Contrasting with Judge Nguyen’s recent decision in Greenberg v. Hunt and Henriques, 2011 WL 4639833 (C.D.Cal. 2011), Judge Thurston in Moriarity v. Henriques, 2011 WL 4769270 (E.D.Cal. 2011) allowed an in pro per plaintiff to proceed against a debt collection law firm under the FDCPA and Rosenthal Act for filing and proceeding to default judgment in a state court collection action, notwithstanding the Plaintiff’s claim that the debt was not hers.
Judge Thurston found the collection note stating that the debt was Plaintiff’s when it was not potentially violated the FDCPA:
The FDCPA prohibits a debt collector’s use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt” including “[t]he false representation of … the charac-ter, amount, or legal status of any debt.” 15 U.S.C. § 1692e(2)(A). A plaintiff is not required to prove the defendant knowingly or intentionally made the false representation. Clark v. Capital Credit & Collection Servs., 460 F.3d 1166, 1176 (9th Cir.2006). ¶ Here, Plaintiff asserts Defendants falsely represented “the character, amount, or legal status of [the] debt.” (Doc. 7 at 3). According to Plaintiff, she notified Defendants that the account was not hers, and states, “If [the] account is not Plaintiff’s it is not Plaintiff’s legal debt.” Id. at 2–3. Plaintiff’s alleges the collection note from Hunt & Henriques character-ized the debt as hers, though it was not. Id. at 2. In addition, Plaintiff alleges the complaint signed by Janalie Henriques mischaracterized the debt. Id. at 4. Therefore, Plaintiff alleges Defendants falsely repre-sented the debt, and states a cognizable claim for a violation of § 1692e(2).
Judge Thurston found that the filing of the lawsuit and signing the state court collection Complaint knowing that the account was not the Plaintiff’s potentially violated the FDCPA. Judge Thurston made no mention or analysis of the Rooker-Feldman doctrine or collateral estoppel:
The FDCPA prohibits a debt collector from using “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. The FDCPA does not define “unfair” or “unconscionable,” but Section 1692f provides eight examples of violative conduct “without limiting the general application” of the statute. See id. Notably, “[t]he filing of a lawsuit alone is neither unfair nor unconscionable.” MediaIdea v. Law Office of Evan L. Loeffler, PLCC, 2008 U.S. Dist. LEXIS 109013 (W. Wash. June 19, 2008). However, the filing of “a lawsuit to which there appears to exist a complete defense, without first making a reasonable inquiry as to whether the defense is in fact not complete,” may be a violation of § 1692f. See Kimber v. Federal Financial Corp., 668 F.Supp. 1480, 1487 (M.D.Ala.1987) (finding the defendant violated § 1692f where the suit was barred by the statute of limitations and the attorney failed to make a reason-able inquiry that the limitations period was to be tolled). ¶ In this case, Plaintiff asserts, “Janalie Henriques violated 15 U.S.C. § 1692f by [using] unfair and unconscionable means to collect a debt, by signing and causing said complaint to be filed, having knowledge the alleged account was invalid and not that of Plaintiff.” (Doc. 7 at 4). Consequently, Plaintiff asserts she had a complete defense to the debt because it was not hers, and Plaintiff has stated a cognizable claim for a violation of § 1692f.
Finally, Judge Thurston found that while the Rosenthal Act exempted the signing attorney from its purview, the law firm was not exempt:
Plaintiff alleges Defendants violated the Rosenthal Fair Debt Collection Practices Act (“RFDCPA”) arising under California law (Doc. 7 at 4–5). The RFDCPA “like its federal counterpart, is designed to protect consumers from unfair and abusive debt collection practices.” Robinson v. Managed Accounts Receivable Corp., 654 F.Supp.2d 1051, 1060 (C.D.Cal.2009), citing Cal. Civ.Code § 1788.1. The provisions of FDCPA are incorporated in the RDCPA under Cal. Civ.Code § 1788.17. Consequently, conduct by a debt collector that vio-lates the FDCPA violates RFDCPA as well. See, e.g., id.; Hosseinzadeh v. M.R.S. Assoc., 387 F.Supp.2d 1104, 1118 (C.D.Cal.2005); Abels v. JBC Legal Group, P.C., 227 F.R.D. 541, 548 (N.D.Cal.2005). ¶ Notably, the RFDCPA excludes attorneys from the definition of “debt collectors” while the FDCPA does not. Compare Cal. Civ.Code § 1788.2(c) ( “the term … does not include an attorney or counselor at law”) with 15 U.S.C. § 1692a(6). On the other hand, district courts throughout the Ninth Circuit have found that a law firm is a “debt collector” within the meaning of the RFDCPA: “The statute merely states that it does not apply to ‘attorney’ or ‘counselor at law;’ it does not outright exclude law firms. Since the legislature specifically excluded attorneys from the statute but was silent with respect to law firms, this Court presumes that the legislature did not intend to exclude law firms.” Abels, 227 F.R.D. at 547–48; see also Robinson, 654 F.Supp .2d at 1061; Miranda, 2011 U.S. Dist. LEXIS 55180, at * 19–20. Consequently, though Plaintiff has stated a cognizable claim for a violation of RFDCPA against the law firm of Hunt & Henriques, the claim against Janalie Henriques based upon the RFDCPA is DISMISSED