Page:Dennis Obduskey v. McCarthy & Holthus LLP.pdf/7

4 creditor cannot hold the homeowner liable for the balance due unless it files a separate action in court and obtains a deficiency judgment. See §38–38–106(6); Bank of America v. Kosovich, 878 P. 2d 65, 66 (Colo. App. 1994). Other States likewise prevent creditors from obtaining deficiency judgments in nonjudicial foreclosure proceedings. Restatement §8.2. And in some States, pursuing nonjudicial foreclosure bars or curtails a creditor’s ability to obtain a deficiency judgment altogether. NCLC, Foreclosures and Mortgage Servicing §12.3.2.

In 2007, petitioner Dennis Obduskey bought a home in Colorado with a $329,940 loan secured by the property. About two years later, Obduskey defaulted.

In 2014, Wells Fargo Bank, N. A., hired a law firm, McCarthy & Holthus LLP, the respondent here, to act as its agent in carrying out a nonjudicial foreclosure. According to the complaint, McCarthy first mailed Obduskey a letter that said it had been “instructed to commence foreclosure” against the property, disclosed the amount outstanding on the loan, and identified the creditor, Wells Fargo. App. 37–38; see id., at 23. The letter purported to provide notice “[p]ursuant to, and in compliance with,” both the Fair Debt Collection Practices Act (FDCPA) and Colorado law. Id., at 37. (The parties seem not to dispute that this and other correspondence from McCarthy was required under state law. Because that is a question of Colorado law not briefed by the parties before us nor passed on by the courts below, we proceed along the same assumption.) Obduskey responded with a letter invoking §1692g(b) of the FDCPA, which provides that if a consumer disputes the amount of a debt, a “debt collector” must “cease collection” until it “obtains verification of the debt” and mails a copy to the debtor.

Yet, Obduskey alleges, McCarthy neither ceased