* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

## 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 MAR TEN, ** District Judge.1 The law firm of Marianos and Shapiro was named as adefendant in the

district court action, but was not served. Mariano s has filed a motion to dismiss this appeal, arguing that the district court’s orde r lacks finality because it does not dispose of the claims against the law firm. The mo tion is without merit. The district court’s failure to enter an order dismissi ng an unserved defendant prior to entry of judgment does not foreclose appellate juri sdiction. 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Kevin Paul Ferree appeals the district co urt’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 credito r. 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 a nd 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 sec ured 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 ac tion that cannot legally be taken or that is not intended to be taken.”

4 Section 1692g requires that when an independent debt collector solicits paymentit must provide the consumer with a detailed validation notice. The no tice 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 con sumer within 30 days, and an offer to verify the debt and provide the nam e 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 notic e, “commonly referred to as a ‘validation notice,’ giv es the consumer the (continued...) -3- (bankruptcy discharge extinguishes only in personamclaim 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 in itiating the foreclosure proceedings, Marianos violated three provisions of the Act: (1) she misrepresented the amount and legal status of plain tiff’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 pr oviding it as an attachment to the pleadings in the foreclosure action (an alleged violation of § 1692g). 44 (...continued)

information necessary to challenge the debt alleged ly owed before making payment to the independent collection agency.” Id. at 32.

5 The district court properly treated the summons, fo reclosure petition, and validation notice, which were attached as exhibits to the complaint, as part of the pleadings for purposes of defendants’ motion to dis miss. See Industrial Constructors Corp. v. United States Bureau of Recla mation , 15 F.3d 963, 964-65 (10th Cir. 1994).

-4- The district court dismissed the claim against Mari anos 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 fact s 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, “measure d 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 r eceives.” Id. See also Terran v. Kaplan , 109 F.3d 1428, 1431 (9th Cir. 1997) (“[W]hether t he initial communication violates the FDCPA depends on whetherit is likely to deceive or mislead a hypothetical least sophisticated debto r.”) (quotations omitted). The hypothetical consumer, however, “can be presume d to possess a rudimentary6 We note that plaintiff did not either dispute the d ebt 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 willing ness 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 un der any of the cited FDCPA provisions. The foreclosure petition specifi cally described the result of the bankruptcy proceedings. The foreclosure pleadi ngs did not misrepresent the amount or status of plaintiff’s debt or, in spite o f the discharge in bankruptcy, threaten to obtain an in personam judgment. The di strict 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 langua ge 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 pro vided the information required by statute. Moreover, plaintiff concedes that the thi rty-day period to dispute the debt, explained in the notice, and the twenty-day p eriod to respond to the summons and petition, set out in the summons, “are not mutually exclusive.” Appellant’s Opening Br. at 16. 6-6-

The information contained in the notice was not obs cured 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 f oreclosure action, “would sufficiently examine the entire contents of the env elope, 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 districtcourt’s order. Defendant’s motion to dismiss is DENIED.

Entered for the Court

John C. Porfilio Circuit Judge