In Taylor v. Pinnacle Credit Services, LLC, 2011 WL 1303430 (N.D.Cal. 2011), Judge Spero applied Iqbal/Twombly to find that (1) determination of whether a form letter violates the FDCPA/Rosenthal Act can be decided as a matter of law, and (2) the debt collector’s letter, which stated that defendant was represented by an attorney from New Jersey who was not licensed in California, did not falsely represent attorney involvement or falsely threaten litigation.
While the Ninth Circuit has not addressed the question of when a collection letter signed by an attorney may be misleading, many district courts within the Ninth Circuit have followed or implicitly approved the approach taken by the Second Circuit in Clomon and Greco. See, e.g., Walsh v. Frederick J. Hanna & Associates, P .C., 2010 WL 5394624 (E.D.Cal., December 21, 2010) (dismissing on a Rule 12(b)(6) motion FDCPA claim based on alleged false representation of attorney involvement where collection letter, though printed on attorney letterhead, contained disclaimer stating that attorney had not reviewed the matter, because least sophisticate consumer would have understood that attorney had not reviewed the specific facts of the case, citing Greco and Cloman ); Depuy, 442 F.Supp.2d at 825 (denying motion under Rule 12(b)(6) to dismiss FDCPA claim based on alleged false representation of attorney involvement where letter was on law firm letterhead and did not contain disclaimer stating that attorney had not reviewed the matter, citing Greco and Cloman ). . . ¶ . . . In determining whether Plaintiff’s claim in this action based on alleged misrepresentation of attorney involvement should be dismissed, the Court looks to the cases discussed above, including Clomon and Greco. The question before the Court is whether the June 28 Letter is more like the letters in Dunn and Robertson, on the one hand, or like the letters in Greco and Walsh, on the other. The letters in all of these cases were signed by attorneys and included disclaimers stating that attorneys had not reviewed the particular circumstances of the debt, but the former included additional statements and language that overshadowed the disclaimer by suggesting that an attorney had, in fact, reviewed the specific facts of the case and was acting as an attorney rather than merely as a debt collector. ¶ The Court concludes that the least sophisticated debtor, reading the letter sent by Defendant in this case, would understand that the attorney who signed the letter had not reviewed the specific facts of the case. The letter is short and straightforward, like the letter in Greco, and it does not refer to “claims” or “litigation,” or use any other language that suggests impending litigation. It also includes a standard FDCPA validation notice that accurately sets forth the debtor’s right to challenge the underlying debt. Nor does the Court find that the statement in the June 28 Letter that Hecker “represents” Defendant is sufficient to overshadow the letter’s disclaimer; although Judge Zimmerman relied, in part, on the statement in the collection letters in Robertson that “[t]his law firm has been retained” in support of his conclusion that the letters deceptively implied attorney involvement, the facts of that case were distinguishable because the letters (there were three rather than just the one letter at issue here) contained other language suggesting “impending legal action.” 2009 WL 5108479, at *2, (N.D.Cal., Dec. 18, 2009).
Nor did the letter falsely threaten litigation:
Here, Defendant does not dispute that the attorney who signed the June 28 Letter is not licensed to practice in California. Therefore, the question of whether Plaintiff states a claim under § 1692e(5) turns on whether the June 28 Letter threatens litigation. The Court finds that it does not. Although the letter states that Hecker “represents” Pinnacle Credit Services, the disclaimer is clear that no attorney had reviewed the circumstances of Plaintiff’s debt, and the FDCPA validation notion that follows also makes clear that Plaintiff had thirty days to dispute the debt. Further, in contrast to the letters in Roberston and Dunn, the June 28 Letter does not use language that the least sophisticated debtor would infer threatened litigation.