United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
DISMISS COUNT II OF PLAINTIFF'S COMPLAINT
N. Parrish United States District Court Judge
Cristian Naranjo filed suit against the Cherrington Firm, LLC
and Lacey Cherrington (collectively,
“Cherrington”). Cherrington is engaged in the
business of debt collection. Cherrington allegedly attempted
to and did collect from Naranjo amounts in excess of what
Naranjo actually owed. Naranjo claims that Cherrington's
debt-collection practices violated (1) the Fair Debt
Collection Practices Act (“FDCPA”), and (2) the
Utah Consumer Sales Protection Act (“UCSPA”).
Cherrington has moved to dismiss Naranjo's UCSPA claim on
the grounds that debt collection is governed by a more
specific statute, the FDCPA. The Court finds this argument
meritless and therefore denies the motion.
contends that Naranjo's UCSPA claim is barred because a
more specific federal law, the FDCPA, governs debt
collection. Cherrington states, “Utah law is clear that
a claim under the UCSPA is barred when the conduct at issue
is ‘governed by other, more specific law.'”
But Cherrington misunderstands Utah law.
Utah law, courts must construe legislative enactments to
“give effect to the legislature's underlying
intent.” Millett v. Clark Clinic Corp., 609
P.2d 934, 936 (Utah 1980). The “primary goal when
construing statutes is to evince ‘the true intent and
purpose of the Legislature [as expressed through] the plain
language of the Act.'” Hall v. Utah State Dept.
of Corrections, 24 P.3d 958, 963 (Utah 2001) (quoting
Jensen v. Intermountain Health Care, Inc., 679 P.2d
903, 906 (Utah 1984)). As such, when two statutory provisions
conflict, the provision that is more specific in its
application governs over the more general provision.
Id.; Pugh v. Draper City, 114 P.3d 546, 549
Carlie v. Morgan, 922 P.2d 1, 6 (Utah 1996), the
Utah Supreme Court held that the UCSPA did not provide a
remedy because the Utah Fit Premises Act spoke directly to
the alleged violations whereas the UCSPA did not. Tenants
claimed that the owner of their apartment building and the
building manager violated the UCSPA because the apartment
building was closed due to health code violations.
Id. at 2. Although the UCSPA “focuses
generally on deceptive and unconscionable sales practices,
” the Fit Premises Act “provides specific
remedies to residential tenants whose rental units become
uninhabitable due to violations of health and safety
standards.” Id. at 6. Thus, the court held
that plaintiff could not rely on the UCSPA because
“[s]pecific statutes control over more general
ones.” Id. (citing State v. Lowder,
889 P.2d 412, 414 (Utah 1994)).
later case, Berneike v. CitiMortgage, Inc., 708 F.3d
1141, 1150 (10th Cir. 2013), the Tenth Circuit applied
Carlie to hold that the UCSPA did not provide a
remedy because other state law (Utah's Mortgage Lending
and Servicing Act) more specifically regulated the subject
matter of the case, mortgage loan servicing. The plaintiff
had also brought a claim under the Real Estate Settlement
Procedures Act (“RESPA”), a federal consumer
protection statute that regulated mortgage servicing.
Id. at 1143. But the court did not rely on the
existence of more specific federal law to hold that the UCSPA
did not provide a remedy. See Id. at 1150. The UCSPA
analysis focused solely on state law. Id.
Thomas v. Wells Fargo Bank, N.A., No. 2:13-cv-686,
2014 WL 657394, at *3 (D. Utah Feb. 20, 2014), the court held
that the UCSPA did not provide a remedy because the wrongful
conduct alleged by the plaintiff was governed by a more
specific federal statute, the Fair Credit Reporting
Act. The court first looked to Utah Code §
13-11-22(1)(a), which provides that the UCSPA “does not
apply to . . . an act or practice required or specifically
permitted by or under federal law, or by or under state
law.” The court then cited Carlie and
Breneike for the proposition that a plaintiff cannot
bring claims under the UCSPA when those claims “are
governed by any other state or federal law.”
Thomas, 2014 WL 657394, at *3 (emphasis added).
holding in Thomas is wrong for two reasons.
First, neither Berneike nor Carlie
stands for the proposition that UCSPA does not provide a
remedy when the alleged acts are governed by more specific
federal law. Both cases looked to more specific
state law to conclude that the UCSPA did not provide
a remedy. In fact, in Breneike, the court ignored
the fact that there was more specific federal law, RESPA,
which regulated the alleged wrongful conduct.
Second, § 13-11-22(1)(a) speaks only to
situations where state or federal law “require[s] or
specifically permit[s]” the alleged wrongful conduct.
It does not speak to a situation where both federal and state
laws prohibit certain conduct. Moreover, the
holdings in Carlie and Breneike were not
based on § 13-11-22(1)(a), contrary to what the
Thomas court seems to suggest; neither case mentions
most recent case cited by Cherrington, West v. C.J.
Pressman Co., No. 2:16-cv-75, 2017 WL 4621611, at *7 (D.
Utah Oct. 13, 2017), the court held that plaintiffs failed to
allege a UCSPA claim because the alleged wrongful conduct
fell squarely within the Federal Wiretap Act and the
Utah Interception of Communication Act (collectively defined
in the case as the “Wiretap Acts”). The court was
not clear as to whether it would have reached the same
conclusion if it relied solely on the Federal Wiretap Act:
This conduct falls squarely within the Wiretap Acts. Thus,
because the more specific Wiretap Acts control over the more
general UCSPA, [plaintiff's] claim for violation of the
UCSPA is DISMISSED.
Id. (footnotes omitted). Thus, West
provides little guidance to the case at hand in which
Cherrington relies solely on federal law to argue that a
UCSPA claim is barred.
Naranjo's UCSPA claim is not barred by the FDCPA. Both
Carlie and Berneike spoke to situations
where UCSPA claims were improper due to more specific state
law. The rule enunciated in Carlie seeks to maintain
consistency between state statutes. See Lowder, 889
P.2d at 414. This gives effect to the Utah legislature's
underlying intent. Millett, 609 P.2d at 936. For
instance, if the Utah legislature has spoken specifically to
a topic, its decision on that topic should not be undermined
by a general legislative enactment, such as the UCSPA. But
Carlie does not stand for the proposition that UCSPA
claims are barred when there is more specific federal law
that is consistent with ...