FDCPA | 15 U.S.C. § 1692e | 9th Cir. No. 15-17383 (893 F.3d 680)
The Ninth Circuit narrows Ho v. ReconTrust and confirms that collecting delinquent HOA assessments through Arizona’s judicial-foreclosure process is ‘debt collection’ subject to the FDCPA.
Last updated July 1, 2026. Case: McNair v. Maxwell & Morgan, PC; 893 F.3d 680 (9th Cir. 2018) (No. 15-17383); D. Ariz. No. 2:14-cv-00869-PHX-DGC (David G. Campbell, District Judge).
Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.
The rule in one sentence
Collecting delinquent homeowner-association assessments through a judicial foreclosure that permits deficiency judgments constitutes “debt collection” under the FDCPA, distinguishing Ho v. ReconTrust Co.; and a debt collector’s filing of a writ of special execution that implicitly represents unapproved “accruing” attorneys’ fees as already court-approved falsely states the legal status of the debt in violation of 15 U.S.C. § 1692e(2)(A). The Ninth Circuit reversed summary judgment for the defendants on that claim and remanded for a determination of damages, while affirming the remaining claims in a concurrently filed memorandum disposition.
Case Participants
Neutral Parties
- Martha A. McNair (Appellant)
Homeowner in Gilbert, Arizona within the Neely Commons Community Association; plaintiff who sued the collection law firm under the FDCPA. - Maxwell & Morgan PC (Appellee)
Arizona professional corporation; the HOA collection law firm that represented the Neely Commons Community Association in collecting McNair’s assessment debt. - Charles E. Maxwell (Appellee)
Principal of Maxwell & Morgan PC; named defendant-appellee (husband). - Lisa Maxwell (Appellee)
Named defendant-appellee (wife of Charles E. Maxwell), joined for marital-community purposes. - W. William Nikolaus (Appellee)
Principal of Maxwell & Morgan PC; named defendant-appellee (husband). - Leslie Nikolaus (Appellee)
Named defendant-appellee (wife of W. William Nikolaus), joined for marital-community purposes. - Neely Commons Community Association (Party)
The homeowners association whose delinquent assessments were at issue; the firm’s client, not a named party to the appeal. - Douglas C. Wigley (Counsel)
Dessaules Law Group
Counsel for Plaintiff-Appellant Martha McNair (argued); Phoenix, Arizona. - Jonathan A. Dessaules (Counsel)
Dessaules Law Group
Counsel for Plaintiff-Appellant Martha McNair; Phoenix, Arizona. - Robert Travis Campbell (Counsel)
Simmonds & Narita LLP
Counsel for Defendants-Appellees (argued); San Francisco, California. - Jeffrey A. Topor (Counsel)
Simmonds & Narita LLP
Counsel for Defendants-Appellees; San Francisco, California. - Tomio B. Narita (Counsel)
Simmonds & Narita LLP
Counsel for Defendants-Appellees; San Francisco, California. - Janet Bond Arterton (Judge)
U.S. District Judge for the District of Connecticut, sitting by designation; authored the opinion. - Jay S. Bybee (Judge)
U.S. Circuit Judge, Ninth Circuit; randomly drawn to the panel and joined the opinion. - Michelle T. Friedland (Judge)
U.S. Circuit Judge, Ninth Circuit; joined the opinion. - David G. Campbell (Judge)
U.S. District Judge for the District of Arizona who granted summary judgment to the defendants below.
What happened and why it matters
Martha McNair bought a home in Gilbert, Arizona in 2004 that was part of the Neely Commons Community Association, obligating her under a recorded declaration of covenants, conditions, and restrictions (CC&Rs) to pay an annual assessment in monthly installments. After she fell behind, the law firm Maxwell & Morgan P.C. — retained by the Association — pursued her through a series of collection lawsuits, a stipulated judgment, and ultimately a judicial foreclosure that sold her home. McNair then sued the firm and its principals under the federal Fair Debt Collection Practices Act (FDCPA), alleging they misrepresented the amount she owed and sought attorneys’ fees to which they were not entitled. The district court granted summary judgment to the defendants, holding most claims time-barred and rejecting the timely claims — reasoning in part that pursuing a foreclosure was not “debt collection” and that the state court had implicitly approved the fees. The Ninth Circuit affirmed in part and reversed in part. Distinguishing Ho v. ReconTrust Co. (a non-judicial foreclosure case), the panel held that collecting HOA assessments through a judicial foreclosure that allows deficiency judgments is “debt collection” subject to the FDCPA. It further held that the firm’s writ of special execution violated 15 U.S.C. § 1692e by falsely representing the legal status of $1,597.50 in “accruing” attorneys’ fees as court-approved when no court had yet approved them. The panel remanded for a determination of statutory and any actual damages, and a concurrently filed memorandum disposition affirmed the remaining, largely untimely claims.
The panel addressed the two independent grounds on which the district court had granted summary judgment. First, the district court had held that the defendants were not engaged in “debt collection” because the writ was filed to foreclose on a lien. The Ninth Circuit rejected that reasoning as irreconcilable with the statutory text. Under 15 U.S.C. § 1692a(5), a “debt” is an obligation to pay money arising out of a transaction primarily for personal, family, or household purposes, and under § 1692a(6) a “debt collector” is anyone who regularly collects debts owed to another. McNair’s obligation arose from unpaid homeowner-association assessments on her residence, so it plainly qualified as consumer debt, and the firm plainly qualified as a debt collector. The court cited Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984 (9th Cir. 2017), and Heintz v. Jenkins, 514 U.S. 291 (1995), for the settled rule that attorneys who regularly engage in consumer-debt collection are covered by the Act even when that activity consists of litigation.
The court then distinguished Ho v. ReconTrust Co., NA, 858 F.3d 568 (9th Cir. 2017), on which the defendants relied. Ho held that a trustee facilitating a non-judicial foreclosure was not collecting a “debt” because, under California law, such a foreclosure cannot yield a deficiency judgment and thus extinguishes the entire debt regardless of the sale price — the object being to retake and resell the security, not to collect money from the borrower. Here, by contrast, the defendants pursued a judicial foreclosure under a scheme that, in many cases, permits deficiency judgments, citing A.R.S. §§ 33-727(A) and 33-729(B)-(C). That difference placed the firm’s conduct squarely within the FDCPA’s definition of debt collection.
Second, the district court had held, in the alternative, that the writ did not violate the Act because the Maricopa County Superior Court had implicitly approved the claimed fees by issuing the writ and later rejecting McNair’s challenges. The panel found this analysis failed to ask the right question: whether the defendants were legally entitled to claim the fees at the time they applied for the writ. The FDCPA bars any false or misleading representation of the character, amount, or legal status of a debt, 15 U.S.C. § 1692e(2)(A). Under Arizona Rule of Civil Procedure 54(g), post-judgment attorneys’ fees must be requested by motion, and when the November 5, 2013 writ was filed, no court had yet approved the quantification of the $1,597.50 in “accruing” fees. By listing those fees as “now … due,” the writ falsely represented that they had already been judicially approved. The court cited Woliansky v. Miller and Costa v. Maxwell & Morgan PC for the point that fee amounts are set by the court’s discretion. Because the district court had not reached damages, the panel remanded for a determination of statutory and, if applicable, actual damages under 15 U.S.C. § 1692k, noting McNair might have suffered no actual damages given the Superior Court’s later approval of the fees.
This published Ninth Circuit decision is significant for homeowners, associations, and the law firms that collect HOA debt because it confirms that the FDCPA applies to judicial-foreclosure collection of delinquent assessments. Many collectors had read Ho v. ReconTrust to mean that any foreclosure is outside the Act. McNair narrows Ho to its facts: the exemption turns on whether the foreclosure scheme can produce a deficiency judgment. Because Arizona’s judicial-foreclosure process can, a firm that collects assessments through it is a “debt collector” pursuing a “debt” and must comply with the FDCPA’s prohibitions on false or misleading representations.
The decision also draws a practical line for how collectors may present attorneys’ fees in enforcement papers. Listing “accruing” fees as presently due in a writ of special execution — before any court has approved that amount under Arizona Rule 54(g) — can be an actionable misrepresentation of the debt’s legal status, even if a court later blesses the same fees. For homeowners, McNair confirms a federal remedy (including statutory damages) against overreaching collection conduct; for associations and their counsel, it is a reminder to secure judicial approval before characterizing post-judgment fees as owed. The Supreme Court denied certiorari in 2019, leaving the ruling in force within the Ninth Circuit.
Step-by-step litigation record
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Opinion
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
FAQ
What was McNair v. Maxwell & Morgan, PC about?
Martha McNair, a Gilbert, Arizona homeowner, sued the law firm Maxwell & Morgan P.C. and its principals under the Fair Debt Collection Practices Act (FDCPA). The firm had collected delinquent homeowner-association assessments she owed the Neely Commons Community Association, ultimately foreclosing on and selling her home. McNair alleged the firm misrepresented the amount of her debt and sought attorneys’ fees to which it was not entitled.
Does the FDCPA apply to collecting HOA assessments through foreclosure?
Yes, when the foreclosure is judicial and can allow a deficiency judgment. The Ninth Circuit held that the firm’s effort to collect HOA fees through Arizona’s judicial-foreclosure process was “debt collection” under the FDCPA. It distinguished Ho v. ReconTrust Co., which had exempted non-judicial foreclosures because, under the law there, such foreclosures extinguish the entire debt and cannot produce a deficiency judgment.
Why did the firm’s writ of special execution violate the FDCPA?
The November 2013 writ listed $1,597.50 in “accruing” attorneys’ fees as “now … due,” implying a court had already approved that amount. Under Arizona Rule of Civil Procedure 54(g), post-judgment fees must be requested by motion, and no court had yet approved those fees when the writ was filed. That falsely represented the legal status of the debt in violation of 15 U.S.C. § 1692e(2)(A).
What did the Ninth Circuit ultimately decide?
The panel affirmed in part and reversed in part. In a concurrent memorandum disposition it affirmed that most of McNair’s claims were untimely and rejected one timely claim. In the published opinion it reversed summary judgment on her claim about the misrepresented fees, held the FDCPA applied, and remanded to the district court to determine statutory and any actual damages under 15 U.S.C. § 1692k.
Was McNair still liable for the fees, and did she win money?
The Superior Court later approved the attorneys’ fees, so McNair may not have suffered actual damages from the misrepresentation. The Ninth Circuit did not award damages itself; it remanded so the district court could determine what statutory and, if applicable, actual damages she is entitled to. The FDCPA allows statutory damages even without proven actual loss.
Is this decision binding, and what happened after?
Yes. The opinion was published (“FOR PUBLICATION,” 893 F.3d 680), making it precedential within the Ninth Circuit. The defendants sought U.S. Supreme Court review, but certiorari was denied in 2019 (139 S. Ct. 1375), leaving the ruling intact. It is a leading authority on the FDCPA’s reach over judicial-foreclosure collection of HOA debt.
Case Dossier
This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.
Case Summary
| Case ID / citation | 893 F.3d 680 (9th Cir. 2018) (No. 15-17383) |
|---|---|
| Court / tribunal | Federal Court |
| Decision / key date | June 25, 2018 |
| Judge / panel | Janet Bond Arterton (opinion author, D. Conn., sitting by designation), Jay S. Bybee, Michelle T. Friedland |
| Parties | Martha A. McNair (Plaintiff-Appellant, a Gilbert homeowner) v. Maxwell & Morgan PC and its principals Charles E. Maxwell and W. William Nikolaus (Defendants-Appellees, the HOA collection law firm for the Neely Commons Community Association). |
| Governing law |
|
| Topics | fdcpaassessmentsforeclosureattorneys-feeslienscc-and-rs |
| Outcome / holding | Collecting delinquent homeowner-association assessments through a judicial foreclosure that permits deficiency judgments constitutes “debt collection” under the FDCPA, distinguishing Ho v. ReconTrust Co.; and a debt collector’s filing of a writ of special execution that implicitly represents unapproved “accruing” attorneys’ fees as already court-approved falsely states the legal status of the debt in violation of 15 U.S.C. § 1692e(2)(A). The Ninth Circuit reversed summary judgment for the defendants on that claim and remanded for a determination of damages, while affirming the remaining claims in a concurrently filed memorandum disposition. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Uploaded source package | 1 PDF |
|---|---|
| Step-by-step docket roadmap | 10 roadmap entries |
| Video overview | No video embed currently configured |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Curated download aliases | 1 download link |
Key Issues & Findings
Martha McNair bought a home in Gilbert, Arizona in 2004 that was part of the Neely Commons Community Association, obligating her under a recorded declaration of covenants, conditions, and restrictions (CC&Rs) to pay an annual assessment in monthly installments. After she fell behind, the law firm Maxwell & Morgan P.C. — retained by the Association — pursued her through a series of collection lawsuits, a stipulated judgment, and ultimately a judicial foreclosure that sold her home. McNair then sued the firm and its principals under the federal Fair Debt Collection Practices Act (FDCPA), alleging they misrepresented the amount she owed and sought attorneys’ fees to which they were not entitled. The district court granted summary judgment to the defendants, holding most claims time-barred and rejecting the timely claims — reasoning in part that pursuing a foreclosure was not “debt collection” and that the state court had implicitly approved the fees. The Ninth Circuit affirmed in part and reversed in part. Distinguishing Ho v. ReconTrust Co. (a non-judicial foreclosure case), the panel held that collecting HOA assessments through a judicial foreclosure that allows deficiency judgments is “debt collection” subject to the FDCPA. It further held that the firm’s writ of special execution violated 15 U.S.C. § 1692e by falsely representing the legal status of $1,597.50 in “accruing” attorneys’ fees as court-approved when no court had yet approved them. The panel remanded for a determination of statutory and any actual damages, and a concurrently filed memorandum disposition affirmed the remaining, largely untimely claims.
The panel addressed the two independent grounds on which the district court had granted summary judgment. First, the district court had held that the defendants were not engaged in “debt collection” because the writ was filed to foreclose on a lien. The Ninth Circuit rejected that reasoning as irreconcilable with the statutory text. Under 15 U.S.C. § 1692a(5), a “debt” is an obligation to pay money arising out of a transaction primarily for personal, family, or household purposes, and under § 1692a(6) a “debt collector” is anyone who regularly collects debts owed to another. McNair’s obligation arose from unpaid homeowner-association assessments on her residence, so it plainly qualified as consumer debt, and the firm plainly qualified as a debt collector. The court cited Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984 (9th Cir. 2017), and Heintz v. Jenkins, 514 U.S. 291 (1995), for the settled rule that attorneys who regularly engage in consumer-debt collection are covered by the Act even when that activity consists of litigation.
The court then distinguished Ho v. ReconTrust Co., NA, 858 F.3d 568 (9th Cir. 2017), on which the defendants relied. Ho held that a trustee facilitating a non-judicial foreclosure was not collecting a “debt” because, under California law, such a foreclosure cannot yield a deficiency judgment and thus extinguishes the entire debt regardless of the sale price — the object being to retake and resell the security, not to collect money from the borrower. Here, by contrast, the defendants pursued a judicial foreclosure under a scheme that, in many cases, permits deficiency judgments, citing A.R.S. §§ 33-727(A) and 33-729(B)-(C). That difference placed the firm’s conduct squarely within the FDCPA’s definition of debt collection.
Second, the district court had held, in the alternative, that the writ did not violate the Act because the Maricopa County Superior Court had implicitly approved the claimed fees by issuing the writ and later rejecting McNair’s challenges. The panel found this analysis failed to ask the right question: whether the defendants were legally entitled to claim the fees at the time they applied for the writ. The FDCPA bars any false or misleading representation of the character, amount, or legal status of a debt, 15 U.S.C. § 1692e(2)(A). Under Arizona Rule of Civil Procedure 54(g), post-judgment attorneys’ fees must be requested by motion, and when the November 5, 2013 writ was filed, no court had yet approved the quantification of the $1,597.50 in “accruing” fees. By listing those fees as “now … due,” the writ falsely represented that they had already been judicially approved. The court cited Woliansky v. Miller and Costa v. Maxwell & Morgan PC for the point that fee amounts are set by the court’s discretion. Because the district court had not reached damages, the panel remanded for a determination of statutory and, if applicable, actual damages under 15 U.S.C. § 1692k, noting McNair might have suffered no actual damages given the Superior Court’s later approval of the fees.
This published Ninth Circuit decision is significant for homeowners, associations, and the law firms that collect HOA debt because it confirms that the FDCPA applies to judicial-foreclosure collection of delinquent assessments. Many collectors had read Ho v. ReconTrust to mean that any foreclosure is outside the Act. McNair narrows Ho to its facts: the exemption turns on whether the foreclosure scheme can produce a deficiency judgment. Because Arizona’s judicial-foreclosure process can, a firm that collects assessments through it is a “debt collector” pursuing a “debt” and must comply with the FDCPA’s prohibitions on false or misleading representations.
The decision also draws a practical line for how collectors may present attorneys’ fees in enforcement papers. Listing “accruing” fees as presently due in a writ of special execution — before any court has approved that amount under Arizona Rule 54(g) — can be an actionable misrepresentation of the debt’s legal status, even if a court later blesses the same fees. For homeowners, McNair confirms a federal remedy (including statutory damages) against overreaching collection conduct; for associations and their counsel, it is a reminder to secure judicial approval before characterizing post-judgment fees as owed. The Supreme Court denied certiorari in 2019, leaving the ruling in force within the Ninth Circuit.