Dale Kaymark v. Bank of America NA , 783 F.3d 168 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 14-1816
____________
DALE KAYMARK, individually and on behalf of
other similarly situated current and former
homeowners in Pennsylvania,
Appellant
v.
BANK OF AMERICA, N.A.; UDREN LAW OFFICES, P.C.
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 2-13-cv-00419)
District Judge: Honorable Cathy Bissoon
______
Argued December 10, 2014
Before: FUENTES, FISHER and KRAUSE, Circuit Judges.
(Opinion Filed: April 7, 2015)
Jonathan R. Burns, Esq.
Michael P. Malakoff, Esq. ARGUED
Malakoff, Doyle & Finberg
437 Grant Street, Suite 200
Pittsburgh, PA 15219
Counsel for Appellant Dale Kaymark
Thomas L. Allen, Esq. ARGUED
Nellie E. Hestin, Esq.
Reed Smith
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Marc A. Goldich, Esq.
Andrew J. Soven, Esq.
Reed Smith
1717 Arch Street
Three Logan Square, Suite 3100
Philadelphia, PA 19103
Counsel for Appellee Bank of America, N.A.
Jonathan J. Bart, Esq. ARGUED
Wilentz, Goldman & Spitzer
Two Penn Center Plaza
Suite 910
Philadelphia, PA 19102
Counsel for Appellee Udren Law Offices, P.C.
______
2
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Dale Kaymark defaulted on a mortgage held by Bank
of America, N.A. (“BOA”). On behalf of BOA, Udren Law
Offices, P.C. (“Udren”) initiated foreclosure proceedings
against Kaymark in state court. The body of the Foreclosure
Complaint listed certain not-yet-incurred fees as due and
owing, which Kaymark alleges violated several state and
federal fair debt collection laws and breached the mortgage
contract. Because we conclude that Kaymark has sufficiently
pled that the disputed fees constituted actionable
misrepresentation under the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq., we will reverse the
District Court’s order dismissing certain FDCPA claims
against Udren but affirm its dismissal of all other claims.
I.
A.
Kaymark refinanced his home in Coraopolis,
Pennsylvania, in December 2006, executing a note for
$245,600 and granting BOA a mortgage. The mortgage was
insured by Fannie Mae (“FNMA”). The terms of the
mortgage state, in pertinent part:
Lender may charge Borrower fees for
services performed in connection with
Borrower’s default and for the purpose
of protecting Lender’s interest in the
Property and rights under this Security
Agreement, including, but not limited to,
3
attorneys’ fees, property inspection and
valuation fees.
....
If the default is not cured as specified . . .
. Lender shall be entitled to collect all
expenses incurred in pursuing the
remedies provided in this Section [],
including, but not limited to, attorneys’
fees and costs of title evidence to the
extent permitted by Applicable Law.
App. 72a (¶ 14), 75a (¶ 22) (emphases added).
Kaymark experienced a drop in income in June 2011
and failed to make his mortgage payments. On August 1,
2011, BOA sent Kaymark an “Act 91 Notice” of pre-
foreclosure delinquency pursuant to Pennsylvania’s Housing
Finance Agency Law, 35 P.S. § 1680.403c, which requires
mortgage-holders considering foreclosure to send
homeowners a notice as a prerequisite to initiating formal
action. An Act 91 notice must, among other things, include
an itemized breakdown of the total amount past due as of the
date of the notice and inform the homeowner that he is
entitled to thirty days plus three additional days for mailing to
meet with a consumer credit counseling agency to attempt to
resolve the delinquency. Id. Kaymark alleges his Act 91
Notice was improper by attempting to collect three months
payment when, at the date of mailing, Kaymark was only two
months in arrears, and by misrepresenting the time within
which Kaymark had to meet with a credit agency as thirty
days, instead of thirty-three days.
Over a year later, on September 13, 2012, Udren, on
behalf of BOA, filed a verified Foreclosure Complaint against
Kaymark in the Court of Common Pleas of Allegheny
4
County, Pennsylvania. The body of the Foreclosure
Complaint included an itemized list of the total debt, stating
that the following items were due and owing as of July 12,
2012:
Unpaid Principal Balance
$213,224.26
Accumulated Interest (07/01/2011-07/12/2012)
$13,452.47
Accumulated Late Charges
$177.74
Escrow Deficit / (Reserve)
$1,935.45
Title Report
$325.00
Attorney Fees
$1,650.00
Property Inspection
$75.00
Grand Total
$230,839.92
The above figures are calculated as of 07/12/2012[.]
App. 47a.
Kaymark alleges that the $1,650 in attorneys’ fees,
$325 in title report fees, and $75 in property inspection fees
(or $2,050 total) were not actually incurred as of July 12, two
months before the foreclosure action was filed on September
13. Kaymark also alleges that the fees were improperly
calculated on a fixed basis. Appellees retort that fixed fees
are contemplated under the FNMA servicing guide, which
sets the maximum foreclosure fee, or cap, for attorneys’ fees
at $1,650. See App. 85a-86a.
5
Kaymark contested the foreclosure action, which is
still pending in the Allegheny County Court of Common
Pleas. As such, Kaymark has never paid the disputed fees.
The parties do not dispute that these fees were ultimately
incurred in the course of the foreclosure action or that the fees
were ultimately reasonable. See App. 6a n.4.
B.
In February 2013, Kaymark filed a complaint on
behalf of himself and a putative class against BOA and Udren
(collectively, “Appellees”) in the Court of Common Pleas of
Allegheny County. In the original complaint, Kaymark
alleged that Appellees violated the Pennsylvania Loan
Interest and Protection Law (“Act 6”), 41 P.S. § 101 et seq.,
because the Foreclosure Complaint sought attorneys’ fees
which were not “actually incurred” upon commencement of
the foreclosure action. Id. § 406. Appellees removed the
case to the U.S. District Court for the Western District of
Pennsylvania and filed motions to dismiss on the grounds that
Kaymark’s mortgage exceeded the maximum baseline figure
to be governed under Act 6.
In response, Kaymark filed an amended complaint,
asserting the following four counts on the bases of the alleged
misrepresentations in the Foreclosure Complaint and/or Act
91 Notice: Count I, against BOA, for violating
§ 2270.4(b)(5)(ii), (v), (x), and (6)(i) of the Pennsylvania Fair
Credit Extension Uniformity Act (“FCEUA”), 73 P.S. §
2270.1 et seq.; Count II, against Udren, for violating §§
1692e(2)(A), (5), (10), and 1692f(1) of the FDCPA; Count
III, against both BOA and Udren, for violating the
Pennsylvania Unfair Trade Practices and Consumer
Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq., by
virtue of the violations of the FCEUA or by engaging in
certain “unfair or deceptive acts or practices,” in violation of
6
§ 201-2(4)(v) and (xxi); and Count IV, against BOA, for
common law breach of contract.
BOA and Udren again moved to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
The Magistrate Judge issued a Report and Recommendation
(“R&R”) to grant the motions on December 11, 2013. It
reasoned that Kaymark’s FDCPA claim that Appellees were
not authorized to list not-yet-incurred flat fees in the
Foreclosure Complaint was “rather hypertechnical,” App.
136a, and that “nowhere do the loan documents or any state
or federal law prohibit listing attorneys’ fees and other fixed
costs at the time of filing the complaint, but are reasonably
expected to be incurred,” App. 135a. It also explained that
Kaymark “pled himself out of the state causes of action”
because he did not show any actual loss or damage. App.
125a.
The District Court adopted the R&R and granted the
motions to dismiss in their entirety, with prejudice, on March
31, 2014. Agreeing that the inclusion of not-yet-incurred fees
was not prohibited by the mortgage contract or other state or
federal laws, the District Court dismissed the FDCPA claim.
It also concluded that Kaymark failed to demonstrate an
actual loss as a result of the alleged misrepresentations, and,
therefore, that he failed to state a claim under the UTPCPL
and the FCEUA. For the same reasons (i.e., failure to plead
actual loss), the District Court dismissed Kaymark’s breach of
contract claim against BOA. Kaymark timely appealed.
II.
The District Court exercised jurisdiction over
Kaymark’s FDCPA claim under 28 U.S.C. § 1331 and
supplemental jurisdiction over Kaymark’s state-law claims
under 28 U.S.C. § 1367. This Court exercises jurisdiction
under 28 U.S.C. § 1291.
7
We exercise plenary review over a district court’s
grant of a motion to dismiss under Rule 12(b)(6). See
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.
2012). “To survive a motion to dismiss, a complaint must
contain sufficient factual allegations, taken as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We accept
all factual allegations as true and construe all inferences in the
light most favorable to the plaintiff. Id.III.
A.
Congress enacted the FDCPA in 1977 “to eliminate
abusive debt collection practices by debt collectors.” 15
U.S.C. § 1692(e). The Court has repeatedly held that “[a]s
remedial legislation, the FDCPA must be broadly construed
in order to give full effect to these purposes,” Caprio v.
Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 148
(3d Cir. 2013), and, as such, we analyze the communication
giving rise to the FDCPA claim “from the perspective of the
least sophisticated debtor,” Rosenau v. Unifund Corp., 539
F.3d 218, 221 (3d Cir. 2008) (internal quotation marks
omitted).
Kaymark alleges that, by attempting to collect fees for
legal services not yet performed in the mortgage foreclosure,
Udren violated 15 U.S.C. § 1692e—specifically,
§ 1692e(2)(A), (5), and (10)—which imposes strict liability
on debt collectors who “use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt,” and § 1692f(1) by attempting to
collect “an[] amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such
amount is expressly authorized by the agreement creating the
debt or permitted by law.”
8
Bearing on these claims, the parties dispute the
relevance of our intervening decision in McLaughlin v.
Phelan Hallinan & Schmieg, LLP, 756 F.3d 240 (3d Cir.
2014)—decided by this Court after the District Court’s order.
In McLaughlin, we held that nearly-indistinguishable conduct
in a debt collection demand letter, rather than a foreclosure
complaint, violated the FDCPA. We now conclude that
McLaughlin’s holding extends to foreclosure complaints, and
we reverse the District Court’s order dismissing certain
FDCPA claims against Udren.
1.
Timothy McLaughlin defaulted on a mortgage held by
CitiMortgage. CitiMortgage referred the issue to Phelan
Hallinan & Schmieg, LLP (“PHS”), which sent McLaughlin a
demand letter on June 7, 2010, itemizing the total amount of
debt due as of May 18, 2010, as $365,488.40. Id. at 243. The
debt included two line items relevant here: $650 in
“Attorney’s Fees” and $550 for “Costs of Suit and Title
Search.” Id. (internal quotation marks omitted). Like in the
case at bar, “McLaughlin assert[ed], among other things, that
these fees and costs had not actually been incurred as of the
date stated in the Letter,” id., constituting actionable
misrepresentation under § 1692e(2) (“The false representation
of—(A) the character, amount, of legal status of any debt; or
(B) any services rendered or compensation which may be
lawfully received by any debt collector for the collection of a
debt.”) and (10) (“The use of any false representation or
deceptive means to collect or attempt to collect any debt or to
obtain information concerning a consumer.”) of the FDCPA.
When McLaughlin filed a class action complaint, the
district court held, among other things, that “estimating the
amount of attorneys’ fees in an itemized debt collection
notice does not violate the FDCPA,” id. (internal quotation
9
marks omitted), and dismissed McLaughlin’s claims. On
appeal, this Court reversed:
Nothing [in the Letter] says [the amount
owed on the debt] is an estimate or in
any way suggests that it was not a
precise amount. As the drafter of the
Letter, PHS is responsible for its content
and for what the least sophisticated
debtor would have understood from it. If
PHS wanted to convey that the amounts
in the Letter were estimates, then it could
have said so. It did not. Instead, its
language informs the reader of the
specific amounts due for specific items
as of a particular date. If the amount
actually owed as of that date was less
than the amount listed, then, construing
the facts in the light most favorable to
McLaughlin as we must when reviewing
the dismissal under Rule 12(b)(6),
McLaughlin has stated a claim that the
Letter misrepresents the amount of the
debt in violation of § 1692e(2) and (10).
Id. at 246 (internal citations omitted).
The facts in McLaughlin are virtually indistinguishable
from the case at bar. Here, the Foreclosure Complaint also
plainly “inform[ed] the reader of the specific amounts due for
specific items as of a particular date,” id., two months prior to
the date the Foreclosure Complaint was filed. Udren also did
not convey that the disputed fees were estimates or imprecise
amounts. Thus, pursuant to McLaughlin, the Foreclosure
Complaint conceivably misrepresented the amount of the debt
10
owed, forming a basis for violations of § 1692e(2)(A) and
(10).
By extension, it follows that Kaymark has sufficiently
alleged that Udren’s attempt to collect those misrepresented
fees was not “expressly authorized” by the mortgage contract
or permitted by law. § 1692f(1).1 To be sure, Kaymark
expressly agreed to the collection of certain fee categories,
such as “attorneys’ fees, property inspection and valuation
fees.” App. 72a (¶ 14). But the contract also specified that
BOA could only charge for “services performed in
connection with” the default and collect “all expenses
incurred” in pursuing authorized remedies. App. 72a (¶ 14),
75a (¶ 22) (emphases added). While such language is
arguably capable of more than one meaning, we must view
the Foreclosure Complaint through the lens of the least-
sophisticated consumer and in the light most favorable to
Kaymark. In this perspective, the most natural reading is that
Udren was not authorized to collect fees for not-yet-
performed legal services and expenses, forming a basis for a
violation of §1692f(1).2
This conclusion is not a departure from our sister
Circuits, which have held that demanding fees in the
collection of debts in a way contrary to the underlying
agreement is actionable under the FDCPA. See Kojetin v. C
U Recovery, Inc., 212 F.3d 1318 (8th Cir. 2000) (per curiam)
1
The district court dismissed this claim in
McLaughlin, and McLaughlin did not challenge it on appeal.
See McLaughlin, 756 F.3d at 244 n.5.
2
Because there is no such language for fixed fees, we
will presume that they were not prohibited by the mortgage
contract (or, in any event, intertwined with the argument that
the fees be actually incurred).
11
(finding FDCPA violation where the debt collector charged a
collection fee based on a percentage of the principal balance
of the debt due rather than the “actual cost[]” of collection as
stipulated in the loan agreement); Bradley v. Franklin
Collection Serv., Inc., 739 F.3d 606, 610 (11th Cir. 2014)
(finding § 1692f(1) violation where debtor “agreed to pay the
actual costs of collection,” not “a percentage above the
amount of his outstanding debt that was unrelated to the
actual costs to collect that debt”) (per curiam). Likewise,
Kaymark agreed to pay attorneys’ fees and other expenses
that were actually incurred in connection with the default, not
fees that might eventually be incurred.
However, because Udren did not “threat[en] to take
an[] action that cannot legally be taken,” 15 U.S.C.
§ 1692e(5), such as falsely threatening to file suit, see Brown
v. Card Serv. Ctr., 464 F.3d 450, 454-55 (3d Cir. 2006),
Kaymark fails to state a claim under § 1692e(5).
The false communication in McLaughlin was a debt
collection letter; here, of course, it is a Foreclosure
Complaint. Accordingly, to determine whether Kaymark has
sufficiently stated an FDCPA claim, we must decide whether
this distinction is fatal.
2.
The thrust of Udren’s argument is that pleadings—in
particular, foreclosure complaints—cannot be the basis of
FDCPA claims. However, the statutory text, as well at the
case law interpreting the text, renders this argument meritless.
In Heintz v. Jenkins, the Supreme Court established
that attorneys “engage[d] in consumer-debt-collection
activity, even when that activity consists of litigation” are
covered by the FDCPA. 514 U.S. 291, 299 (1995). In so
holding, the Court explained that Congress repealed an
express exemption from the definition of “debt collector” in
12
an earlier version of the statute for “any attorney-at-law
collecting a debt as an attorney on behalf of and in the name
of a client.” Id. at 294 (quoting Pub. L. No. 95-109,
§ 803(6)(F), 91 Stat. 874, 875 (1977)). Once Congress
amended the law without creating another exemption to fill its
void, the Court explained, “Congress intended that lawyers be
subject to the [FDCPA] whenever they meet the general ‘debt
collector’ definition.” Id. at 295; see 15 U.S.C. § 1692a(6)
(defining debt collector as “any person . . . who regularly
collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.”). That
the FDCPA covers attorneys engaged in debt collection
litigation is well-established law in this Circuit, see, e.g.,
Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 234 (3d
Cir. 2005) (“[I]f a communication meets the [FDCPA’s]
definition of an effort by a ‘debt collector’ to collect a ‘debt’
from a ‘consumer,’ it is not relevant that it came in the
context of litigation.”), and there is no dispute here that Udren
acted as a “debt collector” when, by filing the Foreclosure
Complaint, it “attempt[ed] to collect” a debt on behalf of
BOA. 15 U.S.C. § 1692a(6).
But Congress did not stop there. Subsequent to Heintz,
Congress twice amended the statute and exempted “formal
pleading[s] made in connection with a legal action” from 15
U.S.C. § 1692e(11), as amended Pub. L. No. 104-208,
§ 2305(a), 110 Stat. 3009, 3009-425 (1996), and
“communication[s] in the form of [] formal pleading[s]” from
§ 1692g(d), as amended Pub. L. No. 109-351, § 802(a), 120
Stat. 1966 (2006), two provisions not here at issue. If
Congress intended that all conduct in the course of formal
pleadings be exempt from the FDCPA, then these express
exemptions would be superfluous, and “courts should
disfavor interpretations of statutes that render language
13
superfluous.” Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253 (1992). Furthermore, as the Fourth Circuit explained,
“the fact that the amendment[s] occurred after Heintz further
indicates that Congress was aware of the Court’s
interpretation of the FDCPA and accepted it, except for the
narrow exemption[s] it provided for formal pleadings” in
§§ 1692e(11) and 1692g(d). Sayyed v. Wolpoff & Abramson,
485 F.3d 226, 231 (4th Cir. 2007); see also Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382
n.66 (1982) (“Congress is presumed to be aware of a[] . . .
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change . . . .”
(internal quotation marks omitted)). If Congress had wanted
to exclude formal pleadings from the protections of the
FDCPA under any of its other provisions, it could have done
so. It did not. Thus, except for §§ 1692e(11) and 1692g(d),
“[t]he amendment[s] by [their] terms in fact suggest[] that all
litigation activities, including formal pleadings, are subject to
the FDCPA.” Sayyed, 485 F.3d at 231.
We conclude that a communication cannot be uniquely
exempted from the FDCPA because it is a formal pleading or,
in particular, a complaint. This principle is widely accepted
by our sister Circuits. See, e.g., Currier v. First Resolution
Inv. Corp., 762 F.3d 529, 535 (6th Cir. 2014) (“The fact that
the [alleged violation] appears in a lawsuit or other court
filing does not diminish the threatening nature of the
communication for purposes of the FDCPA.”); James v.
Wadas, 724 F.3d 1312, 1316 (10th Cir. 2013) (“[T]he
FDCPA ‘applies to the litigating activities of lawyers,’ which,
as other circuits have held, may include the service upon a
debtor of a complaint to facilitate debt collection efforts . . .
.”) (quoting Heintz, 514 U.S. at 294)); Donohue v. Quick
Collect, Inc., 592 F.3d 1027, 1032 (9th Cir. 2010) (“To limit
14
the litigation activities that may form the basis of FDCPA
liability to exclude complaints served personally on
consumers to facilitate debt collection, the very act that
formally commences such a litigation, would require a
nonsensical narrowing of the common understanding of the
word ‘litigation’ that we decline to adopt.”); Sayyed, 485 F.3d
at 229 (subjecting interrogatories and summary judgment
motions to the FDCPA); Gearing v. Check Brokerage Corp.,
233 F.3d 469, 472 (7th Cir. 2000) (finding § 1692e(2) and
(10) violations where debt collector’s “allegation in its state
court complaint . . . gave a false impression as to the legal
status it enjoyed”). And, while we have not directly decided
the issue, this Court has extended the FDCPA to state court
complaints, see Glover v. F.D.I.C., 698 F.3d 139, 152 n.8 (3d
Cir. 2012) (explaining that the law firm, “[i]n filing the
Foreclosure Complaint against Glover,” indisputably met the
definition of “debt collector” under the FDCPA), and so has
the Supreme Court, see Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich LPA, 559 U.S. 573 (2010) (deciding the
scope of the FDCPA’s bona fide error defense on the basis of
a notice attached to mortgage foreclosure complaint).
Udren makes two further attempts to distinguish
foreclosure complaints from debt collection letters, both of
which must fail.
First, Udren contends that a complaint, because it is
directed to the court, is not a communication to the consumer
subject to §§ 1692e and 1692f. This argument cannot be
sustained. The statute defines a “communication” under the
FDCPA as “the conveying of information regarding a debt
directly or indirectly to any person through any medium.” 15
U.S.C. § 1692a(2) (emphasis added). Interpreting this
provision in Allen ex rel. Martin v. LaSalle Bank, N.A., where
we decided whether a communication made to a consumer’s
15
attorney was governed by § 1692f, we held that “[i]f an
otherwise improper communication would escape FDCPA
liability simply because that communication was directed to a
consumer’s attorney, it would undermine the deterrent effect
of strict liability.” 629 F.3d 364, 368 (3d Cir. 2011); see also
id. at n.6 (noting that the Heintz Court also referred to a
communication from a debt collector to a consumer’s
attorney, though it did not directly decide that question).
So too for pleadings filed with the court and served on
the consumer. Because the Foreclosure Complaint was
served on Kaymark (directly or indirectly through his
attorney), he was the intended recipient of the
communication. See Donohue, 592 F.3d at 1031-32 (holding
that a complaint served on the debtor is a communication
subject to the FDCPA).3 Courts have only held that a
3
Moreover, rejecting similar arguments that Udren raised in
this case, the Ninth Circuit explained:
[Defendant] Quick Collect suggests that
a complaint, because it can be corrected
by amending the offending pleading,
should not constitute an actionable
communication. But all communications
can be “amended” in this way by simply
sending out a subsequent communication
correcting the error. Sections 1692e and
1692f do not suggest that otherwise
unlawful representations are permitted so
long as they are followed up, at some
later time, with a communication
correcting the statements that gave rise to
the communication's unlawful nature.
We see no reason to treat complaints
16
complaint misleads the judge, rather than the consumer,
when, for instance, the plaintiff specifically pled that a
materially-false attachment to a complaint “would mislead the
Cook County judge handling his case.” O’Rourke v.
Palisades Acquisition XVI, LLC, 635 F.3d 938, 941 (7th Cir.
2011); see id. at 939 (noting that this allegation was “[u]nlike
most lawsuits under the [FDCPA]”). This is not that case.
Here, the Foreclosure Complaint was unquestionably a
communication directed at Kaymark in attempt to collect on
his debt.
Udren’s second argument is that foreclosure actions
cannot be the basis of FDCPA claims because Kaymark has
to his avail the protections of the Pennsylvania Rules of Civil
Procedure and because the Heintz Court noted that the
FDCPA has the “apparent objective of preserving creditors’
judicial remedies.” 514 U.S. at 296.
Similar arguments have been raised and rejected. In
Simon v. FIA Card Services, N.A., we refused to categorically
preclude FDCPA claims because the claim arose in a pending
bankruptcy proceeding, referencing the Supreme Court’s
“reluctan[ce] to limit the FDCPA because other, preexisting
rules and remedies may also apply to the conduct alleged to
violate the [FDCPA].” 732 F.3d 259, 276 (3d Cir. 2013). We
explained that “[t]he proper inquiry . . . is whether the
FDCPA claim raises a direct conflict between the
differently where there was no effort to
correct the error before an answer was
filed.
Donohue, 592 F.3d at 1032 n.1. We agree that simply
because a complaint is amendable is not a justification for
removing it from the protections of the FDCPA.
17
[Bankruptcy] Code or Rules and the FDCPA, or whether both
can be enforced.” Id. at 274; see also Germain, 503 U.S. at
253 (“Redundancies across statutes are not unusual events in
drafting, and so long as there is no ‘positive repugnancy’
between two laws, a court must give effect to both.” (internal
citations omitted)).
Nowhere does the FDCPA exclude foreclosure actions
from its reach. On the contrary, foreclosure meets the broad
definition of “debt collection” under the FDCPA, see
McLaughlin, 756 F.3d at 245 (defining “debt collection” as
“activity undertaken for the general purpose of inducing
payment”), and it is even contemplated in various places in
the statute, see, e.g., 15 U.S.C. § 1692i (discussing procedures
for “action[s] to enforce an interest in real property securing
the consumer’s obligation”); Glazer v. Chase Home Fin. LLC,
704 F.3d 453, 461 (6th Cir. 2013) (explaining why
“[f]oreclosure’s legal nature . . . does not prevent it from
being debt collection”). Udren would have us “create an
enormous loophole in the [FDCPA] [by] immunizing any
debt from coverage if that debt happened to be secured by a
real property interest and foreclosure proceedings were used
to collect the debt.” Wilson v. Draper & Goldberg, P.L.L.C.,
443 F.3d 373, 376 (4th Cir. 2006). We will not. Like the
Court explained previously, “if a collector were able to avoid
liability under the FDCPA simply by choosing to proceed in
rem rather than in personam, it would undermine the purpose
of the FDCPA.” Piper, 396 F.3d at 236 (internal quotation
marks omitted).
In any event, the prudence of maintaining parallel
FDCPA claims is not ours to decide; it is Congress’s, and its
intent is clear for the reasons discussed. Absent a finding that
“the result [will be] so absurd as to warrant implying an
exemption for” FDCPA claims involving foreclosure actions,
18
we are not empowered to disregard the plain language of the
statute. Heintz, 514 U.S. at 295. Thus, Udren’s arguments
are more “properly addressed to Congress,” which “is, of
course, free to amend the statute accordingly.” Jerman, 559
U.S. at 604.
Given our holding in McLaughlin based on nearly-
indistinguishable facts, we conclude that the fact that the debt
collection activity at issue here involves a foreclosure
complaint, rather than a debt collection letter, does not
remove it from the FDCPA’s purview under McLaughlin.
We will reverse the order dismissing Kaymark’s
§§ 1692e(2)(A), (10), and 1692f(1) claims against Udren, and
we will affirm the order dismissing the § 1692e(5) claim.
B.
Kaymark next alleges that, by misrepresenting or
overcharging fees in the Foreclosure Complaint, BOA and
Udren4 violated the UTPCPL by virtue of the violations of the
FCEUA, 73 P.S. § 2270.5(a) (“If a debt collector or creditor
engages in an unfair or deceptive debt collection act or
practice under [the FCEUA], it shall constitute a violation of
the [UTPCPL].”), or by engaging in certain “unfair or
deceptive acts or practices,” in violation of 73 P.S. § 201-
4
While Udren is correct that attorneys are exempt
from liability under the UTPCPL if the alleged misconduct
concerns the adequacy of their legal representation, attorneys
engaged in debt collection—considered an “act of trade or
commerce” within the definition of the UTPCPL—are not.
See Beyers v. Richmond, 937 A.2d 1082, 1088-89, 1093 (Pa.
2007) (plurality); Yelin v. Swartz, 790 F. Supp. 2d 331, 337-
38 (E.D. Pa. 2011). Because the parties do not dispute that
Udren’s alleged misconduct here stems from its debt
collection activities, we do not immunize it from liability.
19
2(4)(v) (representing that services have characteristics they do
not have) and (xxi) (“Engaging in any other fraudulent or
deceptive conduct which creates a likelihood of confusion or
of misunderstanding.”).
To maintain a private right of action under the
UTPCPL, a plaintiff must demonstrate (1) “ascertainable loss
of money or property, real or personal,” id. § 201-9.2(a), (2)
“as a result of” the defendant’s prohibited conduct under the
statute, id.; see Yocca v. Pittsburgh Steelers Sports, Inc., 854
A.2d 425, 438 (Pa. 2004). Assuming arguendo that Kaymark
has pled a violation of the UTPCPL, we conclude that
Kaymark fails to allege ascertainable loss, and we do not
reach Appellees’ alternative argument that Kaymark also
failed to establish reliance.
The crux of Kaymark’s theory of ascertainable loss is
that the “lien” on his property from the mortgage was inflated
by not-yet-performed services, “resulting in a corresponding,
precisely quantifiable, diminishment in his interests in
property.” Appellant’s Br. at 38. He reasons that, for a
period of time before any services were performed, he had to
pay $2,050 extra—the total overcharged amount on the
debt—to cure his default and avoid foreclosure. The District
Court rejected Kaymark’s so-called “lien” theory, concluding
that his “argument is couched in forward-looking speculative
terms.” App. 5a. On the facts presented in this case, we
agree.
Because the Pennsylvania Supreme Court has not
definitively addressed what constitutes ascertainable loss
under the statute, “we must predict how that court would rule
if faced with the issue,” and, in doing so, “[t]he decision of an
intermediate state court is particularly relevant.” Covington
v. Cont’l Gen. Tire, Inc., 381 F.3d 216, 218 (3d Cir. 2004).
Lower state courts reason that “[a]scertainable loss must be
20
established from the factual circumstances surrounding each
case,” Agliori v. Metro. Life Ins. Co., 879 A.2d 315, 321 (Pa.
Super. 2005), but that the loss must be non-speculative,
Schwarzwaelder v. Fox, 895 A.2d 614, 619 (Pa. Super. 2006);
see also Benner v. Bank of America, N.A., 917 F. Supp. 2d
338, 360 (E.D. Pa. 2013) (“[A]n actual loss of money or
property must have occurred to state a cognizable UTPCPL
claim.”). Based on the plain language of the statute, we find
this interpretation persuasive.
The statute explicitly provides that any person who
suffers an ascertainable loss “may bring a private action to
recover actual damages.” 73 P.S. § 201-9.2 (emphasis
added). Indeed, a plaintiff must have “suffered harm” as a
result of the defendant’s wrongful conduct. Yocca, 854 A.2d
at 438. Kaymark’s “lien” theory is untenable because he has
not suffered actual loss. He alleges, in essence, that the
alleged misrepresentations in the Foreclosure Complaint
deprived him of his property to the extent of the
misrepresentations. However, Kaymark was never deprived
of his property and never paid the disputed fees alleged to
have deprived him of his property. He very well could have,
and did, contest the foreclosure action, which is still pending
in state court. And despite Kaymark’s ability to quantify the
damages by the inverse of the allegedly inflated fees, “[t]he
test of whether damages are remote or speculative has nothing
to do with the difficulty in calculating the amount, but deals
with the more basic question of whether there are identifiable
damages. . . . Thus, damages are speculative only if the
uncertainty concerns the fact of damages rather than the
amount.” Pashak v. Barish, 450 A.2d 67, 69 (Pa. Super.
1982) (internal quotation marks omitted).
Of course, the statute references “ascertainable loss of
money or property, real or personal,” 73 P.S. § 201-9.2
21
(emphasis added), and there may be situations in which a lien
against a consumer’s property provides a sufficiently concrete
loss that a consumer need not pay off before bringing a
UTPCPL claim to remedy her rights. See Brock v. Thomas,
782 F. Supp. 2d 133, 143-44 (E.D. Pa. 2011) (denying motion
to dismiss UTPCPL claim where equity theft scheme left
victim’s home encumbered by lien). However, losses can
range from the speculative to the concrete, and, here, whether
Kaymark would have cured his debt but for those fees is by
definition speculative. It is plausible that the alleged
misrepresentations deterred Kaymark or other homeowners
from curing their delinquencies—even if only on a temporary
basis and even if that amount was negligible compared to the
total debt. But a plaintiff must experience some non-
speculative loss to make that harm actionable under the
UTPCPL. Cf. Schwarzwaelder, 895 A.2d at 619 (dismissing
plaintiffs’ argument under the UTPCPL that they “would
have” benefited from renegotiating their agent’s commission
if they had known all the facts as “wholly speculative”).
Kaymark’s temporary injury, which by all accounts shrank to
zero after the filing of the foreclosure action, is too
speculative, standing alone, to quality for the protection of the
UTPCPL.
The recent decision by the Supreme Court of
Pennsylvania interpreting the case law on a closely-related
issue lends further support to this conclusion. In Grimes v.
Enterprise Leasing Co., LLC, 105 A.3d 1188 (Pa. 2014), a
plaintiff brought, among other things, a UTPCPL claim
against the Enterprise Leasing Company of Philadelphia
(“Enterprise”) for seeking allegedly fraudulent and excessive
fees that, like here, she did not pay. The Superior Court held
that the plaintiff suffered an ascertainable loss by incurring
costs to retain an attorney to prevent Enterprise from
22
collecting the debt. Enterprise argued on appeal that, if the
Superior Court was correct, any plaintiff could show
ascertainable loss by merely hiring a lawyer “without actually
suffering a loss of money or property.” Id. at 1192. The
Supreme Court agreed with Enterprise for two primary
reasons. First, it did not want to allow a plaintiff to
“manufacture the ‘ascertainable loss’ required to bring a
private UTPCPL claim simply by obtaining counsel.” Id. at
1193. Second, confirming our analysis above, it
distinguished the case law on which the Superior Court relied
because “[i]n [those] cases, the plaintiff had alleged a specific
loss of money.” Id. at 1194 (emphasis added).5
Because Kaymark has not adequately pled
ascertainable loss from the fees he did not pay and currently
disputes, his claim fails. We therefore affirm the District
Court’s order dismissing the UTPCPL claim against BOA
and Udren.
C.
The FCEUA, Pennsylvania’s analogue to the FDCPA,
prohibits “unfair methods of competition and unfair or
deceptive acts or practices with regard to the collection of
debts.” 73 P.S. § 2270.2. Kaymark alleges that by
misrepresenting the amount of the debt in the Foreclosure
Complaint and Act 91 Notice, BOA violated several FCEUA
5
While the court also noted that the plaintiff did not
allege ascertainable loss from the “unpaid bill, standing
alone,” Grimes, 105 A.3d at 1193, we find Grimes instructive
for determining ascertainable loss here. The thrust of the
opinion reads that because the plaintiff did not pay the
disputed fees and therefore could not plead ascertainable loss,
she cannot manufacture that loss with attorneys’ fees. See id.
at 1193-94.
23
provisions, which are identical to the FDCPA violations
asserted. Compare id. § 2270.4(b)(5)(ii), (v), (x), and (6)(i),
with 15 U.S.C. §§ 1692e(2)(A), (5), (10), and 1692f(1).
The text of the FCEUA’s enforcement provision reads:
“If a debt collector or creditor engages in an unfair or
deceptive debt collection act or practice under this act, it shall
constitute a violation of the [UTPCPL].” 73 P.S. § 2270.5(a).
The FCEUA therefore does not provide its own private cause
of action; rather, it is enforced through the remedial provision
of the UTPCPL. While the Supreme Court of Pennsylvania
has not ruled on its interpretation of § 2270.5(a), a Superior
Court construing the statute recently concluded that “[t]he
inclusion of a violation of the FCEUA as also being a
violation of the UTPCPL[] evinces a clear intent by our
Legislature that FCEUA claims be treated in the same manner
as other private action claims under the UTPCPL. . . .
FECUA [sic] claims therefore must plead that a plaintiff
suffered an ascertainable loss as a result of a defendant’s
prohibited action.” Kern v. Lehigh Valley Hosp., Inc., No.
2843 EDA 2013, 2015 WL 344623, at *5 (Pa. Super. Jan. 28,
2015) (citing 1 P.S. § 1932); see also Benner, 917 F. Supp. 2d
at 360 (holding that plaintiff’s FCEUA claim, “as brought
under the UTPCPL,” failed because he did not show
ascertainable loss).6 We find this interpretation persuasive
and, indeed, logical. If the FCEUA can only be enforced to
the extent the UTPCPL’s private remedy is invoked, then it
follows that Kaymark cannot state a claim for relief under the
6
Where the state’s highest court has not definitively
ruled on an issue, we consider the decisions of the state’s
intermediate appellate courts. See Covington, 381 F.3d at
218.
24
FCEUA if he cannot state a claim for relief under the
UTPCPL.
As discussed, Kaymark failed to allege ascertainable
loss because he cannot point to actual damages as a result of
the disputed fees listed in the Foreclosure Complaint. Much
less can the alleged deficiencies in the pre-foreclosure Act 91
Notice—the purpose of which is to provide debtors with
information about programs to support them in their debt—
form the basis of any such loss.7 Therefore, we affirm the
District Court’s order dismissing Kaymark’s FCEUA claim
against BOA.
D.
Finally, we affirm the District Court’s order dismissing
Kaymark’s breach of contract claim against BOA for failure
to plead resultant damages. To allege breach of contract in
Pennsylvania, a plaintiff must show “(1) the existence of a
contract, including its essential terms, (2) a breach of a duty
imposed by the contract and (3) resultant damages.” Omicron
Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. 2004)
(internal quotation marks omitted).
Kaymark relies on the same arguments asserted in his
UTPCPL and FCEUA claims to show damages in his breach
of contract claim. Specifically, he alleges the unincurred,
fixed fees in the Foreclosure Complaint diminished his
property interests in his home. Importing here the same
reasons for rejecting those claims above, we conclude that
Kaymark fails to plead resultant damages because he did not
7
We do not reach BOA’s argument that an Act 91
Notice can never be the basis of an FCEUA violation. We
hold, simply, that Kaymark fails to allege ascertainable loss
on the basis of the Act 91 Notice in this case.
25
incur any non-speculative loss of property or pay the disputed
fees or expenses. As such, we affirm the District Court’s
order dismissing Kaymark’s breach of contract claim and do
not reach BOA’s alternative argument that Kaymark failed to
plead breach of duty.
IV.
For the reasons set forth above, we will reverse the
District Court’s order dismissing Kaymark’s 15 U.S.C. §§
1692e(A)(2), (10), and 1692f(1) claims against Udren and
affirm the District Court’s order dismissing Kaymark’s
§ 1692e(5), UTPCPL, FCEUA, and breach of contract claims.
26