UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KEVIN PAUL FERREE,

Plaintiff-Appellant,

v.

TERESA W. MARIANOS,

Defendant-Appellee,

and

SHAPIRO & MARIANOS, a partnership,

Defendant.

No. 97-6061

(D.C. No. CIV-96-1120-T)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN,** District Judge.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Kevin Paul Ferree appeals the district court's order dismissing his claims under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692o against defendant Teresa W. Marianos, an attorney representing Temple-Inland Mortgage Company, plaintiff's creditor.1 We have reviewed de novo the district court's dismissal for failure to state a claim, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff. See Grossman v. Novell, Inc., 120 F.3d 1112, 1118 (10th Cir. 1997). We affirm.

A bankruptcy court entered orders discharging plaintiff's debts and allowing foreclosure of the real property which secured plaintiff's debt to Temple-Inland. See Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) (bankruptcy discharge extinguishes only in personam claim while leaving in rem claim intact). Marianos then filed a state court action on behalf of Temple-Inland, seeking to foreclose the mortgage on the property.

In this FDCPA action, plaintiff alleges that, in initiating the foreclosure proceedings, Marianos violated three provisions of the Act: (1) she misrepresented the amount and legal status of plaintiff's debt in the prayer of the foreclosure petition (an alleged violation of § 1692e(2)(A));2 (2) she threatened to obtain an in personam judgment in the prayer of the foreclosure petition (an alleged violation of § 1692e(5));3 and (3) she obscured the content of the statutorily-required validation notice by providing it as an attachment to the pleadings in the foreclosure action (an alleged violation of § 1692g). 4 The district court dismissed the claim against Marianos for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). 5

The district court clearly set out the law and facts of the case in its order dated January 21, 1997. For claims under the FDCPA, other circuit courts of appeal have applied an objective standard, "measured by how the 'least sophisticated consumer' would interpret the notice received from the debt collector." Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). "[T]he test is how the least sophisticated consumer--one not having the astuteness of a "Philadelphia lawyer" or even the sophistication of the average, everyday, common consumer--understands the notice he or she receives." Id. See also Terran v. Kaplan, 109 F.3d 1428, 1431 (9th Cir. 1997) ("[W]hether the initial communication violates the FDCPA depends on whether it is likely to deceive or mislead a hypothetical least sophisticated debtor.") (quotations omitted). The hypothetical consumer, however, "can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care." Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).

Plaintiff's allegations do not add up to a claim under any of the cited FDCPA provisions. The foreclosure petition specifically described the result of the bankruptcy proceedings. The foreclosure pleadings did not misrepresent the amount or status of plaintiff's debt or, in spite of the discharge in bankruptcy, threaten to obtain an in personam judgment. The district court correctly dismissed the § 1692e claims.

As to the claim under § 1692g, a debt collector may violate the FDCPA by providing a validation notice that "contains language that 'overshadows or contradicts' other language informing a consumer of her rights." Russell, 74 F.3d at 34 (citing Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991)). Here, however, it is plain that the validation notice provided the information required by statute. Moreover, plaintiff concedes that the thirty-day period to dispute the debt, explained in the notice, and the twenty-day period to respond to the summons and petition, set out in the summons, "are not mutually exclusive." Appellant's Opening Br. at 16. 6

The information contained in the notice was not obscured or contradicted simply because it was provided as an attachment to the foreclosure pleadings. Even the least sophisticated consumer receiving two communications in the same envelope, the first concerning a pending mortgage foreclosure action, "would sufficiently examine the entire contents of the envelope, and uncover the enclosed validation notice." Cavallaro v. Law Office of Shapiro & Kreisman, 933 F. Supp. 1148, 1153 (E.D.N.Y. 1996).

We AFFIRM the judgment of the district court, based on the reasoning above and more thoroughly described in the district court's order. Defendant's motion to dismiss is DENIED.

Entered for the Court

John C. Porfilio

Circuit Judge