* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** The Honorable J. Thomas Marten, District Judge, United States District

Court for the District of Kansas, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 3 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KEVIN PAUL FERREE,

Plaintiff-Appellant,

v.

TERESA W. MARIANOS,

Defendant-Appellee,

and

SHAPIRO & MARIANOS, a

partnership,

Defendant.

No. 97-6061

(D.C. No. CIV-96-1120-T)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN,** District Judge.
1 The law firm of Marianos and Shapiro was named as a defendant in the

district court action, but was not served. Marianos has filed a motion to dismiss

this appeal, arguing that the district court’s order lacks finality because it does not

dispose of the claims against the law firm. The motion is without merit. The

district court’s failure to enter an order dismissing an unserved defendant prior to

entry of judgment does not foreclose appellate jurisdiction. The unserved

defendant was never made a party to the underlying district court action. See

Bristol v. Fibreboard Corp., 789 F.2d 846, 847 (10th Cir. 1986).

-2-

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Kevin Paul Ferree appeals the district court’s order dismissing his

claims under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.

§§ 1692-1692o against defendant Teresa W. Marianos, an attorney representing

Temple-Inland Mortgage Company, plaintiff’s creditor.1 We have reviewed

de novo the district court’s dismissal for failure to state a claim, accepting the

well-pleaded allegations of the complaint as true and construing them in the light

most favorable to the plaintiff. See Grossman v. Novell, Inc., 120 F.3d 1112,

1118 (10th Cir. 1997). We affirm.

A bankruptcy court entered orders discharging plaintiff’s debts and

allowing foreclosure of the real property which secured plaintiff’s debt to

Temple-Inland. See Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) 
2 Section 1692e(2)(A) prohibits the “false representation” of the “character,

amount, or legal status of any debt.”

3 Section 1692e(5) prohibits a “threat to take any action that cannot legally

be taken or that is not intended to be taken.”

4 Section 1692g requires that

when an independent debt collector solicits payment it must provide the

consumer with a detailed validation notice. The notice must include the

amount of the debt, the name of the creditor, a statement that the debt’s

validity will be assumed unless disputed by the consumer within 30 days,

and an offer to verify the debt and provide the name and address of the

original creditor, if the consumer so requests.

Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). The § 1692g notice,

“commonly referred to as a ‘validation notice,’ gives the consumer the

(continued...)

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(bankruptcy discharge extinguishes only in personam claim while leaving

in rem claim intact). Marianos then filed a state court action on behalf of

Temple-Inland, seeking to foreclose the mortgage on the property.

In this FDCPA action, plaintiff alleges that, in initiating the foreclosure

proceedings, Marianos violated three provisions of the Act: (1) she

misrepresented the amount and legal status of plaintiff’s debt in the prayer of

the foreclosure petition (an alleged violation of § 1692e(2)(A));2 (2) she

threatened to obtain an in personam judgment in the prayer of the foreclosure

petition (an alleged violation of § 1692e(5));3 and (3) she obscured the content

of the statutorily-required validation notice by providing it as an attachment to

the pleadings in the foreclosure action (an alleged violation of § 1692g).4
4

(...continued)

information necessary to challenge the debt allegedly owed before making

payment to the independent collection agency.” Id. at 32. 

5 The district court properly treated the summons, foreclosure petition, and 

validation notice, which were attached as exhibits to the complaint, as part of the

pleadings for purposes of defendants’ motion to dismiss. See Industrial

Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 964-65

(10th Cir. 1994).

-4-

The district court dismissed the claim against Marianos for failure to state a claim

upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6).5

The district court clearly set out the law and facts of the case in its order

dated January 21, 1997. For claims under the FDCPA, other circuit courts of

appeal have applied an objective standard, “measured by how the ‘least

sophisticated consumer’ would interpret the notice received from the debt

collector.” Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). “[T]he test

is how the least sophisticated consumer--one not having the astuteness of a

“Philadelphia lawyer” or even the sophistication of the average, everyday,

common consumer--understands the notice he or she receives.” Id. See also

Terran v. Kaplan, 109 F.3d 1428, 1431 (9th Cir. 1997) (“[W]hether the initial

communication violates the FDCPA depends on whether it is likely to deceive

or mislead a hypothetical least sophisticated debtor.”) (quotations omitted). 

The hypothetical consumer, however, “can be presumed to possess a rudimentary
6 We note that plaintiff did not either dispute the debt or respond to the

summons. Temple-Inland took a default judgment and foreclosed against

plaintiff’s property.

-5-

amount of information about the world and a willingness to read a collection

notice with some care.” Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).

Plaintiff’s allegations do not add up to a claim under any of the cited

FDCPA provisions. The foreclosure petition specifically described the result of

the bankruptcy proceedings. The foreclosure pleadings did not misrepresent the

amount or status of plaintiff’s debt or, in spite of the discharge in bankruptcy,

threaten to obtain an in personam judgment. The district court correctly

dismissed the § 1692e claims.

As to the claim under § 1692g, a debt collector may violate the FDCPA by

providing a validation notice that “contains language that ‘overshadows or

contradicts’ other language informing a consumer of her rights.” Russell, 74 F.3d

at 34 (citing Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991)). Here,

however, it is plain that the validation notice provided the information required by

statute. Moreover, plaintiff concedes that the thirty-day period to dispute the

debt, explained in the notice, and the twenty-day period to respond to the

summons and petition, set out in the summons, “are not mutually exclusive.” 

Appellant’s Opening Br. at 16.6
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The information contained in the notice was not obscured or contradicted

simply because it was provided as an attachment to the foreclosure pleadings.

Even the least sophisticated consumer receiving two communications in the same

envelope, the first concerning a pending mortgage foreclosure action, “would

sufficiently examine the entire contents of the envelope, and uncover the enclosed

validation notice.” Cavallaro v. Law Office of Shapiro & Kreisman, 933 F. Supp.

1148, 1153 (E.D.N.Y. 1996).

We AFFIRM the judgment of the district court, based on the reasoning

above and more thoroughly described in the district court’s order. Defendant’s

motion to dismiss is DENIED.

Entered for the Court

John C. Porfilio

Circuit Judge