USCA11 Case: 20-14286 Date Filed: 07/01/2022 Page: 1 of 11
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14286
____________________
CHARLES LAMIRAND,
TRACY LAMIRAND,
Plaintiffs-Appellants,
versus
FAY SERVICING, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00138-SPC-MRM
____________________
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2 Opinion of the Court 20-14286
Before JILL PRYOR, GRANT, and MARCUS, Circuit Judges.
GRANT, Circuit Judge:
One of the duties of courts is to resolve conflicts between
the statutes that Congress enacts. But that duty is not a license to
ignore laws that Congress has crafted. Instead, one statute
displaces another only when the two clearly conflict—not when
they simply regulate similar conduct.
Here, the asserted conflict is between the Fair Debt
Collection Practices Act (FDCPA) and the Truth in Lending Act.
The relevant provisions of the FDCPA prohibit a debt collector
from using unfair debt-collection methods and from making false
or misleading statements in connection with debt collection. And
the Truth in Lending Act requires mortgage-loan servicers to send
clients “periodic statements” with information about their loans.
We see no conflict—a periodic statement can also be
truthful and fair. In fact, this Court recently harmonized the two
statutes, holding that a periodic statement mandated by the Truth
in Lending Act can also be a debt-collection communication
covered by the FDCPA. Daniels v. Select Portfolio Servicing, Inc.,
34 F.4th 1260, 1263 (11th Cir. 2022). Because the complaint here
plausibly alleges that the periodic statements sent to the plaintiffs
aimed to collect their debt, we reverse the district court’s dismissal
of their complaint.
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20-14286 Opinion of the Court 3
I.
Charles and Tracy Lamirand took out a mortgage loan to
buy a home in Florida but did not keep up with the payments.
After they defaulted, the loan servicer sued to foreclose on the
home. While the foreclosure suit was pending, Fay Servicing took
over the loan. A disagreement arose, leading the Lamirands to sue
Fay Servicing. The parties soon settled both lawsuits and agreed
that the Lamirands owed $85,790.99 on the loan, to be paid in one
year.
But four months later, Fay Servicing sent the Lamirands a
mortgage statement notifying them that their loan had “been
accelerated” because they were “late on [their] monthly
payments.” On Fay Servicing’s fast-tracked timetable, the
Lamirands owed $92,789.55 to be paid in a month. If they did not
pay, Fay Servicing’s statement warned, they risked more fees and
even “the loss of [their] home to a foreclosure sale.” The statement
then detailed many—many—ways that the Lamirands might pay.
Each month a new periodic statement arrived in the
Lamirands’ mailbox, with the due date one month later and the
amount due ticking upward. And each month the statement bore
the same warning—pay now or you might lose your home—along
with the same reminders of the many ways to pay.
The statements distressed the Lamirands, who thought they
needed to pay only $85,790.99 and make that payment by the date
set in the settlement agreement. They eventually sued, alleging
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4 Opinion of the Court 20-14286
that by sending the statements Fay Servicing had violated the
FDCPA and Florida’s Consumer Collection Practices Act. The
district court disagreed, at least about Fay Servicing’s liability under
the FDCPA. The statute’s relevant provisions, it reasoned, make a
person liable only for conduct “related to debt collection.”
Lamirand v. Fay Servicing, LLC, No. 20-cv-138,
2020 WL 6134356,
at *3 (M.D. Fla. Oct. 19, 2020) (quoting Reese v. Ellis, Painter,
Ratterree & Adams, LLP,
678 F.3d 1211, 1216 (11th Cir. 2012)). To
the district court, the periodic statements were unrelated to debt
collection—even though they urged the Lamirands to make their
past-due loan payments—because Fay Servicing was required to
send monthly updates under the Truth in Lending Act. The court
thus held that the Lamirands had not stated an FDCPA claim,
declined to exercise supplemental jurisdiction over the Florida law
claims, and dismissed the complaint. This appeal followed.
While the appeal was pending, this Court explained in
Daniels v. Select Portfolio Servicing that courts “must try to give
meaning to both” the FDCPA and the Truth in Lending Act. 34
F.4th at 1269. After examining both the language and context of
the periodic statements in that case, we held that the plaintiffs had
stated an FDCPA claim. See id. at 1268–69, 1274. We now address
whether the Lamirands likewise have plausibly alleged that Fay
Servicing’s periodic statements were “attempts to collect or induce
payment on a debt.” Id. at 1263.
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20-14286 Opinion of the Court 5
II.
We review a dismissal for failure to state a claim de novo,
accepting as true factual allegations in and documents attached to
the complaint. See Reese,
678 F.3d at 1215–16. A complaint
survives a motion to dismiss if it states “a claim to relief that is
plausible on its face”—in other words, if its factual allegations allow
a court “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662,
678 (2009) (quotation omitted).
III.
The FDCPA provisions relevant here prohibit a person from
making false or misleading representations “in connection with the
collection of any debt,” and from using “unfair or unconscionable
means” of debt collection. 15 U.S.C. §§ 1692e, 1692f. The
Lamirands have alleged that Fay Servicing sent them periodic
statements containing false information—information suggesting
that Fay Servicing was ignoring the settlement agreement by
telling them that they owed a larger amount of money sooner. So
the question is whether those representations were “in connection
with” or a “means” of debt collection if they came in periodic
statements required under the Truth in Lending Act.
A communication has the necessary nexus to debt collection
under the FDCPA if it “conveys information about a debt and its
aim is at least in part to induce the debtor to pay.” Caceres v.
McCalla Raymer, LLC,
755 F.3d 1299, 1302 (11th Cir. 2014). To
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6 Opinion of the Court 20-14286
determine whether a communication has those traits, we view it
“holistically.” Daniels, 34 F.4th at 1268. Here, a comprehensive
view of Fay Servicing’s monthly statements reveals that they had
both traits. They told the Lamirands about the remaining
principal, the interest rate, the amount owed, the date payment
was due, and the delinquency on the account. And throughout,
the statements advised the Lamirands to pay. In multiple places
they bolded the amount due, and instructed that the Lamirands
“must pay this amount to bring [their] loan current.” The
statements also warned that a failure to pay the over $90,000 due
could “result in additional fees or expenses, and in certain
instances,” the “loss of [their] home to a foreclosure sale.”
Presumably with the hope that those warnings would
persuade the Lamirands to pay, Fay Servicing included a
detachable payment coupon, prefaced with the all-caps command:
“DETACH AND RETURN BOTTOM PORTION WITH YOUR
PAYMENT.” And that was not all. Fay dedicated the back of its
periodic statements to listing other ways to pay—sometimes twice.
The statements also noted that “Fay Servicing, LLC is a debt
collector, and information you provide to us will be used for that
purpose.”
The Lamirands’ FDCPA claims can survive a motion to
dismiss so long as their complaint alleges that the statements
plausibly “aim[ed],” “at least in part,” to induce them to pay.
Caceres, 755 F.3d at 1302. Considered as a whole, these statements
easily satisfy that standard. See Daniels, 34 F.4th at 1268.
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20-14286 Opinion of the Court 7
Even so, Fay Servicing insists that the statements are
unconstrained by the FDCPA’s limitations on debt collection
because the Truth in Lending Act requires that they be sent. We
are unpersuaded. That statute’s “periodic statements” must be
sent for each billing cycle, and must inform homeowners of
(among other things) the amount due on their loans, the due date
for payment, and any details on the loans’ delinquency.
15 U.S.C.
§ 1638(f)(1);
12 C.F.R. § 1026.41(d). The goal is “to assure a
meaningful disclosure of credit terms” to consumers.
15 U.S.C.
§ 1601(a).
Both the Truth in Lending Act and the FDCPA apply here.
And when faced with two applicable statutes, we lack the power to
“pick and choose” which has the force of law. Daniels, 34 F.4th at
1269 (quoting Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1624
(2018)). Instead, our role is to harmonize overlapping statutes
whenever possible so as to “give effect” to each.
Id. (quoting Epic
Sys. Corp.,
138 S. Ct. at 1624). Here that task is simple. Nothing
in the Truth in Lending Act says that a periodic statement cannot
serve as a means of debt collection. Nor do the two statutes
irreconcilably conflict in their operation. See Tug Allie-B, Inc. v.
United States,
273 F.3d 936, 944 (11th Cir. 2001). The Truth in
Lending Act requires a servicer to send periodic statements, and
the FDCPA requires those statements to be fair and accurate when
they contain language that would induce a debtor to pay. The
statutes thus reinforce each other, ensuring that consumers receive
both regular and accurate information about their mortgage loans.
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8 Opinion of the Court 20-14286
We see no conflict in requiring that statements under the Truth in
Lending Act be, in fact, truthful.
Fay Servicing says that the purpose of its periodic statements
is to inform. See
15 U.S.C. § 1601(a). That may well be true, but
we have recognized that “a communication can have more than
one purpose.” Caceres, 755 F.3d at 1302; see also Daniels, 34 F.4th
at 1268. Here, Fay Servicing might have sent the statements to give
the Lamirands information about their debt, or even simply to
comply with its disclosure duties. The “possibility that some
portions of the statements were informational,” though, “does not
doom” the Lamirands’ argument that they also were debt-
collection attempts governed by the FDCPA. Daniels, 34 F.4th at
1268. And a factfinder could easily conclude that by the statements’
own terms they seek to collect a debt that the Lamirands
supposedly owe.
Contrary to what Fay Servicing contends, those dual
purposes—notification and collection—can exist even when a
periodic statement resembles the template provided by the
Consumer Financial Protection Bureau. The Truth in Lending Act
directed the Bureau to create a “standard form” for periodic
statements.
15 U.S.C. § 1638(f)(2). Mortgage servicers likely
appreciate a guide to the information they should include. But
nothing in that statute—or in the FDCPA—suggests that words
cannot aim to induce a debtor to pay simply because they appear
in the Bureau’s template. And following the Bureau’s format does
not give servicers a license to insert incorrect information.
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20-14286 Opinion of the Court 9
In any event, the periodic statements here contain far more
language than the model form did—language that served to
persuade the Lamirands to pay. See
12 C.F.R. § 1026.41 app.
H-30(B); Daniels, 34 F.4th at 1270, 1271. Take the payment
coupon. The model form also includes one but, unlike the
statements here, does not head it with a command to “detach” and
“return” it “with your payment.” And Fay Servicing did not stop
there; the back page of each and every statement was dedicated
almost entirely to detailing ways to pay. Those additions make it
plausible—at least—that the statements aimed to do more than
simply inform the Lamirands of their debt.
Fay Servicing grasps at one more agency document for
support, suggesting that it is exempt from liability because a
Bureau bulletin carves the periodic statements out of the FDCPA
altogether. See 15 U.S.C. § 1692k(e). But the bulletin does nothing
of the sort.
Its target is a different FDCPA provision, one that limits
when debt collectors can contact debtors, not how. See Consumer
Fin. Prot. Bureau, CFPB Bulletin 2013-12, Implementation
Guidance for Certain Mortgage Servicing Rules 6–7 (2013). Called
the “cease-communication provision,” this portion of the FDCPA
prohibits a debt collector from contacting a debtor who has sent it
a written request to stop communicating with her. See 15 U.S.C.
§ 1692c(c). That prohibition collides with the Truth in Lending Act
obligation to regularly send a debtor information about her debt.
The bulletin addressed that conflict, advising servicers that they
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10 Opinion of the Court 20-14286
could send the statements—even to debtors who did not want to
hear from them—without incurring liability under the cease-
communication provision. See CFPB Bulletin 2013-12, at 6.
As we have made plain, there is no such conflict here. 1 See
Daniels, 34 F.4th at 1272. The Truth in Lending Act encourages
lenders to give consumers information about their loan—
information that is useful only if it is accurate and fair, as the
FDCPA requires. When servicers use periodic statements to
collect a debt, then, they can be held liable for any misleading or
unconscionable representations they make in those statements.
Fay Servicing cannot shield itself with a bulletin drafted to address
a completely different provision of the FDCPA.
* * *
Congress often requires companies to follow overlapping
rules. And courts cannot then ignore those rules; instead, they
must give effect to each one, unless the rules irredeemably conflict.
Because the two statutes here in fact work together, we hold that
1 In so doing, we disagreed with district courts that had used the bulletin to
hold that periodic statements sent substantially in compliance with the Truth
in Lending Act and its implementing regulations fell outside the FDCPA’s
coverage. See, e.g., Zavala v. Select Portfolio Servicing Inc., No. 18-cv-61651,
2018 WL 6198685, at *3 (S.D. Fla. Nov. 28, 2018); Jones v. Select Portfolio
Servicing, Inc., No. 18-cv-20389,
2018 WL 2316636, at *4–5 (S.D. Fla. May 2,
2018); Brown v. Select Portfolio Servicing, Inc., No. 16-62999-CIV,
2017 WL
1157253, at *2–4 (S.D. Fla. Mar. 24, 2017).
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20-14286 Opinion of the Court 11
Fay Servicing must comply with both. The district court’s
dismissal of the Lamirands’ complaint is therefore REVERSED.
