Constance Daniels v. Select Portfolio Servicing, Inc. ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-10204
____________________
CONSTANCE DANIELS,
Plaintiff-Appellant,
versus
SELECT PORTFOLIO SERVICING, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-01652-JSM-CPT
____________________
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2 Opinion of the Court 19-10204
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
JORDAN, Circuit Judge:
Constance Daniels sued Select Portfolio Servicing under
the Fair Debt Collections Practices Act, 15 U.S.C. §§ 1692 et seq.,
and the Florida Consumer Collection Practices Act, Fla. Stat. §
559.72, alleging that a series of monthly mortgage statements mis-
stated a number of items, including the principal amount due.
She claimed that, by sending her the incorrect mortgage state-
ments, Select Portfolio violated the FDCPA’s prohibitions on har-
assment or abuse, false or misleading representations, and unfair
practices. See 15 U.S.C. §§ 1692d, 1692e(2)(A), 1692e(10),
1692f(1). She also claimed that the statements violated the
FCCPA’s prohibitions on harassment and on attempts to collect
on debt that is not legitimate. See Fla. Stat. §§ 559.72(7),
559.72(9). The district court dismissed Ms. Daniels’ complaint
with prejudice, agreeing with Select Portfolio that the mortgage
statements in question were not communications in connection
with the collection of a debt and therefore not covered by the
FDCPA and the FCCPA.
The question presented in this appeal—one of first impres-
sion in our circuit—is whether monthly mortgage statements re-
quired by the Truth in Lending Act, 15 U.S.C. § 1638, and its regu-
lations can constitute communications in connection with the col-
lection of a debt under the FDCPA and the FCCPA. We hold that
they may, at least when—as here—they contain debt-collection
language that is not required by the TILA or its regulations and
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the context suggests that they are attempts to collect or induce
payment on a debt. In such circumstances, coverage under the
FDCPA and the FCCPA is plausible.
I
In reviewing the district court’s Rule 12(b)(6) dismissal or-
der, we accept as true the facts set out by Ms. Daniels in her com-
plaint and its attached exhibits. See Tellabs, Inc. v. Makor Issues
& Rts., Ltd., 551 U.S. 308, 322 (2007). The complaint and the ex-
hibits tell the following story.
In 2005, Ms. Daniels executed a promissory note with
Countrywide Home Loans, secured by a mortgage on her home
in Florida. In March of 2009, after falling behind on her payments,
she entered into a mortgage modification agreement with Coun-
trywide. She agreed to make interest-only monthly payments
(plus escrow amounts) for 10 years, with the principal balance
remaining at $189,911.00 for that period. The interest-only
monthly payments for the first year were $813.12, but for each
succeeding year during the 10-year period the interest rate (and
the payments) would increase pursuant to a schedule in the modi-
fication agreement. After the 10-year period, the monthly pay-
ments would include both principal and interest, again pursuant
to a schedule set forth in the agreement. See D.E. 23 at 3 & Ex. A.
For over a year, Ms. Daniels made her interest-only month-
ly payments on time. Then Countrywide sold, transferred, or as-
signed the mortgage to Wells Fargo Bank. In June of 2010, Wells
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4 Opinion of the Court 19-10204
Fargo refused to accept the interest-only payments from Ms. Dan-
iels. Claiming that Ms. Daniels had defaulted on the note and
mortgage, Wells Fargo filed a foreclosure action in state court.
Select Portfolio was the mortgage servicer at this time. See id. at
3–4.
In December of 2015, the state court granted Ms. Daniels’
motion to enforce the earlier mortgage modification agreement,
ordered Ms. Daniels to resume making payments according to the
terms of the agreement, and sanctioned Wells Fargo for improp-
erly bringing the foreclosure action. The sanctions included re-
quiring Wells Fargo to waive interest on the mortgage debt for
certain periods of time and to pay Ms. Daniels’ attorney’s fees.
See id. at 4–5 & Exs. B, C.
Because the dispute between Wells Fargo and Ms. Daniels
had lasted for years, certain interest and escrow payments had ei-
ther not been made or had not been accepted. The state court
ruled in May of 2016 that these sums, totaling $60,808.83, would
be added “to the end of” the loan modification agreement. See id.at 5–8 & Ex. C. At that time, Ms. Daniels’ interest-only monthly
payments (not including escrow amounts) were $928.25 pursuant
to the schedule set out in the modification agreement. See id. at
9.
Following the conclusion of the foreclosure action, Select
Portfolio sent Ms. Daniels a number of monthly mortgage state-
ments. Not all the statements were the same in terms of format,
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language, and amounts, so we summarize the November 2016
statement, which Ms. Daniels claims was the most problematic.
The November 2016 statement listed Select Portfolio’s ad-
dress and phone number, and had entries for “loan due date,”
“amount due,” “transaction activity,” “past payments break-
down,” “past due payments,” “total amount due,” “interest-
bearing principal,” “deferred principal,” “outstanding principal,”
and “late fee.” It included a “delinquency notice” box, which
listed overdue payments and the amount needed to bring the ac-
count current. And it had a “monthly payment coupon” at the
bottom of the first page. The coupon listed the late fee that
would be charged if the payment was not made by the due date,
and it contained the following instructions: “Please detach bottom
portion and return with your payment,” and “Make checks paya-
ble to Select Portfolio Servicing.” See id. at Ex. E.
The November 2016 statement also contained the follow-
ing language:
◆ This is an attempt to collect a debt. All infor-
mation obtained will be used for that purpose.
◆ You are late on your mortgage payments. Failure
to bring your loan current may result in fees and
foreclosure – the loss of your home.
◆ [Select Portfolio] has completed the first notice or
filing required to start a foreclosure.
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◆ Paying your mortgage on time is an important
obligation, so please pay on or before the payment
due date. Payments are not considered paid until
received and posted to your account.
◆ [Select Portfolio] furnishes information to con-
sumer reporting agencies. You are hereby notified
that a negative credit report reflecting on your credit
record may be submitted to a credit reporting agen-
cy if you fail to fulfill the terms of your Note and
Mortgage.
Id. The statement did not indicate that it was being sent for in-
formational purposes.1
According to Ms. Daniels, the November 2016 statement
significantly misstated the deferred principal balance, the out-
standing principal balance, and the amount of the interest-only
payment that was due. The statement, for example, listed the de-
ferred principal as $83,259.92 (when the actual sum to be added to
the end of the modification agreement was $60,808.83); listed the
outstanding principal balance as $356,121.53 (when it should have
1Ms. Daniels did not attach all the statements to her complaint. But the ones
that were attached contained some of the same debt-collection language
found in the November 2016 statement. For example, the statements from
July, August, and September of 2017 all said: “This is an attempt to collect a
debt. All information obtained will be used for that purpose.” See D.E. 23 at
Comp. Ex. G. They also included Select Portfolio’s address and phone num-
ber, as well as a payment coupon with the same late fee information and
payment instructions contained in the November 2016 statement. See id.
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been $250,714.83 [$189,911.00 + $60,803.83]); and listed the
monthly payment due as $2,244.90 (when the actual figure was
$982.25 based on the schedule in the loan modification agree-
ment).
Ms. Daniels alleged that the “delinquency notice” box in
the November 2016 statement also misrepresented that the loan
was in arrears for 197 days based on six unpaid installments of
$2,244.90 (when there was no delinquency at all). The “delin-
quency notice” box stated that the “total” due was $9,075.71 and
provided the following instruction: “You must pay this amount to
bring your loan current.” The payment coupon attached to the
statement also incorrectly listed the amount due as $9,075.71. See
id. at 10–11, 12–13, 15–16, & Ex. E.
In October and December of 2017, Ms. Daniels’ counsel
sent letters to Select Portfolio asserting that there was no deferred
principal balance (because the $60,808.83 was to be added to the
end of the loan modification agreement pursuant to the state
court’s order) and demanding a specific line-by-line accounting of
the deferred balance amount. Select Portfolio did not respond to
the letters.
In June of 2018, Ms. Daniels sued Select Portfolio under the
FDCPA, 15 U.S.C. §§ 1692d, 1692e, 1692f, and the FCCPA, Fla.
Stat. §§ 559.72(7), 559.72(9). She alleged that the erroneous
monthly mortgage statements were harassing, false, and mislead-
ing, and that by sending them Select Portfolio engaged in unfair
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8 Opinion of the Court 19-10204
practices in connection with the collection of a debt in violation of
the FDCPA and the FCCPA.2
As noted, the district court dismissed Ms. Daniels’ claims
with prejudice. Agreeing with Select Portfolio, it ruled that the
monthly mortgage statements complied with the TILA and its
regulations, and so were not communications in connection with
the collection of a debt under the FDCPA and the FCCPA. It also
denied leave to amend because it concluded that any amendment
by Ms. Daniels would be futile.
II
We review orders granting a Rule 12(b)(6) motion de novo.
See Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir.
2013); Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir.
2006). The question here is whether Ms. Daniels pled sufficient
facts to plausibly allege FDCPA and FCCPA coverage. See Ash-
croft v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007). “A claim has facial plausibil-
ity when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged. The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possi-
bility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at2 The FCCPA is the Florida analogue to the FDCPA, and generally the two
Acts are construed in similar fashion where the statutory language is the
same. See Oppenheimer v. I.C. Sys., Inc., 627 F.3d 833, 839 (11th Cir. 2010).
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678. See also Johnson v. City of Shelby, 574 U.S. 10, 12 (2014)
(“Petitioners stated simply, concisely, and directly events that,
they alleged, entitled them to damages from the city. Having in-
formed the city of the factual basis for their complaint, they were
required to do no more to stave off threshold dismissal for want
of an adequate statement of their claim.”).
III
We start with the basics, and first address whether the
monthly mortgage statements sent by Select Portfolio constitute
“communications” about a “debt.” The FDCPA and the FCCPA
both define a “debt” as “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.” See 15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(6). And
they both define “communication” as “the conveying of infor-
mation regarding a debt directly or indirectly to any person
through any medium.” See 15 U.S.C. § 1692a(2); Fla. Stat. §
559.55(2).
We have already held that a homeowner’s promissory
note, secured by a mortgage on the property, constitutes a “debt”
under the FDCPA. See Reese v. Ellis, Painter, Ratterree & Ad-
ams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012) (“T[he definition of
‘debt’ in the FDCPA] clearly encompasses the Reeses’ payment
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obligation under the promissory note [secured by a mortgage.]”).
So the obligation of Ms. Daniels to pay the promissory note, se-
cured by a mortgage on her home, is a “debt” under the FDCPA
and the FCCPA.
The mortgage statements also constitute a “communica-
tion” under the FDCPA and the FCCPA. The definition of
“communication” is “broad,” Hart v. Credit Control, LLC, 871
F.3d 1255, 1258 (11th Cir. 2017), and the statements certainly
conveyed information from Select Portfolio to Ms. Daniels re-
garding her debt under the promissory note. “In order to be con-
sidered a communication, the only requirement of the infor-
mation that is to be conveyed is that it must be regarding a debt.”
Id. (holding that a voicemail left by a debt collector who wanted
to speak to a consumer about a debt was a “communication” un-
der the FDCPA).
IV
Ms. Daniels alleges that Select Portfolio, by sending her
mortgage statements with incorrect information about her debt
under the promissory note, violated §§ 1692d, 1692e(2)(A),
1692e(10), and 1692f(1) of the FDCPA and §§ 559.72(7) and
559.72(9) of the FCCPA. Select Portfolio responds that the mort-
gage statements were required by the TILA, 15 U.S.C. §§ 1601 et
seq., and its regulations and therefore did not constitute commu-
nications “in connection with the collection of a[ ] debt” under
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the FDCPA or in connection with “collecting [a] . . . debt[ ]” un-
der the FCCPA.
Congress passed the TILA and the FDCPA to protect con-
sumers. The TILA, enacted in 1968, is meant to “assure a mean-
ingful disclosure of credit terms…and to protect the consumer
against inaccurate and unfair credit billing and credit card practic-
es.” 15 U.S.C. § 1601(a). The FDCPA, enacted almost a decade
later in 1977, is meant to “eliminate abusive debt collection prac-
tices by debt collectors, to ensure those debt collectors who re-
frain from using abusive debt collection practices are not competi-
tively disadvantaged, and to promote consistent State action to
protect consumers against debt collection abuses.” 15 U.S.C. §
1692(e).
We begin by analyzing the monthly mortgage statements
under the FDCPA and the FCCPA. We then turn to the TILA.
A
The substantive FDCPA provisions relied on by Ms. Dan-
iels require that the challenged communications be “in connec-
tion with the collection of a[ ] debt.” See 15 U.S.C. §§ 1692d,
1692e(10), 1692f(1). The substantive FCCPA provisions similarly
require that the challenged action be made in connection with
“collecting [a] . . . debt[.]” Fla. Stat. §§ 559.72(7), 559.72(9). Both
Acts, therefore, require a nexus between the communication and
the collection of a debt.
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We have said that the FDCPA’s “in connection with the
collection of a[ ] debt” language asks whether the “challenged
conduct is related to debt collection,” i.e., is “an attempt to ‘col-
lect’ [a] debt.” Reese, 678 F.3d at 1216, 1217. And we have rec-
ognized that a communication can “have dual purposes,” such as
providing a consumer with information and demanding payment
on a debt. See id. at 1217 (“The fact that the letter and documents
relate to the enforcement of a security interest does not prevent
them from also relating to the collection of a debt within the
meaning of § 1692e.”).
In Reese, for example, we held that a law firm’s dunning
letter was “in connection with the collection of a[ ] debt” because
it (a) demanded full and immediate payment, (b) threatened col-
lection and attorney’s fees if the full payment was not paid, and
(c) was accompanied by documents which stated that the law firm
was attempting to collect a debt. See id. at 1216–17. Two years
later, in Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303
(11th Cir. 2014), we held that a letter from a law firm advising a
consumer that she was behind in her residential mortgage pay-
ments was “in connection with the collection of a[ ] debt” because
it (a) listed the amount due to the lender, (b) indicated that failure
to dispute the amount would result in the debt being assumed
valid by the lender, and (c) stated that it was for purpose of col-
lecting a debt. We recognized that the letter did not contain an
express demand for payment, but concluded that taken as a whole
it “was an implicit demand for payment.” Id. at 1303 n.2.
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Based on Reese and Caceres, we conclude that Ms. Daniels
plausibly alleged that the mortgage statements for November of
2016 and for July, August, and September of 2017 were communi-
cations “in connection with the collection of a[ ] debt” under the
FDCPA and in connection with “collecting [a] . . . debt[ ]” under
the FCCPA. In the words of Reese, 678 F.3d at 1216, the state-
ments were “related to debt collection.” First, the statements ex-
pressly said that they were “an attempt to collect a debt” and that
“[a]ll information obtained will be used for that purpose.” Second,
the statements had entries for “loan due date,” “payment due
date,” “amount due,” “total amount due,” “interest-bearing prin-
cipal,” “deferred principal,” “outstanding principal,” and “interest
rate.” Third, the statements attached a monthly payment coupon
at the bottom of the first page with Select Portfolio’s address.
The coupon included late fee information and instructed Ms.
Daniels to “[p]lease detach bottom portion and return with your
payment” and “[m]ake checks payable to Select Portfolio Servic-
ing.” Viewed holistically, a communication that expressly states
that it is “an attempt to collect a debt,” that asks for payment of a
certain amount by a certain date, and that provides for a late fee if
the payment is not made on time is plausibly “related to debt col-
lection.” Reese, 678 F.3d at 1217. 3
3 We do not hold that the statements are, as a matter of law, communica-
tions in connection with the collection of a debt. Our ruling is that Ms. Dan-
iels has plausibly alleged that they are.
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The context of the communication also matters. By the
time Select Portfolio sent Ms. Daniels the November 2016 state-
ment, she had prevailed in the foreclosure action brought by
Wells Fargo. During that litigation Select Portfolio was the
mortgage servicer. Given that the state court had ruled that the
unpaid $60,808.83 would be added to the end of the loan modifi-
cation agreement, the sums listed as allegedly due and owing in
the November 2016 statement, along with the delinquency no-
tice, could be viewed as an attempt to collect (or induce payment
on) a disputed and allegedly defaulted debt. See Grden v. Leikin
Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir. 2011); Gburek v.
Litton Loan Servicing LP, 614 F.3d 380, 386 (7th Cir. 2010).
We recognize that some portions of the statements could
have been for informational purposes. But, as we have already
held, a communication can have dual purposes. See Reese, 678
F.3d at 1217. Moreover, the possibility that some portions of the
statements were informational does not doom Ms. Daniels’ com-
plaint at the Rule 12(b)(6) stage, where the standard is not certain-
ty (or even probability) but plausibility. See Iqbal, 556 U.S. at 579.
At summary judgment, the result may or may not be the
same. “[W]hether a communication was sent ‘in connection
with’ an attempt to collect a debt is a question of objective fact, to
be proven like any other fact.” Ruth v. Triumph Partnerships,
577 F.3d 790, 798 (7th Cir. 2009). We do not prejudge the issue,
as it is not before us.
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B
We next address the effect, if any, of the TILA. As we ex-
plain, under the circumstances alleged in the complaint the TILA
and its regulations do not foreclose Ms. Daniels’ claims under the
FDCPA and the FCCPA as a matter of law.
As relevant here, the TILA requires mortgage lenders
and/or servicers to send their mortgagees a statement once per
billing cycle, updating them on a number of items. These items
are the amount of the principal obligation under the mortgage;
the current interest rate in effect; the date on which the interest
rate may reset or adjust; the amount of any prepayment penalty
that may be charged; late payment fees; a telephone number and
electronic mail address that can be used to obtain information re-
garding the mortgage; the names and contact information of cred-
it counseling agencies or programs reasonably available; and such
other information as may be required by regulation. See 15
U.S.C. § 1638(f)(1). The TILA also provides that a standard form
for these disclosures may be proscribed by regulation. See §
1638(f)(2).
The TILA’s regulations require a monthly mortgage
statement to include certain items. These include the amount
due; the payment due date; the amount of any late payment fee
and the date on which it will be imposed; the monthly payment
amount (including a breakdown of how the payment will be ap-
plied to principal, interest, and escrow); the total sum of any fees
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charged since the last statement; any payment amount past due;
the total of all payments received since the last statement (includ-
ing a breakdown of how the payments were applied); the total of
all payments received since the beginning of the current calendar
year (including a breakdown of how the payments were applied);
a list of transaction activity since the last statement; partial pay-
ment information; a toll-free telephone number and electronic
mail address to obtain information about the account; the amount
of the outstanding principal balance; the current interest rate in
effect; the existence of any prepayment penalty; and delinquency
information (including the length of the delinquency, the risk of
consequences like foreclosure, and notice as to whether the ser-
vice has made the first notice required for foreclosure). See 12
C.F.R. § 1026.41(d)(1)-(8).
The TILA’s regulations also include three sample standard
forms for the required monthly mortgage statements. See 12
C.F.R. Pt. 26, App’x H, Forms H-30(A) (“Sample Form of Periodic
Statement”), H-30(B) (“Sample Form of Periodic Statement with
Delinquency Box”), & H-30(C) (“Sample Form of Periodic State-
ment for a Payment-Option Loan”). Each of the three sample
forms includes a payment coupon. But none of the sample forms
contain the words “this is an attempt to collect a debt.”
“When confronted with two Acts of Congress touching on
the same topic, [a court] is not at liberty to pick and choose
among congressional enactments and must instead strive give ef-
fect to both.” Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624
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19-10204 Opinion of the Court 17
(2018) (internal quotation marks and citations omitted). See also
Jove Engineering, Inc., v. I.R.S., 92 F.3d 1539, 1559 (11th Cir.
1996) (“[W]e are mindful of the fundamental principle of statuto-
ry construction that, ‘when interpreting and construing two or
more acts that affect one particular subject matter or area, the
court must attempt to reconcile the acts, if possible, so as to pro-
duce a symmetrical whole.’”) (alterations adopted and citation
omitted). So we must try to give meaning to both the FDCPA
and the TILA.
Select Portfolio argues that its monthly mortgage state-
ments cannot be actionable under the FDCPA or the FCCPA be-
cause they largely conform to the requirements of the TILA and
its regulations. It relies primarily on our decision in Green v. Spe-
cialized Loan Servicing LLC, 766 F. App’x 777 (11th Cir. 2019).
Green, as an unpublished opinion, is not binding. But even
if it were, it is distinguishable because it does not answer the pre-
cise coverage question before us. In Green a consumer alleged
that a mortgage servicer violated the FDCPA by “attempting to
collect mortgage debt beyond the five-year statute of limitations,”
thereby engaging in “unlawful debt collection of time-barred
debts.” Id. at 779. The Green panel held that the servicer’s
monthly mortgage statement contained no language “beyond
what is required by [the] TILA” and therefore did “not rise[ ] to
the level of being unlawful debt collection language.” Id. at 784
(emphasis added).
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The consumer in Green relied on the following delinquen-
cy language in an “important messages” box in the mortgage
statement: “Please note, if your account is past due, this amount
may not include all fees or other amounts necessary to fully rein-
state your loan.” Green v. Specialized Loan Servicing LLC, 280
F.Supp.2d 1349, 1355 (M.D. Fla. 2017). But the mortgage state-
ment did not include the “this is an attempt to collect a debt” lan-
guage that we have here. See id. Because the TILA’s regulations
require delinquency information, see 12 C.F.R. § 1026.41(d)(8),
the Green panel held that the content of the mortgage statement
did not go beyond “the ‘garden variety’ type of statement re-
quired by [the] TILA, even for the ‘least sophisticated consumer.’”
Green, 766 F. App’x at 784–85 (quoting the district court’s order).
In reaching this conclusion, the Green panel accepted Kelliher v.
Target Nat’l Bank, 826 F.Supp.2d 1324, 1328–29 (M.D. Fla. 2011),
as standing for the “unremarkable principle that a monthly state-
ment that is in conformity with [the] TILA may nevertheless in-
clude additional language that constitutes debt collection,” and
cited favorably to Caceres, 755 F.3d at 1302, and Reese, 678 F.3d
at 1217. See Green, 766 F. App’x at 785.
In this case, Select Portfolio’s mortgage statements con-
tained “this is an attempt to collect a debt” language that is not
required by the TILA or its regulations. The FDCPA mandates
that consumers be told in the “initial written communication”
that a “debt collector is attempting to collect a debt and that any
information obtained will be used for that purpose,” 15 U.S.C. §
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19-10204 Opinion of the Court 19
1692e(11), but neither the FDCPA nor the TILA requires the use
of such language in subsequent communications or periodic
statements. Because Green did not involve a mortgage statement
with “this is an attempt to collect a debt” language, it is distin-
guishable. And because it recognized that a TILA-mandated
mortgage statement can contain additional language that makes it
a debt-collection communication, Green is not inconsistent with
our ruling today.
Select Portfolio also relies on a number of unpublished cas-
es to support its contention that its mortgage statements were not
communications in connection with the collection of a debt.
Most of those cases, however, do not bear the weight that Select
Portfolio seeks to place on them. For example, in Hill v. DLJ
Mortgage Capital, Inc., 689 F. App’x 97, 98 (2d Cir. 2017), the
monthly statements were “in compliance with the [TILA]” and
did “not reflect attempts to collect on the debt referenced by the
[n]ote.” The same is true of Wagoner v. Ever Home Mortgage,
Inc., 2018 WL 2230553, at *4 (D.N.J. 2018).
There are two unpublished district court cases that do sup-
port Select Portfolio’s position. See Jones v. Select Portfolio Ser-
vicing, Inc., 2018 WL 2316636 (S.D. Fla. 2018); Zavala v. Select
Portfolio Servicing, Inc., 2018 WL 6198685 (S.D. Fla. 2018). In
both of those cases the district courts ruled that monthly mort-
gage statements required by the TILA were not communications
in connection with the collection of a debt under the FDCPA
even though they contained “this is an attempt to collect a debt”
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20 Opinion of the Court 19-10204
language. The district courts concluded that this additional lan-
guage constituted only a “minor discrepanc[y]” when compared
with the TILA’s model forms. See Jones, 2018 WL 2316636, at *4;
Zavala, 2018 WL 6198685, at *2–*3.
Having considered Jones and Zavala, we respectfully disa-
gree with them. We hold, consistent with our decisions in Reese
and Caceres, that monthly mortgage statements required by the
TILA and its regulations can plausibly constitute communications
in “connection with the collection of a[ ] debt” under the FDCPA
and in connection with “collecting [a] . . . debt” under the FCCPA
if (a) they contain “this is an attempt to collect a debt” language,
(b) they request or demand payment of a certain amount by a cer-
tain date, (c) they provide for a late fee if the payment is not made
on time, and (d) the history between the parties suggests that the
statement is an attempt to collect on a disputed debt. See Lear v.
Select Portfolio Servicing, Inc., 309 F.Supp.3d 1237, 1240 (S.D. Fla.
2018) (the “fact that [the] TILA requires” the servicer “to send
[the consumer] periodic [mortgage] statements does not mean
that [the consumer’s FDCPA] claims fail as a matter of law,” and
the use of “this is an attempt to collect a debt” language “would
seem to indicate that the mortgage statements are debt collection
communications”).
C
We have considered the guidance bulletin issued in 2013 by
the Consumer Financial Protection Bureau, on which the district
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19-10204 Opinion of the Court 21
court relied. See Consumer Financial Protection Bureau, Imple-
mentation Guidance for Certain Mortgage Servicing Rules, CFPB
Bulletin 2013-2, 2013 WL 9001249 (Oct. 15, 2013). In that bulletin,
the CFPB provided an “advisory opinion” concerning the “cease
communications” option provided by the FDCPA. See 15 U.S.C.
§ 1692c(c). The CFPB concluded that servicers who are debt col-
lectors are generally not liable under § 1692c(c) to consumers who
make a “cease communications” request if they comply with the
regulations issued under federal laws like the TILA, including 12
C.F.R. § 1026.41 (the periodic statement regulation). The CFPB
explained that it believed a consumer’s “cease communications”
request under the FDCPA “should ordinarily be understood to
exclude the[ ] categories of communications” required by federal
law. “Thus, only if the [consumer] sends a communication to the
servicer specifically withdrawing the request for [certain action]
may a servicer cease to carry out the requirement of these provi-
sions.”
The CFPB bulletin addresses a specific issue—servicers
who are required by federal law to send consumers certain com-
munications, and the difficulties created when consumers elect
the FDCPA’s “cease communications” option—and applies the
settled principle of statutory interpretation that, when there is an
irreconcilable conflict between two statutes, “the specific governs
the general.” Morales v. Trans World Airlines, Inc., 504 U.S. 374,
384 (1992). Select Portfolio argues, however, that we should read
the CFPB bulletin more broadly as standing for the proposition
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22 Opinion of the Court 19-10204
that any conduct or communications required by the TILA and its
regulations cannot be actionable under the FDCPA. We decline
the invitation.
An agency’s interpretive bulletin provides non-controlling
guidance, and its persuasiveness depends on the thoroughness,
consistency, and validity of its reasoning. See Rodriguez v. Farm
Stores Grocery, Inc., 518 F.3d 1259, 1268 n.5 (11th Cir. 2008);
Brennan v. Great Am. Disc. & Credit Co., 477 F.2d 292, 297 (5th
Cir. 1973). Given that the CFPB bulletin deals only with consum-
ers who choose the “cease communications” option under the
FDCPA, we do not think it is wise to extend it beyond that sce-
nario. See 15 U.S.C. § 1692k(e) (“No provision of this section im-
posing any liability shall apply to any act done or omitted in good
faith in conformity with any advisory opinion of the [CFPB],
notwithstanding that after such act or omission has occurred,
such opinion is amended, rescinded, or determined by judicial or
other authority to be invalid for any reason.”).
Indeed, there is nothing in the bulletin indicating that the
CFPB sought to provide an advisory opinion excluding all TILA-
required periodic mortgage statements from FDCPA coverage no
matter the circumstances. As some courts have noted, a debt col-
lector can satisfy the TILA requirements and at the same time
comply with the harassment (§ 1692d), misrepresentation (§
1692e), and unconscionable practices (§ 1692f) provisions of the
FDCPA, which was passed after the TILA. See, e.g., Kelliher, 826
F. Supp. 2d at 1329. Unlike the conflict between the FDCPA pro-
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19-10204 Opinion of the Court 23
hibiting certain communications and the TILA requiring those
same communications, a debt collector can satisfy the TILA’s in-
formation requirements and at the same time comply with the
FDCPA provisions at issue here.
D
In response to our colleague’s dissent, we offer the follow-
ing observations.
First, the dissent says that we should look at the substance
of the communication. But that is exactly what we have done—
we have considered all of the language in the monthly mortgage
statements and viewed that language in the context of the prior
foreclosure litigation.
Second, the dissent maintains that our unpublished deci-
sion in Green, 766 F. App’x at 784, warrants a different result
here. We respectfully disagree. For starters, Green did not in-
volve all of the language present here. And, as explained earlier,
Green addressed whether a mortgage statement “r[o]se[] to the
level of being unlawful debt collection language,” id. (emphasis
added)—in other words, it considered the merits of the FDCPA
claim. We, in contrast, have only tackled the question of FDCPA
and FCCPA coverage—whether Select Portfolio’s mortgage
statements are plausibly in connection with the collection of a
debt under the FDCPA and the FCCPA. That is, we have only
answered whether FDCPA and FCCPA coverage is plausible, and
we leave for the district court on remand whether Ms. Daniels’
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24 Opinion of the Court 19-10204
allegations make out a plausible claim that Select Portfolio violat-
ed the FDCPA and the FCCPA.
Third, the dissent asserts that use of the words “this is an
attempt to collect a debt” in a monthly mortgage statement does
not—not even in conjunction with the other debt-collection lan-
guage in the statement—allow for a plausible claim of FDCPA
and FCCPA coverage. That approach, however, would incorrect-
ly render the “this is an attempt to collect a debt” language com-
pletely irrelevant, and do so as a matter of law. And though the
dissent apparently demands more threatening language, the in
connection requirement of the FDCPA and the FCCPA does not
require that the communication itself be debt collection—it only
requires that the communication be “related to debt collection.”
Reese, 678 F.3d at 1216.
Fourth, the dissent contends that we have created a circuit
split. An examination of the cases cited by the dissent, however,
negates that claim.
We’ll start with the earliest case, the Sixth Circuit’s deci-
sion in Lewis v. ACB Business Services, Inc., 135 F.3d 389 (6th Cir.
1998). In that case the Sixth Circuit explained that a letter sent to
a consumer was not transformed “into an unlawful demand for
payment” just because it “stated at the bottom that it ‘is an at-
tempt to collect a debt[.]’” Id. at 399. But the Sixth Circuit came
to that conclusion because, at the time the letter was sent, the
1987 version of the FDCPA “required” such a notice. See id. In-
deed, the Sixth Circuit recognized in a footnote that the FDCPA
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19-10204 Opinion of the Court 25
was amended in 1996 to eliminate this requirement in subsequent
communications, and explained that the debt collector was “at-
tempting to comply with the requirements of the Act as it ap-
peared when it sent the letter to [the consumer].” Id. at 399 n.9.
Here, of course, nothing in the FDCPA or the FCCPA re-
quired Select Portfolio to include “this is an attempt to collect a
debt” language in subsequent mortgage statements. Lewis there-
fore does not conflict with our decision today. 4
The second case, Gburek, 614 F.3d at 386, is unremarkable.
The Seventh Circuit held there that a letter to a consumer “quali-
fie[d] as a communication in connection with an attempt to col-
lect a debt.” Id. at 386. In a footnote, the Seventh Circuit cited
the Sixth Circuit’s decision in Lewis for the proposition that a
“disclaimer [in the letter] identifying it as an attempt to collect a
debt” did not “automatically trigger the protections of the
FDCPA, just as the absence of such language does not have dis-
positive significance.” Id. at 386 n.3.
Gburek did not involve mortgage statements with the lan-
guage used by Select Portfolio, and is therefore distinguishable on
that basis alone. Moreover, in citing to Lewis, the Seventh Circuit
4 We note that Lewis was a 2-1 decision, with the dissent in that case making
the persuasive point that a letter which says that it is an attempt to collect a
debt “is exactly what it says it is: ‘ . . . an attempt to collect a debt.’” Lewis,
135 F.3d at 414 (Ryan, J. dissenting). See also id. at 415 (“The letter is not a
mere notification of the invocation of remedies ordinarily invoked; it is a
debt-collection letter, just as it says[.]”).
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26 Opinion of the Court 19-10204
in Gburek did not acknowledge what Lewis itself had recog-
nized—that after 1996 the FDCPA does not require “this is an at-
tempt to collect a debt” language to be included in subsequent
mortgage statements. So the Gburek discussion was based on a
misreading of Lewis and a failure to grasp the limitations of that
case’s holding. In any event, Gburek said only that the “attempt
to collect a debt” language does not “automatically” result in the
applicability of the FDCPA. It did not purport to hold that such
language is irrelevant to the question of FDCPA coverage.
Next is Maynard v. Cannon, 401 F. App’x 389 (10th Cir.
2010), an unpublished decision from the Tenth Circuit. Maynard
“assume[d] that non-judicial foreclosures are covered by the
FDCPA,” and in so doing said that inclusion of the words “sent in
an attempt to collect a debt” was “legally irrelevant.” Id. at 395.
The pertinent language in Maynard is dicta, as the Tenth
Circuit assumed that the FDCPA applied to the communication.
To the extent that the Tenth Circuit was holding—as a matter of
law—that language to the effect that “this is an attempt to collect
a debt” is always irrelevant in deciding whether a communication
is “in connection with” the collection of a debt under the FDCPA,
we are not convinced by such a sweeping proposition. To bor-
row from Judge Ryan’s dissent in Lewis, such language “is what it
says it is”—an attempt to collect a debt. See Lewis, 135 F.3d at
414 (Ryan, J., dissenting). Or, to put the matter as a question, in
determining whether a communication is in connection with the
collection of a debt, what could be more relevant than a state-
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19-10204 Opinion of the Court 27
ment in the communication that “this is an attempt to collect a
debt”?
Heinz v. Carrington Mortgage Services, LLC, 3 F. 4th 1107(8th Cir. 2021), is the final case. There the Eighth Circuit held
that several letters sent to a consumer were not “in connection
with an attempt to collect on the underlying mortgage debt.” See
id. at 1114. After coming to that conclusion, it addressed the
“[m]ore troublesome” inclusion in the letters of the words “[t]his
communication is from a debt collector and it is for the purpose
of collecting a debt.’’ Id. Relying on the Seventh Circuit’s deci-
sion in Gburek and the Sixth Circuit’s decision in Ellis, the Eight
Circuit wrote that such a boilerplate disclosure does not “auto-
matically trigger the protections of the FDCPA, just as the ab-
sence of such [disclosures] does not have dispositive significance.”
Id. (quoting Gburek, 614 F.3d at 386 n.3). Significantly, the
Eighth Circuit concluded that because the statement was “at odds
with the remainder of the letter,” it did “not turn the communica-
tion into something that it [was] not— . . . a communication
made in connection with the collection of a debt for the purposes
of the FDCPA.” Id.Like Gburek, Heinz failed to consider the fact that the
FDCPA no longer requires the use of such language in subse-
quent mortgage statements. It is therefore not persuasive. In any
event, Heinz—like Gburek—did not hold that “this is an attempt
to collect a debt” language is always irrelevant to the question of
FDCPA coverage. Indeed, Heinz acknowledged the obvious: “[I]t
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28 Opinion of the Court 19-10204
. . . seem[s] implausible that a communication labeled by the
sender as ‘for the purposes of collecting a debt’ would, in fact, not
be sent ‘in connection with the collection of a debt.’” Id. Our
thoughts exactly.
V
The only question we address today is the narrow one re-
solved by the district court—whether a required monthly mort-
gage statement that generally complies with the TILA and its reg-
ulations can plausibly be a communication “in connection with
the collection of a[ ] debt” under the FDCPA or in connection
with “collecting [a] . . . debt” under the FCCPA if it contains addi-
tional debt-collection language. For the reasons we have set out,
our answer to that question is yes.
We note, in closing, that Select Portfolio may at times be
conflating the threshold issue of a communication’s coverage un-
der the FDCPA and the FCCPA with the ultimate merits issue of
an entity’s liability under those Acts as a result of that communi-
cation. Our holding does not mean (or suggest) that monthly
mortgage statements required by the TILA and its regulations au-
tomatically lead to liability under the substantive provisions of the
FDCPA or the FCCPA. In order for Ms. Daniels to prevail on her
claims, she will need to show that the statements violated §§
1692d, 1692e(2)(A), 1692e(10), and 1692f(1) of the FDCPA and/or
§§ 559.72(7) and 559.72(9) of the FCCPA. We express no view on
whether Ms. Daniels has plausibly pled that any of the mortgage
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19-10204 Opinion of the Court 29
statements—given the alleged inaccuracies—violated any of these
provisions, and leave that matter for the district court to resolve
on remand under the “least sophisticated consumer” standard.
See Holzman v. Malcolm S. Gerald & Assocs., Inc., 920 F.3d 1264,
1269 (11th Cir. 2019).
The district court’s dismissal of Ms. Daniels’ complaint is
reversed, and the case is remanded for further proceedings.
REVERSED AND REMANDED.
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19-10204 LAGOA, J., Dissenting 1
LAGOA, Circuit Judge, Dissenting:
I respectfully dissent from the majority’s opinion, as I do
not believe that inclusion of the sentence, “This is an attempt to
collect a debt,” in the periodic mortgage statements that Select
Portfolio Servicing, Inc., sent to Constance Daniels can bear the
weight the majority places on it.
The Truth in Lending Act (“TILA”), 15 U.S.C. § 1638, and
regulations under the TILA require a residential mortgage ser-
vicer to provide periodic—in this case, monthly—statements con-
taining comprehensive information regarding the status of the
consumer’s loan, ranging from the amount due, the payment due
date, and late payment fees, to information regarding delinquen-
cy, the consequences of late or nonpayment, and whether the
servicer has taken any steps regarding foreclosure. See 15 U.S.C.
§ 1638(f); 12 C.F.R. § 1026.4(d). Regulations under the TILA also
expressly authorizes the use of a standard-form payment coupon
to be included with the periodic statement.
The mortgage statements at issue are each a couple of pag-
es. The sentence, “[t]his is an attempt to collect a debt,” appears
once on each statement, is not physically separated from other
information in the statement, is not capitalized or otherwise em-
phasized, and is printed using the same font and font size as the
rest of the information contained in the statement. Other than
this sentence, the information in Select Portfolio’s statements and
payment coupons does not materially differ from the TILA’s re-
quirements. Indeed, the statements do not contain any other lan-
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 32 of 50
2 LAGOA, J., Dissenting 19-10204
guage that arguably tries to induce Daniels to pay the outstanding
debt or resembles the types of threats or demands for payment
that we have previously discussed in connection with the Fair
Debt Collection Practices Act (“FDCPA”).
To be sure, the majority is correct when it states that “a re-
quired monthly mortgage statement that generally complies with
the TILA and its regulations can plausibly be a communication ‘in
connection with the collection of a[ ] debt’ under the FDCPA or
in connection with ‘collecting [a] . . . debt’ under the FCCPA if it
contains additional debt-collection language.” Maj. Op. at 28.
But this means that the Court’s inquiry should focus on the addi-
tional debt-collection language and the substance of the commu-
nication sent to the consumer by the servicer. That approach is
consistent with our precedent, and it is also consistent with the
conclusion of other circuits, which have uniformly rejected the
legal significance of the “attempt to collect a debt” language.
“This is an attempt to collect a debt”—the only additional
language contained in the TILA mandated statements—are not
magic words, and their presence or absence in a communication
to a debtor has no independent legal significance. Imagine a
mortgage statement that included language typically found in a
demand letter but lacked the “attempt to collect a debt” lan-
guage—or expressly disclaimed that it was an attempt to collect a
debt altogether. Would that insulate the servicer from the
FDCPA requirements? In my view, the answer is “no.” For the
same reason, including that sentence in a monthly mortgage
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19-10204 LAGOA, J., Dissenting 3
statement that in all other respects simply includes language re-
quired by the TILA does not automatically mean that the state-
ment is subject to both the TILA and the FDCPA.
Courts should look at the substance of the communication
to determine whether the FDCPA applies, i.e., by determining
whether the communication uses language typically seen or used
in debt-collection efforts. Because that type of language is not
present here, the “attempt to collect a debt” sentence alone can-
not be the basis for a reversal. I would affirm the dismissal of
Daniels’s complaint.
A. FDCPA, TILA, and the Eleventh Circuit
Under the relevant FDCPA provisions, a debt collector
may not (1) “engage in any conduct the natural consequence of
which is to harass, oppress, or abuse any person in connection
with the collection of a debt,” 15 U.S.C. § 1692d, (2) “use any
false, deceptive, or misleading representation or means in connec-
tion with the collection of any debt,” id. § 1692e, or (3) “use unfair
or unconscionable means to collect or attempt to collect any
debt,” id. § 1692f. Similarly, the relevant Florida Consumer Col-
lections Practices Act (“FCCPA”) provisions require the action to
be made in connection with “collecting [a] . . . debt.” Fla. Stat.
§ 559.72(7), (9).
In Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678
F.3d 1211, 1216 (11th Cir. 2012), this Court held that to state a
plausible FDCPA claim the plaintiff “must allege, among other
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4 LAGOA, J., Dissenting 19-10204
things, (1) that the defendant is a ‘debt collector’ and (2) that the
challenged conduct is related to debt collection.” At issue in
Reese was “a collection or ‘dunning’ notice, which consisted of a
cover letter and three documents” sent by a law firm. Id. at 1214.
The cover letter provided that it was intended to advise the plain-
tiffs that their “Note has been and is declared to be in default for
non-payment and Lender hereby demands full and immediate
payment of all amounts due and owing thereunder,” that “attor-
ney’s fees will be added to the total amount for which collection is
sought,” and that non-payment will result in foreclosure. Id. The
attached documents also contained various statements in all capi-
tal letters stating that the law firm was attempting to collect a
debt, as well as statements related to the forced sale of the proper-
ty and the deadline for disputing the debt. Id. at 1214–15. This
Court found that “[i]n light of all that language” the plaintiffs had
sufficiently alleged that the notice was a communication related
to the collection of a debt for purposes of the FDCPA. Id. at 1217.
In Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1300–
01 (11th Cir. 2014), the lender’s law firm sent the plaintiff a letter
stating that she “was behind in her payments on her residential
mortgage and owed the lender” just under $270,000. The letter
stated that the plaintiff could dispute the validity of the debt and
that “[t]his communication is for the purpose of collecting a debt,
and any information obtained from the debtor will be used for
that purpose.” Id. at 1301. The letter also contained references,
in two additional paragraphs, to “collection efforts” and stated: (1)
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19-10204 LAGOA, J., Dissenting 5
those collections efforts would continue, (2) that additional attor-
ney’s fees and costs would accrue, (3) the amount of the debt,
with indication that it must be paid in certified funds, and (4) the
name of the creditor and the phone number of the law firm in the
paragraph relating to payments. Id. at 1303. This Court found
that no reasonable person would consider the letter to be a legal
pleading 1 (let alone a formal one) and concluded that it was “a
communication in connection with the collection of a debt.” Id.Under the TILA, a servicer (with respect to a residential
mortgage loan) must send the obligor a statement for each billing
cycle containing certain information in a “conspicuous and prom-
inent manner.” 15 U.S.C. § 1638(f)(1). The statement must in-
clude:
(A) The amount of the principal obligation under the
mortgage.
(B) The current interest rate in effect for the loan.
(C) The date on which the interest rate may next re-
set or adjust.
(D) The amount of any prepayment fee to be
charged, if any.
1 Under 15 U.S.C. § 1692g(d), “a communication in the form of a formal
pleading in a civil action shall not be treated as an initial communication for
purposes of section (a).” Section 1692g(a) addresses the contents required in
the initial communication by a debt collector with a consumer in connection
with the collection of any debt.
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6 LAGOA, J., Dissenting 19-10204
(E) A description of any late payment fees.
(F) A telephone number and electronic mail address
that may be used by the obligor to obtain infor-
mation regarding the mortgage.
(G) contact information, as specified by the statute,
of counseling agencies or programs reasonably
available to the obligor that have been certified or
approved and made publicly available by the Secre-
tary of Housing and Urban Development or a state
housing finance authority . . . .
(H) Such other information as the [Consumer Fi-
nancial Protection Bureau (“CFPB”)] may prescribe
in regulations.
Id. Those CFPB regulations require that a periodic statement also
include information such as the amount due, the payment due
date, the amount of any late payment fee and the date on which it
will be imposed, and delinquency information, including: the
length of the delinquency; the risk of consequences like foreclo-
sure; and notice as to whether the servicer has made the first no-
tice required for foreclosure. See 12 C.F.R. § 1026.41(d)(1)–(8).
Pursuant to § 1638(f)(2), the CFPB has developed and pub-
lished standard disclosure forms. See 12 C.F.R. ch. X, pt. 1026,
App’x H, Forms H-30(A), H-30(B), H-30(C). These sample forms
contain payment coupons, but they lack the “this is an attempt to
collect a debt” language present in Select Portfolio’s mortgage
statements.
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19-10204 LAGOA, J., Dissenting 7
Unlike the case before us here, neither Reese nor Caceres
involved a mortgage statement required to be sent under the
TILA. Although not binding on us as an unpublished decision,
this Court has considered whether mortgage statements that gen-
erally comply with the TILA’s requirements implicate the
FDCPA. In Green v. Specialized Loan Servicing LLC, 766 F.
App’x 777, 784 (11th Cir. 2019), the plaintiff claimed that a ser-
vicer violated the FDCPA by sending a mortgage statement that
allegedly “falsely included time-barred payments from more than
five years prior.” The mortgage statement in Green contained
the following language: (1) “You are currently due for the
07/01/10 payment,” and (2) “Amount to bring loan current:
Please note, if your account is past due, this amount may not in-
clude all fees or other amounts necessary to fully reinstate your
loan.” Green v. Specialized Loan Servicing LLC, 280 F. Supp. 3d
1349, 1355 (M.D. Fla. 2017). A comparison of the mortgage
statement attached as an exhibit to the plaintiff’s complaint in
Green and Select Portfolio’s mortgage statement shows that,
while not identical, there are no material differences between
them. Both contain the TILA-mandated information regarding
the status of the loan, both contain payment coupons, and while
the statement in Green does not include the “attempt to collect a
debt” language, it does state, “SPECIALIZED LOAN SERVICING
LLC IS REQUIRED BY FEDERAL LAW TO ADVISE YOU
THAT THIS COMMUNICATION IS FROM A DEBT
COLLECTOR.” Amended Complaint at 19, Green v. Specialized
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 38 of 50
8 LAGOA, J., Dissenting 19-10204
Loan Servicing LLC, 280 F. Supp. 3d 1349 (M.D. Fla. 2017) (No.
6:16-cv-1298-Orl-37KRS, ECF No. 21). 2
This Court concluded that there was “nothing in the lan-
guage in question from the Mortgage Statement, beyond what is
required by TILA, which rises to the level of being unlawful debt
collection language.” Green, 766 F. App’x at 784. While the
plaintiff argued that the servicer should have reduced the total
amount shown due and not included payments due beyond five
years prior, this Court noted that (1) the TILA regulations re-
quired the statement to include delinquency information and (2)
“under Florida law, a lien remains on a property throughout the
term of the mortgage irrespective of any statute of limitations.”
Id. at 784–85 (citing Countrywide Home Loans, Inc. v. Burnette,
177 So. 3d 1032, 1034 (Fla. Dist. Ct. App. 2015)). As such, this
Court concluded that “the district court did not err in finding that
the content of the mortgage statement does not rise above the
‘garden variety’ type of statement required by TILA, even for the
‘least sophisticated consumer.’” Id. at 785 (quoting Green, 280 F.
Supp. 3d at 1355).
Additionally, in Green, this Court recognized that “a
monthly statement that is in conformity with TILA may never-
theless include additional language that constitutes debt collec-
2 The Court “may take judicial notice of [our] own records and the records
of inferior courts.” United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir.
1987).
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 39 of 50
19-10204 LAGOA, J., Dissenting 9
tion,” such as the language discussed in Kelliher v. Target Nation-
al Bank, 826 F. Supp. 2d 1324 (M.D. Fla. 2011). Id. (emphasis add-
ed). Relevant here, this Court distinguished the statements in
Green from those in Kelliher because the mortgage statement in
Green “lack[ed] the strong demands for payments used by debt
collectors in cases like Kelliher.” Id. The three mortgage state-
ments at issue in Kelliher contained increasingly stronger de-
mands for payment: (1) “Please Contact Us About Your Past Due
Account . . . We have a number of special payment arrangements,
but we need to hear from you in order to try to help,” (2) “Ac-
count Seriously Past Due . . . but we may still be able to offer spe-
cial payment arrangements. . . . Your first step is to call us,” and
then (3) “If we don’t set up payment arrangements for your RED-
card soon, we’ll charge off your account and report it to the credit
bureaus as bad debt. There’s still time to work with us . . . .” 826
F. Supp. 2d at 1328. The district court in Kelliher found that these
statements constituted debt collection language under the
FDCPA, even if the rest of the mortgage statements complied
with the TILA. Id. at 1328–29.
The same approach this Court took in Green—looking at
the substance of the communication sent to the debtor to deter-
mine whether it contains language associated with debt collection
activity—was also taken in Saint Vil v. Perimeter Mortg. Funding
Corp., 630 F. App’x 928 (11th Cir. 2015). The legal issue in Saint
Vil involved a separate, but related, question under the FDCPA:
Was the defendant acting as a “debt collector” for purposes of the
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 40 of 50
10 LAGOA, J., Dissenting 19-10204
statute? Id. at 930–31. In Saint Vil, the plaintiffs’ lender claimed
that plaintiffs were in default on their mortgage, and the lender’s
law firm sent them two notices of foreclosure, as required by
Georgia law. Id. Although neither notice demanded payment of
the underlying debt, the last line of each notice stated that that
the law firm was “acting as a debt collector.” Id. at 931. This
Court concluded, however, that the “acting as a debt collector”
language did not automatically make the law firm a “debt collec-
tor” for FDCPA purposes, explaining that “the question in decid-
ing whether a law firm acted as a debt collector is not simply
what the firm called itself but rather whether the firm acted as
debt collector as that term is defined by the statute.” Id. (empha-
sis added). Although the firm’s own description of itself was one
factor to consider, “it d[id] not end the inquiry,” and had the firm
“taken other action that could be interpreted as trying to induce
payment of the debt,” such as “threatening additional penalties or
fees, hounding the Saint Vils for payment, proposing alternatives
to immediate or full payment, or even just telling the Saint Vils
the amount they needed to pay, then the firm might have been
acting as a debt collector under the FDCPA.” Id. at 931–32. None
of those circumstances existed, however, and the plaintiffs relied
solely on the one sentence in the foreclosure notice. Id. at 932.
Rejecting that argument, we concluded that “sending just the
statutorily required notice of foreclosure was not enough.” Id.
As the majority recognizes, other than the single sentence
stating, “[t]his is an attempt to collect a debt,” nothing else in Se-
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 41 of 50
19-10204 LAGOA, J., Dissenting 11
lect Portfolio’s statements is alleged to be beyond what is re-
quired by the TILA. Maj. Op. at 20. Unlike Kelliher, there are no
increasingly threatening demands for immediate payment in the
mortgage statements that Select Portfolio sent to Daniels, see 826
F. Supp. 2d at 1328, nor are there statements like those that this
Court considered actionable under the FDCPA in Reese and Ca-
ceres, see 678 F.3d at 1214–15; 755 F.3d at 1303. And while the
“attempt to collect a debt” language is not contained in the sam-
ple forms in the TILA regulations, this additional language by it-
self does not “materially deviate in substance” from the regula-
tion’s requirements, which unquestionably seek to inform the
debtor of the status of his debt and the consequences of nonpay-
ment. See Zavala v. Select Portfolio Servicing Inc., No. 18-cv-
61651-BLOOM/Valle, 2018 WL 6198685, at *2–3 (S.D. Fla. Nov.
28, 2018) (finding that “this is an attempt to collect a debt” lan-
guage by itself did not automatically convert a monthly statement
required by the TILA into debt collection activity under the
FDCPA); Jones v. Select Portfolio Servicing, Inc., No. 1:18-cv-
20389-UU, 2018 WL 2316636, at *4 (S.D. Fla. May 2, 2018) (same).
Again, Green and Saint Vil, are not binding on us. And
there is a difference of opinion among the district courts in our
circuit regarding this issue. But I think that Green, Saint Vil, and
decisions like Zavala and Jones got it right; the majority’s conclu-
sion that, by including this extra language—which is not required
but is neither inconsistent with nor materially additive to TILA’s
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12 LAGOA, J., Dissenting 19-10204
requirements—the periodic mortgage statements have become
communications subject to the FDCPA is far too broad.
B. How This Issue Has Fared in Other Circuits
Each circuit that has considered the issue has concluded
that inclusion of “this is an attempt to collect a debt” language,
without more, does not convert an otherwise routine communi-
cation about a debt into a debt-collection statement subject to the
FDCPA. See Gburek v. Litton Loan Servicing LP, 614 F.3d 380,
386 n.3 (7th Cir. 2010) (stating that the fact that a communication
to a debtor in default on her mortgage “bore a disclaimer identify-
ing it as an attempt to collect a debt, . . . does not automatically
trigger the protections of the FDCPA, just as the absence of such
language does not have dispositive significance” (citing Lewis v.
ACB Bus. Servs, Inc., 135 F.3d 389, 399 (6th Cir. 1990))) 3; Maynard
v. Cannon, 401 F. App’x 389, 395 (10th Cir. 2010) (explaining that
the inclusion of “attempt to collect a debt” language “does not in-
evitably lead to the conclusion” that non-judicial foreclosure ac-
tions fall within the scope of the FDCPA, as such language, like an
explicit statement that a communication is not meant as a debt
collection, is “legally irrelevant”); Boosahda v. Providence Dane
LLC, 462 F. App’x 331, 334–35 (4th Cir. 2012) (rejecting argument
3 In Lewis, the Sixth Circuit explained that “the mere fact that the letter
states at the bottom that it ‘is an attempt to collect a debt’ does not trans-
form the letter into an unlawful demand for payment” under a previous ver-
sion of the FDCPA that required such a statement on all communications.
135 F.3d at 399.
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 43 of 50
19-10204 LAGOA, J., Dissenting 13
that FDCPA disclaimer language that sender is “attempting to col-
lect a debt” satisfies burden of showing that debt was consumer
debt because such language lacks legal significance); Goodson v.
Bank of Am., N.A., 600 F. App’x 422, 431–32 (6th Cir. 2015) (not-
ing that a statement that the loan servicer “was ‘a debt collector
attempting to collect a debt’” in a letter to the mortgagor in de-
fault informing her of a change in loan servicer and also allegedly
falsely representing the amount due “did not, by itself, transform
[an] informational letter into debt collection activity”); Tabb v.
Ocwen Loan Servicing, LLC, 798 F. App’x 726, 729 (3d Cir. 2020)
(noting that a disclaimer that sender is not attempting to collect a
debt “does not automatically insulate the communication from
liability under the FDCPA” and that courts must look to the con-
text and content of the communication).
Most recently, in Heinz v. Carrington Mortgage Services,
LLC, 3 F.4th 1107, 1112–14 (8th Cir. 2021), the Eighth Circuit
concluded that several communications were not made in con-
nection with the collection of the debt and thus did not fall within
the scope of the FDCPA. At issue in Heinz were four communi-
cations that the plaintiff identified as violating the FDCPA be-
cause of misrepresentations they contained. Id. at 1109–10. In
determining whether each communication was made in connec-
tion with the collection of a debt, the Eighth Circuit considered
(1) the amount and type of information about the loan in the
communications, (2) whether there was a request or demand for
payment, and (3) the timing of the communications. Id. at 1112–
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 44 of 50
14 LAGOA, J., Dissenting 19-10204
14. Additionally, the Eighth Circuit noted that each communica-
tion contained what it characterized as a “so-called ‘Mini-Miranda’
statement” in the disclosures section. Id. at 1114. That statement
provided, in relevant part, that “[t]his communication is from a
debt collector and it is for the purpose of collecting a debt and any
information obtained will be used for that purpose.” Id. While
recognizing that “[a]t first glance, it may seem implausible that a
communication labeled by the sender as ‘for the purpose of col-
lecting a debt’ would, in fact, not be sent ‘in connection with the
collection of a debt,’” the Eighth Circuit explained that “these
types of boilerplate mini-Miranda disclosures . . . ‘do[] not auto-
matically trigger the protections of the FDCPA, just as the ab-
sence of such [disclosures] does not have dispositive signifi-
cance.’” Id. (alterations in original) (citation omitted) (quoting
Gburek, 614 F.3d at 386 n.3). Rather, the court concluded that it
must “look to the substance of the letter—what information it
provides and what it asks the borrower to do—to determine
whether an ‘animating purpose’ is ‘to induce payment by the
debtor.’” Id. (emphasis in original) (quoting McIvor v. Credit
Control Servs., Inc., 773 F.3d 909, 914 (8th Cir. 2014)). As the
communications did not try to induce the plaintiff to pay the out-
standing debt, the court concluded that “a routine disclosure
statement that is at odds with the remainder of the letter does not
turn the communication into something that it is not—in this
case, a communication made in connection with the collection of
a debt for the purposes of the FDCPA.” Id.USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 45 of 50
19-10204 LAGOA, J., Dissenting 15
C. Application to This Case
Consistent with our cases, as well as the general approach
of the other circuits, this Court should focus on the substance of
the language used in the mortgage statements Select Portfolio
sent to Daniels to determine whether they are debt-collection
communications covered by the FDCPA. Although we are re-
viewing the district court’s Rule 12(b)(6) dismissal of Daniels’s
complaint for failure to state a plausible claim under the FDCPA
and the FCCPA, the issue this appeal requires us to answer is
whether, based on her complaint and the content of the attached
statements, Daniels has plausibly alleged that those mortgage
statements were made “in connection with the collection of a[ ]
debt” under the FDCPA or in “collecting [a] . . . debt” under the
FCCPA. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 4
Daniels claims that the November 2016 statement she re-
ceived was the most problematic. This statement is titled “Mort-
4 Other courts have similarly ruled on this question at the pleading
stage, see, e.g., McIvor, 773 F.3d at 914–16, and in ruling on this question
have determined that courts may consider the contents of the relevant
communications. Here, Daniels attached the relevant communications to
her complaint, see Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir.
2016) (“A district court can generally consider exhibits attached to a com-
plaint in ruling on a motion to dismiss, and if the allegations of the complaint
about a particular exhibit conflict with the contents of the exhibit itself, the
exhibit controls.”). It is therefore proper for us to consider the attached ex-
hibits to the complaint at this procedural stage.
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16 LAGOA, J., Dissenting 19-10204
gage Statement” and provides: (1) the amount due ($9,075.71)
with the loan and payment due dates, (2) an “Explanation of
Amount Due” section, (3) a “Past Payments Breakdown” section,
(4) a “Transaction Activity” section, (5) information regarding
partial payments (and overpayments), (6) Select Portfolio’s con-
tact information, and (7) an “Account Information” section, in-
cluding the interest bearing principal, the deferred principal, the
outstanding principal, the interest rate, and the lack of prepay-
ment penalty. The November 2016 statement also contains a
“Delinquency Notice” section with delinquency information,
which states: (1) “You are late on your mortgage payments. Fail-
ure to bring your loan current may result in fees and foreclosure –
the loss of your home,” (2) the length of delinquency, (3) the
amount to pay to make the loan current, (4) that Select Portfolio
had completed the first notice/filing to start a foreclosure, and (5)
information about mortgage counseling or assistance. All of this
information is in line with—indeed, required by—the TILA. The
November 2016 statement also contains a “payment coupon,”
which the TILA’s sample forms also contain. See 12 C.F.R. ch. X,
pt. 1026, App’x H, Forms H-30(A), H-30(B), H-30(C).
Here, the language of the November 16 statement (and the
other periodic monthly statements) complies with the TILA’s re-
quirement to send mortgagors a statement each billing cycle with
all the aforementioned information in order to provide Daniels
with information about her mortgage. Because a communication
to a debtor can be subject to both the TILA and the FDCPA,
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 47 of 50
19-10204 LAGOA, J., Dissenting 17
however, we need to determine whether, through the inclusion
of the additional sentence—“This is an attempt to collect a
debt”—the monthly statements also are communications in con-
nection with the collection of a debt subject to the FDCPA.
Based on the cases discussed above, the inclusion of that
language does not automatically turn a periodic, statutorily-
mandated TILA communication from a debt collector into a
communication that also falls within the scope of the FDCPA.
Indeed, the law firms’ demand letters in Reese and Caceres in-
volved materially different language demanding payment and
threatening consequences for nonpayment. By contrast, there is
no material difference between the inclusion of the “attempt to
collect a debt” language in Select Portfolio’s mortgage statements
and the TILA’s requirements that a periodic statement contains
information such as the amount due, the due date, and delin-
quency information, and the TILA’s regulations authorizing the
use of sample forms providing “payment coupons.” Moreover,
the information contained in the payment coupons is derived
from the information already disclosed in the mortgage state-
ments in compliance with the TILA. There is no new infor-
mation contained in the payment coupons, not even a demand
for payment; the coupons simply provide Daniels with a conven-
ient way to make payment, if she so desires. Nor is there a mate-
rial difference between Select Portfolio’s mortgage statements
and the mortgage statement considered in Green.
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18 LAGOA, J., Dissenting 19-10204
In addition to the “attempt to collect a debt” sentence, the
majority also notes that Daniels alleges that she prevailed in an
earlier mortgage foreclosure action brought against her by the
lender, which resulted in a loan modification agreement. Maj.
Op. at 14. Daniels alleges that the sums shown in Select Portfo-
lio’s mortgage statements as presently due and owing are incor-
rect because they do not reflect the terms of the loan modification
agreement and liability is therefore triggered under the FDCPA.
But Daniels’s allegations explaining why the information in the
mortgage statements is “false, misleading, or deceptive” do not
answer the threshold question of whether the FDCPA applies to
the statements. Reese and Caceres require us to look at the lan-
guage used in the statements themselves, and I remain uncon-
vinced that Daniels’s liability allegations can bolster the state-
ments’ language for purposes of determining whether the FDCPA
applies here.
All TILA-mandated information, by its very nature, consti-
tutes a communication relating to the status of the debt. That in-
cludes the TILA-mandated information about making a payment
and TILA-authorized payment coupons providing the debtor a
way to make a payment if the debtor wants to do so. But that is
different from a communication made in connection with seeking
to collect on the debt for purposes of the FDCPA. As a result, I
cannot conclude that a TILA-mandated mortgage statement that
includes a sentence stating that it is “an attempt to collect a debt,”
without, for example, stronger demands for full or partial pay-
USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 49 of 50
19-10204 LAGOA, J., Dissenting 19
ment and threats of consequences for failure to do so, gives rise to
a claim under the FDCPA. Indeed, neither this Court nor other
circuits have adopted a test based solely on the presence or ab-
sence of certain “magic words;” instead, a court must look at the
language used in the mortgage statement to determine whether it
materially deviates from what is required by TILA.
Because the language in Select Portfolio’s mortgage state-
ments to Daniels does not materially vary from what is required
to comply with TILA’s mandates for periodic statements sent to a
residential mortgagor, and because the statements do not include
the type of debt-collection language discussed in Reese, Caceres,
Green, and Saint Vil, I conclude that Select Portfolio’s mortgage
statements to Daniels do not “rise above the ‘garden variety’ type
of statement required by TILA.” Green, 766 F. App’x at 785; see
also, e.g., Hill v. DLJ Morg. Cap., Inc., 689 F. App’x 97, 98 (2d Cir.
2017) (affirming dismissal of FDCPA claims premised on TILA-
mandated monthly statements and explaining that the mortgage
servicer “sent these statements in compliance with the
[TILA] . . . , which requires mortgage loan servicers to transmit
monthly statements to consumers” and that “[w]ith this in mind,
the monthly statements here do not reflect attempts to collect on
the debt evidenced by the Note”). And because Daniels’s FDCPA
claims are predicated solely on the language in these mortgage
statements and not on additional communications sent to her by
Portfolio Select, I further conclude that Daniels failed to state
plausible claims that Select Portfolio violated the FDCPA and that
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20 LAGOA, J., Dissenting 19-10204
the district court did not err in dismissing her complaint. Accord-
ingly, I respectfully dissent.