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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Xochitl Enriquez, 

Plaintiff, 

v. 

U.S. Collections West Incorporated, et al., 

Defendants.

No. CV-15-01863-PHX-GMS

ORDER 

 Pending before the Court is Defendants Alan Zimmerman and Alan H. 

Zimmerman, P.C.’s (collectively “Zimmerman Defendants”) motion to dismiss. (Doc. 

46.) For the following reasons, the motion is granted. 

BACKGROUND 

 On October 12, 2009, Plaintiff Xochitl Enriquez entered into a written lease 

agreement with Desert Point Apartments (“DPA”) for a residential apartment. (Doc. 37 

at ¶ 4.) After Plaintiff abandoned the apartment, DPA sued Plaintiff for eviction and 

obtained a money and possession judgment against Plaintiff in the amount of $1,460.30 

on July 26, 2010. (Id. at ¶¶ 5–8.) On August 11, 2010, DPA sent a demand letter to 

Plaintiff, demanding $2,251.38 in satisfaction of her lease obligation. (Id. at ¶ 11.) 

 However, on November 19, 2013, DPA assigned its judgment for collection to 

U.S. Collections West Incorporated (“USCW”), who then hired the Zimmerman 

Defendants to collect the judgment from Plaintiff. (Id. at ¶ 12.) On June 30, 2015, the 

Zimmerman Defendants renewed the judgment in the amount of $2,228.33 including 

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interest. (Id. at ¶ 14.) Subsequently, on July 21, 2015, the Zimmerman Defendants sent a 

demand to the Plaintiff (“the letter”) requesting this amount. (Id. at ¶15.) The single 

page letter consists of three paragraphs. The letter all in capital letters using a uniform 

size and typeface. It is not disputed by the parties that the text of the letter states: 

 PURSUANT TO A.R.S., 12-1598.03, DEMAND IS HEREBY 

MADE UPON YOU FOR PAYMENT OF THE JUDGMENT BALANCE 

OF $2,228,33 OR A PAYMENT EACH AND EVERY PAYDAY OF 25% 

OF YOUR NON-EXEMPT WAGES COMMENCING WITHIN FIFTEEN 

(15) DAYS OF THE DATE OF THIS LETTER AND CONTINUING 

UNTIL THE JUDGMENT BALANCE PLUS INTEREST HAS BEEN 

PAID IN FULL. 

 YOU ARE FURTHER ADVISED THAT UNLESS YOU, WITHIN 

THIRTY (30) DAYS AFTER RECEIPT OF THIS NOTICE, DISPUTE 

VALIDITY OF THE DEBT, OR ANY PORTION THEREOF, WE WILL 

ASSUME THAT THE DEBT IS VALID. IF YOU NOTIFY THIS 

OFFICE IN WRITING WITHIN THE THIRTY DAY PERIOD THAT 

THE DEBT, OR ANY PORTION THEREOF, IS DISPUTED, WE SHALL 

OBTAIN VERIFICATION OF THE DEBT AND A COPY OF SUCH 

VERIFICATION WILL BE MAILED BY US TO YOU. IF YOU 

NOTIFY THIS OFFICE IN WRITING WITHIN THIS THIRTY (30) DAY 

PERIOD, WE WILL PROVIDE YOU THE NAME AND ADDRESS OF 

THE ORIGINAL CREDITOR IF DIFFERENT FOR [SIC] THE 

CURRENT CREDITOR. THIS COMMUNICATION IS FROM A DEBT 

COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY 

INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. 

 THE LAW DOES NOT REQUIRE ME TO WAIT UNTIL THE 

END OF THE THIRTY DAY PERIOD, BUT ONLY THE FIFTEEN DAY 

PERIOD, BEFORE COMMENCING WAGE GARNISHMENT 

PROCEEDINGS. IF, HOWEVER, YOU REQUEST PROOF OF THE 

DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL 

CREDITOR WITHIN THE THIRTY DAY PERIOD THAT BEGINS 

WITH YOUR RECEIPT OF THIS LETTER, THE LAW REQUIRES ME 

TO SUSPEND MY EFFORTS (THROUGH LITIGATION OR 

OTHERWISE) TO COLLECT THE DEBT UNTIL I MAIL THE 

REQUESTED INFORMATION TO YOU. 

(Doc. 46-1 at 2.) 

 On March 22, 2016, Plaintiff filed an Amended Complaint against the 

Zimmerman Defendants alleging that this letter violated the requirements of the Fair Debt 

Collection Practices Act (“FDCPA”) because the letter cited a state statute “in support of 

its allegation that Plaintiff was statutorily required to tender 25% of her take home pay to 

USCW.” (Doc. 37 at ¶¶ 15, 24.). Plaintiff also alleges that the “demand letter also 

violated the FDCPA by overshadowing her right to dispute the alleged debt within thirty 

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days from receipt of the letter” by suggesting that Defendants would begin garnishment 

proceedings within fifteen days if she had not otherwise agreed to pay the debt in its 

entirety or pay installments thereon. (Id. at ¶¶ 16, 24.) 

 Neither of these assertions withstands Defendants’ motion to dismiss. 

DISCUSSION

I. Legal Standard 

The Parties have submitted a copy of the letter upon which Plaintiff bases her 

claim without dispute. And whether the text of a demand letter violates the FDCPA is a 

question of law for the court. Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997). A 

communication from a creditor to a debtor violates the FDCPA if the communication was 

“likely to deceive or mislead a hypothetical ‘least sophisticated debtor.’” Wade v. Reg’l 

Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir. 1996) (quoting Swanson v. S. Or. Credit Serv., 

Inc., 869 F.2d 1222, 1225 (9th Cir. 1988)). “The objective least sophisticated debtor 

standard is ‘lower than simply examining whether particular language would deceive or 

mislead a reasonable debtor.’” Terran, 109 F.3d at 1432–33 (quoting Swanson, 869 F.2d 

at 1227). Rather, notice must be effectively conveyed to a debtor, large enough to be 

easily read, and not overshadowed or contradicted by other messages from the debt 

collectors. Id.

II. Analysis 

 The validation provisions of the FDCPA require that the Plaintiff have thirty days 

in which to contest a debt. However, the FDCPA explicitly authorizes creditors to 

continue debt collection activity during this thirty day period. 15 U.S.C. § 1692g(b) 

(“Collection activities and communications that do not otherwise violate this subchapter 

may continue during the 30-day period . . . .”); see also Sims v. GC Servs. L.P., 445 F.3d 

959, 965 (7th Cir. 2006).1

 

 

1

 The Zimmerman Defendants claim that as subsequent debt collectors they were not 

required by the FDCPA to give Plaintiff a validation notice at all. After this motion was 

briefed, the Ninth Circuit held otherwise, finding that “Congress’s intent to require each

debt collector to send a validation notice with its initial communication is clear from the 

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 Plaintiff provides no argument or authority to suggest that Defendants could not 

undertake the state statutory prerequisites to garnishment during the thirty day statutory 

period. Plaintiff does argue, however, that when the Defendants informed her that they 

intended to begin garnishment proceedings within fifteen days of their notice, they 

“overshadowed” Plaintiff’s right to have thirty days in which to contest the debt. But that 

argument is not persuasive. To accept that argument would rebalance the statutory rights 

of creditors and debtors in a way that would contradict the balance struck in the statute. 

 Further, the letter does not misdescribe the rights of the Plaintiff. As the letter 

clearly explains, even had the Zimmerman Defendants begun garnishment proceedings 

prior to the expiration of the thirty day period, they would have had to halt them if 

Plaintiff timely contested the debt. 

IF, HOWEVER, YOU REQUEST PROOF OF THE DEBT OR THE 

NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE 

THIRTY DAY PERIOD THAT BEGINS WITH YOUR RECEIPT OF 

THIS LETTER, THE LAW REQUIRES ME TO SUSPEND MY 

EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT 

THE DEBT UNTIL I MAIL THE REQUESTED INFORMATION TO 

YOU. 

(Doc. 46-1 at 2.) This is an accurate statement of the Plaintiff’s rights and the 

Defendants’ obligations under the law. 

 The letter further provided “transitional language that referred the addressee to the 

validation notice” in a way that “effectively inform[ed] [the] consumer as to . . . her 

rights under the FDCPA without imposing an undue burden on a debt collector’s 

legitimate efforts to obtain the prompt payment of debts.” Savino v. Comput. Credit, Inc., 

164 F.3d 81, 86 (2d Cir. 1988). The letter’s language is closely akin if not almost 

identical to the “safe harbor” language set forth by the Seventh Circuit in Bartlett v. 

Heibl, 128 F.3d 497, 501–02 (7th Cir. 1997). And, even acknowledging that such “safe 

 

statutory text.” Hernandez v. Williams, Zinman & Parham PC, 829 F.3d 1068, 1079 (9th 

Cir. 2016) (emphasis added). Thus, the Court decides the Motion based on Defendants’ 

assertion that it complied with all relevant validation requirements of the statute to the 

extent those arguments were controverted by the Plaintiff. 

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harbor” precedent is not binding on this Court, the language in this circumstance 

nevertheless accurately and fairly describes the nature of Plaintiff’s notice rights to the 

Plaintiff. As such it does not violate the least sophisticated consumer standard which still 

“preserv[es] a quotient of reasonableness and presume[es] a basic level of understanding 

and willingness to read with care.” Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 

1062 (9th Cir. 2011) (quoting Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 

2008)). Because the provisions of the letter that explained the verification provisions 

were in no way overshadowed either in format or in substance in the letter, Plaintiff’s 

argument that the letter “overshadowed” her verification rights under the FDCPA is 

without merit. 

 Further, as the disputed letter suggests, state law requires the Defendant to make a 

demand on the Plaintiff for payment or payments before it could seek to garnish her 

wages. A.R.S. § 12-1598.03. Plaintiff’s Amended Complaint asserts that the letter cites 

the Arizona statue “in support of its allegation that Plaintiff was statutorily required to 

tender 25% of her take home pay to USCW.” (Doc. 37 at ¶¶ 15, 24.). But literally read, 

as the Plaintiff apparently concedes, the letter does not so state. Nor does the letter 

demand that payment be made “immediately.” Instead it demands payment to be made in 

the full amount of $2,228.33 or spread out over a period of time with 25% of Plaintiff’s 

nonexempt wages going to the Zimmerman Defendants until the debt is paid off. A.R.S. 

§ 12-1598.03 specifically requires a demand for payment in full or periodic payments of 

the debtor’s non-exempt wages before a creditor can pursue garnishment. 

 Plaintiff asserts that the wording of the sentence might nevertheless be confusing 

to a “least sophisticated debtor,” and that such a debtor might interpret the sentence’s 

citation of the statute for a purpose other than identifying the state law with which 

Defendants were complying by making the demand for payment—such as an 

interpretation that the statute required immediate payment or payment of 25% of nonexempt wages. Nevertheless, the least sophisticated debtor standard is still an objective 

standard. Pulling out hypotheticals as to how some unsophisticated debtor might 

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interpret the statute does not necessarily meet the objective standard especially when it 

does not accurately account for the text of the statement itself. The least sophisticated 

debtor standard “does not subject debt collectors to liability for ‘bizarre,’ ‘idiosyncratic,’ 

or ‘peculiar’ misinterpretations.” Gonzales, 660 F.3d at 1062 (quoting Rosenau, 539 

F.3d at 221). Defendants, after all, are required to comply with the terms of the Arizona 

statute to implement garnishment, and are not required to wait thirty days before doing 

so. In the absence of identifying with some specificity how the Defendants’ statements 

either constituted an actual misstatement of the law, or a statement that was sufficiently 

confusing so the least sophisticated consumer would misinterpret the statute in an 

identifiable way, Plaintiffs have not met their burden. 

 Even assuming that the sentence was an actual misstatement or that it would likely 

be misinterpreted by the least sophisticated debtor to be so, the Plaintiff would still have 

to demonstrate that such a statement is material. “[F]alse but non-material 

representations are not likely to mislead the least sophisticated consumer and therefore 

are not actionable under § [] 1692e.” Donohue v. Quick Collect, Inc., 592 F.3d 1027, 

1033 (9th Cir. 2010). The Plaintiff has failed to demonstrate to this Court’s satisfaction 

any specific misinterpretation amounting to a misstatement that the least sophisticated 

debtor would likely make with respect to this sentence. Even had she done so, there are 

no allegations in the complaint that such a hypothetical misinterpretation by a least 

sophisticated debtor would be material.2

 

/ / / 

/ / / 

/ / / 

/ / / 

/ / / 

 

2

 Further, Plaintiff has not made sufficient allegations of fact to suggest that any such a misinterpretation on her part would give rise to any concrete injury sufficient to grant her standing pursuant to Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), which was decided 

after the motion to dismiss was submitted. 

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IT IS THEREFORE ORDERED that Defendants’ motion to dismiss (Doc. 46) 

pursuant to Rule 12(b)(6) is GRANTED. The Clerk of Court is directed to enter 

judgment accordingly. 

 Dated this 15th day of December, 2016. 

Honorable G. Murray Snow

United States District Judge

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