An attorney engaged in debt collection and violated the Fair Debt Collection Practices Act by sending a homeowner a letter demanding payment of delinquent homeowners association dues and threatening to file a lien on the homeowner’s property unless the dues were paid within 25 days, thus overshadowing the FDCPA-required notice that the homeowner had 30 days to demand validation of the debt. An attorney who sent a homeowner a collection letter seeking to collect homeowner association dues and threatening to file a lien against the homeowner’s property if the dues weren’t promptly paid engaged in debt collection. Ho v. ReconTrust Co. (9th Cir. 2016) 840 F.3d 618 is distinguished for two reasons. First, the homeowner’s association did not yet hold a lien on the homeowner’s property, so the attorney was not acting to enforce an existing lien but was sending a notice required in order to perfect the lien. Second, the attorney’s letter directly sought to collect money, not merely enforce a lien. An attorney’s letter violated the FDCPA’s requirement of a debt validation notice because the letter contained language that the least sophisticated consumer might see as overshadowing and contradicting the 30-days-from-receipt period for demanding validation of the debt. The letter said that the creditor would file a lien on the debtor’s property if payment was not received within 35 days of the letter’s date—which might be less than 30 days after the debtor received the letter and especially considering that the debtor might have to mail a check earlier so that the attorney received it before the 35th day. Also, the letter did not make clear that if the homeowner disputed the debt, the homeowner’s association would not record a lien until after the attorney had obtained verification of the debt and mailed it to the debtor as the FDCPA requires.
Ninth Circuit Court of Appeals (Paez, J.); January 13, 2017; 2017 WL 127565