In Brown v. Transworld Sys., Inc., No. 22-35244, 2023 WL 4536970, at *4–5 (9th Cir. July 14, 2023), the Court of Appeals for the 9th Circuit affirmed its prior decision in Walls v. Wells Fargo.
We held that Walls did not preclude his claim because “whether an unfair debt collection practice occurred does not depend on issuance or enforcement of the discharge order.” Id. at 716. Rather, “even if Manikan had never received a discharge in his bankruptcy case, he could still assert [that the defendant] acted unlawfully by attempting to collect a debt that he fully satisfied.” Id. at 717. His FDCPA claims were “therefore premised on a wholly independent theory of relief.” Id. Unlike in Walls, the FDCPA claims in Manikan were not “inextricably intertwined with bankruptcy issues.” Id. Brown cannot make the same argument. His theory is identical to the one presented in Walls: that the Defendants violated the discharge order by attempting to collect debts that were discharged. See Walls, 276 F.3d at 504. Such a claim necessarily requires a determination of whether the debt was discharged, which is “within the exclusive jurisdiction of the bankruptcy court.” Banks v. Gill Dist. Ctrs., Inc., 263 F.3d 862, 868 (9th Cir. 2001). As in Walls, Brown’s claim is “premised on a violation of a bankruptcy discharge order.” Manikan, 981 F.3d at 716. Indeed, Brown’s definition for his proposed FDCPA class requires that each class member received a bankruptcy discharge. Allowing Brown’s FDCPA claims to proceed would “circumvent the remedial scheme of the [Bankruptcy] Code under which Congress struck a balance between the interests of debtors and creditors by permitting (and limiting) debtors’ remedies for violating the discharge injunction to contempt.” Walls, 276 F.3d at 510. Brown’s Count I claim thus fails on this theory.
The Court of Appeals also explained what constitutes a separate violation under the FDCPA’s “continuing violation” theory of statute of limitations jurisprudence.
Although we perhaps have not yet said so explicitly, every alleged FDCPA violation triggers its own one-year statute of limitations as provided in § 1692k(d). See Bouye v. Bruce, 61 F.4th 485, 490, 491 n.5 (6th Cir. 2023) (explaining that at least five circuits “adhere to the view that every alleged violation of the FDCPA has its own [one-year] statute of limitations”); Solomon v. HSBC Mortg. Corp., 395 F. App’x 494, 497 (10th Cir. 2010) (collecting cases) (“For statute-of-limitations purposes, discrete violations of the FDCPA should be analyzed on an individual basis.”). This rule is clear from the text of the statute. Under the FDCPA, consumers can bring private actions “in any appropriate United States district court without regard to the amount in controversy … within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The Supreme Court recently clarified that there is no “discovery rule” for FDCPA claims, so “absent the application of an equitable doctrine, the statute of limitations in § 1692k(d) begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered.” Rotkiske, 140 S. Ct. at 358. Thus, to determine when the FDCPA’s statute of limitations begins to run, the key question is what act constitutes the occurrence of an FDCPA violation. The Supreme Court has said only that whether something “occurred” under the FDCPA means whether it “actually happened.” Id. at 360. Although the FDCPA clearly “appl[ies] to lawyers engaged in litigation,” Heintz v. Jenkins, 514 U.S. 291, 294, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), it is less clear which litigation acts can constitute independent FDCPA violations when the underlying FDCPA violation is a debt collection lawsuit. As the Supreme Court has explained, “it would be odd if the [FDCPA] empowered a debt-owing consumer to stop the ‘communications’ inherent in an ordinary lawsuit and thereby cause an ordinary debt-collecting lawsuit to grind to a halt.” Id. at 296, 115 S.Ct. 1489. While making clear that Congress did not intend to “create a [ ] broad[ ] exception[ ] for all litigating attorneys” in the FDCPA, the Court explained that it is not necessary to read “ordinary court-related document[s]” as violating the FDCPA. See id. at 296–97, 115 S.Ct. 1489. Nevertheless, the FDCPA “applies to attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.” Id. at 299, 115 S.Ct. 1489.7 In short, some litigation acts may constitute independent FDCPA violations; otherwise, debt collectors could commit unlimited FDCPA violations after commencing an improper debt collection action. We have considered FDCPA claims related to debt collection lawsuits in two prior cases. In Naas v. Stolman, 130 F.3d 892 (9th Cir. 1997), we noted that we had never before “determined at which point the statute of limitations begins to run when the alleged violation of the Act is the filing of a lawsuit.” Id. at 893. We concluded that an FDCPA violation occurred when a debt collector filed an allegedly improper debt collection lawsuit, not when the lawsuit was decided. Id. To so conclude, we considered that “[f]iling a complaint is the debt collector’s last opportunity to comply with the Act, and the filing date is easily ascertainable.” Id.; see also id. (discussing the Eighth Circuit’s decision in Mattson, 967 F.2d at 261, which relied on these considerations to determine that an FDCPA violation occurred when abusive debt collection letters were mailed, but not received). The statute of limitations for the FDCPA claim thus ran from the date the debt collection lawsuit was filed. We had no reason to consider whether the date of service affected this analysis. In McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011), we held that certain post-filing litigation acts can constitute FDCPA violations. Id. at 951–52. In McCollough, the debt collector served requests for admission that asked the debtor to admit facts that were not true, even though the debt collector “had information in its possession that demonstrated the untruthfulness of the requested admissions.” Id. at 952. The debt collector also did not explain to the debtor that “the requests would be deemed admitted after thirty days.” Id. Because we “consider the debt collector’s conduct from the standpoint of the least sophisticated debtor,” we held that this conduct violated the FDCPA as a matter of law. Id. By utilizing abusive discovery procedures, the debt collector committed an FDCPA violation through its litigation conduct. That decision, however, did not directly address the statute of limitations. To determine whether a litigation act constitutes an independent violation of the FDCPA and thus has its own statute of limitations, we now derive the following test from Naas: When the alleged FDCPA violation is the bringing of a debt collection lawsuit, we determine which actions constitute independent FDCPA violations by considering (1) the debt collector’s last opportunity to comply with the statute and (2) whether the date of the violation is easily ascertainable. See 130 F.3d at 893.
Under this test, if a debt collector decides to take a certain action during litigation, courts must assess whether that act was the debt collector’s “last opportunity to comply” with the FDCPA. Examples of litigation-related acts that could independently violate the FDCPA include a debt collector serving a request for admission of facts it knows are false or filing an affidavit containing new information it knows to be false. See, e.g., McCollough, 637 F.3d at 952. The debtor must, however, allege “specific actions” taken by the debt-collector that show “more than another attempt to argue that a violation arising from the filing of a debt-collection suit continues as long as the suit remains pending.” Gajewski v. Ocwen Loan Servicing, 650 F. App’x 283, 287 (7th Cir. 2016), reh’g en banc denied; see also Bouye, 61 F.4th at 491 (quoting Slorp v. Lerner, Sampson & Rothfuss, 587 F. App’x 249, 259 (6th Cir. 2014)) (“[T]he violations that occur within the limitations window must be discrete violations; they cannot be the later effects of an earlier time-barred violation.”). Put simply, to plausibly allege that a litigation act is a violation of the FDCPA, the debtor must aver sufficient facts to show that the debt collector’s act is a new violation of the FDCPA. Under our newly formulated test, the focus appropriately remains on the debt collector’s actions. There is a difference between litigating a case and committing affirmative FDCPA violations during that litigation.
*8 With this framework in mind, we turn to Brown’s claims.