F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 3 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KEVIN PAUL FERREE,
Plaintiff-Appellant,
v. No. 97-6061
(D.C. No. CIV-96-1120-T)
TERESA W. MARIANOS, (W.D. Okla.)
Defendant-Appellee,
and
SHAPIRO & MARIANOS, a
partnership,
Defendant.
ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Kevin Paul Ferree appeals the district court’s order dismissing his
claims under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§§ 1692-1692o against defendant Teresa W. Marianos, an attorney representing
Temple-Inland Mortgage Company, plaintiff’s creditor. 1 We have reviewed
de novo the district court’s dismissal for failure to state a claim, accepting the
well-pleaded allegations of the complaint as true and construing them in the light
most favorable to the plaintiff. See Grossman v. Novell, Inc., 120 F.3d 1112,
1118 (10th Cir. 1997). We affirm.
A bankruptcy court entered orders discharging plaintiff’s debts and
allowing foreclosure of the real property which secured plaintiff’s debt to
Temple-Inland. See Johnson v. Home State Bank, 501 U.S. 78, 84 (1991)
1
The law firm of Marianos and Shapiro was named as a defendant in the
district court action, but was not served. Marianos has filed a motion to dismiss
this appeal, arguing that the district court’s order lacks finality because it does not
dispose of the claims against the law firm. The motion is without merit. The
district court’s failure to enter an order dismissing an unserved defendant prior to
entry of judgment does not foreclose appellate jurisdiction. The unserved
defendant was never made a party to the underlying district court action. See
Bristol v. Fibreboard Corp., 789 F.2d 846, 847 (10th Cir. 1986).
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(bankruptcy discharge extinguishes only in personam claim while leaving
in rem claim intact). Marianos then filed a state court action on behalf of
Temple-Inland, seeking to foreclose the mortgage on the property.
In this FDCPA action, plaintiff alleges that, in initiating the foreclosure
proceedings, Marianos violated three provisions of the Act: (1) she
misrepresented the amount and legal status of plaintiff’s debt in the prayer of
the foreclosure petition (an alleged violation of § 1692e(2)(A)); 2 (2) she
threatened to obtain an in personam judgment in the prayer of the foreclosure
petition (an alleged violation of § 1692e(5)); 3 and (3) she obscured the content
of the statutorily-required validation notice by providing it as an attachment to
the pleadings in the foreclosure action (an alleged violation of § 1692g). 4
2
Section 1692e(2)(A) prohibits the “false representation” of the “character,
amount, or legal status of any debt.”
3
Section 1692e(5) prohibits a “threat to take any action that cannot legally
be taken or that is not intended to be taken.”
4
Section 1692g requires that
when an independent debt collector solicits payment it must provide the
consumer with a detailed validation notice. The notice must include the
amount of the debt, the name of the creditor, a statement that the debt’s
validity will be assumed unless disputed by the consumer within 30 days,
and an offer to verify the debt and provide the name and address of the
original creditor, if the consumer so requests.
Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). The § 1692g notice,
“commonly referred to as a ‘validation notice,’ gives the consumer the
(continued...)
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The district court dismissed the claim against Marianos for failure to state a claim
upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). 5
The district court clearly set out the law and facts of the case in its order
dated January 21, 1997. For claims under the FDCPA, other circuit courts of
appeal have applied an objective standard, “measured by how the ‘least
sophisticated consumer’ would interpret the notice received from the debt
collector.” Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). “[T]he test
is how the least sophisticated consumer--one not having the astuteness of a
“Philadelphia lawyer” or even the sophistication of the average, everyday,
common consumer--understands the notice he or she receives.” Id. See also
Terran v. Kaplan, 109 F.3d 1428, 1431 (9th Cir. 1997) (“[W]hether the initial
communication violates the FDCPA depends on whether it is likely to deceive
or mislead a hypothetical least sophisticated debtor.”) (quotations omitted).
The hypothetical consumer, however, “can be presumed to possess a rudimentary
4
(...continued)
information necessary to challenge the debt allegedly owed before making
payment to the independent collection agency.” Id. at 32.
5
The district court properly treated the summons, foreclosure petition, and
validation notice, which were attached as exhibits to the complaint, as part of the
pleadings for purposes of defendants’ motion to dismiss. See Industrial
Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 964-65
(10th Cir. 1994).
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amount of information about the world and a willingness to read a collection
notice with some care.” Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).
Plaintiff’s allegations do not add up to a claim under any of the cited
FDCPA provisions. The foreclosure petition specifically described the result of
the bankruptcy proceedings. The foreclosure pleadings did not misrepresent the
amount or status of plaintiff’s debt or, in spite of the discharge in bankruptcy,
threaten to obtain an in personam judgment. The district court correctly
dismissed the § 1692e claims.
As to the claim under § 1692g, a debt collector may violate the FDCPA by
providing a validation notice that “contains language that ‘overshadows or
contradicts’ other language informing a consumer of her rights.” Russell, 74 F.3d
at 34 (citing Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991)). Here,
however, it is plain that the validation notice provided the information required by
statute. Moreover, plaintiff concedes that the thirty-day period to dispute the
debt, explained in the notice, and the twenty-day period to respond to the
summons and petition, set out in the summons, “are not mutually exclusive.”
Appellant’s Opening Br. at 16. 6
6
We note that plaintiff did not either dispute the debt or respond to the
summons. Temple-Inland took a default judgment and foreclosed against
plaintiff’s property.
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The information contained in the notice was not obscured or contradicted
simply because it was provided as an attachment to the foreclosure pleadings.
Even the least sophisticated consumer receiving two communications in the same
envelope, the first concerning a pending mortgage foreclosure action, “would
sufficiently examine the entire contents of the envelope, and uncover the enclosed
validation notice.” Cavallaro v. Law Office of Shapiro & Kreisman, 933 F. Supp.
1148, 1153 (E.D.N.Y. 1996).
We AFFIRM the judgment of the district court, based on the reasoning
above and more thoroughly described in the district court’s order. Defendant’s
motion to dismiss is DENIED.
Entered for the Court
John C. Porfilio
Circuit Judge
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