Eleventh Circuit Holds that Voicemails Are “Communications” and Clarifies “Meaningful Disclosure” Under the FDCPA

By:  Diana M. Eng and Paul Messina, Jr.

In Stacey Hart v. Credit Control, LLC, No. 16-17126 (11th Cir. Sept. 22, 2017), the United States Court of Appeals for the Eleventh Circuit clarified two significant definitions under the Fair Debt Collection Practices Act (“FDCPA”), one of which was a novel issue for the Court.  First, the Eleventh Circuit ruled that the first voicemail that Credit Control LLC (“Credit Control”) left for Stacey Hart (“Hart”) qualified as a “communication” within the meaning of 15 U.S.C. § 1692a(2).  Because the voicemail was the initial communication between the parties, Credit Control had to provide the required disclosures under 15 U.S.C. § 1692e(11), commonly known as the “mini Miranda” warning.

Second, the Eleventh Circuit determined the novel issue of what constitutes a “meaningful disclosure” under the FDCPA by ruling that an individual caller is not required to disclose his/her identity as long the caller discloses that the call is being made on behalf of a debt collection company and the debtor collection company’s name.

Click here for the complete alert.

District Court of New Jersey Holds No Duty Under FDCPA to Warn of Tax Consequences for Debt Settlement

By: Jonathan M. Robbin and Kyle E. Vellutato

In a case of first impression in the Third Circuit, Vincent Carieri v. Midland Credit Management, Inc., No. 17-0009 (D.N.J. June 26, 2017), the District Court of New Jersey held that that a debt collector does not have a duty to notify a debtor of potential tax consequences for settling a debt at a discount under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).

As satisfaction for a debt in the amount of $4,491.47, Midland Credit Management, Inc. (“MCMI”) sent a notice to Carieri offering various debt settlement payment options resulting in savings from continued payments under the terms of the loan (the “Notice”).  Specifically, the Notice offered to extinguish the debt if a discounted total payoff was received by a certain date, resulting in savings of 40 percent (or $1,796.58). Carieri’s complaint alleged that the Notice violated the FDCPA by failing to inform the debtor of the potential tax consequences posed by the savings from the discounted payoff of the debt.[1]

In considering MCMI’s motion for judgment on the pleadings, the Court turned to other federal courts including the Second Circuit for guidance on whether the FDCPA expands a debt collector’s duties with regard to notifying a debtor of tax consequences of debt settlement. Specifically, the Court held that as in Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191 (2d Cir. 2015), the Notice did not violate the FDCPA, even though the letter did not warn of potential tax consequences.

The Court granted MCMI’s dispositive motion, and confirmed that a debt collector’s failure to advise a debtor of the tax consequences for a discounted payoff does not serve as a basis for a claim under the FDCPA.[2]

[1] Although Carieri attempted to raise a second FDCPA violation purportedly posed by the Notice in his opposition to the dispositive motion under review, Chief Judge Jose Linares denied Carieri’s attempt to expand his claims, offering a stern reminder to plaintiffs that untimely efforts to amend pleadings—to survive disposition or otherwise—will be barred. Nonetheless, in dicta, the Court roundly rejected Carieri’s last-ditch effort to amend finding that the Notice was misleading to the least sophisticated consumer.

[2] The Court also relied upon the following cases in reaching his decision: Smith v. Nat’l Enter. Sys., Inc., No. 15-541, 2017 WL 1194494 (W.D. Okla. Mar. 30, 2017); Rigerman v. Forster & Garbus LLP, No. 14-1805, 2015 WL 1223760 (E.D.N.Y. Mar. 16, 2015); Landes v. Cavalry Portfolio Servs., LLC, 774 F. Supp. 2d 800 (E.D. Va. 2011); Schaefer v. ARM Receivable Mgmt., Inc., No. 09-11666, 2011 WL 2847768 (D. Mass. July 19, 2011), and rejected the holding in Ellis v. Cohen & Slarnowitz, LLP, 701 F. Supp. 2d 215, 219-20 (N.D.N.Y. Mar. 26, 2010).

 

THIRD CIRCUIT RULES THAT DEBT COLLECTION NOTICE DID NOT CONTAIN MISLEADING LANGUAGE

By: Louise Bowes

In Szczurek v. PMM, the United States Court of Appeals for the Third Circuit recently affirmed the United States District Court for Eastern District of Pennsylvania’s ruling that the Plaintiff Joseph Szczurek (“Plaintiff” or “Szczurek”) failed to establish that a debt collection notice he received from the Defendant was in violation of the Fair Debt Collection Practices Act (“FDCPA”). No. 14-4775 (3d Cir. filed October 1, 2015).

In June 2014, Szczurek received a one-page notice from Professional Medical Management, Inc. (“PMM”) advising him that Mercy Fitzgerald Hospital had referred his past due account balance of $19.70 to PMM for collection. In addition to the language required by the FDCPA, the notice stated, “To avoid further contact from this office regarding your past due account, please send the balance due to our office and include the top portion of this letter with your payment.” Id. at 2.   Szczurek received four more similar letters from PMM over the next month, and filed a purported class action in the District Court, alleging that PMM had violated Sections 1692(e) and 1692(f) of the FDCPA by including deceptive and misleading language in the debt collection notice.   Specifically, Szczurek asserted that the correspondence created the false impression that the only way to stop PMM from further contact was to pay the debt. PMM moved for judgment on the pleadings, arguing that it was entitled to judgment as a matter of law because its notices complied with the FDCPA. The District Court granted the motion and dismissed the case, and the Plaintiff appealed to the Third Circuit.

On appeal, the Third Circuit applied the “least sophisticated debtor” standard, as set forth in Brown v. Card Serv. Ctr. 464 F. 3d 450 (3d Cir. 2006). The Brown court previously held that communications between debt collectors and debtors should be analyzed using this standard, which is a lower standard than the standard of a reasonable debtor. Szczurek argued that the least sophisticated debtor may interpret the language in the notice to mean that the only way to stop the debt collection notices was to pay the debt, when, in fact, debtors have other options under the FDCPA to halt debt collection communications. The Court disagreed with the Plaintiff, and ruled that the purpose of the language in question was to advise the debtor that PMM will continue its collection efforts until successful, and not to notify him of the available methods debtors may use to halt debt collection communications under the FDCPA. The Court further held that PMM was under no obligation under the FDCPA to inform a consumer that he may ask a debt collector to cease further contact pursuant to the statute.

ELEVENTH CIRCUIT COURT OF APPEALS CLARIFIES THE MEANING OF “DEBT COLLECTOR” UNDER THE FDCPA

By: Diana M. Eng and Joshua B. Alper

In Davidson v. Capital One Bank (USA), N.A., No. 14-14200 (11th Cir. Aug. 21, 2015), the Eleventh Circuit Court of Appeals held that, for purposes of the FDCPA, a person does not qualify as a “debt collector” if the person fails to satisfy the statutory definition even though the “debt on which [the person] seek[s] to collect was in default at the time they acquired it.” Id. slip op. at 12. In essence, plaintiffs cannot use other sections of the FDCPA in an attempt to enlarge the statutory definition.

Section 1692a(6) defines the term “debt collector” as “(1) any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or (2) who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Id. at 7–8 (quoting § 1692a(6)). The first definition of “debt collector” has been denoted as the “principal purpose” definition while the latter is often termed the “regular collection” definition. Significantly, Section 1692a(6)(A)–(F) contains a list of persons that Congress intended to exclude from the application of the FDCPA. Id. at 8. Among those excluded categories are “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due to another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.” Id. (quoting § 1692a(6)(F)(iii)).

In Davidson, HSBC commenced a state court action against Davidson to collect on a past due credit card account that was used for “personal, family or household purposes.” Id. at 3. During the pendency of the state court proceeding, the parties executed a settlement agreement where Mr. Davidson agreed to pay HSBC $500.00. Id. However, after Mr. Davidson failed to pay the agreed amount, the court entered a judgment in favor of HSBC. Id. Subsequently, Capital One acquired a significant portfolio of HSBC’s United States-based credit card accounts, many of which were previously delinquent, including Davidson’s account. Id. In an attempt to collect the debt now owed to Capital One, it commenced its own lawsuit against Mr. Davidson to collect on the past due account that was previously the subject of litigation between HSBC and Davidson. Id. Upon being sued for a second time involving the same account, Davidson commenced a putative class action in the District Court for the Northern District of Georgia against Capital One, alleging that Capital One’s state court action violated the FDCPA. Id. at 4.

Based on certain events that occurred in the District Court action, Davidson filed an Amended Complaint. Id. The Amended Complaint alleged that Capital One “regularly acquires delinquent and defaulted consumer debts that were originally owed to others and has attempted to collect such delinquent or defaulted debt in the regular course of its business, using the mails and telephone system.” Id. at 15. Capital One moved to dismiss the Amended Complaint and argued that the Plaintiff failed to “plausibly allege that Capital One was a ‘debt collector’ for purposes of the FDCPA, and [as such, the Amended Complaint should be dismissed because] only debt collectors are subject to liability under the” FDCPA. Id. at 4. Specifically, Capital One argued that the debt at issue was owed to it and not to another, which is a requirement under the “regular collection” definition. Id. In response, Davidson asserted that [c]ompanies that regularly purchase and collect defaulted consumer debts . . . are regulated by the” FDCPA. Id. at 5. The District Court agreed with Capital One and granted its motion to dismiss, stating that Davidson failed to satisfy either the “principal purpose” or “regular collection” definitions. Id.

In affirming the District Court, the Eleventh Circuit held that a bank (or any person or entity) does not qualify as a “debt collector,” unless a plaintiff plausibly alleges the defendant’s purported collection activities satisfy the “principal purpose” or “regular collection” definitions, “even where the consumer’s debt was in default at the time the bank acquired it.” Id. at 2 (emphasis added). Davidson argued that whether Capital One qualified as a “debt collector” depended on the default status of the debt on the date of acquisition, which, in turn, would lead to the conclusion that a person was either a “creditor” or a “debt collector”. Id. at 8. In support of this argument, Davidson relied on the exclusionary language contained in section 1692a(6)(F)(iii). Davidson reasoned that if the debtor was in default on the date the debt was acquired, the exclusionary language exempted the person or entity from the statutory definition of “debt collector,” and, by default, the person or entity would be a “creditor.” Id. at 9. By contrast, Davidson asserted that where the debt was already in default on the acquisition date, the exception did not apply, and the party was a “debt collector” governed by the FDCPA. Id.

In rejecting Davidson’s arguments, the Eleventh Circuit relied on the plain and unambiguous meaning of “debt collector” set forth in section 1692a(6) and the standards contained therein. Id. at 11. Otherwise, Davidson’s interpretation would result in a strained reading of the statutory framework. Id. As a result, the Eleventh Circuit rejected Davidson’s attempt “to bring entities that do not otherwise meet the definition of ‘debt collector’ within the ambit of the FDCPA” solely due to the default status of the debt on the date it was acquired. Id. at 11–12. Critically, the Eleventh Circuit cautioned that the language contained in section 1692a(6)(F)(iii) “is an exclusion; it is not a trap door.” Id. at 12.

Since the Amended Complaint did not plausibly allege the “principal purpose” or the “regular collection” definitions, the Eleventh Circuit affirmed the District Court’s decision. Specifically, the Amended Complaint only alleged that some part of Capital One’s business was devoted to debt collection. Id. at 16. Based on the “principal purpose” definition, such allegations are insufficient to state a claim. Id. Likewise, the “regular collection” definition requires that the person or entity collect a debt “owed or due another at the time of collection” and not “debts originally owed or due another” and now owed to a subsequent entity by virtue of an acquisition. Id. at 16–17 (emphasis in original). Since Capital One’s conduct only concerned collection efforts related to a debt Davidson owed to Capital One, and not to another party, the Amended Complaint failed to plausibly state facts that would entitle Davidson to relief under the regular collection definition. Id. Consequently, the Eleventh Circuit affirmed the District Court’s dismissal of the Amended Complaint. Id. at 18.

In light of this decision, entities that engage in debt collection activities can be reassured that there are limits on the application of the FDCPA. Not all collection activity is governed by the statutory framework. This decision deals a significant blow to plaintiffs who have been attempting to expand the reach of the FDCPA. Davidson also confirms that the plain meaning doctrine is strictly enforced and courts should not allow litigants to enlarge a statute’s intended application or purpose. Entities that engage in debt collection activities should be mindful of this decision if faced with FDCPA claims.