Pace v. Link Debt Recovery

2024 UT App 4

THE UTAH COURT OF APPEALS

AMANDA PACE AND KANDILEE SAUTER,
Appellants,
v.
LINK DEBT RECOVERY LLC,
Appellee.

Opinion
No. 20220841-CA
Filed January 5, 2024

Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 210905743

Daniel Baczynski, Attorney for Appellants
Mark A. Nickel, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 In 2020, Link Debt Recovery LLC (Link) initiated separate
debt collection lawsuits against Amanda Pace and Kandilee
Sauter (collectively, the Pace Parties). In the complaints it filed,
Link asserted, among other things, that it was “operating
pursuant to the laws of the State of Utah.” Link prevailed in both
lawsuits, eventually obtaining judgments against the Pace Parties.

¶2 Later, the Pace Parties filed the instant lawsuit against
Link, alleging that, at the time Link filed the collection lawsuits
against them, Link was not properly registered and bonded as a
debt collector as required by then-applicable Utah law. The Pace
Parties asserted that Link’s actions—attempting to sue them for
collection while not properly registered and bonded—were
unlawful under Utah and federal consumer protection statutes.
Pace v. Link Debt Recovery

Link asked the district court to dismiss the Pace Parties’ lawsuit,
asserting that it was in fact properly registered and bonded and,
alternatively, that even if it were not, its actions did not amount
to unlawful activity under the relevant statutes.

¶3 The district court granted Link’s motion to dismiss on both
grounds, and the Pace Parties now appeal that determination.
They assert that factual questions exist regarding Link’s true
registration status that may not properly be resolved on a motion
to dismiss, and that Link made an affirmative misrepresentation
in its complaint—that it was “operating pursuant to the laws of
the State of Utah”—that is potentially actionable under the
relevant consumer protection statutes. We agree with the Pace
Parties that the court erred in dismissing their lawsuit at this
procedural stage, and we therefore reverse the court’s dismissal
order and remand the case for further proceedings.

BACKGROUND 1 0F

¶4 In February 2020, Link filed a debt collection lawsuit
against Sauter. In November 2020, Link filed a similar lawsuit
against Pace. In both complaints, Link asserted, as one of its
“general allegations,” that it was “a duly organized and existing
business operating pursuant to the laws of the State of Utah.” Link
also claimed that Sauter and Pace had each failed to pay a debt—
Sauter had failed to pay $1,938.58 and Pace had failed to pay
$1,778.00—and that Link had acquired, by assignment, the right
to collect on those unpaid debts. The Pace Parties did not respond

1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Haynes v.
Department of Public Safety, 2020 UT App 19, n.2, 460 P.3d 565
(quotation simplified).

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to the lawsuits, and Link was therefore able to obtain default
judgments against them.

¶5 The next year, in October 2021, the Pace Parties filed the
instant lawsuit against Link. In that lawsuit, the Pace Parties did
not contest their liability for the underlying debts. Instead, they
pointed out that, at the time Link filed its collection lawsuits
against them, Utah law required debt collectors to be registered
with the state and have filed a bond with the state, and they
alleged that Link was not properly registered and bonded. They
further alleged that they chose “not to respond to” the collection
lawsuits because they believed—based on Link’s representation
that it was “operating pursuant to the laws of the State of Utah”—
that Link had “the legal right to sue” on the debts in question. And
they asserted that Link’s actions were unlawful under both a
federal consumer protection statute—the Fair Debt Collection
Practices Act (FDCPA), see 15 U.S.C. §§ 1692e, 1692f—and a
similar Utah statute—the Utah Consumer Sales Practices Act
(UCSPA), see Utah Code § 13-11-2.

¶6 Instead of answering the Pace Parties’ lawsuit, Link filed a
motion to dismiss, asking the court to dismiss the suit on two
alternative grounds. 2 First, Link asserted that it actually was
1F

2. In its motion, Link listed several additional grounds upon
which it believed the Pace Parties’ lawsuit should be dismissed,
in whole or in part. The district court, in its ruling granting Link’s
motion, relied only on the two grounds we discuss here, and
made no ruling on any of the other grounds Link asserted. In this
appeal, Link invites us to affirm the dismissal of the Pace Parties’
complaint on several grounds, including the additional grounds
listed in its motion and which the district court did not consider.
We decline Link’s invitation to affirm on any of these other
grounds that were not considered by the district court in the first
instance, and we reach no decision on the merits of any of them.
(continued…)

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properly registered in 2020, when it filed the collection lawsuits.
Second, Link asserted that, even if it wasn’t properly registered,
its actions in attempting to collect the debt were not actionable
under the relevant statutes in any event.

¶7 In connection with its first argument, Link acknowledged
that it was not separately registered and bonded as a debt
collector, as required by then-current Utah law. However, it
contended that, in August 2019, before the collection lawsuits
were filed, it had changed its corporate status from an “LLC” to a
“dba,” and that the entity under which the “dba” did business—
a company known as Collection Professionals, Inc. (CPI)—was
properly registered and bonded. It acknowledged that, in the
complaints filed in the collection lawsuits, it had purported to be
an “LLC,” but it claimed that this had been a “scrivener’s error”
and that its true corporate status, as demonstrated by corporate
filing documents it attached to its motion, was a “dba” for CPI, a
properly registered and bonded company.

¶8 The Pace Parties’ response to this, as expressed in their
memorandum opposing Link’s motion to dismiss, was that Link
was not telling the court the entire corporate story. They pointed
out that, in late January 2020, about a week before it sued Sauter,
Link changed its corporate status back to an LLC. Accordingly, at
the time it filed both collection lawsuits, Link was not a dba of
CPI, but instead was an independent LLC that was not registered
and bonded as a debt collector.

¶9 Link’s response to this, as expressed for the first time in a
reply memorandum in support of its motion, was that it had

See Siebach v. Brigham Young Univ., 2015 UT App 253, ¶ 36, 361
P.3d 130 (“Although we possess the ability to affirm on any legal
ground or theory apparent on the record, we also possess the
discretion to conclude that the district court should be afforded
the opportunity to rule on the arguments in the first instance.”).

20220841-CA 4 2024 UT App 4
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filed—on November 10, 2021, just weeks after being sued by the
Pace Parties for being an unregistered debt collector, and just
weeks before filing its motion to dismiss—a “Statement of
Correction” (the Correction) with the state indicating that the
January 2020 document converting Link back to an LLC had been
“filed in error.” It asserted that this Correction operated to
retroactively void the earlier-filed conversion document, and that
Link had therefore been a dba of CPI—and not an independent
LLC—at all times after August 2019.

¶10 At oral argument on the motion, the district court gave
the Pace Parties an opportunity to respond to Link’s
arguments—made for the first time in reply—regarding the
Correction. The Pace Parties did not contest that the Correction
had been duly filed in November 2021, but they argued that
discovery was necessary to determine whether there had truly
been an “error” in the January 2020 filing, or whether the
Correction was merely a sham document, created just weeks after
being sued, that had “been filed so that [Link could] avoid
liability.”

¶11 At the conclusion of the oral argument, the court took
the matter under advisement, and it later issued a written
ruling granting Link’s motion to dismiss. First, the court
determined that the corporate filings—most notably, the
Correction—established that Link was a dba of CPI at all
relevant times and was therefore properly registered and
bonded as a debt collector. Second, and alternatively, the court
ruled that, even if Link had not been properly registered and
bonded, its conduct was not actionable under the consumer
protection statutes as a matter of law, concluding that the
Pace Parties “cannot make out a violation of the UCSPA or the
FDCPA merely by alleging a violation of” Utah’s registration and
bonding requirements. The court later entered judgment in favor
of Link.

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ISSUE AND STANDARD OF REVIEW

¶12 The Pace Parties now appeal the court’s order dismissing
their lawsuit. “We review a decision granting a motion to dismiss
for correctness, granting no deference to the decision of the
district court.” Haynes v. Department of Public Safety, 2020 UT App
19, ¶ 5, 460 P.3d 565 (quotation simplified). As part of our review,
we “must accept the material allegations of the complaint as true,
and the [district] court’s ruling should be affirmed only if it clearly
appears the complainant can prove no set of facts in support of
his or her claims.” Id. (quotation simplified). “Our inquiry is
concerned solely with the sufficiency of the pleadings, and not the
underlying merits of the case.” Id. (quotation simplified).

ANALYSIS

¶13 The district court offered two alternative grounds for
dismissal of the Pace Parties’ complaint, and the Pace Parties
assert that neither ground can support dismissal, at least not at
this procedural stage. We agree with the Pace Parties, and we
discuss each ground in turn.

I. Link’s Corporate/Registration Status

¶14 As its first reason for dismissing the Pace Parties’
complaint, the district court determined—after reviewing Link’s
corporate filing documents—that Link had been a dba of CPI at
all relevant times, and that Link was therefore properly registered
and bonded as a debt collector when it filed collection lawsuits
against the Pace Parties. In challenging this ruling, the Pace
Parties acknowledge the corporate filings, and do not take issue
with the court’s decision to take judicial notice of them. But they
assert that, due to its “suspicious timing,” the Correction “is not
dispositive” and may well be “a legal fiction.” And they assert

20220841-CA 6 2024 UT App 4
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that they are entitled to engage in the discovery process to test this
theory. We agree.

¶15 The Utah Collection Agency Act (UCAA) states that no
“person shall conduct a collection agency, collection bureau, or
collection office in this state, or engage in this state in the business
of soliciting the right to collect or receive payment for another of
any account, bill, or other indebtedness,” unless that person “is
registered with the Division of Corporations and Commercial
Code and has on file a good and sufficient bond.” Utah Code § 12-
1-1 (2022). 3 In other words, the UCAA requires any person 4
2F 3F

involved in debt collection to be properly registered and bonded
with the state. And the required bond is “for the sum of $10,000,
payable to the state of Utah.” Id. § 12-1-2(1). A person who fails to
abide by this section “is guilty of a class A misdemeanor,” id. § 12-
1-6, and thus subject to criminal penalties up to and including 364
days in jail, see id. § 76-3-204. But the UCAA—as discussed more
fully below—includes no private right of action allowing citizens
to sue for violation of it. See id. §§ 12-1-1 to -11.

¶16 In their complaint, the Pace Parties claim that, during the
relevant time period, Link was not properly registered and

3. “With the exception of its final section—authorizing creditors
to recover collection fees in addition to other amounts owed by a
debtor—the UCAA was recently repealed by the Utah
Legislature.” Meneses v. Salander Enters. LLC, 2023 UT App 117,
¶ 3 n.1, 537 P.3d 643; see also Act of May 3, 2023, ch. 32, § 3, 65th
Leg., Gen. Sess.; Act of May 3, 2023, ch. 213, § 1, 65th Leg., Gen.
Sess. It was, however, in effect at all times relevant to this case,
and the parties agree that it applies here.

4. The UCAA contains no statutory definition of “person.” See
Utah Code §§ 12-1-1 to -11 (2022). We assume, for purposes of our
analysis, that “person” includes business entities; no party to this
appeal makes any argument to the contrary.

20220841-CA 7 2024 UT App 4
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bonded as a debt collector in Utah. In the motion to dismiss it filed
in response to the complaint, Link did not contend that it was ever
separately registered and bonded as such. Instead, Link asserted
that, at the time it filed the collection lawsuits against the Pace
Parties, it was a “dba” of CPI, which was a properly registered and
bonded entity. If this assertion turns out to be true, then Link
cannot be said to have been in violation of the UCAA’s
registration and bonding requirements at the time it sued the Pace
Parties, and the Pace Parties’ lawsuit would therefore fail.

¶17 When evaluating the facts in the context of a motion to
dismiss, we must ordinarily assume that the plaintiff’s allegations
are true. See Nielsen v. LeBaron, 2023 UT App 29, ¶ 11, 527 P.3d
1133 (“A motion to dismiss should be granted only if, assuming
the truth of the allegations in the complaint and drawing all
reasonable inferences therefrom in the light most favorable to the
plaintiff, it is clear that the plaintiff is not entitled to relief.”
(quotation simplified)), cert. denied, 534 P.3d 751 (Utah 2023).
Here, the Pace Parties assert, in their complaint, that Link was
operating as a standalone LLC at the time it filed the collection
lawsuits, and that it was not properly registered and bonded. In
the typical situation, this allegation would be the end of it, at the
motion to dismiss stage, because the court must assume this
allegation to be true.

¶18 In this case, however, both sides attached to their motion-
to-dismiss memoranda certain corporate records pertaining to
Link, and both sides asked the district court to consider those
records in evaluating this issue as presented by Link’s motion to
dismiss. See BMBT, LLC v. Miller, 2014 UT App 64, ¶ 6, 322 P.3d
1172 (“The district court may take judicial notice of public records
and may thus consider them on a motion to dismiss.” (quotation
simplified)). And on appeal, no party asserts that the district court
improperly considered those records. We therefore assume, for
purposes of our analysis and without deciding, that the court
properly considered Link’s corporate records in this context

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Pace v. Link Debt Recovery

without converting the motion to dismiss to a motion for
summary judgment. See generally Utah R. Civ. P. 12(c) (stating
that, if “matters outside the pleading are presented to and not
excluded by the court, the motion [to dismiss] must be treated as
one for summary judgment and disposed of as provided in Rule
56, and all parties must be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56”).

¶19 After reviewing those records, the district court
concluded—based on the Correction—that Link was, at all
relevant times, a dba of CPI and not a standalone LLC, and
therefore concluded that Link was properly registered and
bonded as required by the UCAA. The Pace Parties challenge this
conclusion, asserting that factual questions remain regarding
whether the Correction was properly filed under applicable law.

¶20 Under Utah law, a company may “correct” a filed
corporate record under certain circumstances. See Utah Code § 48-
3a-208. As relevant here, a company may correct a record if the
record was “inaccurate” at the time it was filed. See id. § 48-3a-
208(1)(a); see also Uniform Limited Liability Company Act, § 209
cmt. subsection (a)(1) and (2) (Unif. L. Comm’n 2013) (“A filed
record may be corrected because it contains an inaccuracy . . . .”
(emphasis added)). If the requirements of the statute are met, then
“[a] statement of correction is effective as of the effective date of
the filed record that it corrects,” except “as to persons relying on
the uncorrected filed record and adversely affected by the
correction.” Utah Code § 48-3a-208(4). The Pace Parties do not
contend that they relied on the January 2020 conversion
document. 5 So, as applied here, this statute means that the
4F

5. The district court stated that the Pace Parties’ “[c]omplaint
makes no assertion that [the Pace Parties] were aware in any way
at all of [Link’s] legal status at the time of its collection efforts,”
nor does it “make any allegation that [the Pace Parties] took any
(continued…)

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Correction must be considered valid, as against the Pace Parties,
if the January 2020 conversion document—the record being
corrected—was in fact “inaccurate” at the time it was filed.

¶21 Link certainly asserts that the 2020 conversion document
was “mistakenly filed.” Indeed, on its face, the Correction
proclaims that the 2020 conversion document “was filed in error.”
But the Pace Parties take issue with this characterization; they
assert that “the belatedly filed (and self-serving)” Correction “is a
legal fiction,” generated not because there was actually any
inaccuracy in the conversion document but, instead, as a ruse to
“avoid liability” to the Pace Parties in this lawsuit. The Pace
Parties assert that this question—whether the 2020 conversion
document was truly inaccurate—is a factual one that cannot be
resolved against them at this procedural stage, and that they “are
entitled to test their allegations through discovery.” We agree.

¶22 Whether the January 2020 conversion document was in fact
inaccurate is indeed a fact-bound question that will likely depend,
at least to some extent, on Link’s intentions when it filed both that
document as well as the Correction. Such questions are typically
treated as questions of fact. See O’Hair v. Kounalis, 463 P.2d 799,
801 (Utah 1970) (“In most cases the question of intention is a
question of fact for determination by the fact-finder . . . .”); see also
Wolf Mountain Resorts, LC v. ASC Utah, Inc., 2011 UT App 425,
¶ 10, 268 P.3d 872 (“Determining the parties’ intent in drafting a
contract presents a question of fact.”); Aris Vision Inst., Inc. v.

action or refrained from taking any action in reliance on the
January 2020 conversion.” On appeal, the Pace Parties do not
challenge the court’s conclusion in this regard. Moreover, our
own examination of both their complaint and their memorandum
opposing Link’s motion to dismiss reveals no indication that,
prior to the litigation regarding the motion to dismiss, the Pace
Parties claim to have even known about—let alone relied upon—
the 2020 conversion document.

20220841-CA 10 2024 UT App 4
Pace v. Link Debt Recovery

Wasatch Prop. Mgmt., Inc., 2005 UT App 326, ¶ 15, 121 P.3d 24
(stating that “[t]he determination of intent is a question of fact” in
evaluating whether a person abandoned property), aff’d, 2006 UT
45, 143 P.3d 278. In our view, the Pace Parties have raised
legitimate concerns about whether there was in fact any
inaccuracy in the 2020 conversion document. We agree with the
Pace Parties that, at this procedural stage, reasonable inferences
from the alleged facts—as well as from documents judicially
noticed—must be drawn in their favor. See Calsert v. Estate of
Flores, 2020 UT App 102, ¶¶ 13–14, 470 P.3d 464 (stating that in the
rule 12(b)(6) context, “[e]ven if [the district court] could have
properly taken notice of” public documents, it “was still required
to assume the truth of [the plaintiff’s] allegations” and interpret
the documents in the light most favorable to the plaintiff’s claims).
Here, the Pace Parties point to reasonable inferences—drawn
from the timing of the filings and from the documents themselves,
which do not appear facially inaccurate—indicating that Link
filed the Correction not to remedy any inaccuracy but, instead, to
sidestep liability to the Pace Parties in this lawsuit.

¶23 Accordingly, the district court erred by resolving this
factual conundrum in Link’s favor in the context of Link’s motion
to dismiss. On this question, the Pace Parties are entitled to
proceed to discovery to explore whether the January 2020
conversion was “inaccurate” at the time of filing.

II. The Merits of the Statutory Claims

¶24 Because we are not able to affirm the district court’s
dismissal order on the first ground it discussed, we must proceed
to analyze the court’s alternative basis for dismissal: that even if
Link was not properly registered and bonded under Utah law, the
Pace Parties’ complaint is nevertheless subject to dismissal
because they “cannot make out a violation of the UCSPA or
FDCPA merely by alleging a violation of the UCAA.” The district
court’s statement is correct, as far as it goes, at least as concerns

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claims under the UCSPA. See Fell v. Alco Cap. Group LLC, 2023 UT
App 127, ¶ 37, 538 P.3d 1249 (stating that, “without some showing
of an affirmative misrepresentation,” a “violation of the UCAA
[does] not constitute a violation of the UCSPA”), petition for cert.
filed, Dec. 20, 2023 (No. 20231126); Meneses v. Salander Enters. LLC,
2023 UT App 117, ¶ 18, 537 P.3d 643 (stating that “a UCAA
registration violation, standing alone, is . . . not enough” to
“support a cause of action under the UCSPA or common law”),
petition for cert. filed, Nov. 29, 2023 (No. 20231068). But the Pace
Parties assert that they have alleged more here than merely a
UCAA registration violation: as they see it, they have alleged the
sort of “affirmative misrepresentation” about licensure status that
would, if true, state a claim under the UCSPA and the FDCPA.
We agree with the Pace Parties.

A. The UCSPA

¶25 The UCSPA forbids “deceptive act[s] or practice[s] by a
supplier in connection with a consumer transaction.” Utah Code
§ 13-11-4(1); see also Fell, 2023 UT App 127, ¶ 26 (stating that the
UCSPA “‘shall be construed liberally to promote,’ among other
things, the protection of ‘consumers from suppliers who commit
deceptive and unconscionable sales practices’” (quoting Utah
Code § 13-11-2(2))). While the text of the UCSPA does not
specifically discuss misrepresentations of registration and
bonding status, applicable regulations provide that “[i]t shall be a
deceptive act or practice” to “[m]isrepresent that the supplier has
the particular license, bond, insurance, qualifications, or expertise
that is related to the work to be performed.” Utah Admin. Code
R152-11-5(b)(5). The Pace Parties correctly assert that a debt
collector who makes an affirmative misrepresentation about its
registration and bonding status may have committed a deceptive
act that is actionable under the UCSPA. See Fell, 2023 UT App 127,
¶ 37; see also Meneses, 2023 UT App 117, ¶¶ 18–19. And they assert
that their allegation here—that Link stated, inaccurately, that it
was “a duly organized and existing business operating pursuant

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to the laws of the State of Utah”—is sufficient to state a claim
under the UCSPA. They point out that we must assume the truth
of this allegation and draw all reasonable inferences about that
allegation in their favor. After doing so, we agree with the Pace
Parties that the district court erred by dismissing their UCSPA
claim, at least at this procedural stage.

¶26 As noted above, the UCAA does not contain a private right
of action; instead, it prescribes criminal liability for violations of
its terms. See Utah Code § 12-1-6 (2022). As a result, we have held
that “a UCAA violation is not enough to support a cause of action
under the UCSPA,” because the opposite rule would “have the
same effect as transforming a violation of the UCAA into a
[private] cause of action.” Meneses, 2023 UT App 117, ¶ 16
(quotation simplified). Accordingly, in order to state a viable
claim against a debt collector under the UCSPA, a plaintiff must
“claim something more” than a plain violation of the UCAA. Id.
¶ 18. And we have identified “an affirmative misrepresentation”
as something that could, in appropriate cases, give rise to a valid
claim under the UCSPA. Id.; see also Fell, 2023 UT App 127, ¶ 37.

¶27 Indeed, we have offered recent guidance, in the specific
context of UCAA registration violations, about the type of
misrepresentation that may suffice to state a valid claim under the
UCSPA. We have noted that a plaintiff must allege more than
“mere silence” on the part of the debt collector “about its
licensure,” and instead must demonstrate an “intent to mislead,”
something that could be evidenced by an “affirmative
misrepresentation” about its registration status. See Fell, 2023 UT
App 127, ¶¶ 32, 37; see also Meneses, 2023 UT App 117, ¶ 18. 6 In 5F

6. Both Meneses and Fell were published after the parties in this
case had submitted their briefs. Because we recognized that these
cases may have some application here, we asked the parties for
“simultaneously filed supplemental briefs” on “[w]hether some
(continued…)

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Fell, we held that the plaintiffs had not sufficiently alleged an
affirmative misrepresentation, where the debt collector simply
stated, in its collection complaints, that it had the “same right to
collect” as the prior debt holder and that it was “entitled to a
judgment.” See 2023 UT App 127, ¶¶ 3, 37. And in Meneses, we
held that the plaintiffs had not sufficiently alleged a UCSPA
violation when the debt collector’s only asserted unlawful act was
“its failure to comply with the UCAA’s registration requirement.”
See 2023 UT App 117, ¶ 17.

¶28 But in Meneses, we suggested that the plaintiffs might have
stated a valid cause of action under the UCSPA if the debt
collector had “represent[ed] that it was a debt collector operating
in full compliance with the laws of Utah.” See id. ¶ 19. The Pace
Parties rely heavily on this suggestion, and assert that the
representation Link made here—that it was “a duly organized
and existing business operating pursuant to the laws of the State
of Utah”—is akin to the one we suggested, in Meneses, might
suffice. The Pace Parties read Link’s allegation about “operating
pursuant to the laws of” Utah as a representation that it was in

or all of the issues in this appeal are controlled by” Meneses and
Fell. The Pace Parties accepted our invitation, and timely supplied
supplemental briefing. One day after the deadline for
supplemental briefing had passed, Link filed an “Objection to
Supplemental Briefing of Appellants,” in which Link responded
to the Pace Parties’ supplemental briefing, and provided—as
justification for its late filing—that it had not been “planning to
provide any supplemental briefing on that issue, because [it]
anticipated that [the Pace Parties] were properly motivated to
accurately address it without Link’s input.” The Pace Parties
moved to strike Link’s untimely filed “objection.” While we
acknowledge the Pace Parties’ concern with this late filing,
consideration of Link’s arguments does not affect our resolution
of this appeal, so we deny the Pace Parties’ motion to strike.

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compliance with the UCAA’s requirements. And they assert that
there is little if any daylight between that representation and the
one we referenced in Meneses: that the debt collector is “in full
compliance with the laws of Utah.” Id.

¶29 We agree with the Pace Parties that, at this procedural
stage, dismissal of their UCSPA claim was premature. Link’s
statement might well have been entirely benign, intended to
communicate simply that it was a Utah business entity
created pursuant to the laws of that jurisdiction. But the Pace
Parties’ contrary interpretation of that statement is not
unreasonable, especially given our instruction in Meneses that
similar representations might be actionable, see id., and given the
reality that all reasonable inferences must be drawn in the Pace
Parties’ favor at this point, see Brown v. Division of Water Rights of
Dep’t of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d 747. We caution,
however, that in order to succeed on their UCSPA claim, the Pace
Parties must demonstrate that Link’s representation was
“deceptive,” see Utah Code § 13-11-4, a task that will require them
to demonstrate that Link exhibited “intentional or knowing
behavior,” see Martinez v. Best Buy Co., 2012 UT App 186, ¶ 4, 283
P.3d 521 (stating that “the plain language of the UCSPA
specifically identifies intentional or knowing behavior as an
element of a deceptive act or practice”), cert. denied, 293 P.3d 376
(Utah 2012). As applied here, this means that the Pace Parties will
bear the burden of demonstrating that, when Link alleged that it
was “a duly organized and existing business operating pursuant
to the laws of the State of Utah,” it was intentionally or
knowingly misrepresenting that it was in compliance with the
UCAA.

¶30 The Pace Parties may or may not be able to meet this
burden when the time comes. But at this procedural stage, they
have made allegations sufficient to survive Link’s motion to
dismiss. Accordingly, we reverse the court’s dismissal of the Pace
Parties’ UCSPA claim.

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B. The FDCPA

¶31 The FDCPA forbids any “debt collector” from using “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C. § 1692e; see
also id. § 1692f (“A debt collector may not use unfair or
unconscionable means to collect or attempt to collect any debt.”).
In particular, the FDCPA classifies as “false, deceptive, and
misleading”—and therefore forbids—“[t]he use of any false
representation or deceptive means to collect or attempt to collect
any debt or to obtain information concerning a consumer,” see id.
§ 1692e(10), as well as the making of any “threat to take any action
that cannot legally be taken,” see id. § 1692e(5).

¶32 In this appeal, no party asserts that the meaning of “false,
deceptive, or misleading representation,” as used in the FDCPA,
see id. § 1692e, is materially different from the meaning of
“affirmative misrepresentation,” as used in Meneses and Fell in
construing the UCSPA, see Fell, 2023 UT App 127, ¶¶ 33, 37;
Meneses, 2023 UT App 117, ¶ 18. Rather, at least for purposes of
this appeal, the parties seem to agree that a representation that
gives rise to UCSPA liability would also give rise to liability under
the FDCPA. Cf. Utah Code § 13-11-2(4) (stating that the UCSPA
“shall be construed liberally to,” in part, “make state regulation of
consumer sales practices not inconsistent with the policies of the
Federal Trade Commission Act relating to consumer protection”
(quotation simplified)). Indeed, in the Pace Parties’ principal brief,
they assert that “both statutes prohibit the same practices within
the debt collection context,” at least regarding “deceptive and
unconscionable acts.” And Link does not dispute this allegation
or make any attempt to distinguish the statutes’ prohibitions.

¶33 Therefore, like the parties, we assume for purposes of our
analysis that if Link’s representation—that it was “a duly
organized and existing business operating pursuant to the laws of
the State of Utah”—could lead to UCSPA liability, then it can also

20220841-CA 16 2024 UT App 4
Pace v. Link Debt Recovery

lead to FDCPA liability. Accordingly, we conclude that the district
court improperly dismissed the Pace Parties’ FDCPA claim at this
procedural stage.

CONCLUSION

¶34 For the reasons explained, we conclude that the district
court erred in dismissing the Pace Parties’ claims at this
procedural stage. The Pace Parties have raised a discoverable
factual question about whether Link was properly registered and
bonded at the time it filed the collection complaints. And Link
made an affirmative representation that, when construed in the
light most favorable to the Pace Parties, might give rise to liability
under the UCSPA and the FDCPA. We offer no opinion as to the
ultimate merits of the Pace Parties’ claims; we determine only that
they are sufficient to survive Link’s motion to dismiss. We
therefore reverse the district court’s dismissal order and remand
the case for further proceedings consistent with this opinion.

20220841-CA 17 2024 UT App 4