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Enriquez v. U.S. Collections West Inc.

United States District Court, D. Arizona

December 15, 2016

Xochitl Enriquez, Plaintiff,
v.
U.S. Collections West Incorporated, et al., Defendants.

          ORDER

          HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendants Alan Zimmerman and Alan H. Zimmerman, P.C.'s (collectively “Zimmerman Defendants”) motion to dismiss. (Doc. 46.) For the following reasons, the motion is granted.

         BACKGROUND

         On October 12, 2009, Plaintiff Xochitl Enriquez entered into a written lease agreement with Desert Point Apartments (“DPA”) for a residential apartment. (Doc. 37 at ¶ 4.) After Plaintiff abandoned the apartment, DPA sued Plaintiff for eviction and obtained a money and possession judgment against Plaintiff in the amount of $1, 460.30 on July 26, 2010. (Id. at ¶¶ 5-8.) On August 11, 2010, DPA sent a demand letter to Plaintiff, demanding $2, 251.38 in satisfaction of her lease obligation. (Id. at ¶ 11.)

         However, on November 19, 2013, DPA assigned its judgment for collection to U.S. Collections West Incorporated (“USCW”), who then hired the Zimmerman Defendants to collect the judgment from Plaintiff. (Id. at ¶ 12.) On June 30, 2015, the Zimmerman Defendants renewed the judgment in the amount of $2, 228.33 including interest. (Id. at ¶ 14.) Subsequently, on July 21, 2015, the Zimmerman Defendants sent a demand to the Plaintiff (“the letter”) requesting this amount. (Id. at ¶15.) The single page letter consists of three paragraphs. The letter all in capital letters using a uniform size and typeface. It is not disputed by the parties that the text of the letter states:

PURSUANT TO A.R.S., 12-1598.03, DEMAND IS HEREBY MADE UPON YOU FOR PAYMENT OF THE JUDGMENT BALANCE OF $2, 228, 33 OR A PAYMENT EACH AND EVERY PAYDAY OF 25% OF YOUR NON-EXEMPT WAGES COMMENCING WITHIN FIFTEEN (15) DAYS OF THE DATE OF THIS LETTER AND CONTINUING UNTIL THE JUDGMENT BALANCE PLUS INTEREST HAS BEEN PAID IN FULL.
YOU ARE FURTHER ADVISED THAT UNLESS YOU, WITHIN THIRTY (30) DAYS AFTER RECEIPT OF THIS NOTICE, DISPUTE VALIDITY OF THE DEBT, OR ANY PORTION THEREOF, WE WILL ASSUME THAT THE DEBT IS VALID. IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN THE THIRTY DAY PERIOD THAT THE DEBT, OR ANY PORTION THEREOF, IS DISPUTED, WE SHALL OBTAIN VERIFICATION OF THE DEBT AND A COPY OF SUCH VERIFICATION WILL BE MAILED BY U.S. TO YOU. IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN THIS THIRTY (30) DAY PERIOD, WE WILL PROVIDE YOU THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR IF DIFFERENT FOR [SIC] THE CURRENT CREDITOR. THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.
THE LAW DOES NOT REQUIRE ME TO WAIT UNTIL THE END OF THE THIRTY DAY PERIOD, BUT ONLY THE FIFTEEN DAY PERIOD, BEFORE COMMENCING WAGE GARNISHMENT PROCEEDINGS. IF, HOWEVER, YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY DAY PERIOD THAT BEGINS WITH YOUR RECEIPT OF THIS LETTER, THE LAW REQUIRES ME TO SUSPEND MY EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL I MAIL THE REQUESTED INFORMATION TO YOU.

(Doc. 46-1 at 2.)

         On March 22, 2016, Plaintiff filed an Amended Complaint against the Zimmerman Defendants alleging that this letter violated the requirements of the Fair Debt Collection Practices Act (“FDCPA”) because the letter cited a state statute “in support of its allegation that Plaintiff was statutorily required to tender 25% of her take home pay to USCW.” (Doc. 37 at ¶¶ 15, 24.). Plaintiff also alleges that the “demand letter also violated the FDCPA by overshadowing her right to dispute the alleged debt within thirty days from receipt of the letter” by suggesting that Defendants would begin garnishment proceedings within fifteen days if she had not otherwise agreed to pay the debt in its entirety or pay installments thereon. (Id. at ¶¶ 16, 24.)

         Neither of these assertions withstands Defendants' motion to dismiss.

         DISCUSSION

         I. Legal Standard

         The Parties have submitted a copy of the letter upon which Plaintiff bases her claim without dispute. And whether the text of a demand letter violates the FDCPA is a question of law for the court. Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997). A communication from a creditor to a debtor violates the FDCPA if the communication was “likely to deceive or mislead a hypothetical ‘least sophisticated debtor.'” Wade v. Reg'l Credit Ass'n, 87 F.3d 1098, 1100 (9th Cir. 1996) (quoting Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988)). “The objective least sophisticated debtor standard is ‘lower than simply examining whether particular language would deceive or mislead a reasonable debtor.'” Terran, 109 F.3d at 1432-33 ...


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