District Court (Cal.) Says FDCPA Plaintiff Cannot Avoid 9th Circuit’s Guerrero Decision By Saying Debt Collection Communications Between Counsel Were Directed at Debtor “Through” Counsel

In Swartzlander v. Capital Mgmt. Servs., LP, No. 19cv580-WQH-BGS, 2019 U.S. Dist. LEXIS 127053, at *3-9 (S.D. Cal. July 30, 2019), Judge Hayes dismissed an FDCPA Plaintiff’s claimed premised on collection letters sent to her counsel.

Defendant contends that communications to a consumer’s attorney are not actionable under the FDCPA, as determined by the Court of Appeals in the controlling case Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir. 2007). Defendant asserts that the communications were directed to Plaintiff’s attorney alone.  Plaintiff contends that the letters are actionable under the FDCPA because the letters were “sent to Plaintiff through her attorneys.” (ECF No. 15 at 14). Plaintiff contends that Guerrero does not control this matter because in Guerrero, the debt collector sent letters directly to the debtor’s attorney after the debtor hired that attorney for representation related to that debt, and after the attorney requested that communications be sent to the attorney rather than the debtor. Plaintiff contends that the letters in Guerrero were not directed to the debtor because there was no demand for payment. Plaintiff asserts that, in this case, Plaintiff hired the attorney for bankruptcy representation before receiving the debt collection letter. Plaintiff asserts that, in this case, the letters demanded payment and included payment coupons and reference Plaintiff’s FDCPA right. . . .In Guerrero, the Court of Appeals stated,

A consumer and his attorney are not one and the same for purposes of the Act. . . . Congress viewed attorneys as intermediaries able to bear the brunt of overreaching debt collection practices from which debtors and their loved ones should be protected. . . . Congress did not view attorneys as susceptible to the abuses that spurred the need for the legislation to begin with . . . . The purpose of the FDCPA is to protect vulnerable and unsophisticated debtors from abuse, harassment, and deceptive collection practices. . . . When an individual is represented by counsel who fields all communications relevant to the debt collection, these concerns quickly evaporate. Attorneys possess exactly the degree of sophistication and legal wherewithal that individual debtors do not.

499 F.3d at 935-36, 938-39. The court stated that “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.” Id. at 936. In this case, Plaintiff alleges that she “retained counsel to file for bankruptcy and . . . provided [*7]  her bankruptcy counsel’s information to her creditors.” . . . The Court concludes that Defendant did not direct the letters to Plaintiff within the meaning of Guerrero by sending the letters according to the information Plaintiff provided to her creditors regarding her attorney. See 499 F.3d at 939 (“Only at that point did RJM contact Attorney Paer as requested . . . .”). The allegations that the letters included the pronoun “you” and referenced the debt owed by Plaintiff do not bring Plaintiff’s claims within the scope of the FDCPA. The allegations that the letters referenced Plaintiff’s FDCPA rights do not bring Plaintiff’s claims within the FDCPA. See id. at 932 (“[W]e cannot conclude that RJM continued to collect a debt in violation of the Act merely because . . . it included in a letter to a debtor’s counsel a statement the Act generally requires.”). The allegations that the letters were sent to an attorney hired by Plaintiff for representation  in bankruptcy, rather than debt collection, do not bring Plaintiff’s claims within the FDCPA. See id. at 937 (approving of dismissal of FDCPA claims based on settlement negotiations between an attorney and a debt collector, after the debt collector had ceased collection efforts on the disputed debt, and “[c]ounsel for the consumer then contacted the debt collector to alert it that the consumer might file for bankruptcy”) (citing Zaborac v. Phillips & Cohen Assocs., Ltd., 330 F. Supp. 2d 962, 965 (N.D. Ill. 2004)). Plaintiff fails to allege facts to support an FDCPA claim.