Lauren Cummings v. Jaburg & Wilk Pc

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAUREN CUMMINGS, No. 17-15521
Plaintiff-Appellant, D.C. No. 2:15-cv-02005-SMM
v.
MEMORANDUM*
JABURG & WILK PC,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted February 12, 2018**
San Francisco, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and JACK,*** District
Judge.
Lauren Cummings appeals from the District Court’s grant of summary
judgment in favor of Jaburg & Wilk PC (“JWPC”), a debt collection law firm, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
denial of her motion for judgment on the pleadings1 on her Fair Debt Collection
Practices Act (“FDCPA”) claims under 15 U.S.C. §§ 1692e and 1692f. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
1. JWPC did not provide a false, deceptive, or misleading representation
under 15 U.S.C. § 1692e when it inadvertently understated the amount Cummings
owed by $20 in its state court complaint. The failure to include a $20 late charge
in an auto financing debt totaling over $9,000 is not material, cf. Afewerki v. Anaya
Law Grp., 868 F.3d 771, 777 (9th Cir. 2017) (“$3,000 overstatement of the
principal due in the state court complaint, exacerbated by the statement of an
inflated interest rate, was material.”), and the alleged “misrepresentation” did not
undermine Cummings’ “ability to intelligently choose . . . her response” to the
complaint, Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010).
Accordingly, the district court did not err in granting summary judgment on her §
1692e claims.
2. Nor did JWPC’s application for $266.50 in attorneys’ fees to amend its
state court complaint to include the $20 late fee violate 15 U.S.C. § 1692f,
notwithstanding JWPC’s own mistake. “Under the FDCPA, a debt collector
cannot collect ‘any amount (including any interest, fee, charge, or expense
1
Cummings appeals both the grant of JWPC’s motion for summary judgment and
the denial of her motion for judgment on the pleadings. Cummings’s arguments
apply to both rulings and accordingly, the arguments are addressed together below.
2
incidental to the principal obligation) unless such amount is expressly authorized
by the agreement creating the debt or permitted by law.’” Reichert v. Nat’l Credit
Sys., Inc., 531 F.3d 1002, 1005 (9th Cir. 2008) (quoting 15 U.S.C. § 1692f(1))
(emphasis added). Here, Cummings admits she agreed to pay “reasonable”
attorneys’ fees. Because JWPC’s request for attorneys’ fees was reasonable in
relation to the litigation and authorized under Ariz. Rev. Stat. § 12-341.01, we
affirm the district court’s dismissal. See Reyes v. Kenosian & Miele, LLP, 619 F.
Supp. 2d 796, 808 (N.D. Cal. 2008) (“Given that Defendants were entitled to
attorney’s fees, the request for such fees would not be unfair or unconscionable to
the least sophisticated debtor.”).
Costs are awarded to Defendant-Appellee.
AFFIRMED.
3