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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10983
Non-Argument Calendar
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D.C. Docket Nos. 1:17-cv-02065-MHC; 1:16-bkc-67309-WLH
In Re: ANGELA YVONNE HOLYFIELD,
Debtor.
__________________________________________________
ANGELA YVONNE HOLYFIELD,
Plaintiff - Appellant,
versus
ALDRIDGE PITE, LLP,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 30, 2018)
Before MARCUS, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
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Angela Yvonne Holyfield brought a complaint in bankruptcy court alleging
that Aldridge Pite, LLP (“Aldridge Pite”) had violated the Fair Debt Collection
Practices Act (“FDCPA”) with a letter regarding a proposed foreclosure. The
bankruptcy court dismissed for failure to state a claim. Holyfield now appeals the
district court’s order affirming the bankruptcy court’s dismissal. Because the
communication to Holyfield was not misleading within the meaning of the
FDCPA, we affirm.
I.
In August 2016, Aldridge Pite sent a letter to “Estate/Heirs of Doris
Rhodes,” Holyfield’s deceased mother. The letter gave notice of the proposed
foreclosure of a property in connection with a mortgage and accompanying
promissory note taken out by Rhodes. That letter had the subject line “NOTICE
OF PENDING FORECLOSURE SALE.” On the bottom of each page, it provided
the following disclaimer in bold print: “PLEASE BE ADVISED THAT THIS
LETTER MAY CONSTITUTE AN ATTEMPT TO COLLECT A DEBT. ANY
INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.”
Among other things, the letter explained that if the debt had been discharged in
bankruptcy, the “action taken would be limited to the foreclosure . . . and would
not be an attempt to collect the debt personally.” It also stated that “[i]f you did
not sign the associated Note, we are not seeking to collect the debt from you.”
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In January 2017, Holyfield filed a complaint in the United States Bankruptcy
Court for the Northern District of Georgia, alleging that the letter violated the
FDCPA. Holyfield said that the letter “represented that if there had been no
[bankruptcy] discharge, then [Aldridge Pite] would attempt to collect the debt
personally.” Holyfield also alleged that the letter “suggested incorrectly that
[Aldridge Pite] was not a debt collector.”
The bankruptcy court granted Aldridge Pite’s motion to dismiss the
complaint for failure to state a claim. It assumed, without deciding, that Aldridge
Pite was a debt collector and the letter was debt collection activity. The
bankruptcy court said the only “specific allegation” in Holyfield’s complaint was
that the letter suggested Aldridge Pite was not a debt collector, but that the failure
to affirmatively identify itself as a debt collector did not violate the FDCPA. The
bankruptcy court explained that a consumer would not be confused “as to the status
of the debt collector when a notice states clearly that it is an attempt to collect a
debt.” The letter’s bold notice that the letter concerned debt collection was enough
to indicate that “it was sent from a debt collector.” On appeal from the bankruptcy
court, the United States District Court for the Northern District of Georgia
affirmed. The district court agreed that, assuming the letter was debt collection
activity and that Aldridge Pite was a debt collector within the meaning of the
FDCPA, Aldridge Pite “sufficiently identified itself as a debt collector.”
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II.
On appeal, we review de novo a dismissal for failure to state a claim. See,
e.g., Smith v. United States,
873 F.3d 1348, 1351 (11th Cir. 2017). In determining
whether the complaint has made out a cause of action, “we accept all well-pleaded
allegations as true and draw all reasonable inferences in the plaintiff’s favor.”
Id.
To survive a motion to dismiss, a pleading must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007).
III.
The FDCPA prohibits various unfair practices related to debt collection
activities. Among other things, the statute prohibits a “debt collector” from
making “any false, deceptive, or misleading representation . . . in connection with
the collection of any debt.” 15 U.S.C. § 1692e.
For starters, the letter from Aldridge Pite to Holyfield qualifies as a
communication “in connection with the collection of [a] debt” for purposes of the
FDCPA, and the complaint plausibly alleged that Aldridge Pite is a debt collector.
The communication is functionally indistinguishable from the communication we
found to be within § 1692e in Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211 (11th Cir. 2012). There, a law firm sent a “dunning” notice related
to a mortgage and promissory note.
Id. at 1214. Our Court determined that the
notice was sent in connection with debt collection because, among other things, it
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sought “full and immediate payment of all amounts due” under the loan.
Id. at
1217. Here, the letter from Aldridge Pite gives notification that the debt “has been
declared, and is now, immediately due and payable in full” and gives “ten (10)
days from your receipt of this letter to pay in full the debt owed without having to
pay reasonable attorney fees.” Under Reese, this is a communication made in
connection with debt collection.
An entity is considered a “debt collector” within the meaning of the FDCPA
if it “regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Reese
determined that the complaint there said enough to plausibly allege that a law firm
was acting as a “debt collector.”
Reese, 678 F.3d at 1218. The Reese complaint
alleged that the law firm sending a dunning notice was “engaged in the business of
collecting debts owed to others incurred for personal, family[,] or household
purposes” and had sent over 500 similar notices.
Id. Here, Holyfield’s complaint
alleged that Aldridge Pite represents loan servicers and lenders in foreclosures and
has “appeared on the docket . . . in a significant number of foreclosure cases” in
area courts. As in Reese, Holyfield’s complaint plausibly alleged that Aldridge
Pite was a debt collector for FDCPA purposes.
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IV.
We next consider whether the complaint plausibly alleged that the letter was
misleading within the meaning of the FDCPA. “When evaluating a
communication under § 1692e, we ask whether the ‘least sophisticated consumer’
would be deceived or misled by the communication at issue.” Bishop v. Ross
Earle & Bonan, P.A.,
817 F.3d 1268, 1274 (11th Cir. 2016). We have explained:
The “least sophisticated consumer” can be presumed to possess a
rudimentary amount of information about the world and a willingness
to read a collection notice with some care. However, the test has an
objective component in that while protecting naive consumers, the
standard also prevents liability for bizarre or idiosyncratic
interpretations of collection notices by preserving a quotient of
reasonableness.
LeBlanc v. Unifund CCR Partners,
601 F.3d 1185, 1194 (11th Cir. 2010) (internal
quotations omitted).
The bankruptcy court and district court found and considered only one
misleading representation alleged in Holyfield’s complaint. However, we interpret
Holyfield’s complaint to allege two types of impermissible misleading
communications. First, the complaint said that Aldridge Pite “suggested
incorrectly that [it] was not a debt collector.” Second, the complaint alleged that
the letter “represented that if there had been no [bankruptcy] discharge, then
[Aldridge Pite] would attempt to collect the debt personally.” We consider these
allegedly misleading representations each in turn.
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A.
Among the specifically enumerated violations of § 1692e, the FDCPA
provides that it is misleading for a debt collector to communicate with a consumer
without revealing that it is a debt collector. 15 U.S.C. § 1692e(11) (providing that
“the failure to disclose . . . that the communication is from a debt collector” is a
violation of § 1692e); Edwards v. Niagara Credit Sols., Inc.,
584 F.3d 1350, 1351
(11th Cir. 2009) (“The Fair Debt Collection Practices Act specifically requires that
a debt collector disclose in all communications with a debtor that the message is
from a debt collector.”). 1
We determine that the least sophisticated consumer, who would be willing to
read the letter with some degree of care, would find more than sufficient
information contained in the letter to disclose that Aldridge Pite is a debt collector.
For one, the letter, in large bold type at the bottom of each page, explained that
“THIS LETTER MAY CONSTITUTE AN ATTEMPT TO COLLECT A DEBT.”
The letter also explained that Aldridge Pite was a law firm “retained by” the loan
servicer “in connection with the above referenced loan.” In light of this language,
1
Section 1692e also requires that, in an initial communication with a consumer, the debt
collector disclose “that the debt collector is attempting to collect a debt and that any information
obtained will be used for that purpose.” 15 U.S.C. § 1692e(11). In this Court, Holyfield claims
that the letter was misleading “because the letter is an attempt to collect a debt” and that
Aldridge Pite had to disclose that it “is collecting a debt” -- rather than the letter’s statement that
it “may constitute an attempt to collect a debt.” However, Holyfield’s complaint failed to allege
that the letter was an initial communication for FDCPA purposes, and the complaint only took
issue with Aldridge Pite’s alleged failure to disclose its status as a debt collector. Accordingly,
we only evaluate the alleged failure to disclose that Aldridge Pite was a debt collector.
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we conclude that -- even though the letter in question never affirmatively stated, in
as many words, that Aldridge Pite was a “debt collector” -- the least sophisticated
consumer would understand that Aldridge Pite was acting in that role.
As the bankruptcy court and district court did, we determine that the letter
did not fail to disclose that Aldridge Pite was a debt collector.
B.
Holyfield also says that Aldrige Pite violated the FDCPA’s general
prohibition on misleading statements in connection with debt collection. The
complaint said that the letter represented “that if there had been no [bankruptcy]
discharge, then [Aldridge Pite] would attempt to collect the debt personally.” The
complaint continues that Aldridge Pite made this representation “by stating [in the
letter] ‘In the event you have received a discharge in a Chapter 7 bankruptcy case,
that discharge may have extinguished any personal liability you may have had for
this loan. In [such] event, any action taken would be limited to the foreclosure on
the above-referenced property and would not be an attempt to collect the debt
personally.[’]” If we understand the argument correctly, Holyfield says that she is
not personally liable on her mother’s debt, but she believes the letter makes it
sound as though she will be held personally liable.
We cannot agree that the letter gives the impression that Holyfield will be
held personally liable, even to the least sophisticated consumer. First, the idea that
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there will be no personal liability if the debt has been discharged in bankruptcy
gives no indication that the opposite is true -- that there will necessarily be
personal liability in the absence of a discharge. What is more, Aldrige Pite’s letter
explains that Holyfield is not personally liable. The letter says: “If you did not
sign the associated Note, we are not seeking to collect the debt from you. As such,
our action is strictly limited to a possible foreclosure of the above-referenced
property.” The statement that no personal collection will be sought from an
individual who did not sign the promissory note is in no way inconsistent with the
idea that no one will be held personally liable if the debt has been discharged in
bankruptcy.
In sum, because Holyfield’s complaint did not plausibly allege a violation of
the FDCPA, it was properly dismissed.2
AFFIRMED.
2
Nevertheless, we hold that Appellee’s pending Motion for Rule 38 Sanctions is hereby
DENIED.
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