FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH JON GUERRERO, 

No. 05-15121 Plaintiff-Appellee,

D.C. No.

v.  CV-03-00038-HG

RJM ACQUISITIONS LLC, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Hawaii

Helen Gillmor, District Judge, Presiding

Argued and Submitted

November 15, 2006—Honolulu, Hawaii

Filed August 23, 2007

Before: Stephen S. Trott, Kim McLane Wardlaw, and

William A. Fletcher, Circuit Judges.

Per Curiam Opinion;

Partial Concurrence and Partial Dissent by Judge W. Fletcher

10327
COUNSEL

John Harris Paer, Honolulu, Hawaii, for the plaintiff-appellee.

David J. Minkin, McCorriston, Miller, Mukai, & MacKinnon,

LLP, Honolulu, Hawaii, for the defendant-appellant. 

Daniel P. Shapiro, Goldberg, Kohn, Bell, Black, Rosenbloom

& Moritz, Ltd., Chicago, Illinois, Amicus Curiae for the

National Association of Retail Collection Attorneys and the

Debt Buyers’ Association, Inc. 

10330 GUERRERO v. RJM ACQUISITIONS
OPINION

PER CURIAM. 

Kenneth Jon Guerrero, a consumer, sued RJM Acquisitions, LLC, a purchaser of consumer debt, in the United States

District Court for the District of Hawaii, alleging violations of

the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et

seq. After extensive pretrial litigation, the district court issued

two orders. The first denied RJM’s motion to dismiss Guerrero’s first amended complaint and ruled on the parties’ cross

summary judgment motions, concluding that RJM violated

the Act and therefore Guerrero was entitled to actual and statutory damages and reasonable attorneys’ fees. The second

order adopted a special master’s report recommending an

award to Guerrero of over $45,000 in attorneys’ fees. RJM

appeals from these orders, claiming the district court incorrectly interpreted the Act. We have jurisdiction pursuant to 28

U.S.C. § 1291, and after carefully reviewing the district

court’s rulings, we reverse and remand. 

I

RJM claims the district court erroneously denied RJM’s

motion to dismiss, in which RJM asserted that Guerrero’s first

amended complaint did not relate back to the date he filed his

original complaint, and therefore his action was barred by the

Act’s one-year statute of limitations. As for the rulings on the

parties’ summary judgment motions, RJM claims the district

court incorrectly interpreted the Act’s provisions and what

they require of debt collectors. Specifically, RJM challenges

the district court’s conclusions that RJM violated the Act

when it (1) sent Guerrero two collection letters containing

slightly different account and file numbers, in an attempt to

collect one debt, in violation of § 1692g(a); (2) continued collection efforts, in violation of § 1692g(b), after receiving

notice that Guerrero disputed the debt and before providing

verification of the debt; and (3) misrepresented to Guerrero’s

GUERRERO v. RJM ACQUISITIONS 10331
counsel, in violation of § 1692e, that it was not a debt collection agency and not subject to the Act. In light of these allegedly erroneous conclusions, RJM argues, the district court’s

conclusion that RJM violated Hawaii consumer protection

statutes is likewise incorrect. RJM claims also that Guerrero’s

complaint was brought in bad faith and to harass, and therefore the district court should have awarded RJM attorneys’

fees. Finally, RJM challenges the district court’s award of

over $45,000 in attorneys’ fees to Guerrero. 

RJM and amici the National Association of Retail Collection Attorneys and the Debt Buyers’ Association urge us to

consider also whether communications that violate the Act

when directed at a consumer do not violate the Act when

directed at a consumer’s legal counsel. RJM and amici argue

for an affirmative answer to this question. RJM argued before

the court, and amici argued in its brief, that the Act’s purpose

is to protect unsophisticated debtors from abusive debt collectors, and once a consumer obtains this protection by procuring

legal counsel, the Act’s protections become superfluous and

therefore its provisions no longer apply. We agree. The Act’s

language and underlying purposes recognize a distinction

between a consumer and a consumer’s legal counsel. They are

distinct legal entities. We therefore hold that the letter

directed to the consumer’s attorney after receiving notice that

the consumer disputed an alleged debt does not violate the

Act. 

RJM and amici urge us also to correct the district court’s

conclusion that “even if [RJM] had ceased with its efforts to

collect the alleged debt, [RJM] still would have been obligated to verify” it. We respectfully disagree with the district

court, and hold that the Act requires a debt collector who

receives notice that a consumer disputes an alleged debt to

cease collection efforts until it provides the consumer with

verification of the debt. The Act does not impose an independent obligation to verify a debt where the collector ceases all

collection efforts directed at the consumer. 

10332 GUERRERO v. RJM ACQUISITIONS
II

In May of 2002, RJM sent Guerrero two “WE ARE YOUR

NEW CREDITOR” collection letters, one to his home address

and one to his post office box. Each letter informed Guerrero

that RJM had purchased a debt Guerrero originally owed to

Shell Oil Corp., each contained the same partially redacted

social security number, and each indicated a balance of

$1291.86. The letters were identical except that Guerrero’s

mailing address on each letter was different, and the last letter

in both the “account” and “RJM file” identifiers, which

appeared at the top and the bottom of each letter, were slightly

different. The account and file numbers in the letter sent to

Guerrero’s post office box each consisted of a series of numbers followed by the letter “A”. The account and file numbers

in the letter sent to his street address were identical to those

in the other letter in all respects but one — they ended with

a “B”. 

In small print below the account information in each letter,

the words “Please see reverse side for important information”

appeared. On the reverse side of each letter appeared language

the Act requires debt collectors to include in initial communications with consumers regarding collection of debts, informing Guerrero that if he disputed the debt in writing within

thirty days of receiving the letter, RJM would obtain and provide Guerrero with verification of the debt or a copy of a

judgment against him. As mandated by the Act, each letter

concluded with the statement that “[t]his is an attempt to collect a debt.” 

Between May 20 and June 10, Guerrero contacted his lawyer, Mr. Paer, regarding RJM’s debt collection effort. Electing

to turn the tables on RJM, attorney Paer wrote RJM on June

10, asserting violations of the Act and related Hawaii state

laws by RJM, and offering to settle Guerrero’s claims arising

from these alleged violations within ten days for a payment

from RJM of $3,000.00. He threatened also to sue RJM in

GUERRERO v. RJM ACQUISITIONS 10333
federal court. The subject line of attorney Paer’s letter went

so far as to read: “Re: Guerrero v. RJM Acquisitions LLC.”

At this point in time, RJM had sent to Guerrero only the two

letters dated May 20. 

Attorney Paer, threatening to transform a simple debt collection matter into a federal case, wrote:

Please be advised that this office represents Mr.

Kenneth Jon Guerrero. 

It is his position that your letters of May 20, 2002,

and its [sic] other collection attempts do not comply

with the Fair Debt Collection Practices Act . . . . Mr.

Guerrero will accept payment of $3000.00 covering

both actual and statutory damages as well as attorneys fees in full settlement of his claims. 

This offer will remain open for ten days from today,

after which, Mr. Guerrero expects to file his action

in Federal District Court to obtain the sums due him.

Please respond within that time if you are interested

in resolving this matter without litigation. 

In addition, Mr. Guerrero hereby indicates formally

that he disputes this alleged debt and requests that

you send him verification of the debt . . . . Send verification and other communication to this office and

not to Mr. Guerrero.

(emphasis added). 

Attorney Paer’s letter can only be described as a hardball

tactic aimed either at resolving his client’s debt at less than

the amount RJM believed Guerrero owed, or at generating a

lawsuit against RJM, or both. The letter had as one of its

objectives the collection from RJM of alleged damages and

attorneys’ fees for violations of the Act for which attorney

10334 GUERRERO v. RJM ACQUISITIONS
Paer claimed RJM was clearly liable. In point of fact, all RJM

had done was send a letter to the two addresses, provided by

the debtor, seeking to collect a relatively small debt. As we

shall explain, the letters did not violate the Act, and attorney

Paer’s claims to the contrary were baseless. In return, RJM

received a short ten-day turnaround demand for more than

double the amount of the debt, including attorneys’ fees, and

a threat of immediate federal litigation. 

Upon receipt of attorney Paer’s letter, RJM ceased all direct

collection activity from Guerrero. As instructed by Guerrero’s

attorney, and in compliance with the Act,1 RJM wrote attorney Paer on June 14, 2002, stating that it had acquired the

Shell Oil account opened in the name of Kenneth Guerrero

from Citibank, and providing Guerrero’s complete social

security number and the date of last payment. Enclosed with

this letter was a copy of a June 11, 2002 letter from Citibank

to Kenneth J. Guerrero. The letter reads,

Dear Mr. Guerrero, 

The inquiry we received in reference to Associates/

Shell Oil account number 146240502 should be

directed to:

RJM Acquisitions, LLC

575 Underhill Blvd

Suite 224

Syosset, NY 11791

800-541-0824 

Citibank no longer owns this account. This account

was sold to RJM in March, 2002. All communication

concerning this account should be addressed to the

new owner. 

1

See 15 U.S.C. § 1692c(a)(2) (“a debt collector may not communicate

with a consumer . . . if the debt collector knows the consumer is represented by an attorney . . . .”). 

GUERRERO v. RJM ACQUISITIONS 10335
Sincerely,

[signed] 

Portfolio Analyst 

This letter responding to an inquiry presumably by Guererro

was sent to him by Citibank at his address approximately one

month after he received from RJM the May, 2002 letters

attempting to collect this debt. The dates and sequences of the

letters suggest an inquiry by Guerrero to Citibank upon

receipt of RJM’s May, 2002 letters. In the June 14, 2002 letter, RJM stated that it “was in the process of verifying the

account.” 

We note that RJM’s June 14, 2002 letter referenced both

the account number from Shell Oil and its own file number

without the As and Bs appearing in the two earlier letters to

Guerrero. RJM asserted also in the letter its own (correct)

legal position that it “respectfully maintains that it has violated no laws,” and its (partially incorrect) position that it was

“not a collection agency and therefore, not subject to the

[Act].” RJM purchased the debt from Guerrero’s original

creditor. Therefore, RJM was not a “collection agency”

employed by the creditor to collect the creditor’s delinquent

debts. Nevertheless, it does not follow that RJM was not subject to the Act. RJM further clarified that its only attempt to

communicate directly with Mr. Guerrero was by letter before

attorney Paer’s intervention. RJM reiterated the current balance and requested attorney Paer to contact the office to discuss the matter. 

Apparently taking every precaution to comply with the Act,

RJM included in its letter, as it did in its earlier letters to

Guerrero, the statement “This is an attempt to collect a debt.

Any information obtained will be used for that purpose.” This

language is required by the Act in all initial communications

with a consumer, see 15 U.S.C. § 1692e(11) — the failure to

include it is a violation. While it is true that § 1692e(11)

requires in subsequent communications only a statement that

10336 GUERRERO v. RJM ACQUISITIONS
the “communication is from a debt collector,” we cannot conclude that RJM continued to collect a debt in violation of the

Act merely because in attempting to comply with the Act it

included in a letter to a debtor’s counsel a statement the Act

generally requires. Moreover, the word “this,” in RJM’s disclosure, without more, does not necessarily mean “this letter.”

“This” can also mean “this initiative,” which began with the

earlier letters to Guerrero. No further communications

between RJM and Guerrero or RJM and attorney Paer

occurred. 

Six months later, in January of 2003, having yet to receive

full verification of the alleged debt, Guerrero filed his complaint in the district court, alleging that RJM violated the Act

and Hawaii consumer protection law. Later that year, RJM

filed a motion for judgment on the pleadings, and Guerrero

filed a motion for summary judgment. The protracted legal

battle was on. In January of 2004, after extensive briefing on

the motions and an unnecessarily antagonistic discovery process, the district court issued an order vacating the hearing

date set for the motions and stating it would decide the

motions without a hearing. In early February, the district court

denied Guerrero’s motion for summary judgment and granted

RJM’s motion for judgment on the pleadings, subject to a

grant of leave to Guerrero to file an amended complaint. A little over a week later, Guerrero filed a first amended complaint, stating the same general allegations as the original

complaint but alleging additional facts and identifying specific provisions of the Act. 

In March of 2004, RJM filed its motion to dismiss Guerrero’s first amended complaint, arguing inter alia that Guerrero’s claims in the amended complaint did not relate back to

his original complaint, and therefore his claims were barred

by the Act’s one-year statute of limitations. In mid-April,

Guerrero filed another motion for summary judgment. Two

weeks later RJM filed a cross motion for summary judgment.

In the months following these filings, both parties briefed the

GUERRERO v. RJM ACQUISITIONS 10337
issues extensively. The amount of briefing throughout this

case, coupled with a combative discovery process, resulted in

what Judge Gillmor, at the hearing on the motions, referred to

as an amount of lawyering disproportionate to the issues

involved. 

In July of 2004, the district court entered an order denying

RJM’s motion to dismiss and granting in part and denying in

part the parties’ summary judgment motions. Judgment was

entered in December, awarding Guerrero $2,545.00 in actual

and statutory damages plus reasonable attorneys’ fees and

costs. A week later, Guerrero filed a motion for award of

attorneys’ fees and a memorandum in support of the motion.

RJM filed a memorandum opposing it. The district court

referred the motion to a magistrate judge who, as special master, prepared a report on the motion for attorneys’ fees, which

the district court adopted in a June 2005 order awarding Guerrero $45,237.21 in attorneys’ fees. 

III

Whether an amended pleading relates back to an original

pleading is a question of law, and is therefore reviewed de

novo. Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1127

(9th Cir. 2006) (“We . . . review de novo the district court’s

application of the Federal Rules of Civil Procedure, including

Rule 15(c)’s relation back doctrine.”). A district court’s ruling

on a motion to dismiss is reviewed de novo. Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004). We

review de novo a district court’s interpretation of the Act, and

a district court’s ruling on cross motions for summary judgment. Romine v. Diversified Collection Serv., Inc., 155 F.3d

1142, 1145 (9th Cir. 1998); Slenk v. Transworld Sys., Inc.,

236 F.3d 1072, 1074 (9th Cir. 2001). In the context of claims

brought under the Act, we review a district court’s denial of

attorneys’ fees to a debt collector under two standards of

review. The district court’s finding on the issue of bad faith

and harassment is reviewed for clear error; the district court’s

10338 GUERRERO v. RJM ACQUISITIONS
ultimate denial is reviewed for an abuse of discretion. Swanson v. S. Oregon Credit Serv., Inc., 869 F.2d 1222, 1229 (9th

Cir. 1989). 

A.

[1] An amendment of a pleading relates back to the date of

the original pleading when the claim or defense asserted in the

amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original

pleading. Fed. R. Civ. P. 15(c)(2). The district court concluded that the claims asserted in both of Guerrero’s complaints arose out of the same underlying transaction; namely,

RJM’s attempt to collect a debt Guerrero allegedly owed. 

RJM argues that the claims Guerrero raised in his first

amended complaint did not arise from the same conduct,

transaction, or occurrence set forth in the original complaint.

To support this contention, RJM cites to SEC v. Seaboard

Corp., 677 F.2d 1301, 1314 (9th Cir. 1982), which identified

the basic inquiry in a relation back issue as “whether the

opposing party has been put on notice about the claim or

defense raised in the amended pleading.” RJM argues that

because the amended complaint mentioned specifically, for

the first time, the June 14 letter RJM sent to counsel, the factual allegations in the original complaint provided “absolutely

no notice of those claims raised for the first time” in the

amended complaint. 

[2] RJM’s reliance on Seaboard Corp. is misplaced. Unlike

Guerrero’s amended complaint, the amended pleading in Seaboard Corp. added a new cause of action. 677 F.2d at 1314.

It added, to a pleading alleging illegal market manipulation,

a claim alleging illegal misrepresentation in a document. Id.

Guerrero’s original and first amended complaints alleged violations of the Act and Hawaii consumer protection law. While

the amended complaint added the specific facts involving the

June 14 letter, and was more specific than the original in idenGUERRERO v. RJM ACQUISITIONS 10339
tifying provisions of the Act, the claims it asserted arose out

of the same conduct, transaction, or occurrence the district

court identified; namely, RJM’s attempt to collect a debt from

Guerrero. 

[3] RJM’s argument is further undermined by the policy the

rules governing amendments to pleadings is meant to effectuate. In Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1254

(9th Cir. 1981), we noted “that the Supreme Court has

instructed the lower federal courts to heed carefully the command of Rule 15(a), F.R.Civ.P., by freely granting leave to

amend when justice so requires.” (internal quotes and citations omitted). Nothing in the record suggests the district

court’s decision to allow Guerrero to amend his complaint,

and its conclusion that the amended complaint related back to

the original, resulted in injustice to RJM. RJM’s argument

rests on an exaggerated interpretation of the rules of civil procedure and Ninth Circuit precedent. The district court concluded correctly that Guerrero’s amended complaint related

back to the original. We therefore proceed to evaluate the

merits of the district court’s rulings. 

B.

[4] The district court agreed with Guerrero that RJM violated the Act when it sent two supposedly confusing letters to

him in an attempt to collect one debt. The district court construed this claim as alleging violations of §§ 1692d, 1692e,

and/or 1692f. These provisions of the Act prohibit debt collectors from, respectively, using harassing or abusive collection methods, making false or misleading representations, and

employing unfair practices. The principle governing the Ninth

Circuit’s evaluation of claims under these provisions of the

Act is set forth in Swanson: If the least sophisticated debtor

would “likely be misled” by a communication from a debt

collector, the debt collector has violated the Act. 869 F.2d at

1225. The district court observed that neither letter contained

a statement indicating it was a copy of an original notice sent

10340 GUERRERO v. RJM ACQUISITIONS
to a separate address, and concluded a least sophisticated

debtor likely would have been confused and would believe

that he was being dunned for two distinct accounts. We

respectfully disagree. 

[5] As an initial matter, we note that RJM suggests incorrectly that the least sophisticated debtor standard’s application

is limited to claims arising under §§ 1692g and 1692e(5) of

the Act. The Ninth Circuit has applied the standard to other

sections as well. See, e.g., Clark v. Capital Credit & Collection Serv., 460 F.3d 1162, 1171 (9th Cir. 2006) (applying the

standard to section 1692c); see also Wade v. Regional Credit

Ass’n, 87 F.3d 1098, 1099-1100 (9th Cir. 1996) (applying the

standard to sections 1692e(10) and 1692f). Nonetheless, we

agree with RJM that sending the two letters does not amount

to a violation of the Act, because even the least sophisticated

debtor would understand that this collection effort was aimed

at one, and not two, delinquent accounts. 

[6] First and foremost, the letters were sent to the two

addresses that Guerrero gave the original creditor. The same

social security identifier appeared on each. Each letter indicated a balance identical to the other, each owed to the same

original creditor, Shell Oil Corp. The account and file identifiers were identical, except for the designation “A” on the first

letter, and “B” on the second. Each letter showed the same

“Last Payment Date.” We find untenable Guerrero’s assertion

that the letters were sufficiently confusing so as to mislead the

least sophisticated debtor into believing RJM was attempting

to collect on two accounts. RJM was attempting to collect on

one account, as the identical balance amounts, original creditor identification, date of last payment, and virtually identical

account and file numbers indicated. In addition, the June 11,

2002 letter from Citibank to Guerrero in response to the

inquiry suggests that Guerrero recognized the delinquent

account at issue. We conclude with no doubt that RJM did not

violate § 1692g(a) under the “least sophisticated debtor” standard, and therefore reverse the district court on this issue.

GUERRERO v. RJM ACQUISITIONS 10341
C.

[7] Section 1692g(b) of the Act requires a debt collector,

who receives from a consumer written notice disputing a debt,

to cease collection of the debt directly from the consumer

until it has obtained either verification of the debt or a copy

of a judgment and provided it to the consumer. Section 1692e

prohibits a debt collector from using false, deceptive, or misleading means to collect a debt. The district court concluded

that the June 14 letter RJM faxed to Guerrero’s counsel was

a prohibited collection effort in violation of both these provisions. We respectfully disagree, and hold that communications directed solely to a debtor’s attorney are not actionable

under the Act. Therefore, we hold that the responsive letter to

counsel, and not to his client — “the consumer” — was not

a prohibited collection effort and did not violate §§ 1692g(b)

or 1692e. 

A consumer and his attorney are not one and the same for

purposes of the Act. They are legally distinct entities, and the

Act consequently treats them as such. For example, a debt

collector who knows that a consumer has retained counsel

regarding the subject debt may contact counsel, but may not

generally contact the consumer directly, unless the attorney

gives his consent.2See 15 U.S.C. § 1692c(a)(2). Subject to

certain exceptions, a debt collector may not communicate in

connection with a debt with “any person other than the consumer, his attorney, a consumer reporting agency . . . , the

creditor, the attorney of the creditor, or the attorney of the

debt collector.” 15 U.S.C. § 1692c(b) (emphasis added). And

“consumer” is defined broadly in § 1692c to include “the consumer’s spouse, parent (if the consumer is a minor), guardian,

executor, or administrator.” 15 U.S.C. § 1692c(d). Notably

2Similarly, when a debt collector knows that a consumer has retained

counsel with regard to the subject debt, he may not generally contact anyone other than that attorney to determine the consumer’s whereabouts. 15

U.S.C. § 1692b(6). 

10342 GUERRERO v. RJM ACQUISITIONS
absent from this list of relatives and fiduciaries sharing in

common the identity of “consumer” is a consumer’s attorney.

[8] The statute as a whole thus suggests a congressional

understanding that, when it comes to debt collection matters,

lawyers and their debtor clients will be treated differently. See

U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508

U.S. 439, 455 (1993) (“In expounding a statute, we must not

be guided by a single sentence or member of a sentence, but

look to the provisions of the whole law, and to its object and

policy.”) (quoting United States v. Heirs of Boisdore, 49 U.S.

(8 How.) 113, 122 (1850)). Specifically, it appears that Congress viewed attorneys as intermediaries able to bear the brunt

of overreaching debt collection practices from which debtors

and their loved ones should be protected. Section 1692c, for

instance, covers “[c]ommunications in connection with debt

collection.” In regulating the ability of debt collectors to commence such communications, the Act is plainly concerned

with harassment, deception, and other abuse.3 Accordingly,

Congress sought to protect not just debtors themselves from

illegal communications, but also others who would be vulnerable to the more sinister practices employed in the debt collection industry. Section 1692c(d), as explained above, thus

defines “consumer” broadly to include a range of the debtor’s

relatives and fiduciaries. The conspicuous absence of the

debtor’s attorney from that otherwise extensive list is telling.

It suggests that in approaching the debt collection problem,

Congress did not view attorneys as susceptible to the abuses

that spurred the need for the legislation to begin with, and that

Congress built that differentiation into the statute itself. See

Zaborac v. Phillips & Cohen Assocs., Ltd., 330 F. Supp. 2d

962, 967 (N.D. Ill. 2004). 

Analyzing § 1692c(a)(2) leads to the same conclusion.

3The Act notes the “abundant evidence of the use of abusive, deceptive,

and unfair debt collection practices by many debt collectors.” 15 U.S.C.

§ 1692(a). 

GUERRERO v. RJM ACQUISITIONS 10343
Under that provision, a debt collector who knows how to contact a debtor’s attorney must target all communications to the

attorney, and not to the debtor himself. The rationale behind

this rule is clear. Unsophisticated consumers are easily bullied

and misled. Trained attorneys are not. 

[9] Turning to the provisions at issue here, the plain language sheds pale light at best on the question of whether

RJM’s June 14, 2002 letter, targeted solely at a debtor’s attorney, is actionable. Section 1692g(b) reads in relevant part:

Disputed debts. If the consumer notifies the debt collector in writing within the thirty-day period

described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer

requests the name and address of the original creditor, the debt collector shall cease collection of the

debt, or any disputed portion thereof, until the debt

collector obtains verification of the debt or a copy of

a judgment, or the name and address of the original

creditor, and a copy of such verification or judgment,

or name and address of the original creditor, is

mailed to the consumer by the debt collector.

RJM is charged with violating the command that it “cease collection of the debt” when it mailed its June 14 letter to Attorney Paer before verifying the debt. Thus, the crucial question

is whether “collection of the debt” can include efforts directed

exclusively to a debtor’s attorney, but not at the debtor himself. Section 1692g(b)’s repeated emphasis on the “consumer,” along with the Act’s clear distinction between consumer

and attorney, compel the conclusion that a collection effort

must be aimed directly to the consumer himself to be prohibited by § 1692g(b). 

[10] Section 1692e prohibits debt collectors from “us[ing]

any false, deceptive, or misleading representation or means in

connection with the collection of any debt.” We do not dis10344 GUERRERO v. RJM ACQUISITIONS
agree with the dissent that such prohibited representations or

means may take the form of a communication. But we hold

that communications directed only to a debtor’s attorney,4 and

unaccompanied by any threat to contact the debtor, are not

actionable under the Act. 

D.

All but one published federal decision to have given reasoned consideration to the question has determined that communications to a debtor’s attorney are not actionable under

the Act. See, e.g., Kropelnicki v. Siegel, 290 F.3d 118, 127-28

(2d Cir. 2002); Diesi v. Shapiro, 330 F. Supp. 2d 1002, 1004

(C.D. Ill. 2004); Zaborac, 330 F. Supp. 2d at 966-67; Tromba

v. M.R.S. Assocs., Inc., 323 F. Supp. 2d 424, 428 (E.D.N.Y.

2004); but see Sayyed v. Wolpoff & Abramson, 485 F.3d 226,

232-33 (4th Cir. 2007). At least six unpublished district court

opinions have come to the same conclusion.5

In Kropelnicki, debt collectors had allegedly made misleading statements to a debtor’s attorney about when, if ever, they

might file suit in state court to collect on the debt. 290 F.3d

at 127. Plaintiffs argued that these misleading statements violated 15 U.S.C. § 1692e, a provision also at issue here. Id. The

Second Circuit ultimately dismissed the action for lack of

subject matter jurisdiction, id. at 129, but the panel first

addressed the underlying merits of the plaintiff’s claim. 

4Our holding applies where the debtor is represented by an attorney and

the communication is directed only to that attorney. A debt collector is not

insulated from liability under the Act merely because a debtor also happens to be an attorney. 

5

See, e.g., Captain v. ARS Nat’l Servs. of N. Am., 2006 U.S. Dist.

LEXIS 47796, at *9 (S.D. Ind. 2006); Lauer v. Mason, Silver, Wenk &

Mishkin, LLC, 2006 U.S. Dist. LEXIS 20080, at *6 (N.D. Ill. 2006); Hill

v. Mutual Hospital Service, Inc., 2005 U.S. Dist. LEXIS 34507, at *4

(S.D. Ind. 2005); Young v. Manley, 2000 U.S. Dist. LEXIS 13035, at *3

(N.D. Ill. 2000); Phillips v. N. Am. Capital Corp., 1999 U.S. Dist. LEXIS

7000, at *7 (N.D. Ill. 1999); Ringer v. Credit Bureau, Inc., 1983 U.S. Dist.

LEXIS 20346, at *3-*4 (D. Ore. 1983). 

GUERRERO v. RJM ACQUISITIONS 10345
The court expressed its “grave reservations about concluding that this sort of claim is actionable under the FDCPA . . . .

[A]lleged misrepresentations to attorneys for putative debtors

cannot constitute violations of the FDCPA.” Id. at 127

(emphasis in original). Noting the Act’s underlying policy of

“protect[ing] consumers from deceptive or harassing actions

taken by debt collectors,” the panel came to the sensible conclusion that when “an attorney is interposed as an intermediary between a debt collector and a consumer, we assume the

attorney, rather than the FDCPA, will protect the consumer

from a debt collector’s fraudulent or harassing behavior.” Id.

at 127-28. 

Several other federal courts have confronted the issue

squarely and have reached the same conclusion. In Zaborac,

for example, a consumer disputed a debt and requested verification, and the debt collector responded by “plac[ing] an

immediate hold” on all collection efforts pending verification

of the debt. 330 F. Supp. 2d at 965. Counsel for the consumer

then contacted the debt collector to alert it that the consumer

might file for bankruptcy, at which point the consumer’s

counsel and the debt collector attempted to negotiate a settlement. Id. The consumer filed suit, alleging that the settlement

negotiations with his attorney before verification violated

§ 1692g(b). Id. at 966. 

In a persuasive opinion, the district court held that statements made to a debtor’s attorney are not actionable under

§ 1692g(b). Id. (“While the statute commands a debt collector

to cease demanding payment from the consumer until a

requested validation is obtained, its language is certainly not

expansive enough to create a ban on all communications

between a consumer’s lawyer and a debt collector.”) (emphasis in original). The court noted that § 1692g(b) “speak[s]

solely of the consumer and the debt collector,” id., while other

provisions in the Act explicitly single out a consumer’s attorney, id. at 967. And, like the Second Circuit in Kropelnicki,

the Zaborac court focused on the underlying purposes served

10346 GUERRERO v. RJM ACQUISITIONS
by the Act, finding they would be ill-served by applying the

Act’s strictures to communications with a debtor’s counsel.

Id. at 966-67.6

The dissent cites two types of cases for support: cases that

do not actually analyze the issue we must now decide, and

cases that erroneously rely on those cases for their implicit

assumptions. In Heintz v. Jenkins, the Supreme Court was

concerned with a single question: “The issue before us is

whether the term ‘debt collector’ in the [Act] applies to a lawyer who regularly, through litigation, tries to collect consumer

debts.” 514 U.S. 291, 292 (1995) (internal quotation marks

and emphasis omitted). The offending communication in that

case happened to be sent to a debtor’s counsel, id. at 293, but

the question on review was the entirely different matter of

whether a law firm engaged in collecting a debt is a debt collector for purposes of the Act. The identity of the recipient

was mentioned in passing; neither the Court nor the parties7

addressed the issue now before us. We are not required to follow what amounts to, at most, an implicit assumption,

because “[s]uch unstated assumptions on non-litigated issues

are not precedential holdings binding future decisions.” Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th

Cir. 1985); see also Brecht v. Abrahamson, 507 U.S. 619,

630-31 (1993) (holding that stare decisis is not applicable

6The dissent’s claim that Zaborac’s reasoning is limited to § 1692g(b),

and irrelevant to § 1692e, is off the mark. The relevant portion of Zaborac

arose under § 1692g(b), but its reasoning is broader than that, reaching to

the Act as a whole. Indeed, the court cited favorably to Kropelnicki, which

arose under § 1692e, for the proposition that a consumer’s attorney serves

as “an intermediary between the debt collector and the consumer.” 330 F.

Supp. 2d at 967 n.5; see also Tromba, 323 F. Supp. 2d at 427-28 (dismissing claim brought under § 1692e because communications to a debtor’s

attorney are not actionable under the Act). 

7Heintz’s Petition for Certiorari sought review of only one question: “Is

an attorney engaged solely to prosecute litigation against a consumer a

‘debt collector’ within the meaning of the [Act]?” Petition for Writ of Certiorari, Heintz, 514 U.S. 291 (No. 94-367). 

GUERRERO v. RJM ACQUISITIONS 10347
unless the issue was “squarely addressed” in a prior decision);

Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which

merely lurk in the record, neither brought to the attention of

the court nor ruled upon, are not to be considered as having

been so decided as to constitute precedents.”); Captain, 2006

U.S. Dist. LEXIS 47796, at *10 (“The issue presented here

did not arise [in Heintz]. Neither [the Supreme Court nor the

Seventh Circuit’s Heintz] opinion should be treated as binding

authority on an issue that did not arise and was not addressed.”).8

The dissent also relies upon Sayyed, which held that communications sent to a debtor’s attorney are covered by the

Act. 485 F.3d at 232-33. But the Fourth Circuit’s decision in

Sayyed, which did not even acknowledge the great weight of

authority holding to the contrary, relied on the implicit

assumption by the Supreme Court in Heintz, which we find

inappropriate for the reasons just discussed. 

Moreover, Sayyed found support for its position in

§ 1692c(a)(2), which, with limited exceptions, requires a debt

collector who knows that a debtor is represented by an attorney to communicate only with that attorney. That provision

cuts in the opposite direction, however, because it demonstrates that the Act contemplates different roles for, and different treatment of, attorneys and their debtor clients. Section

1692c(a)(2) actually reinforces our view that Congress treated

attorneys as intermediaries between debtors and debt collectors, and that a debtor’s attorney does not require the same

protections as a debtor himself. 

8Similarly, in Dikeman v. National Educators, Inc., another case the dissent relies upon, the Tenth Circuit bypassed the threshold question of

whether communications sent only to a debtor’s attorney are actionable

and jumped instead to consider what an attorney might find misleading.

81 F.3d 949, 953-54 (10th Cir. 1996). 

10348 GUERRERO v. RJM ACQUISITIONS
E.

The purpose of the FDCPA is to protect vulnerable and

unsophisticated debtors from abuse, harassment, and deceptive collection practices. See S. Rep. 95-389, at 2, 4 (1977),

as reprinted in 1977 U.S.C.C.A.N. 1695; Clark v. Capital

Credit & Collection Servs., Inc., 460 F.3d 1162, 1171 (9th

Cir. 2006) (“[T]he FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and

the credulous.”) (quoting Clomon v. Jackson, 988 F.2d 1314,

1318-19 (2d Cir. 1993)). 

The Act’s purposes are not served by applying its strictures

to communications sent only to a debtor’s attorney, particularly in the context of settlement negotiations. Congress was

concerned with disruptive, threatening, and dishonest tactics.

The Senate Report accompanying the Act cites practices such

as “threats of violence, telephone calls at unreasonable hours

[and] misrepresentation of a consumer’s legal rights.” S. Rep.

95-389, at 2. In other words, Congress seems to have contemplated the type of actions that would intimidate unsophisticated individuals and which, in the words of the Seventh

Circuit, “would likely disrupt a debtor’s life.” Pettit v.

Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057,

1059 (7th Cir. 2000). 

When an individual is represented by counsel who fields all

communications relevant to the debt collection, these concerns quickly evaporate. Attorneys possess exactly the degree

of sophistication and legal wherewithal that individual debtors

do not. See Kropelnicki, 290 F.3d at 127-28 (when “an attorney is interposed as an intermediary between a debt collector

and a consumer, we assume the attorney, rather than the

FDCPA, will protect the consumer from a debt collector’s

fraudulent or harassing behavior.”). 

The dissent overstates the scope of our holding, asserting,

for example, that we hold that “a debtor is protected against

GUERRERO v. RJM ACQUISITIONS 10349
false, deceptive, or misleading representations only so long as

she does not retain an attorney.” Diss. Op. at 10362. But

under our rule, the Act applies to conduct aimed at a debtor

himself regardless of whether he has retained counsel. We

merely hold that when the debt collector ceases contact with

the debtor, and instead communicates exclusively with an

attorney hired to represent the debtor in the matter, the Act’s

strictures no longer apply to those communications. 

F.

While no purpose of the Act is furthered by the unwarranted extension of its prohibitions to communications targeted exclusively at a debtor’s attorney, the facts of this case

illustrate well how a contrary rule would actively frustrate

some of these objectives. 

One purpose of the Act is to avoid “forc[ing] honest debt

collectors seeking a peaceful resolution of the debt to file suit

in order to resolve the debt — something that is clearly at

odds with the language and purpose of the FDCPA.” Clark,

460 F.3d at 1170 (quoting Lewis v. ACB Bus. Servs., 135 F.3d

389, 399 (6th Cir. 1998)). Congress in passing the Act sought

to encourage the prompt and amicable settlement of debts.

There is also, of course, the “strong judicial policy that favors

settlements” of disputes in general. Class Plaintiffs v. City of

Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).9

Here, Attorney Paer sent RJM an incendiary letter alleging

violations of the Act and offering to settle RJM’s alleged violations for a lump-sum payment of $3,000 to Guerrero. The

letter further stated: “Please respond within [ten days] if you

are interested in resolving this matter without litigation. . . .

9We do not, contrary to the dissent, hold that policy arguments favoring

settlement trump the provisions of the Act. Rather, we look to the Act’s

purposes and objectives because the statutory text and structure do not

offer a clear answer. 

10350 GUERRERO v. RJM ACQUISITIONS
Send verification and other communication to this office and

not to Mr. Guerrero.” (emphasis added). Only at that point did

RJM contact Attorney Paer as requested, restating the amount

allegedly owed by Guerrero. Moreover, RJM enclosed a copy

of a letter from Citibank verifying the existence of the debt

and its sale to RJM. Then, instead of working toward resolving a rather small debt, counsel succeeded in morphing it into

a federal battle royale complete with attorneys’ fees far in

excess of the amount in controversy. 

We can think of no better way to frustrate settlement

attempts than to adopt the rule urged by Guerrero, which here

would penalize a person attempting to pursue an outstanding

debt who did little more than respond to a threat by a debtor’s

attorney to file a lawsuit for violations and damages. This is

a perverse result that Congress could never have intended, and

its only effect can be to make debt collectors in this circuit

extremely reluctant to respond to any settlement negotiations

or offers made by attorneys on behalf of their clients, or, for

that matter, to extend unilaterally an offer of settlement to a

debtor’s attorney. 

G.

Because we hold that the district court erred in concluding

that RJM continued collection efforts in violation of the Act,

we must address the district court’s conclusion that even if

RJM had ceased collection efforts, the Act nevertheless

required it to verify the alleged debt. 

[11] The relevant provision of the Act, section 1692g(b),

states, “If the consumer notifies the collector in writing within

the thirty-day period . . . that the debt . . . is disputed . . . the

debt collector shall cease collection of the debt . . . until the

debt collector obtains verification of the debt or a copy of a

judgment[.]” (emphasis added). On this subject, the plain language of the statute is clear. When a debt is disputed, collection efforts must stop until the debt is verified. Once the debt

GUERRERO v. RJM ACQUISITIONS 10351
is verified, collection efforts may continue. Nothing in the

provision suggests an independent obligation to verify a disputed debt where the collector abandons all collection activity

with respect to the consumer. 

[12] We agree with the Seventh Circuit’s interpretation of

this provision in Jang v. A.M. Miller & Assocs., 122 F.3d 480

(7th Cir. 1997). In Jang, consumer plaintiffs claimed that

defendants, two debt collection agencies, violated the Act

because they never verified the alleged debts after plaintiffs

disputed them. Id. at 482. The Seventh Circuit, affirming the

district court’s grant of defendants’ motion to dismiss, noted

correctly that the Act “does not require debt collectors to actually provide validation. Rather, it requires that the debt collector cease all collection activity until it provides the requested

validation to the debtor.” Id.

A collector, notified that a debt is disputed, thus has a

choice. As the Court in Jang put it, the collector “may provide

the requested validations and continue their [sic] debt collection activities, or [it] may cease all collection activities.” Id.

at 483 (citing Smith v. Transworld Systems, Inc., 953 F.2d

1025, 1031 (6th Cir. 1992). It would make little sense to

impose an independent obligation to verify an alleged debt on

a collector who, for example, decides a disputed debt is not

worth the effort and chooses to close or sell the account. Or,

as the court in Jang noted, on a collector who, upon receiving

a dispute notice, realizes the consumer does not in fact owe

the debt and so abandons all costly collection efforts. 

[13] Here, once attorney Paer notified RJM that Guerrero

disputed the debt, RJM ceased all collection efforts directed

at Guerrero, and instead responded as requested to Paer’s

demand letter. RJM was therefore under no obligation to verify the alleged debt at that time. 

H.

[14] When defending against a claim under the Act, a debt

collector may recover attorneys’ fees and costs upon a district

10352 GUERRERO v. RJM ACQUISITIONS
court’s finding that the consumer brought the action in bad

faith and for purposes of harassment. See 15 U.S.C.

§ 1692k(a)(3). We are inclined to find Guerrero’s counsel’s

aggressive use of the Act unworthy of commendation, and are

skeptical of his claim that even he, an experienced consumer

protection attorney, found the two letters confusing and misleading. Nevertheless, Guerrero’s argument that the letters

would mislead the least sophisticated debtor is minimally colorable. RJM offers no evidence, other than its conclusory

assertion that Guerrero’s claims were frivolous, to support a

finding that Guerrero’s claims were necessarily brought in

bad faith and with the purpose of harassing RJM. In view of

a lack of Ninth Circuit authority on these issues, the district

court did not clearly err in finding Guerrero brought his suit

in good faith, and did not abuse its discretion in denying RJM

attorneys’ fees. 

[15] However, because we reverse the district court’s conclusion that RJM violated the Act, we hold that its award of

attorneys’ fees to Guerrero was in error. 

IV

The Act was meant to shield debtors from abusive collection practices, but it was never intended to shift the balance

of power between debtors and creditors such that a debt collector cannot work with a debtor’s attorney to settle claims

without exposing itself to liability out of proportion to the

debt allegedly owed. Nor was it intended as a sword to be

brandished by debtors who have retained counsel — the very

debtors least in need of the Act’s protections. RJM Acquisitions did not violate the Act in its June 14 letter to Paer, or

in its original letters to Guerrero. Consequently, we

REVERSE and REMAND with instructions to vacate the

award of attorneys’ fees to Guerrero and to enter judgment on

both Counts I and II10 in favor of RJM Acquisitions.11

10The merits of Count II, alleging violations of HRS § 480-2, depend on

our resolution of the merits of Count I, counsel for each party having stipulated to the element of damages sustained as required by HRS § 480-2.

11Guerrero’s request for attorneys’ fees on appeal is denied. 

GUERRERO v. RJM ACQUISITIONS 10353
W. FLETCHER, concurring in part, dissenting in part:

I agree with much of the majority’s opinion. However, I

disagree with its conclusion that a communication between a

debt collector and a debtor’s attorney is not actionable as a

“false, deceptive, or misleading representation” under the Fair

Debt Collection Practices Act (“FDCPA” or “Act”). 15

U.S.C. § 1692e. I also disagree with its conclusion that the

letter sent by the debt collector in this case, RJM Acquisitions

LLC (“RJM”), to the debtor’s attorney was not an attempt to

collect a debt. See id. § 1692g(b). The majority’s conclusions

are inconsistent with the plain language of the statute, with

appellate case law interpreting that language, and with the

policy of the statute. 

I. Factual Background

The factual background of this case is recounted in some

detail in the majority opinion. For purposes of this dissent,

only the following need be stated.

On May 20, 2002, RJM sent two nearly identical letters to

Kenneth Guerrero, at two separate addresses in Hawaii,

attempting to collect an asserted debt of $1,291.86. Guerrero

then contacted an attorney, who wrote a letter to RJM on June

10, 2002. The attorney’s letter requested payment of $3,000

to Guerrero, threatened litigation if that amount were not paid

within ten days, and requested verification of the debt. The

letter requested that RJM send the verification and other communications to the attorney rather than to Guerrero.

RJM responded in a letter to Guerrero’s attorney on June

14, 2002. In its entirety, the body of RJM’s letter stated: 

RJM Acquisitions LLC is in receipt of a recent fax

you sent dated June 10, 2002, concerning the above

referenced account. Please be advised that RJM

10354 GUERRERO v. RJM ACQUISITIONS
Acquisitions LLC has purchased this account from

Citibank (SD), N.A.

In response to your fax, please be guided by the

following. A Shell Oil account was opened August

12, 1993, in the name of Kenneth J. Guerrero, social

security # XXX-XX-XXXX. The last payment was

posted October 2, 1998.

We are in the process of complying with your

request to verify the above referenced account. Same

will be sent to you upon receipt.

RJM Acquisitions LLC respectfully maintains that

it has violated no laws. RJM Acquisitions LLC is not

a collection agency and therefore, not subject to the

Fair Debt Collection Practices Act. The only

attempted contact we had with your client is by our

letter dated May 18, 2002 [sic].

Additionally, enclosed please find relevant information in response to your fax.

The current balance is $1,291.86. Please contact

this office to discuss this matter. 

We have enclosed a postage paid return envelope for your convenience. 

(Emphasis in original.) At the bottom of its letter, below the

signature line and in the same typeface as the body of the letter itself, RJM wrote, “This is an attempt to collect a debt.

Any information obtained will be used for that purpose.”

No other communications are at issue.

II. My Disagreements with the Majority

Congress passed the FDCPA in 1978 to respond to the

“widespread and serious national problem” of “debt collection

GUERRERO v. RJM ACQUISITIONS 10355
abuse.” S. Rep. No. 95-382, at 2, 4 (1977), as reprinted in

1977 U.S.C.C.A.N. 1695, 1696, 1698. Congress intended that

the FDCPA serve as a “remedial statute aimed at curbing

what Congress considered to be an industry-wide pattern of

and propensity towards abusing debtors.” Clark v. Capital

Credit & Collection Servs., Inc., 460 F.3d 1162, 1171 (9th

Cir. 2006). 

According to the majority, whenever a debtor is represented by an attorney none of the protections of the FDCPA

protect the debtor against false, misleading, or abusive communications by the debt collector, so long as the communications are directed to the attorney. The majority’s conclusion

is inconsistent with the purpose of the FDCPA. More to the

point, its conclusion is inconsistent with the plain statutory

text. 

The FDCPA is a multi-part statute, with a number of provisions regulating what a debt collector may do. Two provisions

specifically mention attorneys for debtors, specifying that if a

debtor retains an attorney a debt collector must communicate

with the attorney rather than the debtor except in narrowly

defined circumstances. 15 U.S.C. §§ 1692b(6), 1692c(a)(2).

Other provisions prohibit harassment or abuse, § 1692d; prohibit “any false, deceptive, or misleading representation,”

§ 1692e; prohibit “unfair or unconscionable means” of collecting debts, § 1692f; require that the debt collector “cease

collection of [a disputed] debt” during a requested verification

of the debt, § 1692g(b); require that any suit be brought in

specified venues, § 1692i; and prohibit the use of deceptive

forms, § 1692j. 

Given these provisions, it is impossible to conclude that all

otherwise prohibited conduct is permitted merely because it is

directed at a debtor’s attorney. For example, § 1692d(1) prohibits “[t]he use or threat of use of violence or other criminal

means to harm the physical person, reputation, or property of

any person.” Further, § 1692i(a) requires that a legal action to

10356 GUERRERO v. RJM ACQUISITIONS
enforce a debt be brought in the district in which the consumer resides or signed the contract sued upon or, in the case

of a secured interest in real property, in the district in which

the property is located. It simply cannot be the case that such

things as threats of violence communicated through a debtor’s

attorney and suits in inconvenient forums are no longer forbidden by the FDCPA as soon as the debtor retains an attorney.

There are two provisions of the FDCPA at issue in this case

— § 1692e, which forbids “any false, deceptive, or misleading representation,” and § 1692g(b), which requires cessation

of “collection of the debt” during verification of a disputed

debt. Even though the majority rejects Guerrero’s claims

under both sections, its analysis is based almost exclusively

on § 1692g(b) and on one district court case interpreting that

section. In my view, the majority errs in concluding that

§ 1692e provides no protection against false, deceptive, or

misleading representations to a debtor’s attorney. Indeed, I

think the majority would almost certainly abandon its conclusion that § 1692e provides no such protection if it were to

analyze § 1692e on that section’s own terms. In my view, the

majority also errs in concluding that indirect collection efforts

aimed at a debtor’s attorney are not covered by the prohibition

against collection efforts pending verification of the disputed

debt under § 1692g(b). I discuss §§ 1692e and 1692g(b) in

turn. 

A. “False, Deceptive, or Misleading” Statements under

§ 1692e

1. Coverage of § 1692e

For three reasons, I conclude that communications between

a debt collector and an attorney representing a debtor are covered by § 1692e. 

First, the text of the FDCPA clearly requires that conclusion. Section 1692e provides, “A debt collector may not use

GUERRERO v. RJM ACQUISITIONS 10357
any false, deceptive, or misleading representation or means in

connection with the collection of any debt.” For purposes of

the FDCPA, a “debt collector” is “any person who . . . regularly collects or attempts to collect, directly or indirectly,

debts owed or due or asserted to be owed or due.” 15 U.S.C.

§ 1692a(6) (emphasis added). A “representation” may be

made by means of a “communication.” See, e.g., id.

§ 1692e(8) (prohibiting “[c]ommunicating or threatening to

communicate to any person credit information which is

known . . . to be false”); id. § 1692e(9) (prohibiting “use or

distribution of any written communication which simulates or

is falsely represented to be [an official] document”); id.

§ 1692e(11) (prohibiting “failure to disclose in the initial . . .

communication with the consumer . . . that the debt collector

is attempting to collect a debt”). A “communication” is

defined as the “conveying of information regarding a debt

directly or indirectly to any person through any medium.” Id.

§ 1692a(2) (emphasis added). 

These provisions make clear that the prohibition contained

in § 1692e against “any false, deceptive, or misleading representation . . . in connection with the collection of any debt”

is not limited to representations made directly to debtors. By

its plain terms, § 1692e bars “any false, deceptive, or misleading representation,” whether it is made to the consumer or to

a third party, so long as the representation is made “in connection with the collection of a debt.” The majority’s assertion

that “communications directed only to a debtor’s attorney . . .

are not actionable under the Act,” Maj. Op. at 10345, is

impossible to square with the Act’s prohibition on such representations when made “directly or indirectly to any person

through any medium.”

There is nothing in the text of the FDCPA to indicate that

attorneys representing debtors are excluded from the class of

third parties to whom a debt collector may not make a false,

deceptive, or misleading representation. To the contrary,

§ 1692c(a) specifically provides that, where a debtor is repre10358 GUERRERO v. RJM ACQUISITIONS
sented by an attorney, the debt collector shall direct all “communication” to the attorney, absent permission to

communicate directly with the debtor. A proper reading of the

text therefore dictates that § 1692e, which regulates categorically the contents of communications by the debt collector,

covers the “communication” to the debtor’s attorney

described in § 1692c(a)(2). See Gustafson v. Alloyd Co., Inc.,

513 U.S. 561 (1995) (“[T]he normal rule of statutory construction [is] that identical words used in different parts of the

same act are intended to have the same meaning.”) (internal

quotation marks and citation omitted).

Second, the United States Supreme Court and two courts of

appeals have read § 1692e as applying to communications to

attorneys representing debtors. In Heintz v. Jenkins, 514 U.S.

291 (1995), the debtor, Darlene Jenkins, borrowed money

from a bank and then defaulted on the loan. The bank sued

Jenkins in state court to recover the debt. As part of an effort

to settle the suit, an attorney for the bank wrote a letter to Jenkins’s attorney. Jenkins then brought suit against the bank’s

attorney and his law firm, alleging that the letter to her attorney was a “ ‘false representation of . . . the . . . amount . . .

of any debt’ ” in violation of § 1692e(2)(A). Heintz, 514 U.S.

at 293 (quoting 15 U.S.C. § 1692e(2)(A)) (alterations in original). The defendants moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim, on the

ground that the FDCPA did not apply to a lawyer who

attempts to collect a debt through litigation. Id. at 294. The

Supreme Court unanimously affirmed the Seventh Circuit’s

reversal of the district court order granting the motion to dismiss, holding that “[t]he Act does apply to lawyers engaged

in litigation.” Id. In so doing, the Court assumed, quite correctly in my view, that a false representation sent to a debtor’s

attorney by a debt collector violates § 1692e(2)(A).

Further, in Dikeman v. National Educators, Inc., 81 F.3d

949 (10th Cir. 1996), an employee of a debt collector communicated with an attorney representing two debtors in an

GUERRERO v. RJM ACQUISITIONS 10359
attempt to collect overdue rent and other charges. Id. at 950.

The debtors sued the debt collector and several of its employees under the FDCPA, claiming that the communication was

a “ ‘false or misleading misrepresentation’ ” in violation of

§ 1692e(11). Id. at 951. The Tenth Circuit affirmed a jury verdict in favor of the defendants, but not on the ground that a

communication to a debtor’s attorney is not covered by

§ 1692e. Rather, the court affirmed on the ground that the

communication was not false or misleading because the attorney, as a sophisticated professional, would not have misunderstood it. Id. at 953-54. 

Finally, in Sayyed v. Wolpoff & Abramson, 485 F.3d 226

(4th Cir. 2007), the law firm of Wolpoff & Abramson

(“W&A”) sued Farid Sayyed in state court to collect a debt.

Id. at 228. Sayyed, in turn, sued W&A for violation of the

FDCPA, alleging, inter alia, that W&A violated

§ 1692e(2)(A) by falsely stating the amount of the debt. Id. at

229. W&A argued that § 1692e does not apply to communications to a debtor’s attorney. Id. at 232. The Fourth Circuit

squarely rejected that argument. Noting that the FDCPA both

contemplates communications with debtors’ attorneys and

defines “communication” expansively, the court concluded

that a false statement to a debtor’s attorney “plainly qualifies

as an indirect communication to the debtor.” Id. at 232-33. It

then wrote, “If the statute left any room for doubt about this

issue, Heintz resolved it. Heintz itself involved a communication from a debt collection attorney to debtor Darlene Jenkins’

counsel, not to Jenkins herself. . . . Thus, plainly, the FDCPA

covers communications to a debtor’s attorney.” Id. at 233.

The majority brushes these cases aside, relying instead on

dictum from one court of appeals case and on several district

court cases. The appellate case is Kropelnicki v. Siegel, 290

F.3d 118 (2d Cir. 2002), in which the Second Circuit declined

to entertain an FDCPA claim based on the Rooker-Feldman

doctrine. The court noted in dictum, without citation to either

Heintz or Dikeman, “Where an attorney is interposed as an

10360 GUERRERO v. RJM ACQUISITIONS
intermediary between a debt collector and a consumer, we

assume the attorney, rather than the FDCPA, will protect the

consumer from a debt collector’s fraudulent or harassing

behavior. However, this is not an issue on which we need to

rule today.” Id. at 128.

The only district court opinion discussed (as opposed to

string-cited) by the majority is Zaborac v. Phillips & Cohen

Assocs., Ltd., 330 F. Supp. 2d 962 (N.D. Ill. 2004). But the

issue in Zaborac was not whether communications from a

debt collector to a debtor’s attorney were covered by the

“false, deceptive, and misleading representation” provision of

§ 1692e. Rather, the issue was whether settlement negotiations between the attorneys for the two sides while a debt was

being verified constituted “collection of the debt” within the

meaning of § 1692g(b). Id. at 966. The district court in

Zaborac held that the settlement negotiations in that case did

not constitute “collection” under § 1692g(b) and were thus

permitted while verification of the debt was still pending. Id.

at 966-67. But Zaborac’s holding on the meaning of “collection” under § 1692g(b) does not resolve the question whether

a debt collector is forbidden by § 1692e to make a “false,

deceptive, or misleading representation” to a debtor’s attorney.

Third, if notwithstanding § 1692e debt collectors are free to

make false, deceptive, or misleading representations to debtors’ attorneys, debtors are left vulnerable to the very abuses

that the FDCPA was intended to redress. For example,

assume that a debt collector sends to a debtor’s attorney false

documents purporting to verify a debt. In such a case, the

attorney might discover the truth and protect the debtor, but

she might not. Even if the attorney does discover the truth,

she will likely have spent time and money doing so. If

§ 1692e does not forbid sending false documents to the debtor’s attorney, the debtor will have to pay the attorney’s fees

and expenses out of his or her own pocket. On the other hand,

if § 1692e forbids such communications with the debtor’s

GUERRERO v. RJM ACQUISITIONS 10361
attorney, the debtor will be able to recover damages and attorney’s fees. See 15 U.S.C. § 1692k(a)(1), (3). 

Under the majority’s reading of § 1692e, a debtor is protected against false, deceptive, or misleading representations

only so long as she does not retain an attorney. As soon as an

attorney for the debtor enters the picture, the debt collector is

free to send false, deceptive, and misleading communications

to the debtor’s attorney without fear of any damage judgment

or award of attorney’s fees. That is, as soon as the attorney

enters the picture, the debtor rather than the debt collector will

have to bear the burden imposed by any such false, deceptive,

or misleading communications from the debt collector. Such

a result is manifestly contrary both to common sense and to

the policy underlying the FDCPA.

2. Application of § 1692e to Letter from RJM

For the foregoing reasons, I would hold that RJM’s June 14

letter to Guerrero’s attorney is covered by § 1692e. However,

I would not apply the least sophisticated debtor standard to

determine whether RJM’s representations to Guerrero’s attorney were false, deceptive, or misleading. Rather, following

the Tenth Circuit’s decision in Dikeman, I would hold that the

standard of what constitutes a “false, deceptive, or misleading

representation” has a different application depending on

whether the communication is directed to the attorney or the

consumer.

In Dikeman, a debt collector attempting to collect a debt

contacted the attorney representing two debtors. When the

debt collector provided verification of the debt to the debtors’

attorney, it did not state that it was attempting to collect a debt

and that any information obtained would be used for that purpose. The debtors sued the debt collector, alleging that the

omission of such a statement violated § 1692e(11) which (as

it then read) required that a debt collector “disclose clearly in

all communications made to collect a debt . . . that the debt

10362 GUERRERO v. RJM ACQUISITIONS
collector is attempting to collect a debt and that any information obtained will be used for that purpose.” Dikeman, 81

F.3d at 951 (quoting 15 U.S.C. § 1692e(11) [1995]). 

The Tenth Circuit held that the failure to provide such a

statement, in a communication to an attorney, did not violate

§ 1692e. In the court’s view, “the fact of the debt verification

and its content, viewed in context, was adequate to disclose

to an attorney hired to represent the debtor that the debt collector was attempting to collect a debt and that any information obtained would be used for that purpose.” Id. at 954. The

court explained:

The legal implications of communicating with a debt

collector would be especially within the professional

competence of a lawyer hired to represent a client’s

interests in the collection process, and the fact that

a communication is made to collect a debt is something that the lawyer’s professional expertise would

allow him or her to discern easily on facts such as

these. 

Id. at 953. 

I agree with the approach taken in Dikeman. It makes sense

to read the statute in a practical way, asking not whether the

communication is false, deceptive, or misleading in the

abstract, but whether it is so to the person to whom it is

addressed. A communication that is false, deceptive, or misleading to a consumer may not be so to an attorney. Such an

approach both protects debtors and remains true to the statutory text. 

The passage in RJM’s June 14 letter to which Guerrero

objects is the sentence stating that RJM “is not a collection

agency and therefore, not subject to the Fair Debt Collection

Practices Act.” RJM’s statement that it is not a “collection

agency” is, in one sense, true. As the district court found,

GUERRERO v. RJM ACQUISITIONS 10363
RJM is “neither licensed nor registered as a collection agency

in the State of Hawaii.” But RJM’s legal conclusion that it

was “therefore” not a debt collector covered by the FDCPA

hardly follows. 

If RJM’s statement had been made to Guerrero, I would

have no hesitation in concluding that it was “false, deceptive,

or misleading” within the meaning of § 1692e. But the statement was made to Guerrero’s attorney rather than to him.

Given that RJM’s statement was made to a debtor’s attorney,

specifically hired because of his professional expertise in debt

collection matters, I would hold that the statement — as made

to the attorney — was not “false, deceptive, or misleading.”

It was not a statement that might have taken the attorney time

and money to evaluate and contest. Rather, it was a legal contention that the attorney was able to evaluate and reject

quickly and easily. I would therefore hold that while RJM’s

communication to Guerrero’s attorney was covered under

§ 1692e, it did not violate that section. 

B. Obligation to Verify Debt under § 1692g

Section 1692g(a)(4) provides that “[w]ithin five days after

the initial communication with a consumer in connection with

the collection of any debt, a debt collector shall” give the consumer “written notice containing” 

a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the

debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy

of a judgment against the consumer and a copy of

such verification or judgment will be mailed to the

consumer by the debt collector[.] 

Section 1692g(b) further requires 

If the consumer notifies the debt collector in writing

within the thirty-day period described in subsection

10364 GUERRERO v. RJM ACQUISITIONS
(a) of this section that the debt, or any portion

thereof, is disputed . . . the debt collector shall cease

collection of the debt, or any disputed portion

thereof, until the debt collector obtains verification

of the debt or a copy of a judgment . . . and a copy

of such verification or judgment . . . is mailed to the

consumer by the debt collector. Collection activities

and communications that do not otherwise violate

this subchapter [Subchapter V. Debt Collection Practices] may continue during the 30-day period

referred to in subsection (a) of this section unless the

consumer has notified the debt collector in writing

that the debt, or any portion of the debt, is disputed

. . . . 

(Emphasis added.) 

After receiving RJM’s two initial letters, Guerrero asked

for verification of the asserted debt in his attorney’s June 10

letter, in accordance with § 1692g(b). RJM responded in its

June 14 letter to Guerrero’s counsel, “We are in the process

of complying with your request to verify the above referenced

account. Same will be sent to you upon receipt.” RJM also

wrote, “the current balance is $1,291.86. Please contact this

office to discuss this matter. We have enclosed a postage

paid return envelope for your convenience.” (Emphasis in

original.) Finally, at the bottom of the letter, RJM wrote,

“This is an attempt to collect a debt. Any information

obtained will be used for that purpose.” 

Guerrero contends that RJM had not verified the debt when

it wrote the June 14 letter, and that RJM was therefore obliged

under § 1692g(b) to “cease collection of the debt.” He contends further that the June 14 letter was “collection of the

debt” within the meaning of § 1692g(b). The district court

agreed with Guerrero, but the majority reverses. According to

the majority, a settlement attempt is not “collection of [a]

debt” within the meaning of § 1692g(b) if the debtor is repreGUERRERO v. RJM ACQUISITIONS 10365
sented by an attorney. However, according to the majority, a

settlement attempt is “collection of [a] debt” if the debtor is

not represented. 

I am somewhat sympathetic to the general policy concerns

expressed by the majority, and, indeed, am very sympathetic

to its concerns as they relate to the facts of this case. As a

general matter, there may be some sense in allowing two

attorneys — one representing the debt collector and the other

representing the debtor — to enter into settlement negotiations while a debt is still being verified. In this particular case,

it is hard to like the aggressive stance and tactics of Guerrero’s lawyer and hard to see the harm caused by RJM’s June

14 letter. 

But policy concerns are not the same thing as statutory language. The plain meaning of § 1692g is that any “collection

of the debt,” whether direct or indirect, is prohibited until the

debt has been verified. When a debt collector receives a

request under § 1692g(a) to verify a debt, it has two choices.

It may decide not to verify the debt and to abandon any

attempt to collect the debt. See Jang v. A.M. Miller & Assocs.,

122 F.3d 480, 483 (7th Cir. 1997) (debt collector gave up all

attempts to contact debtor and actually returned debtor’s file

to original creditor). Or it may decide to verify the debt in

order to pursue collection activities. But if it decides to verify

the debt, it must cease collection activity during the verification process and resume collection activity only after the debt

has been verified. 15 U.S.C. § 1692g(b). 

The majority refuses to read the statute as it is written.

According to the majority, indirect collection activity aimed

at a debtor’s attorney is permitted under § 1692g(b) while a

debt is being verified. Its opinion states that upon receipt of

Guerrero’s request for verification, RJM “ceased all direct

collection activity from Guerrero.” Maj. Op. at 10335

(emphasis added). The statute does not make such a distinction. The majority does not deny that RJM engaged in “col10366 GUERRERO v. RJM ACQUISITIONS
lection activity” in sending its June 14 letter to Guerrero’s

attorney, but it approves such activity because it is indirect

and aimed at the attorney rather than the debtor. But there is

nothing in the text of § 1692g(b) that prohibits “direct” collection but permits “indirect” collection. Nor is there anything in

the text that permits sending a “collection” letter to a debtor’s

attorney, even while forbidding sending an equivalent “collection” letter directly to an unrepresented debtor.

Although I can see policy reasons for writing the statute

differently, I would follow the statute as it is written. The fact

that the statute is written clearly is reason enough to follow

it. In addition, the Supreme Court in Heintz, surveying the

legislative history of the statute, observed that Congress had

considered and rejected alternative language that would have

immunized from FDCPA liability a debt collector’s lawyer’s

attempts “ ‘to contact third parties in order to facilitate settlements.’ ” 514 U.S. at 297 (quoting H.R. Rep. No. 99-405, at

11 (1985), as reprinted in 1986 U.S.C.C.A.N. 1752, 1760).

The Court explained that Congress had declined to draw a line

in the FDCPA “between ‘legal’ activities and ‘debt collection’

activities.” Id.

Finally, there are good policy reasons supporting the statute

as written. There is nothing particularly onerous about requiring a debt collector to cease debt collection activities —

including attempts at settlement with the debtor’s attorney —

until the debt is verified. The standard for verification is not

very demanding. See, e.g., Clark, 460 F.3d at 1173-74;

Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999). In

most cases, the waiting period will not be long. In those cases

where the waiting period is extended because the debt is difficult to verify, that very difficulty is a reason to wait. Requiring all collection efforts, including settlement offers, to cease

prior to verification helps to ensure that both parties have

accurate information about the claim being settled. See S.

Rep. No. 95-382, at 4 (1977), as reprinted in 1977

U.S.C.C.A.N. 1695, 1699 (verification is intended to “elimiGUERRERO v. RJM ACQUISITIONS 10367
nate the recurring problem of debt collectors dunning the

wrong person or attempting to collect debts which the consumer has already paid”); Goswami v. Am. Collections Enter.,

Inc., 377 F.3d 488, 496 (5th Cir. 2004) (public interest in settlement does not trump FDCPA provisions). 

Section 1692g(b) provides a simple bright-line rule: All

“collection of the debt” must cease pending verification of the

debt. Full stop. There are sound policy reasons for having

such a bright-line rule. There is no necessity to distinguish

between cases in which the debtor is, or is not, represented by

counsel. There is no necessity to distinguish between bona

fide settlement negotiations and harassment, hardball tactics,

or threats of injury designed to coerce settlement. If verification has been requested, all collection activity must cease

pending verification. The rule is easy to understand and easy

to follow. 

In this case, it is undisputed that Guerrero properly

requested verification of the debt under § 1692g(a). In

response, RJM sent a letter on June 14 in which it stated that

it was in the process of obtaining verification, thus making

clear that as of the date of the letter, the obligation to cease

collection activities applied. In that same letter, RJM stated

that the “current balance” of the account was $1,291.86, the

same amount given in its two initial dunning letters to Guerrero; it stated that it was enclosing “a postage paid return

envelope for your convenience”; and it stated, “This is an

attempt to collect a debt.” RJM’s letter could hardly have

been clearer. It was trying to collect the asserted debt. One

can characterize the letter as an attempt to settle the debt, even

though that is not what the letter says. But that does not matter. Section 1692g(b) makes no exception for attempts at “settlement,” and it forbids “collection of the debt, or any

disputed portion thereof” pending verification. 

I would therefore hold that in sending its June 14 letter to

Guerrero, RJM violated § 1692g(b). 

10368 GUERRERO v. RJM ACQUISITIONS
III. Attorney’s Fees

Section § 1692k(a) provides that “any debt collector who

fails to comply with any provision” shall pay the debtor “any

actual damage sustained,” “such additional damages as the

court may allow, but not exceeding $1,000,” and, “in the case

of any successful action to enforce the foregoing liability, the

costs of the action, together with a reasonable attorney’s fee

as determined by the court.” The district court here concluded, “On the basis of the above findings, and particularly

the findings with respect to Defendant’s false and misleading

representations, . . . Plaintiff is entitled to statutory damages

of $1,000.00 for the FDCPA violations.” No other damages

were awarded to Guerrero. Based on Guerrero’s success in

winning statutory damages, the district court also awarded

him $43,428.00 in attorney’s fees and $1,809.21 in costs. 

I concur in that portion of the majority’s opinion holding

that the two otherwise identical letters that RJM sent to Guerrero’s home and post office box addresses were not false,

deceptive, or misleading simply because the account and file

numbers listed on one letter ended with an “a” and those on

the other letter with a “b.” In my view, even the least sophisticated debtor would realize that these letters referred only to

a single account due. I also agree with the majority, although

based on a different rationale, that RJM’s June 14 communication to Guerrero’s attorney did not violate § 1692e. In contrast to the majority, I would uphold the district court’s ruling

that RJM failed to cease collection activity pending verification as required by § 1692g(b). 

Because I would hold that Guerrero prevailed on his claim

that RJM violated § 1692g(b), I would also hold that he is eligible for statutory damages, attorney’s fees, and costs under

§ 1692k(a). However, I would vacate the district court’s existing award of statutory damages, attorney’s fees, and costs and

remand for reconsideration consistent with the degree of success Guerrero ultimately achieved. See, e.g., Zagorski v. MidGUERRERO v. RJM ACQUISITIONS 10369
west Billing Servs., Inc., 128 F.3d 1164, 1166-67 (7th Cir.

1997) (per curiam); Carroll v. Wolpoff & Abramson, 53 F.3d

626, 630 (4th Cir. 1995). 

Conclusion

Based upon the plain language of the FDCPA, the case law

interpreting the statute, and Congress’s underlying policy, I

would hold that communications or collection activities

directed at a debtor’s attorney are actionable under §§ 1692e

and 1692g. On the facts of this case, I would reverse the district court’s holding that RJM violated § 1692e but affirm its

holding that RJM violated § 1692g(b). 

10370 GUERRERO v. RJM ACQUISITIONS