April Brannan v. United Student Aid Funds, Inc.

concurring and dissenting:

I concur in the portion of the opinion that holds that United Student Aid Funds is not exempt from liability under the “Government Actor” exemption to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a(6)(C). I respectfully dissent, however, from the portion that holds that the Higher Education Act, 20 U.S.C. § 1071-99 , preempts the Oregon Unfair Debt Collection Practices Act.

United Student Aid Funds concedes that it is a “debt collector” under the FDCPA. We *1267 hold that it is not a “Government actor” so that it is not exempt from compliance with the FDCPA requirements. The majority agrees that the HEA does not trump or preempt the FDCPA, since nothing in either statute suggests preemption of the other. The Oregon UDCPA provides that compliance with the FDCPA is compliance with Oregon’s UDCPA. Or.Rev.Stat. § 646.648. All that can be at issue, then, in this case is whether the remedies available to the borrower, provided in the Oregon Act, applicable if the debt collector has violated the FDCPA, are preempted by the HEA. There appears to be no conflict between the HEA and the Oregon Act in this aspect of the UDCPA unless we were to hold that…

94 F.3d 1260 65 USLW 2178 , 112 Ed. Law Rep. 26 , 96 Cal. Daily Op. Serv. 6478 April BRANNAN, Plaintiff-Appellant, v. UNITED STUDENT AID FUNDS, INC., Defendant-Appellee. No. 93-35555. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1994. Decided Aug. 30, 1996. Doug S. Gard, Center for NonProfit Legal Services, Inc., Medford, Oregon, for plaintiff-appellant. K. Patrick Neill and Andrew G. Lewis, Hershner, Hunter, Moulton, Andrews & Neill, Eugene, Oregon, for defendant-appellee. Appeal from the United States District Court for the District of Oregon, John P. Cooney, Magistrate Judge, Presiding; No. CV-92-06229-JPC. Before: FLETCHER, D.W. NELSON, and RYMER, Circuit Judges. D.W. NELSON, Circuit Judge: 1 Appellant April Brannan seeks damages from appellee United Student Aid Funds, Inc. ("USA Funds"), claiming abusive collection practices in violation of the federal Fair Debt Collection Practices Act of 1977 ("FDCPA"), Pub.L. No. 95-109, 91 Stat. 874, codified as amended at 15 U.S.C. § 1692 et seq., and in violation of the Oregon Unfair Debt Collection Practices Act ("Oregon UDCPA"), Or.Rev.Stat. §§ 646.639, 646.641. The district court…

Appellant April Brannan seeks damages from appellee United Student Aid Funds, Inc. (“USA Funds”), claiming abusive collection practices in violation of the federal Fair Debt Collection Practices Act of 1977 (“FDCPA”), Pub.L. No. 95-109, 91 Stat. 874, codified as amended at 15 U.S.C. § 1692 et seq., and in violation of the Oregon Unfair Debt Collection Practices Act (“Oregon UDCPA”), Or.Rev.Stat. §§ 646.639, 646.641. The district court granted summary judgment in favor of USA Funds on all claims, holding that USA Funds is exempt from liability under the “government actor” exemption to the FDCPA, 15 U.S.C. § 1692a(6)(C), and that the Higher Education Act (“HEA”), 20 U.S.C. § 1071-99 , preempts the Oregon UDCPA Brannan appeals both these rulings. On appeal, USA Funds raises the affirmative defense of FDCPA preemption of the Oregon UDCPA for the first time. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part and reverse and remand in part.

*1262 FACTUAL AND PROCEDURAL BACKGROUND

On June 15, 1988, appellant April Brannan executed a promissory note with the Bank of Horton for a loan of $2,625 under the former Guaranteed Student Loan (“GSL”) program 1 established by the…