Fell v. Alco Capital Group

2023 UT App 127

THE UTAH COURT OF APPEALS

GEORGE ROLLAN FELL, KELLY MOLYNEUX, AND BECKY CURTIS,
Appellants,
v.
ALCO CAPITAL GROUP LLC,
Appellee.

Opinion
No. 20210394-CA
Filed October 19, 2023

Third District Court, Salt Lake Department
The Honorable Laura Scott
No. 200901991

Daniel M. Baczynski,
Attorney for Appellants
Brett B. Larsen and Gregory M. Constantino,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUSTICE JILL M. POHLMAN 1 and
SENIOR JUDGE RUSSELL W. BENCH 2 concurred.

ORME, Judge:

¶1 George Rollan Fell, Kelly Molyneux, and Becky Curtis
(collectively, Appellants) challenge the district court’s grant of

1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on this case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).

2. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Fell v. Alco Capital Group LLC

summary judgment in favor of Alco Capital Group LLC (Alco).
The court’s summary judgment ruling resulted in dismissal of
Appellants’ suit, which was premised on their pivotal contention
that Alco engaged in “deceptive” and “unconscionable” acts and
practices in violation of the Utah Consumer Sales Practices Act
(the UCSPA), see generally Utah Code Ann. §§ 13-11-1 to -23
(LexisNexis 2013 & Supp. 2022), 3 by pursuing debt collection
while unlicensed under the Utah Collection Agency Act (the
UCAA), see generally id. §§ 12-1-1 to -11. 4 Appellants contend that
the district court erred in concluding that “in the absence of some
affirmative misrepresentation, . . . simply being not registered
under the UCAA is not a deceptive or unconscionable practice
under the [UCSPA].” We affirm.

BACKGROUND 5

¶2 Alco is a Wisconsin limited liability company with its
principal office in Brookfield, Wisconsin. Alco engages in the

3. Because the applicable provisions of the UCSPA in effect at the
relevant time do not materially differ from those currently in
effect, we cite the current version of the code’s UCSPA provisions
for convenience. Except as stated in note 4, we do likewise with
other provisions of the Utah Code.

4. With the exception of its final section, which authorizes
creditors to recover collection fees in addition to other amounts
owed by a debtor, the UCAA was recently repealed. See Meneses
v. Salander Enters. LLC, 2023 UT App 117, ¶ 3 n.1. For convenience,
we cite the version of the code’s UCAA provisions that was in
effect immediately prior to this repeal.

5. “In reviewing a district court’s grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).

20210394-CA 2 2023 UT App 127
Fell v. Alco Capital Group LLC

acquisition of “portfolios of bad debts from debtors all over the
country, including residents of Utah.” Alco’s collection method
primarily involves “outsourc[ing] those collection activities to
third-party debt collectors in some instances or in this case to
counsel to try to recover those debts through filing lawsuits in the
given jurisdiction.”

¶3 Alco purchased a portfolio of outstanding debts that
included debts owed by Appellants. Between June 2017 and
January 2018, Alco engaged local legal counsel and filed actions
in the appropriate Utah district courts to collect those debts. In its
complaints against Appellants, Alco asserted that it had the “same
right to collect” as the prior debt holder and that Alco was thus
“entitled to a judgment.” Alco ultimately obtained judgments
against Appellants, and after the entry of those judgments, Alco
“sought to enforce the judgments via garnishment proceedings.”
In those cases, Appellants did not argue that Alco’s collection
efforts were barred on the ground that Alco was not licensed
under the UCAA.

¶4 In March 2020, Appellants filed their complaint in this case
(the Complaint), challenging Alco’s alleged deceptive and
unconscionable collection efforts. In the Complaint, Appellants’
primary claim was that Alco’s collection efforts violated the
UCSPA. See Utah Code Ann. §§ 13-11-4, -5 (LexisNexis 2013 &
Supp. 2022). The Complaint described Alco as a “collection
agency, collection bureau, or collection office” that was required
to register and file a bond pursuant to the UCAA prior to
pursuing any collection effort action in Utah. See id. § 12-1-1
(2013). 6

6. Section 1 of the UCAA provided,
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
(continued…)

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Fell v. Alco Capital Group LLC

¶5 Appellants contended that when Alco initiated its
collection actions against Appellants, it “did not disclose that it
did not have the requisite license,” which amounted to an active
misrepresentation of “its ability to enforce its right to collect the
debt.” Appellants reasoned that “Alco’s conduct in filing a debt
collection lawsuit, affirmative representations in its filings
regarding Alco’s right to recovery, and material omissions
regarding its unlicensed status, together constitute a
misrepresentation of its licensure and bonding status” and
constitute a “per se deceptive act for a supplier under the
UCSPA.” See id. §§ 13-11-4, -5 (2013 & Supp. 2022). Appellants
further alleged that “Alco purposefully engaged in these activities
knowingly and intentionally to harm consumers and gain an
advantage over its competitors” and that it “knew or should have
known” about the UCAA licensure requirements.

¶6 Relying on their primary claim, Appellants sought a
“declaration on behalf of [Appellants] that since Alco was acting
unlawfully as an unlicensed collection agency,” it “did not have
legal standing to obtain any judgment in Utah Courts against

account, bill, or other indebtedness, or advertise for
or solicit in print the right to collect or receive
payment for another of any account, bill, or other
indebtedness, unless at the time of conducting the
collection agency, collection bureau, collection
office, or collection business, or of advertising or
soliciting, that person or the person for whom he
may be acting as agent, is registered with the
Division of Corporations and Commercial Code and
has on file a good and sufficient bond as hereinafter
specified.
Utah Code Ann. § 12-1-1 (LexisNexis 2013). Sections 2 and 3 of the
UCAA provided that “[t]he bond shall be for the sum of $10,000,
payable to the state of Utah” and “shall be for the term of one year
from the date thereof, unless the Division of Corporations and
Commercial Code and the person giving the same shall agree on
a longer period.” Id. §§ 12-1-2(1), -3.

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Fell v. Alco Capital Group LLC

[Appellants]” and that its existing judgments should be “declared
(i) void and unenforceable and (ii) Alco should not be entitled to
collect any sums on those judgments or debts related to
[Appellants].” Appellants also asked that Alco “be ordered to
disgorge all sums collected on [all] judgment amounts from
[Appellants] that Alco obtained as a result” of the improper
judgments and that Alco be “enjoined from attempting to collect
any judgment amounts entered improperly against [Appellants]
in its favor while it acted illegally as a collection agency without a
license.” Alternatively, Appellants sought “a declaration that . . .
Alco is not entitled to the assistance of any Utah court to enforce
the principal amount due under any judgment Alco obtained
improperly.” In addition to these requests for relief, Appellants
asserted their entitlement to “statutory damages of $2,000 under
the [UCSPA] for the harm caused by Alco’s unlawful attempts to
collect on a debt.”

¶7 In addition to seeking a declaratory judgment against Alco
for the alleged violation of the UCSPA, Appellants further alleged
that Alco had been unjustly enriched, asserting that “Alco had an
appreciation that it was not entitled to receive the benefits it was
collecting . . . that flow[ed] from the void judgments it improperly
obtained.” On this claim, Appellants contended that Alco
“engaged in deceptive and/or unconscionable acts in violation of
the [UCSPA] and was thereby unjustly enriched under common
law.” In their final claim, Appellants alleged that Alco’s pursuit
of wage garnishments under the circumstances constituted
intrusion upon seclusion. 7

7. Appellants’ claims depend on a pivotal determination
concerning whether Alco’s violation of the UCAA qualifies as
conduct that would trigger civil liability under the UCSPA.
Appellants’ theory comprises something of a hub and spokes,
where the UCSPA violation is the hub and the various civil
liability theories form the spokes. If the hub fails, there is no need
to further consider the other claims that stem from it.
Alternatively, if we were to conclude that the UCAA violation
(continued…)

20210394-CA 5 2023 UT App 127
Fell v. Alco Capital Group LLC

¶8 Following service of the Complaint, Alco removed the case
to the United States District Court for the District of Utah. But
within just a matter of weeks, the case was remanded back to
Utah’s Third District Court.8

¶9 In December 2020, Alco filed its motion for summary
judgment pursuant to rule 56(a) of the Utah Rules of Civil
Procedure seeking to dismiss the Complaint in its entirety. Alco
sought summary judgment on the theory that “all of [Appellants’]
claims are based entirely on Alco’s alleged noncompliance with
the UCAA’s registration and bonding requirements” and because
the UCAA “provides only for criminal penalties for
noncompliance, . . . a violation of the UCAA cannot support a
private right of action in the circumstances of this case.”

¶10 The district court held a hearing on Alco’s motion for
summary judgment, during which Alco conceded that at no time
prior to initiating the collection actions or its pursuit of
garnishment proceedings against Appellants was it licensed with
the Division of Corporations and Commercial Code (the
Division). See Utah Code Ann. § 12-1-1 (LexisNexis 2013)
(requiring a “person” to be “registered with [the Division] and
[have] on file a good and sufficient bond” when engaging in
collection activity). Alco acknowledged that “in theory there
could be circumstances somewhere where a violation of the
UCAA or this registration requirement could support a [UCSPA]
claim if it was coupled with some other kind of wrongful conduct

was sufficient to trigger a violation of the UCSPA, we would then
need to address each radiating claim. As will be explained, the
hub of Appellants’ theories fails, and so we have no need to
consider the spokes.

8. It is unclear from the record why the case was remanded to the
state district court so soon after being removed. Appellants
indicate that Alco “erroneously removed” the case to federal
court, and it appears that Alco stipulated to the remand.

20210394-CA 6 2023 UT App 127
Fell v. Alco Capital Group LLC

other than just the sheer violation of the administrative
requirements to register and post a bond.” But, Alco argued,

there’s no evidence in the record in this case . . . that
Alco made any misrepresentations about their
registration or bonding status. You know there’s not
like a letter somewhere where [Alco] said they were
registered or bonded and they really weren’t.
There’s no evidence that they purposely concealed
that fact from any of [Appellants] or any other
debtors for that matter.

¶11 Alco further argued that “this violation in this case without
something more cannot support those kind of claims, cannot
support a private cause of action in and of itself without
something more, without some other wrongful conduct beyond
the violation itself.” And Alco contended that if the court were to
determine that a violation of the UCAA is sufficient to trigger
liability under the UCSPA, the court would essentially be creating
a private right of action under the UCAA where the Legislature
had intentionally not provided for one, instead having prescribed
only a criminal sanction for a violation. See id. § 12-1-6. Alco again
insisted that “without some other showing, some other evidence
of some other wrongful conduct, . . . these allegations here just
can’t support the private causes of action that [Appellants] have
asserted in the case either under the [UCSPA] or on the common
law theories.”

¶12 In response, Appellants argued that the court should take
notice of the analysis offered in some federal cases relating to
violations of the UCAA, the UCSPA, and the federal Fair Debt
Collection Practices Act (the FDCPA), see 15 U.S.C. §§ 1692 to
16⁠⁠92p. Appellants argued that “[i]f threats to commit an unlawful
⁠

act are deceptive or unconscionable,” as proscribed by the
FDCPA, see generally id. § 1692f, “it has to also be considered that
the unlawful act itself would be deceptive.” But Appellants
concede on appeal that the Complaint does not include a claim
under the FDCPA. Instead, the Complaint’s pivotal contention is

20210394-CA 7 2023 UT App 127
Fell v. Alco Capital Group LLC

the alleged violations of the UCSPA by virtue of the lack of
licensure under the UCAA.

¶13 In the Complaint, Appellants’ principal theory is anchored
to the allegation of Alco’s “deceptive” and “unconscionable” acts
or practices, proscribed by the UCSPA, by reason of Alco’s lack of
licensure. At the summary judgment hearing, Appellants noted
that in this context the terms “deceptive” and “unconscionable”
“are not really well tailored to exact definitions.” Attempting first
to provide meaning to the term “deceptive” by relying on the
definition of the term as used in the criminal context, Appellants
asserted that deceptive acts occur “when a person creates or
confirms by words or conduct [an] impression of law or fact that
is false that the actor does not believe to be true and it’s likely to
affect the judgment of another in a transaction.” See generally Utah
Code Ann. § 76-6-401(1)(a) (LexisNexis Supp. 2022). Appellants
further asserted that deceptive acts also arise “when a person fails
to correct the false impression of law or fact that the actor
previously created or confirmed by words or conduct that is likely
to affect the judgment of another and the actor does not now
believe to be true.” See generally id. § 76-6-401(1)(b). In this regard,
Appellants asserted that Alco’s “filing . . . to collect on a debt
when they could not [legally] collect on the debt, the conduct itself
is a representation, an impression of law or fact that they could
collect on this when they really could not.” Appellants
additionally contended that even though Alco became licensed at
some point after filing its debt collection actions against
Appellants, it “made no subsequent attempts to repair a
potentially deceptive representation.”

¶14 Regarding their theory of unconscionability, Appellants
briefly argued that an act is “unconscionable” if and when “you
know something that’s [oppressive] or unfairly surprises an
innocent party.” Appellants insisted that because “[t]he debt
collection itself was prohibited under the UCAA,” Alco’s
unlawful collection efforts were necessarily deceptive and
unconscionable, even in the absence of any particular
representations by Alco.

20210394-CA 8 2023 UT App 127
Fell v. Alco Capital Group LLC

¶15 At the conclusion of the hearing, the district court ruled
from the bench, later entering a written ruling. The court first
concluded that under the terms of the UCAA, “Alco was required
to be registered and . . . it violated that statute . . . by failing to be
registered and to post a bond.” The court then shifted its
consideration to the pivotal element of the Complaint, namely
whether a debt collector’s violation of the UCAA for failure to be
registered and to file a bond, which by the terms of that act
triggers only a criminal sanction, also establishes civil liability
under the UCSPA if the debt collector pursues a collection action
even “in the absence of some affirmative misrepresentation.”

¶16 The court stated that “it’s clear there’s no private right of
action” for a violation of the UCAA 9 and that if Appellants’ only
claim was a UCAA violation, “that would be the end of the
matter.” But, the court noted, Appellants “have argued that . . .
the pursuit of a lawsuit when [Alco was not] registered constitutes
a deceptive act or practice under the [UCSPA].”

¶17 The court observed that “we don’t have a Utah appellate
case on point.” Because of this, it referenced analogous federal
jurisprudence, mentioning cases involving violations of the
UCAA in connection with claims brought under both the FDCPA
and the UCSPA. The court recognized that “the statutes get at
slightly different conduct and that doesn’t mean, again, a
violation of the UCAA could not constitute a violation of the
[UCSPA].” The court explained:

[If] there were affirmative representations that there
was registration and something similar, perhaps
that could rise to the level, but when I look at 13-11-4
and I look at the types of conduct that’s prohibited,
. . . I think . . . we have a different provision that can
be relied on to bring a violation of the UCAA

9. On appeal, Appellants do not contend that there is a private
right of action under the UCAA.

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Fell v. Alco Capital Group LLC

because under the UCAA you have to be registered
in order to file a lawsuit to collect on the debt[.]

But here in the absence of some affirmative
misrepresentation . . . simply being not registered
under the UCAA is not a deceptive or
unconscionable practice under the [UCSPA] such
that a violation would [form] the basis of a claim
under that statute.

¶18 The court concluded that “[o]btaining judgments on
accounts lawfully owing by the consumer sued and rightfully
owned by Alco” and “[o]btaining and serving Writs of
Garnishment while unregistered under the UCAA, without
anything more, is insufficient to establish a ‘deceptive act or
practice by a supplier’” or an “‘unconscionable act or practice by
a supplier’ under the UCSPA.” Thus, the court ruled that
Appellants “must argue more than a violation of the UCAA to
have a claim under the UCSPA.”

¶19 And because all of Appellants’ “claims and demands for
relief are based entirely on Alco’s alleged failure to register with
the [Division] and file a bond,” the court granted Alco’s motion
for summary judgment and dismissed the Complaint in its
entirety. The court explained that Appellants “may not attempt to
shoehorn a violation of the UCAA, which only has criminal
penalties and which does not provide a private right of action,
into either a violation of the UCSPA or any other State law cause
of action, including a cause of action for unjust enrichment or
intrusion upon seclusion.”

¶20 Appellants now appeal the court’s decision.

ISSUE AND STANDARD OF REVIEW

¶21 Appellants challenge the district court’s grant of summary
judgment in favor of Alco, in particular the court’s determination
that a violation of the UCAA’s licensing and bonding

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Fell v. Alco Capital Group LLC

requirements does not, without more, qualify as a deceptive or
unconscionable act or practice under the UCSPA. Of crucial
importance is whether the court erred in requiring some
affirmative misrepresentation beyond merely pursuing collection
efforts without proper licensure. Appellants argue that
“[w]hether Alco engaged in deceptive collection or
misrepresented its registration and bonding status are questions
of fact which must be left for a jury.” While that may be true in an
appropriate case, there was “no genuine dispute as to any
material fact” in this case about Alco’s offending behavior. See
Utah R. Civ. P. 56(a). The only deception or misrepresentation
claimed was the deception or misrepresentation Appellants assert
was implicit in Alco’s filing collection actions without being
registered or bonded.

¶22 “We review a district court’s grant of summary
judgment for correctness and afford no deference to the
court's legal conclusions.” Turley v. Childs, 2022 UT App 85, ¶ 16,
515 P.3d 942 (quotation simplified). “In reviewing a summary
judgment decision pursuant to Rule 56[(a)] of the Utah Rules of
Civil Procedure, we consider whether the trial court
correctly concluded that no genuine issue of material fact exists
and whether it correctly applied the law.” Woodbury Amsource, Inc.
v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362. And we make our
“own decision on the correctness of summary
judgment, reviewing the same paper record that was before
the trial court to decide whether there are genuine issues of
material fact and whether the moving party is entitled to
judgment as a matter of law.” Bahr v. Imus, 2011 UT 19, ¶ 17, 250
P.3d 56.

ANALYSIS

¶23 The district court noted the then-lack of Utah case law
directly on point. This gap in our jurisprudence likely came about
as the result of cases raising similar claims often being
accompanied by a claimed violation of the FDCPA—the federal
act regarded as a corollary to the UCSPA. See Buhler v. BCG

20210394-CA 11 2023 UT App 127
Fell v. Alco Capital Group LLC

Equities, LLC, No. 2:19-cv-00814-DAK, 2020 WL 888733, at *2–4 (D.
Utah Feb. 24, 2020). Those cases are typically removed to federal
court for consideration of the federal question arising under the
FDCPA claim. The federal court consequently addresses the
pendant UCSPA claim in the same decision. Yet, as correctly
noted by the district court, the FDCPA and the UCSPA “get at
slightly different conduct.” 10 And in the case before us, the
Complaint does not contain a claim under the FDCPA. We now
turn to consider Appellants’ theories and the relationship
between the UCAA and the UCSPA, mindful that under the
UCAA, our Legislature saw fit to impose criminal liability for debt
collection entities that are not registered or bonded but did not see

10. As mentioned by the district court and considered at length by
federal district court judge Kimball in Buhler v. BCG Equities, LLC,
No. 2:19-cv-00814-DAK, 2020 WL 888733 (D. Utah Feb. 24, 2020),
a violation of the UCAA may be sufficient to support a claim
under the FDCPA, but a violation of the UCAA is not per se
sufficient to support a claim under the UCSPA. Id. at *3–4. A key
difference between the FDCPA and the UCSPA is that the FDCPA
proscribes “[t]he threat to take any action that cannot legally be
taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5).
Buhler notes that “the FDCPA expressly prohibits a debt collector
from threatening to take any action that cannot legally be taken or
that is not intended to be taken.” 2020 WL 888733, at *3 (quotation
simplified). Judge Kimball explained,
[A] violation of the UCAA’s registration provision
may provide a basis for finding an FDCPA violation
when accompanied by the filing of a lawsuit to
collect debt. Such a conclusion does not transform a
UCAA violation into a private right of action under
the FDCPA, but rather the alleged UCAA violations
form the essential elements to make out a Section
1692e(5) claim.
Id. at *4.

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Fell v. Alco Capital Group LLC

fit to impose additional penalties for a violation. And, as noted,
the UCAA does not authorize a private right of action. 11

¶24 Turning our attention to the decision before us, a court’s
grant of summary judgment is appropriate “if the moving party
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.” Utah
R. Civ. P. 56(a). In short, “summary judgment is not a dress
rehearsal or practice run; it is the put up or shut up moment in a
lawsuit, when a party must show what evidence it has that would
convince a trier of fact to accept its version of the events.” Hammel
v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)
(quotation simplified). Cf. Drysdale v. Ford Motor Co., 947 P.2d 678,
680 (Utah 1997) (“Litigants must be able to present their cases
fully to the court before judgment can be rendered against them
unless it is obvious from the evidence before the court that the
party opposing judgment can establish no right to recovery.”)
(quotation simplified).

¶25 Appellants’ central claim is derived from the theory that
Alco’s filing of collection actions while in violation of the UCAA
amounts to actionable violations under the UCSPA. Under the

11. Under the UCAA, “[a]ny person, member of a partnership, or
officer of any association or corporation who fails to comply with
any provision of this title is guilty of a class A misdemeanor.”
Utah Code Ann. § 12-1-6 (LexisNexis 2013). Our Legislature did
not additionally impose a civil penalty for noncompliance, but it
knows how to do so when so inclined. For example, under the
Utah Construction Trades Licensing Act, our Legislature not only
imposed licensing requirements but expressly imposed a
meaningful civil sanction for noncompliance. See id. § 58-55-604
(Supp. 2022) (“A contractor . . . may not . . . commence or maintain
any action in any court of the state for collection of compensation
for performing any act for which a license is required by this
chapter without alleging and proving that the licensed contractor
. . . was appropriately licensed when the contract sued upon was
entered into, and when the alleged cause of action arose.”).

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Fell v. Alco Capital Group LLC

UCAA, debt collection entities were required to hold valid
licensure with the Division. See Utah Code Ann. § 12-1-1
(LexisNexis 2013). The UCAA provided that a collection agency
must be both registered and bonded to be licensed. See id. Alco
conceded that it was in violation of the UCAA when it filed the
collection actions against Appellants, which it also openly
acknowledged exposed it to criminal prosecution under the
UCAA. See id. § 12-1-6. Appellants insist that this violation of the
UCAA—the filing of the collection actions while unlicensed—
constitutes behavior that is both “deceptive” and
“unconscionable” under the UCSPA. Before considering each of
these two theories separately, we pause to consider the broader
scope of the UCSPA.

¶26 By its terms, the UCSPA “shall be construed liberally to
promote,” among other things, the protection of “consumers from
suppliers who commit deceptive and unconscionable sales
practices.” Id. § 13-11-2(2). While it is not obvious that a debt
collector who commences collection actions is a “supplier”
engaged in a sales practice, Appellants attempt to bolster their
position by relying on the “substantive rules . . . adopted by the
Director of the Division of Consumer Protection” for the purpose
of “promot[ing]” the “purposes and policies” of the UCSPA. See
Utah Admin. Code R152-11-1(A). Appellants cite rule
152-11-5(B)(5) of the Administrative Code, which states,

It shall be a deceptive act or practice in connection
with a consumer transaction involving [services not
involving repairs, inspections, or other similar
services] for a supplier to: . . . Misrepresent that the
supplier has the particular license, bond, insurance,
qualifications, or expertise that is related to the work
to be performed.

¶27 Appellants contend that Alco’s debt collection efforts while
in violation of the UCAA are sufficient to trigger liability under
the UCSPA, although they pay scant attention to the threshold
questions regarding how a collection agency would qualify as a

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Fell v. Alco Capital Group LLC

“supplier” or how debt collection—as opposed to the extension of
consumer credit—would qualify as a “consumer transaction.” See
Sexton v. Poulsen & Skousen PC, 372 F. Supp. 3d 1307, 1320 (D. Utah
2019); Utah Code Ann. § 13-11-3(2), (6) (LexisNexis 2013). That
said, there is no real dispute between the parties concerning
whether efforts to collect an unpaid consumer loan would qualify
as a “consumer transaction” under the UCSPA. See Utah Code
Ann. § 13-11-3(2). But less obvious is the question of whether a
collection agency qualifies as a “supplier.” The UCSPA provides
that “‘Supplier’ means a seller, lessor, assignor, offeror, broker, or
other person who regularly solicits, engages in, or enforces
consumer transactions, whether or not he deals directly with the
consumer.” Id. § 13-11-3(6).

¶28 In some cases, a party’s status as a supplier is more
obvious, such as when it engages in the sale of merchandise to
consumers. But here, Alco is in the business of collecting debts it
has purchased not from consumers but from lenders. Under the
UCSPA’s “expansive definition,” a Utah federal district court
judge has concluded that “a party does not have to supply a good
or service to a consumer to qualify as a supplier.” Sexton, 372 F.
Supp. 3d at 1320. Instead, “[a] party that regularly enforces
consumer transactions is also deemed to be a supplier” under the
definitional scheme of the UCSPA. Id. Thus, entities “that
regularly collect debts incurred from consumer transactions are
suppliers because they enforce those transactions.” Id. Here, Alco
engaged in the act or practice of collecting outstanding debts. Alco
seems to accept the conclusion reached in Sexton, and consistent
with the parties’ briefing, we assume, without deciding, that Alco
may be regarded as a supplier for purposes of the UCSPA.

¶29 Appellants raise two similar yet distinct theories regarding
Alco’s alleged violations of the UCSPA. First, they contend that
Alco’s actions in suing them without being licensed under the
UCAA qualify as deceptive acts or practices. Second, they assert
that Alco’s actions in suing them without being licensed under the
UCAA qualify as unconscionable acts or practices. We now
consider these distinct UCSPA theories—deception and
unconscionability—in turn.

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Fell v. Alco Capital Group LLC

I. Deceptive Act or Practice

¶30 First, we consider Appellants’ theory that Alco’s actions
qualify as deceptive acts or practices. Under section 13-11-4 of the
UCSPA, “a supplier commits a deceptive act or practice if the
supplier knowingly or intentionally” commits any number of
enumerated acts. See Utah Code Ann. § 13-11-4(2) (LexisNexis
Supp. 2022). And any such act violates the UCSPA regardless of
“whether it occurs before, during, or after” the relevant consumer
transaction. See id. § 13-11-4(1).

¶31 The Complaint alleged that “Alco’s conduct in filing a debt
collection lawsuit, affirmative representations in its filings
regarding Alco’s right to recovery, and material omissions
regarding its unlicensed status, together constitute a
misrepresentation of its licensure and bonding status.” Although
none of the acts cataloged in section 13-11-4(2) of the UCSPA
expressly implicate Appellants’ theory in this case, see id.
§ 13-11-4(2)(a)–(z), Appellants rely on a regulation promulgated
by the Director of the Division of Consumer Protection for the
proposition that

[i]t shall be a deceptive act or practice in connection
with a consumer transaction involving [services
other than repairs, inspections, or other similar
services] 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) (emphasis added). 12 Thus,
under Appellants’ theory, they must demonstrate that Alco

12. Section 13-11-8(2) of the UCSPA provides that “[t]he enforcing
authority shall adopt substantive rules that prohibit with
specificity acts or practices that violate Section 13-11-4 and
appropriate procedural rules.” Rule 152-11-1(A) of the Utah
(continued…)

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Fell v. Alco Capital Group LLC

knowingly or intentionally misrepresented its licensure. “The
plain language of the UCSPA specifically identifies intentional or
knowing behavior as an element of a deceptive act or practice.”
See Martinez v. Best Buy Co., 2012 UT App 186, ¶ 4, 283 P.3d 521,
cert. denied, 293 P.3d 376 (Utah 2012).

¶32 Buhler v. BCG Equities, LLC, No. 2:19-cv-00814-DAK, 2020
WL 888733 (D. Utah Feb. 24, 2020), is persuasive on this issue. In
that case, Judge Kimball noted that “it may be a violation of the
UCSPA if a debt collector affirmatively misrepresented its
registration status or evidence is presented that an agency
concealed its registration status with knowledge or intent to
deceive a debtor,” but “affirmative statements regarding . . .
registration or bond status, or . . . intentionally or knowingly
ignor[ing] the UCAA’s registration requirements to mislead,
deceive, or gain an advantage over debtors” are required for a
UCSPA claim. Id. at *5. Thus, mere silence about its licensure,
without showing the requisite intent to mislead, does not
constitute a knowing or intentional misrepresentation.

¶33 Looking at this case through the lens of Buhler, it is
undisputed that Alco owned Appellants’ outstanding debts and
that the debts were due and owing. It is further undisputed that
Alco, as the valid debt owner, pursued collection actions against
Appellants, received judgments for the outstanding debts, and
attempted to collect on those judgments via garnishment
actions—all while unlicensed under the UCAA. Concerning the
collection actions against Appellants, it is not alleged in the
Complaint or before the district court that Alco sent collection
letters regarding the debts wherein it claimed to be properly
licensed under the UCAA. Nor at any point in this litigation have
Appellants alleged that Alco made any affirmative
misrepresentations about its licensure. Instead, Appellants base
their argument on the contention that Alco’s UCAA violation, in

Administrative Code memorializes that “[t]hese substantive rules
are adopted by the Director of the Division of Consumer
Protection pursuant to [the UCSPA].”

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Fell v. Alco Capital Group LLC

connection with its filing of the collection actions, amounted to a
knowing misrepresentation made by “material omission, where
there exists a duty to speak.” But they have not identified any
evidence that Alco “concealed its registration status with
knowledge or intent to deceive” Appellants. See id. And they have
not met their burden on appeal to demonstrate the origin or extent
of this claimed “duty to speak” on the part of Alco. See Utah R.
App. P. 24(a)(8).

II. Unconscionable Act or Practice

¶34 We next consider Appellants’ theory regarding Alco’s
alleged unconscionable act or practice under the UCSPA. See Utah
Code Ann. § 13-11-5 (LexisNexis 2013). Section 13-11-5 dictates,
“The unconscionability of an act or practice is a question of law
for the court” and “[i]n determining whether an act or practice is
unconscionable, the court shall consider circumstances which the
supplier knew or had reason to know.” Id. § 13-11-5(2), (3). The
question of unconscionability is a question of law because it “does
not require proof of specific intent but can be found by
considering circumstances which the supplier knew or had reason
to know.” Gallegos v. LVNV Funding LLC, 169 F. Supp. 3d 1235,
1244 (D. Utah 2016) (quotation simplified). As stated in Black’s
Law Dictionary, unconscionability generally is the manifestation
of “[e]xtreme unfairness.” Unconscionability, Black’s Law
Dictionary (11th ed. 2019). Thus, to succeed on a claim alleging an
unconscionable act or practice, a party’s complaint may not
merely allege the same conduct that is at issue in a claim for
deceptive conduct—more is required. See Chadwick v. Bonneville
Billing & Collections, Inc., No. 1:20-CV-132-TS, 2021 WL 1140206,
at *4 (D. Utah Mar. 25, 2021) (dismissing the plaintiff’s claim
because he “simply repackaged the allegedly deceptive conduct
and called it unconscionable”) (quotation simplified). And this is
essentially what Appellants have done here.

¶35 The course of events culminating in this litigation began
when Appellants entered into a debt collection agreement with
the previous debt holder. It continued by Alco purchasing
Appellants’ debts from the prior holder. As previously noted,

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Fell v. Alco Capital Group LLC

Appellants do not dispute the validity of the debts, that the debts
went unpaid, or the amounts due. After acquiring the debts, Alco
pursued collection actions in the appropriate courts. Appellants
argued that the hallmarks of unconscionability are unfair surprise
and oppression. See Resource Mgmt. Co. v. Weston Ranch & Livestock
Co., 706 P.2d 1028, 1041 (Utah 1985) (“[A] court must assess the
circumstances of each particular case in light of the twofold
purpose of the doctrine, prevention of oppression and of unfair
surprise.”). But the filing of a collection action concerning an
outstanding debt does not unfairly surprise or oppress the
indebted party. Appellants nonetheless insist that Alco’s violation
of the UCAA’s registration and bonding requirements rendered
Alco’s collection actions necessarily unconscionable.

¶36 Again, we are not persuaded. Even though Alco was not in
compliance with the UCAA’s licensing requirements, its pursuit
of otherwise appropriate collection actions does not obviously
qualify as an unconscionable practice under the UCSPA. 13 As
noted, Appellants bear the burden of persuasion on appeal, and
they have not persuaded us that Alco’s mere lack of licensure
renders its otherwise lawful collection efforts an unconscionable
practice under the UCSPA.

13. We addressed the idea of unconscionability regarding
commercial business practices in the context of section 13-11-5 of
the UCSPA in Stokes v. TLCAS, LLC, 2015 UT App 98, 348 P.3d 739,
cert. denied, 362 P.3d 1255 (Utah 2015). There, we affirmed the
district court’s conclusion that the appellant had engaged in
unconscionable business practices based on the district court’s
findings that the defendant had “forg[ed] the Application for Title
and then submitt[ed] the forged document to the DMV in order
to procure a title showing itself as a lienholder.” Id. ¶ 21. Such
egregious behavior is well beyond anything Appellants alleged
that Alco had done here.

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Fell v. Alco Capital Group LLC

CONCLUSION

¶37 The district court correctly concluded that without some
showing of an affirmative misrepresentation, Alco’s violation of
the UCAA did not constitute a violation of the UCSPA.
Appellants have not demonstrated that silence about Alco’s lack
of licensure can be deemed a knowing or intentional
misrepresentation under the UCSPA, or that its collection efforts
in the absence of such licensure are unconscionable. 14

¶38 Affirmed. 15

14. Another panel of this court recently reached much the same
conclusion in another case raising many of the same issues. See
Meneses v. Salander Enters. LLC, 2023 UT App 117.

15. Appellants’ other claims, which did not receive the same
attention in briefing and went largely unargued at oral argument,
are wholly dependent on the UCSPA claim. Because the UCSPA
claim fails, the other claims do not require further consideration.
See supra note 7.

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