In Hylkema v. Associated Credit Service Inc., 2012 WL 13681 (W.D.Wash. 2012), Judge Theiler rejected Plaintiff’s claims against a debt collector where the Plaintiff orally disputed his debt and asserted that the debt collector owed him certain affirmative obligations once he made such a dispute. The Plaintiff claimed to have experience in the debt collection industry, yet the Court found no fault in the debt collector’s conduct. As to a threat of a lawsuit, the Court applied the least sophisticated consumer standard, and rejected Plaintiff’s claim:
Section 1692e(5) of the FDCPA prohibits “[t]he threat to take any action that cannot legally be taken or that is not intended to be taken.” Plaintiff alleges defendants violated this section by threatening to sue him “when it did not intend to do so because Plaintiff’s account did not meet Defendant’s suit criteria.” ¶ . . . Plaintiff asserts, “[b]ased on [his] education, training and experience in the debt collection industry,” his knowledge that collection agencies “rarely sue consumers to enforce collection of debts.” (Dkt.26, ¶ 9.) He opines that, “in [his] experience, no agency will file suit in the absence of a verified source of garnishable income or, less frequently, real property that a lien can be attached to[,]” and states that, because ACS did not have such information about him, he is “firmly of the belief that it had no intention of suing [him].” (Id.) ¶ . . . The transcript reveals that Doe advised plaintiff to put his dispute of the debt in writing in order to avoid the possibility of litigation to collect on the debt. “The Ninth Circuit does not construe threats of litigation so broadly as to include debt collection attempts that are merely prudential reminders of the possible consequences of failure to pay.” Abels v. JBC Legal Group, P.C., 428 F.Supp.2d 1023, 1028–29 (N.D.Cal.2005). Here, the least sophisticated debtor would understand the statements made as providing “a prudential reminder” that the failure to put the dispute of the debt in writing could lead to litigation. See Wade v. Regional Credit Ass’n, 87 F.3d 1098, 1099–1100 (9th Cir.1996) (addressing a written notice stating: “ ‘If not paid TODAY, it may STOP YOU FROM OBTAINING credit TOMORROW. PROTECT YOUR CREDIT REPUTATION. SEND PAYMENT TODAY…. DO NOT DISREGARD THIS NOTICE. YOUR CREDIT MAY BE ADVERSELY AFFECTED.”; finding the language informational, not threatening, “notifying Wade that failure to pay could adversely affect her credit reputation. There was no threat to sue. The least sophisticated debtor would construe the notice as a prudential reminder, not as a threat to take action.”) See also Dunlap v. Credit Prot. Ass’n, L.P., 419 F.3d 1011, 1012–13 (9th Cir.2005) (letter from collection agency warning a debtor it was “ ‘an attempt to collect a debt’ and that ‘any information obtained will be used for that purpose,’ “ notifying the debtor that his account was past due, and informing him of his right to dispute the debt, did not violate § 1692e(5); finding the letter “at worst, only vaguely and generally implies that the reader should pay his debt in order to protect his credit rating.”) (citing Wade, 87 F.3d at 1099–1100); Hylkema v. Capital Recovery Assoc., Inc., No. C03–3686P, slip op. at 4 (W.D.Wash. Sep. 20, 2004) (Dkt.15) (a letter stating it served as ten days notice “before any legal action [ ] was recommended[ ]” and that no decision had “yet been made to pursue this claim through the courts because that option rests with our client[,]” did not constitute a threat to take unlawful action under § 1692e(5)). Indeed, when asked by plaintiff, Doe explicitly clarified she was informing him merely as to a future possibility in relation to the debt.
The Court also rejected Plaintiff’s claim that the FDCPA imposes certain credit reporting obligations on debt collectors. Instead, the Court properly followed the FTC guidelines that a sequence and subsequent reporting is required to state claim:
Section 1692e(8) of the FDCPA prohibits “[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.” ¶ . . . In Wilhelm v. Credico, Inc., 519 F.3d 416, 418 (8th Cir.2008), the Eighth Circuit found no affirmative duty to report the fact that a consumer disputed a debt absent a communication in which that fact should have been reported. Instead, “if a debt collector elects to communicate ‘credit information’ about a consumer, it must not omit a piece of information that is always material, namely, that the consumer has disputed a particular debt.” Id. (emphasis in original). The Court noted Federal Trade Commission (FTC) Staff Commentary to the FDCPA confirming its conclusion: 1. Disputed debt. If a debt collector knows that a debt is disputed by the consumer … and reports it to a credit bureau, he must report it as disputed. 2. Post-report dispute. When a debt collector learns of a dispute after reporting the debt to a credit bureau, the dispute need not also be reported. Id. (citing FTC Staff Commentary, 53 Fed.Reg. 50097–02, 50106 (Dec. 13, 1988)) (emphasis included in case citation). While the Ninth Circuit has not directly addressed this precise issue, it has implicitly recognized that § 1692e(8) prohibits the omission of information as to a dispute within the context of an actual communication to a third party. See Camacho, 430 F.3d at 1082 (“Oral dispute of a debt precludes the debt collector from communicating the debtor’s credit information to others without including the fact that the debt is in dispute.”) ¶ Here, there is no indication of a communication or threatened communication in which defendants failed to convey plaintiff’s dispute of the debt. Plaintiff, accordingly, sets forth no basis for a violation of § 1692e(8). See, e.g., Wilhelm, 519 F.3d at 418 (summary judgment properly granted where plaintiff presented no evidence of communication of credit information to credit reporting agency after defendant learned of debt dispute). The Court finds plaintiff’s cross-motion for summary judgment on his § 1692e(8) claim to lack merit, and defendants entitled to dismissal of this claim on summary judgment.