FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHARLES STEPHAN LIMA, No. 17-16299 Plaintiff-Appellant, D.C. No. v. 1:15-cv-00242-KSC UNITED STATES DEPARTMENT OF EDUCATION, OPINION Defendant, and EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Defendant-Appellee. Appeal from the United States District Court for the District of Hawaii Kevin S. Chang, Magistrate Judge, Presiding Argued and Submitted October 22, 2019 Honolulu, Hawaii Filed December 18, 2019 Before: Susan P. Graber, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges. Opinion by Judge Graber 2 LIMA V. EDUC. CREDIT MANAGEMENT CORP. SUMMARY* Debt Collection The panel affirmed the district court’s summary judgment in favor of the defendant on claims under the Fair Debt Collection Practices Act and the Due Process Clause. Defendant, a nonprofit guaranty agency, caused an offset against plaintiff’s Social Security benefits, to recover on a judgment it had obtained by assignment after plaintiff defaulted on his student loans. Under the Higher Education Act, student loans are guaranteed by guaranty agencies, which receive guarantees from the United States. The panel held that, under the FDCPA’s definition of a debt collector, defendant regularly collected or attempted to collect debts asserted to be owed or due another. Defendant was not collecting a debt for its own account, but rather was collecting a debt for the United States. Nonetheless, defendant fulfilled the criteria of the fiduciary exception because it had a broader fiduciary role with respect to plaintiff’s debt than merely collecting the debt, and its collection activity was incidental to its fiduciary obligation to the Department of Education. Accordingly, defendant was not a debt collector under the FDCPA. Assuming without deciding that defendant was a state actor, the panel held that defendant did not violate plaintiff’s procedural due process rights because it provided plaintiff * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LIMA V. EDUC. CREDIT MANAGEMENT CORP. 3 with notice of the debt, of defendant’s intention to seek a Treasury offset against plaintiff’s Social Security benefits, and of the means by which plaintiff could respond. COUNSEL Amani S. Floyd (argued) and George C. Harris, Morrison & Foerster LLP, San Francisco, California, for Plaintiff- Appellant. Troy A. Gunderman (argued), ECMC Shared Services Comp., LLC, Minneapolis, Minnesota; Theodore D. C. Young, Cades Schutte LLP, Honolulu, Hawaii; for Defendant-Appellee. OPINION GRABER, Circuit Judge: Defendant Education Management Credit Corporation caused an offset against Plaintiff Charles Lima’s Social Security benefits, to recover on a judgment obtained after Plaintiff defaulted on his student loans. Plaintiff filed a civil action alleging, among other things, violations of the Fair Debt Collection Practices Act and the Fifth Amendment’s Due Process Clause. The district court granted summary judgment to Defendant. We affirm. 4 LIMA V. EDUC. CREDIT MANAGEMENT CORP. BACKGROUND A. Statutory Framework The Higher Education Act of 1965 (“Act”) established the Federal Family Education Loan Program (“Loan Program”), which the Department of Education (“DOE”) administers. Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d ...
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