIONARY 1926 (1993) (defining “represent” as
meaning, inter alia, “to set forth or place before someone (as
by statement, account, or discourse),” and “[to] exhibit (a
fact) to another mind in language” (emphases added));
BLACK’S LAW DICTIONARY 1415 (9th ed. 2009) (defining
“representation” as meaning, inter alia, “[a] presentation of
fact — either by words or by conduct — made to induce
4
As the Supreme Court recently noted, what the courts have sometimes
called “statutory standing” is perhaps better addressed by asking whether
Congress has created by a particular statute a cause of action in which a
class of plaintiffs is authorized to sue. Lexmark, 134 S. Ct. at 1387–88 &
n.4.
14 TOURGEMAN V. COLLINS FINANCIAL SERVS.
someone to act . . . [especially] the manifestation to another
that a fact, including a state of mind, exists” (emphases
added)). But these definitions do not speak to the nature of
the intended recipient’s role in the transaction, and the
statutory text itself is aimed squarely at the debt collector’s
conduct, rather than at its effect on the consumer. See
15 U.S.C. §§ 1692e & k(a) (proscribing the “use [of] any
false, deceptive, or misleading representation . . . with respect
to any person” (emphasis added)). A debt collector who
addresses a misleading dunning letter to a consumer as a
means of collecting that consumer’s debt “use[s]” an
unlawful practice “with respect to” the consumer, regardless
of whether some interceding condition — such as non-receipt
of the letter, or the consumer’s failure to read it, or the fact
that the consumer is savvy enough not to be misled by it —
renders the practice ineffective.
The manner in which the majority of courts have applied
the FDCPA aligns with this construction of the statute. To
begin with, a consumer possesses a right of action even where
the defendant’s conduct has not caused him or her to suffer
any pecuniary or emotional harm. E.g., Phillips v. Asset
Acceptance, LLC, 736 F.3d 1076, 1083 (7th Cir. 2013);
Robey, 434 F.3d at 1212; Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 307 (2d Cir. 2003); Baker v. G.C. Servs.
Corp., 677 F.2d 775, 780–81 (9th Cir. 1982). An FDCPA
plaintiff need not even have actually been misled or deceived
by the debt collector’s representation; instead, liability
depends on whether the hypothetical “least sophisticated
debtor” likely would be misled. E.g., Gonzales v. Arrow Fin.
Servs., LLC, 660 F.3d 1055, 1061 & n.2 (9th Cir. 2011);
Terran v. Kaplan, 109 F.3d 1428, 1431 (9th Cir. 1997). This
inquiry is objective and is undertaken as a matter of law.
Gonzales, 660 F.3d at 1061. In addition, by making available
TOURGEMAN V. COLLINS FINANCIAL SERVS. 15
to prevailing consumers both statutory damages and
attorneys’ fees, Congress “clearly intended that private
enforcement actions would be the primacy enforcement tool
of the Act.” Baker, 677 F.2d at 780–81 (citing elements of
the FDCPA’s legislative history); see also Evon v. Law
Offices of Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir.
2012) (“The FDCPA is a consumer protection statute and was
intended to permit, even encourage, attorneys like [plaintiffs’
class counsel] to act as private attorney generals to pursue
FDCPA claims.”); Gonzales, 660 F.3d at 1061 (noting that
“Congress encouraged private enforcement [of the FDCPA]
by permitting aggrieved individuals to bring suit as private
attorneys general” (citing Camacho v. Bridgeport Fin., Inc.,
523 F.3d 973, 978 (9th Cir. 2008))).
These interlocking statutory features demonstrate that
Congress intended to achieve its goal of regulating debt
collectors’ conduct by motivating consumers to bring
enforcement actions if they are the targets of unlawful
collection efforts. And the Act’s broad regulatory purpose is
effectuated by measuring the lawfulness of a debt collector’s
conduct not by its impact on the particular consumer who
happens to bring a lawsuit, but rather on its likely effect on
the most vulnerable consumers — the hypothetical “least
sophisticated debtor” — in the marketplace. See, e.g.,
Gonzales, 660 F.3d at 1061. In addition, “[b]ecause
the FDCPA . . . is a remedial statute, it should be construed
liberally in favor of the consumer.” Clark v. Capital Credit
& Collection Servs. Inc., 460 F.3d 1162, 1176 (9th Cir. 2006)
(quoting Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.
2002)) (omission in original). This rule of construction
fortifies our conclusion that a consumer such as Tourgeman,
who did not actually receive a dunning letter directed toward
16 TOURGEMAN V. COLLINS FINANCIAL SERVS.
him at the time it was sent, nonetheless may bring an action
challenging the lawfulness of that letter under the Act.
For these reasons, Tourgeman has both Article III
standing and a statutory cause of action under the FDCPA.5
III. CLAIMS UNDER THE FDCPA
We turn now to the merits of Tourgeman’s claims, which
require that we determine whether the defendants’
communications were “misleading” under section 1692e of
the FDCPA. Although Tourgeman levels the same basic
charge against all defendants — that his original creditor, CIT
Online Bank, was falsely identified to be American
Investment Bank — there are a few distinctions between the
various challenged documents and these differences warrant
dividing our separate discussion of them. We first address
the Paragon Way letters, then the complaint drafted by
Nelson & Kennard and filed against Tourgeman in California
state court, and conclude with the letter sent by Nelson &
Kennard. We exercise de novo review over a grant or denial
of summary judgment. Evon, 688 F.3d at 1023–24. This
court also “reviews a district court’s interpretation of the
FDCPA de novo.” Id. at 1024.
5
We also reject Nelson & Kennard’s contention that Tourgeman’s
claims based on the letters are time-barred. The district court
appropriately concluded that “the first time that [Tourgeman] reasonably
could have become aware of the allegedly false and misleading
representations in Defendants’ letters was when his father was served with
summons and complaint in the state court lawsuit in October 2007,” after
which litigation discovery revealed the existence of the collection letters.
Tourgeman, 2011 WL 3176453, at *6; see also Magnum v. Action
Collection Serv., Inc., 575 F.3d 935, 939–41 (9th Cir. 2009) (holding that
discovery rule applies in FDCPA actions).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 17
The FDCPA “comprehensively regulates the conduct of
debt collectors,” and “is a strict liability statute.” Gonzales,
660 F.3d at 1060–61; see also Clark, 460 F.3d at 1174–77
(concluding that the FDCPA holds debt collectors strictly
liable). Section 1692e therefore “broadly prohibits the use of
‘any false, deceptive, or misleading representation or means
in connection with the collection of any debt.’” Gonzales,
660 F.3d at 1061 (quoting 15 U.S.C. § 1692e). The section
also provides a non-exhaustive list of sixteen practices that
violate this general prohibition; Tourgeman relies on three of
the subsections: 1692e(2)(A), proscribing the “false
representation of the character, amount, or legal status of any
debt”; 1692e(3), prohibiting the “false representation or
implication that any individual is an attorney or that any
communication is from an attorney”; and 1692e(10),
forbidding the “use of any false representation or deceptive
means to collect or attempt to collect any debt.”
“In this circuit, a debt collector’s liability under § 1692e
of the FDCPA is an issue of law.” Gonzales, 660 F.3d at
1061. The analysis is objective and “takes into account
whether the ‘least sophisticated debtor would likely be misled
by a communication.’” Id. (quoting Donohue v. Quick
Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010)). “The
‘least sophisticated debtor’ standard is ‘lower than simply
examining whether particular language would deceive or
mislead a reasonable debtor.’” Id. (quoting Terran, 109 F.3d
at 1432). “Most courts agree that although the least
sophisticated debtor may be uninformed, naive, and gullible,
nonetheless her interpretation of a collection notice cannot be
bizarre or unreasonable.” Evon, 688 F.3d at 1027.
In addition, “[i]n assessing FDCPA liability, we are not
concerned with mere technical falsehoods that mislead no
18 TOURGEMAN V. COLLINS FINANCIAL SERVS.
one, but instead with genuinely misleading statements that
may frustrate a consumer’s ability to intelligently choose his
or her response.” Donohue, 592 F.3d at 1034. In other
words, a debt collector’s false or misleading representation
must be “material” in order for it to be actionable under the
FDCPA. Id. at 1033. “The purpose of the FDCPA, ‘to
provide information that helps consumers to choose
intelligently,’ would not be furthered by creating liability 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. (quoting Hahn v. Triumph P’ships LLC,
557 F.3d 755, 757–58 (7th Cir. 2009)). Thus, “false but non-
material representations are not likely to mislead the least
sophisticated consumer and therefore are not actionable under
[section] 1692e.” Id.
A. Paragon Way Letters
Paragon Way mailed three letters to Tourgeman that
falsely identified his original creditor as “American
Investment Bank, N.A.,” when in fact CIT Online Bank
originated his loan. The letters also displayed an “Original
Account #” that did not match Tourgeman’s original CIT loan
number. The first two of these letters, however, did include
a “Description” line item that stated, “Dell Computer
Corporation.” The question presented is whether this
combination of features — in particular, the letters’
misidentification of Tourgeman’s original creditor —
TOURGEMAN V. COLLINS FINANCIAL SERVS. 19
rendered these letters materially misleading under section
1692e.6
Tourgeman contends that these false statements could
lead a consumer to reach any number of incorrect
understandings about the nature of the predicament he or she
faces. For example, the consumer might be concerned that
the erroneous information is indicative of an attempted fraud.
Or the consumer might assume that because the letter seeks
to collect a debt that evidently does not belong to him, the
letter can safely be disregarded. Alternatively, the consumer
might be concerned that if he responds to the letter by paying
the amount demanded, he will later receive another letter
from a different debt collector attempting to collect the same
debt. Tourgeman contends that because each of these beliefs
about the nature of the situation is just as reasonable as the
6
Tourgeman places little emphasis on the presence in the letters of an
incorrect account number. At oral argument, his counsel simply stated
that the unfamiliar account number made the letters “doubly confusing.”
Counsel for Nelson & Kennard, in his argument, maintained that any
claim made on the basis of the account number had not been pled in
Tourgeman’s complaint, and had only been raised on appeal. But the
district court clearly considered this factual allegation in its decision on
summary judgment. See Tourgeman, 2012 WL 3731807, at *3.
In any event, we conclude that the misidentification of the original
creditor is independently sufficient to constitute a violation of the Act.
Although the incorrect account number certainly compounds the violation,
we do not determine whether that particular false statement, standing
alone, would be sufficient to violate the FDCPA.
20 TOURGEMAN V. COLLINS FINANCIAL SERVS.
one true understanding, he has been misled or deceived
within the meaning of the Act.7
Nelson & Kennard maintains that despite the erroneous
identification of Tourgeman’s original creditor, the references
to Dell in the first two Paragon Way letters were sufficient to
tip off even the least sophisticated debtor about the subject
matter of the collection effort. And a consumer genuinely
puzzled by the mention of American Investment Bank, need
only have picked up the phone to call for more information or
to dispute the debt. Thus, says Nelson & Kennard, because
the consumer’s ability to intelligently respond to the letters
would not have been adversely affected by the incorrect
information, the false statements were not “material,” and
consequently Paragon Way did not violate the Act.
In Donohue, we held that a defendant’s mislabeling of a
portion of a debt as “interest . . . of 12%” — when in fact the
sum “included pre-finance charges and interest” — did not
violate section 1692e because the statement’s falsity “did not
undermine Donohue’s ability to intelligently choose her
action concerning her debt.” Id. at 1034. We relied on the
Seventh Circuit’s decision in Hahn, which involved
comparable facts. See 557 F.3d at 757 (“[T]he difference
between principal and interest is no more important to the
7
Tourgeman also argues that summary judgment should not have been
granted to Collins and Paragon Way in light of deposition testimony given
by Walt Collins, the founder and former CEO of Collins Financial
Services, in which Mr. Collins opined that the misidentification of
Tourgeman’s original creditor violated the FDCPA. This line of argument
is foreclosed by our precedents, in which we have recognized that “we are
not bound by a witness’s opinions about the law.” Miller v. Clark Cnty.,
340 F.3d 959, 963 n.7 (9th Cir. 2003); see also McHugh v. United Serv.
Auto. Ass’n, 164 F.3d 451, 454 (9th Cir. 1999).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 21
Fair Debt Collection Practices Act than the color of the paper
that [the creditor] used.”); see also Wahl v. Midland Credit
Mgmt., Inc., 556 F.3d 643, 646 (7th Cir. 2009) (“[Plaintiff]
can’t win simply by showing that [the debt collector’s] use of
the term ‘principal balance’ is false in a technical sense; she
has to show that it would mislead the unsophisticated
consumer.”).
By contrast, in Lox v. CDA, Ltd., 689 F.3d 818 (7th Cir.
2012), the court concluded that the statement that a tribunal
could award attorneys’ fees payable by the consumer —
when, in fact, such an outcome was a legal impossibility —
was a material misrepresentation because, for the consumer
who believed that were the case, such a fact “would have
undoubtedly been a factor in his decision-making process,
and very well could have led to a decision to pay a debt that
he would have preferred to contest.” Id. at 827. And the
Sixth Circuit has held that a consumer’s allegations that she
endured “confusion and delay in trying to contact the proper
party concerning payment on her loan and resolution of [her]
problem,” which allegedly was caused by the defendant’s
false statement that a particular bank held her mortgage note,
sufficiently stated a claim under the court’s FDCPA
materiality standard. Wallace v. Wash. Mut. Bank, F.A.,
683 F.3d 323, 327–28 (6th Cir. 2012).
We are persuaded that, in the context of debt collection,
the identity of a consumer’s original creditor is a critical
piece of information, and therefore its false identification in
a dunning letter would be likely to mislead some consumers
in a material way. Unlike mislabeling portions of a total debt
as principal rather than interest — literally false, but
meaningful only to the “hypertechnical” reader, see Wahl,
556 F.3d at 645 — the factual errors in Paragon Way’s letters
22 TOURGEMAN V. COLLINS FINANCIAL SERVS.
to Tourgeman could easily cause the least sophisticated
debtor to suffer a disadvantage in charting a course of action
in response to the collection effort. See Donohue, 592 F.3d
at 1034 (a false statement violates the FDCPA if it “may
frustrate a consumer’s ability to intelligently choose his or her
response”).8
The debtor who takes Paragon Way’s letters at face value
— either because he does not remember the details
concerning his financing of a computer bought several years
beforehand, or perhaps because he never knew the identity of
his original creditor to begin with — might engage in a
fruitless attempt to investigate the facts of this non-existent
debt, in a responsible effort to determine how to most
effectively respond to the collection notice. This debtor
might, quite reasonably, contact American Investment Bank
to obtain background information so that he can remember
what had earlier transpired, or to obtain any records that the
bank holds pertaining to his debt so that he can prove he
already had paid it off, if he believes such is the case. But, of
course, American Investment Bank would have no record of
a loan agreement; and the unknown account number certainly
is of no help in getting to the bottom of things. Even if the
8
The district court was “not persuaded that the misidentification of the
original creditor, or the account number, in this case would ‘frustrate a
consumer’s ability to intelligently choose his or her response,’” because
“the least sophisticated debtor would not have recognized the original
creditor, or account number, even if they had been correctly identified in
the first instance.” Tourgeman, 2012 WL 3731807, at *5 (quoting
Donohue, 592 F.3d at 1034). This approach, however, defeats the purpose
of the least sophisticated debtor standard, which is to “ensure that the
FDCPA protects all consumers, the gullible as well as the shrewd.”
Clark, 460 F.3d at 1171 (quoting Clomon v. Jackson, 988 F.2d 1314,
1318–19 (2d Cir. 1993)) (alteration omitted) (emphases added).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 23
consumer eventually finds his way to learning that the letter
referred to the Dell debt he had incurred with CIT Online
Bank, the delay already would have cost him some portion of
the thirty days that the FDCPA grants to consumers before
having to respond to a collection notice, lest the debt collector
be entitled to assume the validity of the debt. See 15 U.S.C.
§ 1692g. And such “confusion and delay in trying to contact
the proper party concerning payment on [the] loan” is
precisely the kind of infringement of the consumer’s best
interests that the FDCPA seeks to combat. Wallace, 683 F.3d
at 327.9
By ensuring that consumers are fully and truthfully
apprised of the facts and of their rights, the FDCPA enables
them “to understand, make informed decisions about, and
participate fully and meaningfully in the debt collection
process.” Clark, 460 F.3d at 1171; see also Donohue,
592 F.3d at 1033 (“The purpose of the FDCPA [is] ‘to
provide information that helps consumers to choose
9
Debt collectors must not make representations that tend to lead
consumers to forego the valuable rights granted to them by the Act. See,
e.g., Easterling v. Collecto, Inc., 692 F.3d 229, 235 (2d Cir. 2012)
(collection letter violated section 1692e due to its “capacity to discourage
debtors from fully availing themselves of their legal rights”); Russell v.
Equifax A.R.S., 74 F.3d 30, 34–36 (2d Cir. 1996) (collection letters
violated both sections 1692g and 1692e(10) by employing language that
would tend to make consumer “uncertain as to her rights” to enjoy thirty-
day period within which to dispute debt or demand validation from debt
collector); Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1225–26
(9th Cir. 1988) (per curiam) (debt collector violated section 1692g by
overshadowing notice of thirty-day period by including language that
“promis[ed] harm to the debtor who waits beyond 10 days”).
24 TOURGEMAN V. COLLINS FINANCIAL SERVS.
intelligently.’” (quoting Hahn, 557 F.3d at 757–58)).10
Paragon Way’s false representations would likely mislead
consumers in a manner that deprives them of their right to
enjoy these benefits. We therefore hold that these letters
contained materially misleading statements that trigger
liability under section 1692e of the Act. Accordingly, the
appellant is entitled to judgment on his claims against
Paragon Way under subsections 1692e(2) and e(10).
Nelson & Kennard repeatedly suggests that a perplexed
consumer could simply place a phone call to the debt
collector to clear up any confusion. But for many consumers
— particularly those who do not even recognize that they
have encountered false information — making such a call
likely would not be their first reaction to the letter, nor does
the FDCPA require that it be so. As we have previously
explained, “consumers are under no obligation to seek
explanation of confusing or misleading language in debt
collection letters.” Gonzales, 660 F.3d at 1062 (citing Fields
v. Wilber Law Firm, P.C., 383 F.3d 562, 566 (7th Cir. 2004)).
Indeed, Nelson & Kennard’s argument, taken to its furthest
reach, would transform many of the FDCPA’s substantive
provisions into surplusage, converting any dunning letter
bearing a return address and phone number into a
10
Nelson & Kennard may be correct that the FDCPA does not require
that the original creditor be identified in collection letters sent to
consumers — but where a debt collector has chosen to identify the
original creditor, and has done so inaccurately, the false representation
would likely thwart a consumer’s ability to freely navigate a course of
action in response to the collection notice. Congress’s recognition in the
FDCPA that this information is important — even if not so essential that
debt collectors must disclose it without first being asked, see 15 U.S.C.
§ 1692g(a)(5) — supports the conclusion that its false provision could
have this type of detrimental impact on the consumer.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 25
communication not misleading by virtue of those features.
See Fields, 383 F.3d at 566 (noting that the Seventh Circuit
has “rejected the proposition that a debt collector could
provide incomplete information in a dunning letter so long as
it provided a telephone number for the debtor to call”).
Interpreting materiality in such a fashion would gut the
FDCPA’s prohibition of misleading representations, and
“[w]e must avoid a construction which renders any language
of the enactment superfluous.” Security Pac. Nat’l Bank v.
Resolution Trust Corp., 63 F.3d 900, 904 (9th Cir. 1995).
B. State Court Complaint
We next address the complaint prepared by Nelson &
Kennard and filed against Tourgeman in California state
court, which Nelson & Kennard delivered directly to
Tourgeman’s father, who then transmitted it to his son in
Mexico. Tourgeman, 2012 WL 3731807, at *2, *8–9.11
Because the one material aspect of this complaint is the same
as that which renders Paragon Way’s letters misleading —
namely, the inclusion of erroneous references to American
Investment Bank — the preceding discussion applies with
equal force to this document. The complaint presented the
information in a somewhat different format, however; the
body of the complaint twice referred to a loan agreement
between American Investment Bank and Tourgeman.
Attached to the complaint was a blank exemplar of such an
11
In Donohue, this court held that a complaint that is served directly on
a consumer qualifies as a “communication” that is subject to the strictures
of section 1692e. 592 F.3d at 1031–32. At least one court has gone
further and concluded that a complaint that is merely filed, but not actually
served, also can give rise to liability under the FDCPA. Phillips, 736 F.3d
at 1082–83.
26 TOURGEMAN V. COLLINS FINANCIAL SERVS.
agreement between the bank and a Dell Computer customer,
which featured the logos of both American Investment Bank
and Dell. Although the complaint lacked any reference to the
erroneous account number, based on the reasoning of the
preceding section of this opinion, we necessarily conclude
that Nelson & Kennard violated the Act by transmitting this
complaint to Tourgeman.
Furthermore, a consumer could be harmed by a complaint
— as opposed to a dunning letter — in ways distinct yet
equally problematic as those we have already discussed. For
example, the consumer who engages legal counsel might be
unable to accurately apprise the lawyer of the relevant
circumstances, potentially leading to lost opportunities to
settle the debt. And the stakes are undoubtedly higher when
the consumer faces the possibility of a default judgment
rather than the mere continuation of collection attempts.
C. Nelson & Kennard Letter
Finally, we come to the letter mailed to Tourgeman by
Nelson & Kennard. That letter informed him that the firm’s
client, Collins Financial Services, “ha[d] forwarded [his]
account to this office with instructions that we take
appropriate action to effect collection of the above-referenced
balances due.” The Nelson & Kennard letter did not mention
Dell. It did reference “American Investment Bank, N.A.,”
but, unlike the Paragon Way letters, it did not label the bank
as Tourgeman’s “original creditor.” Rather, both the bank’s
name and the same incorrect account number that appeared
in Paragon’s letters were placed in a “Re:” line item atop the
body of the letter. There was no explanation as to the
meaning or significance of these pieces of information.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 27
Nelson & Kennard argues that the absence of a label
informing Tourgeman that American Investment Bank was
the original creditor somehow makes the letter less
misleading than those sent by Paragon Way, because the
original creditor was not “misidentified.” On the contrary,
Nelson & Kennard’s letter gives the least sophisticated debtor
even less of a clue as to how to investigate the claim being
made against him, making it more likely that the consumer
will waste valuable time and suffer confusion in his efforts to
formulate a response. Nelson & Kennard also emphasizes
that its letter does correctly identify Tourgeman’s current
creditor — Collins Financial Services — but, in fact, the
letter simply states that Collins is the firm’s “client.” By
contrast, Paragon Way’s letters clearly describe Collins as
Tourgeman’s “current creditor.” Because the Nelson &
Kennard letter does not describe who American Investment
Bank purports to be, and as one cannot assume that the least
sophisticated debtor understands that the firm’s “client” —
Collins Financial Services — is the entity to whom he
currently owes money, the consumer might very well think
that the letter concerns a debt currently owned by American
Investment Bank. Such a misunderstanding could further
impede the consumer’s ability to exercise his rights under the
FDCPA.
Nelson & Kennard also argues that because its letter came
on the heels of the letters sent by Paragon Way — two of
which mentioned Dell Computer Corporation — a consumer
in Tourgeman’s position would know what the letter
concerned and therefore would not be misled by the absence
of any reference to Dell. We need not decide whether there
may be some circumstances in which it would be appropriate,
in determining a dunning letter’s tendency to mislead, to
consider the consumer’s receipt of earlier letters sent by a
28 TOURGEMAN V. COLLINS FINANCIAL SERVS.
different debt collector. As we already have explained,
Paragon Way’s letters were materially misleading
notwithstanding having included references to Dell. The fact
that Tourgeman had been sent the misleading Paragon Way
letters therefore does not help Nelson & Kennard.
Tourgeman also advances an independent ground for
finding that Nelson & Kennard’s dunning letter violated the
FDCPA. He alleges that the lawyer who signed the Nelson
& Kennard letter was not “meaningfully involved” in the
evaluation of Tourgeman’s case before sending a letter on
law firm letterhead. The “meaningful involvement doctrine”
— to which this court has once referred in passing, see
Gonzales, 660 F.3d at 1063, but which we have never
squarely adopted — grows out of the language in 15 U.S.C.
§ 1692e(3), which prohibits “[t]he false representation or
implication that any individual is an attorney or that any
communication is from an attorney.”12
The foundational case is Clomon v. Jackson, 988 F.2d
1314 (2d Cir. 1993). In Clomon, the defendant worked as the
part-time general counsel of a debt collection agency, and
authorized the agency to send dunning letters bearing his
name and a facsimile of his signature — even though he did
not personally review either the individual letters or the files
of the consumers to whom the letters were sent. Id. at 1316.
The Second Circuit concluded that the attorney thereby
violated subsection 1692e(3) because “the collection letters
were not ‘from’ [the defendant] in any meaningful sense of
12
The concept of “meaningful involvement” is only pertinent to claims
brought under subsection 1692e(3), not to subsection e(2) and e(10)
claims, because the phrase has developed through courts’ construction of
the unique language of e(3).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 29
that word.” Id. at 1320. Driving this conclusion, in part, was
the court’s finding that the “use of an attorney’s signature
implies — at least in the absence of language to the contrary
— that the attorney signing the letter formed an opinion about
how to manage the case of the debtor to whom the letter was
sent.” Id. at 1321. This construction of subsection 1692e(3)
has since been adopted by four other circuits. See, e.g.,
Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993,
1003 (3d Cir. 2011); Kistner v. Law Offices of Michael P.
Margelefsky, 518 F.3d 433, 438–41 (6th Cir. 2008); Taylor v.
Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238
(5th Cir. 1997); Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996).
The Seventh Circuit explained the rationale for the doctrine
this way: “An unsophisticated consumer, getting a letter from
an ‘attorney,’ knows the price of poker has just gone up.”
Avila, 84 F.3d at 229.
The district court granted summary judgment to Nelson
& Kennard on Tourgeman’s claim under subsection 1692e(3).
It assumed that the meaningful involvement doctrine was
applicable, see Tourgeman, 2012 WL 3731807, at *6, perhaps
because in an earlier decision in the case — when the action
was before another district judge on Nelson & Kennard’s
motion to dismiss the complaint — that judge had adopted the
doctrine. See Tourgeman, 2011 WL 3176453, at *8–9. In
ruling on the summary judgment motion, however, the district
court found it undisputed that the attorney who signed the
collection letters was meaningfully involved, and granted
judgment to Nelson & Kennard on the meaningful
involvement claim. 2012 WL 3731807, at *6–7.
We need not determine whether to adopt a construction of
section 1692e(3) that incorporates a requirement of
meaningful involvement by an attorney who sends a dunning
30 TOURGEMAN V. COLLINS FINANCIAL SERVS.
letter.13 We have already concluded that Nelson & Kennard
violated the FDCPA by including misleading references to
American Investment Bank in both its letter to Tourgeman
and in the state court complaint it filed against him. These
conclusions are sufficient to warrant both reversal of the
judgment granted to Nelson & Kennard and entry of
judgment in favor of Tourgeman. Because “[v]iolation of a
single [FDCPA] provision is sufficient to establish liability,”
Gonzales, 660 F.3d at 1064 n.6, we need not decide whether
Nelson & Kennard also violated subsection 1692e(3) based
on a lack of meaningful attorney involvement.14
IV. CONCLUSION
For the foregoing reasons, we conclude that the judgment
of the district court granting judgment to Collins, Paragon
Way, and Nelson & Kennard must be reversed, and that
13
For this reason, we deny the motion of the National Association of
Retail Collection Attorneys for leave to file an amicus curiae brief in
support of the appellees.
14
The only potential relevance of finding an additional violation could
be with respect to calculating the amount of statutory damages to be
awarded to Tourgeman. See Clark, 460 F.3d at 1178 (concluding that “the
fact that numerous violations of the FDCPA are predicated upon one set
of circumstances should be considered and that it is best considered during
the calculation of damages” (citing 15 U.S.C. § 1692k(a), (b))); Peter v.
GC Servs. L.P., 310 F.3d 344, 352 n.5 (5th Cir. 2002). Should there arise
a dispute with respect to damages that implicates a need to decide
Tourgeman’s claim under 1692e(3), the district court presumably will
adhere to the law of the case and apply the meaningful involvement
doctrine. But unlike the district court, we view the evidence to be
equivocal as to what the attorney did or did not do before the firm sent the
dunning letter; on this record, neither party would be entitled to summary
judgment on this claim.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 31
judgment should instead be entered for Tourgeman against
Paragon Way and Nelson & Kennard. We express no view
regarding whether Tourgeman is entitled to judgment against
Collins itself, as Tourgeman’s claims against that entity were
based on a theory of vicarious liability that was neither
decided by the district court nor briefed on this appeal. We
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
FARRIS, Circuit Judge, dissenting:
I respectfully dissent. As I view the record, the trial court
got it right. I would affirm.