FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA ARELLANO,

Plaintiff-Appellant,

v.

CLARK COUNTY COLLECTION

SERVICE, LLC; BORG LAW GROUP,

LLC,

Defendants-Appellees.

No. 16-15467

D.C. No.

2:15-cv-01424-

JAD-NJK

OPINION

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted June 5, 2017

Pasadena, California

Filed November 17, 2017

Before: Sidney R. Thomas, Chief Judge, Stephen

Reinhardt, Circuit Judge, and Edward R. Korman,*

District Judge.

Opinion by Chief Judge Thomas

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

the Eastern District of New York, sitting by designation.
2 ARELLANO V. CLARK CTY. COLLECTION SERV.

SUMMARY**

Fair Debt Collection Practices Act

The panel reversed the district court’s dismissal of an

action brought against a debt collector under the Fair Debt

Collection Practices Act.

The panel held that a debt collector cannot avoid liability

under the FDCPA by obtaining the debtor’s lawsuit through

a state court writ of execution. The panel concluded that such

a procedure frustrates the Act’s purpose and is thus conflictpreempted. The panel remanded the case for further

proceedings.

COUNSEL

Deepak Gupta (argued), Richard J. Rubin, and Neil K.

Sawhney, Gupta Wessler PLLC, Washington, D.C.; Keren E.

Gesund, Gesund & Pailet LLC, Las Vegas, Nevada; for

Plaintiff-Appellant.

Patrick J. Reilly (argued), Holland & Hart LLP, Las Vegas,

Nevada, for Defendants-Appellees.

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

been prepared by court staff for the convenience of the reader.
ARELLANO V. CLARK CTY. COLLECTION SERV. 3

OPINION

THOMAS, Chief Judge:

Can a debt collector avoid liability under the Federal Fair

Debt Collection Practices Act by obtaining the debtor’s

lawsuit through a writ of execution? We conclude that such

a procedure frustrates the Act’s purpose and is thus

preempted.

I

Patricia Arellano was overdue on a small amount of

medical debt—$371.89 to be precise. A private collection

agency, Clark County Collection Services, sent her a letter

about it. Included with the letter was a summons and state

justice court complaint seeking collection of the debt. The

complaint itself stated that Arellano could “[d]ispute the

validity of this debt” within 30 days, but that failing to do so

would result in a presumption of validity. However,

separately, in small print, the summons indicated that to

defend the lawsuit, Arellano must file a formal written

response with the court within 20 days.

Arellano did not file a response, and the collection agency

obtained a default judgment against her in justice court for

$793.39. The debt had doubled in the intervening month

because it now included costs, pre-judgment interest, and

attorney fees.

Subsequently, Arellano filed suit against the collection

agency and its law firm under the Fair Debt Collection

Practices Act (“FDCPA” or “the Act”), 15 U.S.C. § 1692 et

seq. She claimed that they had engaged in misleading
4 ARELLANO V. CLARK CTY. COLLECTION SERV.

practices under 15 U.S.C. § 1692e(1) by stating that the

debtor could dispute the debt within 30 days of receipt, when

the actual summons required the filing of an answer in court

within 20 days. She further alleged that Clark County

Collection Services’ name impermissibly implied affiliation

with the Clark County government, violating 15 U.S.C.

§ 1692e(1).

The collection agency countered with a bold gambit. 

Armed with its default judgment, it requested the justice court

to issue a writ of execution against Arellano in the amount of

$826.72, an increased amount reflecting additional costs. 

Like most states, Nevada allows courts to authorize a sheriff

to levy on the property of a judgment debtor to satisfy a

judgment. Butwinick v. Hepner, 291 P.3d 119, 121 (Nev.

2012). With some exceptions not relevant here, the property

subject to a writ of execution in Nevada includes a “right to

bring an action to recover a debt, money, or thing.” Gallegos

v. Malco Enters. of Nev., 255 P.3d 1287, 1289 (Nev. 2011)

(quoting Black’s Law Dictionary 1617, 275 (9th ed. 2009)).

Thus, the collection agency’s strategy in seeking the writ

was not to obtain personal property to satisfy the judgment,

but to acquire the rights to Arelleno’s FDCPA lawsuit against

the agency so it could have it dismissed.

The justice court granted the writ, which directed the

Clark County Sheriff “to satisfy this judgment with interest

and costs as provided by law, out of the personal property of

the judgment debtor.” The writ described the targeted

property as all “claims for relief, causes of action, things in

action, and choses in action in any lawsuit pending in Nevada

including, the rights of Patricia Arellano, in the civil action”

pending against the collection agency and its lawyers.
ARELLANO V. CLARK CTY. COLLECTION SERV. 5

Thereafter, pursuant to the writ of execution, the sheriff

sold Arellano’s lawsuit in an auction sale on the Clark County

courthouse steps. Clark County Collection Services bought

the claims against itself for $250.

After buying Arellano’s lawsuit, the collection agency

moved in federal district court to dismiss the lawsuit, arguing

that Arellano “no longer possesse[d] any rights of action in

this case, and no longer possesse[d] any standing to sue.” 

The district court dismissed Arellano’s cause of action.

II

State law can be preempted in three circumstances

pursuant to the SupremacyClause, U.S. Const., Art. VI, cl. 2. 

English v. Gen. Elec. Co., 496 U.S. 723, 78 (1990). Only the

third circumstance is relevant here: “state law is pre-empted

to the extent that it actually conflicts with federal law.” Id. at

79. This conflict occurs when “the operation of state law

‘stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress,’” In re

Cybernetic Servs., Inc., 252 F.3d 1039, 1045–46 (9th Cir.

2001) (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S.

470, 479 (1974)), or when it “interferes with the methods by

which the federal statute was designed to reach [its] goal,”

Int’l Paper Co. v. Ouellette, 497 U.S. 481, 494 (1987). In

other words, state law is preempted when “under the

circumstances of the particular case,” it stands as an obstacle

to Congressional purpose “—whether that ‘obstacle’ goes by

the name of ‘conflicting; contrary to; repugnance; difference;

irreconcilability; inconsistency; violation; curtailment;

interference,’ or the like.” Geier v. Am. Honda Motor Co.,

529 U.S. 861, 873 (2000) (alterations omitted) (quoting Hines

v. Davidowitz, 312 U.S. 52, 67 (1941)).
6 ARELLANO V. CLARK CTY. COLLECTION SERV.

Federalism requires that we assume federal law was not

intended to supersede the states’ historic police powers

“unless that was the clear and manifest purpose of Congress.” 

CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2188 (2014). 

Although we read even express preemption provisions

narrowly, a state cannot avoid compliance with a federal

regime “merely by relying upon a connection to an area of

traditional state regulation.” Wos v. E.M.A., 568 U.S. 627,

1400 (2013).1

A

“[T]he purpose of Congress is the ultimate touchstone in

every pre-emption case.” Altria Grp., Inc. v. Good, 555 U.S.

70, 76 (2008) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996)). “The FDCPA was enacted as a broad remedial

statute designed to ‘eliminate abusive debt collection

practices by debt collectors, to insure that those debt

collectors who refrain from using abusive debt collection

practices are not competitivelydisadvantaged, and to promote

consistent State action to protect consumers against debt

collection abuses.’” Gonzales v. Arrow Fin. Servs., LLC,

1

In Boggs v. Boggs, 520 U.S. 833 (1997), the Supreme Court

analyzed the intersection of the Employee Retirement Income Security

Act of 1974 (“ERISA”) and Louisiana’s community property law. That

case illustrates both the potential for narrow preemption as well as the

primacy of federal law even in areas of traditional state regulation. 

Simply finding a conflict between the two legal regimes was sufficient to

resolve the case in favor of preemption. Id. at 841. But, of course,

preemption only applied insofar as the community property law elevated

a descendant’s property interest over an ERISA plan participant’s interest

in a way that was incongruous with Congress’s intention to preserve the

economic security of a surviving spouse. See id. at 843–44. In the same

way, preemption in this case applies only to Nevada’s claimexecution law

insofar as it permits debt collectors to execute on FDCPA claims.
ARELLANO V. CLARK CTY. COLLECTION SERV. 7

660 F.3d 1055, 1060 (9th Cir. 2011) (quoting 15 U.S.C.

§ 1692(e)). The Act’s purpose is “to protect vulnerable and

unsophisticated debtors from abuse, harassment, and

deceptive debt collection practices.” Guerrero v. RJM

Acquisitions, LLC, 499 F.3d 926, 938 (9th Cir. 2007) (citing

S. Rep. 95–389, at 2, 4 (1977), as reprinted in 1977

U.S.C.C.A.N. 1695, 1696, 1699). And the “FDCPA protects

all consumers, the gullible as well as the shrewd . . . the

ignorant, the unthinking and the credulous.” Clark v. Capital

Credit & Collection Servs., Inc., 460 F.3d 1162, 1171 (9th

Cir. 2006) (quoting Clomon v. Jackson, 988 F.2d 1314,

1318–19 (2d Cir. 1993)).

In order to achieve these goals, the Act regulates

communication between debt collectors and debtors,

15 U.S.C. §§ 1692b, c, g, and creates a federal cause of action

for debtors under 15 U.S.C. § 1692k. Debt collectors may be

subject to civil liability for engaging in harassment or abuse,

15 U.S.C. § 1692d, making false or misleading

representations of various sorts, 15 U.S.C. §§ 1692e, j, or

engaging in unfair practices while attempting to collect debt,

15 U.S.C. § 1692f. The FDCPA also includes an express

preemption and savings clause:

This subchapter 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. For purposes of this

section, a State law is not inconsistent with

this subchapter if the protection such law
8 ARELLANO V. CLARK CTY. COLLECTION SERV.

affords any consumer is greater than the

protection provided by this subchapter.

15 U.S.C. § 1692n.

To enforce the FDCPA, Congress chose “a private

attorney general approach.” Camacho v. Bridgeport Fin.,

Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citing Tolentino v.

Friedman, 46 F.3d 645, 651 (7th Cir. 1995)); see also

Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991)

(noting that it was “Congress’s intent that the Act should be

enforced by debtors acting as private attorneys general.”). 

“Prevailing plaintiffs . . . are entitled to actual damages,

statutory damages, and attorney’s fees and costs.” Gonzales,

660 F.3d at 1061 (citing 15 U.S.C. § 1692k(a)).

B

The collection agency argues that because the FDCPA

does not speak directly to the execution of claims, there can

be no federal preemption. This argument denies the existence

of conflict preemption. “And conflict preemption . . . turns

on the identification of ‘actual conflict,’ and not on an

express statement of pre-emptive intent.” Geier, 529 U.S. at

884. Indeed, “the Court has never before required a specific,

formal agency statement identifying conflict in order to

conclude that such a conflict in fact exists.” Id.

Where the Act “itself does not speak directly to the issue,

the Court must be guided by the goals and policies of the Act

in determining whether it in fact pre-empts an action based on

the law of an affected State.” Int’l Paper Co., 479 U.S. at

493. Just as in International Paper Co., the federal law in

question directly regulates the substantive law at issue (debt
ARELLANO V. CLARK CTY. COLLECTION SERV. 9

collection practices) and specifically empowers debtors to

bring suit against debt collectors. 15 U.S.C. § 1692i; see Int’l

Paper Co., 479 U.S. at 495 (holding that Vermont nuisance

law was preempted to the extent that it conflicted with water

pollution standards set forth in the Clean Water Act). And

while the Act itself need not “speak directly to the issue,”

Int’l Paper Co., 479 U.S. at 493, the FDCPA does expressly

preempt state laws “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.

In addition to evading liability and preventing Arellano

from pursuing her potential federal claims, the collection

agency has literally used the execution mechanism to collect

debt from Arellano, and argues that she “has received the

benefit of [the $250] reduction in her judgment.” But a debt

collector cannot be allowed to use state law strategically to

execute on a debtor’s FDCPA claims against it under the

guise of legitimate debt collection. Though the FDCPA does

preserve debt collectors’ rights to collect what they are owed,

the Act does not “authorize the bringing of legal actions by

debt collectors.” See 15 U.S.C. § 1692i(b). Debt collectors

cannot evade the restrictions of the Act by forcing a debtor’s

claims to be auctioned, acquiring the claims, and dismissing

them. To allow otherwise would thwart enforcement of

the FDCPA and undermine its purpose. See 15 U.S.C.

§§ 1692k, l.

C

Resolving this case does not require any additional or

supplemental rule beyond the text of the Act. A state remedy

of execution cannot be used for the purpose of avoiding the

impact of federal law. Therefore, we reverse the district
10 ARELLANO V. CLARK CTY. COLLECTION SERV.

court, and remand for proceedings consistent with this

opinion, holding that federal law preempts a private party’s

use of state execution procedures to acquire and destroy a

debtor’s FDCPA claims against it. We need not, and do not,

reach any other issue urged by the parties.

REVERSED AND REMANDED.