## F I L E D United States Court of Appeals Tenth Circuit 

### January 18, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD ROBEY, on behalf of himself and others similarly situated,

Plaintiff-Appellant,

v. SHAPIRO, MARIANOS & CEJDA, L.L.C.; THERESA MARIANOS; KIRK J. CEJDA; GERALD SHAPIRO; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

Defendants-Appellees. No. 04-5163

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 02-CV-584-P)

Submitted on the briefs: Lawrence A. G. Johnson, Tulsa, Oklahoma, for Plaint iff-Appellant. Victor E. Morgan, Gerald L. Jackson, Crowe & Dunlev y, Tulsa, Oklahoma, Richard C. Ford, Crowe & Dunlevy, Oklahoma City, Ok lahoma, Melvin R. McVay, Jr., Heather L. Hintz, Phillips, McFall, McC affrey, McVay & Murrah, P.C., Oklahoma City, Oklahoma, for Defendants-Appel lees.

Before KELLY , SEYMOUR , and MURPHY , Circuit Judges.* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

1 As used herein, the term “the Lawyer Defendants” in cludes the named individual lawyers from the Shapiro firm, defendant s Theresa Marianos, Kirk J. Cejda, and Gerald Shapiro. -2- SEYMOUR , Circuit Judge.

This appeal involves claims brought under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692o. Pl aintiff Richard Robey is appealing the order entered by the district court d ismissing his first amended complaint under F ED
. R. C IV
. P. 12(b)(6). Exercising jurisdiction under 28 U.S. C. § 1291, we affirm. *
I. A. Background. This case arises out of a state-court foreclosure a ction filed by defendant Mortgage Electronic Registration Systems, Inc. (MERS) against Robey in Tulsa County, Oklahoma. MERS was represented in the foreclosure action by defendant Shapiro, Marianos, & Cejda, L.L.C. (the L awyer Defendants). 1 In the foreclosure petition, the Lawyer Defendants request ed that MERS be awarded-3-

both a money judgment and a judgment of foreclosure , and they also requested additional relief, including that MERS be awarded “ a reasonable attorney’s fee.” Aple. App. at 50. MERS ultimately dismissed the fo reclosure action without prejudice, however, and MERS was not awarded any attorney’s fees. Id. at 152-
55. Prior to the dismissal of the foreclosure action, R obey filed this action against MERS and the Lawyer Defendants, alleging th ey violated the FDCPA when they sought to recover a “reasonable attorney’ s fee” in the foreclosure action. According to Robey, the request for a “rea sonable attorney’s fee” was an unfair debt collection practice under 15 U.S.C. § 1 692f(1) because: (1) MERS and the Lawyer Defendants had agreed that the Lawyer De fendants would handle the foreclosure action for a flat fee; and (2) the flat -fee agreement was never disclosed to the state court. Robey also asserted pendent state-law claims against defendants. The state-law claims included a claim that MERS violated Oklahoma law by failing to reveal that it was not the holder of the promissory note being sued on in the foreclosure action.
B. District Court’s Dismissal Order.
Pursuant to F ED
. R. C IV
. P. 12(b)(1) and (b)(6), defendants filed motions to dismiss Robey’s first amended complaint, arguing th at: (1) Robey lacked standing to assert his claims because he had not suffered an injury in fact in the foreclosure-4-

action; and (2) Robey failed to state a claim upon which relief could be granted related to the foreclosure action because an award of attorney’s fees was authorized by Oklahoma law and the terms of Robey’s mortgage. In ruling on defendants’ motions to dismiss, the di strict court addressed only defendants’ second argument. The court began its analysis on that point by noting the following:

Under the FDCPA, “[a] debt collector may not use un fair or unconscionable means to collect or attempt to colle ct any debt.” 15 U.S.C. § 1692f. “Unfair or unconscionable” is d efined to include “[t]he collection of any amount (including any inte rest, fee, charge or expense incidental to the principal obligation) unl ess such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1). Robey v. Shapiro, Marianos & Cejda, L.L.C. , 340 F. Supp. 2d 1062, 1064 (N.D. Okla. 2004). Applying these provisions, the court rejected Robey’s claim that the request in the foreclosure petition for a “reasonable attorney’s fee” was an unfair debt collection practice under § 1692f(1) , and therefore concluded that Robey had failed to state a claim under the FDCPA. As the court explained:

To put it simply, Plaintiff’s position is unsupport ed. Oklahoma law permits the recovery of a reasonable attorney’s fee in a mortgage foreclosure action as the prevailing party. Okla. Stat. tit. 42 § 176. Plaintiff’s mortgage at the time the for eclosure was filed and the demand letter was sent provided for the rec overy of “reasonable attorney’s fees customarily charged in the area.” . . . Plaintiff’s citation to various statutes and unrelated authorities is novel but misguided. Plaintiff would have this Court attempt to connect several seemingly unrelated state statutes to arrive at a conclusion that Shapiro’s and MERS’s practices are prohibited by a-5-

federal law represented in the FDCPA. . . . Plaint iff also cites to various other inapplicable cases and statutes perta ining to attorney ethics in an attempt to persuade this Court to adop t a heretofore unrecognized position under the FDCPA. This Court declines to do so. The fees sought in the prayer of the foreclosu re action [are] authorized by statute and the agreement between the mortgagee and mortgagor. Plaintiff’s attempt to transform Shapir o’s and MERS’s actions into something sinister is lacking. At bes t, the failure to disclose the flat fee arrangement is a matter best left to the determination of the court presiding over the forec losure. The practice, however, does not violate the FDCPA. Id. at 1064-65. With regard to Robey’s claim against MERS for faili ng to reveal it was not the holder of the promissory note, the district cou rt noted that the claim was “only referenced in the introduction of the First Amended Complaint and Count II of the Pendent State Claims section of the pleading.” Id. at 1065. The court thus “interpret[ed] the claim to be only based in state law and not the FDCPA.” Id. Having determined that “the sole claim based in fed eral law [had to be] dismissed,” id. , the court then declined to exercise supplemental jurisdiction over Robey’s state-law claims, id. (citing 28 U.S.C. § 1367(c)(3)).
II. A. Standing Issue. “Article III, Section 2 of the United States Consti tution extends the judicial power only to ‘Cases’ or ‘Controversies.’ A disput e is an Article III ‘Case’ or ‘Controversy’ only if the plaintiff can establish w hat is known as ‘constitutional-6-

standing.’” Carolina Cas. Ins. Co. v. Pinnacol Assurance , 425 F.3d 921, 926 (10th Cir. 2005). Constitutional standing exists i f the plaintiff: show[s] [that] (1) it has suffered an “injury in fa ct” that is (a) concrete and particularized and (b) actual or immin ent, not conjectural or hypothetical; (2) the injury is fair ly traceable to the challenged action of the defendant; and (3) it is l ikely, as opposed to merely speculative, that the injury will be redress ed by a favorable decision. Id. (quotation omitted). Moreover, Congress may expan d the range or scope of injuries that are cognizable for purposes of Articl e III standing by enacting statutes which create legal rights. Thus, as the S upreme Court has explained, “Congress may enact statutes creating legal rights, the invasion of which creates [constitutional] standing, even though no injury wo uld exist without the statute.” Linda R.S. v. Richard D. , 410 U.S. 614, 617 n.3 (1973); see also Lujan v. Defenders of Wildlife , 504 U.S. 555, 578 (1992) (stating that “[t]he . . . injury required by Art. III may exist solely by virtue of statutes creating legal rights,” and that this “principle involve[s] Congress’ elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law”) (quotations omitted); Akins v. Fed. Election Comm’n , 101 F.3d 731, 736 (D.C. Cir. 1996) ( en banc ) (“Although Congress may not ‘create’ an Article I II injury that the federal judiciary would not recogni ze, . . . Congress can create a legal right (and, typically, a cause of action to p rotect that right) the interference-7-

with which will create an Article III injury.” (cit ations omitted)), vacated on other grounds , 524 U.S. 11 (1998). Congress “may also . . . place additional restricti ons on who can sue, imposing requirements of ‘statutory standing.’” Carolina Cas. Ins. Co. , 425 F.3d at 926 (quotation omitted). As we recently explain ed, it is important to distinguish between constitutional standing and statutory standing:

Because constitutional standing is necessary to the court’s jurisdiction, as a general rule it must be addresse d before proceeding to the merits. See Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 96-97, 97 n.2 . . . (1998) . . . . On the other hand, statutory standing need not be a ddressed if the court determines that the plaintiff loses on th e merits anyway. Id. Because Robey was not actually ordered to pay any attorney’s fees in the state-court foreclosure action, defendants argued i n district court that Robey had not suffered any injury and therefore lacked standi ng to pursue his claims under the FDCPA. In its order dismissing Robey’s claims under Rule 12(b)(6), the district court acknowledged the standing issue but chose not to address it, explaining that “[a]lthough Plaintiff may well lackstanding to bring this action . . . , this Court chooses not to address th is issue, given the dismissal of the FDCPA claim.” Robey , 340 F. Supp. 2d at 1065. In light of the Supreme Court’s decision in Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 93-102 (1998), however, the district court should have decided the standing issue first, at least as-8-

it pertains to Robey’s constitutional standing for purposes of Article III. See Gold v. Local 7 United Food & Commercial Workers Un ion , 159 F.3d 1307, 1309-10 (10th Cir. 1998) (stating that “ Steelrequires that a federal court satisfy itself of subject matter jurisdiction before procee ding to the merits of a claim–even when the question of the merits is the e asier one and is substantively resolvable against the claim over which jurisdictio n is in doubt”), overruled on other grounds by Styskal v. Weld County Bd. of Comm ’rs , 365 F.3d 855, 858 (10th Cir. 2004). We therefore address the constit utional standing issue before proceeding to the merits of Robey’s claims. See San Juan County, Utah v. United
States , 420 F.3d 1197, 1203 (10th Cir. 2005) (“Because st anding implicates the district court’s subject matter jurisdiction, we mu st address this issue before addressing the merits of [an] appeal.”). In so doi ng, we recognize we are dealing with legal rights created by Congress under the FDC PA. Hence, the “injury in fact” analysis for purposes of Article III is direc tly linked to the question of whether Robey has suffered a cognizable statutory i njury under the FDCPA. We determine that Robey has suffered an injury in f act under the FDCPA and therefore has standing to pursue his challenge against defendants’ request for an award of attorney’s fees in the foreclosure acti on. As the Second Circuit explained in a case in which the plaintiff was alle ging that a creditor violated the FDCPA by making an unlawful request for attorney’s fees:-9- Defendants maintain that plaintiff lacks standing t o pursue this claim because it is undisputed that plaintiff neverpaid anyattorneys’ fees to either UC & S or NAN, as the underlying law suit initiated by UC & S was settled with different counsel. Accordi ngly, defendants argue that plaintiff did not suffer any identifiabl e injury. The FDCPA provides for liability for attempting to coll ect an unlawful debt, however, and permits the recovery of statutory damages up to $1,000 in the absence of actual damages. Thus, cou rts have held that actual damages are not required for standing under the FDCPA. See, e.g, Keele v. Wexler , 149 F.3d 589, 594 (7th Cir. 1998) (“[T]he plaintiff who admittedly owes a legitimate debt has standing to sue if the Act is violated by an unprincipled debt collect or.”); Baker v. G.C. Servs. Corp. , 677 F.2d 775, 777 (9th Cir. 1982) (same); cf. Gambardella v. G. Fox & Co. , 716 F.2d 104, 108 n.4 (2d Cir. 1983) (noting that “[i]t is well settled . . . that proof of actual deception or damages is unnecessary to a recovery of statutory d amages” under the Truth in Lending Act). Accordingly, we join th ose courts and hold that the fact that plaintiff did not ever pay any attorneys’ fees to NAN does not necessarily suggest that he was not in jured for purposes of his FDCPA claim, if he can show that UC & S attempted to collect money in violation of the FDCPA. Miller v. Wolpoff & Abramson, L.L.P. , 321 F.3d 292, 307 (2d Cir. 2003); see also 15 U.S.C. § 1692f (providing that “[a] debt collect or may not use unfair or unconscionable means to collect or attempt to collectany debt”) (emphasis added); Johnson v. Riddle , 305 F.3d 1107, 1121 (10th Cir. 2002) (holding “th at [defendant] violated the FDCPA because he attempted to collect an amount not permitted by [Utah] law,” without addressing standi ng). Because Robey is claiming that defendants violated the FDCPA by attempting to collect attorney’s fees that were notpermitted under Oklahoma law, the Second Circuit’s reasoning in Miller and our decision in Johnson apply with-10-

equal force to this case. Accordingly, Robey has b een injured under the terms of the FDCPA and can seek legal redress of his claims under that act. He has thus satisfied the “injury in fact” and other requiremen ts of constitutional standing. B. Rule 12(b)(6) Dismissal. We review a Rule 12(b)(6) dismissal de novo , accepting all well-pleaded facts as true and in the light most favorable to th e nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). “A 12(b)(6) motion should not be granted unless it app ears beyond doubt that the plaintiff can prove no set of facts in support of h is claim which would entitle him to relief.” Id. (quotation omitted). Having conducted the required de novo review, we affirm the dismissal of Robey’s claims under the FDCPA for substantially th e same reasons set forth in the district court’s opinion. See Robey , 340 F. Supp. 2d at 1064-65. With regard to the dismissal of his state-law claims, Robey has not argued in this appeal that the district court abused its discretion in refusin g to exercise supplemental jurisdiction over the state-law claims. See Gold, 159 F.3d at 1310 (“[W]e review the district court’s decision to decline supplement al jurisdiction for abuse of discretion only.”). Robey has therefore waived his right to challenge the dismissal of the state-law claims. See Lifewise Master Funding v. Telebank, 374 F.3d 917, 927 n.10 (10th Cir. 2004) (holding th at appellant waived its right to-11-

appeal rulings of the district court that it did no t substantively address in its opening brief). Finally, while Robey contends he has stated a claim against MERS under the FDCPA for failing to reveal that it was not the holder of the promissory note,

see Aplt. Br. at 6-7, 8, 21, Robey did not make this f ederal-law argument in the proceedings before the district court. “Generally, an appellate court will not consider an issue raised for the first time on appe al,” Tele-Commc’ns, Inc. v.
C.I.R. , 104 F.3d 1229, 1232 (10th Cir. 1997), and Robey h as failed to offer any reason why we should depart from the general rule h ere. C. Class-Action Allegations. In addition to asserting claims under the FDCPA on his own behalf, Robey also sought to certify a class action under F ED
. R. C IV
. P. 23. Because we conclude the district court correctly determined th at Robey failed to state a claim on his own behalf under the FDCPA, we also conclude that Robey’s class-action allegations were properly dismissed. See Sample v. Aldi Inc. , 61 F.3d 544, 551-52 (7th Cir. 1995) (class-action allegations pr operly dismissed where district court granted summary judgment on plaintiff’s indiv idual claims), disapproved on other grounds , Carson v. Bethlehem Steel Corp. , 82 F.3d 157, 159 (7th Cir. 1996).-12-

We AFFIRM the judgment of the district court. We also GRANT appellees’ joint motion to strike pages 24-59 of Ro bey’s appendix.