1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JANICE LOTT, on behalf of herself and 

all others similarly situated; 

KANIKA CHEA, on behalf of herself and 

all others similarly situated,

No. 3:16-cv-00419-HZ

Plaintiffs,

OPINION & ORDER

v.

VIAL FOTHERINGHAM, LLP,

Defendant.

Bret Knewston

Bret Knewston, Esq.

3000 NW Stucki Pl., Ste. 230-M

Hillsboro, OR 97214

Mark. G. Passannante

Boer & Passannante, P.S.

1001 SW Fifth Ave., Ste. 1220

Portland, OR 97204

Attorneys for Plaintiff

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 1 of 9
2 – OPINION & ORDER

Jonathan M. Radmacher

McGowen Grisvold, LLP

1100 S.W. Sixth Ave., Suit 1600

Portland, OR 97204

Attorney for Defendant

HERNÁNDEZ, District Judge:

Plaintiffs Janice Lott and Kanika Chea (collectively “Plaintiffs”) bring, among others,

claims under the Fair Debt Collection Practices Act (FDCPA) against Defendant Vial 

Fotheringham, LLP, alleging that Defendant, in its role as debt collector, engaged in abusive, 

deceptive, and unfair debt collection efforts when attempting to collect overdue HOA fees from

Plaintiffs.

Defendant moves to dismiss several of Plaintiffs’ claims.

1

Specifically, Defendant 

contends that Plaintiff Lott has failed to state a claim regarding her allegation that Defendant 

threatened to foreclose on her property without intending to foreclosure in violation of 15 U.S.C. 

§ 1692e(5). With respect to Plaintiff Chea, Defendant contends that her claim should be 

dismissed as time-barred under the FDCPA’s one year statute of limitations, and that Ms. Chea 

has failed to state a claim regarding her allegation that Defendant coerced her into signing an 

agreement settling her outstanding debt. In the event that Plaintiffs’ claims are not dismissed, 

Defendant moves to sever Plaintiffs, arguing that Ms. Lott and Ms. Chea are not properly joined 

under Federal Rule of Civil Procedure (“Rule”) 20(a).

 

1 Defendant notes in its motion to dismiss that Plaintiff failed to respond to Defendant’s good-faith efforts to confer 

prior to Defendant filing the motion as required by Local Rule 7-1(a). Mot. Dismiss 1, ECF 4. Plaintiff does not 

deny that it failed to respond to Defendant’s efforts to confer. Pl.’s Resp. to D.’s Mot. Dismiss 1-2, ECF 7. No 

prejudice results from Plaintiff’s failure to respond. Rule 7-1 allows the Court to deny any motion filed before the 

parties have conferred. But Defendant has provided evidence of its good faith efforts, and Plaintiff’s failure to 

respond in a timely manner does not prevent this Court from considering Defendant’s motion.

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 2 of 9
3 – OPINION & ORDER

The Court grants Defendant’s motion to dismiss Ms. Chea’s coercion claim with leave to 

amend, but denies Defendant’s remaining motions to dismiss. Plaintiffs may submit an amended 

complaint, should they desire to do so, within 30 days of this Opinion & Order. The Court defers 

ruling on Defendant’s motion to sever at this time. The Court will contact the parties after an 

amended complaint is filed, or after the 30 day deadline to do so has passed, to set a status 

conference to discuss with the parties how to proceed regarding class issues. 

BACKGROUND

I. Ms. Lott

Ms. Lott is a resident of Washington County, Oregon. Compl. ¶ 5, ECF. 1. Ms. Lott’s 

property is subject to the rules of Autumn Meadow Owner’s Association (the “AM HOA”), 

which collects monetary fees from residents that own property governed by the AM HOA. Id. at 

¶ 12. At some point, Ms. Lott fell behind on her fees and the AM HOA retained Defendant, Vial 

Fotheringham LLP, to act as debt collector in recovering the overdue fees she owed. Id. at ¶ 14-

15. In February 2014, Defendant filed a lawsuit in Oregon state court seeking to judicially 

foreclose against Ms. Lott’s property in an effort to collect the overdue fees. Id. at ¶ 15. 

Although a foreclosure sale was scheduled, Defendant cancelled the sale without explanation and 

did not reschedule it. Id. at 16. On September 16, 2014, Ms. Lott filed for Chapter 13 bankruptcy 

in the District of Oregon. Id. at ¶ 11. Defendant continued to demand various fees from Ms. Lott, 

including via a May 2015 letter that contained another threat of foreclosure, which Defendant

similarly did not act upon. Id. at ¶ 19.

II. Ms. Chea

Ms. Chea is a resident of Washington Country, Oregon. Compl. ¶ 6. Ms. Chea’s property 

is subject to the rules of Waterford Park Homeowner’s Association (the “WP HOA”), which 

collects monetary fees from residents that own property governed by the WP HOA. Id. at ¶ 24. 

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 3 of 9
4 – OPINION & ORDER

At some point, Ms. Chea fell behind on her fees and the WP HOA also retained Defendant, Vial 

Fotheringham LLP, to act as debt collector in recovering the overdue fees she owed. Id. at ¶ 25. 

In 2012, and possibly earlier, Defendant filed a number of debt collection lawsuits against Ms. 

Chea in Oregon state court. Id. at ¶ 26. In October 2013, Ms. Chea signed a Covenant and 

Release prepared by Defendant that purported to allow Ms. Chea to satisfy the judgment from 

the latest debt collection lawsuit by making fixed payments, which would cover the judgment 

amount as well various fees, charges, and interest. Id. at ¶ 28. The Covenant and Release did not 

state the balance remaining on the judgment, or the amount of attorney’s fees or other charges 

that Ms. Chea was expected to pay. Id. at ¶ 29. Defendant continued to send statements to Ms. 

Chea regarding the balance remaining under the Covenant and Release, including a March 2015 

letter, which made reference to a twelve percent interest rate, and an August 2015 notice that 

Defendant was charging Ms. Chea $40 for obtaining information about her account. Id. at ¶ 30, 

32. On August 11, 2015, Ms. Chea filed for Chapter 7 bankruptcy in the District of Oregon. Id. at 

¶ 23. A bankruptcy discharge order was entered on November 5, 2015. Id.

STANDARD

On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974). A complaint is construed in favor of the plaintiff, and its 

factual allegations are taken as true. Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th 

Cir. 2010). “[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content,

and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the 

plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)

(internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable 

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 4 of 9
5 – OPINION & ORDER

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[O]nce a claim has 

been stated adequately, it may be supported by showing any set of facts consistent with the 

allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). The 

court, however, need “not assume the truth of legal conclusions merely because they are cast in 

the form of factual allegations.” Id. “[C]onclusory allegations of law and unwarranted inferences 

are insufficient to defeat a motion to dismiss.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.

2011) (citation and internal quotation marks omitted).

DISCUSSION

Plaintiffs Lott and Chea each allege several claims, many of which arise under the 

FDCPA. Ms. Lott alleges that Defendant threatened to foreclose on her property without actually 

intending to do so. Ms. Chea alleges that Defendant coerced her into signing the Covenant and 

Release regarding her debts to the WP HOA. Ms. Lott and Ms. Chea additionally claim that 

Defendant demanded illegal interest and other unlawful charges throughout its debt collection 

efforts with respect to both Plaintiffs. 

I. The FDCPA

The FDCPA is designed to eliminate abusive debt collection practices by debt collectors

and to protect consumers against debt collection abuses. 15 U.S.C. 1692 § 802. The statute 

states, in relevant part, “a debt collector may not engage in any conduct the natural consequence 

of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 

Id. at § 1692d. In addition, the FDCPA proscribes the “false representation of the character [or] 

amount of any debt,” as well as “the representation . . . that nonpayment of any debt will result 

in . . . the seizure, garnishment, attachment, or sale of any property . . . unless such action is 

lawful and the debt collector . . . intends to take such action.” Id. at § 1692e(2), (4). Similarly, 

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 5 of 9
6 – OPINION & ORDER

the FDCPA forbids a debt collector from threatening to take any action against a debtor that the 

debt collector does not intend to take, or from using “any false representation or deceptive means 

to collect or attempt to collect any debt . . . .” Id. at § 1692e(5), (10). Finally, the FDCPA 

prohibits unfair debt collection practices, including “the collection of any amount (including any 

interest, fee, charge, or expense incidental to the principal obligation) unless such amount is 

expressly authorized by the agreement creating the debt or permitted by law.” Id. at § 1692f(1).

II. Ms. Lott’s claim

Plaintiff Lott alleges that Defendant violated the FDCPA by threatening to foreclose on 

Ms. Lott’s property without intending to follow through on that threat. Compl. at ¶ 16; See also 

15 U.S.C. § 1692e(5). In support, Plaintiff asserts that Defendant scheduled a foreclosure sale 

but cancelled the sale at the last moment with no explanation and did not then reschedule the sale 

for a later date. Defendant continued to threaten foreclosure thereafter but took no affirmative 

steps to follow through on that threat. Defendant contends that Ms. Lott has not stated adequate 

facts to sustain her claim. Rather, Defendant argues that Ms. Lott has alleged only her subjective 

belief regarding Defendant’s intent.2

Section 1692e(5) of the FDCPA expressly forbids debt collectors from threatening to take 

an action against a debtor that the debt collector has no intention of taking. Juras v. Aman 

Collection Service, Inc., 829 F.2d 739, 744 (9th Cir. 1987). Ms. Lott’s allegations regarding 

Defendant’s lack of intent to follow through on its threats of foreclosure are enough to survive 

Defendant’s motion to dismiss. Ms. Lott has provided the requisite “short and plain statement of 

[her] claim.” FED. R. CIV. P. 8(a)(2). The factual support for Ms. Lott’s claim is, at this stage, 

admittedly a bit meager. But assuming, as Ms. Lott alleges, that Defendant is a debt collector as 

 

2 Ms. Lott additionally contends that Defendant attempted to collect from Ms. Lott illegal interest rates and other 

charges. Defendant does not move to dismiss those claims. 

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 6 of 9
7 – OPINION & ORDER

defined by the FDCPA, that Defendant threatened to foreclose on Ms. Lott’s property pursuant to 

Defendant’s effort to collect overdue HOA fees from her, and that Defendant did not actually 

intend to foreclose on Ms. Lott’s property, there is a violation of the FDCPA, 15 U.S.C. § 

1692e(5). Based on facts alleged in the complaint, it is plausible that Defendant committed the 

alleged infraction, and that Ms. Lott will uncover adequate evidence to support her claim given 

the opportunity for discovery. See Twombly, 550 U.S. at 555. The only question for the Court 

when considering a motion to dismiss is whether the plaintiff pleads sufficient facts such that the 

court can draw the reasonable inference that the defendant committed the offense alleged. Iqbal, 

556 U.S. at 678. Ms. Lott has done just that.

III. Ms. Chea’s claims

Plaintiff Chea alleges that she was “coerced” into signing a “Covenant and Release” in 

October 2013, in which she agreed to pay Defendant in fixed installments the debt owed as well 

as fees, interest, and other charges stemming from the debt collection lawsuit that Defendant had 

initiated against Ms. Chea in 2012. To support her claim, Ms. Chea states only that Defendant 

coerced her into signing a release. Ms. Chea provides no additional factual context or any 

description of how she was coerced into signing the agreement. Nor does Ms. Chea adequately 

relate her allegation to any particular claim or cause of action. Ms. Chea’s conclusory and 

unsupported allegation fails to meet the pleading standards required by Iqbal, 556 U.S. at 768 

(holding that each claim for relief must be “plausible,” not just “possible,” to survive a motion to 

dismiss) and Twombly, 550 U.S. at 555 (holding that a well pleaded complaint requires "factual 

allegations [that] raise a right to relief above the speculative level.”). Because Ms. Chea has not 

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 7 of 9
8 – OPINION & ORDER

adequately established the factual bases for her coercion claim, or explained under what law that 

claim arises, that claim is dismissed with leave to amend.3

The Court will not decide at this time whether Ms. Chea’ coercion claim, should she 

choose to amend and resubmit that portion of the complaint, is timely. Until the Court is able to 

assess the bases for that claim with more specificity, it remains unclear what statute of 

limitations should govern. In any case, Ms. Chea’s remaining claims should not be dismissed as 

untimely under the FDCPA’s one-year statute of limitations, 15 U.S.C. § 1692k(d). This case 

was filed March 7, 2016. Instances in which Defendant allegedly demanded from Ms. Chea

unauthorized interest and other charges occurred in March 2015 and August 2015, both of which 

are within the statute of limitations.

IV. Motion to Sever

Plaintiffs Lott and Chea, although they allege separate and distinct claims arising under 

the FDCPA, have joined together to bring a single suit against Defendant. Defendant contends 

that Plaintiffs are misjoined and that their respective claims against Defendant must be severed.

Plaintiffs contend that this matter can and should proceed as a class action under Rule 23(b)(3). 

The Court defers ruling on Defendant’s motion to sever at this time. The Court will contact the 

parties after an amended complaint is filed, or after the 30 day deadline to do so has passed, to 

set a status conference to discuss with the parties how to proceed regarding class issues.

//

//

//

 

3 As with Ms. Lott, Ms. Chea additionally contends that Defendant attempted to collect illegal interest rates and 

other charges from her, and misrepresented the outstanding amount Ms. Chea owed. And as with Ms. Lott’s claim, 

Defendant has not moved to dismiss Ms. Chea’s allegations. While Ms. Chea’s coercion claim is dismissed, her 

claims arising under the FDCPA alleging unfair and deceptive practices vis-à-vis Defendant’s efforts to collect 

unauthorized monies from Ms. Chea may proceed.

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 8 of 9
9 – OPINION & ORDER

CONCLUSION

Defendant’s motion to dismiss [4] is GRANTED IN PART and DENIED IN PART. With 

respect to Ms. Lott’s claims, Defendant’s motion to dismiss is denied. Defendant’s motion to 

dismiss with regard to Ms. Chea’s coercion claim is granted with leave to amend. Plaintiffs may 

file an amended complaint addressing the identified deficiencies within 30 days of the date 

below. The Court defers ruling on Defendant’s motion to sever. 

IT IS SO ORDERED.

Dated this day of , 2016.

 

MARCO A. HERNÁNDEZ

United States District Judge

Case 3:16-cv-00419-HZ Document 10 Filed 08/23/16 Page 9 of 9