FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID TOURGEMAN,

Plaintiff-Appellant,

v.

COLLINS FINANCIAL SERVICES, INC.,

DBA Precision Recovery Analytics,

Inc., a Texas corporation; NELSON &

KENNARD, a partnership; PARAGON

WAY, INC.; COLLINS FINANCIAL

SERVICES USA, INC.,

Defendants-Appellees,

and

DELL FINANCIAL SERVICES, LP,

Defendant.

No. 12-56783

D.C. No.

3:08-cv-01392-

CAB-NLS

OPINION

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted

April 9, 2014—Pasadena, California

Filed June 25, 2014
2 TOURGEMAN V. COLLINS FINANCIAL SERVS.

Before: Jerome Farris and Andrew D. Hurwitz, Circuit

Judges, and Paul L. Friedman, District Judge.*

Opinion by Judge Friedman;

Dissent by Judge Farris

SUMMARY**

Fair Debt Collection Practices Act

The panel reversed the district court’s summary judgment

in favor of the defendants in a class action under the Fair

Debt Collection Practices Act.

The panel held that the plaintiff had Article III standing

to assert claims based on collection letters that he did not

receive because the alleged violation of his statutory right not

to be the target of misleading debt collection communications

constituted a cognizable injury. The panel also held that the

plaintiff had a statutory cause of action under the FDCPA.

The panel reversed the district court’s summary judgment

on claims that the defendants violated § 1692e of the FDCPA

by misidentifying the plaintiff’s original creditor in a series

of collection letters sent to him, as well as in a complaint filed

against him in state court. The panel held that the letters and

* The Honorable Paul L. Friedman, District Judge, U.S. District Court

for the District of Columbia, 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.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 3

the complaint were materially misleading, and that the

plaintiff was entitled to judgment under § 1692e(2) and (10).

Dissenting, Judge Farris wrote that he would affirm the

district court’s judgment.

COUNSEL

Brett M. Weaver (argued), Johnson & Weaver, LLP, San

Diego, California, and Daniel P. Murphy, Law Offices of

Daniel Murphy, San Diego, California, for PlaintiffAppellant.

Tomio B. Narita (argued) and JeffreyA. Topor, Simmonds &

Narita LLP, San Francisco, California, for DefendantAppellee Nelson & Kennard.

No appearance for Defendants-Appellees Collins Financial

Services, Inc., Collins Financial Services USA, Inc., or

Paragon Way, Inc.

OPINION

FRIEDMAN, District Judge:

This is a class action brought under the Fair Debt

Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C.

§ 1692 et seq. Plaintiff David Tourgeman contends that the

defendants — Collins Financial Services, Inc.; Paragon Way,

Inc.; Nelson &Kennard; and Collins Financial Services USA,

Inc. — made false representations to him in connection with
4 TOURGEMAN V. COLLINS FINANCIAL SERVS.

their efforts to collect a purported debt.1 Specifically,

Tourgeman argues that the defendants violated the Act by

misidentifying his original creditor in a series of collection

letters sent to him, as well as in a complaint filed against him

in state court. He also maintains that one defendant, Nelson

& Kennard, misleadingly represented that its collection letter

was from an attorney when, on Tourgeman’s account of the

facts, no attorney had been “meaningfully involved” in

evaluating his case. The district court granted summary

judgment to the defendants. We have jurisdiction under

28 U.S.C. § 1291. We now reverse and hold that judgment

should be entered for Tourgeman.

I. BACKGROUND

David Tourgeman bought a Dell computer. At the time

of the purchase, Tourgeman resided in Mexico, and he

ordered the computer to be shipped to his parents’ home in

California. He financed the purchase through Dell Financial

Services, which arranged for a loan to be originated by CIT

Online Bank. Dell Financial then serviced the loan. 

According to Tourgeman, he completed repayment within

two years of buying the computer. But Dell Financial’s

records reflected otherwise. Tourgeman’s allegedly

outstanding debt therefore was charged off and then sold,

1 Tourgeman serves here as the named plaintiff on behalf of a class of

consumers similarly situated. This appeal resolves the essential legal

question that underlies Tourgeman’s and the class’s claims under one

section of the FDCPA, 15 U.S.C. § 1692e. For ease of reference, we refer

only to plaintiff Tourgeman rather than to the class.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 5

along with more than 85,000 other Dell Financial debts, to

Collins Financial Services.2

Collins transferred Tourgeman’s file along with the other

Dell Financial accounts to Collins’s affiliated collection

agency, Paragon Way, Inc., which mailed three letters to

Tourgeman encouraging him to pay off the purported debt. 

Collins then referred the file to the law firm of Nelson &

Kennard, which sent its own dunning letter to Tourgeman. 

All of these letters were mailed to addresses in California at

which Paragon and Nelson & Kennard believed Tourgeman

might reside. In fact, the addresses belonged to Tourgeman’s

parents, and Tourgeman himself remained resident in

Mexico. After receiving no response to the letters, Nelson &

Kennard filed a complaint on behalf of Collins in San Diego

County Superior Court. Tourgeman retained counsel, and

Nelson & Kennard eventually elected to dismiss the action. 

It was during this state court litigation that Tourgeman

learned of the several letters that had been mailed to him at

his parents’ addresses. See Tourgeman v. Collins Fin. Servs.,

Inc., No. 08-cv-1392, 2011 WL 3176453, at *6 (S.D. Cal.

July 26, 2011).

Tourgeman then went on the offensive. He filed this

lawsuit in federal district court, alleging that Collins, Paragon

Way, and Nelson & Kennard had violated the FDCPA, as

well as California law, in their efforts to collect the purported

2

It is immaterial to this appeal whether Tourgeman actually had paid his

loan in full; none of his FDCPA claims depends on the validity of the

debt.
6 TOURGEMAN V. COLLINS FINANCIAL SERVS.

debt from him.3 Tourgeman’s complaint survived motions to

dismiss filed by the several defendants, see id., and the

district court later certified a class of consumer plaintiffs, see

Tourgeman v. Collins Fin. Servs., Inc., No. 08-cv-1392, 2012

WL 1327824, at *4–10 (S.D. Cal. Apr. 17, 2012). But upon

the defendants’ motions for summary judgment and

Tourgeman’s cross-motion, the court granted judgment to the

defendants. See Tourgeman v. Collins Fin. Servs., Inc., No.

08-cv-1392, 2012 WL 3731807 (S.D. Cal. Aug. 29, 2012).

On appeal, Tourgeman makes two claims under the

FDCPA. His main claim arises from the fact that the

defendants — both in their letters and in the state court

complaint — falsely identified his original creditor as

“American Investment Bank, N.A.,” when, in actuality, CIT

Online Bank originated the loan. Tourgeman contends that

this misidentification violated the Act’s prohibition on the

“use [of] any false, deceptive, or misleading representation or

means in connection with the collection of any debt.” 

15 U.S.C. § 1692e. Tourgeman’s second claim relates to the

letter sent to him by the law firm of Nelson & Kennard. He

argues that the attorney who signed the letter had not been

“meaningfully involved” in evaluating his case, and that the

letter therefore runs afoul of 15 U.S.C. § 1692e(3), which

proscribes “[t]he false representation or implication that any

individual is an attorney or that any communication is from

an attorney.” Tourgeman seeks only statutory damages,

 

3 Tourgeman also sued Dell Financial, with which he later settled; that

entity is not therefore involved in this appeal. Collins and Paragon Way

have elected neither to file briefs nor to offer argument on this appeal, but

we nonetheless are obligated to review the record in full. See Brown Bag

Software v. Symantec, Corp., 960 F.2d 1465, 1478 (9th Cir. 1992). In any

event, Nelson&Kennard offers arguments equally applicable to the letters

sent by Paragon Way.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 7

conceding that he suffered no pecuniary loss as a result of the

defendants’ conduct.

II. STANDING

Nelson & Kennard first argues that Tourgeman lacks both

statutory and Article III standing to assert any claims based

on the collection letters, which Tourgeman admittedly never

received when they were sent. The law firm contends that the

FDCPA does not provide a cause of action to a consumer in

Tourgeman’s position, notwithstanding the statute’s broad

language providing that “any debt collector who fails to

comply with any provision of this subchapter with respect to

any person is liable to such person.” 15 U.S.C. § 1692k(a). 

Nelson & Kennard further maintains that even if the FDCPA

does purport to endow such consumers with a cause of action,

Article III would forbid it, because consumers who never

receive the offending communication have suffered no injury

in fact. Tourgeman’s position is that a violation of the

FDCPA “in and of itself [] confers Article III standing.”

A. Article III Standing

“Article III of the Constitution limits federal-court

jurisdiction to ‘Cases’ and ‘Controversies.’” Massachusetts

v. E.P.A., 549 U.S. 497, 516 (2007). The requirement of

standing flows from this limitation. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). Standing doctrine assures

that “the litigant is entitled to have the court decide the merits

of the dispute or of particular issues,” Warth v. Seldin,

422 U.S. 490, 498 (1975), by demanding that he or she

“possess a ‘direct stake in the outcome’ of the case,”

Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013)
8 TOURGEMAN V. COLLINS FINANCIAL SERVS.

(quoting Arizonans for Official English v. Arizona, 520 U.S.

43, 64 (1997)).

To possess standing, a plaintiff must have suffered an

“injury in fact,” meaning “an invasion of a legally protected

interest which is (a) concrete and particularized, and

(b) actual or imminent, not conjectural or hypothetical.” 

Lujan, 504 U.S. at 560 (internal citations and quotation marks

omitted). In addition, “there must be a causal connection

between the injury and the conduct complained of . . . [and]

it must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Id. at

560–61 (internal citations and quotation marks omitted).

“The . . . injury required by Art. III may exist solely by

virtue of ‘statutes creating legal rights, the invasion of which

creates standing.’” Id. at 578 (quoting Warth, 422 U.S. at

500); see also Massachusetts, 549 U.S. at 516 (“Congress has

the power to define injuries and articulate chains of causation

that will give rise to a case or controversy where none existed

before.” (quoting Lujan, 504 U.S. at 580 (Kennedy, J.,

concurring in part and concurring in the judgment))) (internal

quotation marks omitted). In cases involving statutory rights,

“the particular statute and the rights it conveys [] guide the

standing determination.” Donoghue v. Bulldog Investors

Gen. P’ship, 696 F.3d 170, 178 (2d Cir. 2012); see also

Hammer v. Sam’s East, Inc., ___ F.3d ___, 2014 WL

2524534, at *4 & n.3 (8th Cir. June 5, 2014) (noting that “the

actual-injury requirement may be satisfied solely by the

invasion of a legal right that Congress created”); Robey v.

Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1212

(10th Cir. 2006) (where a court is “dealing with legal rights

created by Congress under the FDCPA . . . the ‘injury in fact’

analysis for purposes of Article III is directly linked to the
TOURGEMAN V. COLLINS FINANCIAL SERVS. 9

question of whether [the plaintiff] has suffered a cognizable

statutory injury”). As the Supreme Court has explained,

“[e]ssentially, the standing question in such cases is whether

the constitutional or statutory provision on which the claim

rests properly can be understood as granting persons in the

plaintiff’s position a right to judicial relief.” Warth, 422 U.S.

at 500. For this reason, “the violation of a statutory right is

usually a sufficient injury in fact to confer standing.” Robins

v. Spokeo, Inc., 742 F.3d 409, 412 (9th Cir. 2014).

At the same time, “the requirement of injury in fact is a

hard floor of Article III jurisdiction that cannot be removed

by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497

(2009). Thus, there are limits on Congress’s ability to elevate

to the status of legally cognizable injuries particular types of

harm that were previously not recognized in law. Lujan,

504 U.S. at 578. As this court has observed, there are “two

constitutional limitations on congressional power to confer

standing.” Robins, 742 F.3d at 413. “First, a plaintiff ‘must

be among the injured, in the sense that she alleges the

defendants violated her statutory rights.’” Id. (quoting

Beaudry v. TeleCheck Servs., Inc., 579 F.3d 702, 707 (6th

Cir. 2009)) (internal quotation marks omitted). “Second, the

statutory right at issue must protect against ‘individual, rather

than collective, harm.’” Id. (quoting Beaudry, 579 F.3d at

707).

The second limitation poses no problem in this case. The

personal interest in not being “the object of a

misrepresentation made unlawful [bystatute],” HavensRealty

Corp. v. Coleman, 455 U.S. 363, 373 (1982), assuredly is an

“individual, rather than collective, harm,” Beaudry, 579 F.3d

at 707 (internal quotation marks omitted). The gravamen of

Nelson & Kennard’s argument, rather, is that Tourgeman is
10 TOURGEMAN V. COLLINS FINANCIAL SERVS.

not truly “among the injured.” That is, it contends that

Tourgeman has not suffered the “actual” injury required by

Article III because he never received any letter that contained

the allegedly misleading representations. According to

Nelson & Kennard, a consumer who never receives a dunning

letter can suffer neither pecuniary nor emotional harm, nor

can such a consumer be hindered in deciding how to respond

to the effort to collect the debt.

The Supreme Court’s decision in Havens Realty Corp. v.

Coleman, however, makes clear that such pecuniary or

emotional harms are not necessary to a finding of injury in

fact. In Havens, the Court held that an African-American

“tester” —who, by posing as an apartment hunter, aimed to

ferret out violations of the Fair Housing Act (“FHA”) —

possessed standing to bring suit based on the defendants’

falsely telling her that no apartments in a particular housing

complex were available, even though the tester had no

intention of actually renting an apartment from the defendant

and, indeed, may well have “fully expect[ed] that he would

receive false information.” 455 U.S. at 374. The Court

concluded that the “alleged injury to [the plaintiff’s]

statutorily created right to truthful housing information” was

a cognizable injury in and of itself — regardless of whether

the plaintiff actually hoped to reside in the defendant’s

housing complex — and therefore “the Art. III requirement

of injury in fact [was] satisfied.” Id. at 374 (citing Warth,

422 U.S. at 500). The tester plaintiff possessed standing not

because she had been “deprived . . . of the benefits that result

from living in an integrated community,” id. at 375, but

simply because her “statutorily created right to truthful

housing information” had been infringed, id. at 374–75.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 11

Similarly, we have held that where a home buyer is

referred by her settlement agent to a particular title insurer as

a result of a kickback deal between the agent and the insurer,

the consumer suffers Article III injury even though she paid

no more for the insurance than she otherwise would have. 

Edwards v. First Am. Corp., 610 F.3d 514, 517–18 (9th Cir.

2010), cert. granted in part, 131 S. Ct. 3022 (2011), cert.

dismissed as improvidently granted, 132 S. Ct. 2536 (2012)

(per curiam); accord Alston v. Countrywide Fin. Corp.,

585 F.3d 753, 762–63 (3d Cir. 2009) (recognizing that

because Article III injury can be predicated on the violation

of statutory rights, “[a] plaintiff need not demonstrate that he

or she suffered actual monetary damages”); Carter v. WellesBowen Realty, Inc., 553 F.3d 979, 989 (6th Cir. 2009) (“Just

as a violation of the rights of ‘testers’ to receive ‘truthful

information’ supports standing, so does a violation of the

right to receive referrals untainted by conflicts of interest.”

(quoting Havens, 455 U.S. at 373–74)). More recently, we

concluded that an individual had standing to sue a website

operator that allegedly had published inaccurate information

about him, regardless of whether the plaintiff had suffered

any financial or emotional harm as a consequence. See

Robins, 742 F.3d at 412–14; accord Beaudry, 579 F.3d at

707; see also In re Zynga Privacy Litig., ___ F.3d ___, 2014

WL 1814029, at *5 n.5 (9th Cir. May 8, 2014) (affirming

Article III standing based on Facebook user’s interest in

maintaining the privacy of her online identification and URL

information). In cases involving a variety of other federal

statutes, courts regularly have held that the absence of

pecuniary loss is no bar to Article III standing, if the plaintiff

has alleged a violation of the rights conferred by statute. See,

e.g., Hammer, 2014 WL 2524534, at *3–4 (action under Fair

and Accurate Credit Transactions Act); Donoghue, 696 F.3d

at 174–80 (action under section 16(b) of Securities Exchange
12 TOURGEMAN V. COLLINS FINANCIAL SERVS.

Act); Robey, 434 F.3d at 1211–12 (action under FDCPA);

DeMando v. Morris, 206 F.3d 1300, 1303 (9th Cir. 2000)

(action under Truth in Lending Act).

Although Tourgeman could not have suffered any

pecuniary loss or mental distress as the result of a letter that

he did not encounter until months after it was sent — when

related litigation was already underway — the injury he

claims to have suffered was the violation of his right not to be

the target of misleading debt collection communications. The

alleged violation of this statutory right — like those rights at

issue in Havens, Robins, and the other cases that we have

noted — constitutes a cognizable injury under Article III. 

And “[w]hen the injury in fact is the violation of a statutory

right that we inferred from the existence of a private cause of

action, causation and redressability” — the two other

elements of standing — “will usually be satisfied.” Robins,

742 F.3d at 414. Such is the case here. The alleged violation

of Tourgeman’s statutory rights stems solely from the

defendants’ having mailed to him their collection letters, and

that injury would be redressed by an award of statutory

damages, which the FDCPA makes available to prevailing

consumers. See 15 U.S.C. § 1692k(a)(2) (providing for

“additional damages”). We conclude, therefore, that

Tourgeman has constitutional standing.

B. Statutory Standing

Satisfied that Article III of the Constitution would not bar

Congress from creating a private cause of action for a

consumer in Tourgeman’s position, we now turn to ask

whether Congress actually has done so in the FDCPA. We
TOURGEMAN V. COLLINS FINANCIAL SERVS. 13

start with the text of the statute.4See Lexmark Int’l, Inc. v.

Static Control Components, Inc., 134 S. Ct. 1377, 1387–88 &

n.4 (2014); United States v. Johnson, 680 F.3d 1140, 1144

(9th Cir. 2012). The FDCPA provides that “any debt

collector who fails to comply with any provision of this

subchapter with respect to any person is liable to such

person.” 15 U.S.C. § 1692k(a). And the substantive

provision that Tourgeman alleges was violated states that “[a]

debt collector may not use any false, deceptive, or misleading

representation or means in connection with the collection of

any debt.” Id. § 1692e. The question, then, is whether the

“use [of] any false, deceptive, or misleading representation

. . . with respect to any person” entails a corollary

requirement that the person to whom the representation was

addressed actually have received it.

The statute’s text imposes no such requirement. Still, it

is not unreasonable for Nelson & Kennard to contend that the

very concept of a “representation” contemplates the presence

of two parties: the party making the representation and the

party to whom it is made. See, e.g., WEBSTER’S THIRD NEW

INT’L DICTIONARY 1926 (1993) (defining “represent” as

meaning, inter alia, “to set forth or place before someone (as

by statement, account, or discourse),” and “[to] exhibit (a

fact) to another mind in language” (emphases added));

BLACK’S LAW DICTIONARY 1415 (9th ed. 2009) (defining

“representation” as meaning, inter alia, “[a] presentation of

fact — either by words or by conduct — made to induce

4 As the Supreme Court recently noted, what the courts have sometimes

called “statutory standing” is perhaps better addressed by asking whether

Congress has created by a particular statute a cause of action in which a

class of plaintiffs is authorized to sue. Lexmark, 134 S. Ct. at 1387–88 &

n.4.
14 TOURGEMAN V. COLLINS FINANCIAL SERVS.

someone to act . . . [especially] the manifestation to another

that a fact, including a state of mind, exists” (emphases

added)). But these definitions do not speak to the nature of

the intended recipient’s role in the transaction, and the

statutory text itself is aimed squarely at the debt collector’s

conduct, rather than at its effect on the consumer. See

15 U.S.C. §§ 1692e & k(a) (proscribing the “use [of] any

false, deceptive, or misleading representation . . . with respect

to any person” (emphasis added)). A debt collector who

addresses a misleading dunning letter to a consumer as a

means of collecting that consumer’s debt “use[s]” an

unlawful practice “with respect to” the consumer, regardless

of whether some interceding condition — such as non-receipt

of the letter, or the consumer’s failure to read it, or the fact

that the consumer is savvy enough not to be misled by it —

renders the practice ineffective.

The manner in which the majority of courts have applied

the FDCPA aligns with this construction of the statute. To

begin with, a consumer possesses a right of action even where

the defendant’s conduct has not caused him or her to suffer

any pecuniary or emotional harm. E.g., Phillips v. Asset

Acceptance, LLC, 736 F.3d 1076, 1083 (7th Cir. 2013);

Robey, 434 F.3d at 1212; Miller v. Wolpoff & Abramson,

L.L.P., 321 F.3d 292, 307 (2d Cir. 2003); Baker v. G.C. Servs.

Corp., 677 F.2d 775, 780–81 (9th Cir. 1982). An FDCPA

plaintiff need not even have actually been misled or deceived

by the debt collector’s representation; instead, liability

depends on whether the hypothetical “least sophisticated

debtor” likely would be misled. E.g., Gonzales v. Arrow Fin.

Servs., LLC, 660 F.3d 1055, 1061 & n.2 (9th Cir. 2011);

Terran v. Kaplan, 109 F.3d 1428, 1431 (9th Cir. 1997). This

inquiry is objective and is undertaken as a matter of law. 

Gonzales, 660 F.3d at 1061. In addition, by making available
TOURGEMAN V. COLLINS FINANCIAL SERVS. 15

to prevailing consumers both statutory damages and

attorneys’ fees, Congress “clearly intended that private

enforcement actions would be the primacy enforcement tool

of the Act.” Baker, 677 F.2d at 780–81 (citing elements of

the FDCPA’s legislative history); see also Evon v. Law

Offices of Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir.

2012) (“The FDCPA is a consumer protection statute and was

intended to permit, even encourage, attorneys like [plaintiffs’

class counsel] to act as private attorney generals to pursue

FDCPA claims.”); Gonzales, 660 F.3d at 1061 (noting that

“Congress encouraged private enforcement [of the FDCPA]

by permitting aggrieved individuals to bring suit as private

attorneys general” (citing Camacho v. Bridgeport Fin., Inc.,

523 F.3d 973, 978 (9th Cir. 2008))).

These interlocking statutory features demonstrate that

Congress intended to achieve its goal of regulating debt

collectors’ conduct by motivating consumers to bring

enforcement actions if they are the targets of unlawful

collection efforts. And the Act’s broad regulatory purpose is

effectuated by measuring the lawfulness of a debt collector’s

conduct not by its impact on the particular consumer who

happens to bring a lawsuit, but rather on its likely effect on

the most vulnerable consumers — the hypothetical “least

sophisticated debtor” — in the marketplace. See, e.g.,

Gonzales, 660 F.3d at 1061. In addition, “[b]ecause

the FDCPA . . . is a remedial statute, it should be construed

liberally in favor of the consumer.” Clark v. Capital Credit

&Collection Servs. Inc., 460 F.3d 1162, 1176 (9th Cir. 2006)

(quoting Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.

2002)) (omission in original). This rule of construction

fortifies our conclusion that a consumer such as Tourgeman,

who did not actually receive a dunning letter directed toward
16 TOURGEMAN V. COLLINS FINANCIAL SERVS.

him at the time it was sent, nonetheless may bring an action

challenging the lawfulness of that letter under the Act.

For these reasons, Tourgeman has both Article III

standing and a statutory cause of action under the FDCPA.5

III. CLAIMS UNDER THE FDCPA

We turn now to the merits of Tourgeman’s claims, which

require that we determine whether the defendants’

communications were “misleading” under section 1692e of

the FDCPA. Although Tourgeman levels the same basic

charge against all defendants — that his original creditor, CIT

Online Bank, was falsely identified to be American

Investment Bank — there are a few distinctions between the

various challenged documents and these differences warrant

dividing our separate discussion of them. We first address

the Paragon Way letters, then the complaint drafted by

Nelson & Kennard and filed against Tourgeman in California

state court, and conclude with the letter sent by Nelson &

Kennard. We exercise de novo review over a grant or denial

of summary judgment. Evon, 688 F.3d at 1023–24. This

court also “reviews a district court’s interpretation of the

FDCPA de novo.” Id. at 1024.

5 We also reject Nelson & Kennard’s contention that Tourgeman’s

claims based on the letters are time-barred. The district court

appropriately concluded that “the first time that [Tourgeman] reasonably

could have become aware of the allegedly false and misleading

representations in Defendants’ letters was when his father was served with

summons and complaint in the state court lawsuit in October 2007,” after

which litigation discovery revealed the existence of the collection letters. 

Tourgeman, 2011 WL 3176453, at *6; see also Magnum v. Action

Collection Serv., Inc., 575 F.3d 935, 939–41 (9th Cir. 2009) (holding that

discovery rule applies in FDCPA actions).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 17

The FDCPA “comprehensively regulates the conduct of

debt collectors,” and “is a strict liability statute.” Gonzales,

660 F.3d at 1060–61; see also Clark, 460 F.3d at 1174–77

(concluding that the FDCPA holds debt collectors strictly

liable). Section 1692e therefore “broadly prohibits the use of

‘any false, deceptive, or misleading representation or means

in connection with the collection of any debt.’” Gonzales,

660 F.3d at 1061 (quoting 15 U.S.C. § 1692e). The section

also provides a non-exhaustive list of sixteen practices that

violate this general prohibition; Tourgeman relies on three of

the subsections: 1692e(2)(A), proscribing the “false

representation of the character, amount, or legal status of any

debt”; 1692e(3), prohibiting the “false representation or

implication that any individual is an attorney or that any

communication is from an attorney”; and 1692e(10),

forbidding the “use of any false representation or deceptive

means to collect or attempt to collect any debt.”

“In this circuit, a debt collector’s liability under § 1692e

of the FDCPA is an issue of law.” Gonzales, 660 F.3d at

1061. The analysis is objective and “takes into account

whether the ‘least sophisticated debtor would likely be misled

by a communication.’” Id. (quoting Donohue v. Quick

Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010)). “The

‘least sophisticated debtor’ standard is ‘lower than simply

examining whether particular language would deceive or

mislead a reasonable debtor.’” Id. (quoting Terran, 109 F.3d

at 1432). “Most courts agree that although the least

sophisticated debtor may be uninformed, naive, and gullible,

nonetheless her interpretation of a collection notice cannot be

bizarre or unreasonable.” Evon, 688 F.3d at 1027.

In addition, “[i]n assessing FDCPA liability, we are not

concerned with mere technical falsehoods that mislead no
18 TOURGEMAN V. COLLINS FINANCIAL SERVS.

one, but instead with genuinely misleading statements that

may frustrate a consumer’s ability to intelligently choose his

or her response.” Donohue, 592 F.3d at 1034. In other

words, a debt collector’s false or misleading representation

must be “material” in order for it to be actionable under the

FDCPA. Id. at 1033. “The purpose of the FDCPA, ‘to

provide information that helps consumers to choose

intelligently,’ would not be furthered by creating liability as

to immaterial information because ‘by definition immaterial

information neither contributes to that objective (if the

statement is correct) nor undermines it (if the statement is

incorrect).’” Id. (quoting Hahn v. Triumph P’ships LLC,

557 F.3d 755, 757–58 (7th Cir. 2009)). Thus, “false but nonmaterial representations are not likely to mislead the least

sophisticated consumer and therefore are not actionable under

[section] 1692e.” Id.

A. Paragon Way Letters

Paragon Way mailed three letters to Tourgeman that

falsely identified his original creditor as “American

Investment Bank, N.A.,” when in fact CIT Online Bank

originated his loan. The letters also displayed an “Original

Account #” that did not match Tourgeman’s original CIT loan

number. The first two of these letters, however, did include

a “Description” line item that stated, “Dell Computer

Corporation.” The question presented is whether this

combination of features — in particular, the letters’

misidentification of Tourgeman’s original creditor —
TOURGEMAN V. COLLINS FINANCIAL SERVS. 19

rendered these letters materially misleading under section

1692e.6

Tourgeman contends that these false statements could

lead a consumer to reach any number of incorrect

understandings about the nature of the predicament he or she

faces. For example, the consumer might be concerned that

the erroneous information is indicative of an attempted fraud. 

Or the consumer might assume that because the letter seeks

to collect a debt that evidently does not belong to him, the

letter can safely be disregarded. Alternatively, the consumer

might be concerned that if he responds to the letter by paying

the amount demanded, he will later receive another letter

from a different debt collector attempting to collect the same

debt. Tourgeman contends that because each of these beliefs

about the nature of the situation is just as reasonable as the

6 Tourgeman places little emphasis on the presence in the letters of an

incorrect account number. At oral argument, his counsel simply stated

that the unfamiliar account number made the letters “doubly confusing.” 

Counsel for Nelson & Kennard, in his argument, maintained that any

claim made on the basis of the account number had not been pled in

Tourgeman’s complaint, and had only been raised on appeal. But the

district court clearly considered this factual allegation in its decision on

summary judgment. See Tourgeman, 2012 WL 3731807, at *3.

In any event, we conclude that the misidentification of the original

creditor is independently sufficient to constitute a violation of the Act. 

Although the incorrect account number certainly compounds the violation,

we do not determine whether that particular false statement, standing

alone, would be sufficient to violate the FDCPA.
20 TOURGEMAN V. COLLINS FINANCIAL SERVS.

one true understanding, he has been misled or deceived

within the meaning of the Act.7

Nelson & Kennard maintains that despite the erroneous

identification of Tourgeman’s original creditor,the references

to Dell in the first two Paragon Way letters were sufficient to

tip off even the least sophisticated debtor about the subject

matter of the collection effort. And a consumer genuinely

puzzled by the mention of American Investment Bank, need

only have picked up the phone to call for more information or

to dispute the debt. Thus, says Nelson & Kennard, because

the consumer’s ability to intelligently respond to the letters

would not have been adversely affected by the incorrect

information, the false statements were not “material,” and

consequently Paragon Way did not violate the Act.

In Donohue, we held that a defendant’s mislabeling of a

portion of a debt as “interest . . . of 12%” — when in fact the

sum “included pre-finance charges and interest” — did not

violate section 1692e because the statement’s falsity “did not

undermine Donohue’s ability to intelligently choose her

action concerning her debt.” Id. at 1034. We relied on the

Seventh Circuit’s decision in Hahn, which involved

comparable facts. See 557 F.3d at 757 (“[T]he difference

between principal and interest is no more important to the

 

7 Tourgeman also argues that summary judgment should not have been

granted to Collins and Paragon Way in light of deposition testimony given

by Walt Collins, the founder and former CEO of Collins Financial

Services, in which Mr. Collins opined that the misidentification of

Tourgeman’s original creditor violated the FDCPA. This line of argument

is foreclosed by our precedents, in which we have recognized that “we are

not bound by a witness’s opinions about the law.” Miller v. Clark Cnty.,

340 F.3d 959, 963 n.7 (9th Cir. 2003); see also McHugh v. United Serv.

Auto. Ass’n, 164 F.3d 451, 454 (9th Cir. 1999).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 21

Fair Debt Collection Practices Act than the color of the paper

that [the creditor] used.”); see also Wahl v. Midland Credit

Mgmt., Inc., 556 F.3d 643, 646 (7th Cir. 2009) (“[Plaintiff]

can’t win simply by showing that [the debt collector’s] use of

the term ‘principal balance’ is false in a technical sense; she

has to show that it would mislead the unsophisticated

consumer.”).

By contrast, in Lox v. CDA, Ltd., 689 F.3d 818 (7th Cir.

2012), the court concluded that the statement that a tribunal

could award attorneys’ fees payable by the consumer —

when, in fact, such an outcome was a legal impossibility —

was a material misrepresentation because, for the consumer

who believed that were the case, such a fact “would have

undoubtedly been a factor in his decision-making process,

and very well could have led to a decision to pay a debt that

he would have preferred to contest.” Id. at 827. And the

Sixth Circuit has held that a consumer’s allegations that she

endured “confusion and delay in trying to contact the proper

party concerning payment on her loan and resolution of [her]

problem,” which allegedly was caused by the defendant’s

false statement that a particular bank held her mortgage note,

sufficiently stated a claim under the court’s FDCPA

materiality standard. Wallace v. Wash. Mut. Bank, F.A.,

683 F.3d 323, 327–28 (6th Cir. 2012).

We are persuaded that, in the context of debt collection,

the identity of a consumer’s original creditor is a critical

piece of information, and therefore its false identification in

a dunning letter would be likely to mislead some consumers

in a material way. Unlike mislabeling portions of a total debt

as principal rather than interest — literally false, but

meaningful only to the “hypertechnical” reader, see Wahl,

556 F.3d at 645 — the factual errors in Paragon Way’s letters
22 TOURGEMAN V. COLLINS FINANCIAL SERVS.

to Tourgeman could easily cause the least sophisticated

debtor to suffer a disadvantage in charting a course of action

in response to the collection effort. See Donohue, 592 F.3d

at 1034 (a false statement violates the FDCPA if it “may

frustrate a consumer’s ability to intelligently choose his or her

response”).8

The debtor who takes Paragon Way’s letters at face value

— either because he does not remember the details

concerning his financing of a computer bought several years

beforehand, or perhaps because he never knew the identity of

his original creditor to begin with — might engage in a

fruitless attempt to investigate the facts of this non-existent

debt, in a responsible effort to determine how to most

effectively respond to the collection notice. This debtor

might, quite reasonably, contact American Investment Bank

to obtain background information so that he can remember

what had earlier transpired, or to obtain any records that the

bank holds pertaining to his debt so that he can prove he

already had paid it off, if he believes such is the case. But, of

course, American Investment Bank would have no record of

a loan agreement; and the unknown account number certainly

is of no help in getting to the bottom of things. Even if the

8 The district court was “not persuaded that the misidentification of the

original creditor, or the account number, in this case would ‘frustrate a

consumer’s ability to intelligently choose his or her response,’” because

“the least sophisticated debtor would not have recognized the original

creditor, or account number, even if they had been correctly identified in

the first instance.” Tourgeman, 2012 WL 3731807, at *5 (quoting

Donohue, 592 F.3d at 1034). This approach, however, defeats the purpose

of the least sophisticated debtor standard, which is to “ensure that the

FDCPA protects all consumers, the gullible as well as the shrewd.” 

Clark, 460 F.3d at 1171 (quoting Clomon v. Jackson, 988 F.2d 1314,

1318–19 (2d Cir. 1993)) (alteration omitted) (emphases added).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 23

consumer eventually finds his way to learning that the letter

referred to the Dell debt he had incurred with CIT Online

Bank, the delay already would have cost him some portion of

the thirty days that the FDCPA grants to consumers before

having to respond to a collection notice, lest the debt collector

be entitled to assume the validity of the debt. See 15 U.S.C.

§ 1692g. And such “confusion and delay in trying to contact

the proper party concerning payment on [the] loan” is

precisely the kind of infringement of the consumer’s best

interests that the FDCPA seeks to combat. Wallace, 683 F.3d

at 327.9

By ensuring that consumers are fully and truthfully

apprised of the facts and of their rights, the FDCPA enables

them “to understand, make informed decisions about, and

participate fully and meaningfully in the debt collection

process.” Clark, 460 F.3d at 1171; see also Donohue,

592 F.3d at 1033 (“The purpose of the FDCPA [is] ‘to

provide information that helps consumers to choose

9 Debt collectors must not make representations that tend to lead

consumers to forego the valuable rights granted to them by the Act. See,

e.g., Easterling v. Collecto, Inc., 692 F.3d 229, 235 (2d Cir. 2012)

(collection letter violated section 1692e due to its “capacity to discourage

debtors from fully availing themselves of their legal rights”); Russell v.

Equifax A.R.S., 74 F.3d 30, 34–36 (2d Cir. 1996) (collection letters

violated both sections 1692g and 1692e(10) by employing language that

would tend to make consumer “uncertain as to her rights” to enjoy thirtyday period within which to dispute debt or demand validation from debt

collector); Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1225–26

(9th Cir. 1988) (per curiam) (debt collector violated section 1692g by

overshadowing notice of thirty-day period by including language that

“promis[ed] harm to the debtor who waits beyond 10 days”).
24 TOURGEMAN V. COLLINS FINANCIAL SERVS.

intelligently.’” (quoting Hahn, 557 F.3d at 757–58)).10

Paragon Way’s false representations would likely mislead

consumers in a manner that deprives them of their right to

enjoy these benefits. We therefore hold that these letters

contained materially misleading statements that trigger

liability under section 1692e of the Act. Accordingly, the

appellant is entitled to judgment on his claims against

Paragon Way under subsections 1692e(2) and e(10).

Nelson & Kennard repeatedly suggests that a perplexed

consumer could simply place a phone call to the debt

collector to clear up any confusion. But for many consumers

— particularly those who do not even recognize that they

have encountered false information — making such a call

likely would not be their first reaction to the letter, nor does

the FDCPA require that it be so. As we have previously

explained, “consumers are under no obligation to seek

explanation of confusing or misleading language in debt

collection letters.” Gonzales, 660 F.3d at 1062 (citing Fields

v. Wilber Law Firm, P.C., 383 F.3d 562, 566 (7th Cir. 2004)). 

Indeed, Nelson & Kennard’s argument, taken to its furthest

reach, would transform many of the FDCPA’s substantive

provisions into surplusage, converting any dunning letter

bearing a return address and phone number into a

 

10 Nelson & Kennard may be correct that the FDCPA does not require

that the original creditor be identified in collection letters sent to

consumers — but where a debt collector has chosen to identify the

original creditor, and has done so inaccurately, the false representation

would likely thwart a consumer’s ability to freely navigate a course of

action in response to the collection notice. Congress’s recognition in the

FDCPA that this information is important — even if not so essential that

debt collectors must disclose it without first being asked, see 15 U.S.C.

§ 1692g(a)(5) — supports the conclusion that its false provision could

have this type of detrimental impact on the consumer.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 25

communication not misleading by virtue of those features. 

See Fields, 383 F.3d at 566 (noting that the Seventh Circuit

has “rejected the proposition that a debt collector could

provide incomplete information in a dunning letter so long as

it provided a telephone number for the debtor to call”). 

Interpreting materiality in such a fashion would gut the

FDCPA’s prohibition of misleading representations, and

“[w]e must avoid a construction which renders any language

of the enactment superfluous.” Security Pac. Nat’l Bank v.

Resolution Trust Corp., 63 F.3d 900, 904 (9th Cir. 1995).

B. State Court Complaint

We next address the complaint prepared by Nelson &

Kennard and filed against Tourgeman in California state

court, which Nelson & Kennard delivered directly to

Tourgeman’s father, who then transmitted it to his son in

Mexico. Tourgeman, 2012 WL 3731807, at *2, *8–9.

11

Because the one material aspect of this complaint is the same

as that which renders Paragon Way’s letters misleading —

namely, the inclusion of erroneous references to American

Investment Bank — the preceding discussion applies with

equal force to this document. The complaint presented the

information in a somewhat different format, however; the

body of the complaint twice referred to a loan agreement

between American Investment Bank and Tourgeman. 

Attached to the complaint was a blank exemplar of such an

11 In Donohue, this court held that a complaint that is served directly on

a consumer qualifies as a “communication” that is subject to the strictures

of section 1692e. 592 F.3d at 1031–32. At least one court has gone

further and concluded that a complaint that is merely filed, but not actually

served, also can give rise to liability under the FDCPA. Phillips, 736 F.3d

at 1082–83.
26 TOURGEMAN V. COLLINS FINANCIAL SERVS.

agreement between the bank and a Dell Computer customer,

which featured the logos of both American Investment Bank

and Dell. Although the complaint lacked any reference to the

erroneous account number, based on the reasoning of the

preceding section of this opinion, we necessarily conclude

that Nelson & Kennard violated the Act by transmitting this

complaint to Tourgeman.

Furthermore, a consumer could be harmed by a complaint

— as opposed to a dunning letter — in ways distinct yet

equally problematic as those we have already discussed. For

example, the consumer who engages legal counsel might be

unable to accurately apprise the lawyer of the relevant

circumstances, potentially leading to lost opportunities to

settle the debt. And the stakes are undoubtedly higher when

the consumer faces the possibility of a default judgment

rather than the mere continuation of collection attempts.

C. Nelson & Kennard Letter

Finally, we come to the letter mailed to Tourgeman by

Nelson & Kennard. That letter informed him that the firm’s

client, Collins Financial Services, “ha[d] forwarded [his]

account to this office with instructions that we take

appropriate action to effect collection of the above-referenced

balances due.” The Nelson & Kennard letter did not mention

Dell. It did reference “American Investment Bank, N.A.,”

but, unlike the Paragon Way letters, it did not label the bank

as Tourgeman’s “original creditor.” Rather, both the bank’s

name and the same incorrect account number that appeared

in Paragon’s letters were placed in a “Re:” line item atop the

body of the letter. There was no explanation as to the

meaning or significance of these pieces of information.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 27

Nelson & Kennard argues that the absence of a label

informing Tourgeman that American Investment Bank was

the original creditor somehow makes the letter less

misleading than those sent by Paragon Way, because the

original creditor was not “misidentified.” On the contrary,

Nelson &Kennard’s letter gives the least sophisticated debtor

even less of a clue as to how to investigate the claim being

made against him, making it more likely that the consumer

will waste valuable time and suffer confusion in his efforts to

formulate a response. Nelson & Kennard also emphasizes

that its letter does correctly identify Tourgeman’s current

creditor — Collins Financial Services — but, in fact, the

letter simply states that Collins is the firm’s “client.” By

contrast, Paragon Way’s letters clearly describe Collins as

Tourgeman’s “current creditor.” Because the Nelson &

Kennard letter does not describe who American Investment

Bank purports to be, and as one cannot assume that the least

sophisticated debtor understands that the firm’s “client” —

Collins Financial Services — is the entity to whom he

currently owes money, the consumer might very well think

that the letter concerns a debt currently owned by American

Investment Bank. Such a misunderstanding could further

impede the consumer’s ability to exercise his rights under the

FDCPA.

Nelson & Kennard also argues that because its letter came

on the heels of the letters sent by Paragon Way — two of

which mentioned Dell Computer Corporation — a consumer

in Tourgeman’s position would know what the letter

concerned and therefore would not be misled by the absence

of any reference to Dell. We need not decide whether there

may be some circumstances in which it would be appropriate,

in determining a dunning letter’s tendency to mislead, to

consider the consumer’s receipt of earlier letters sent by a
28 TOURGEMAN V. COLLINS FINANCIAL SERVS.

different debt collector. As we already have explained,

Paragon Way’s letters were materially misleading

notwithstanding having included references to Dell. The fact

that Tourgeman had been sent the misleading Paragon Way

letters therefore does not help Nelson & Kennard.

Tourgeman also advances an independent ground for

finding that Nelson & Kennard’s dunning letter violated the

FDCPA. He alleges that the lawyer who signed the Nelson

& Kennard letter was not “meaningfully involved” in the

evaluation of Tourgeman’s case before sending a letter on

law firm letterhead. The “meaningful involvement doctrine”

— to which this court has once referred in passing, see

Gonzales, 660 F.3d at 1063, but which we have never

squarely adopted — grows out of the language in 15 U.S.C.

§ 1692e(3), which prohibits “[t]he false representation or

implication that any individual is an attorney or that any

communication is from an attorney.”12

The foundational case is Clomon v. Jackson, 988 F.2d

1314 (2d Cir. 1993). In Clomon, the defendant worked as the

part-time general counsel of a debt collection agency, and

authorized the agency to send dunning letters bearing his

name and a facsimile of his signature — even though he did

not personally review either the individual letters or the files

of the consumers to whom the letters were sent. Id. at 1316. 

The Second Circuit concluded that the attorney thereby

violated subsection 1692e(3) because “the collection letters

were not ‘from’ [the defendant] in any meaningful sense of

12 The concept of “meaningful involvement” is only pertinent to claims

brought under subsection 1692e(3), not to subsection e(2) and e(10)

claims, because the phrase has developed through courts’ construction of

the unique language of e(3).
TOURGEMAN V. COLLINS FINANCIAL SERVS. 29

that word.” Id. at 1320. Driving this conclusion, in part, was

the court’s finding that the “use of an attorney’s signature

implies — at least in the absence of language to the contrary

— that the attorney signing the letter formed an opinion about

how to manage the case of the debtor to whom the letter was

sent.” Id. at 1321. This construction of subsection 1692e(3)

has since been adopted by four other circuits. See, e.g.,

Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993,

1003 (3d Cir. 2011); Kistner v. Law Offices of Michael P.

Margelefsky, 518 F.3d 433, 438–41 (6th Cir. 2008); Taylor v.

Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238

(5th Cir. 1997); Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996). 

The Seventh Circuit explained the rationale for the doctrine

this way: “An unsophisticated consumer, getting a letter from

an ‘attorney,’ knows the price of poker has just gone up.” 

Avila, 84 F.3d at 229.

The district court granted summary judgment to Nelson

&Kennard on Tourgeman’s claim under subsection 1692e(3). 

It assumed that the meaningful involvement doctrine was

applicable, see Tourgeman, 2012 WL3731807, at *6, perhaps

because in an earlier decision in the case — when the action

was before another district judge on Nelson & Kennard’s

motion to dismiss the complaint — that judge had adopted the

doctrine. See Tourgeman, 2011 WL 3176453, at *8–9. In

ruling on the summaryjudgment motion, however, the district

court found it undisputed that the attorney who signed the

collection letters was meaningfully involved, and granted

judgment to Nelson & Kennard on the meaningful

involvement claim. 2012 WL 3731807, at *6–7.

We need not determine whether to adopt a construction of

section 1692e(3) that incorporates a requirement of

meaningful involvement by an attorney who sends a dunning
30 TOURGEMAN V. COLLINS FINANCIAL SERVS.

letter.13 We have already concluded that Nelson & Kennard

violated the FDCPA by including misleading references to

American Investment Bank in both its letter to Tourgeman

and in the state court complaint it filed against him. These

conclusions are sufficient to warrant both reversal of the

judgment granted to Nelson & Kennard and entry of

judgment in favor of Tourgeman. Because “[v]iolation of a

single [FDCPA] provision is sufficient to establish liability,”

Gonzales, 660 F.3d at 1064 n.6, we need not decide whether

Nelson & Kennard also violated subsection 1692e(3) based

on a lack of meaningful attorney involvement.14

IV. CONCLUSION

For the foregoing reasons, we conclude that the judgment

of the district court granting judgment to Collins, Paragon

Way, and Nelson & Kennard must be reversed, and that

13 For this reason, we deny the motion of the National Association of

Retail Collection Attorneys for leave to file an amicus curiae brief in

support of the appellees.

 

14 The only potential relevance of finding an additional violation could

be with respect to calculating the amount of statutory damages to be

awarded to Tourgeman. See Clark, 460 F.3d at 1178 (concluding that “the

fact that numerous violations of the FDCPA are predicated upon one set

of circumstances should be considered and that it is best considered during

the calculation of damages” (citing 15 U.S.C. § 1692k(a), (b))); Peter v.

GC Servs. L.P., 310 F.3d 344, 352 n.5 (5th Cir. 2002). Should there arise

a dispute with respect to damages that implicates a need to decide

Tourgeman’s claim under 1692e(3), the district court presumably will

adhere to the law of the case and apply the meaningful involvement

doctrine. But unlike the district court, we view the evidence to be

equivocal as to what the attorney did or did not do before the firm sent the

dunning letter; on this record, neither party would be entitled to summary

judgment on this claim.
TOURGEMAN V. COLLINS FINANCIAL SERVS. 31

judgment should instead be entered for Tourgeman against

Paragon Way and Nelson & Kennard. We express no view

regarding whether Tourgeman is entitled to judgment against

Collins itself, as Tourgeman’s claims against that entity were

based on a theory of vicarious liability that was neither

decided by the district court nor briefed on this appeal. We

remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FARRIS, Circuit Judge, dissenting:

I respectfully dissent. As I view the record, the trial court

got it right. I would affirm.