FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIEN-PHUONG THI HO,

Plaintiff-Appellant,

 v.

RECONTRUST COMPANY, NA,

subsidiaries of Bank of

America, N.A.;

COUNTRYWIDE HOME LOANS

INC; BANK OF AMERICA, N.A.,

Defendants-Appellees.

No. 10-56884

D.C. No.

2:10-cv-00741-GW-SS

AMENDED OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted June 5, 2015

Submission Vacated June 8, 2015

Resubmitted September 3, 2015

Pasadena, California

Filed October 19, 2016

Amended May 22, 2017
2 HO V. RECONTRUST CO.

Before: Alex Kozinski and Consuelo M. Callahan, Circuit

Judges, and Edward R. Korman,* Senior District Judge.

Opinion by Judge Kozinski;

Partial Dissent and Partial Concurrence by Judge Korman

SUMMARY**

Fair Debt Collection Practices Act

The panel filed an amended opinion affirming in part and

vacating in part the district court’s dismissal of an action for

failure to state a claim, and holding that the trustee of a

California deed of trust securing a real estate loan was not a

“debt collector” under the Fair Debt Collection Practices Act.

Seeking damages under the FDCPA, the plaintiff alleged

that the trustee of the deed of trust on her property sent her a

notice of default and a notice of sale that misrepresented the

amount of debt she owed. The plaintiff also sought to rescind

her mortgage transaction under the Truth in Lending Act.

The panel affirmed the dismissal of the FDCPA claim. 

Finding unpersuasive decisions of the Fourth and Sixth

Circuits, the panel held that the trustee was not a “debt

*

 The Honorable Edward R. Korman, Senior District Judge for the

U.S. District Court for the Eastern District of New York, sitting by

designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
HO V. RECONTRUST CO. 3

collector” subject to damages under the FDCPA because the

trustee was not attempting to collect money from the plaintiff. 

The panel held that the object of a non-judicial foreclosure in

California is to retake and resell the security on the loan. 

Thus, actions taken to facilitate a non-judicial foreclosure,

such as sending the notice of default and notice of sale, are

not attempts to collect “debt” as that term is defined by the

FDCPA. The panel wrote that following a trustee’s sale, the

trustee collects money from the home’s purchaser, not the

original borrower. Because the money collected from a

trustee’s sale is not money owed by a consumer, it is not

“debt.” Accordingly, the foreclosure notices were an

enforcement of a security interest, rather than general debt

collection under 15 U.S.C. § 1692a(6).

The panel held that even though the district court twice

dismissed the plaintiff’s TILA rescission claim and she did

not replead it in her third complaint, it was preserved for

appeal because the district court instructed her that she would

be required to allege the ability to repay the loan in order to

state a rescission claim. The panel held that under Merritt v.

Countrywide Fin. Corp., 759 F.3d 1023 (9th Cir. 2014),

decided after the district court’s dismissal, a mortgagor need

not allege the ability to repay in order to state a rescission

claim. Accordingly, the panel vacated the dismissal of the

TILA claim and remanded for consideration of the claim in

light of Merritt.

The panel affirmed the dismissal of other claims in a

memorandum disposition.

Judge Korman dissented in part and concurred in part. He

wrote that the only reasonable reading of the FDCPA is that

a trustee pursuing a non-judicial or judicial foreclosure
4 HO V. RECONTRUST CO.

proceeding is a debt collector because both proceedings are

intended to obtain money by forcing the sale of the property

being foreclosed upon. He also wrote that the FDCPA does

not interfere with California’s arrangement for conducting

non-judicial foreclosures in a way that would justify

nullifying the protections that the FDCPA provides, and the

FDCPA’s preemption section provides ample room for the

operation of California law. Judge Korman concurred in the

remand to the district court for consideration of the TILA

rescission cause of action.

COUNSEL

Nicolette Glazer, Esq. (argued), Law Offices of Larry R.

Glazer, Century City, California, for Plaintiff-Appellant.

Margaret M. Grignon (argued) and Kasey J. Curtis, Reed

Smith LLP, Los Angeles, California; Carolee A. Hoover and

David C. Powell, McGuire Woods LLP, San Francisco,

California; for Defendants-Appellees.

Dean T. Kirby, Jr. and Martin T. McGuinn, Kirby &

Mcguinn, A P.C., San Diego, California, for Amici Curiae

United Trustee’s Association, California Bankers

Association, American Legal and FinancialNetwork,Arizona

Trustee Association and California Mortgage Association.

Meredith Fuchs, General Counsel, To-Quyen Truong, Deputy

General Counsel, John R. Coleman, Assistant General

Counsel, Nandan M. Joshi and Thomas M. McCray-Worrall,

Attorneys, Consumer Financial Protection Bureau,

Washington, D.C., for Amicus Curiae Consumer Financial

Protection Bureau.
HO V. RECONTRUST CO. 5

OPINION

KOZINSKI, Circuit Judge:

The principal question in this appeal is whether the trustee

of a California deed of trust is a “debt collector” under the

Fair Debt Collection Practices Act (FDCPA).

FACTS

Vien-Phuong Thi Ho bought a house in LongBeach using

funds she borrowed from Countrywide Bank. The loan was

secured by a deed of trust. A deed of trust involves three

parties. See Yvanova v. New Century Mortg. Corp., 62 Cal.

4th 919, 926–27 (Cal. 2016) (explaining California deeds of

trust). The first party is the lender, who is the trust

beneficiary. The second party is the borrower-trustor, who

holds equitable title to the property. The third party is the

trustee, an agent for both the lender and the borrower who

holds legal title to the property and is authorized to sell the

property if the debtor defaults. Id. at 927. In this case, the

lender was Countrywide, the borrower was Ho and the trustee

was ReconTrust.

After Ho began missing loan payments, ReconTrust

initiated a non-judicial foreclosure. See id. at 926–27

(detailingCalifornia’s complex statutoryprocedure governing

non-judicial foreclosures). As the first step in this process,

ReconTrust recorded a notice of default and mailed this

notice to Ho. See Cal. Civ. Code § 2924(a)(1). The notice

advised Ho that she owed more than $20,000 on her loan and

that she “may have the legal right to bring [her] account in

good standing by paying all of [her] past due payments” to

Countrywide. The notice also advised Ho that her home
6 HO V. RECONTRUST CO.

“may be sold without any court action.” Ho did not pay up. 

ReconTrust then took the second step in the process by

recording and mailing a notice of sale. See Cal. Civ. Code

§§ 2924(a)(3). This notice advised Ho that her home would

be auctioned “unless [she took] action to protect [her]

property.” Following the trustee’s sale, ReconTrust would

deliver the deed to the purchaser and the proceeds of the sale

to Countrywide. See 5 Harry D. Miller & Marvin B. Starr,

Cal. Real Est. § 13:1 (4th ed. 2015). Ho would then lose both

possession of the house and her right of redemption. Id.

§§ 13:266, 13:267.1

Ho filed this lawsuit alleging that ReconTrust violated the

FDCPA by sending her notices that misrepresented the

amount of debt she owed. See 15 U.S.C. § 1692e(2)(A). Ho

also sought to rescind her mortgage transaction under the

Truth in Lending Act (TILA) on the ground that the

defendants had perpetrated fraud against her. See 15 U.S.C.

§ 1635(a). The district court twice dismissed Ho’s rescission

claim without prejudice, and Ho did not replead it. The

district court then granted ReconTrust’s motion to dismiss

Ho’s FDCPA claims.2

1

It’s not clear from the record whether a trustee’s sale ever occurred. 

The notice of sale advised Ho that her home would be sold on a certain

date. However, Ho’s loan servicer approved a modification of the loan a

few days prior to that date. The parties say nothing further about the

trustee’s sale. For our purposes, it doesn’t matter whether the sale took

place. Sale of the house would not render the case moot because Ho is

seeking damages.

2 The district court also dismissed Ho’s other claims under the

FDCPA, the Racketeer Influenced and Corrupt Organizations Act and the

Real Estate Settlement Procedures Act. We affirm these dismissals in a

memorandum disposition filed concurrently herewith.
HO V. RECONTRUST CO. 7

Ho appeals, arguing that ReconTrust is a “debt collector”

because the notice of default and the notice of sale constitute

attempts to collect debt. Because both notices threatened

foreclosure unless Ho brought her account current, she

reasonably viewed those documents as an inducement to pay

up. Ho also argues that her TILA rescission claim should be

reinstated on appeal because our circuit clarified the

requirements for such a claim between the district court’s

dismissal and this appeal. See Merritt v. Countrywide Fin.

Corp., 759 F.3d 1023, 1032–33 (9th Cir. 2014).

DISCUSSION

I

The FDCPA subjects “debt collectors” to civil damages

for engaging in certain abusive practices while attempting to

collect debts. See §§ 1692d–f, 1692k. The statute’s general

definition of “debt collector” captures any entity that

“regularly collects or attempts to collect, directly or

indirectly, debts owed or due or asserted to be owed or due

[to] another.” § 1692a(6). Debt is defined as an “obligation

. . . of a consumer to pay money.” § 1692a(5).

The FDCPA imposes liability only when an entity is

attempting to collect debt. 15 U.S.C. § 1692(e). For the

purposes of the FDCPA, the word “debt” is synonymous with

“money.” 15 U.S.C. § 1692a(5). Thus, ReconTrust would

only be liable if it attempted to collect money from Ho. And

this it did not do, directly or otherwise. The object of a nonjudicial foreclosure is to retake and resell the security, not to

collect money from the borrower. California law does not

allow for a deficiency judgment following non-judicial

foreclosure. This means that the foreclosure extinguishes the
8 HO V. RECONTRUST CO.

entire debt even if it results in a recovery of less than the

amount of the debt. Cal. Civ. Code § 580d(a); see Burnett v.

Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1239

(10th Cir. 2013) (“[A] non-judicial foreclosure does not result

in a mortgagor’s obligation to pay money––it merely results

in the sale of property subject to a deed of trust.”); Alaska Tr.,

LLC v.Ambridge, 372 P.3d 207, 228 (Alaska 2016) (Winfree,

J., dissenting) (noting that non-judicial foreclosure “does not

in and of itself collect a debt, but rather calls for the vesting

and divesting of title to real property according to the parties’

prior agreement” (internal quotation marks omitted)). Thus,

actions taken to facilitate a non-judicial foreclosure, such as

sending the notice of default and notice of sale, are not

attempts to collect “debt” as that term is defined by the

FDCPA.

The prospect of having property repossessed may, of

course, be an inducement to pay off a debt. But that

inducement exists by virtue of the lien, regardless of whether

foreclosure proceedings actually commence. The fear of

having your car impounded may induce you to pay off a stack

of accumulated parking tickets, but that doesn’t make the guy

with the tow truck a debt collector.

Our holding today affirms the leading case of Hulse v.

Ocwen Federal Bank, 195 F. Supp. 2d 1188, 1204 (D. Or.

2002), which held that “foreclosing on a trust deed is an

entirely different path” than “collecting funds from a

debtor.”3 We acknowledge that two circuits have declined to

3 The dissent’s effort to discount Hulse, dissent at 21, doesn’t change

the fact that Hulse is indeed the leading case for what other courts have

recognized as the majority position. See, e.g., Aurora Loan Servs., LLC

v. Kmiecik, 992 N.E.2d 125, 134 (Ill. App. Ct. 2013) (“The minority view
HO V. RECONTRUST CO. 9

follow Hulse. Glazer v. Chase Home Fin. LLC, 704 F.3d

453, 461 (6th Cir. 2013); Wilson v. Draper & Goldberg,

P.L.L.C., 443 F.3d 373, 378–79 (4th Cir. 2006). But neither

case concerned the nuances of California foreclosure law, and

we find neither case persuasive here. The Fourth Circuit in

Wilson was more concerned with avoiding what it viewed as

a “loophole in the Act” than with following the Act’s text. 

443 F.3d at 376. We rely on policy to help interpret statutory

language; we don’t make it ourselves. The Sixth Circuit’s

decision in Glazer rests entirely on the premise that “the

ultimate purpose of foreclosure is the payment of money.” 

704 F.3d at 463. But the FDCPA defines debt as an

“obligation of a consumer to pay money.” 15 U.S.C.

§ 1692a(5) (emphasis added). Following a trustee’s sale, the

trustee collects money from the home’s purchaser, not from

the original borrower. Because the money collected from a

trustee’s sale is not money owed by a consumer, it isn’t

“debt” as defined by the FDCPA.

The most plausible reading of the statute is that the

foreclosure notices were “the enforcement of [a] security

interest[]” as contemplated by section 1692f(6) rather than

“debt collection” as contemplated by section 1692a. The

FDCPA’s general definition of “debt collector,” contained at

section 1692a(6), applies to entities that “regularly collect[]

or attempt[] to collect, directly or indirectly, debts owed or

due or asserted to be owed or due [to] another.” Entities that

taken is that the act of foreclosing on a mortgage is the collection of a debt

according to the FDCPA.”). District courts across our circuit have

approved of Hulse time and again. See, e.g., Castro v. Exec. Tr. Servs.,

LLC, No. CV-08-2156-PHX-LOA, 2009 WL 438683, at *6 (D. Ariz.

Feb. 23, 2009); Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193, 1199

(C.D. Cal. 2008); Ines v. Countrywide Home Loans, Inc., No.

08cv1267WQH(NLS), 2008 WL4791863, at *2 (S.D. Cal. Nov. 3, 2008).
10 HO V. RECONTRUST CO.

qualify as debt collectors under this general definition are

debt collectors for purposes of the entire statute. However,

the FDCPA also includes a narrower definition of “debt

collector.” This narrower definition of the term “also

includes” entities whose principal business purpose is “the

enforcement of security interests.” 15 U.S.C. § 1692a(6). 

This provision would be superfluous if all entities that

enforce security interests were already included in the

definition of debt collector for purposes of the entire FDCPA. 

But the relationship between sections 1692a(6) and 1692f(6)

makes sense if some security enforcers are debt collectors

only for the limited purposes of section 1692f(6). All parties

agree that ReconTrust is a debt collector under the narrow

definition. Ordinarily, section 1692f(6) would protect a

consumer against the abusive practices of a security enforcer

who does not fit the broader definition of a debt collector. 

But that doesn’t matter in our case because ReconTrust is not

accused of conduct prohibited by section 1692f(6). The sole

question here is whether ReconTrust is a debt collector under

the general definition—that is, whether ReconTrust

“regularly collects” debts.

We do not hold that the FDCPA intended to exclude all

entities whose principal purpose is to enforce security

interests. If entities that enforce security interests engage in

activities that constitute debt collection, they are debt

collectors. We hold only that the enforcement of security

interests is not always debt collection. We agree with the

dissent that the terms are not mutually exclusive. But they

also aren’t coextensive.4

4 The dissent’s extensive reliance on the FDCPA’s judicial venue

clause, dissent at 32–35, fails for the same reason. The clause indeed

contemplates that a security enforcer can be a debt collector, but it offers
HO V. RECONTRUST CO. 11

We therefore agree with a central premise of Wilson and

Glazer: An entity does not become a general “debt collector”

if its “only role in the debt collection process is the

enforcement of a security interest.” Wilson, 443 F.3d at 378;

see Glazer, 704 F.3d at 464. But from there our paths

diverge. We view all of ReconTrust’s activities as falling

under the umbrella of “enforcement of a security interest.” 

Under California’s non-judicial foreclosure statutes,

ReconTrust could not conduct the trustee’s sale until it sent

the notice of default and the notice of sale. If ReconTrust can

administer a trustee’s sale without collecting a debt, it must

be able to maintain that status when it takes the statutorily

required steps to conduct the trustee’s sale. The right to

“enforce” the security interest necessarily implies the right to

send the required notices; to hold otherwise would divorce

the notices from their context.5

The Glazer court rejected this view, noting that it couldn’t

think of anyone other than repossessors “whose only role in

the collection process is the enforcement of security

interests.” 704 F.3d at 464. Glazer explained that a “lawyer

principally engaged in mortgage foreclosure does not meet

no indication that an entity is a debt collector because it enforces a

security interest.

5 Again, a trustee of a deed of trust might become a “debt collector”

under the general definition if he did something in addition to the actions

required to enforce a security interest. See Derisme, 880 F. Supp. 2d at

326; see also Kaltenbach v. Richards, 464 F.3d 524, 528–29 (5th Cir.

2006). Ho makes no argument that ReconTrust did more than what was

required by California law to enforce the deed of trust. It recorded and

mailed notices that were scripted by the California legislature. See Cal.

Civ. Code § 2924. And, while these notices advised Ho that she could

avoid foreclosure by paying up, that was required by California law in

order to conduct the trustee’s sale. 
12 HO V. RECONTRUST CO.

this criteria [sic], for he must communicate with the debtor

regarding the debt during the foreclosure proceedings,” but

this is “not so for repossessors, who typically ‘enforce’ a

security interest––i.e., repossess or disable property––when

the debtor is not present, in order to keep the peace.” 704

F.3d at 464. We find this distinction unpersuasive. The

FDCPA itself recognizes that repossessors will communicate

with debtors.6 Enforcement of a security interest will often

involve communications between the forecloser and the

consumer. When these communications are limited to the

foreclosure process, they do not transform foreclosure into

debt collection.

The notices at issue in our case didn’t request payment

from Ho.7 They merely informed Ho that the foreclosure

process had begun, explained the foreclosure timeline,

apprised her of her rights and stated that she could contact

6 Section 1692a(6) provides that enforcers of security instruments

are debt collectors only for the limited purposes ofsection 1692f. Section

1692f(6) prohibits “[t]aking or threatening to take any nonjudicial action

to effect dispossession or disablement of property” (emphasis added). By

referring to “threats” and not just actions, the statute contemplates that

repossessors will communicate with debtors. The fact that Congress went

out of its way to expose enforcers of security interests to liability for

“threatening” debtors showsthat such enforcers were expected to do more

than merely repossess property in the middle of the night.

7 The dissent makes much of the fact that the notice of trustee’s sale

included a disclaimer stating that ReconTrust “is a debt collector

attempting to collect a debt.” This disclaimer isn’t sufficient to show that

ReconTrust is a debt collector. See Guerrero v. RJM Acquisitions LLC,

499 F.3d 926, 932 (9th Cir. 2007) (per curiam); see also Gburek v. Litton

Loan Servicing LP, 614 F.3d 380, 386 n.3 (7thCir. 2010) (similar). “Debt

collector” isn’t an elective category. It’s determined objectively, based on

the activities of the entity in question.
HO V. RECONTRUST CO. 13

Countrywide (not ReconTrust) if she wished to make a

payment. These notices were designed to protect the debtor. 

They are entirely different from the harassing

communications that the FDCPA was meant to stamp out. 

Thus, we agree with the California Courts of Appeal that

“giving notice of a foreclosure sale to a consumer as

required by the [California] Civil Code does not constitute

debt collection activity under the FDCPA.” Pfeifer v.

Countrywide Home Loans, Inc., 150 Cal. Rptr. 3d 673, 684

(Cal. Ct. App. 2012); see Fonteno v. Wells Fargo Bank, N.A.,

176 Cal. Rptr. 3d 676, 690–92 (Cal. Ct. App. 2014).8

Even though the notices didn’t explicitly request payment,

Ho contends that they still qualify as debt collection because

they pressured her to send money to Countrywide. See

Burnett, 706 F.3d at 1239. But, as we’ve explained, the

enforcement of a security interest often creates an incentive

to pay the underlying debt. If this were sufficient to

transform the enforcement of security interests into debt

collection, then all security enforcers would be debt

collectors. This would render meaningless the FDCPA’s

carefully drawn distinction between debt collectors and

enforcers of security interests, and expand the scope of the

FDCPA well past the boundary of clear congressional intent

and common sense.

Moreover, even if an entity like ReconTrust did fall under

the FDCPA’s general definition of a “debt collector,” it

would still be exempt under one of the FDCPA’s express

8 We find it significant that California expressly exempts trustees of

deeds of trust from liability under the Rosenthal Act, the state analogue of

the FDCPA. See Cal. Civ. Code. § 2924(b). The California legislature

clearly views such trustees as materially different from debt collectors.
14 HO V. RECONTRUST CO.

exceptions to that definition. The FDCPA excludes from

the term “debt collector” an entity whose activities

are “incidental to . . . a bona fide escrow arrangement.” 

15 U.S.C. § 1692a(6)(F).

9 A California mortgage trustee—

which holds legal title on behalf of the borrower and

lender—functions as an escrow. Even if ReconTrust’s

activities could be characterized as collection, they are

“incidental to” the escrow arrangement because they are for

the sole benefit of the lender. See Rowe v. Educ. Credit

Mgmt. Corp., 559 F.3d 1028, 1034–35 (9th Cir. 2009)

(construing “incidental to”).

A final consideration weighs in favor of ReconTrust: 

Holding trustees liable under the FDCPA would subject them

to obligations that would frustrate their ability to comply with

the California statutes governing non-judicial foreclosure. 

ReconTrust lists a half dozen conflicts between the FDCPA

and California law. For example, the FDCPA prohibits debt

collectors from communicating with third parties about the

debt absent consent from the debtor. 15 U.S.C. § 1692c(b). 

But California law requires the trustee to announce all

trustee’s sales in a newspaper and mail the notice of default

to various third parties. See Cal. Civ. Code

§§ 2924b(c)(1)–(2), 2924f(b). The FDCPA also prohibits

9 The FDCPA also excludes from its definition of “debt collector” an

entity that acts “incidental to a bona fide fiduciary obligation.” 15 U.S.C.

§ 1692a(6)(F). But because California courts have consistently held that

a trustee is not a fiduciary, we are reluctant to rely on this provision here. 

See, e.g., Hatch v. Collins, 275 Cal. Rptr. 476, 480 (Ct. App. 1990)

(holding that a trustee of a deed of trust “does not stand in a fiduciary

relationship” to either the beneficiary or the creditor); see also Stephens,

Partain &Cunningham v. Hollis, 242 Cal. Rptr. 251, 255 (Ct. App. 1987)

(“Just as a panda is not an ordinary bear, a trustee of a deed of trust is not

an ordinary trustee.”).
HO V. RECONTRUST CO. 15

debt collectors from directly communicating with debtors if

the debt collector knows that the debtor is represented by

counsel. 15 U.S.C. § 1692c(a)(2). California law requires

the trustee to mail the notices of default and sale directly to

the borrower, and makes no exception for borrowers who are

represented by counsel. Cal. Civ. Code. §§ 2924b(b)(1),

2924f(c)(3). In both of these cases, a trustee could not

comply with California law without violating the FDCPA.

Things would become even more complicated if the

consumer elected to dispute the debt pursuant to the FDCPA. 

In such a case, a trustee would be required to “cease

collection of the debt” until he obtained verification of that

debt. 15 U.S.C. § 1692g(b). California law compels trustees

to mail a copy of the notice of default within ten business

days after recording it. Cal. Civ. Code § 2924b(b)(1). If the

consumer disputes his debt as soon as it is recorded, the

trustee would have to seek verification of the debt, and would

be unable to mail the notice until the debt was verified. In the

likely event that such verification took longer than ten days,

the trustee would miss California’s statutory deadline for

mailing out the notice. And if verification requests or other

hassles resulted in a delay of a year or longer, the trustee

would be required to restart the foreclosure process. See

§ 2924g(c)(2).

ReconTrust’s amici suggest that holding trustees liable as

debt collectors would “literally prevent [California’s

foreclosure] system from functioning.” Brief for United

Trustee’s Ass’n et al. as Amici Curiae Supporting

Defendants-Appellees, Ho v. ReconTrust (No. 10-56884),

2015 WL 1020492, at *4. In an amicus brief filed in support

of Ho, the Consumer Financial Protection Bureau conceded

that “a conflict may exist between state and federal law.” 
16 HO V. RECONTRUST CO.

Brief for Consumer Financial Protection Bureau as Amicus

Curiae SupportingPlaintiff-Appellant, Ho v. ReconTrust(No.

10-56884), 2015 WL 4735787, at *14.10 There can be no

doubt that labeling ReconTrust a debt collector under the

broader definition of the FDCPA would create sustained

friction between the federal statute and the state scheme.

Foreclosure is a traditional area of state concern. See

BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994)

(characterizing the regulation of foreclosures as “an essential

state interest”); Rank v. Nimmo, 677 F.2d 692, 697 (9th Cir.

1982) (noting that “mortgage foreclosure has traditionally

been a matter for state courts and state law”). We are thus

especially reluctant to accept an interpretation of a federal

statute that would generate conflict between state and federal

law. This reluctance flows naturally from the fact that, when

Congress legislates “in a field which the States have

traditionally occupied,” federal courts “start with the

assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947). We find no such

clear purpose here.

10 At our invitation, the agency filed an amicus brief arguing that all

trustees of deeds of trust are debt collectors under section 1692a(6). The

agency has not exercised its authority to promulgate a rule interpreting the

term “debt collector.” Thus, we accord deference to the agency’s

interpretation of that phrase only to the extent that we find that

interpretation persuasive. See United States v. Mead Corp., 533 U.S. 218,

226–29 (2001) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139–40

(1944)). We are unpersuaded by the agency’s reading of the statute and

therefore do not defer to it.
HO V. RECONTRUST CO. 17

We also find no comfort in the dissent’s suggestion that

the conflicts between California law and the FDCPA can be

mitigated by consent between the parties to a mortgage deal. 

Dissent at 41–43. The fact that parties may be able to draft

their way around conflicts renders them conflicts no less. 

Relegating future parties to the uncertain process of adding

contractual terms may itself upset a state’s carefully drawn

scheme of notice and disclosure; additional efforts or more

complex terms are themselves costs of that conflict.

When one interpretation of an ambiguous federal statute

would create a conflict with state foreclosure law and another

interpretation would not, respect for our federal system

counsels in favor of the latter. The statutory phrase “debt

collector” is notoriously ambiguous, causing our sister

circuits to divide as to whether foreclosure-related activities

constitute debt collection.11 Even courts holding that

foreclosure is debt collection have recognized that the term

“debt collector” is cryptic. See, e.g., Glazer, 704 F.3d at 460;

Ambridge, 372 P.3d at 222 (observing that “the FDCPA could

certainly be clearer on the question”). Given this ambiguity,

we are hesitant to construe federal law in a manner that

interferes with California’s system for conducting non11 Compare Glazer, 704 F.3d at 461 (holding that all “mortgage

foreclosure is debt collection” for the purposes of the FDCPA); Wilson,

443 F.3d at 378–79 (similar); and Piper v. Portnoff Law Assocs., Ltd., 396

F.3d at 235–36 (3d Cir. 2005) (similar), with Burnett, 706 F.3d at 1239

(suggesting that non-judicial foreclosure is not debt collection for

purposes of the FDCPA, but refusing to so hold); Warren v. Countrywide

Home Loans, Inc., 342 F. App’x 458, 461 (11th Cir. 2009) (holding that

“foreclosing on a home is not debt collection for purposes” of the

FDCPA); and Brown v. Morris, 243 F. App’x 31, 35 (5th Cir. 2007)

(holding that “foreclosure is not per se FDCPA debt collection”).
18 HO V. RECONTRUST CO.

judicial foreclosures. Cf. Sheriff v. Gillie, 136 S. Ct. 1594,

1601 (2016).

II

The district court twice dismissed Ho’s TILA rescission

claim without prejudice, and Ho didn’t replead it in her third

complaint. We have held that claims dismissed without

prejudice and not repleaded are not preserved for appeal; they

are instead considered “voluntarily dismissed.” See Lacey v.

Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). Here,

however, the district court didn’t give Ho a free choice in

whether to keep repleading the TILA rescission claim.

Rather, the court said that if Ho wished to replead the claim

she “would be required to allege that she is prepared and able

to pay back the amount of her purchase price less any downpayment she contributed and any payments made since the

time of her purchase.” The judge concluded that if Ho “is not

able to make that allegation in good faith, she should not

continue to maintain a TILA rescission claim.” It’s unclear

whether the judge meant this as benevolent advice or a stern

command. But a reasonable litigant, particularly one

proceeding pro se, could have construed this as a strict

condition, one that might have precipitated the judge’s ire or

even invited a sanction if disobeyed. Ho could not or would

not commit to pay back the loan, and dropped the claim in her

third complaint.

The district court based its condition on Yamamoto v.

Bank of N.Y., which gave courts equitable discretion to

“impose conditions on rescission that assure that the borrower

meets her obligations once the creditor has performed its

obligations.” 329 F.3d 1167, 1173 (9th Cir. 2003). But, after

the district court dismissed Ho’s claims, we held that a
HO V. RECONTRUST CO. 19

mortgagor need not allege the ability to repay the loan in

order to state a rescission claim under TILA that can survive

a motion to dismiss. Merritt v. Countrywide Fin. Corp., 759

F.3d 1023, 1032–33 (9th Cir. 2014). Ho argues that her

rescission claims were properly preserved for appeal and

should be reinstated.

Where, as here, the district court dismisses a claim and

instructs the plaintiff not to refile the claim unless he includes

certain additional allegations that the plaintiff is unable or

unwilling to make, the dismissed claim is preserved for

appeal even if not repleaded. A plaintiff is the master of his

claim and shouldn’t have to choose between defying the

district court and making allegations that he is unable or

unwilling to bring into court.

This rule is a natural extension of our holding in Lacey. 

The Lacey rule—which displaced our circuit’s longstanding

and notably harsh rule that all claims not repleaded in an

amended complaint were considered waived—was motivated

by two principal concerns: judicial economy and fairness to

the parties. 693 F.3d at 925–28. Those concerns apply here. 

We see no point in forcing a plaintiff into a drawn-out contest

of wills with the district court when, for whatever reason, the

plaintiff chooses not to comply with a court-imposed

condition for repleading. We remand to the district court for

consideration of Ho’s TILA rescission claim in light of

Merritt v. Countrywide Fin. Corp., 759 F.3d at 1032–33.

AFFIRMED in part, VACATED and REMANDED in

part. No costs.
20 HO V. RECONTRUST CO.

KORMAN, District Judge, dissenting in part and concurring

in part:

The majority opinion opens with the principal question

presented by this case: “[W]hether the trustee of a California

deed of trust is a ‘debt collector’ under the Fair Debt

Collection Practices Act (FDCPA).” Maj. Op. at 5. After a

discussion of the issue, the majority concludes by observing

that the phrase “debt collector” is “notoriously ambiguous”

and that, given this ambiguity, we should refuse to construe

it in a manner that interferes with California’s arrangements

for conducting nonjudicial foreclosures. Maj. Op. at 17–18.

My reading of the Fair Debt Collection Practices Act

(“FDCPA”), consistent with the manner in which it has been

construed by every other circuit that has addressed whether

foreclosure procedures are debt collection subject to the

FDCPA, suggests that the only reasonable reading is that a

trustee pursuing a nonjudicial foreclosure proceeding is a debt

collector. See Kaymark v. Bank of Am., N.A., 783 F.3d 168,

179 (3d Cir. 2015), cert. denied, 136 S.Ct. 794 (2016); Glazer

v. Chase Home Fin. LLC, 704 F.3d 453, 461–63 (6th Cir.

2013); Wilson v. Draper &Goldberg, P.L.L.C., 443 F.3d 373,

376–77 (4th Cir. 2006); see also Alaska Tr., LLC v.

Ambridge, 372 P.3d 207, 213–216 (Alaska 2016); Shapiro &

Meinhold v. Zartman, 823 P.2d 120, 123–24 (Colo. 1992)

(en banc). The same is true of a judicial foreclosure

proceeding—an alternative available in California. SeeCoker

v. JPMorgan Chase Bank, N.A., 364 P.3d 176, 178 (Cal.

2016). Both are intended to obtain money by forcing the sale

of the property being foreclosed upon.

The majority “affirms” what it characterizes as the

“leading case” of Hulse v. Ocwen Federal Bank, FSB, 195 F.
HO V. RECONTRUST CO. 21

Supp. 2d 1188 (D. Or. 2002), which held that “foreclosing on

a trust deed is an entirely different path” than “collecting

funds from a debtor,” because “[p]ayment of funds is not the

object of the foreclosure action. Rather the lender is

foreclosing its interest in the property.” Id. at 1204. The

reasoning in Hulse, if one could call it that, is contained in

two short paragraphs, and it is the leading case only in the

number of appellate cases that have by name rejected its

reasoning. See, e.g., Glazer, 704 F.3d at 460, 463;

Kaltenbach v. Richards, 464 F.3d 524, 528 (5th Cir. 2006);

Wilson, 443 F.3d at 376.

This is not surprising. The suggestion in Hulse that a

foreclosure proceeding is one in which “the lender is

foreclosing its interest in the property” is flatly wrong. A

foreclosure proceeding is one in which the interest of the

debtor (and not the creditor) is foreclosed in a proceeding

conducted by a trustee who holds title to the property and

who then uses the proceeds to retire all or part of the debt

owed by the borrower. See Cal. Civ. Code § 2931; Yvanova

v. New Century Mortg. Corp., 365 P.3d 845, 850 (Cal. 2016). 

Any excess funds raised over the amount owed by the

borrower (and costs associated with the foreclosure) are paid

to the borrower. See Cal. Civ. Code § 2924k; see also Jesse

Dukeminier & James E. Krier, Property 590 (2d ed. 1988). 

Thus, contrary to the holding in Hulse, “[t]here can be no

serious doubt that the ultimate purpose of foreclosure is the

payment of money.” Glazer, 704 F.3d at 463. Nor, because

the FDCPA defines a “debt collector” as one who collects or

attempts to collect, “directly or indirectly,” debts owed to

another, 15 U.S.C. § 1692a(6), does it matter that the money

collected at a foreclosure sale does not come directly from the

debtor.
22 HO V. RECONTRUST CO.

Because the majority makes Hulse the foundation of its

analysis, it papers over Hulse’s irredeemably flawed analysis

by suggesting that it comes close to being the seminal case in

the area. Nevertheless, it can only do so by relying on an

intermediate Illinois appellate court decision for the

proposition that “Hulse is indeed the leading case for what

other courts have recognized as the majority position.” Maj.

Op. at 8 n.3 (citing Aurora Loan Servs., LLC v. Kmiecik,

992 N.E.2d 125, 134 (Ill. App. Ct. 2013)). The Illinois

appellate court decision did not do its own “head count.” 

Instead it cited Glazer v. Chase Home Fin. LLC, 704 F.3d

453, 464 (6th Cir. 2013), for the proposition that “[t]he

minority view taken is that the act of foreclosing on a

mortgage is the collection of a debt according to the

FDCPA.” Aurora Loan Servs., LLC, 992 N.E.2d at 134. 

Glazer, in turn, said no more than a contrary view has been

“adopted by a majority of district courts.” Glazer, 704 F.3d

at 460. We do not decide cases on the basis of “head counts”

of district court cases, although we should at least be

concerned when we reach a result that has been rejected by

every circuit that has decided the issue in a published opinion. 

See Maj. Op. at 17 n.11 (citing Glazer, 704 F.3d at 461;

Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373,

378–79 (4th Cir. 2006); Piper v. Portnoff Law Assocs., Ltd.,

396 F.3d 227, 235–36 (3d Cir. 2005)).

After analyzing the majority’s construction of the

FDCPA, I discuss below each of the conflicts conjured by the

majority and show that the FDCPA does not interfere with

California’s arrangement for conducting nonjudicial

foreclosures in a way that would justify nullifying the

protections that the FDCPA provides. More significantly, the

language of the FDCPA’s preemption section provides ample

room for the operation of California law without the need for
HO V. RECONTRUST CO. 23

exempting an entire category of debt collectors. Thus, it

provides that the FDCPA “does not annul, alter, or affect, or

exempt any person subject to the provisions of this

subchapter from complying with the laws of any State with

respect to debt collection practices, except to the extent that

those laws are inconsistent with any provision of this

subchapter, and then only to the extent of the inconsistency.” 

15 U.S.C. § 1692n.

While this suggests a desire to interfere as little as

possible “with the laws of any State,” it gives effect to the

concern that the “primary reason why debt collection abuse

is so widespread is the lack of meaningful legislation on the

State level.” S. Rep. No. 95-382, at 2 (1977). “Congress

enacted the FDCPA despite the fact that some states already

had procedural requirements for debt collectors . . . in place,

because it ‘decided to protect consumers who owe money by

adopting a different, and in part more stringent, set of

requirements that would constitute minimum national

standards for debt collection practices.’” Piper, 396 F.3d at

236 n.11 (quoting Romea v. Heiberger & Assocs., 163 F.3d

111, 118 (2d Cir. 1998)). Indeed, one of the declared

purposes of the FDCPA is “to promote consistent State

action to protect consumers against debt collection abuses.” 

15 U.S.C. § 1692(e).

This case affords no basis for undermining the minimum

national standards that Congress has adopted. Nor does it

justify ignoring the rule we have followed consistently that,

as “a broad remedial statute,” Gonzales v. Arrow Fin. Servs., 

LLC, 660 F.3d 1055, 1060 (9th Cir. 2011), the FDCPA must

be liberally construed in favor of the consumer. Hernandez

v. Williams, Zinman & Parham PC, 829 F.3d 1068, 1078–79

(9th Cir. 2016); see also Johnson v. Riddle, 305 F.3d 1107,
24 HO V. RECONTRUST CO.

1117 (10th Cir. 2002). Indeed, the foreclosure process

conducted here was entirely consistent with both California

law and the FDCPA. The complaint here does not derive

from any conflict between these statutes. Instead, the

complaint alleges that the trustee under the Deed of Trust,

ReconTrust, sent the debtor, Ho, a notice that was misleading

and false because it listed an inaccurate amount due. The

cause of action that the FDCPA provides for this alleged

misconduct does not conflict with California law. If 

California law does not provide such a remedy, the FDCPA

cause of action simply supplements it, just as Congress

intended.

I. The Definition of “Debt Collector”

I turn first to the arguments based on the definition of the

phrase “debt collector.” The FDCPA provides, in relevant

part, that “[t]he term ‘debt’ means any obligation or alleged

obligation of a consumer to pay money.” 15 U.S.C.

§ 1692a(5). “The term ‘consumer’ means any natural person

obligated or allegedly obligated to pay any debt.” Id.

§ 1692a(3). There is no dispute that Ho is obligated under a

promissory note to pay the lender the purchase price of her

property. Section 1692a(6) defines the term “debt collector”

to mean “any person who uses any instrumentality of

interstate commerce or the mails in any business the principal

purpose of which is the collection of any debts, or who

regularly collects or attempts to collect, directly or indirectly,

debts owed or due or asserted to be owed or due another.” 

There is no dispute that ReconTrust seeks to enforce Ho’s

obligation to pay the money owed on the promissory note,

and that it engages in such activities generally, with the

degree of regularity described in section 1692a(6).
HO V. RECONTRUST CO. 25

Nevertheless, the majority argues that, “[f]or the purposes

of the FDCPA, the word ‘debt’ is synonymous with ‘money.’ 

Thus, ReconTrust would only be liable if it attempted to

collect money from [the borrower] Ho.” Maj. Op. at 7 (citing

15 U.S.C. § 1692a(5)). Because California law does not

permit deficiency judgments in cases where there has been a

nonjudicial foreclosure, no money will be collected directly

from Ho. Consequently, “[t]he object of a non-judicial

foreclosure is to retake and resell the security, not to collect

money.” Id. This suggestion cannot be right.

The object of a nonjudicial foreclosure is not to “retake

and resell” the debtor’s home. The only way real property

that is foreclosed upon can be retaken by the creditor is to

purchase it at a foreclosure sale. See Cal. Civ. Code

§ 2924g(a). Moreover, the purpose of a foreclosure

proceeding is to collect money. Thus, a judicial decree of

foreclosure directs “an officer of the court to sell the land at

a public sale, pay the debt to the lender, and pay any amount

exceeding the debt to the borrower. . . . Except for the power

to foreclose privately, the deed of trust is treated in almost all

significant respects as a mortgage.” Dukeminier & Krier,

supra, at 590–91; see also Dikeman v. Jewel Gold Mining

Co., 13 F.2d 118, 118 (9th Cir. 1926) (“Foreclosure is a

remedy by which the property covered by the mortgage may

be subjected to sale for the payment of the demand for which

the mortgage stands as security . . . .” (quoting Flanders v.

Aumack, 51 P. 447, 450 (Or. 1897))).

The nonjudicial foreclosure process in California is

illustrative. “Nonjudicial foreclosure proceedings must be

conducted by auction in a fair and open manner, with the

property sold to the highest bidder.” Dreyfuss v. Union Bank

of Cal., 11 P.3d 383, 390 (Cal. 2000); see also Cal. Civ. Code
26 HO V. RECONTRUST CO.

§ 2924g(a). The object of the nonjudicial foreclosure

procedure is to sell the real property pledged as security thus

raising money to retire all or part of the debt owed by the

borrower pursuant to the promissory note. See A. James

Casner & W. Barton Leach, Cases and Text on Property 737

(2d ed. 1969) (“To whatever extent foreclosure puts value

into [the mortgagee’s] hands, the debt of [the mortgagor] to

[the mortgagee] is discharged . . . .”). Indeed, any excess

funds raised over the amount owed by the borrower (and

costs associated with the foreclosure) are paid to the

borrower. See Cal. Civ. Code § 2924k; see also Dukeminier

& Krier, supra, at 590.

The argument that ReconTrust cannot be a debt collector

because it may not collect money directly from the debtor

overlooks the disjunctive language of the definition of debt

collector, as well as the inchoate conduct included in that

definition. Thus, a debt collector is one who “attempts to

collect, directly or indirectly, debts . . . owed or due another.” 

15 U.S.C. § 1692a(6). The nonjudicial foreclosure procedure

accomplishes this in one of two alternative ways.

First, the creditor, through the trustee, may collect money

indirectly through a nonjudicial foreclosure sale. The same

is true of a judicial foreclosure, although it is not conducted

by a trustee. The fact that the money may not come directly

from the borrower does not alter the fact that any funds raised

would come as a result of the elimination of the debtor’s

interest and equity in the property. This clearly constitutes

the indirect collection of a debt, and the majority does not

explain why it does not. Second, the money may be collected

directly, because the language in the notices sent to the

borrower may prompt her—perhaps the better word is scare

her—to exercise her rights of reinstatement or redemption by
HO V. RECONTRUST CO. 27

paying the arrears on the promissory note at the risk losing

the roof over her head. See Yvanova, 365 P.3d at 850 (“If . . .

the borrower does not exercise his or her rights of

reinstatement or redemption, the property is sold at auction to

the highest bidder.”).1 Or, as the majority aptly puts it, the

notices tell the debtor “that she could avoid [this fate] by

paying up.” Maj. Op. at 11 n.5. The same is true of a

complaint seeking a judicial foreclosure.2

Thus, in this case, ReconTrust commenced the

foreclosure proceeding, “as an agent of the Beneficiary [the

creditor] under a Deed of Trust,” by the filing of a notice of

default served on Ho warning that she was in default on the

payments due on the promissory note she signed on June 23,

2007, in the amount of $548,000. She was told that the

amount of the default was $22,782.68 and would increase

until her account became current, that she may be able “to

bring [her] account in good standing [and avoid foreclosure]

by paying all of [her] past due payments plus permitted costs

1

“The mortgagor’s interest in the property is known as the ‘equity,’

a shortened form of ‘equity of redemption’ which also pays linguistic

homage to the generations of chancellors who have been moved to protect

debtors from overreaching moneylenders.” Dukeminier & Krier, supra,

at 589. 

2 The principal difference between a judicial and a nonjudicial

foreclosure is that in the latter, with some exception, see Bank of

Kirkwood Plaza v. Mueller, 294 N.W.2d 640, 642–43 (N.D. 1980), a

deficiency judgment against the debtor may be obtained for the difference

between the money collected at the foreclosure sale and the amount of the

debt still owed on the promissory note. Such an effort against the debtor

in a nonjudicial foreclosure is precluded because forgiveness of the

remainder of the debt is a tradeoff in return for “an inexpensive and

efficient remedy against a defaulting borrower.” See Yvanova, 365 P.3d

at 850. 
28 HO V. RECONTRUST CO.

and expenses,” and that she would “have only the legal right

to stop the sale of [her] property by paying the entire amount

demanded by [her] creditor.” She was also told that, “[w]hile

[her] property [was] in foreclosure, [she] still must pay other

obligations (such as insurance and taxes) required by [her]

note and deed of trust or mortgage.”

The notice of trustee’s sale again told Ho that she was “IN

DEFAULT” and advised her that, “UNLESS YOU TAKE

ACTION TO PROTECT YOUR PROPERTY, IT MAY BE

SOLD AT A PUBLIC SALE.” The next paragraph told

Ho that ReconTrust would “sell [her house] on 8/28/2009

at 01:00 PM, At the front entrance to the Pomona

Superior Courts Building.” Significantly, the notice of

trustee’s sale contained the following, in conformity with

section 1692e(11): “RECONTRUST COMPANY, N.A. is a

debt collector attempting to collect a debt. Any information

obtained will be used for that purpose.”

While the majoritysuggests that ReconTrust’s description

of itself does not necessarily establish that it was engaging in

debt-collection activity, Maj. Op. at 12 n.7, the Second

Circuit has held that a debtor receiving this letter cannot

safely disregard it on that basis, Hart v. FCI Lender Servs.,

Inc., 797 F.3d 219, 227 (2d Cir. 2015). Instead, “the Letter

clearly announces itself an attempt to collect a debt, and its

other text only emphasizes the plausibility and gravity of that

announcement. We see no reason why we should not take it

at its word . . . .” Id.; see also McLaughlin v. Phelan

Hallinan & Schmieg, LLP, 756 F.3d 240, 246 (3d Cir. 2014)

(attaching significance to the fact that a law firm described

itself as a debt collector in a letter to the debtor); Reese v.

Ellis, Painter, Ratterree &Adams, LLP, 678 F.3d 1211, 1217

(11th Cir. 2012) (same). Indeed, in the present case, the
HO V. RECONTRUST CO. 29

notices may have succeeded in obtaining money from Ho

directly because, as the majority observes, the loan service

provider approved a loan modification agreement prior to the

date of the foreclosure sale. Maj. Op. at 6 n.1. The

modification, which would take effect upon the payment of

$12,000, provided for a $36,000 increase in the amount of the

mortgage and a reduction in the monthly interest payment.

The majority does not, and cannot, deny the effect of the

language in the notices sent to Ho. Nor does it even address

the language of section 1692a(6) that defines “debt collector”

as one who attempts to collect “indirectly” debts owed to

another. Instead, it makes a number of arguments predicated

on the assumption that the mortgage foreclosure process

involves the enforcement of a security interest. Thus, it

begins its defense of ReconTrust’s in terrorem

communications by arguing that, if those communications

succeed in obtaining the payment of a debt, it is akin to the

simple fear of having your car impounded because you had

accumulated parking tickets. This fear, the majority suggests,

“doesn’t make the guy with the tow truck a debt collector.” 

Maj. Op. at 8. I leave it to the reader to evaluate whether the

activities of a trustee of a deed of trust, which I have

described above, can fairly be analogized to those of a tow

truck driver who simply pulls up to a car on the street and

repossesses it.

Perhaps because the answer is obvious, the majority then

argues that the FDCPA intended to exclude entities whose

principal purpose is to enforce security interests, and because

a nonjudicial foreclosure proceeding comes within the

definition of enforcement of a security interest, ReconTrust

is not a debt collector within the meaning of the FDCPA. 

Maj. Op. at 11–12. Moreover, for this reason, ReconTrust
30 HO V. RECONTRUST CO.

was entitled to engage in communications necessary to

effectuate the enforcement of a security interest. Id. at 11.

This argument fails for a number of reasons.

First, ReconTrust is a debt collector, because it directly or

indirectly collects money owed by the debtor to the creditor. 

Under these circumstances, it is irrelevant that the nonjudicial

process entailed in a mortgage foreclosure proceeding may

have also constituted the enforcement of a security interest. 

See Kaltenbach v. Richards, 464 F.3d 524, 528–29 (5th Cir.

2006) (“[T]he entire FDCPA can apply to a party whose

principal business is enforcing security interests but who

nevertheless fits § 1629a(6)’s general definition of a debt

collector.”). Second, the FDCPA expressly contains six

exclusions from its definition of “debt collector” but does not

exclude entities who enforce security interests. 15 U.S.C.

§§ 1692a(6)(A)–(F). Moreover, section 1692a(6), which

contains the definition of “debt collector” and which I repeat

here with the additional language upon which the majority

relies, does not support the argument that one who enforces

a security interest—and more particularly, the obligation of

a debtor to pay money owed pursuant to a promissory note

through a foreclosure proceeding—does not come within the

definition of debt collector. Specifically, section 1692a(6)

provides that:

[t]he term “debt collector” means any person

who uses any instrumentality of interstate

commerce or the mails in any business the

principal purpose of which is the collection of

any debts, or who regularly collects or

attempts to collect, directly or indirectly,

debts owed or due or asserted to be owed or

due another. . . . For the purpose of section
HO V. RECONTRUST CO. 31

1692f(6) of this title, such term also includes

any person who uses any instrumentality of

interstate commerce or the mails in any

business the principal purpose of which is the

enforcement of security interests.

(Emphasis added). Section 1692f(6)—to which the last

sentence, emphasized above, makes reference—proscribes

“[t]aking or threatening to take any nonjudicial action to

effect dispossession or disablement of property if—(A) there

is no present right to possession of the property claimed as

collateral through an enforceable security interest; (B) there

is no present intention to take possession of the property; or

(C) the property is exempt by law from such dispossession or

disablement.”

The majority argues that the last sentence of section

1692a(6), which subjects security enforcers to the foregoing

proscriptions, “would be superfluous if all entities that

enforce security interests were already included in the

definition of debt collector for the purpose of the entire

FDCPA.” Maj. Op. at 10. In other words, what point would

there be in saying that the term “debt collector” also includes

enforcers of security interests if security enforcers were

already included in the general definition? The answer is

obvious. Not all entities that engage in the enforcement of

security interests do so in the same way. See, e.g., Glazer,

704 F.3d at 464. There are entities that enforce security

interests yet who do not typically engage in activity that

would also come within the definition of “debt collection.” 

The tow truck driver to which the majority alludes is one

example. See Maj. Op. at 8. Moreover, if they “attempt to

collect, directly or indirectly, debts . . . owed or due

another”—in the manner ReconTrust did here–they do not do
32 HO V. RECONTRUST CO.

so with sufficient regularity to bring them within the

definition of “debt collector.” See Pflueger v. Auto Finance

Group, Inc., No. CV–97–9499 CAS(CTX), 1999 WL

33740813, at *4–6 (C.D. Cal. Apr. 26, 1999).

Significantly, the concept of “dispossession or

disablement of property” does not easily fit a mortgage

foreclosure proceeding, and is more commonly associated

with the taking of personal property. Because nonjudicial

foreclosure proceedings do not involve the dispossession or

disabling of personal property, the proscriptions contained in

section 1692f(6) do not apply to those proceedings. Thus, if

the majority is correct, then it would follow that a trustee of

a deed of trust could undertake any of the unfair and abusive

conduct proscribed in the FDCPA, because it would not come

within the definition of “debt collector,” nor would it be a

security enforcer dispossessing or disabling property.

3

Congress hardly could have intended such a result.

Indeed, another provision of the FDCPA provides

compelling support for the proposition that mortgage

foreclosures come within the definition of debt collection,

even though they may involve security interests. Thus, the

judicial venue clause, the purpose of which is to require that

a foreclosure proceeding be filed in the place “most

convenient and least expensive for the debtor,” Kaltenbach,

464 F.3d at 528, provides that “[a]ny debt collector who

brings any legal action on a debt against any consumer

shall—(1) in the case of an action to enforce an interest in

3 The definitional section of the FDCPA does not contain a definition

of the term “security enforcer.” See 15 U.S.C. § 1692a. The meaning

must therefore be derived from the manner in which the term is used,

namely, one who dispossesses or disables personal property.
HO V. RECONTRUST CO. 33

real property securing the consumer’s obligation, bring such

action only in a judicial district or similar legal entity in

which such real property is located,” 15 U.S.C. § 1692i(a)(1)

(emphasis added).4

The clause is particularly significant for two reasons. 

First, Congress did not say, as one would expect it to have

said under the analysis employed by the majority, that any

security enforcer who brings a mortgage foreclosure

proceeding must do so in the designated venue. Instead, its

use of the term “any debt collector” demonstrates that

Congress understood that a mortgage foreclosure

proceeding—an action to enforce an interest in real property

securing the debtor’s obligation—constitutes debt collection

within the meaning of the FDCPA. Indeed, if, as the majority

suggests, mortgage foreclosure proceedings constitute the

enforcement of a security interest and not debt collection,

then the venue clause would be rendered meaningless,

because security enforcers seeking a judicial foreclosure

would not be subject to the limitation on venue contained in

section 1692i(a)(1).

The majority argues that the venue clause “contemplates

that a security enforcer can be a debt collector, but it offers no

indication that an entity is a debt collector because it enforces

a security interest.” Maj. Op. at 10–11 n.4. I agree that an

4 Section 1692i(a)(2), permits any other action, including an action

for a deficiency judgment, to be filed in the district “(A) in which such

consumer signed the contract sued upon; or (B) in which such consumer

resides at the commencement of the action.” Because the difference

between the amount obtained at the foreclosure sale and the amount due

on the promissory note cannot be known, an action for a deficiency

judgment arising out of a judicial foreclosure proceeding cannot be

commenced until after the foreclosure sale is over.
34 HO V. RECONTRUST CO.

entity may not be a debt collector merely because it enforces

a security interest. See Glazer, 704 F.3d at 463–64; Piper,

396 F.3d at 236. I rely on the venue clause because it

demonstrates that Congress understood that mortgage

foreclosure proceeding constitutes a unique way to enforce a

security interest, and supports the broader proposition that a

foreclosure proceeding meets the definition of debt

collection. Kaymark, 783 F.3d at 179. Thus, the Third

Circuit has observed that “[n]owhere does the FDCPA

exclude foreclosure actions from its reach. On the contrary,

foreclosure meets the broad definition of ‘debt collection’

under the FDCPA, and it is even contemplated in various

places in the statute.” Id. (citing, inter alia, 15 U.S.C.

§ 1692i).

This interpretation is supported by the legislative history

of the FDCPA. In particular, the Senate Report on the

FDCPA noted that “the committee does not intend the

definition to cover . . . the collection of debts, such as

mortgages and student loans, by persons who originated such

loans.” S. Rep. No. 95-382, at 3 (1977) (emphasis added). 

This language strongly suggests a mortgage or deed of trust

can be a debt, and an entity like ReconTrust can be a debt

collector because it did not originate the loan to Ho. While

I share the late Justice Scalia’s lack of confidence in such

legislative history, see Hon. Antonin Scalia, A Matter of

Interpretation: Federal Courts and the Law 32–34 (Amy

Gutmann ed., 1997), I cite it here only because it is consistent

with the language and structure of the FDCPA that I have

discussed above, and because, accepting the majority’s

suggestion that the definition of debt collector is ambiguous,

our precedents resort to this legislative history, see

Hernandez, 829 F.3d at 1073; see also Int’l Ass’n of

Machinists & Aerospace Workers, Local Lodge 964 v. BF
HO V. RECONTRUST CO. 35

Goodrich Aerostructures Grp., 387 F.3d 1046, 1051–52 (9th

Cir. 2004).

I come now to the last part of the argument of the

majority that proceeds on the assumption that ReconTrust is

a security enforcer and, as such, “must be able to maintain

that status” when it does communicate with the debtor by

taking “the statutorily required steps to conduct the trustee’s

sale.” Maj. Op. at 11. This is another way of saying that

California may override the protections afforded by the

FDCPA by prescribing the steps necessary to commence a

foreclosure proceeding, even if those steps would otherwise

qualify ReconTrust as a debt collector.

There is no support in the language of the FDCPA for this

pronouncement. Indeed, we have held that a complaint

served on a debtor is a communication subject to the FDCPA,

Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031–32 (9th

Cir. 2010), and there are any number of cases that have held

that communications necessary to commence foreclosure

proceedings, judicial or nonjudicial, may come within the

definition of debt collection, see Kaymark, 783 F.3d at

176–78 (holding that a foreclosure complaint is a

communication subject to the FDCPA); Alaska Tr., 372 P.3d

at 217–18 (explaining that a notice required to initiate

foreclosure proceedings could “at the same time be an

attempt to collect a debt”); see also Romea, 163 F.3d at 116

(holding that the fact that state law required a debt collector

to send a letter to commence eviction proceedings was

“wholly irrelevant to the requirements and applicability of the

FDCPA”).

Perhaps recognizing the force of the arguments in favor

of holding that the FDCPA does apply to trustees of a deed of
36 HO V. RECONTRUST CO.

trust, the majority appears to acknowledge that a trustee could

become a debt collector by doing something “in addition to

the actions required to enforce a security interest.” Maj. Op.

at 11 n.5. The majority does not say what additional action

a trustee of a deed of trust would have to take in order to

make him a debt collector. Certainly, it could not mean

additional egregious actions in which some debt collectors

engage, such as banging on the debtor’s door or calling her

incessantly. Under the holding of the majority, a trustee

engaged in conducting a nonjudicial foreclosure proceeding

is not collecting a debt. Thus, the FDCPA would not prohibit

it from engaging in these activities. Moreover, the third

amended complaint alleges that “defendant and/or its agents

unlawfully trespassed [Ho’s] property . . . by dispatching

agents who entered upon the subject property, banging on

doors in a gangster type fashion, posting false notices to let

tenants on the premises know that Plaintiff [was] in loan

default and demanding that plaintiff should call BAC, with

intent to scare, intimidate, and harass plaintiff, and plaintiff’s

tenants.”

Of course, the conduct prohibited by the FDCPA includes

conduct that is far less egregious than banging on doors and

calling debtors incessantly. Nevertheless, Congress regarded

them as sufficiently problematic to warrant including them in

the list of activities that constitute harassment or abuse, see

15 U.S.C. § 1692d, or are “unfair or unconscionable,” id.

§ 1692f. Thus, among the activities that the FDCPA lists as

abusive is “[t]he advertisement for sale of any debt to coerce

payment of the debt.” Id. § 1692d(4). And among the unfair

or unconscionable means to attempt to collect the debt is

“[c]ommunicating with a consumer regarding a debt by post

card.” Id. at § 1692f(7). As the Second Circuit has held,

“that Congress cited the industry’s worst practices when
HO V. RECONTRUST CO. 37

passing the FDCPA does not limit the statute’s purview to

those practices, when the text reaches well beyond. [The

parties] provide[] no reason to believe that Congress did not

intend the FDCPA to offer broad protection to debtors . . . .” 

Hart, 797 F.3d at 228.

Moreover, even if the service of the notices and their

content were required byCalifornia law, the liability attached

to ReconTrust’s activity does not arise from either the service

of the notices or their required script. Instead, it arises from

the fact that the notices that “ReconTrust had sent [Ho] were

misleading and false because the amounts listed on them”

reflected inaccurate amounts due. California did not require

ReconTrust to provide false and misleading notices. The

mere fact that California requires an otherwise accurate

notice to be sent to commence a nonjudicial foreclosure

proceeding should not relieve the trustee from complying

with the FDCPA.

Up to this point, the majority has spilled considerable ink

in arguing that ReconTrust is not a debt collector because it

does not directly collect any money from borrowers under a

deed of trust and because it is an enforcer of security

interests. Perhaps because the majority itself remains

unconvinced, in the space of half a page it invokes and

cursorily applies an additional and even less persuasive

exception to the general definition of “debt collector.” See

Maj. Op. at 13–14. Specifically, the majority argues that

“even if an entity like ReconTrust did fall under the FDCPA’s

general definition of a ‘debt collector,’ it would still be

exempt under” 15 U.S.C. § 1692a(6)(F)(i), which provides an

exception for entities acting “incidental to a bona fide

fiduciary obligation or a bona fide escrow arrangement.” 

Maj. Op. at 13–14. Putting aside the question whether a deed
38 HO V. RECONTRUST CO.

of trust qualifies as “a bona fide escrow arrangement,” the

critical issue is whether ReconTrust, as trustee under Ho’s

Deed of Trust, is acting “incidental to” the Deed of Trust by

initiating a nonjudicial foreclosure on Ho’s home. While the

majority rejects the suggestion that ReconTrust was acting as

a fiduciary, it does accept the suggestion that ReconTrust was

acting as an escrow agent and that the same “incidental to”

requirement applies here. Id. at 14 & n.9.

In Wilson v. Draper & Goldberg, 443 F.3d 373 (4th Cir.

2006), the Fourth Circuit held that “the critical inquiry” in

determining whether a trustee under a deed of trust falls

within the exception provided by 15 U.S.C. § 1692a(6)(F)(i)

is whether the trustee’s actions are “incidental to a bona fide

fiduciary obligation.” Id. at 377. In holding that the trustee

did not meet the “incidental to” requirement, the Fourth

Circuit observed that “a trustee’s actions to foreclose on a

property pursuant to a deed of trust are not ‘incidental’ to its

fiduciary obligation. Rather, they are central to it. Thus, to

the extent Defendants used the foreclosure process to collect

[the plaintiff’s] alleged debt, they cannot benefit from the

exemption contained in 1692a(6)(F)(i).” Id.

The same analysis applies with equal force to escrow

agents. The deed of trust was formulated precisely to allow

for nonjudicial foreclosure proceedings. And those

proceedings, for the reasons I have discussed above,

constitute the direct or indirect collection of a debt. Indeed,

an analysis of the development of the deed of trust suggests

that its primary purpose is to facilitate the collection of a

debt, and that the trustee/escrowee arrangement is incidental

to the collection of a debt, and not the reverse. I quote from

Professor Jesse Dukeminier’s history of the development of

the deed of trust:
HO V. RECONTRUST CO. 39

[L]awyers for lenders cast about for a way to

avoid judicial foreclosure (which requires a

costly and time-consuming lawsuit) and the

statutory right of redemption from foreclosure

sale. They sought a way for the lender to sell

the land and be paid soon after default. They

found this in the form of a deed of trust . . . . 

Under a deed of trust, the borrower conveys

title to the land to a person (who is usually a

third person but may be the lender) to hold in

trust to secure payment of the debt to the

lender. In a deed of trust the trustee is given

the power to sell the land without going to

court if the borrower defaults. The power of

sale foreclosure is more efficient and less

costly than a judicial foreclosure, but courts

and statutes regulate it by requiring notice and

procedures that are fair to the borrower. 

Except for the power to foreclose privately,

the deed of trust is treated in almost all

significant respects as a mortgage.

Dukeminier &Krier, supra, at 590–91; see also Yvanova, 365

P.3d at 849–50. Thus, a trustee’s initiation of a nonjudicial

foreclosure cannot possibly be considered to be “incidental

to” a deed of trust—rather, nonjudicial foreclosure is its

animating purpose.

In sum, Congress has provided a definition of a debt

collector. Once ReconTrust’s activities brought it within that

definition, it was a debt collector, as ReconTrust

acknowledged in the notice of sale it sent to Ho in which it

characterized itself as a debt collector seeking to enforce a

debt. See 15 U.S.C. § 1692a(6). This conclusion is also
40 HO V. RECONTRUST CO.

consistent with the opinion of the Consumer Financial

Protection Bureau (“CFPB”), which we solicited and which

the majority rejects, Maj. Op. at 16 n.10, “that entities

satisfying the general definition of ‘debt collector’ are subject

to the entire [FDCPA],” Brief of Amicus Curiae Consumer

Financial Protection Bureau in Support of Appellant and

Reversal at 18 n.8, 2015 WL 4735787, at *18 n.8.

II. The FDCPA Does Not Interfere with California’s

Arrangements for Nonjudicial Foreclosures

I turn now to the claim that, because the term “debt

collector” is said to be ambiguous, it should not be construed

in a manner that would frustrate ReconTrust’s ability to

comply with California’s procedures for nonjudicial

foreclosures. Maj. Op. at 14. Indeed, in this case, it is not

disputed that ReconTrust complied in every respect with

California law. Nevertheless, citing several alleged conflicts

between the FDCPA and California foreclosure law,

ReconTrust and its amici have warned that treating trustees

as debt collectors would “literally prevent [California’s

foreclosure] system from functioning.” Brief of Amici

Curiae United Trustee’s Ass’n et al. at 4, 2015 WL 1020492,

at *4. This overwrought statement is simply false. Three

circuits, covering twelve states, have held that foreclosure

proceedings are debt collection under the FDCPA, see

Kaymark v. Bank of Am., N.A., 783 F.3d 168, 179 (3d Cir.

2015); Glazer v. Chase Home Fin. LLC, 704 F.3d 453,

461–63 (6th Cir. 2013); Wilson v. Draper & Goldberg,

P.L.L.C., 443 F.3d 373, 376–77 (4th Cir. 2006); see also

Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 234–36 (3d

Cir. 2005), along with the Supreme Courts of Alaska and

Colorado. See Alaska Tr., LLC v. Ambridge, 372 P.3d 207,

213–216 (Alaska 2016); Shapiro &Meinhold v. Zartman, 823
HO V. RECONTRUST CO. 41

P.2d 120, 123–24 (Colo. 1992) (en banc). Neither

ReconTrust nor its amici have provided any evidence that

these holdings have had any effect—much less that the sky

has fallen in—on the foreclosure laws of those states. 

Moreover, the argument ignores the fact that the FDCPA’s

preemption clause expressly leaves in place “the laws of any

State with respect to debt collection practices, except to the

extent that those laws are inconsistent with any provision of

[the FDCPA], and then only to the extent of the

inconsistency.” 15 U.S.C. § 1692n. Indeed, it also contains

a mechanism for the exemption of certain debt collection

practices that do not precisely match those of the FDCPA. 

See 15 U.S.C. § 1692o.

I now proceed to address each of the provisions of the

FDCPA that allegedly interfere with California’s

arrangements for conducting nonjudicial foreclosure

proceedings. None of them have the effect that the majority

attributes to them. Indeed, this case demonstrates how

readily the California foreclosure system can function

alongside the FDCPA. The majority does not dispute that the

first two alleged conflicts between California law and the

FDCPA may be avoided “by consent between the parties to

a mortgage deal.” Maj. Op. at 17. Such consent was

procured here. Nevertheless, the majority argues that “[t]he

fact that parties may be able to draft their way around

conflicts renders them conflicts no less. Relegating future

parties to the uncertain process of adding contractual terms

may itself upset a state’s carefully drawn scheme of notice

and disclosure; additional efforts or more complex terms are

themselves costs of that conflict.” Id. I do not understand to

what the majority is referring when it speaks of an “uncertain

process of adding contractual terms.” The language of the

Deed of Trust is not the result of the addition of terms to a
42 HO V. RECONTRUST CO.

bargained-for agreement. Instead, the Deed is a “take it or

leave it” form to the terms of which the borrower must agree

if he or she wants a loan. Thus, the pre-printed Deed of

Trust, which is signed only by the borrower, describes itself

as follows: “CALIFORNIA-Single Family-Fannie

Mae/Freddie Mac UNIFORM INSTRUMENT WITH

MERS.”

Indeed, as I will show below, the alleged conflicts are, to

borrow theYiddish term, gornisht mit gornisht—nothing with

nothing. In the two instances in which California law

allegedly conflicts with the FDCPA, the net effect of the

borrower’s consent is to permit the foreclosure to go forward

in the manner prescribed by California law. Thus, in the first

instance, the debtor agrees to allow the trustee to announce

the foreclosure sale in a newspaper, as well as mail the

notices of default to various third parties, which is required

by California law. Moreover, in the second instance, the

debtor agrees to allow the trustee to mail the notices of

default and sale directly to him or her, as required by

California law. I provide some brief background detail in the

discussion that follows.

1. While the FDCPA prohibits debt collectors from

communicating with third parties without the debtor’s

consent, California law mandates that trustees announce any

sale in a newspaper, as well as mail notices of default to

various third parties. Maj. Op. at 14. As the majority

acknowledges, debt collectors may communicate with third

parties once they have the debtor’s consent. Id. (citing

15 U.S.C. § 1692c(b)). Here, Ho provided such consent by

signing the Deed of Trust, which stated that, if the lender

invoked its power of sale, the “Trustee shall cause this notice

[of sale] to be recorded in each county in which any part of
HO V. RECONTRUST CO. 43

the Property is located. Lender or Trustee shall mail copies

of the notice as prescribed by Applicable Law to Borrower

and to the other persons prescribed by Applicable Law.” The

effect of this was to permit ReconTrust to comply with the

California law mandating certain public disclosure of a

foreclosure sale.

2. The majority also observes that, while the FDCPA

prohibits debt collectors from communicating directly with

debtors if the collector knows that the debtor has counsel,

under California law, a trustee must mail the notices of

default and sale to the borrower directly. Maj. Op. at 15. The

FDCPA, however, allows consumers to consent to direct

communication. 15 U.S.C. § 1692c(a). By signing the Deed

of Trust, Ho consented to the “Lender or Trustee [mailing]

copies of the notice as prescribed by [California] Law to

Borrower.”

3. I now proceed to the remaining conflict between

California law and the FDCPA relied upon by the majority. 

The majority warns that, if a debtor decided to dispute the

debt pursuant to the FDCPA, the trustee would have to cease

any debt collection activities until it verified the debt. Maj.

Op. at 15. If such verification took more than ten days, the

trustee would miss the statutory deadline for mailing the

notice of default. Id. Moreover, if the verification took over

a year, the trustee would have to restart the foreclosure

process. Id.

This scenario is entirely far-fetched, because a debt

collector could easily satisfy this verification requirement

within ten days and thus avoid delaying the nonjudicial

foreclosure process. Indeed, if it took longer, it would be the

trustee’s own fault. Specifically, we have “decline[d] to
44 HO V. RECONTRUST CO.

impose . . . a high threshold” on debt collectors attempting to

verify disputed debts and have explained that, “[a]t the

minimum, ‘verification of a debt involves nothing more than

the debt collector confirming in writing that the amount being

demanded is what the creditor is claiming is owed.’” Clark

v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162,

1173–74 (9th Cir. 2006) (quoting Chaudhry v. Gallerizzo,

174 F.3d 394, 406 (4th Cir. 1999)). Indeed, in an

unpublished opinion, we recently affirmed a district court’s

ruling that a debt collector satisfied section 1692g(b) by

sending a letter to the debtor that included the debtor’s

address, the date of the deed of trust, and the name and

address of the original creditor. Zhang v. Countrywide Home

Loans, Inc., 601 F. App’x 567, 567 (9th Cir. 2015)

(unpublished), aff’g No. 11-cv-3475 (NC), 2012 WL

1245682, at *11 (N.D. Cal. Apr. 13, 2012). So much for the

conflicts that the majority conjures.

In sum, none of the conflicts identified would stop the

California foreclosure system from functioning. On the

contrary, the FDCPA’s preemption clause expresslypreserves

State law and avoids excluding compliance with it “except to

the extent that those laws are inconsistent with any provision

of [the FDCPA], and then only to the extent of the

inconsistency.” 15 U.S.C. § 1692n.5

5 The CFBP does not concede, as the majority suggests, “a conflict

may exist between state and federal law.” Maj. Op. at 15. Instead, citing

to the FDCPA’s preemption clause, the CFPB explained, “[t]hat a conflict

may exist between state and federal law is no basis for state law to trump

or somehow excuse compliance with federal law.” Brief of Amicus

Curiae Consumer Financial ProtectionBureau inSupport ofAppellant and

Reversal at 14, 2015 WL 4735787, at *14.
HO V. RECONTRUST CO. 45

Moreover, the FDCPA provides a method for resolving

conflicts with state law that the majority ignores. Section

1692o states that the CFPB “shall by regulation exempt from

the requirements of this subchapter any class of debt

collection practices within anyState if the [CFPB] determines

that under the law of that State that class of debt collection

practices is subject to requirements substantially similar to

those imposed by this subchapter, and that there is adequate

provision for enforcement.” The Second Circuit discussed

section 1692o in Romea. There, a defendant law firm sent a

form letter to a plaintiff-debtor pursuant to state law,

demanding that she pay her back rent. Romea, 163 F.3d at

113. In finding that the defendant was a debt collector, the

Second Circuit cited to an older version of section 1692o,

which granted the Federal Trade Commission the authority to

provide exemptions, to explain that, “if the protections

afforded tenants under New York’s Article 7 process do

result in ‘requirements substantially similar to those imposed

by [the FDCPA],’ then New York may petition the Federal

Trade Commission to promulgate regulations that exempt

§ 711 notices from the FDCPA.” Id. at 118 n. 11 (alteration

in original); see also FTC Notice of Maine Exemption From

The Fair Debt Collection Practices Act, 60 Fed. Reg. 66972,

66973 (Dec. 27, 1995) (granting Maine’s request for an

exemption from certain provisions of the FDCPA for certain

debt collection practices because “the level of protection to

consumers under the Maine Act is substantially equivalent to

that provided in the FDCPA”). Rather than asking this Court

to adopt an unnatural reading of the term “debt collector,”

ReconTrust and its amici should ask California to petition the

CFPB for an exemption to the statute.

In sum, the position of the majority is that, because the

phrase “debt collector” is ambiguous, we should refuse to
46 HO V. RECONTRUST CO.

construe it in a manner that conflicts with California’s

arrangements for conducting nonjudicial foreclosures. While

my reading of the phrase differs from that of the majority,

even if the majority is correct, the provisions of the FDCPA

do not interfere with the operation of nonjudicial foreclosure

proceedings in California. Because the majority applies

California law in a way that overrides the arrangements that

Congress has made for the protection of debtors, I

respectfully dissent from the affirmance of the judgment

dismissing the FDCPA claim. I concur in the remand to the

district court for consideration of Ho’s Truth in Lending Act

rescission cause of action.