FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOANN JOSEPHINE RIGGS, 

Plaintiff-Appellant,

v.

PROBER & RAPHAEL, A LAW No. 10-17220

CORPORATION, a California D.C. No.

Corporation formerly known as  5:10-cv-01215-JF

Polk, Prober & Raphael, A Law OPINION Corporation; DEAN RUSSELL

PROBER, individually and in his

official capacity,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted

March 14, 2012—San Francisco, California

Filed June 8, 2012

Before: J. Clifford Wallace, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Callahan

6525
COUNSEL

Fred W. Schwinn, Esq., Consumer Law Center, San Jose,

California, for the plaintiff-appellant.

Jonathan M. Blute, Esq., Murphy Pearson Bradley & Feeney,

San Francisco, California, for the defendants-appellees.

OPINION

CALLAHAN, Circuit Judge:

Plaintiff-Appellant Joann Riggs filed an action against

Defendants-Appellees Prober & Raphael, a debt-collection

law firm, and Dean Prober, Esq. (together, “Prober”) after

Prober sought to collect a debt Riggs owed to Prober’s client,

RIGGS v. PROBER & RAPHAEL 6527
Fireside Bank. Riggs alleged that Prober’s debt collection letter did not comply with the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692 et seq., or its state equivalent,

the Rosenthal Fair Debt Collection Practices Act (“Rosenthal

Act”), Cal. Civ. Code § 1788 et seq., namely by impermissibly requiring her to dispute her debt in writing and, as a

result, misrepresenting her rights to dispute her debt. The district court granted Prober summary judgment and Riggs

appeals. 

We have previously held that a collection letter, called a

“validation notice” or “Dunning letter,” violates § 1692g(a)(3)

of the FDCPA “insofar as it state[s] that [the debtor’s] disputes must be made in writing.” Camacho v. Bridgeport Fin.,

Inc., 430 F.3d 1078, 1082 (9th Cir. 2005). Unlike the validation notice at issue in Camacho, Prober’s notice did not state

that Riggs must dispute her debt in writing. Riggs argues that

Prober’s notice nonetheless violates § 1692g(a)(3) because it

implicitly requires written disputes. Assuming without deciding that Prober’s notice can be understood implicitly to

require written disputes, we hold that a validation notice violates § 1692g(a)(3) of the FDCPA only where it expressly

requires a consumer to dispute her debt in writing.

I. Background

A. Statutory background

The FDCPA seeks to eliminate “abusive debt collection

practices by debt collectors [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.” 15 U.S.C.

§ 1692(e). Toward that end, the FDCPA imposes certain

requirements on debt collectors and imposes strict liability for

violations. Cruz v. Int’l Collection Corp., 673 F.3d 991, 997

(9th Cir. 2012); Donohue v. Quick Collect, Inc., 592 F.3d

1027, 1030 (9th Cir. 2010); see also 15 U.S.C. § 1692k (providing for civil damages).

6528 RIGGS v. PROBER & RAPHAEL
Section 1692g(a) of the FDCPA requires a debt collector to

send a consumer debtor, within five days of the debt collector’s initial attempt to collect any debt, a written validation

notice containing:

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is

owed;

(3) a statement that unless the consumer, within

thirty days after receipt of the notice, disputes

the validity of the debt, or any portion thereof,

the debt will be assumed to be valid by the debt

collector;

(4) a statement that if the consumer notifies the

debt collector in writing within the thirty-day

period that the debt, or any portion thereof, is

disputed the debt collector will obtain verification of the debt or a copy of a judgment against

the consumer and a copy of such verification or

judgment will be mailed to the consumer by the

debt collector; and

(5) a statement that upon the consumer’s written

request within the thirty-day period the debt

collector will provide the consumer with the

name and address of the original creditor, if

different from the current creditor.

15 U.S.C. § 1692g(a)(1)-(5). 

Section 1692e provides that a “debt collector may not use

any false, deceptive, or misleading representation or means in

connection with the collection of any debt.” 15 U.S.C.

§ 1692e. A debt collector violates this rule where, among

other things, it “use[s] . . . any false representation or decepRIGGS v. PROBER & RAPHAEL 6529
tive means to collect or attempt to collect any debt or to

obtain information concerning a consumer.” Id. § 1692e(10).

[1] California has adopted a state version of the FDCPA,

called the Rosenthal Act. See Cal. Civ. Code § 1788 et seq.

The Rosenthal Act mimics or incorporates by reference the

FDCPA’s requirements, including those described above, and

makes available the FDCPA’s remedies for violations. Id.

§ 1788.17. Thus, for purposes of this case, whether a validation notice violates the Rosenthal Act turns on whether it violates the FDCPA.

B. Factual background

The facts of this case are undisputed. In November 2006,

Riggs purchased a car under a retail installment contract that

was later assigned to Fireside Bank. Riggs borrowed

$13,361.21 of the purchase price. Between September and

December 2008, Riggs failed to make her monthly payments.

During that time, Fireside Bank repossessed the car and notified Riggs that it would sell the car unless she made the

required payments, which she did not. Fireside sold the car,

applied the proceeds to Riggs’s debt, and hired Prober to collect the $8,191.89 balance.1

In a validation notice dated April 10, 2009, Prober

requested repayment of the remaining debt, plus accrued

interest. The notice read, in relevant part:

Dear Joanna [sic] Riggs:

1The parties do not dispute that Riggs’s debt is a “debt” under the

FDCPA, 15 U.S.C. § 1692a(5), and a “consumer debt” under California

Civil Code § 1788.2(f), or that Prober is a “debt collector” under the

FDCPA, 15 U.S.C. § 1692a(6), and California Civil Code § 1788.2(c).

The only issue is whether Prober violated the FDCPA and the Rosenthal

Act. 

6530 RIGGS v. PROBER & RAPHAEL
This communication is made in an attempt to collect

on a debt or judgment and any information obtained

will be used for that purpose. My office has been

retained by FIRESIDE BANK in order to obtain

repayment of the sum of $8,191.89, together with

accrued interest to which you are obligated under the

terms of a contract and security agreement dated

November 4, 2006. The present balance owing is

currently $8,191.89.

I am, therefore, requesting that you contact this

office so that I can arrange the terms of your repayment to FIRESIDE BANK. As I am sure you know,

if we are unable to work this matter out, and I am

able to secure a judgment, you may be subject to

payment of FIRESIDE BANK’s attorney’s fees and

costs incurred, as well as jeopardizing your credit.

Please be advised that if you notify my office in

writing within 30 days that all or a part of your obligation or judgment to FIRESIDE BANK is disputed,

then I will mail to you written verification of the

obligation or judgment and the amounts owed to

FIRESIDE BANK. In addition, upon your written

request within 30 days of receipt of this letter, I will

provide you with the name and address of the original creditor, if different from the current creditor.

If I do not hear from you within 30 days, I will

assume that your debt to FIRESIDE BANK is valid.

The last page of the notice consisted of two disclosures:

SPECIAL NOTICE

THE FOLLOWING NOTICE IS GIVEN TO YOU

IN THE EVENT THAT THE FEDERAL FAIR

DEBT COLLECTIONS ACT APPLIES TO

THIS COMMUNICATION.

RIGGS v. PROBER & RAPHAEL 6531
The following statement provides you with notice of

certain rights which you may have by law. Nothing

in this statement modifies or changes the hearing

date or response time specified in the attached documents or your need to take legal action to protect

your rights in this matter. No provision of the following statement modifies or removes your need to

comply with local rules concerning the attached documents.

CONSUMER DISCLOSURE

This communication is made in an attempt to collect

on a debt or judgment and any information obtained

will be used for that purpose. Please be advised that

if you notify FIRESIDE BANK’s attorneys in writing within 30 days that all or a part of your obligation or judgment to FIRESIDE BANK is disputed,

then FIRESIDE BANK’s attorneys will mail to you

a written verification of the obligation or judgment

and the amounts owed to FIRESIDE BANK. In

addition and upon your written request within 30

days of receipt of this letter, I will provide you with

the name and address of the original creditor, if different from the current creditor.

Riggs did not contact Prober and made no payment towards

her debt. Prober filed an action on behalf of Fireside Bank in

California Superior Court. After Riggs filed a cross-claim for

alleged violations of the FDCPA and the Rosenthal Act, the

parties settled the action by dismissing both claims. 

In March 2010, Riggs brought this action in federal court.

Riggs alleged, among other things, that Prober’s validation

notice (1) required her to dispute her debt in writing, in violation of 15 U.S.C. § 1692g(a)(3) and California Civil Code

§ 1788.17, and (2) therefore misrepresented her right to dis6532 RIGGS v. PROBER & RAPHAEL
pute the debt in violation of 15 U.S.C. § 1692e, 1692e(10),

and California Civil Code § 1788.17.

Prober filed a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6) and, in the alternative, for partial

summary judgment. The district court granted in part the

motion to dismiss with leave to amend, and granted partial

summary judgment for Prober on the two claims described

above. The court held that Prober’s validation notice did not

impermissibly require Riggs to dispute her debt in writing and

did not falsely misrepresent her right to dispute the debt. The

district court entered final judgment at Riggs’s request, and

Riggs timely appealed. Riggs appeals only the district court’s

summary judgment order, not its order granting in part Prober’s motion to dismiss.

II. Standard of Review

[2] We review de novo a summary judgment. Gonzales v.

Arrow Fin. Servs., LLC, 660 F.3d 1055, 1060 (9th Cir. 2011).

Summary judgment is appropriate where “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56. “We review

questions of law, including the district court’s interpretations

of the FDCPA and the Rosenthal Act, de novo.” Gonzales,

660 F.3d at 1060. “[W]hether [an] initial communication violates the FDCPA depends on whether it is likely to deceive or

mislead a hypothetical ‘least sophisticated debtor.’ ” Terran v.

Kaplan, 109 F.3d 1428, 1431 (9th Cir. 1997) (citation and

internal quotation marks omitted); see also McCollough v.

Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 952

(9th Cir. 2011) (“This [least sophisticated debtor] standard

ensure[s] that the FDCPA protects all consumers, the gullible

as well as the shrewd . . . the ignorant, the unthinking, and the

credulous.” (internal quotation marks and citations omitted)).

RIGGS v. PROBER & RAPHAEL 6533
III. Discussion

A. Written disputes under FDCPA § 1692g(a)(3)

[3] It is settled law in the Ninth Circuit that the FDCPA

allows debtors to dispute a debt orally or in writing. Camacho, 430 F.3d at 1081-82. Accordingly, a debt validation

notice that requires that a dispute be in writing violates

§ 1692g(a)(3) of the FDCPA.2Id. at 1082. The primary issue

presented here is whether Prober’s validation notice runs

afoul of this rule.

In Camacho, we considered a debt validation notice that

imposed an express writing requirement by stating: “Unless

you notify this office in writing within 30 days after receiving

this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid.” Id. at

1079 (emphasis in Camacho). Applying the FDCPA’s “plain

meaning,” we held that a validation notice “violate[s] § 1692g

insofar as it state[s] that disputes must be made in writing.”

Id. at 1082 (emphasis added). 

[4] Here, in contrast, Prober’s validation notice did not

expressly require Riggs to dispute her debt in writing. Instead,

Riggs argues that the notice implicitly required her to do so.

We assume, without deciding, that the least sophisticated consumer could understand Prober’s validation notice to imply

that any dispute of her debt must be in writing. Nevertheless,

we conclude that the notice does not violate the FDCPA.

As we have explained, Camacho held only that debt collec2The Third Circuit has reached the opposite conclusion: “[S]ubsection

(a)(3) must be read to require that a dispute, to be effective, must be in

writing.” Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991). The

Supreme Court recently recognized this split but declined to resolve it. See

Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, ___ U.S. ___,

130 S. Ct. 1605, 1610 & nn.2-3, 176 L. Ed. 2d 519 (2010). 

6534 RIGGS v. PROBER & RAPHAEL
tors may not expressly require that disputes be in writing;

Camacho did not decide whether the FDCPA also prohibits

debt collectors from implicitly requiring that disputes be in

writing. We do not believe the FDCPA can support such a

prohibition. Subsections (a)(4) and (a)(5) of § 1692g prominently require a consumer to do certain things in writing,

including “notif[y] the debt collector in writing . . . that the

debt, or any portion thereof, is disputed” in order to obtain

verification, while subsection (a)(3) is silent as to what form

a general dispute of an alleged debt must take. When these

subsections are read together, they could be read to imply that

a debtor must dispute her debt in writing. Court decisions

applying these provisions do nothing to dispel this implication. See, e.g., Bicking v. Law Offices of Rubenstein & Cogan,

783 F. Supp. 2d 841, 844-45 (E.D. Va. 2011) (collecting cases

that hold that debt collectors must include the writing requirements in § 1692g(a)(4)-(5) in their validation notices).

[5] Thus, if the FDCPA itself can be read to imply that a

consumer must dispute an alleged debt in writing, a validation

notice like Prober’s, which more or less simply reverses the

order of the § 1692g(a)(3)-(5) advisories, cannot be unlawful

merely because it allows for the same implication. Put another

way, any confusion over what a consumer must do in writing,

versus what she may do in writing, stems at least in part from

the FDCPA itself. It would be untenable to read the FDCPA

to prohibit validation notices that simply mimic the statute’s

own shortcomings.3See Jacobson v. Healthcare Fin. Servs.,

Inc., 516 F.3d 85, 90 (2d Cir. 2008) (explaining that

3For this reason we reject Riggs’s argument that Prober’s validation

notice violates the FDCPA because its language, “[i]f I do not hear from

you,” can be interpreted in more than one way. See Campuzano-Burgos

v. Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir. 2008) (“A communication is deceptive for purposes of the Act if it can be reasonably

read to have two or more different meanings, one of which is inaccurate.”

(citation and internal quotation marks omitted)). Given our reading of the

statute above, only an express requirement for written disputes would be

“inaccurate” under § 1692g(a)(3). 

RIGGS v. PROBER & RAPHAEL 6535
FDCPA’s “dual purpose” requires a court to both “protect[ ]

consumers against deceptive debt collection practices . . .

[and] protect[ ] debt collectors from unreasonable constructions of their communications”). 

All published cases of which we are aware in which the

courts have found a violation of § 1692g(a)(3) have involved

notices that expressly required the recipient to dispute the

alleged debt in writing. See, e.g., In re Turner, 436 B.R. 153,

156-58 (M.D. Ala. 2010) (“If we do not receive payment or

you do not notify us in writing, [sic] that you dispute this debt

within thirty (30) days from the date of this letter, we will

proceed with recovery of the debt based on the laws allowed

in your state.”); Campbell v. Hall, 624 F. Supp. 2d 991, 995,

1000-01 (N.D. Ind. 2009) (“If you dispute this debt, or any

portion thereof, you must notify this office in writing of that

fact within 30 days of this letter.”) (emphasis removed); Baez

v. Wagner & Hunt, P.A., 442 F. Supp. 2d 1273, 1274-77 (S.D.

Fla. 2006) (“Unless you notify this office in writing within

thirty days after receiving this notice that you dispute the

validity of the debt, or any portion thereof, this office will

assume this debt is valid.”) (emphasis in Baez); In re Sanchez,

173 F. Supp. 2d 1029, 1031, 1033-34 (N.D. Cal. 2001) (“You

may dispute the validity of this debt, or any portion thereof,

by sending our office written notice within thirty (30) days

after receiving this notice.”) (emphasis in In re Sanchez).

4

4The only arguably contrary case is Register v. Reiner, Reiner & Bendett, P.C., 488 F. Supp. 2d 143 (D. Conn. 2007), which concerned a validation notice that stated: “[P]lease be advised that you may dispute the

validity of the debt or any portion thereof. If you do so in writing within

thirty days of receipt of this letter, this firm will obtain and provide you

with written verification thereof; otherwise, the debt will be assumed to be

valid.” Id. at 146-47 (emphasis removed). However, this language violates

§ 1692g(a)(3) not because it requires that a dispute be written, but because

it expressly makes the debt collector’s assumption of the validity of the

debt, which is part of the notice required by § 1692g(a)(3), contingent on

the written dispute in the previous sentence. 

6536 RIGGS v. PROBER & RAPHAEL
In short, we hold that, even assuming Prober’s validation

notice could be read to implicitly require Riggs to dispute her

debt in writing, such a requirement nevertheless does not violate § 1692g(a)(3). A validation notice violates § 1692g(a)(3)

only where it expressly requires a consumer to dispute her

debt in writing.

B. FDCPA §§ 1692e and 1692e(10)

Section 1692e of the FDCPA provides that a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

15 U.S.C. § 1692e. A debt collector violates this rule if it

“use[s] . . . any false representation or deceptive means to collect or attempt to collect any debt or to obtain information

concerning a consumer.” Id. § 1692e(10).

[6] Riggs’s only argument that Prober’s validation notice

violated 15 U.S.C. § 1692e and § 1692e(10) is that the notice

made a “false representation” by “misrepresenting Riggs’

right to dispute the debt” by means other than a writing under

§ 1692g(a)(3). Accordingly, because Riggs fails to establish a

violation of § 1692g(a)(3), she also fails to establish a violation of §§ 1692e and 1692e(10) based on the same theory. 

C. Other alleged violations of FDCPA § 1692g(a)(3)

[7] Riggs argues for the first time on appeal that Prober’s

validation notice does not comply with other purported

requirements of § 1692g(a)(3), namely that she be informed

that she could dispute the validity of her debt, she could dispute only a portion of her debt, and that she could make a dispute within 30 days of receiving the notice. Riggs also argues

that the language, “If I do not hear from you,” is too general

to constitute an adequate notice under § 1692g(a).

Riggs’s arguments are barred because she did not raise

them in her complaint, which alleges as the only violation of

RIGGS v. PROBER & RAPHAEL 6537
§ 1692g that Prober “required that disputes be in writing to

prevent [Prober] from considering the debt valid, in violation

of § 1692g(a)(3).” A plaintiff may not try to amend her complaint through her arguments on appeal. See Vincent v. Trend

W. Technical Corp., 828 F.2d 563, 570 (9th Cir. 1987) (plaintiff may not present a new theory for the first time on appeal,

particularly where he could have presented it to the district

court by seeking to amend his complaint); Forbush v. J.C.

Penney Co., 98 F.3d 817, 822 (5th Cir. 1996) (“[T]he Court

will not allow a party to raise an issue for the first time on

appeal merely because a party believes that he might prevail

if given the opportunity to try a case again on a different theory.” (citation omitted)).

IV. Conclusion

We hold that Prober’s notice does not violate § 1692g(a)(3)

of the FDCPA by impermissibly requiring Riggs to dispute

her debt in writing. The notice does not expressly state such

a requirement. Assuming without deciding that the notice

could be understood to imply a writing requirement, that

implication is part of the statute itself. Such an implicit

requirement does not violate § 1692g(a)(3). Because Riggs’s

alleged § 1692g(a)(3) violation served as the only basis for

her alleged violations of §§ 1692e and 1692e(10), we also

hold that Prober’s notice did not violate those provisions. The

district court’s judgment is AFFIRMED. 

6538 RIGGS v. PROBER & RAPHAEL