In Diaz v. Kubler Corp, 2015 WL 2214634, — F.3d. – (9th Cir. 2015), the Court of Appeals for the Ninth Circuit found that a debt collector’s dunning letter did not violate the FDCPA/Rosenthal Act by seeking collection of statutory pre-judgment interest in addition to the liquidated debt.
It is quite plain that Kubler would have been entitled to prejudgment interest under California law when it sent its collection letter if the debt in question was certain or capable of being made certain at that time, even if Kubler had not yet obtained a judgment from a court. Section 3287(a) allows recovery of interest from the time the creditor’s right to recover “is vested,” and we have previously explained that “California cases uniformly have interpreted the ‘vesting’ requirement as being satisfied at the time that the amount of damages become certain or capable of being made certain, not the time liability to pay those amounts is determined.” Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 921 (9th Cir.2009) (collecting cases); see also Cataphora Inc. v. Parker, 848 F.Supp.2d 1064, 1072 (N.D.Cal.2012) (discussing California cases and reaching same conclusion). “Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.” Leff v. Gunter, 658 P.2d 740, 748 (Cal.1983) (citation omitted). Consequently, prejudgment interest under section 3287(a) becomes available as of the day the amount at issue becomes “calculable … mechanically, on the basis of uncontested and conceded evidence,” and it is available “as a matter of right,” rather than at the discretion of a court. Id. at 748, 749. . . . The district court’s grant of summary judgment was based on an incorrect reading of section 3287. Summary judgment in Diaz’s favor might still have been appropriate if it were undisputed that Diaz’s debt was not certain or capable of being made so, thus rendering section 3287(a) inapplicable. But the district court made no such determination, apart from citing a declaration from Diaz in a footnote to its recitation of facts, in which she claimed that she believed Parkway was “attempting to collect more than what [she] owed.” Given Kubler’s insistence that the debt was in fact certain—a claim supported by documents from Diaz’s insurer and a small claims court settlement with Parkway that she entered into—Diaz’s conclusory statement is not the grist of undisputed material fact. If Kubler is correct that the debt was certain by May 2012, the attempt to seek prejudgment interest in the collection letter was “permitted by law,” and did not cross 15 U.S.C. § 1692f(1) or the Rosenthal Act. Nor is it the case that a debt collector must generally be entitled by judgment to a type of relief in order for that relief to be “permitted by law” within the meaning of 15 U.S.C. § 1692f(1). To hold that a debt collector must have a judgment in hand in order for the relief it seeks to be “permitted by law” would lead to untenable results, given the fact that § 1692f(1) can be violated by the filing of a lawsuit that seeks to collect an amount not authorized by the debt agreement or permitted by law. See Heintz v. Jenkins, 514 U.S. 291, 294 (1995) (holding that the FDCPA “applies to the litigating activities of lawyers”); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031–32 (9th Cir.2010) (“We … conclude that a complaint served directly on a consumer to facilitate debt-collection efforts is a communication subject to the requirements of §§ 1692e and 1692f.”). If a prior court judgment were a sine qua non for relief to be “permitted by law,” a person would not be able to file a lawsuit seeking prejudgment interest unless she had already obtained a judgment awarding prejudgment interest. Nothing in § 1692f(1) requires this Catch–22. We conclude that Kubler’s debt collection letter did not violate 15 U.S.C. § 1692f(1) or the Rosenthal Act.2 We reverse the district court’s grant of summary judgment against Kubler and remand for further proceedings consistent with this opinion.