COLORADO COURT OF APPEALS                                        2016COA116


Court of Appeals No. 15CA0485
City and County of Denver District Court No. 14CV34290
Honorable Herbert L. Stern, III, Judge


Francis Ybarra,

Plaintiff-Appellant,

v.

Greenberg & Sada, P.C., a Colorado corporation,

Defendant-Appellee.


                           JUDGMENT AFFIRMED

                                  Division V
                         Opinion by JUDGE BERGER
                       Román and Bernard, JJ., concur

                         Announced August 11, 2016


Vedra Wali LLC, Daniel Vedra, Ahson Wali, Denver, Colorado, for Plaintiff-
Appellant

Greenberg & Sada, P.C., Alan Greenberg, Englewood, Colorado, for Defendant-
Appellee

Murr Siler & Accomazzo, P.C., Jamie G. Siler, James Eckels, Kimberly L.
Martinez, Denver, Colorado, for Amicus Curiae Colorado Creditor Bar
Association

Cynthia H. Coffman, Attorney General, Nikolai N. Frant, Assistant Attorney
General, Denver, Colorado, for Amicus Curiae Administrator of the Uniform
Consumer Credit Code
¶1    This case presents the novel question whether the Colorado

 Fair Debt Collection Practices Act (CFDCPA), sections 12-14-101 to

 -137, C.R.S. 2015, applies to a subrogation claim for damages

 arising from a tortious act. The answer turns on whether a

 subrogation claim constitutes a “debt” as defined in the CFDCPA.

 We conclude that a subrogation claim is not a “debt” under the

 CFDCPA and therefore affirm the district court’s judgment

 dismissing the complaint of plaintiff, Francis Ybarra.

               I. Relevant Facts and Procedural History

¶2    Ybarra drove her car into a parked car insured by State Farm

 Auto Insurance Company (State Farm). Ybarra was uninsured.

 State Farm paid its insured for the damages to the vehicle, and

 thus it became a subrogee, both by the terms of the State Farm

 insurance policy and Colorado common law, of the insured’s

 negligence claim against Ybarra. Bainbridge, Inc. v. Travelers Cas.

 Co. of Conn., 159 P.3d 748, 751 (Colo. App. 2006) (discussing

 common law subrogation).

¶3    State Farm, in its capacity as subrogee, hired defendant, the

 law firm of Greenberg & Sada, P.C. (law firm), to sue Ybarra for




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 negligence. When Ybarra did not respond to State Farm’s

 complaint, a default judgment was entered against her.

¶4    In a separate suit, which is the subject of this appeal, Ybarra

 sued the law firm, alleging that it violated the CFDCPA’s venue

 provisions as well as prohibitions against making false

 representations and using deceptive means to collect a debt when it

 obtained judgment against her. §§ 12-14-107(1)(b)(I), (1)(k), -

 111(1)(b), C.R.S. 2015. The law firm moved to dismiss Ybarra’s

 claim for failure to state a claim under C.R.C.P. 12(b)(5), asserting

 that a subrogation claim was not a “debt” subject to the CFDCPA.

¶5    The district court granted the law firm’s motion, holding that

 “the Act only applies to consensual consumer transactions, not [to]

 judgments arising from negligence claims.” Ybarra appeals the

 court’s dismissal of her complaint, arguing that the CFDCPA

 applies to subrogation claims arising from a tort.

                         II. Standard of Review

¶6    We review de novo the district court’s grant of a motion to

 dismiss. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.

 2004); Fry v. Lee, 2013 COA 100, ¶ 17. In reviewing a motion to

 dismiss, we accept all matters of material fact in the complaint as


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 true and view the allegations in the light most favorable to the

 plaintiff. Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1259

 (Colo. 2000). Even so, a complaint must “state a claim for relief

 that is plausible on its face.” Warne v. Hall, 2016 CO 50, ¶¶ 1-2

 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).1

            III. The Meaning of “Debt” Under the CFDCPA

¶7    Ybarra argues that the district court misinterpreted the

 CFDCPA in dismissing her claim. We disagree.

¶8    Statutory interpretation is a question of law which we review

 de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189

 (Colo. 2010). In interpreting a statute, our primary goals are to

 discern and give effect to the General Assembly’s intent. Krol v. CF

 & I Steel, 2013 COA 32, ¶ 15. We look first to the statutory

 language, giving words and phrases their plain and ordinary

 meanings according to the rules of grammar and common usage.

 § 2-4-101, C.R.S. 2015. We read the language in the dual contexts

 1 Warne v. Hall, 2016 CO 50, was decided after the district court
 dismissed Ybarra’s complaint. Because the standard for dismissal
 under C.R.C.P. 12(b)(5), as established in Warne, is now the law, we
 must apply it. However, the question presented in this case is the
 purely legal question whether a subrogation claim is a “debt” within
 the meaning of the CFDCPA. Thus, the change in the law effected
 by Warne does not affect the result of this case.

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  of the statute as a whole and the comprehensive statutory scheme,

  giving consistent, harmonious, and sensible effect to all of the

  statute’s language. Krol, ¶ 15. If the statutory language is

  susceptible of more than one reasonable interpretation, it is

  ambiguous, and only then will we apply interpretive aids to

  ascertain the General Assembly’s intent. Vanderborgh v. Krauth,

  2016 COA 27, ¶ 9.

¶9     The CFDCPA defines “debt” as “any obligation or alleged

  obligation of a consumer to pay money arising out of a transaction,

  whether or not such obligation has been reduced to judgment.”

  § 12-14-103(6)(a), C.R.S. 2015. The CFDCPA does not define the

  word “transaction.” Therefore, we must determine the meaning of

  the word “transaction.” But if Ybarra’s obligation to pay money to

  State Farm did not arise from a “transaction,” it is not a “debt”

  subject to the CFDCPA.

¶ 10   To determine the meaning of “transaction,” we may consult

  definitions contained in recognized dictionaries. Union Ins. Co. v.

  Houtz, 883 P.2d 1057, 1068 (Colo. 1994). Black’s Law Dictionary

  offers four definitions of the word “transaction”:




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            1. The act or an instance of conducting
            business or other dealings; esp., the formation,
            performance, or discharge of a contract.
            2. Something performed or carried out; a
            business agreement or exchange.
            3. Any activity involving two or more persons.
            4. . . . An agreement that is intended by the
            parties to prevent or end a dispute and in
            which they make reciprocal concessions.

  Black’s Law Dictionary 1726 (10th ed. 2014).

¶ 11   Ybarra asserts five arguments to support her contention that a

  car accident is a “transaction” under the CFDCPA, and that

  therefore her alleged obligation to pay State Farm is a “debt” within

  the meaning of the CFDCPA.

          A. Remedial Statutes Should Be Construed Broadly

¶ 12   Ybarra first argues that the General Assembly intended courts

  to apply the third (and most expansive) definition of “transaction” in

  Black’s Law Dictionary: “[a]ny activity involving two or more

  persons.” She points out that courts interpreting the CFDCPA’s

  federal counterpart, the Fair Debt Collection Practices Act (FDCPA),

  15 U.S.C. § 1692 (2012), have held that it should “be construed

  liberally in favor of the consumer” to effectuate the FDCPA’s

  purpose of protecting consumers from harassing and abusive debt

  collection practices. Johnson v. Riddle, 305 F.3d 1107, 1117 (10th


                                    5
  Cir. 2002). Because the CFDCPA is based on the FDCPA, Ybarra

  claims that the General Assembly intended for the CFDCPA to apply

  to negligence judgments arising from car accidents. See Udis v.

  Universal Commc’ns Co., 56 P.3d 1177, 1180 (Colo. App. 2002)

  (noting that the CFDCPA is based on the FDCPA).

¶ 13   Following authority from another division of this court and

  federal cases, we reject this argument. We find the reasoning in

  Rector v. City & County of Denver, 122 P.3d 1010 (Colo. App. 2005),

  and the Eleventh Circuit’s decision in Hawthorne v. Mac

  Adjustment, Inc., 140 F.3d 1367 (11th Cir. 1998), persuasive. See

  also Turner v. Cook, 362 F.3d 1219, 1228 (9th Cir. 2004) (following

  Hawthorne).

¶ 14   A variation of the question before us was addressed in Rector.

  The issue in that case was whether late fees assessed for parking

  meter violations constituted “debt” under the CFDCPA. Rector, 122

  P.3d at 1016. In deciding that question, the division addressed

  whether parking meter fees arise out of a “transaction.” The

  division concluded that they did not because regulation of metered

  parking is an exercise of Denver’s police power, as opposed to a

  rendition of a service to consumers, and is therefore outside the


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  scope of a consumer transaction. Id. The division relied on

  Staub v. Harris, 626 F.2d 275, 278 (3d Cir. 1980), which, in

  interpreting the FDCPA, held that “at a minimum, the statute

  contemplates that the debt has arisen as a result of the rendition of

  a service or purchase of property or other item of value.”

¶ 15   We agree with Rector’s interpretation of the word “transaction.”

  Though, as Ybarra correctly argues, Black’s Law Dictionary offers

  one very broad alternative definition of the word “transaction,” the

  word’s primary definition is much more limited: “[t]he act or an

  instance of conducting business or other dealings.” Black’s Law

  Dictionary 1726 (10th ed. 2014). Under Ybarra’s construction of

  “transaction,” any obligation to pay another would be covered by

  the CFDCPA. But, had the legislature intended that the statute

  apply to any obligation to pay another, it would not have limited the

  definition of “debt” to those obligations “arising out of a

  transaction.” § 12-14-103(6)(a); Denver Publ’g. Co. v. Bd. of Cty.

  Comm’rs, 121 P.3d 190, 195 (Colo. 2005) (when construing

  statutory language, the appellate court interprets every word,

  rendering none superfluous).




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¶ 16   The fact that an undefined word in a statute has more than

  one dictionary definition does not necessarily render either the word

  or the statute ambiguous. A division of this court has rejected that

  precise argument, and so do we. Stoesz v. State Farm Mut. Auto.

  Ins. Co., 2015 COA 86, ¶¶ 14-16; see also Miss. Poultry Ass’n v.

  Madigan, 31 F.3d 293, 307 (5th Cir. 1994). As we concluded above,

  the plain language (and context) of the CFDCPA precludes equating

  a “transaction” with “any activity involving two or more persons.”

  Thus we are left with only one reasonable interpretation of the word

  “transaction,” which requires some kind of business dealing.

  Rector, 122 P.3d at 1016.

¶ 17   Ybarra argues that Rector is factually distinguishable from this

  case. That is true. But Rector did address, correctly in our view,

  the meaning of the word “transaction” in the CFDCPA, and that

  analysis strongly supports the district court’s conclusion that a

  subrogation claim is not a “debt” within the meaning of the

  CFDCPA.

¶ 18   Moreover, if the General Assembly disagreed with Rector’s

  interpretation of the word “transaction” under the CFDCPA, it has

  had eleven years to countermand that interpretation by legislative


                                    8
  amendment. Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353,

  360 (Colo. 2003) (“[I]f the legislature disapproves of our

  interpretation, it has the power to amend the statute to make its

  intention clear.”). The fact that the General Assembly has not

  disturbed Rector’s holding should, and does, give us pause to decide

  the meaning of “transaction” differently from the way it was decided

  in Rector.

¶ 19   The Eleventh Circuit’s interpretation of “debt” under the

  FDCPA in Hawthorne further supports our conclusion. In that

  case, the Eleventh Circuit considered almost exactly the question

  now before us: whether a subrogation claim arising from a tort was

  a “debt” under the FDCPA. Relying on Webster’s New Collegiate

  Dictionary (1979) and Webster’s New World Dictionary (2d ed.

  1986), the court concluded that “[t]he ordinary meaning of

  ‘transaction’ necessarily implies some type of business dealing

  between parties.” Hawthorne, 140 F.3d at 1371. Thus,

  “transactions” do not include “damage obligations thrust upon one

  as a result of no more than her own negligence.” Id. We think that

  Hawthorne was correctly decided and we apply it here.




                                     9
¶ 20   We also reject Ybarra’s argument that any reliance on

  Hawthorne is misplaced because that case interpreted the FDCPA,

  which has a different definition of “debt” from that in the CFDCPA.

  Under the FDCPA, a “debt” is “any obligation or alleged obligation of

  a consumer to pay money arising out of a transaction in which the

  money, property, insurance, or services which are the subject of the

  transaction are primarily for personal, family, or household purposes,

  whether or not such obligation has been reduced to judgment.”

  15 U.S.C. § 1692a(5) (emphasis added).

¶ 21   We acknowledge that the state and federal definitions of “debt”

  are not identical. Still, we conclude that those differences do not

  negate the applicability of Hawthorne’s holding that not all

  obligations to pay money are “debts.” Under the FDCPA, only

  personal, family, or household debts are covered, while the

  CFDCPA’s definition of “debt” does not contain this limitation. But

  this difference only limits the FDCPA’s applicability to debts arising

  from certain types of transactions. It does not displace the

  requirement, contained in both the federal and Colorado statutes,

  that the debt must arise from a “transaction.”




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¶ 22   Because a car accident can only be considered a “transaction”

  under a strained interpretation of the CFDCPA, we conclude that a

  subrogation claim arising from a car accident is not a “debt” under

  the CFDCPA. Indian Mountain Metro. Recreation & Park Dist. v. J.P.

  Campbell & Assoc., 921 P.2d 65, 67 (Colo. App. 1996) (“if the

  language of the statute is plain, its meaning clear, and no absurdity

  results, no strained interpretation should be adopted.”).

                        B. Consensual Transaction

¶ 23   Ybarra next contends that the district court erred in holding

  that a debt must arise from a “consensual” transaction to be

  covered under the CFDCPA. We need not consider this argument

  because we have held, above, that a subrogation claim arising from

  tortious activity is not a “transaction” within the meaning of the

  CFDCPA. Thus, it is unnecessary to decide in this case whether the

  transaction must be consensual.

            C. Subrogation of Rights Itself is a “Transaction”

¶ 24   Ybarra next argues that the act of subrogating rights itself is

  the transaction from which the debt arose. She asserts that her

  liability to State Farm only arose once State Farm stepped into the

  shoes of its insured “to protect [its] bottom line.”


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¶ 25   We reject this argument because it is undisputed that absent

  the car accident, Ybarra would have had no obligation to pay the

  insured or State Farm. Furthermore, even if the subrogation claim

  was a “transaction,” that transaction was between the insured and

  the insurer, not one between the Ybarra and the insured.

¶ 26   Ybarra has not cited, and we have not found, any section of

  the CFDCPA or any other authority which supports a conclusion

  that the subrogation of rights itself somehow triggers application of

  the CFDCPA when the underlying event is not itself a transaction,

  and we decline to read additional terms into or modify the statute’s

  plain language. Dubois v. Abrahamson, 214 P.3d 586, 588 (Colo.

  App. 2009).2

                 D. Deference to Agency Advisory Opinion

¶ 27   Ybarra further contends that we should, and the district court

  failed to, defer to the advisory opinion of the Colorado Collection

  Agency Board (Board) which concludes that “insurance subrogation

  claims are ‘debt’ within the meaning of [the CFDCPA].”



  2 We do not exclude the possibility that under different
  circumstances than those presented here, a subrogation claim
  could constitute a “debt” under the CFDCPA.

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¶ 28   “[W]e must give deference to the reasonable interpretations of

  the administrative agencies that are authorized to administer and

  enforce the law.” Tivolino Teller House, Inc. v. Fagan, 926 P.2d

  1208, 1211 (Colo. 1996). Such deference, however, is not

  warranted when the agency’s interpretation is contrary to the plain

  meaning of the statute. Gessler v. Colo. Common Cause, 2014 CO

  44, ¶ 7.

¶ 29   The parties dispute whether the Board qualifies as an

  administrative agency deserving of deference for its interpretations

  of the CFDCPA and whether the advisory opinion is the type of

  agency action that is entitled to deference. But we need not decide

  those questions because even if the Board’s decision was entitled to

  deference, we conclude that its interpretation that subrogation

  claims are debts is not supported by the plain language of the

  CFDCPA.

¶ 30   Relying on various dictionary definitions, the Board’s advisory

  opinion concludes that because “transaction” is a “broad term,” it

  includes torts out of which a subrogation claim arises. In so

  concluding, the opinion rejected the applicability of Hawthorne

  because “[u]nlike the FDCPA, there is nothing in the Act’s definition


                                   13
  of ‘debt’ that requires that the ‘transaction’ involve a contractual or

  consensual arrangement or the purchase or use of goods or

  services.”

¶ 31   But, as we concluded above, the ordinary meaning of

  “transaction” does require “some type of business dealing between

  parties.” Hawthorne, 140 F.3d at 1371. While a court should give

  deference to the agency entrusted by law to enforce a statute, the

  court must, in the end, make its own determination of the legal

  meaning of a statute. Colo. Mining Ass’n v. Bd. of Cty. Comm’rs,

  199 P.3d 718, 731 (Colo. 2009); Williams v. Kunau, 147 P.3d 33, 36

  (Colo. 2006).

¶ 32   For the reasons articulated above, we conclude that the

  Board’s opinion incorrectly determined the meaning of “debt” in the

  CFDCPA and we reject it.

                           E. Legislative History

¶ 33   Ybarra next asserts that the legislative history of the CFDCPA

  demands that the term “debt” be interpreted broadly enough to

  cover obligations arising from car accidents. While the legislative

  history of a statute may illuminate ambiguous text, it is improper to




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  allow legislative history “to muddy clear statutory language.”

  Milner v. Dep’t of Navy, 562 U.S. 562, 572 (2011).

¶ 34   Because we conclude that the Act, by its language, clearly and

  unambiguously does not apply to the type of subrogation claim at

  issue here, we do not address Ybarra’s legislative history argument.

          IV. District Court’s Citation of an Irrelevant Statute

¶ 35   Lastly, Ybarra contends that the district court erred because it

  relied on an irrelevant statute in holding that the CFDCPA does not

  apply to judgments arising from negligence claims.

¶ 36   In its dismissal order, the district court cited the definition of

  “collection agency” under the CFDCPA: “‘Collection agency’ does not

  include . . . [a]ny person while serving or attempting to serve legal

  process on any other person in connection with the judicial

  enforcement of any debt[.]” § 12-14-103(2)(b)(IV).

¶ 37   Ybarra argues that the court erred in concluding, based on

  this definition, that persons attempting to collect judgments are

  exempt under the statute. She asserts that the definition of

  “collection agency” merely exempts process servers and is not a

  blanket exemption for judgments arising from negligence claims.




                                     15
¶ 38   We agree with Ybarra that subsection 103(2)(b)(IV) did not

  exempt the law firm from application of the CFDCPA. But it is not

  clear that the district court relied on the definition of “collection

  agency” in granting the motion to dismiss. Instead, it appears that

  the court relied on Rector and Hawthorne to conclude that the

  CFDCPA applies only to consensual consumer transactions, and

  not judgments arising from negligence claims. But even if the court

  erroneously relied on that subsection of the statute in reaching its

  decision, its reliance was immaterial in view of our analysis and

  disposition.

                               V. Conclusion

¶ 39   We hold that a subrogation claim arising from tortious activity

  is not a “debt” under the CFDCPA and therefore affirm the district

  court’s judgment dismissing Ybarra’s complaint.

       JUDGE ROMÁN and JUDGE BERNARD concur.




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