Michelle Echlin v. PearceHealth, d/b/a PeaceHealth Southwest Medical Center

We must decide whether, under the Fair Debt Collection

Practices Act, a company that sent letters demanding that

hospital patients pay their overdue medical bills meaningfully

participated in the hospital’s efforts to collect debts.

I

Michelle Echlin is a former patient of PeaceHealth

Southwest Medical Center (PeaceHealth) in Vancouver,

4 ECHLIN V PEACEHEALTH

Washington. Echlin received treatment at PeaceHealth on

two different occasions but never paid the nearly $1,000 in

medical bills she incurred as a result. After Echlin ignored

multiple requests for payment, PeaceHealth referred her

delinquent accounts to Computer Credit, Inc. (CCI), a

purported collection agency, for further action.

A

For a number of years, CCI and PeaceHealth operated

together under a “Subscriber Agreement” signed in 2004.

Under the agreement, PeaceHealth would refer delinquent

patient accounts to CCI and, for a fixed fee, CCI would

perform various services related to the debt-collection

process—primarily mailing letters demanding that the

patients pay their bills. During the time that an account had

been referred to CCI, PeaceHealth would suspend its in-house

collection efforts.1

When it referred an account to CCI, PeaceHealth would

give CCI the debtor’s name and address, the name of any

guarantor, the date of the service in question, and the amount

owed on the account. CCI would then independently screen

each account for potential collection problems (such as

staleness of the claim). CCI’s screening process was mostly

automated, though a CCI employee would personally review

at least some of the accounts for red flags. If an account

passed CCI’s screening process, CCI would then send the

1 CCI maintained similar arrangements with many other companies,

and held hundreds of thousands of active debtor accounts at a time. At

any given time, approximately 2,000 to 3,000 of those were accounts

referred from PeaceHealth, for a total of 17,500 to 18,000 PeaceHealth

accounts in the year preceding this lawsuit.

ECHLIN V PEACEHEALTH 5

debtor a letter advising her that the account had been assigned

to CCI for collection purposes and demanding payment.

CCI controlled the largely formulaic letter-mailing

process. Although PeaceHealth was generally aware of the

standard format of CCI’s letters, CCI alone controlled the

content of the letters it actually sent, and CCI did not seek

PeaceHealth’s approval prior to mailing. The letters were

written on CCI letterhead, they were mailed from CCI’s inhouse

mailing center, and they listed CCI’s address and

phone number (along with PeaceHealth’s contact information

under a section labeled “Creditor Detail”). The letters also

directed debtors to visit a website maintained by CCI, where

one could see more details about his or her debt, find

information about how to repay or to dispute the debt, and

submit electronic documents to CCI. Like the letters, the

website encouraged debtors to contact CCI by phone, fax, or

mail with questions.

CCI would mail up to two collection letters for each

PeaceHealth account. The first letter informed the debtor that

her account had been referred to CCI, “a debt collector,” for

collection and requested payment either by check, by a credit

card form included in the letter, or online at PeaceHealth’s

website. CCI itself had no ability to process or to negotiate

payments for PeaceHealth, but it would forward to

PeaceHealth any payments it received, including endorsing

checks made out to CCI, as necessary. CCI typically allowed

the debtor two weeks to respond to its first letter. If a debtor

made full repayment, CCI stopped all collection activity. But

if the debtor failed to pay or to respond within two weeks,

CCI would send a second letter, renewing its request that the

debtor settle the account. If, after another two to three weeks,

the debtor still had not paid her debt, CCI would refer the

6 ECHLIN V PEACEHEALTH

debt back to PeaceHealth and CCI’s activity on the account

would end.

Accounts sent back to PeaceHealth would often then be

referred to another company for additional action. As

PeaceHealth describes it, CCI’s activities were the first step

in a series of collections processes “up to and including the

point of an additional agency obtaining and executing on a

court judgment.” CCI did not participate in any of the later

collection steps.

CCI also handled correspondence—both in writing and

over the phone—from PeaceHealth debtors. In 2013, for

instance, CCI received 440 pieces of mail from PeaceHealth

debtors. When it received such mail, CCI would “review, act

on it, copy it,” and then forward it to PeaceHealth, though

CCI would not necessarily respond directly to the debtor

herself. For example, when it received written requests for

debt verification, CCI would contact PeaceHealth to verify

the validity of the debt and then either PeaceHealth or CCI

would send a letter responding to the debtor. CCI also trained

its staff personally to handle phone inquiries from debtors,

and CCI’s Collections Manager estimated that CCI handled

approximately 500 calls a week from debtors for all of its

clients combined.2 CCI personnel gave a variety of

information to callers, including clarifying basic details about

their debts, assisting in understanding their insurance

benefits, advising them to look into charity programs for

assistance in paying, and explaining the distinction between

a payment plan and a partial payment. CCI did not generally

reach out to debtors beyond the two letters, but CCI personnel

2 It is not clear from our record how many of those calls were from

PeaceHealth debtors specifically.

ECHLIN V PEACEHEALTH 7

would return calls to debtors if requested, and CCI sent

debtors various administrative notices, such as payment or

account-closure confirmations.

B

In early April 2013, PeaceHealth sent Echlin’s

information to CCI for assistance in collecting the debt from

her first treatment at PeaceHealth. On April 4, CCI assigned

Echlin’s debt a CCI account number and screened it for

barriers to collection. The next day, CCI sent an initial

collection letter to Echlin demanding payment. The letter

was written in the form described above and stated:

Your overdue balance with PeaceHealth . . .

has been referred to [CCI] for collection. . . .

This letter will serve to inform you that your

account remains unpaid and we expect

resolution of your obligation to [PeaceHealth].

The letter directed Echlin to remit payment in order to

“prevent further collection activity by” CCI. It also

instructed her to notify CCI within 30 days if she disputed the

validity of the debt.

Having received no response, CCI sent a second letter to

Echlin exactly two weeks later. The second letter was

substantially the same as the first but included the additional

notice:

This is our FINAL NOTICE and you must

take action to resolve this overdue account.

Pay the amount due to discharge your debt

8 ECHLIN V PEACEHEALTH

owed to [PeaceHealth]. . . . [T]his is our

LAST ATTEMPT to collect this debt . . . .

Echlin neither responded nor paid the debt, and CCI returned

the account to PeaceHealth on May 5.

CCI later sent Echlin another initial collection letter,

seeking payment from her second visit to PeaceHealth. This

time, Echlin sent a letter to CCI disputing the debt. CCI

never responded to Echlin’s letter but instead marked the

account disputed, determined that all further collection

activity should stop, and returned the account along with

Echlin’s letter to PeaceHealth.

C

On March 11, 2014, Echlin filed a putative class action3

against CCI and PeaceHealth, alleging violations of the Fair

Debt Collection Practices Act (FDCPA), “including but not

limited to 15 U.S.C. §§ 1692e and 1692j.” Specifically,

Echlin alleged that the letters she received “created a false or

misleading belief that Defendant CCI was meaningfully

involved in the collection of a debt prior to the debt actually

being sent to collections”—a practice commonly known as

flat-rating. She sought statutory damages, actual damages,

and attorneys fees.

CCI and PeaceHealth moved for summary judgment. In

response to CCI’s motion, Echlin continued to press her flatrating

claims but also argued that, even if such claims failed,

3 Echlin brought suit on behalf of herself and all other “consumers . . .

who received collection letters from defendants CCI and PeaceHealth

similar to [the letters Echlin received]” within the prior year.

ECHLIN V PEACEHEALTH 9

“CCI’s practices violate the statute in other ways.” She gave

one example, echoing a prohibition found in 15 U.S.C.

§ 1692e(5): “For instance, the FDCPA prohibits a debt

collector from using any false representation or deceptive

means to collect any debt and threatening to take any action

that cannot legally be taken or that is not intended to be

taken.” Echlin argued that CCI violated such prohibition by

threatening “‘further’ action against Mrs. Echlin if she

refused to pay her debt, but CCI had no actual authority to

take any action against [her] outside of sending a second

demand letter.”4

The district court granted CCI’s and PeaceHealth’s

motions for summary judgment. It ruled that the undisputed

evidence showed that CCI indeed did meaningfully

participate in the collection of Echlin’s debt, thereby

precluding any flat-rating claim. The court also struck the

§ 1692e(5) claim Echlin argued at summary judgment,

explaining that Echlin had not fairly raised such a claim in

her complaint and thus the defendants had no notice of the

claim and would have been substantially prejudiced if she

were allowed to add the new claim so far into litigation.

Although Echlin did not formally move to amend her

complaint, the court further determined that any amendment

would be futile, because at that point the new claim would

4 Echlin argued that such conduct violated both § 1692e(5)’s specific

prohibition against threatening to take action that is not intended or

authorized and § 1692e(10)’s broader prohibition against using any false

or deceptive means to attempt to collect a debt. Despite Echlin’s reference

to both statutory subsections, for ease of discussion we (like the district

court before us) refer to Echlin’s argument as a claim for a violation of

§ 1692e(5), because she focused on the specific type of conduct prohibited

by that subsection.

10 ECHLIN V PEACEHEALTH

have been barred by the FDCPA’s one-year statute of

limitations.

D

Echlin timely appealed and challenges the district court’s

rejection of both her flat-rating claims and her § 1692e(5)

claim for CCI’s allegedly false threats to take further

collection action against her. She also argues that she has a

viable claim under § 1692e(10) for CCI’s allegedly deceptive

inclusion of both its and PeaceHealth’s contact information

in the letters it sent her.

II

Echlin first argues that the district court erred in granting

summary judgment against her flat-rating claim that CCI’s

letters “created a false or misleading belief that Defendant

CCI was meaningfully involved in the collection of [her] debt

prior to the debt actually being sent to collections,” in

violation of 15 U.S.C. § 1692j.

Section 1692j prohibits a practice known as flat-rating,

whereby a third-party (usually for a flat rate) sells form letters

to a creditor, “which create[] the false impression that

someone (usually a collection agency) besides the actual

creditor is ‘participating’ in collecting the debt.” White v.

Goodman, 200 F.3d 1016, 1018 (7th Cir. 2000) (quoting

15 U.S.C. § 1692j(a)); see also Nielsen v. Dickerson,

307 F.3d 623, 639 (7th Cir. 2002) (“This provision bars the

practice commonly known as ‘flat-rating,’ in which an

individual sends a delinquency letter to the debtor portraying

himself as a debt collector, when in fact he has no real

involvement in the debt collection effort . . . .”). As the

ECHLIN V PEACEHEALTH 11

Seventh Circuit has described, the deception in such a

practice lies in giving debtors the false impression that, by

involving a third party in the collection process, “the creditor

does not intend to drop the matter,” and “Congress’s concern

was that such deception might induce debtors to abandon

legitimate defenses.” White, 200 F.3d at 1018. Because a

third-party flat-rater does not participate in the debt-collection

process, it, in effect, simply allows the creditor to use its

name “for its intimidation value.” Nielsen, 307 F.3d at 639.

Specifically, § 1692j makes it unlawful to:

design, compile, and furnish any form

knowing that such form would be used to

create the false belief in a consumer that a

person other than the creditor . . . is

participating in the collection of or in an

attempt to collect a debt such consumer

allegedly owes such creditor, when in fact

such person is not so participating.

15 U.S.C. § 1692j(a). There is no doubt that CCI furnished

form letters that were used to create the belief—indeed that

explicitly stated—that CCI was participating in an attempt to

collect the debts Echlin owed to PeaceHealth. The question

we must answer is whether there is sufficient evidence in the

record to support Echlin’s contention that this impression was

false—that is, whether there is any genuine issue of fact as to

whether CCI actually participated in PeaceHealth’s debtcollection

efforts. See id.; see also Nielsen, 307 F.3d at 640

12 ECHLIN V PEACEHEALTH

(“The premise of liability under section 1692j . . . is that the

‘flat-rater’ is not involved in debt collection.”).5

A

The statute does not define what it means for a person to

“participat[e] in the collection of or in an attempt to collect a

5 Echlin also alleged that the same conduct violated § 1692e’s

prohibition against a “debt collector” using “any false, deceptive, or

misleading representation or means in connection with the collection of

any debt.” The Act defines a “debt collector” as a person who “regularly

collects or attempts to collect . . . debts owed or due . . . another.”

15 U.S.C. § 1692a(6). Thus, if CCI were acting merely as a flat-rater (and

not actually participating in the collection of debts), it would be liable for

violations of § 1692j, but would not likely be a “debt collector” and thus

not liable also for violations of § 1692e. See, e.g., Vincent v. The Money

Store, 736 F.3d 88, 103 & n.16 (2d Cir. 2013).

Echlin argues, however, that PeaceHealth is itself liable for CCI’s

alleged flat-rating under § 1692e. Under the so-called false-name

exception, a creditor may be held liable as its own debt collector under

§ 1692e if, “in the process of collecting his own debts, [he] uses any name

other than his own which would indicate that a third person is collecting

or attempting to collect such debts.” 15 U.S.C. § 1692a(6). Some courts

have held that this standard is essentially the inverse of § 1692j: a creditor

who deceives debtors by hiring a third-party flat-rater is the de facto debt

collector and may therefore be liable for violations of § 1692e through the

false-name exception. See Vincent, 736 F.3d at 103 n.16; Gutierrez v.

AT&T Broadband, LLC, 382 F.3d 725, 738 (7th Cir. 2004). Thus, Echlin

argues, if CCI is liable for violating § 1692j, PeaceHealth is likewise

liable for violating § 1692e.

In any event, Echlin’s §§ 1692e and 1692j claims turn on the same

allegation: that CCI’s letters falsely suggested that CCI was “meaningfully

involved in the collection of” her debts. Our analysis of Echlin’s flatrating

claims under § 1692j therefore applies with equal force to her

parallel claims of misleading representations under § 1692e.

ECHLIN V PEACEHEALTH 13

debt” owed by the consumer. 15 U.S.C. § 1692j(a). A

“debt,” of course, is an obligation to pay someone money.

See 15 U.S.C. § 1692a(5); Ho v. ReconTrust Co., 858 F.3d

568, 571 (9th Cir. 2017). And to “collect” that debt simply

means to “gather” or to “exact” it from the debtor. See

Webster’s Third New International Dictionary 444 (1993);

Vincent v. Money Store, 736 F.3d 88, 100 (2d Cir. 2013). But

this does little to answer our question. There is no doubt that

Echlin owed a debt to PeaceHealth and that PeaceHealth was

trying to collect it from her. One could “participate” in—i.e.,

“take part” in, Webster’s Third New International Dictionary

1646 (1993)—that effort in any number of ways. Arguably,

CCI participated in the attempts to collect Echlin’s debts by

doing so little as drafting and mailing the collection letters to

her itself, rather than merely supplying letterhead to

PeaceHealth for mailing. See, e.g., Vincent, 736 F.3d at 116

(Livingston, J., concurring in part and dissenting in part)

(“[The statute’s] language clearly anticipates that a flat-rater

does not itself communicate with debtors. . . . [A] flat-rater

does not ‘send’ the forms to the debtor, nor is the flat-rater

the one that actually ‘uses’ the forms to deceive the debtor.”);

Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 734 (7th

Cir. 2004) (“The classic ‘flat-rater’ effectively sells his

letterhead to the creditor . . . so that the creditor can prepare

its own delinquency letters on that letterhead.” (quoting

Nielsen, 307 F.3d at 633)).

Echlin contends—and other federal courts have

suggested—however, that CCI must do more than merely

mail form letters to “participate” sufficiently in debtcollection

efforts. The Second Circuit, for example, has

suggested that the relevant entity must “meaningfully”

participate in debt collection activities rather than “merely

operat[e] as a conduit for a collection process that the creditor

14 ECHLIN V PEACEHEALTH

controls.” Vincent, 736 F.3d at 101, 103 (internal quotation

marks omitted). The court opined that this likely requires

more than mailing form letters at the direction of a creditor,

criticizing arguments to the contrary as a relying on a “hypertechnical”

reading of the statute. See id. at 101. The Seventh

Circuit has likewise suggested that a debt collector must

“genuine[ly]” participate in the collection process and wrote

that § 1692j “bars the practice . . . in which an individual

sends a delinquency letter to the debtor portraying himself as

a debt collector, when in fact he has no real involvement in

the debt collection effort.” Nielsen, 307 F.3d at 635, 639.

The district court found that CCI “meaningfully”

participated in debt collection activities under § 1692j. The

record supports that ruling.

B

Echlin primarily argues that CCI did not meaningfully

participate in the attempts to collect her debts because CCI

did not engage in many of the hallmark activities of debt

collection. For example, CCI did not have authority to

negotiate or to process payments from debtors, it received no

proceeds from payments that were made, and it was not

involved in any further action that was pursued against

debtors whose accounts remained delinquent.

We are not persuaded that CCI must engage in such more

central debt-collection activities in order to participate

meaningfully in that process. Meaningful participation in the

debt-collection process may take a variety of forms. In

similar cases, for example, lower courts have applied a litany

of factors related to an entity’s participation in the debtcollection

process, including the amount of control the entity

ECHLIN V PEACEHEALTH 15

exercises over the collection letters it sends, the amount of

contact the entity has with debtors, whether the entity invites

and responds to debtor inquiries, whether the entity may

receive or negotiate payments, whether the entity receives or

retains full debtor files, and whether the entity is involved in

further collection activities if the debts remain unpaid. See,

e.g., Hartley v. Suburban Radiologic Consultants, Ltd.,

295 F.R.D. 357, 371–72 (D. Minn. 2013); Mazzei v. Money

Store, 349 F. Supp. 2d 651, 659–60 n.6 (S.D.N.Y. 2004);

Sokolski v. Trans Union Corp., 53 F. Supp. 2d 307, 313

(E.D.N.Y. 1999). Such considerations are surely not

exhaustive of the ways in which one might meaningfully

participate in the collection process, but we agree that

activities of such sorts may evidence genuine involvement in

the collection process and that our inspection of an entity’s

collection efforts must be holistic. The key is whether, in

consideration of all that an entity does in the collection

process, it genuinely contributes to an effort to collect

another’s debt, or instead does little more than act as a

mailing service for the creditor. See, e.g., Vincent, 736 F.3d

at 103 (“[T]he appropriate inquiry is whether the third party

. . . merely operat[es] as a conduit for a collection process that

the creditor controls.” (internal quotation marks omitted));

Hartley, 295 F.R.D. at 371 (flat-rater does “little more than

coordinate the mailing of letters and forward responses to the

creditor”); Peters v. AT&T Corp., 43 F. Supp. 2d 926, 929

(N.D. Ill. 1999) (“[C]ourts have focused on whether the

collection agency was hired only as a mailing service . . . .”);

see also S. Rep. No. 95-382 (1977) (“[T]he flat-rater is not in

the business of debt collection, but merely sells dunning

letters.”).

Although CCI could not negotiate, process, or seek to

compel repayments, it participated in the attempts to collect

16 ECHLIN V PEACEHEALTH

debts owed to PeaceHealth in a variety of other ways.

Undisputed evidence in the record shows that: (1) CCI

independently screened accounts for barriers to collection;

(2) CCI alone drafted and mailed the collection letters,

without input from PeaceHealth; (3) the letters invited

debtors to contact CCI by mail or phone and CCI trained its

personnel to handle such inquiries; (4) CCI in fact received

approximately 500 calls a week from debtors of its various

clients and received several hundred pieces of mail from

PeaceHealth debtors; (5) in their conversations with debtors,

CCI staff provided a variety of information about their debts

and how to repay them; (6) CCI maintained a website where

PeaceHealth debtors could access individualized information

about their debts and submit documents to CCI; and (7) CCI

sometimes received and forwarded to PeaceHealth payments

it received from debtors. Certainly, CCI could have been

more directly interested in the outcome of PeaceHealth’s

attempts to collect on patients’ debts. Nonetheless, CCI’s

assistance in facilitating those efforts went beyond acting

simply as a mailing house for PeaceHealth. We are

persuaded that CCI’s efforts were enough to have participated

meaningfully in the attempts to collect debts like Echlin’s.

C

Echlin also argues that the district court’s conclusion is

inconsistent with two out-of-circuit cases in which attorneys

who mailed collection notices on a creditor’s behalf were

deemed not to have participated meaningfully in the

collection process. We disagree.

ECHLIN V PEACEHEALTH 17

1

In Nielsen v. Dickerson, the Seventh Circuit considered

whether certain form collection letters falsely represented that

the letters came “from an attorney,” in violation of 15 U.S.C.

§ 1692e(3). 307 F.3d at 634–35. That question turned on

whether the attorney who composed and mailed the letters in

an “assembly-line fashion” was, “as a legal professional,”

actually “involved in [the] debt collection process in any

meaningful sense.” Id. at 635, 637 (emphasis added). The

Seventh Circuit thus structured its analysis around the special

requirements imposed on attorneys who purport to be

participating in the collection process:

[A] debt collection letter that is issued on an

attorney’s letterhead . . . conveys the notion

that the attorney has “directly controlled or

supervised the process through which the

letter was sent”—i.e., that he has assessed the

validity of the debt, is prepared to take legal

action to collect on that debt, and has . . .

decided that a letter should be sent to the

debtor conveying that message. . . .

“If a debt collector . . . wants to take

advantage of the special connotation of the

word ‘attorney’ in the minds of delinquent

consumer debtors[,] . . . the debt collector

should at least ensure that an attorney has

become professionally involved in the

debtor’s file. Any other result would sanction

the wholesale licensing of an attorney’s name

for commercial purposes, in derogation of

professional standards . . . .”

18 ECHLIN V PEACEHEALTH

Id. at 635 (quoting Avila v. Rubin, 84 F.3d 222, 229 (7th Cir.

1996)).

The court recounted the “ministerial” nature of the

attorney’s services in that case, id. at 635–38, and concluded

that “although an unsophisticated consumer would have

construed [the] letter to reflect an attorney’s professional

judgment that her debt was delinquent and ripe for legal

action, in fact [he] had made no such assessment.” Id. at 638

(citation omitted). Thus, “the attorney, qua attorney,” had

not contributed to the collection process “in any meaningful

sense,” and the letters could not fairly be said to have come

from him in such capacity. Id. at 639 (emphasis added).

The court in Nielsen only briefly addressed the attorney’s

potential liability as a flat-rater under § 1692j, stating that,

because he did not meaningfully participate in the collection

process in his professional capacity, he might “seem to be a

natural candidate for flat-rating liability pursuant to section

1692j.” Id. But the court ultimately did not decide whether

the attorney violated § 1692j, because any such liability

would have been redundant of his liability under § 1692e(3).

Id. at 640. Critically, the court did not discuss whatsoever

whether its analysis of the attorney’s § 1692j liability would

have differed from its prior attorney-specific analysis under

§ 1692e(3). In short, Nielsen says virtually nothing about the

sufficiency of CCI’s collection efforts in this case, where CCI

did not purport to be involved in the process as an attorney

and which does not involve any question of liability under

§ 1692e(3).

ECHLIN V PEACEHEALTH 19

2

In Vincent v. Money Store, the Second Circuit considered

whether a creditor that hired a law firm to mail debtcollection

notices could be held liable for violations of

§ 1692e as its own “debt collector” under the FDCPA’s falsename

exception,6 because the law firm was not meaningfully

involved in collection efforts. 736 F.3d at 91. Although

Vincent did not address § 1692e(3)’s prohibition against false

representations of communications “from an attorney,” the

Second Circuit recounted Nielsen in detail and explicitly

followed its analysis. See id. at 102–04. Ultimately, much as

in Nielsen, the Vincent court concluded that “a jury could

find” that collection letters mailed by the law firm “falsely

implied that [the firm] was attempting to collect [the

creditor’s] debts and would institute legal action against

debtors,” when in fact the firm “acted as a mere conduit for

a collection process [the creditor] controlled.” Id. at 104

(internal quotation marks omitted). The court purportedly did

not address whether attorneys should be held to a higher

standard for “meaningful participation,” id. at 104 n.17, but

its conclusion drew heavily on Nielsen’s attorney-specific

analysis and it reflected similar concerns regarding the unique

sort of participation that is implied by letters that indicate the

creditor has retained an attorney to collect its debts. See

generally id. at 102–04; see also id. at 114–16 (Livingston, J.,

concurring in part and dissenting in part) (“As the majority

notes, what is potentially deceptive about the letters . . . is

6 As noted above, the Second Circuit treats the § 1692a(6) false-name

exception as essentially the inverse of § 1692j, and it has held that when

a creditor uses the services of a flat-rater, the creditor itself can be held

liable for violations of § 1692e as the de facto “collector” of its own debts.

See supra n.5.

20 ECHLIN V PEACEHEALTH

their implication that Moss Codilis attorneys had been

retained as attorneys to collect the plaintiffs’ debts when in

reality [they had not]. . . . [C]ollecting or attempting to

collect a debt in a legal capacity is not the same as collecting

or attempting to collect a debt generally.” (internal quotation

marks omitted)).

Moreover, CCI appears to have participated to a greater

degree in collection efforts than the law firm in Vincent did.

There, the plaintiffs had presented evidence that the law firm

drafted the letters “jointly” with the creditor, directed debtors

to send nearly “all communication about this matter” to the

creditor itself, and after mailing the demand letters

“performed virtually no role in the actual debt collection

process” besides verifying the existence of a debt or the

identity of the creditor to those debtors who did call the firm

instead of the creditor. See id. at 93–95 & n.3, 104 (internal

quotation marks and alterations omitted). As explained

above, CCI was far more directly involved in the process of

attempting to collect debts for PeaceHealth.

D

In sum, Echlin has not pointed to any case in which a

company has been held liable for flat-rating where its services

include (among other things): screening referred debtors for

barriers to collection, independently composing and mailing

collection letters, inviting and responding to customer

questions on a variety of details about the collection process,

and maintaining a website that allows customers to access

individualized information about their debts and to submit

electronic files to the company. We agree with the district

court that these activities are enough to show that CCI

ECHLIN V PEACEHEALTH 21

meaningfully participated in the attempts to collect Echlin’s

debts.

III

Echlin also contends that the district court erred in

striking her claim that CCI violated the FDCPA’s prohibition

against “threat[ening] to take any action that cannot legally be

taken or that is not intended to be taken.” 15 U.S.C.

§ 1692e(5). She argues both that her original complaint gave

CCI adequate notice of its need to defend a against such a

claim,7 and that, even if it didn’t, she should have been given

leave to amend the complaint to add an express § 1692e(5)

claim.

A

“Federal Rule of Civil Procedure 8(a)(2) requires that the

allegations in the complaint give the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it

rests.” Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963,

968 (9th Cir. 2006) (internal quotation marks omitted). As

the district court recognized, Echlin’s complaint focused

narrowly on her flat-rating allegations. The complaint

alleged that CCI “was not acting as a debt collector . . . [but

instead] was acting as a flat-rater.” It elaborated in detail,

alleging that PeaceHealth instructed CCI to send the letters to

create the false impression that Echlin’s debt had been “sent

to collections” and that PeaceHealth “employed Defendant

CCI’s letterhead and identity as a collection agency in an

attempt to deceive Plaintiff” about CCI’s role in the process.

7 Echlin appears to raise this claim against only CCI and not

PeaceHealth.

22 ECHLIN V PEACEHEALTH

The complaint cited § 1692j three times and alleged

specifically that the letters “created a false or misleading

belief that Defendant CCI was meaningfully involved in the

collection of a debt prior to the debt actually being sent to

collections in violation of 15 U.S.C. §§ 1692e and 1692j.”

By contrast, the complaint never cited § 1692e(5), nor did

it mention the FDCPA’s prohibition against threatening to

take an action that is not intended or legally authorized. The

complaint’s only references to § 1692e at all were made in

direct connection with Echlin’s § 1692j flat-rating

allegations; indeed, as explained above, Echlin has

throughout argued general violations of § 1692e that mirror

her § 1692j allegations. See supra n.5. Although the

complaint alleged that PeaceHealth was acting as a “debt

collector” under the FDCPA—a necessary requirement for

any claim under § 1692e, including of course a claim under

§ 1692e(5)—it did not allege that CCI was. In fact, the

complaint expressly disavowed such a claim, alleging that

CCI “was not acting as a debt collector when it sent the

Letters.” This makes sense, as the complaint’s sole theory of

liability was that CCI was merely a flat-rater, not a true debt

collector. But it is manifestly contrary to Echlin’s suggestion

that her complaint claimed that CCI’s conduct also violated

§ 1692e(5).

The closest the complaint comes to suggesting anything

resembling Echlin’s § 1692e(5) argument is in its alleging

that CCI “was not authorized to take legal action regarding

the alleged debts.” Critically, however, the complaint does

not allege that CCI ever threatened to take legal action despite

its lack of authority to do so. In other words, the complaint

does not allege the minimum facts needed to support a

§ 1692e(5) claim against CCI, even if one were intended.

ECHLIN V PEACEHEALTH 23

This, again, is not surprising, because Echlin’s allegation that

CCI lacked authority to take legal action has consistently

been cited to support her contention that CCI was merely a

flat-rater.

In sum, the district court did not err in concluding that

Echlin’s complaint and its focus on flat-rating failed to give

CCI fair notice of her later-argued § 1692e(5) claim. Echlin’s

attempt to add such a claim at the summary judgment stage

is impermissible. See Navajo Nation v. U.S. Forest Serv.,

535 F.3d 1058, 1080 (9th Cir. 2008); Wasco Prods., Inc. v.

Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006).

B

Echlin further argues that, even if her original complaint

did not raise a claim under § 1692e(5), she should have been

granted leave to amend her complaint to add one. Although

Echlin never filed a formal motion for leave to amend, the

district court concluded that amendment would be futile,

because, at that point, any such claim would have been barred

by the FDCPA’s one-year statute of limitations. See

15 U.S.C. § 1692k(d). Echlin concedes that the statute of

limitations would generally bar a new § 1692e(5) claim, but

she contends that the amended claim should “relate back” to

the date of her original complaint. Echlin failed to make such

an argument to the district court, but her argument fails in any

event.

Under Federal Rule of Civil Procedure 15(c), an

amendment to a complaint may “relate[] back” to the date of

the original complaint where it “asserts a claim or defense

that arose out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading.”

24 ECHLIN V PEACEHEALTH

Fed. R. Civ. P. 15(c)(1)(B). The claims must “share a

common core of operative facts such that the plaintiff will

rely on the same evidence to prove each claim.” Williams v.

Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008) (internal

quotation marks omitted); see also id. at 1133 n.9 (relation

back standard “is meant to ensure that the original pleading

provided adequate notice of the claims raised in the amended

pleading”). Thus, an amendment will not relate back where

the amended complaint “had to include additional facts to

support the [new] claim.” Id. at 1133.

Although Echlin’s § 1692e(5) claim arises from the same

general transaction as her flat-rating claims, it would not rely

on all the same facts and evidence. As discussed above,

Echlin’s complaint failed to allege at least two facts critical

to support a § 1692e(5) claim: (1) that CCI is a debt collector

under the Act and (2) that CCI threatened to take any action

against her that it had no authority or intention to take. As we

have noted, the first point is in fact directly contradictory to

the allegations of Echlin’s complaint, and thus would

naturally turn on questions not presented by those original

allegations. And the second point would likewise turn on

different evidence than Echlin’s flat-rating claims, as it

focuses on the specific representations made in the letters

rather than the nature of CCI’s role in the collection process.8

To find in Echlin’s favor, the trier of fact would be called to

interpret what, if anything, CCI’s letters threaten to do and

8 For example, at the summary judgment stage, Echlin sought to

illustrate CCI’s supposedly empty threats to take further action

specifically by reference to representations made in the second and “final”

letter CCI sent her on April 19, 2013, after she failed to respond to CCI’s

first collection letter—yet that second letter is not mentioned at all in

Echlin’s complaint.

ECHLIN V PEACEHEALTH 25

whether CCI planned to follow through on those

threats—questions that simply are not presented by Echlin’s

flat-rating claims. CCI might well have called different

witnesses or pursued a different litigation strategy to defend

against such issues. Indeed, CCI contends that it waived

certain defenses arguably available to it specifically because

it understood Echlin only to be raising flat-rating claims in

this lawsuit.

In short, the district court did not err in concluding that

CCI would have been “substantially prejudiced by

undertaking an entirely new course of defense based on these

[§ 1692e(5)] allegations” so far into litigation. Any

amendment to add Echlin’s materially different § 1692e(5)

claim would not relate back to the date of Echlin’s original

complaint, and would therefore be time-barred.

IV

Finally, Echlin argues that CCI also violated § 1692e(10),

because its letters deceptively included contact information

for both CCI and PeaceHealth and “fail[ed] to clarify whether

she should communicate with and pay CCI or PeaceHealth.”

Echlin failed to raise this argument at any point prior to this

appeal. Such a claim is nowhere to be found in Echlin’s

complaint, and she did not even bother to argue it when

opposing the motions for summary judgment. The issue is

therefore waived. See BankAmerica Pension Plan v.

McMath, 206 F.3d 821, 825 (9th Cir. 2000).

The judgment of the district court is AFFIRMED.