FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBEL A. AFEWERKI,

Plaintiff-Appellant,

v.

ANAYA LAW GROUP; LOS ANGELES

FEDERAL CREDIT UNION,

Defendants-Appellees.

No. 15-56510

D.C. No.

2:14-cv-07132-

RGK-JPR

OPINION

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted April 7, 2017

Pasadena, California

Filed August 18, 2017

Before: Richard R. Clifton and John B. Owens, Circuit

Judges, and John Antoon II,

*

 District Judge.

Opinion by Judge Clifton

* The Honorable John Antoon II, United States District Judge for the

Middle District of Florida, sitting by designation.
2 AFEWERKI V. ANAYA LAW GROUP

SUMMARY**

Fair Debt Collection Practices Act

The panel affirmed in part and vacated in part the district

court’s summary judgment in favor of the defendants in an

action under the Fair Debt Collection Practices Act and

California’s Rosenthal Fair Debt Collection Practices Act.

A debt collector filed a complaint in state court to collect

an unpaid credit card debt, but the complaint overstated both

the debtor’s principal due and the applicable interest rate. 

The panel held that the false statements made by the debt

collector were material because they could have

disadvantaged a hypothetical debtor in deciding how to

respond to the complaint. The panel therefore vacated the

grant of summary judgment as to the FDCPA claim.

The panel affirmed the district court’s grant of summary

judgment on the Rosenthal Act claim on the alternative

ground that the debt collector corrected the misstatements

within fifteen days of discovering the violation and thus

satisfied the requirements necessary to avail itself of a

defense under the Rosenthal Act.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
AFEWERKI V. ANAYA LAW GROUP 3

COUNSEL

Abbas Kazerounian (argued), Kazerouni Law Group APC,

Costa Mesa, California; Robert L. Hyde, Joshua B. Swigart,

and Sara F. Khosroabadi, Hyde & Swigart, San Diego,

California; for Plaintiff-Appellant.

Jonathan A. Malek (argued), Anaya Law Group, Westlake

Village, California, for Defendants-Appellees.

OPINION

CLIFTON, Circuit Judge:

The federal Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692 et seq., prohibits debt

collectors from making false statements when attempting to

collect debts from consumers. 15 U.S.C. § 1692e. Not all

false statements are actionable, however. To constitute a

violation of the FDCPA, a false statement must be “material.” 

Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir.

2010).

What makes a false statement material or immaterial in

the debt collection world? Material false statements, we have

held, are those that could “cause the least sophisticated debtor

to suffer a disadvantage in charting a course of action in

response to the collection effort.” Tourgeman v. Collins Fin.

Servs., Inc., 755 F.3d 1109, 1121 (9th Cir. 2014). This appeal

requires us to consider the materiality of modest

overstatements of an amount due and an interest rate.
4 AFEWERKI V. ANAYA LAW GROUP

Here, a debt collector filed a complaint in state court to

collect an unpaid credit card debt, but the complaint

overstated both the debtor’s principal due and the applicable

interest rate. The debtor sued the debt collector in federal

court for violations of the FDCPA and of California’s

Rosenthal Fair Debt Collection Practices Act (“Rosenthal

Act”), Cal. Civ. Code § 1788 et seq. The district court

granted summary judgment to the debt collector on both

claims because it concluded that the errors in the complaint

were not material. We conclude, however, that the false

statements made by the debt collector in this case were

material because they could have disadvantaged a

hypothetical debtor in deciding how to respond to the

complaint. Accordingly, we vacate the grant of summary

judgment as to the FDCPA claim and remand for further

proceedings.

As for the Rosenthal Act claim, we affirm the grant of

summary judgment on an alternative ground. The debt

collector corrected the misstatements within fifteen days of

discovering the violation and thus satisfied the requirements

necessary to avail itself of a defense under the Rosenthal Act.

I. Background

Los Angeles Federal Credit Union (“LAFCU”) was owed

money by Plaintiff Robel Afewerki, a credit card customer of

LAFCU who had fallen behind on payments. LAFCU hired

Anaya Law Group to collect the debt and correctly informed

Anaya Law Group that the principal due was $26,916.08 and

that the debt was subject to a 9.65 percent interest rate. 

Anaya Law Group filed a complaint on behalf of LAFCU

against Afewerki on May 6, 2014, in Los Angeles County

Superior Court alleging that the principal of Afewerki’s debt
AFEWERKI V. ANAYA LAW GROUP 5

was $29,916.08 ($3,000 more than he in fact owed) and that

the debt was subject to an interest rate of 9.965 percent (a

figure that was 0.315 percent too high). Anaya Law Group

served the complaint directly on Afewerki, who was not

represented by counsel at that time.

Given this circumstance, Afewerki retained a lawyer, who

sent a demand for a bill of particulars to Anaya Law Group

on June 6, 2014. As she later set out in a declaration, an

Anaya Law Group attorney discovered the errors in the

complaint for the first time on June 16, 2014, while preparing

a response to the demand. She asserted that the errors were

inadvertent. Two days later, on June 18, 2014, Anaya Law

Group filed a notice of errata correcting the errors.

Relying on two statutes that prohibit debt collectors from

making false representations in connection with efforts to

collect consumer debts, Afewerki filed this lawsuit in federal

court. Specifically, in his first amended complaint, Afewerki

alleged a violation of the FDCPA against Anaya Law Group

and a violation of the Rosenthal Act against both Anaya Law

Group and LAFCU.1See 15 U.S.C. § 1692e; Cal. Civ. Code

§ 1788.17.

Each of the parties moved for summary judgment. The

district court granted Defendants’ motion for summary

judgment and denied Afewerki’s motion for summary

judgment, concluding that the errors in the state court

1 Afewerki did not sue LAFCU under the FDCPA. Under the

FDCPA, a creditor collecting debts on its own behalf is not a “debt

collector.” 15 U.S.C. § 1692a(6); Henson v. Santander Consumer USA

Inc., 137 S. Ct. 1718, 1721 (2017).
6 AFEWERKI V. ANAYA LAW GROUP

complaint were “not material.” The district court reaffirmed

its decision after Afewerki filed a motion for reconsideration.

Notice of appeal was timely filed. We have jurisdiction. 

28 U.S.C. § 1291.

II. Discussion

We review de novo a grant of summary judgment. 

Tourgeman, 755 F.3d at 1118. We also review de novo a

district court’s interpretation of the FDCPA. Id. at 1119.

A. Materiality under FDCPA and Rosenthal Act

The district court determined that Defendants were not

liable under either the FDCPA or the Rosenthal Act because

it concluded that the complaint’s misstatements of the

principal owed and interest rate were “not material.” Even if

Afewerki had not appeared and LAFCU had been granted

default judgment in the state court case, the district court

believed that LAFCU would have been required to prove the

amount owed prior to entry of judgment, so the judgment

ultimately entered would have been in the correct amount. In

addition, the district court noted that Afewerki had not

presented evidence that he would have proceeded differently

had the complaint alleged the correct principal amount and

interest rate. We conclude, however, that the false statements

made by the debt collector in this case were material because

they could have disadvantaged the least sophisticated debtor

in responding to the complaint.

The FDCPA prohibits debt collectors from using “any

false, deceptive, or misleading representation or means in

connection with the collection of any debt.” 15 U.S.C.
AFEWERKI V. ANAYA LAW GROUP 7

§ 1692e. Specifically, 15 U.S.C. § 1692e(2) prohibits “[t]he

false representation of . . . the character, amount, or legal

status of any debt.” The Rosenthal Act incorporates these

prohibitions by reference. Cal. Civ. Code § 1788.17

(“[E]very debt collector collecting or attempting to collect a

consumer debt shall comply with the provisions of Sections

1692b to 1692j, inclusive, of . . . Title 15 of the United States

Code.”). The complaint that was filed misrepresented the

amount of the debt owed by Afewerki.

The text of the FDCPA does not itself establish either the

least sophisticated debtor standard or the materiality

requirement, nor does the statute define these terms. The

FDCPA’s broad prohibition on misleading statements poses

the question, “Misleading to whom?” We answered this

question in 1982, when we explained that, “[i]n evaluating

the tendency of language to deceive, [we] should look not to

the most sophisticated readers but to the least.” Baker v. G.

C. Servs. Corp., 677 F.2d 775, 778 (9th Cir. 1982). We

concluded that the FDCPA does not ask the subjective

question of whether an individual plaintiff was actually

misled by a communication. Rather, it asks the objective

question of whether the hypothetical least sophisticated

debtor would likely have been misled. “If the least

sophisticated debtor would likely be misled by a

communication from a debt collector, the debt collector has

violated the Act.” Guerrero v. RJM Acquisitions LLC,

499 F.3d 926, 934 (9th Cir. 2007) (internal quotation marks

omitted). We recognized that “the least sophisticated debtor

may be uninformed, naive, and gullible.” Tourgeman,

755 F.3d at 1119. To be sure, “her interpretation of a

collection notice cannot be bizarre or unreasonable,” id., but

it is still the perspective of the least sophisticated debtor that

counts.
8 AFEWERKI V. ANAYA LAW GROUP

More recently, in Donohue v. Quick Collect, Inc.,

592 F.3d at 1033–34, we adopted the materiality requirement

as a “corollary” to the least sophisticated debtor standard. 

We held “that false but non-material representations are not

likely to mislead the least sophisticated consumer and

therefore are not actionable under §[] 1692e.” Id. at 1033. 

By asking whether false statements were material, we took

the least sophisticated debtor standard that we had long

applied to misleading statements and expanded it to other

conduct covered by the FDCPA. In doing so, we followed

the lead of the Seventh Circuit, which explained that the

FDCPA “is designed to provide information that helps

consumers to choose intelligently, and by definition

immaterial information neither contributes to that objective

(if the statement is correct) nor undermines it (if the statement

is incorrect).” Hahn v. Triumph P’ships LLC, 557 F.3d 755,

757–58 (7th Cir. 2009). Other circuits have also adopted a

materiality requirement for FDCPA claims. See, e.g., Jensen

v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015);

Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 571 (8th

Cir. 2015); Miller v. Javitch, Block & Rathbone, 561 F.3d

588, 596 (6th Cir. 2009).

In Donohue, a debt collector filed a complaint that listed

a principal due of $270.99 and interest due of $32.89, which,

the complaint indicated, was calculated at a 12 percent

interest rate. 592 F.3d at 1033. In reality, the $32.89

included finance charges assessed by the creditor in addition

to the 12 percent interest rate. Id. While the complaint’s

characterization of the amount was literally false, we

determined that it did not matter. The total amount due was

correct, and the mistake, we concluded, would “not affect a

consumer’s ability to make intelligent decisions.” Id. at

1034.
AFEWERKI V. ANAYA LAW GROUP 9

We have applied this concept in subsequent cases. For

example, we held that a voicemail message that failed to

fulfill a statutory requirement to identifyeach communication

as being from “a debt collector” was not a material violation

when the debtor clearly knew who the debt collector was

because the two had exchanged eight emails and a phone call

in the two preceding weeks. Davis v. Hollins Law, 832 F.3d

962, 967 (9th Cir. 2016).

Nevertheless, the materiality requirement remains a fairly

narrow exception to the general rule requiring accuracy in

communications from debt collectors. Thus, we concluded

that misidentification of a consumer’s original creditor in a

dunning letter was material because such a mistake could lead

to “confusion and delay in trying to contact the proper party

concerning payment on the loan.” Tourgeman, 755 F.3d at

1121 (original brackets omitted). Without knowing the

identity of the original creditor, we explained, a debtor might

be frustrated in an attempt to discover how he incurred the

debt or to obtain his payment records. Id.

Material false representations, then, are those that could

“cause the least sophisticated debtor to suffer a disadvantage

in charting a course of action in response to the collection

effort.” Id. Immaterial false representations, by contrast, are

those that are “literally false, but meaningful only to the

‘hypertechnical’ reader.” Id. To the extent that a Rosenthal

Act claim is derivative of a 15 U.S.C. § 1692e claim, as is

true in this case, false statements are also subject to the

materiality requirement for purposes of the Rosenthal Act

claim. See Davis, 832 F.3d at 966 n.3.

Because the materiality inquiry focuses on the objective

question of how the least sophisticated debtor could have
10 AFEWERKI V. ANAYA LAW GROUP

reacted to a misstatement, the question of what Afewerki

himself would actually have done differently had Anaya Law

Group not misstated the amount of his debt is irrelevant in

determining materiality. As we have explained:

[A] consumer possesses a right of action even

where the defendant’s conduct has not caused

him or her to suffer any pecuniary or

emotional harm. An FDCPA plaintiff need

not even have actually been misled or

deceived by the debt collector’s

representation; instead, liability depends on

whether the hypothetical “least sophisticated

debtor” likely would be misled.

Tourgeman, 755 F.3d at 1117–18 (citations omitted). The

district court’s determination that Afewerki would not have

proceeded differently absent the error might mean that he did

not suffer actual damages and might disqualify him from

obtaining such damages, but that determination does not

mean that overstating his debt by $3,000 and overstating the

applicable interest rate were “mere technical falsehoods.” Id.

at 1119.

There are a number of circumstances in which the errors

in the complaint filed by Anaya Law Group might have

impacted the least sophisticated debtor. The Fourth Circuit

recently considered a similar case, Powell v. Palisades

Acquisition XVI, LLC, 782 F.3d 119 (4th Cir. 2014). In that

case, a judgment for a consumer’s credit card debt was

assigned to a debt collector. Id. at 121. The debt collector

filed an assignment of judgment with the court that reported

a principal amount of $11,727.99 instead of the correct

amount of $10,497.21. Id. at 122. It also stated that the
AFEWERKI V. ANAYA LAW GROUP 11

debtor had not made any payments even though she had made

$2,700 in payments. Id. Thus, the assignment over-reported

the amount the debtor owed by $3,930.78. After the debtor

challenged the assignment, the debt collector filed an

amended assignment of judgment to correct the errors. Id.

The Fourth Circuit determined that the misstatement in the

initial assignment was a material misrepresentation because

“the least sophisticated consumer could be led to decide to

pay far more than she otherwise would have paid.” Id. at

127.

We agree and conclude that Anaya Law Group’s $3,000

overstatement of the principal due in the state court

complaint,2exacerbated by the statement of an inflated

interest rate, was material. Just as in Powell, the fact that the

debt collector corrected its mistake after the debtor

challenged it does not mean that a less sophisticated debtor

would have been so lucky. Unlike the debtor in Donohue,

who was served with a complaint that was correct in stating

the amount owed, the least sophisticated debtor in Afewerki’s

position would not have had the option to avoid the lawsuit

by simply “pa[ying] the accurately stated sum to settle [the]

debt.” 592 F.3d at 1034; see also id. (“[A]pplying an

incorrect rate of interest would lead to a real injury . . . .”). 

Rather, the least sophisticated debtor in Afewerki’s position,

concerned that he had been sued, may well have simply paid

the amount demanded in the complaint and would have

overpaid by approximately $3,000.

2 Defendants contend that a complaint is not a communication with

a debtor subject to the prohibitions of the FDCPA. We explicitly held in

Donohue, however, that “a complaint served directly on a consumer to

facilitate debt-collection efforts is a communication subject to the

requirements of §[] 1692e.” 592 F.3d at 1031–32.
12 AFEWERKI V. ANAYA LAW GROUP

There are other circumstances in which the errors in the

complaint Anaya Law Group filed might have impacted the

least sophisticated debtor. One circumstance discussed bythe

district court and the parties is the possibility that the state

court case could have proceeded to default judgment. 

Contrary to Anaya Law Group’s argument, it is not certain

that LAFCU would have been required to submit copies of its

accounts or otherwise would have proved that the amount it

sought was correct prior to entry of a default judgment. The

Appellate Division of the Los Angeles CountySuperior Court

has held that a credit card company attempting to collect a

debt from a customer need not submit documentary evidence

in order to obtain a clerk’s default judgment for a definite

sum. HSBC Bank Nev., N.A. v. Aguilar, 141 Cal. Rptr. 3d

206, 211 (App. Dep’t Super. Ct. 2012). This decision could

have guided proceedings in the Los Angeles County Superior

Court had Afewerki’s case proceeded to default judgment. 

Thus, the least sophisticated debtor in Afewerki’s position

might not only have been misled as to the amount owed, but

could also have had a judgment for an inflated amount

entered against him.

For these reasons, we conclude that the incorrect

statement of the principal due in the state court complaint,

which was further inflated by the incorrect interest rate, was

material.3

3 Although “[t]he FDCPA is a strict liability statute that makes debt

collectors liable for violations that are not knowing or intentional,”

Donohue, 592 F.3d at 1030, the statute provides for a bona fide error

defense, 15 U.S.C. § 1692k(c); see also Cal. Civ. Code § 1788.30(e). 

Defendants have not attempted to invoke that defense, however.
AFEWERKI V. ANAYA LAW GROUP 13

B. Rosenthal Act Defense

Although we disagree with the district court’s conclusion

that the misstatements were not material, which was the basis

on which the district court granted summary judgment to

Defendants, “[w]e may affirm on any basis supported by the

record.” Fisher v. Kealoha, 855 F.3d 1067, 1069 (9th Cir.

2017). We conclude that Defendants are entitled to the

benefit of a separate defense under the Rosenthal Act, and on

that basis we affirm the district court’s grant of summary

judgment to Defendants as to the Rosenthal Act claim.

California Civil Code § 1788.30(d) states:

A debt collector shall have no civil liability

under this title if, within 15 days either after

discovering a violation which is able to be

cured, or after the receipt of a written notice

of such violation, the debt collector notifies

the debtor of the violation, and makes

whatever adjustments or corrections are

necessary to cure the violation with respect to

the debtor.

Defendants argue they are absolved of liability under the

Rosenthal Act because they corrected their error in

accordance with this provision and served Afewerki with

notice of the correction. Defendants pleaded this defense in

their answer and argued it in their motion for summary

judgment before the district court.

An attorney from Anaya Law Group filed a declaration in

the district court stating that the errors were inadvertent and

that she discovered the errors only while reviewing the file to
14 AFEWERKI V. ANAYA LAW GROUP

respond to Afewerki’s demand for a bill of particulars. The

notice of errata was filed on June 18, 2014, which was within

fifteen days of June 6, 2014, when the demand for a bill of

particulars was served. Accordingly, Defendants satisfied the

criteria to invoke the defense provided by § 1788.30(d).

Afewerki does not cite any evidence to contradict the

declaration by the Anaya Law Group attorney. Instead,

Afewerki argues that § 1788.30(d) was eliminated in 1999 by

California Civil Code § 1788.17, which states:

Notwithstanding any other provision of this

title, every debt collector collecting or

attempting to collect a consumer debt shall

. . . be subject to the remedies in Section

1692k of[] Title 15 of the United States Code.

The California Supreme Court has not addressed the impact

of § 1788.17 on § 1788.30(d), nor have the California Courts

of Appeal done so in a published opinion. “When a state’s

highest court has not yet ruled on an issue, we must

reasonably determine the result that the highest state court

would reach if it were deciding the case.” Gonzales v.

CarMax Auto Superstores, LLC, 840 F.3d 644, 649 (9th Cir.

2016).

Afewerki argues that legislative history documents

suggest that, in approving § 1788.17, the California

legislature intended to remove the § 1788.30(d) defense. We

must start, however, with the text of the statute, and when the

statutory “language is unambiguous, the plain meaning

controls.” Voices of the Wetlands v. State Water Res. Control

Bd., 257 P.3d 81, 93 (Cal. 2011). The text of § 1788.17 does

not support the interpretation Afewerki urges. 
AFEWERKI V. ANAYA LAW GROUP 15

Section 1788.17 makes debt collectors “subject to the

remedies in Section 1692k” but says nothing about defenses. 

Section 1788.30(d) is a defense, not a remedy. To be sure,

there are remedies included in 15 U.S.C. § 1692k that were

not available under the Rosenthal Act prior to enactment of

§ 1788.17. For example, as Afewerki notes, § 1788.17 made

class remedies available under the Rosenthal Act. Gonzales

v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1065 (9th Cir.

2011). The 1999 amendment also permitted individuals suing

under the Rosenthal Act to claim statutory damages without

regard to whether a debt collector acted knowingly. Compare

Cal. Civ. Code § 1788.30(b), with 15 U.S.C.

§ 1692k(a)(2)(A). But, again, these are remedies, not

defenses.

Furthermore, as we explained in a previous decision,

§ 1788.17 did not delete § 1788.30, but rather nullified some

of § 1788.30’s limitations on remedies to the extent that those

limitations did not apply to the remedies described in

§ 1692k. Gonzales, 660 F.3d at 1065. There is nothing in

§ 1692k that would suggest nullification of § 1788.30(d)’s

defense for cured violations. Accordingly, it appears to us

that the defense provided by § 1788.30(d) remains available

under the Rosenthal Act. “California, of course, remains free

to tell us if, in this respect, we [a]re wrong.” Evans v. Chavis,

546 U.S. 189, 200 (2006). In the absence of such direction,

however, we conclude that Defendants are not liable under

the Rosenthal Act because Defendants cured the violation

within fifteen days of discovering it. Cal. Civ. Code

§ 1788.30(d). On this basis, we affirm the district court’s
16 AFEWERKI V. ANAYA LAW GROUP

grant of summary judgment to Defendants as to the Rosenthal

Act claim.4

III. Conclusion

On the FDCPA claim, we vacate the district court’s

summary judgment in favor of Anaya Law Group. As to the

Rosenthal Act claim, we affirm the district court’s summary

judgment in favor of Defendants. We remand for further

proceedings on the FDCPA claim. Because Anaya Law

Group is the only defendant sued under the FDCPA claim,

LAFCU will no longer be part of the case on remand.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.

4 Because we affirm on this ground, we do not consider Defendants’

contention that law firms are not “debt collectors” subject to the Rosenthal

Act. Additionally, Defendants seek summary affirmance on the ground

that the excerpts ofrecord Afewerki submitted were inadequate. Although

the excerpts of record were deficient, see 9th Cir. R. 30-1.4(c)(ii),

summary affirmance is not an appropriate remedy for these omissions, see

9th Cir. R. 30-2 (detailing the actions the court may take when the

excerpts of record omit required materials).