Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cutts v. Richland Holdings, Inc.

United States Court of Appeals, Ninth Circuit

July 22, 2019

Michael Cutts, Plaintiff-Appellant,
v.
Richland Holdings, Inc., DBA Acctcorp of Southern Nevada; Clifford Molin, DBA Zeeba Sleep Center, Defendants-Appellees.

          D.C. No. 2:17-cv-01525-JCM-PAL

          Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and Benita Y. Pearson, [*] District Judge.

         ORDER CERTIFYING QUESTION TO THE NEVADA SUPREME COURT

         SUMMARY[**]

         Certification 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?

         The 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.

          ORDER

          Ronald M. Gould, Circuit Judge

         We ask 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?

         Our 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.

         I

         The 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).

         Relevant 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).

         II

         In May 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.

         Richland 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.

         Cutts 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' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.