Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges,
and Benita Y. Pearson, [*] District Judge.
CERTIFYING QUESTION TO THE NEVADA SUPREME COURT
of Question to State Supreme Court The panel certified the
following question to the Nevada Supreme Court:
Is a Fair Debt Collection Practices Act claim a compulsory
counterclaim in an action to collect the underlying debt
under Rule 13 of the Nevada Rules of Civil Procedure?
panel addressed other issues in a concurrently filed
memorandum disposition. It stayed the appeal of the district
court's dismissal of FDCPA claims pending the Nevada
Supreme Court's resolution of the certified question.
M. Gould, Circuit Judge
the Nevada Supreme Court to resolve an open question of state
law. We need guidance in determining whether claims against a
debt collector under the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692 et seq., are
compulsory counterclaims under Rule 13 of the Nevada Rules of
Civil Procedure in an action to collect that debt.
Accordingly, we certify the following question:
Is an FDCPA claim a compulsory counterclaim in an action to
collect the underlying debt under Rule 13 of the Nevada Rules
of Civil Procedure?
phrasing of the question should not restrict the Court's
consideration of the issues involved. The Court may rephrase
the question as it sees fit in order to address the
contentions of the parties. If the Court agrees to decide
this question, we agree to accept its decision. We recognize
that the Court has a substantial caseload, and we submit this
question only because of its significance for actions brought
in Nevada state court to recover debts.
FDCPA regulates the actions debt collectors can take when
attempting to collect consumer debt. See Henson v.
Santander Consumer USA Inc., 137 S.Ct. 1718, 1720
(2017). Congress intended the Act's requirements "to
eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not
competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection
abuses." 15 U.S.C. § 1692(e).
to the claims brought in this case, the FDCPA prohibits a
debt collector from using "any false, deceptive, or
misleading representation or means in connection with the
collection of any debt," including "[t]he false
representation of the character, amount, or legal status of
any debt" and "[t]he threat to take any action that
cannot legally be taken or that is not intended to be
taken." Id. §§ 1692e(2), (5). It also
prohibits a debt collector from using "unfair or
unconscionable means to collect or attempt to collect any
debt," including "[t]he collection of any amount
(including any interest, fee, charge, or expense incidental
to the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by
law." Id. § 1692f(1). Finally, it requires
a debt collector, within five days of its initial
communication with a debtor, to send a letter to the debtor
containing the amount of the debt, the identity of the
creditor, and information about certain rights the debtor
has. See id. § 1692g(a).
2014, Michael Cutts signed an agreement with Dr. Clifford
Molin for the provision of medical services. Cutts agreed
"to be financially responsible for all charges incurred
regardless of insurance coverage." Further, Cutts agreed
that "[i]n the event my account is referred to a
collection service due to lack of payment on my part, I agree
to pay all collection/legal fees that may be added to my
account." By March 2016, Cutts was delinquent on his
payments to Dr. Molin, and had an account balance of $274.53.
After unsuccessfully attempting to collect the debt from
Cutts, Dr. Molin assigned the debt to Richland Holdings,
Inc., a debt collection agency, pursuant to an agreement
authorizing Richland to file suit against Cutts on Dr.
Molin's behalf. Richland added a collection fee of
$137.27 to the debt balance.
filed suit against Cutts in Nevada state court on October 3,
2016. Richland's complaint alleged (1) breach of contract
and (2) "monies due and owing." Richland alleged
damages in the amount of $411.80, which was the sum of the
original $274.53 debt balance plus the $137.27 collection
fee, and also requested attorneys' fees and costs.
failed to answer or mount a defense to the complaint, and on
December 8, 2016, the Nevada state court entered a default
judgment against him for $1, 273.30, reflecting the requested
relief plus $111.50 in costs and $750 in attorneys' ...