Illinois Court of Appeals implores Legislature to change law to provide for wage-garnishment relief, finding itself constrained to exercise discretion in extreme hardship cases

 National Collegiate Student Loan Trust 2004-1 v. Ogunbibi, No. 1-17-08612018 IL App (1st) 170861 (December 24, 2018)

The legislature, in 2007, decided to take 15% of wages, regardless of the extreme hardship such a loss will impose on many persons. Because the legislature explicitly eliminated judicial discretion in the determination of the amount to deduct from wages, we must reverse the circuit court’s order and remand for further proceedings in accord with this opinion.

Recognizing the limited role of the courts, constrained to give effect to the clear intent of the legislature, we must reverse the circuit court’s order and remand for further proceedings on the application for a wage deduction order. We implore the legislature to consider its amendment to section 12-803 and to adopt a statute similar to section 5240 of the New York Civil Practice Law and Rules (N.Y. C.P.L.R. 5240 (McKinney 2016)).

2018 IL App (1st) 170861

No. 1-17-0861

December 24, 2018

FIRST DIVISION

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-1 VS. DEBORAH OGUNBIYI and EMMANUEL OGUNBIYI

Appeal from the Circuit Court of Cook County.

No. 11 M6 004634

JUSTICE WALKER delivered the judgment of the court, with opinion.

Presiding Justice Mikva and Justice Griffin concurred in the judgment and opinion.

OPINION

 Deborah Ogunbiyi (Deborah) did not repay her student loans. When she found a job

paying $573.35 per week, the note holder sought an order garnishing 15% of her pretax

income. The Cook County circuit court found that the garnishment would impose excessive

hardship on Deborah and ordered Deborah to pay $100 per month until she paid off the debt.

The note holder appeals. We find that the legislature expressly disallowed the exercise of

judicial discretion in ordering wage garnishment, even in cases of extreme hardship. We

reverse the circuit court’s order and remand for further proceedings on the application for a

wage deduction order.

BACKGROUND

In 2004 Charter One Bank loaned Deborah $8000 for her enrollment at Lincoln College.

Emmanuel Ogunbiyi (Emmanuel) cosigned the loan. In December 2011, National Collegiate

Student Loan Trust 2004-1 (Trust) filed a complaint against Deborah and Emmanuel,

alleging that Deborah and Emmanuel defaulted on the loan, and that Charter One sold its

interest in the loan to the Trust. The Trust sought to recover more than $10,000 for the note.

Deborah and Emmanuel were self-represented, but they filed no answer to the complaint. In

2012 the circuit court entered a default order against Deborah and Emmanuel, finding that

they owed $10,472.91 as of the date of the order. The court subsequently entered an agreed

judgment including a payment schedule.

In November 2016 the Trust sent to Enova International, Inc., a wage deduction notice,

informing Enova that the Trust would ask the circuit court to enter a judgment against Enova

for the garnishable wages Enova owed to Deborah. An attorney for the Trust certified that

Deborah and Emmanuel repaid only $150 of the debt, which had grown to $14,529.65. The

Trust filed a document asserting that Deborah earned $14.25 per hour working for Enova, for

a total of $1146.70 in gross earnings for every two-week pay period. After taxes, Deborah

received $1013.15 every paycheck, if she took no time off. The Trust asserted that the Code

of Civil Procedure established its right to receive $172.01 ($1146.70 x 0.15) from each

paycheck. The deduction would leave Deborah with $841.14 ($1013.15 – $172.01) each pay

period, for $21,869.64 per year ($841.14 x 26), if she took no time off.

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Deborah appeared in court and persuaded the court that the wage deduction would

impose excessive hardship on her. The trial court entered an order, dated January 31, 2017,

dismissing the wage deduction action against Enova and directing Enova to “cease all

withholdings and release” to Deborah her earnings.

The Trust filed a motion to vacate the dismissal of the wage deduction complaint. The

Trust asserted that hardship could not provide grounds for the court to dismiss the complaint.

The trial court denied the motion to vacate and ordered Deborah to pay the Trust $100 per

month until she paid off the loan. The Trust filed a notice of appeal.

 ANALYSIS

The Trust argues on appeal only that the statute mandates garnishment of $172.01 from

every one of Deborah’s paychecks, regardless of hardship. The Trust did not include in the

record on appeal a transcript of the hearing at which Deborah persuaded the court that the

15% deduction from her gross income will cause her economic hardship. On this record, the

Trust cannot contest the trial court’s factual finding that the garnishment of the maximum

amount permitted by the statute will cause Deborah undue hardship.

We review the court’s interpretation of the statute de novo. Revolution Portfolio, LLC v.

Beale, 332 Ill. App. 3d 595, 600 (2002). The Trust relies solely on the language of the

statute. The Trust cites no case that supports its assertion that the court lacks authority to take

into account the hardship court orders will impose on litigants. The Trust did not mention a

significant change in the wording of the statute.

Until 2007, section 12-803 of the Code of Civil Procedure provided that “The maximum

wages *** subject to collection under a deduction order” could not exceed 15% of the

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employee’s gross pay, and the deduction order had to leave the employee with at least 45

times the federal minimum hourly wage each week. 735 ILCS 5/12-803 (West 2006). In

2007, the General Assembly enacted Public Act 95-661 (eff. Jan. 1, 2008), which amended

several statutes. The Act eliminated from section 12-803 the word “maximum,” so that “[t]he

wages *** subject to collection under a deduction order” could not exceed either limit

previously imposed. Id.; 735 ILCS 5/12-803 (West 2016). The governor issued an

amendatory veto, specifically asking the legislature to put the word “maximum” back into

section 12-803.

On October 10, 2007, the Illinois Senate voted to override the amendatory veto. 95th Ill.

Gen. Assem., Senate Proceedings, Oct. 10, 2007, at 30-31. On October 11, the Illinois House

considered the same veto. The transcript of House debates shows the following discussion:

“[Representative] Feigenholtz: *** In this legislation you have… you removed

the word ‘maximum’ in the underlying Bill in the language. Is that correct?

[Representative] Mathias: That’s correct.

Feigenholtz: So, right now, judges have discretion when deciding how much

wages are to be garnished. Is that correct?

Mathias: *** [O]ne (1) judge in particular in Cook County *** interpreted that

that he could, in effect, not follow the percentage that’s listed in the law and lower

that percentage and basically, that’s what we’re trying to correct. I believe it was the

original intent of the Bill to make it a set amount ***.

* * *

4

Feigenholtz: So, in current statute and also the intent of this Bill is to continue

under those circumstances that are unique to allow certain discretions for the

judiciary. Is that true? ***

Mathias: The exemption is not discretionary. ***

Feigenholtz: So, is what you’re saying that judges will still have the flexibility in

hardship cases to order a smaller percentage of garnishment?

Mathias: No that isn’t correct ***.

Feigenholtz: But if the life circumstances of the *** person whose wages are to

be garnished change, they have an opportunity to go back to the judge?

Mathias: No, they do not.

Feigenholtz: So… so, for instance, if a father of *** seven (7) children who ***

has to provide a lot of support for a family, they’re not allowed to go back to court?

*** I’m a little concerned that there are going to be some, a few situations, a few

hardship cases, where a smaller percentage of garnishment might be more livable.

Mathias: Again, if someone’s wages go below the formula in the Bill, then they

would not have any of their wages *** deducted. These, again, if they do not meet

that criteria, then the law is followed.

Feigenholtz: And it doesn’t have anything to do with how big their family is, the

federal poverty level rate, the only mathematical calculation is forty-five (45) times

[federal] minimum wage?

Mathias: Yeah. ***

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* * *

[Representative] Lang: *** [T]o not override this Veto is to say that people don’t

have to pay their bills. To not override this Veto means that you’re saying to

businesses, well, maybe you’ll collect the money people owe you, maybe you won’t.

To not override the Veto says that we’re going to allow judges their own discretion

as to who’s going to pay their bills and who is not. *** The wage deduction laws

allow creditors *** a deduction of a small amount from a weekly wage to recover the

money owed. The size of the person’s family is *** not important because if you buy

a TV and you don’t pay it back whether you’ve got twelve (12) children or no

children, you should pay back the money for the TV you bought. If we don’t do this,

we’re going to continue to have judges who decide on their own who pays what,

under what circumstances they pay it. ***

* * *

[Representative] Turner: So, if you were to summarize what we’re doing with

this Bill, it pretty much is dealing with the issue of judicial discretion. Am I correct?

Mathias: Yes. ***

* * *

[Representative] Davis, M.: *** I think that if a person owes a debt he should be

responsible for paying it, but I do not believe there should be no consideration for his

other responsibilities, a new family, college students, a baby that’s ill. *** [T]here

are many considerations and I really like the law currently that allows a judge to

make a determination of should it be a 15 percent deduction, a zero, a 1 percent, a 2

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percent. I don’t like the idea of someone settling how much it should be before they

know any of the circumstances. *** This is a Bill to help someone else, but it is not

to help constituents or working people in the State of Illinois.” 95th Ill. Gen. Assem.,

House Proceedings, Oct. 11, 2007, at 100-14.

Ninety-two representatives voted to override the veto. Only nine voted to sustain it. Id. at

115.

We have found no Illinois case deciding whether section 12-803, prior to 2007, permitted

the circuit court to exercise discretion to order garnishment of an amount less than the

maximum set by section 12-803. Courts in other jurisdictions interpreting similar statutes

held that the garnishment statutes set only an upper limit on garnishable wages, and courts

had discretion to order garnishment of lesser amounts while still requiring repayment of the

entire debt. See, e.g., Fishler v. Fishler, 63 N.Y.S.3d 445, 447-48 (N.Y. App. Div. 2017);

Gerber v. Holcomb, No. W2005-02794-COA-R3-CV, 2006 WL 3019731, at *2-3 (Tenn. Ct.

App. Oct. 25, 2006); Thompson v. Dehne, 2009-NMCA-120, ¶¶ 19-20, 147 N.M. 283, 220

P.3d 1132; In re Chambers, 5 S.W.3d 341, 343 (Tex. Ct. App. 1999). By removing the word

“maximum” from the statute, the legislature showed its intent to deny the courts the

discretion to enter a wage deduction order in an amount less than the amount set by section

12-803.

The circuit court here did not enter a wage deduction order in a lesser amount. The court

entered an order (1) denying the motion for a wage deduction order and (2) dismissing Enova

from the case, with the admonishment that Enova must continue paying Deborah her aftertax wages. The court then ordered Deborah to pay the Trust $100 per month to pay off her

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student loans. Courts in other jurisdictions have entered similar orders denying wage

garnishments while directing the judgment debtor to adhere to a payment schedule set by the

court. See American Acceptance Co. v. Willis, 984 N.E.2d 653, 655 (Ind. Ct. App. 2013);

Warner Bros. Records Inc. v. Patnode, No. 2:06-CV-160, 2010 WL 431908, *1 (W.D. Mich.

Feb 5., 2010); M.M. v. T.M., 17 N.Y.S.3d 588, 599-600 (N.Y. Sup. Ct. 2015).

The M.M. court found that it had “broad discretion to regulate the enforcement of a

money judgment to prevent unreasonable annoyance, expense, embarrassment, disadvantage,

or other prejudice to any person or the courts.” M.M., 17 N.Y.S.3d at 600. A New York

statute provides, “The court may at any time, on its own initiative or the motion of any

interested person, and upon such notice as it may require, make an order denying, limiting,

conditioning, regulating, extending or modifying the use of any enforcement procedure.”

N.Y. C.P.L.R. 5240 (McKinney 2016). We find no similar statute in Illinois. Section 12­

808(e) of the Code of Civil Procedure apparently disallows the exercise of judicial discretion,

as it states that, upon proof of the debt and the lack of any proof of the extremely limited

grounds for denying wage deduction, “an order shall be entered compelling the employer to

deduct from wages of the judgment debtor *** an amount which is” the amount set by

section 12-803. 735 ILCS 5/12-808(e) (West 2016). Public Act 95-661 also amended section

12-808(e), which, prior to 2007, said the deduction order must set an “amount not to exceed”

the amount set by section 12-803. Compare 735 ILCS 5/12-808(e) (West 2006), with 735

ILCS 5/12-808(e) (West 2016).

We hold that the wage deduction provisions of the Code of Civil Procedure leave the

circuit court no discretion to deny a request for a wage deduction order on grounds of

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extreme hardship. We commend Judge Panozzo’s consideration of the equities that should

determine the amounts taken from a debtor and the time allotted for repayment of a debt.

Recognizing the limited role of the courts, constrained to give effect to the clear intent of

the legislature, we must reverse the circuit court’s order and remand for further proceedings

on the application for a wage deduction order. 

We implore the legislature to consider its amendment to section 12-803 and to adopt 

statute similar to section 5240 of the New York Civil Practice Law and Rules 

(N.Y. C.P.L.R. 5240 (McKinney 2016)).

CONCLUSION

The legislature, in 2007, decided to take 15% of wages, regardless of the extreme

hardship such a loss will impose on many persons. Because the legislature explicitly

eliminated judicial discretion in the determination of the amount to deduct from wages, we

must reverse the circuit court’s order and remand for further proceedings in accord with this

opinion.

Reversed and remanded.

9

Okay for debt collector to execute on debtor's FDCPA claim against it as a debtor asset, then dismiss it? - 9th Circuit says No (Arellano v Clark Cty. Collection Serv.)

COLLECTOR'S "BOLD GAMBIT" TO THWART FDCPA CLAIM 

THWARTED ON APPEAL 

Debt collectors cannot evade the restrictions of the [FDCPA] by forcing a debtor’s claims to be auctioned, acquiring the claims, and dismissing them. To allow otherwise would thwart enforcement of the FDCPA and undermine its purpose. Arellano v Clark County Collection Service, LLC, Borg Law Group, LLC, No.16-15467 (9th Cir. Nov. 17, 2017) (federal law preempts a private party’s use of state execution procedures to acquire and destroy a debtor’s FDCPA claims against it). 

ARELLANO V. CLARK CTY. COLLECTION SERV.

OPINION

THOMAS, Chief Judge:

Can a debt collector avoid liability under the Federal Fair Debt Collection Practices Act by obtaining the debtor’s lawsuit through a writ of execution? We conclude that such a procedure frustrates the Act’s purpose and is thus preempted.

I

Patricia Arellano was overdue on a small amount of medical debt—$371.89 to be precise. A private collection agency, Clark County Collection Services, sent her a letter about it. Included with the letter was a summons and state justice court complaint seeking collection of the debt. The complaint itself stated that Arellano could “[d]ispute the validity of this debt” within 30 days, but that failing to do so would result in a presumption of validity. However, separately, in small print, the summons indicated that to defend the lawsuit, Arellano must file a formal written response with the court within 20 days.

Arellano did not file a response, and the collection agency obtained a default judgment against her in justice court for $793.39. The debt had doubled in the intervening month because it now included costs, pre-judgment interest, and attorney fees.

Subsequently, Arellano filed suit against the collection agency and its law firm under the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. § 1692 et seq. She claimed that they had engaged in misleading practices under 15 U.S.C. § 1692e(1) by stating that the debtor could dispute the debt within 30 days of receipt, when the actual summons required the filing of an answer in court within 20 days. She further alleged that Clark County Collection Services’ name impermissibly implied affiliation with the Clark County government, violating 15 U.S.C. § 1692e(1).

The collection agency countered with a bold gambit.

Armed with its default judgment, it requested the justice court to issue a writ of execution against Arellano in the amount of $826.72, an increased amount reflecting additional costs. Like most states, Nevada allows courts to authorize a sheriff to levy on the property of a judgment debtor to satisfy a judgment. Butwinick v. Hepner, 291 P.3d 119, 121 (Nev. 2012). With some exceptions not relevant here, the property subject to a writ of execution in Nevada includes a “right to bring an action to recover a debt, money, or thing.” Gallegos v. Malco Enters. of Nev., 255 P.3d 1287, 1289 (Nev. 2011) (quoting Black’s Law Dictionary 1617, 275 (9th ed. 2009)). Thus, the collection agency’s strategy in seeking the writ was not to obtain personal property to satisfy the judgment, but to acquire the rights to Arelleno’s FDCPA lawsuit against the agency so it could have it dismissed.

The justice court granted the writ, which directed the Clark County Sheriff “to satisfy this judgment with interest and costs as provided by law, out of the personal property of the judgment debtor.” The writ described the targeted property as all “claims for relief, causes of action, things in action, and choses in action in any lawsuit pending in Nevada including, the rights of Patricia Arellano, in the civil action” pending against the collection agency and its lawyers.

Thereafter, pursuant to the writ of execution, the sheriff sold Arellano’s lawsuit in an auction sale on the Clark County courthouse steps. Clark County Collection Services bought the claims against itself for $250.

After buying Arellano’s lawsuit, the collection agency moved in federal district court to dismiss the lawsuit, arguing that Arellano “no longer possesse[d] any rights of action in this case, and no longer possesse[d] any standing to sue.”

The district court dismissed Arellano’s cause of action.

II

State law can be preempted in three circumstances pursuant to the Supremacy Clause, U.S. Const., Art. VI, cl. 2. English v. Gen. Elec. Co., 496 U.S. 723, 78 (1990). Only the third circumstance is relevant here: “state law is pre-empted to the extent that it actually conflicts with federal law.” Id. At 79. This conflict occurs when “the operation of state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” In re Cybernetic Servs., Inc., 252 F.3d 1039, 1045–46 (9th Cir. 2001) (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479 (1974)), or when it “interferes with the methods by which the federal statute was designed to reach [its] goal,” Int’l Paper Co. v. Ouellette, 497 U.S. 481, 494 (1987). In other words, state law is preempted when “under the circumstances of the particular case,” it stands as an obstacle to Congressional purpose “—whether that ‘obstacle’ goes by the name of ‘conflicting; contrary to; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; interference,’ or the like.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000) (alterations omitted) (quoting Hinesv. Davidowitz, 312 U.S. 52, 67 (1941)).

Federalism requires that we assume federal law was not intended to supersede the states’ historic police powers “unless that was the clear and manifest purpose of Congress.” CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2188 (2014).

Although we read even express preemption provisions narrowly, a state cannot avoid compliance with a federal regime “merely by relying upon a connection to an area of traditional state  regulation.” Wos v. E.M.A., 568 U.S. 627, 1400 (2013).1

A

“[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.” Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). “The FDCPA was enacted as a broad remedial statute designed 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.’” Gonzales v. Arrow Fin. Servs., LLC,660 F.3d 1055, 1060 (9th Cir. 2011) (quoting 15 U.S.C. § 1692(e)). The Act’s purpose is “to protect vulnerable and unsophisticated debtors from abuse, harassment, and deceptive debt collection practices.” Guerrero v. RJM Acquisitions, LLC, 499 F.3d 926, 938 (9th Cir. 2007) (citing S. Rep. 95–389, at 2, 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1696, 1699). And the “FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the credulous.” Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1171 (9^th Cir. 2006) (quoting Clomon v. Jackson, 988 F.2d 1314, 1318–19 (2d Cir. 1993)).

In order to achieve these goals, the Act regulates communication between debt collectors and debtors, 15 U.S.C. §§ 1692b, c, g, and creates a federal cause of action for debtors under 15 U.S.C. § 1692k. Debt collectors may be subject to civil liability for engaging in harassment or abuse, 15 U.S.C. § 1692d, making false or misleading representations of various sorts, 15 U.S.C. §§ 1692e, j, or engaging in unfair practices while attempting to collect debt, 15 U.S.C. § 1692f.

The FDCPA also includes an express preemption and savings clause:

This subchapter does not annul, alter, or

affect, or exempt any person subject to the

provisions of this subchapter from complying

with the laws of any State with respect to debt

collection practices, except to the extent that

those laws are inconsistent with any provision

of this subchapter, and then only to the extent

of the inconsistency. For purposes of this

section, a State law is not inconsistent with

this subchapter if the protection such law

affords any consumer is greater than the

protection provided by this subchapter.

15 U.S.C. § 1692n.

To enforce the FDCPA, Congress chose “a private attorney general approach.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citing Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995)); see also Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991) (noting that it was “Congress’s intent that the Act should be enforced by debtors acting as private attorneys general.”). “Prevailing plaintiffs . . . are entitled to actual damages, statutory damages, and attorney’s fees and costs.” Gonzales, 660 F.3d at 1061 (citing 15 U.S.C. § 1692k(a)).

B

The collection agency argues that because the FDCPA does not speak directly to the execution of claims, there can be no federal preemption. This argument denies the existence of conflict preemption. “And conflict preemption . . . turns on the identification of ‘actual conflict,’ and not on an express statement of pre-emptive intent.” Geier, 529 U.S. at 884. Indeed, “the Court has never before required a specific, formal agency statement identifying conflict in order to conclude that such a conflict in fact exists.” Id.

Where the Act “itself does not speak directly to the issue, the Court must be guided by the goals and policies of the Act in determining whether it in fact pre-empts an action based on the law of an affected State.” Int’l Paper Co., 479 U.S. at 493. Just as in International Paper Co., the federal law in question directly regulates the substantive law at issue (debt collection practices) and specifically empowers debtors to bring suit against debt collectors. 15 U.S.C. § 1692i; see Int’l Paper Co., 479 U.S. at 495 (holding that Vermont nuisance law was preempted to the extent that it conflicted with water pollution standards set forth in the Clean Water Act). And while the Act itself need not “speak directly to the issue,” Int’l Paper Co., 479 U.S. at 493, the FDCPA does expressly preempt state laws “to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency,” 15 U.S.C. § 1692n.

In addition to evading liability and preventing Arellano from pursuing her potential federal claims, the collection agency has literally used the execution mechanism to collect

debt from Arellano, and argues that she “has received the benefit of [the $250] reduction in her judgment.” But a debt collector cannot be allowed to use state law strategically to execute on a debtor’s FDCPA claims against it under the guise of legitimate debt collection. Though the FDCPA does preserve debt collectors’ rights to collect what they are owed, the Act does not “authorize the bringing of legal actions by debt collectors.” See 15 U.S.C. § 1692i(b). Debt collectors cannot evade the restrictions of the Act by forcing a debtor’s claims to be auctioned, acquiring the claims, and dismissing them. To allow otherwise would thwart enforcement of

the FDCPA and undermine its purpose. See 15 U.S.C. §§ 1692k, l.

C

Resolving this case does not require any additional or supplemental rule beyond the text of the Act. A state remedy of execution cannot be used for the purpose of avoiding the impact of federal law. Therefore, we reverse the district court, and remand for proceedings consistent with this opinion, holding that federal law preempts a private party’s use of state execution procedures to acquire and destroy a debtor’s FDCPA claims against it. We need not, and do not, reach any other issue urged by the parties.

REVERSED AND REMANDED.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA ARELLANO,
Plaintiff-Appellant,
v.
CLARK COUNTY COLLECTION
SERVICE, LLC; BORG LAW GROUP,
LLC,
Defendants-Appellees.
No. 16-15467
D.C. No.
2:15-cv-01424-
JAD-NJK
OPINION
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted June 5, 2017
Pasadena, California
Filed November 17, 2017
Before: Sidney R. Thomas, Chief Judge, Stephen
Reinhardt, Circuit Judge, and Edward R. Korman,*
District Judge.
Opinion by Chief Judge Thomas
* The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
ARELLANO V. CLARK CTY. 2 COLLECTION SERV.
SUMMARY**
Fair Debt Collection Practices Act
The panel reversed the district court’s dismissal of an
action brought against a debt collector under the Fair Debt
Collection Practices Act.
The panel held that a debt collector cannot avoid liability
under the FDCPA by obtaining the debtor’s lawsuit through
a state court writ of execution. The panel concluded that such
a procedure frustrates the Act’s purpose and is thus conflictpreempted.
The panel remanded the case for further
proceedings.
COUNSEL
Deepak Gupta (argued), Richard J. Rubin, and Neil K.
Sawhney, Gupta Wessler PLLC, Washington, D.C.; Keren E.
Gesund, Gesund & Pailet LLC, Las Vegas, Nevada; for
Plaintiff-Appellant.
Patrick J. Reilly (argued), Holland & Hart LLP, Las Vegas,
Nevada, for Defendants-Appellees.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARELLANO V. CLARK CTY. COLLECTION SERV. 3