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Hernandez v. Williams, Zinman & Parham PC

United States Court of Appeals, Ninth Circuit

July 20, 2016

Maria Hernandez, on behalf of herself and all others similarly situated, Plaintiff-Appellant,
v.
Williams, Zinman & Parham PC, Defendant-Appellee.

          Argued and Submitted March 17, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding D.C. No. 2:12-cv-00731-SMM

          Aaron D. Radbil (argued), Greenwald Davidson PLLC, Boca Raton, Florida, for Plaintiff-Appellant.

          Victoria Orze (argued), Anne L. Tiffen, and Charles H. Oldham, Dickinson Wright PLLC, Phoenix, Arizona, for Defendant-Appellee.

          Kristin Bateman (argued), Attorney; Nandan M. Joshi, Senior Litigation Counsel; To-Quyen Truong, Deputy General Counsel; Meredith Fuchs, General Counsel; Consumer Financial Protection Bureau, Washington, D.C.; for Amicus Curiae Consumer Financial Protection Bureau.

          Burke W. Kappler, Colin Hector, and Thomas E. Kane, Attorneys; David C. Shonka, Principal Deputy General Counsel; Jonathan E. Nuechterlein, General Counsel; Federal Trade Commission, Washington, D.C.; for Amicus Curiae Federal Trade Commission.

          Before: John T. Noonan, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.

         SUMMARY[*]

         Fair Debt Collection Practices Act

         The panel reversed the district court's summary judgment in favor of the defendant in an action under the Fair Debt Collection Practices Act.

         The Act requires that within five days of "the initial communication" with a consumer about the collection of a debt, a debt collector must send the consumer a notice containing specific disclosures. The panel held that this requirement, set forth in 15 U.S.C. § 1692g(a), does not apply only to the initial debt collector that tries to collect, but also applies to subsequent collectors that communicate about the same debt.

          OPINION

          FRIEDLAND, Circuit Judge:

         The Fair Debt Collection Practices Act ("FDCPA") requires that within five days of "the initial communication" with a consumer about the collection of a debt, a debt collector must send the consumer a notice containing specified disclosures. 15 U.S.C. § 1692g(a). The question presented here is whether the phrase "the initial communication" as used in the FDCPA means the first communication from the initial debt collector that tries to collect, or whether it means the first communication a consumer receives from any collector about a debt, including subsequent collectors that communicate about the same debt.

         Applying well-established tools of statutory interpretation and construing the language in § 1692g(a) in light of the context and purpose of the FDCPA, we hold that the phrase "the initial communication" refers to the first communication sent by any debt collector, including collectors that contact the debtor after another collector already did. In other words, if there are multiple debt collectors that try to collect a debt, each one must send the required notice after its first communication with the alleged debtor about the debt. Because the district court held otherwise, we reverse and remand for further proceedings.

         I.

         This case began with a loan that Maria Hernandez took out to finance an automobile purchase. After Hernandez stopped making payments on the loan, Thunderbird Collection Specialists, Inc. ("Thunderbird"), a debt collector, sent her a letter seeking to collect the debt. Hernandez did not respond to the letter.

         Following Thunderbird's unsuccessful attempt to collect Hernandez's debt, Thunderbird retained the law firm Williams, Zinman & Parham PC ("WZP") as counsel to assist in its collection efforts. In December 2011, WZP sent Hernandez a collection letter, which was its initial communication with her. The letter notified Hernandez that WZP, a debt collector, represented Thunderbird regarding a debt incurred by Hernandez with the original creditor.[1] While it informed Hernandez that she could dispute the debt or request additional information about the original creditor, it did not tell her that she could do so only in writing.

         Hernandez filed the instant lawsuit against WZP in the United States District Court for the District of Arizona as a putative class action, alleging that WZP violated the FDCPA by sending a debt collection letter that lacked the disclosures required under § 1692g(a) of the FDCPA. That section provides in full:

(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty day period, the debt collector will provide the consumer with the name and address of the original ...

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