NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEPH O’BRYNE, No. 13-55563
Plaintiff - Appellant, D.C. No. 3:12-cv-00447-IEG-NLS
v.
MEMORANDUM*
PORTFOLIO RECOVERY
ASSOCIATES, LLC,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Submitted March 3, 2015**
Pasadena, California
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
Joseph O’Bryne sued Portfolio Recovery Associates, LLC (“PRA”), claiming
that a state court complaint violated the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692e, 1692f (“FDCPA”), and the Rosenthal Fair Debt Collection Practices Act,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cal. Civ. Code § 1788 et seq. The district court granted summary judgment to PRA.
We have jurisdiction under 28 U.S.C. § 1291, and affirm.
1. “[A] complaint served directly on a consumer to facilitate debt-collection
efforts is a communication subject to the requirements of §§ 1692e and 1692f.”
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031-32 (9th Cir. 2010).
2. The state complaint’s assertion that O’Bryne’s uncontested final credit card
statement established an account stated was not a “false, deceptive, or misleading
representation.” 15 U.S.C. § 1692e. An account stated may be “implied from the
circumstances,” including the receipt of a billing statement and subsequent failure to
object. Davis & Cox v. Summa Corp., 751 F.2d 1507, 1515 (9th Cir. 1985),
superseded on other grounds by 28 U.S.C. § 1961; see S.O.S., Inc. v. Payday, Inc.,
886 F.2d 1081, 1090-91 (9th Cir. 1989); Doyle v. McPherson, 97 P.2d 249, 250-51
(Cal. Ct. App. 1939). Existing California law does not preclude an account stated
theory for collection of an uncontested credit card debt. Cf. Zinn v. Fred R. Bright
Co., 76 Cal. Rptr. 663, 665-66 (Ct. App. 1969) (identifying the elements of an account
stated). O’Bryne’s credit card agreement expressly provided that Capitol One could
transfer its rights to an assignee.
3. Because the state complaint properly identified Capital One as O’Bryne’s
original creditor and PRA as an assignee, the form allegation immediately thereafter
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that “an account was stated . . . between plaintiff and defendant,” was not a material
misrepresentation. Even the “least sophisticated consumer” would understand that
“plaintiff” was shorthand for this assignor-assignee pairing; the form statement could
not “frustrate a consumer’s ability to intelligently choose his or her response.”
Donohue, 592 F.3d at 1033-34.
4. PRA’s attempt to collect the fees and interest included in the credit card debt
it purchased was not an “unfair or unconscionable means to collect or attempt to
collect any debt.” 15 U.S.C. § 1692f. California courts “distinguish between interest
as damages, and interest as debt. Where the obligation to pay interest arises out of
a contract to pay interest the interest is part of the debt, it is an accretion to the
principal.” Kawasho Int’l, U.S.A., Inc. v. Lakewood Pipe Serv., Inc., 201 Cal. Rptr.
640, 645 (Ct. App. 1983). The credit card member agreement made clear that fees
would be added to the principal balance, and O’Bryne does not dispute that the
agreement permitted Capitol One to assess compound interest. Thus, collection of
interest and fees included in the credit card balance was “expressly authorized by the
agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1).
5. Because we find no FDCPA violation, we also find no violation of the
Rosenthal Act. See Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012)
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(finding that whether a communication “violates the Rosenthal Act turns on whether
it violates the FDCPA”).
AFFIRMED.
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