NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

KATHLEEN D. GATES,

Plaintiff-Appellant,

 v.

MCT GROUP, INC. and THE LAW

OFFICES OF PETER W. SINGER,

Defendants-Appellees.

No. 15-55728

D.C. No. 

3:13-cv-02611-MMA-DHB

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Submitted February 15, 2017** 

Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and KORMAN,*** District

Judge.

 

FILED

FEB 23 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Edward R. Korman, United States District Judge for

the Eastern District of New York, sitting by designation.
Plaintiff-Appellant Kathleen D. Gates (Gates) appeals from the district

court’s grant of summary judgment to Defendant-Appellee The Law Offices of

Peter W. Singer (Singer). Gates’ claims arise out of a levy on her bank accounts

authorized by Singer, which Gates claims resulted in the levying of exempt Social

Security benefits in contravention of 42 U.S.C. § 407(a). Gates contends that the

district court erred in rejecting her claims that Singer violated the Fair Debt

Collection Practices Act (FDCPA) and California’s Rosenthal Act by

(1) threatening to take an action that could not legally be taken, and (2) using

unfair or unconscionable means to collect a debt. Because the parties are familiar

with the facts, we do not recount them here. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

The district court correctly held that Singer did not violate the FDCPA, 15

U.S.C. § 1692e(5), by “threat[ening] to take an[] action that cannot legally be

taken.” A hypothetical “least sophisticated debtor” who received the Notice of

Levy and accompanying documentation received by Gates would not have viewed

the levy as a threat to levy her exempt Social Security benefits, and would have

been “able to understand, make informed decisions about, and participate fully and

meaningfully in the debt collection process,” because the documentation she

received informed her that those benefits were exempt and instructed her as to the

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process for claiming an exemption. Clark v. Capital Credit & Collection Servs.,

Inc., 460 F.3d 1162, 1171 (9th Cir. 2006). All parties involved in the levy

complied with federal law and state procedures that are consistent with 42 U.S.C.

§ 407(a) and its implementing regulations and provide additional protection to

debtors. See 31 C.F.R. § 212.9 (consistent state law is not preempted); see also

Cal. Code Civ. Proc. § 704.080 (establishing automatic exemptions for deposit

accounts and procedure for claiming exemptions above automatic amount); id.

§§ 703.520, 703.550 (additional procedures for claiming exemptions). 

Accordingly, the process worked to protect Gates’ potentially exempt funds, and

the district court correctly granted summary judgment to Singer on this claim.

The district court also correctly granted summary judgment to Singer on

Gates’ claim that Singer violated the FDCPA, 15 U.S.C. § 1692f, by “us[ing]

unfair or unconscionable means to collect or attempt to collect a[] debt.” Gates

contends that Singer violated this provision by authorizing the levy without first

investigating whether Gates’ accounts contained exempt Social Security benefits;

however, Gates fails to provide any authority demonstrating that Singer was

required to do anything more than comply with California’s procedures. Singer is

not required to show that it maintained “procedures reasonably adapted to avoid

an[] error” when Gates fails to establish that an error in the form of an FDCPA

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violation has occurred. 15 U.S.C. § 1692k(c). Furthermore, the California

procedures followed here do not conflict with federal law and are distinct from

those at issue in Bennett v. Arkansas, 485 U.S. 395 (1988) (per curiam), Crawford

v. Gould, 56 F.3d 1162 (9th Cir. 1995), and Brinkman v. Rahm, 878 F.2d 263 (9th

Cir. 1989) (per curiam).

Because the district court correctly granted summary judgment on Gates’

FDCPA claims, her Rosenthal Act claims also fail. See Riggs v. Prober &

Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012) (California’s “Rosenthal Act mimics

or incorporates by reference the FDCPA’s requirements . . . and makes available

the FDCPA’s remedies for violations.”); see also Cal. Civ. Code § 1788.17

(“[E]very debt collector collecting or attempting to collect a consumer debt shall

comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be

subject to the remedies in Section 1692k of, Title 15 of the United States Code.”).

AFFIRMED.

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