Elaine Levins v. Healthcare Revenue Recovery Gr , 902 F.3d 274 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3330
_____________
ELAINE LEVINS;
WILLIAM LEVINS, on behalf of themselves
and others similarly situated,
Appellants
v.
HEALTHCARE REVENUE RECOVERY GROUP LLC,
a/k/a ARS Account Resolution Services;
JOHN AND JANE DOES 1 THROUGH 25
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-17-cv-00928)
District Judge: Honorable Robert B. Kugler
_______________
Argued
June 5, 2018
Before: AMBRO, JORDAN, and VANASKIE, Circuit
Judges
(Filed: August 22, 2018)
Daniel A. Frischberg
525 Route 73 South
Evesham Commons
Marlton, NJ 08053
Philip D. Stern [ARGUED]
Andrew T. Thomasson
Stern Thomasson
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081
Counsel for Appellants
Sean X. Kelly
Christian M. Scheuerman [ARGUED]
Marks O’Neill O’Brien Doherty & Kelly
535 Route 38 East, Suite 501
Cherry Hill, NJ 08002
Counsel for Appellee
_______________
OPINION
_______________
JORDAN, Circuit Judge.
In this appeal, we interpret three provisions of the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-
1692p. Elaine and William Levins allege that Healthcare
2
Revenue Recovery Group LLC (“HRRG”) violated
§§ 1692e(14), 1692d(6), and 1692e(10) by leaving telephone
voice messages that did not use its true name, did not
meaningfully disclose its identity, and used false
representations and deceptive means to collect or attempt to
collect a debt or obtain information about a consumer. In
particular, the Levinses complain that voicemail messages in
which HRRG went by the name of “ARS” were insufficient to
identify it as HRRG or even as “ARS ACCOUNT
RESOLUTION SERVICES,” which is an alternative business
name used by HRRG. HRRG moved to dismiss the complaint,
as amended, for failure to state a claim, and the District Court
granted that motion.
We conclude that the Levinses have stated a plausible
claim that HRRG violated § 1692e(14)’s “true name”
provision, but they have not stated plausible claims under
§§ 1692d(6) or 1692e(10). Accordingly, we will vacate in part
and affirm in part the dismissal of their case.
I. BACKGROUND
A. Allegations In The Complaint1
The Levinses, who live in New Jersey, purportedly
incurred a debt that was transferred to HRRG for collection.
HRRG then began leaving pre-recorded voicemail messages
1
For convenience, we refer to the amended complaint
simply as “the complaint.” We construe the allegations of that
pleading in the light most favorable to the Levinses. See infra
note 2.
3
on the Levinses’ phone in an attempt to collect the debt. The
following is a transcription of the message:
ARS calling. Please return our call at 1-800-694-
3048. ARS is a debt collector. This is an attempt
to collect a debt. Any information obtained will
be used for that purpose. Again, our number is
1-800-694-3048. Visit us at
www.arspayment.com.
(App. at 22 ¶ 31.)
At the time the Levinses received that message over and
over, they did not know the identity of the caller. They had
never received any written communication from HRRG.
Having recently gone through bankruptcy, they knew of a debt
collector with the full name “ARS National Services, Inc.” that
was known as “ARS” for short. That company, however, turns
out to be wholly unrelated to HRRG. While it has registered
the name “ARS ACCOUNT RESOLUTION SERVICES” in
New Jersey, HRRG has neither registered the stand-alone
name “ARS” nor taken any other legal steps to do business
under that specific name.
There are numerous businesses that use the name
“ARS,” including the debt collector the Levinses had heard of,
which is a California corporation registered to transact
business in New Jersey. According to the Levinses, “by
reputation the name ‘ARS’ is, without more, associated in the
nation’s debt collection industry with ARS National Services
Inc.” (App. at 23 ¶ 41.) A Google search of “ARS” along with
“debt” or “collector” will result in links to many debt collectors
other than HRRG. Reference to www.arspayment.com, the
website that HRRG mentioned in the pre-recorded messages it
4
left for the Levinses, does not narrow the field. It only leads to
a browser privacy warning that blocks access to the website.
And, if one ignores the warning and accesses the site, the
website begins tracking and storing information about the
computer user.
B. Procedural History
Within a year of receiving the voicemail messages from
HRRG, the Levinses filed their putative class-action complaint
alleging that HRRG violated the FDCPA when attempting to
collect debts from them and others similarly situated. They
eventually filed an amended complaint in which they claimed
that the pre-recorded messages violate 15 U.S.C.
§§ 1692e(14), 1692d(6), and 1692e(10) because they “use the
name of any business, company or organization other than the
true name of the debt collector’s business, company, or
organization”; “fail to provide meaningful disclosure of
HRRG’s identity”; and “use false representations and
deceptive means to collect or attempt to collect any debt and to
obtain information concerning a consumer[.]” (App. at 19
¶ 13.)
HRRG moved to dismiss the case, invoking Federal
Rule of Civil Procedure 12(b)(6). Along with its motion,
HRRG filed an attorney declaration with supporting
documents. Among those was a certificate stating that it is
registered to do business in New Jersey under the name “ARS
ACCOUNT RESOLUTION SERVICES,” and a collection
letter that it purports to have sent to Elaine Levins in November
2015. The Levinses opposed HRRG’s motion and submitted
their own attorney declaration with documents listing hundreds
of businesses registered in New Jersey under names that
5
include “ARS.” After reviewing the parties’ submissions, the
District Court granted the motion to dismiss.
The Levinses have timely appealed.
II. DISCUSSION2
In appealing the order dismissing their complaint for
failure to state a claim, the Levinses make three arguments.
First, they say that HRRG violated § 1692e(14) because it did
not use its true name in the voicemail messages. Next, they
argue that HRRG violated § 1692d(6) because the messages
did not meaningfully disclose the caller’s identity. And finally,
they assert that HRRG violated § 1692e(10) because forcing
consumers to call HRRG or navigate its website is a deceptive
2
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
“We exercise plenary review over a district court’s dismissal
for failure to state a claim under Rule 12(b)(6), applying the
same standard as the district court.” Glover v. FDIC, 698 F.3d
139, 144 (3d Cir. 2012). “We will affirm an order dismissing
a complaint only when the complaint fails to contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Rotkiske v. Klemm, 890 F.3d 422, 424
n.2 (3d Cir. 2018) (en banc) (internal quotation marks omitted).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d
Cir. 2018). We construe the allegations in the complaint in the
light most favorable to the non-moving parties, the plaintiffs.
Id.
6
means to collect debts and obtain information about a
consumer.
HRRG of course disputes all of those contentions. It
says that it did not violate § 1692e(14) because “ARS” is an
abbreviation of its registered alternative business name “ARS
Account Resolution Services,” which is a true name. It then
contends that it did not violate § 1692d(6) because the
messages said that the caller was a debt collector, pointed out
that the purpose of the call was to collect a debt, and provided
a phone number and website for the consumer to use, all of
which was a sufficient disclosure of identity. And, last, it
argues that it did not use deceptive collection practices in
violation of § 1692e(10) because the messages informed
consumers that any information obtained would be used to
collect a debt.
Before turning to the parties’ competing arguments,
though, we must determine which materials can properly be
considered in evaluating the District Court’s decision to
dismiss the claims under Rule 12(b)(6).
A. We Decline To Rely On The Collection Letter
Attached To HRRG’s Motion To Dismiss
Because The Complaint Does Not Reference
Or Rely On It.
We “generally consider only the allegations contained
in the complaint, exhibits attached to the complaint[,] and
matters of public record” when evaluating whether dismissal
under Rule 12(b)(6) was proper. Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993). But we can also consider “an undisputedly authentic
7
document that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiff’s claims are based on the document.”
Id. We may do so because “the primary problem raised by
looking to documents outside the complaint—lack of notice to
the plaintiff—is dissipated where the plaintiff has actual
notice ... and has relied upon [those] documents in framing the
complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.
2014) (internal quotation marks, alteration, and citation
omitted).
Here, HRRG asks us to consider the collection letter that
it claims to have mailed to the Levinses in November 2015.
The letter bears a company logo consisting of the letters
“ARS,” says in the letterhead that “Account Resolution
Services” is “a division of HRRG, LLC,” and, in the body of
the letter, uses “ARS” as an abbreviated name. (App. at 38.)
HRRG urges us to conclude that the Levinses received that
collection letter before the phone messages and so would have
understood ARS and HRRG to be one and the same. The
Levinses respond that the letter is off limits at this stage of the
litigation, and they are right. We will not consider it because
the claims in the Levinses’ complaint are not based on it.
Rather, the claims are based on the pre-recorded phone
messages that the Levinses allegedly received. Indeed, the
Levinses specifically allege that they have never received any
written communication from HRRG, and we must take that as
true, see Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d
Cir. 2018) (construing allegations in the complaint in the light
most favorable to the non-moving party).3
3
The District Court’s decision likewise did not
reference that collection letter. We will, however, consider the
certificate stating that HRRG is registered to do business in
8
Of course, our decision not to consider the letter at this
stage does not mean that it is irrelevant or forever precluded
from consideration. Assuming it is properly tendered to the
District Court, HRRG may rely on it later in a motion for
summary judgment or at trial.
With that decided, we can now consider whether the
Levinses have stated their FDCPA claims with sufficient
plausibility to withstand the motion to dismiss.
B. The Levinses Have Stated A Plausible Claim
Under § 1692e(14).
Congress enacted the FDCPA “to eliminate abusive
debt collection practices by debt collectors[.]” 15 U.S.C.
§ 1692. Because it is a remedial statute, “we construe its
language broadly, so as to effect its purpose.” Tatis, 882 F.3d
at 427 (internal quotation marks and citation omitted). In
evaluating whether a particular debt-collection practice
violates the Act, “we employ a ‘least sophisticated debtor’
standard[.]” Id. (citation omitted). “The standard is objective,
meaning that the specific plaintiff need not prove that she was
actually confused or misled, only that the objective least
sophisticated debtor would be.” Id. (internal quotation marks,
emphasis, and citation omitted). “[That] standard aims to
New Jersey under the name “ARS ACCOUNT RESOLUTION
SERVICES,” (App. at 35), because it is a matter of public
record, Pension Benefit Guar. Corp., 998 F.2d at 1196. The
District Court referenced the certificate in its decision, and
neither party disputes that choice on appeal. That is the limit
of what we are considering outside of the complaint.
9
protect the gullible as well as the shrewd, but it nevertheless
preserves a quotient of reasonableness[.]” Id. (internal
quotation marks, alterations, and citations omitted).
To state a claim under the FDCPA, a plaintiff must
allege that “(1) she is a consumer, (2) the defendant is a debt
collector, (3) the defendant’s challenged practice involves an
attempt to collect a ‘debt’ as the Act defines it, and (4) the
defendant has violated a provision of the FDCPA in attempting
to collect the debt.” Id. Here, the parties only dispute the
fourth element, i.e., whether the messages violated
§§ 1692e(14), 1692d(6), or 1692e(10) of the Act.
We conclude that the Levinses have stated a plausible
claim under § 1692e(14) because, as alleged in the complaint,
“ARS” is neither HRRG’s full business name, the name under
which it usually transacts business, nor a commonly used
acronym of its registered name “ARS ACCOUNT
RESOLUTION SERVICES.” Section 1692e prohibits a debt
collector from “us[ing] any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e. It contains a non-exhaustive
list of prohibited conduct, one sort of which is “[t]he use of any
business, company, or organization name other than the true
name of the debt collector’s business, company, or
organization.” Id. § 1692e(14).
The FDCPA is enforced by the Federal Trade
Commission (“FTC”), which has offered guidance on how to
interpret that statute. Hawthorne v. Mac Adjustment, Inc., 140
F.3d 1367, 1372 n.2 (11th Cir. 1998). Although the FTC’s
guidance “does not have the force of law and is not entitled to
deference in FDCPA cases[,]” we may adopt its interpretation
10
when we find its logic persuasive. Brown v. Card Serv. Ctr.,
464 F.3d 450, 455 (3d Cir. 2006) (internal quotation marks,
alterations, and citation omitted). The FTC has interpreted the
“true name” requirement in § 1692e(14) to permit a debt
collector to “use its full business name, the name under which
it usually transacts business, or a commonly-used acronym[,]”
as long as “it consistently uses the same name when dealing
with a particular consumer.” Statements of General Policy or
Interpretation Staff Commentary On the Fair Debt Collection
Practices Act, 53 Fed. Reg. 50097, 50107 (Dec. 13, 1988)
[hereinafter FTC Commentary]. That is a sound interpretation
of the statutory requirement, and we adopt it as our own.
Here, at this early stage in the case, when we must take
the allegations in the complaint as true, the Levinses have
plausibly alleged facts suggesting that “ARS” is not the “true
name” of HRRG. While they do not deny that “ARS” is a name
HRRG may use, they say that the acronym is commonly
associated with other debt collection companies, including
“ARS National Services, Inc.,” and that it could refer to
hundreds of other businesses registered to do business in New
Jersey under names that include “ARS.” (App. at 23 ¶¶ 37, 41;
App. at 41.) See also Sayles v. Advanced Recovery Sys., Inc.,
865 F.3d 246, 248 (5th Cir. 2017) (abbreviating defendant
“Advanced Recovery Systems, Inc.” as “ARS”); Koby v. ARS
Nat’l Servs., Inc., 846 F.3d 1071, 1074 (9th Cir. 2017)
(abbreviating defendant “ARS National Services, Inc.” as
“ARS”). Nothing in the information properly before us
indicates that “ARS” is HRRG’s full business name, the name
under which it usually transacts business, or its commonly used
acronym. To the extent HRRG argues to the contrary, it is
doing so without proper record support. It will have an
opportunity later to expand the record, but for now taking the
11
allegations in the complaint as true, we conclude that the
Levinses have stated a plausible claim for relief under
§ 1692e(14).4
C. The Levinses Have Not Stated A Plausible
Claim Under § 1692d(6).
Section 1692d prohibits a debt collector from
“engag[ing] in any conduct the natural consequence of which
4
The District Court reached the opposite conclusion by
relying on Pescatrice v. Elite Recovery Service, Inc., No. 06-
61130, 2007 WL 1192441 (S.D. Fla. Apr. 23, 2007), and
Strand v. Diversified Collection Service, Inc., 380 F.3d 316
(8th Cir. 2004). Those cases, however, are distinguishable.
In Pescatrice, the court held that there was no violation
of § 1692e(10) when a debt collector used an abbreviation of
its company name in the return address of a mailing. 2007 WL
1192441, at *4; see also 15 U.S.C. § 1692e(10) (prohibiting
“[t]he use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer”); infra Section II.D. Similarly, in
Strand, the court held that a collection agency’s practice of
using its initials and corporate logo on an envelope’s exterior
did not violate § 1692f(8). 380 F.3d at 319; see also 15 U.S.C.
§ 1692f(8) (prohibiting “[u]sing any language or symbol, other
than the debt collector’s address, on any envelope when
communicating with a consumer by use of the mails or by
telegram, except that a debt collector may use his business
name if such name does not indicate that he is in the debt
collection business”). Both of those cases were based on
different provisions of the FDCPA, and we do not interpret
them as deciding the “true name” question that is at issue here.
12
is to harass, oppress, or abuse any person in connection with
the collection of a debt.” 15 U.S.C. § 1692d. It too, like
§ 1692e, contains a non-exhaustive list of prohibited conduct,
one type of which is “the placement of telephone calls without
meaningful disclosure of the caller’s identity.” Id. § 1692d(6).
Here, though the issue is close, we conclude that the District
Court was correct to rule that the Levinses have not stated a
claim under § 1692d(6). The voicemail messages provided
enough information about the caller’s identity for the least
sophisticated debtor to know that the call was from a debt
collector and was an attempt to collect a debt.
The statute does not define “meaningful disclosure[,]”
but in Hart v. Credit Control, LLC, the United States Court of
Appeals for the Eleventh Circuit interpreted “meaningful
disclosure” as requiring a debt collector’s voice message to
provide two types of information: first, “the name of the debt
collection company[,]” and second, “the nature of the debt
collection company’s business, which can be satisfied by
disclosing that the call is on behalf of a debt collection
company[.]” 871 F.3d 1255, 1260 (11th Cir. 2017). The court
held that there was no violation of § 1692d(6) when the
individual calling on behalf of the debt collector did not leave
his or her personal name in a message because that individual
provided a company name and stated that the call was from a
debt collector. Id. at 1259-60; see also id. at 1256 (“This is
Credit Control calling with a message. This call is from a debt
collector. Please call us at 866–784–1160. Thank you.”).
District courts in our Circuit have similarly interpreted
“meaningful disclosure” as requiring a debt collector “to reveal
itself as a collection agency when leaving messages” because
“[m]eaningful disclosure requires a debt collector to disclose
enough information so as not to mislead the recipient as to the
13
purpose of the call.” See Pisarz v. GC Servs. Ltd. P’ship, No.
16-4552, 2017 WL 1102636, at *6 (D.N.J. Mar. 24, 2017)
(internal quotation marks and citation omitted); see also id.
(citing district court cases).
The Levinses claim that saying “ARS” was not enough
meaningful disclosure of the caller’s identity to be lawful under
§ 1692d(6). As with their claim under § 1692e(14), they again
argue that, from the words of the messages, it is not clear that
“ARS” would uniquely refer to HRRG because there are other
companies in the debt collection industry that are associated
with the name “ARS,” and there are other businesses registered
in New Jersey with business names or associated names that
include “ARS.” Although we agreed with that contention with
respect to § 1692e(14)’s “true name” requirement, it has less
force in the context of § 1692d(6) for two reasons.
First, although it is possible for a debt collector’s phone
message to violate both §§ 1692d(6) and 1692e(14),5 a
5
The FTC regards a debt collector’s use of “a false
business name in a phone call” as violating both §§ 1692e(14)
and 1692d(6). See FTC Commentary, 53 Fed. Reg. at 50105
(“A debt collector who uses a false business name in a phone
call to conceal his identity violates [§ 1692e(14)], as well as
[§ 1692d(6)].”); id. at 50107 (“When a debt collector uses a
false business name in a phone call, he violates [§ 1692d(6)] as
well as [§ 1692e(14)].”). We agree that such conduct would
violate both §§ 1692e(14) and 1692d(6), but here the Levinses
have not alleged that “ARS” is a “false business name” of
HRRG. They have only alleged and argued that the name
“ARS” could refer to any number of companies that use the
14
violation of one provision is not necessarily a violation of the
other because “meaningful disclosure of the caller’s identity”
is not restricted to providing the name of the debt collector. As
explained above, “meaningful disclosure of the caller’s
identity” has been interpreted to include information that
discloses the call is from a debt collector so as not to mislead
the least sophisticated debtor of the purpose of the call. Here,
the voicemail messages would not mislead the least
sophisticated debtor because the messages gave some
identifying information about the caller, stated that the call was
from a debt collector, and stated that the call was an attempt to
collect a debt. Even though the Levinses have sufficiently
alleged that “ARS” is, as already discussed, less than a “true
name” as defined by § 1692e(14), they have not plausibly
alleged that using the abbreviation “ARS,” which is associated
with a registered identity of HRRG, amounts to a lack of
meaningful disclosure of the sort forbidden by § 1692d(6).
Nothing in the messages rises to the level of “harass[ment],
oppress[ion], or abuse ... in connection with the collection of a
debt,” which is the target of § 1692d.
Second, and closely related, if we were to say that use
of anything less than a debt collector’s “true name” was a
violation of § 1692d(6), we would make § 1692d(6)
superfluous in light of § 1692e(14). See Everage v. Nat’l
Recovery Agency, No. 14-2463, 2015 WL 1071757, at *5 (E.D.
Pa. Mar. 11, 2015) (declining to import § 1692e(14)’s “true
name” requirement into § 1692d(6)). When Congress enacted
the FDCPA, it used the term “true name” in § 1692e(14),
whereas it used “meaningful disclosure of the caller’s identity”
name “ARS,” which falls short of saying that “ARS” is a “false
business name” of HRRG.
15
in § 1692d(6). Fair Debt Collection Practices Act, Pub. L. No.
95-109, 91 Stat. 874, 877-78 (1977). The difference must have
significance. If Congress had wanted § 1692d(6) also to
require that a debt collection company use its “true name[,]”
then it would have so specified. See Loughrin v. United States,
134 S. Ct. 2384, 2390 (2014) (noting “when Congress includes
particular language in one section of a statute but omits it in
another[,] ... th[e Supreme] Court presumes that Congress
intended a difference in meaning” (internal quotation marks,
citation, and alteration omitted)). We will not rewrite the
statute and import the “true name” requirement of § 1692e(14)
into § 1692d(6).
For those reasons, the District Court properly dismissed
the Levinses’ claim under § 1692d(6).
D. The Levinses Have Not Stated A Plausible
Claim Under § 1692e(10).
Finally, we also agree with the District Court’s
conclusion that the Levinses failed to state a claim under
§ 1692e(10) because the messages adequately warned that any
information obtained would be used to collect a debt.
Section 1692e(10) prohibits “[t]he use of any false
representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a
consumer.” 15 U.S.C. § 1692e(10).
Violations of § 1692e(10) usually “include
impersonating a public official, falsely representing that
unpaid debts will be referred to an attorney, and
misrepresenting the amount of the debt owed.” Harvey v.
Great Seneca Fin. Corp., 453 F.3d 324, 331 (6th Cir. 2006)
16
(internal citations omitted); see also, e.g., Crossley v.
Lieberman, 868 F.2d 566, 571 (3d Cir. 1989) (holding attorney
violated § 1692e(10) when he sent a collection letter that
falsely represented that a mortgage foreclosure case was
already in litigation, that threatened to take action within one
week, and that failed to inform debtor of her right to cure). To
state a claim under § 1692e, a false statement “must be material
when viewed through the least sophisticated debtor’s eyes[,]”
which means “it has the potential to affect the decision-making
process of the least sophisticated debtor[.]” Jensen v. Pressler
& Pressler, 791 F.3d 413, 421 (3d Cir. 2015) (emphasis
omitted).
Here, nothing in the messages rises to the level of being
materially deceptive, misleading, or false. The plain language
of each message reveals that the caller is a debt collector, that
the call is part of an attempt to collect a debt, and that any
information obtained will be used in that attempt. Given those
clear disclosures, even the least sophisticated debtor is fairly
on notice that calling the phone number provided in the
message or visiting the website might result in the debt
collector obtaining information that it could use in trying to
collect the debt. The caller’s purpose is transparent and the
messages are far removed from the false representations that
typically have been held to violate § 1692e(10). The District
Court thus properly dismissed the claim brought under that
FDCPA subsection.
III. CONCLUSION
For the foregoing reasons, we will vacate the District
Court’s dismissal of the § 1692e(14) claim and remand for
further proceedings. We will affirm, however, the District
17
Court’s dismissal of the claims under §§ 1692d(6) and
1692e(10).
18