In Plumb v. Prof’l Account Servs., No. 3:19-cv-00085-SLG, 2020 U.S. Dist. LEXIS 84064, at *7 (D. Alaska May 13, 2020), Judge Gleason dismissed an FDCPA action based on communications between counsel.
Counts I and II of the FAC arise from Ms. Sanders’s fax to Plaintiff’s counsel (“the Fax”). In Count I, Plaintiff alleges that the Fax falsely represents that Ms. Sanders was acting on behalf of MSRMC, when, in fact, she was acting on behalf of PAS; Plaintiff alleges that therefore, the Fax violates 15 U.S.C. § 1692(e)(10)’s prohibition against use of a false representation in connection with collecting a debt. In Count II, Plaintiff alleges that the Fax fails to disclose that it is from a debt collector, in violation of § 1692(e)(11). Defendants contend that both counts based on the Fax should be dismissed. Citing to the Ninth Circuit’s decisions in Guerrero v. RJM Acquisitions LLC and Donohue v. Quick Collect, Inc., Defendants contend that the Fax is not actionable under the FDCPA because it is a communication directed solely to an attorney. In Guerrero, the plaintiff sued the purchaser of his consumer debt for violations of the FDCPA, including for misrepresenting to the plaintiff’s counsel that it was not a debt collection agency, in violation of § 1692(e). In reversing the district court’s denial of the defendant’s motion to dismiss, the Ninth Circuit held “that communications directed solely to a debtor’s attorney are not actionable under the Act” and, therefore, the “letter to counsel . . . was not a prohibited collection effort and did not violate . . . [§] 1692(e).” Defendants contend that the Fax—as a communication directed solely to Mr. Plumb’s attorney—”cannot be a basis for a claim under the FDPCA” as it is “squarely within the scope of Guerrero.” Defendants emphasize the Ninth Circuit’s observations in Guerrero that the FDCPA treats a consumer separately from a consumer’s attorney, that the FDCPA is intended to prevent “harassment, deception, and other abuse,” and that “when an attorney is interposed as an intermediary between a debt collector and a consumer, [a court] assume[s] the attorney, rather than the FDCPA, will protect the consumer from a debt collector’s fraudulent or harassing behavior.” In his opposition to Defendants’ motion, Plaintiff maintains that the Fax falls within a narrow exception to the Guerrero rule. Plaintiff seizes on the following statement in Guerrero: “we hold that communications directed only to a debtor’s attorney, and unaccompanied by any threat to contact the debtor, are not actionable under the Act.” From this statement, Plaintiff posits that “where a communication otherwise directed only to a debtor’s attorney is accompanied by ‘any threat to contact the debtor,’ it is actionable.” Plaintiff contends that the Fax contains an “express threat” insofar as it states: “[p]lease verify if the patient needs to be contacted for the balance.” Plaintiff thus maintains that the Fax is subject to the FDCPA. In their reply brief, Defendants contend that “not a single court in Guerrero‘s thirteen-year history has analyzed or applied the ‘unaccompanied by any threat to contact the debtor’ language.” Defendants posit that Guerrero [*10] ‘s reference to a “threat to contact the debtor” relates to § 1692c(a)(2) of the FDCPA, which prohibits a debt collector from contacting a debtor directly if they know the debtor is represented by counsel. The Court agrees with Defendants that it is not clear whether Guerrero created an exception (to the exception) for communications to attorneys that contain a threat to contact the debtor. For one thing, the statement is to some degree dicta, in that the communication to the lawyer in Guerrero did not make any reference to contacting the debtor. Moreover, earlier in its opinion, the Guerrero court held, without caveats or carveouts, “that communications directed solely to a debtor’s attorney are not actionable under the Act.” In support of its holding, the Guerrero court cited several out-of-circuit decisions, concluding that “[a]ll but one published federal decision to have given reasoned consideration to the question has determined that communications to a debtor’s attorney are not actionable under the Act.” And apart from Tromba v. M.R.S. Assoc., the cited cases do not carve out any exceptions to the attorney rule for communications that include a threat to contact the debtor. And while a review of district court decisions relying on Guerrero suggests that some courts have interpreted Guerrero as creating the disputed exception, none elaborated on the exception or concluded that a particular communication fell within such an exception. However, this Court need not determine whether such an exception exists because it finds that the Fax does not contain a “threat to contact the debtor.” A threat implies a statement of some future outcome or harm; it is a “statement of some . . . bad thing that will happen in the future” and an “indication of an approaching menace . . . the suggestion of an impending detriment.” Here, the allegedly threatening language in the Fax—”[p]lease verify if the patient needs to be contacted for the balance or is the case still ongoing with your office?”—is framed as a question and indicates that the sender is aware that Plaintiff may be represented, and thus off-limits, and seeks to confirm as much. This inquiry does not suggest future menace or harm, nor any intent to take action to make contact with the debtor absent confirmation from counsel. Thus, even accepting the factual allegations in the FAC as true, the language of the Fax simply does not constitute a threat. Plaintiff also asserts that the Guerrero court’s rationale for exempting from the FDCPA‘s purview communications made solely to an attorney—that “[u]nsophisticated consumers are easily bullied and misled” and that “[t]rained attorneys are not”—does not apply when there has been “an affirmative misrepresentation concerning the identity of a person sending a communication.” Plaintiff posits that “it does not logically follow that a trained attorney would be able to detect an affirmative misrepresentation concerning the identity of a person sending a communication to him.” However, the Ninth Circuit in Guerrero did not create an exception for misrepresentations. Rather, it concluded that: “Section 1692e prohibits debt collectors from ‘us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt.’ We do not disagree with the dissent that such prohibited representations or means may take the form of a communication. But we hold that communications directed only to a debtor’s attorney, and unaccompanied by any threat to contact the debtor, are not actionable under the Act.” Based on the plain language of Guerrero, the Court concludes that its holding applies to any false, deceptive, or misleading representation made to an attorney in connection with the collection of a debt, including fraudulent representations concerning the identity of the sender. In light of the foregoing, the Court finds that the Fax is not subject to the FDCPA. Because the recipient and the content of the communication are not disputed, the Court finds that any amendment to the complaint would be futile; Plaintiff cannot cure the defect in his allegations without contradicting the operative complaint. Defendants are therefore entitled to judgment on the pleadings on Counts I and II of the FAC.