In Moya v. Chase Cardmember Services, Inc., 2009 WL 57112 (N.D.Cal.2009), Judge Zimmerman gave guidance on what constitutes a permissible “statement of account” which may be sent to consumers notwithstanding notice that the consumer is represented by counsel. Civil Code §1788.14(c) prohibits a debt collector from initiating communications with the debtor about a consumer debt, other than to provide a statement of account. Judge Zimmerman gave guidance to creditors as to what does and does not constitute a “statement of account”:
Section 1810.3 of the CFDCPA provides some guidance as to what information is normally contained in a “statement of account.” However, this section fails to provide guidance as to what information, if any, is proscribed. Specifically, this section does not provide any guidance as to whether the inclusion of the toll free number of a creditor’s collection department, such as the number included by defendant, (FN8) trans-forms what would be a “statement of account” into an otherwise prohibited communication between the creditor and the represented debtor pursuant to § 1788.14. Defendant has not furnished any authority, statutory or otherwise, to support its contention that the insertion of such a number is permitted in a “statement of account”, or that the inclusion of such a number does not convert a statement of account into a collection letter. (FN9) Without the benefit of a record, it is hard to see what purpose the collection department’s toll free number in the document sent plaintiff serves, other than as part of a collection effort, which is an impermissible practice under § 1788.14 of the CFDCPA once the debtor has provided the creditor with notice that he is represented by an attorney, as plaintiff alleges he did. While defendant is correct that 15 U.S.C. § 1637(b) requires Chase to send plaintiff a monthly statement of account which sets forth the amount due, the date payment is due and an address for billing inquires, plaintiff is not challenging any of that information on the document he received. (FN10)
Since at this juncture, I cannot say as a matter of law that the statement attached to plaintiff’s Com-plaint as Exhibit B is not an impermissible communication rather than a mere “statement of account”, as asserted by defendant, defendant’s motion as to plaintiff’s fourth claim for relief is DENIED.
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FN8. Defendant disputes that the toll free number connects to defendant’s collection department; however, on a motion to dis-miss, I must accept as true all well-pleaded facts stated in plaintiff’s Complaint, and must construe all reasonable inferences in favor of plaintiff. Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996).
FN9. During argument, defendant asserted that a statement of account is “inherently” a collection effort because the purpose of a statement of account is to encourage a debtor to make a payment towards his or her outstanding debt. I disagree. From my read-ing of the statute, a “statement of account” is exempted under § 1788.14 because it is de-fined as something other than a collection effort. In other words, I read the statute as exempting statements of account whose purpose is to keep a debtor informed of the status of the account or any activity related to the account, such as the accrual of finance charges; and not whose purpose is to facilitate collection of a closed account.
FN10.Section 1637(b) of the FDCPA re-quires a creditor of any account to send a statement for each billing cycle to a debtor who holds an account with an outstanding balance. However, nothing in that section mandates (or expressly permits) the inclusion of a toll free number (as opposed to an address) in a “statement of account”, which is the alleged violation in this action.