In Forkum v. Co-Operative Adjustment Bureau, Inc., — F.Supp.2d —-, 2014 WL 2119922 (N.D.Cal. 2014), Judge Armstong granted summary judgment to an FDCPA plaintiff who alleged that the Debt Collector did not leave the truncated mini-Miranda on a voicemail message that was left in response to the Plaintiff’s own telephone call.
The Court finds the following facts undisputed. Plaintiff is a consumer as defined by the FDCPA and was the object of a collection activity arising from a consumer debt. Defendant is a “debt collector” as defined by the FDCPA. In or around December 2012, Defendant’s representative, George Woodruff (“Woodruff”), placed several telephone calls to Plaintiff in an attempt to collect a consumer debt. Plaintiff spoke with Woodruff about his consumer debt prior to Woodruff leaving the following voicemail message: “Yeah, Mr. Forkum this is George Woodruff at CO–Operative. Uh, you know you called me Friday, I think I left you a message on Saturday, but uh, anyway, uh, give me a buzz, my number is 800–331–0009, my extension is 108. Thanks.”
The District Court granted summary judgment to the Plaintiff, finding that the Debt Collector still needed to give the truncated mini-Miranda warnings required by the FDCPA even though the Debt Collector was returning the call to the debtor and the debtor likely knew who was calling.
Here, although the plain language of § 1692e(11) requires a debt collector to identify himself as such in all communications following the initial communication with a consumer, and it is undisputed that Woodruff failed to do so with respect to the voicemail message giving rise to this action, Defendant never-theless contends that summary judgment is inappropriate because Plaintiff was fully aware that Woodruff was a debt collector representing a collection agency. The Court disagrees. ¶ District courts in the Ninth Circuit have held that the failure of a debt collector to identify himself as such in all communications following the initial communication with a consumer is a violation of § 1692e(11). See e.g., Pasquale v. Law Offices of Nelson & Kennard, 940 F.Supp.2d 1151, 1158 (N.D.Cal.2013); Savage v. NIC, Inc., 2009 WL 2259726, at *6 (D.Ariz.2009); Schwarm v. Craighead, 552 F.Supp.2d 1056, 1081–1082 (E.D.Cal.2008); Hosseinzadeh v. M.R.S. Associates., Inc., 387 F.Supp.2d 1104, 1116 (C.D.Cal.2005). The Court agrees with the reasoning of these cases. The Court finds that the clear and unambiguous language of the FDCPA governs this case; it requires a debt collector to identify himself as such in all subsequent communications with a consumer. Defendant, for its part, has failed to cite any controlling authority or provide persuasive legal analysis demonstrating that summary judgment is inappropriate. Accordingly, Plaintiff’s motion for summary judgment on his FDCPA claim is GRANTED to the extent that it is predicated on a violation of § 1692e(11).
Finally, the District Court found that the Plaintiff could not bootstrap a mini-Miranda violation under section 1692e(11) into another violation under section 1692e(10)’s catch-all provision.
To the extent Plaintiff contends that the Court should find that Defendant violated § 1692e(10) as a matter of law simply because Defendant violated § 1692e(11), the Court disagrees. Section 1692e(10) has been referred to as a “catchall” provision. Gonzales, 660 F.3d at 1062. As noted above, it prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. § 1692e(10). Here, while Woodruff’s failure to identify himself as a debt collector in violation of § 1692e(11) is arguably a “deceptive” means to attempt to collect a debt, Plaintiff has not cited any controlling authority or provided persuasive legal analysis demonstrating that Defendant violated § 1692e(10). Accordingly, Plaintiff has failed to sustain his burden to show that he is entitled to summary judgment on his FDCPA claim predicated on a violation of § 1692e(10).