Iorio v. Check City P'ship, LLC C/W 64180

 claim upon which relief may be granted" and dismissed her complaint
pursuant to NRCP 12(b)(5). Iorio argues that the district court's decision
was in error because Check City violated NRS 604A.415 and invaded
Iorio's privacy.
Dismissing a complaint pursuant to NRCP 12(b)(5) is
appropriate "only if it appears beyond a doubt that [the plaintiff] could
prove no set of facts, which, if true, would entitle [the plaintiff] to relief."
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670,
672 (2008). However, if matters outside the pleadings are considered, this
court reviews a dismissal order as though it were an order granting
summary judgment. Witherow v. State Bd. of Parole Comm'rs, 123 Nev.
305, 307-08, 167 P.3d 408, 409 (2007); see also NRCP 12(b). Summary
judgment must be granted when the pleadings and evidence in the record
"demonstrate that no genuine issue as to any material fact [remains] and
that the moving party is entitled to a judgment as a matter of law."
Witherow, 123 Nev. at 308, 167 P.3d at 409 (alteration in original)
(internal quotations omitted). "A genuine issue of material fact
exists . . . when a reasonable jury could return a verdict for the nonmoving
party." Id.
Here, the district court considered matters outside the
pleadings when it granted Check City's motion to dismiss, or alternatively,
for summary judgment. Accordingly, we review the district court's order
dismissing Iorio's complaint as though it granted summary judgment.
Iorio has failed to demonstrate that Check City violated NRS
6044.415
Chapter 604A of the Nevada Revised Statutes regulates short
term lending in Nevada. When a licensed lending institution's customer
defaults on a loan and the licensee attempts to collect the debt owed, the
SUPREME COURT
OF
NEVADA
2
(0) 1947A m(e414)
"licensee must act in accordance with and must not violate sections 803 to
812, inclusive, of the federal Fair Debt Collection Practices Act, as
amended, 15 U.S.C. §§ 1692a to 1692j, inclusive." NRS 604A.415(1). The
parties do not dispute that Check City is a licensed lending institution
under NRS 604A. The Fair Debt Collection Practices Act (FDCPA) defines
"debt collector" as "any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is
the collection of any debts . . ." 1 15 U.S.C. § 1692a(6) (2012). 2
Iorio first contends that Check City violated 15 U.S.C. §§
1692c(a)(1) and 1692c(a)(3) of the FDCPA by contacting her at her place of
employment after she orally revoked her prior consent to be contacted
there. If a debt collector has the consent of the consumer or a court's
express permission, the debt collector can contact the consumer at an
unusual time or place known to be inconvenient or at the consumer's place
of employment. 15 U.S.C. §§ 1692c(a)(1), (3) (2012). A violation occurs if
the debt collector does not have the consumer's consent or the express
permission of a court of competent jurisdiction. Id. at § 1692c(a). In
addition, a consumer must notify the debt collector in writing if the
consumer wishes to terminate communications from a debt collector. Id.
at § 1692c(c).
IA person "may include labor organizations, partnerships,
associations, corporations, legal representatives, trustees, trustees in
bankruptcy, or receivers." Black's Law Dictionary 1142 (6th ed. 1990).
2 Check City asserts that it is not a debt collector as defined by the
FDCPA but acknowledges that it is still subject to the FDCPA pursuant to
NRS 604A.415(1), which explicitly mandates that licensed lending
institutions are subject to 15 U.S.C. §§ 1692a to 1692j.
SUPREME COURT
OF
NEVADA
3
(0) 1947A 40o
The record clearly demonstrates that Iorio entered into a loan
agreement with Check City authorizing Check City to communicate with
third parties regarding her debt and to contact her at work. However,
there is no indication in the record that Iorio notified Check City in
writing to cease communications at her workplace. As a result, Iorio has
failed to demonstrate that Check City violated § 1692c(a)(1) or §
1692c(a)(3).
Iorio also contends that Check City made misleading legal
threats in violation of 15 U.S.C. § 1692e(5), and that its failure to identify
itself as a debt collector in communications violated § 1692e(11). "A debt
collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt." 15 U.S.C. § 1692e
(2012). Section 1692e(5) prohibits "[t]he threat to take any action that
cannot legally be taken or that is not intended to be taken."
Here, Check City contacted Iorio at work on three occasions.
On each occasion, the caller left a voicemail message for Iorio identifying
herself and stating that she was with Check City. On the third occasion,
Check City's representative left a message stating that "[i]f [she did] not
hear from [Iorio] by 5 PM," she would "forward [the matter] to the
attorney's office on Monday." After receiving no response to this voicemail
message from Iorio, Check City filed its complaint within approximately
six weeks after leaving the allegedly misleading voicemail message.
Because Check City could, and in fact did, take legal action against Iorio
pursuant to NRS 604A.415(1) and (2), Iorio has also failed to demonstrate
that Check City violated § 1692e(5).
Pursuant to § 1692e(11), a debt collector violates the FDCPA
when it fails to disclose "that the debt collector is attempting to collect a
SUPREME COURT
OF
NEVADA
4
(0) 1.947A
debt and that any information obtained will be used for that
purpose . . [and/or] that the communication is from a debt collector."
However, explicitly excluded from the FDCPA's definition of "debt
collector" is "any officer or employee of a creditor while, in the name of the
creditor, collecting debts for such creditor." 15 U.S.C. § 1692a(6)(A)
(2012). A creditor is "any person who offers or extends credit creating a
debt or to whom a debt is owed." Id. at § 1692a(4).
Here, while Check City may not be a debt collector as defined
by the FDCPA, it does meet the FDCPA's definition of a creditor. As such,
we conclude that Check City's employees were attempting to collect a debt
"in the name of the creditor." Id. at 1692a(6)(A). 3
3 Moreover, even if Check City's employees failed to disclose that
they were calling to collect a debt for Check City, Iorio was not an
unsophisticated consumer who reasonably would not have known what
these calls were about. Pursuant to McCollough v. Johnson, Rodenburg &
Lauinger, LLC, 637 F.3d 939, 952 (9th Cir. 2011), "[t]he FDCPA measures
a debt collector's behavior according to an objective 'least sophisticated
debtor' standard, . . . ensur[ing] that the FDCPA protects all consumers,
the gullible as well as the shrewd, the ignorant, the unthinking, and the
credulous." (internal quotations omitted). However, "even the least
sophisticated consumer can be presumed to possess a rudimentary amount
of information about the world." Gammon v. GC Servs. Ltd. P'ship, 27
F.3d 1254, 1257 (7th Cir. 1994) (internal quotations omitted).
Here, Iorio entered into a loan contract with Check City and then
wrote three checks to Check City to pay back loans she took out pursuant
to the contract. After the checks were dishonored by Iorio's bank, Check
City immediately demanded repayment from Iorio by sending her notices
for the returned checks. Because Iorio is the person who entered into the
loan contract with Check City, wrote three checks payable to Check City to
pay back loans obtained pursuant to the contract, and those checks were
returned by Iorio's bank to Check City, she knew or should have known
that Check City was calling to collect a debt. In addition, at the time she
entered into the loan contract with Check City, Iorio was employed as a
continued on next page...
SUPREME COURT
OF
NEVADA
5
(0) 1947A
lorio did not sufficiently demonstrate that Check City invaded her
privacy by intrusion upon seclusion
Iorio next argues that she had a reasonable expectation of
privacy at her place of employment because she orally revoked her
previous consent to be contacted at work. We disagree.
In order for an individual to bring a claim for invasion of
privacy based on intrusion upon seclusion, the individual must show: "1)
an intentional intrusion (physical or otherwise); 2) on the solitude or
seclusion of another; 3) that would be highly offensive to a reasonable
person." PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 630, 895 P.2d 1269,
1279 (1995), overruled on other grounds by City of Las Vegas Downtown
Redev. Agency v. Hecht, 113 Nev. 644, 650, 940 P.2d 134, 138 (1997).
As discussed above, Iorio consented to be contacted at work
when she entered into the loan contract with Check City, and this consent
was not revoked in writing as required under 15 U.S.C. § 1692c(c).
Accordingly, she did not have a reasonable expectation of privacy at her
place of work. In addition, Iorio does not address the third element—
whether Check City's actions would be "highly offensive to a reasonable
person," PETA, 111 Nev. at 630, 895 P.2d at 1279, and we thus do not
consider whether this element has been met. See Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
(stating that this court need not consider claims that are not cogently
argued or supported by relevant authority). Since Iorio has failed to prove
...continued
processor by a consumer debt relief law firm in the firm's loan
modification department. Accordingly, any claim that Check City violated
the FDCPA during its phone calls to Iorio at her place of work by failing to
fully identify itself as a debt collector is without merit.
SUPREME COURT
OF
NEVADA
6
(0) I947A 4NO>
each of the three required elements, we conclude that her claim for
invasion of privacy based on intrusion upon seclusion fails.
Because Iorio has failed to demonstrate that Check City
violated NRS 604A.415, or sufficiently prove her claim for invasion of
privacy based on intrusion upon seclusion, the district court correctly
found that Iorio failed to put forth any facts that would entitle her to
relief. We therefore conclude that the district court did not err in granting
Check City's motion for summary judgment pursuant to NRCP 56(c).
The district court did not abuse its discretion by granting Check City's
motion for Rule 11 sanctions and for attorney fees pursuant to NRS
18.010(2)(b)
This court reviews a district court's decision to award attorney
fees pursuant to NRCP 11 and NRS 18.010(2)(b) for an abuse of discretion.
Bergmann v. Boyce, 109 Nev. 670, 674-76, 856 P.2d 560, 563-64 (1993). A
district court abuses its discretion when it acts "in clear disregard of the
guiding legal principles." Id. at 674, 856 P.2d at 563.
Iorio argues that because her claims are meritorious and were
not filed for any improper purpose, the district court abused its discretion
by imposing Rule 11 sanctions against her and awarding attorney fees to
Check City pursuant to NRS 18.010(2)(b). We disagree.
"NRCP 11 sanctions should be imposed for frivolous actions."
Bergmann, 109 Nev. at 676, 856 P.2d at 564. In order to determine
whether a claim is frivolous, the district court must conduct a two-pronged
analysis: "(1) the court must determine whether the pleading is well
grounded in fact and is warranted by existing law or a good faith
SUPREME COURT
OF
NEVADA
7
(0 1947A
argument for the extension, modification or reversal of existing law;[ 4] and
(2) whether the attorney made a reasonable and competent inquiry." Id.
(internal quotations and citation omitted). Additionally, if a district court
imposes sanctions, it must describe the conduct it determined violated
NRCP 11 and "explain the basis for the sanction imposed." NRCP 11(c)(3).
Before reaching its decision in this case, the district court
thoroughly reviewed the parties' pleadings and conducted hearings on
both Check City's motion to dismiss and its motion for sanctions and
attorney fees, giving the parties an adequate opportunity to present the
merits of their case. See Baldonado v. Wynn Las Vegas, LLC, 124 Nev.
951, 967-68, 194 P.3d 96, 106 (2008) (stating that the appropriateness of
attorney fees awarded pursuant to NRS 18.010(2)(b) "requires the court to
inquire into the actual circumstances of the case").
Moreover, at the hearing on its sanctions motion, Check City
presented evidence showing that its attorney requested on more than one
occasion that Iorio's attorney explain the legal basis for his client's claims
against Check City because those claims did not appear to be well
grounded in existing law. Check City even went so far as to warn Iorio's
attorney that it would file a motion for sanctions and attorney fees since
Iorio's claims were not warranted by law. As Check City pointed out, the
4Attorney fees awarded pursuant to NRS 18.010(2)(b) requires an
analysis similar to this first prong. See Baldonado v. Wynn Las Vegas,
LLC, 124 Nev. 951, 967, 194 P.3d 96, 106 (2008) (stating that attorney fees
are appropriate under NRS 18.010(2)(b) if the court "finds that a claim
was frivolous or brought or maintained without reasonable ground or to
harass the prevailing party"); see also NRS 18.010(2)(b) (permitting an
award of attorney fees to the prevailing party "when the court finds that
the claim . . . was brought or maintained without reasonable ground or to
harass the prevailing party").
SUPREME COURT
OF
NEVADA
8
(0) 1947A
law firm representing Iorio holds itself out as specializing in consumer
debt relief, and, as such, Iorio's attorney should have been familiar with
the requirements of NRS 604A.415 and the FDCPA. There is no
indication in the record to illustrate that Iorio's attorney ever provided a
satisfactory response; rather, he simply referred Check City back to the
general allegations in Iorio's complaint.
We conclude that the district court conducted the proper two-
prong analysis, and that the court's decision to grant Rule 11 sanctions
and award attorney fees to Check City pursuant to NRS 18.010(2)(b) was
not an abuse of discretion, especially in light of its proper order granting
summary judgment. 5
Accordingly, for the reasons set forth above, we
ORDER the judgment of the district court AFFIRMED.
5 Iorio also contends that the district court's order is deficient
because it does not provide a basis for the sanctions as required by NRCP
11(c)(3); however, we conclude that this argument is without merit. The
district court specifically concluded that Check City was entitled to Rule
11 sanctions because Iorio's complaint was "not supported by existing law
and was presented for an improper purpose." The court further concluded
that Check City was entitled to attorney fees pursuant to NRS
18.010(2)(b) because Iorio's complaint was "filed without reasonable
grounds and to harass" Check City.
SUPREME COURT
OF
NEVADA
9
(0) 1947A cfgrap
cc: Hon. Douglas Smith, District Judge
Janet Trost, Settlement Judge
Haines & Krieger, LLC
Bailey Kennedy
Holland & Hart LLP/Las Vegas
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
10
(0) 1947A 40.,