Randy Hopkins v. Collecto Inc ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 20-1955
RANDY HOPKINS,
Individually and on behalf of those similarly situated,
Appellant
v.
COLLECTO, INC., dba EOS CCA; US ASSET
MANAGEMENT, INC.; JOHN DOES 1 TO 10
_______________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:19-cv-18661)
District Judge: The Honorable William J. Martini
__________________________
Submitted under Third Circuit L.A.R. 34.1(a)
January 19, 2021
Before: SMITH, Chief Judge, HARDIMAN and ROTH,
Circuit Judges
(Filed April 12, 2021)
Yongmoon Kim
Evan W. Lehrer
Philip D. Stern
THE KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 701
Hackensack, NJ 07601
Counsel for Appellant
Lawrence J. Bartel
Andrew M. Schwartz
GORDON REES SCULLY MANSUKHANI, LLP
Three Logan Square
1717 Arch Street, Suite 610
Philadelphia PA 19103
Counsel for Appellees
Derick K. Sohn, Jr
CONSUMER FINANCIAL PROTECTION BUREAU
1700 G Street, N.W.
Washington DC 20552
Counsel for Amicus Appellee
2
__________________________
OPINION OF THE COURT
__________________________
SMITH, Chief Judge.
Is there anything materially deceptive or misleading
about a debt collection letter that accurately itemizes a debt as
including “$0.00” in interest and fees when the debt cannot
accrue interest and fees? To ask the question is essentially to
answer it. Even our case law’s hypothetical “least sophisti-
cated consumer”—gullible though he may be—reads a debt
collection letter without speculating about what could happen
in the future based on true statements concerning the past. In
other words, he is not a litigious claim-seeker who hunts,
Lagotto-like, for truffles in dunning letters. The District Court
properly dismissed the complaint, so we will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On behalf of US Asset Management, Inc. (“USAM”),
Collecto, Inc. d/b/a EOS CCA (“Collecto”) sent a letter to
Randy Hopkins to collect on a debt that Hopkins initially owed
to Verizon but which was later sold to USAM. The letter item-
ized Hopkins’s debt in the following table:
3
Compl. ¶ 23. The letter concluded that Hopkins owed
$1,088.34 on the debt and offered to “resolve this debt in full”
if he paid a reduced amount of $761.84. Id. at Ex. A.
Hopkins filed a putative class action complaint in the
District of New Jersey against USAM and Collecto (and John
Does), alleging that Collecto’s letter violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).
Hopkins claimed that the debt could not or was not intended to
accrue interest or collection fees. Hopkins alleged that by
itemizing interest and collection fees for his “static debt” and
by assigning a “$0.00” value to those columns, the letter’s table
falsely implied—in violation of § 1692e and § 1692f of the
FDCPA—that interest and fees could accrue and thereby
increase the amount of his debt over time. Compl. ¶¶ 24, 26,
29, 53; Appellant’s Br. 12–13. According to Hopkins, con-
sumers prioritize what debts to pay and, by suggesting that the
debt might accrue interest and fees (when, in fact, it was static),
the Collecto letter gave him the false impression that the debt
needed to be prioritized.
Collecto and USAM moved to dismiss Hopkins’s com-
plaint for failure to state a claim.1 The District Court dismissed
Hopkins’s complaint with prejudice, identifying as the “central
issue” whether “Defendants’ inclusion of language . . . stating
1
USAM did not argue for dismissal based on its owning Hop-
kins’s debt. As the Supreme Court held in Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718 (2017), an
entity has to attempt to collect debts owed to another before it
can qualify as a “debt collector” under the FDCPA. Id. at
1724–26.
4
that Plaintiff owed $0.00 in interest and $0.00 for fees or col-
lection costs for a static debt violated the FDCPA.” JA6.2
Looking to a pair of decisions from the Second Circuit, Dow v.
Frontline Asset Strategies, LLC, 783 F. App’x 75 (2d Cir.
2019), and Taylor v. Financial Recovery Services, Inc., 886
F.3d 212 (2d Cir. 2018), the District Court held that Hopkins’s
complaint failed to plausibly allege that Collecto’s debt itemi-
zation violated the FDCPA. It neither “leave[s] the least
sophisticated consumer in doubt of the nature and legal status
of the underlying debt” nor “impede[s] the consumer’s ability
to respond to or dispute collection.” JA7. The District Court
declined to require assurances by debt collectors that itemized
amounts “will not change in the future,” reasoning that doing
so would lead to “complex and verbose debt collection letters”
that would confuse consumers. Id.II. DISCUSSION
We review the District Court’s dismissal of Hopkins’s
complaint de novo.3 We accept the truth of all factual allega-
tions in the complaint and draw all reasonable inferences in
favor of Hopkins, the non-movant. See, e.g., Levins v.
Healthcare Revenue Recovery Grp., LLC, 902 F.3d 274, 278
n.1 (3d Cir. 2018).
2
Citations preceded by “JA” are to the parties’ Joint Appendix.
3
The District Court had jurisdiction under 28 U.S.C. §§ 1331and 1337 to adjudicate claims arising under the FDCPA. We
have jurisdiction under 28 U.S.C. § 1291 to review the judg-
ment of the District Court dismissing Hopkins’s complaint.
5
According to Hopkins, the itemized table in Collecto’s
letter denoting “$0.00” in interest and collection fees falsely
implied that interest and collection fees were materially likely
to accrue. And because the debt was static,4 Hopkins contends
that the letter violated the FDCPA’s prohibition on deceptive
(§ 1692e) and unfair or unconscionable (§ 1692f) means of col-
lecting consumer debts. For two reasons, we are unconvinced.
1. Recent decisions from other Circuits are to the con-
trary. Ours is not the first court to be confronted with a claim
similar to Hopkins’s. For example, in Degroot v. Client
Services, Inc., 977 F.3d 656 (7th Cir. 2020), the Seventh Cir-
cuit held that a debt collection letter spoke only about the past
and thus was not misleading about the future when it listed a
debt as including $0.00 in interest and fees. Id. at 660–61.
“[M]ere[ly] raising . . . an open question about future assess-
ment of other charges,” as the $0.00 itemization did, does not
mislead the unsophisticated consumer. See id. at 661. Like-
wise, in Salinas v. R.A. Rogers, Inc., 952 F.3d 680 (5th Cir.
2020), the Fifth Circuit analyzed a dunning letter “from the
perspective of an unsophisticated or least sophisticated con-
sumer” yet concluded that it did not violate the FDCPA. Id. at
683–84 & n.3. The letter listed $0.00 due in interest and fees,
stating, “in the event there is interest or other charges accruing
on your account, the amount due may be greater than the
amount shown above after the date of this notice.” Id. (cleaned
up).
4
For purposes of this appeal, we assume the truth of Hopkins’s
allegation that the debt was static. We do not decide whether
any applicable laws or contract provisions precluded applica-
tion of interest and fees to his debt.
6
Hopkins points out that such cases were decided under
an “unsophisticated debtor” standard and maintains that the
Third Circuit’s “least sophisticated debtor” standard is more
forgiving. The least sophisticated debtor, he posits, is less
savvy than the merely unsophisticated debtor, and is thus plau-
sibly misled or deceived about the nature of his static debt
when a collection letter lists it as including $0.00 in interest
and fees.
But our court’s framework is functionally equivalent to
the unsophisticated debtor standard on which claims like
Hopkins’s have foundered. We have described the “least
sophisticated debtor” standard as “almost universally
employed by Courts of Appeals in interpreting [the FDCPA],”
even though we recognize variance in how the standard is
worded. Jensen v. Pressler & Pressler, 791 F.3d 413, 419 &
n.3 (3d Cir. 2015) (noting that it is “sometimes referred to as
the ‘least sophisticated consumer’ or ‘unsophisticated debtor’
standard”). Among the authorities cited in Jensen as compris-
ing this near “universal” consensus were cases decided under
the “unsophisticated debtor” or “unsophisticated consumer”
standard, including from the First, Fifth, and Seventh Circuits.
See, e.g., Pollard v. Law Office of Mandy L. Spaulding, 766
F.3d 98, 103 (1st Cir. 2014) (“[W]e hold that, for FDCPA pur-
poses, a collection letter is to be viewed from the perspective
of the hypothetical unsophisticated consumer.”); McMurray v.
ProCollect, Inc., 687 F.3d 665, 669 (5th Cir. 2012) (“We must
evaluate any potential deception in the letter under an unso-
phisticated or least sophisticated consumer standard.” (cleaned
up)); Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 645–
46 (7th Cir. 2009) (“In deciding whether collection letters vio-
late the FDCPA, we have consistently viewed them through the
7
eyes of the ‘unsophisticated consumer.’” (citations omitted)).
Our Circuit’s word choice may invite an argument that our
standard is less exacting than that of these Circuits. But we do,
in fact, analyze FDCPA claims from a similar vantage. So we
find the rationale of the Fifth Circuit in Salinas and Seventh
Circuit in Degroot persuasive, and follow those decisions here
because they were decided under a standard functionally iden-
tical to our own. We thus conclude that Collecto’s letter to
Hopkins did not violate the FDCPA by itemizing $0.00 in
interest and fees on his static debt.
2. We would affirm dismissal even if confined to least-
sophisticated-debtor case law. If, in applying the least sophis-
ticated debtor standard, we were constrained to focus on a
hypothetical debtor even less savvy than the “unsophisticated
debtor,” we would still affirm the District Court’s dismissal of
Hopkins’s complaint. The least sophisticated debtor of our
case law, though gullible, does not subscribe to “bizarre or
idiosyncratic interpretations of collection notices.” Wilson v.
Quadramed Corp., 225 F.3d 350, 354–55 (3d Cir. 2000) (cita-
tion omitted). Such naïve consumers are still deemed to pos-
sess a “quotient of reasonableness” consistent with “a basic
level of understanding and willingness to read with care.” Id.(citation omitted).
To begin with, the Second Circuit has rejected claims
like Hopkins’s under a “least sophisticated consumer” standard
similar to our own. See, e.g., Taylor, 886 F.3d at 214–15 (let-
ters seeking to collect static debts that “stated their respective
balances due without discussing interest or fees” were not mis-
leading to “the least sophisticated consumer”); Dow, 783 F.
App’x at 76–77 (dunning letter listing “interest and charges or
fees accrued on the balance as separate line items, even though
8
the amounts accrued explicitly reflect $0,” would not mislead
“the least sophisticated consumer” into believing “their debt is
dynamic”). Based on the identity of standards, the District
Court justifiably relied on the reasoning of Second Circuit
decisions to dismiss Hopkins’s complaint.
At all events, certain assumptions are fundamental to
our court’s conception of the least sophisticated debtor. For
example, even the least sophisticated debtor understands that
collection letters—as reflected by their fonts, formatting, con-
tent, and fields—often derive from templates and may contain
information not relevant to his or her particular situation. See,
e.g., Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550
F.3d 294, 300 (3d Cir. 2008) (noting how “frequent use of cap-
ital letters, exclamation points, and boldfaced type, as well as .
. . bar-codes [and] a toll-free telephone number” suggest a
mass-mailed communication). Hopkins himself alleged that
Collecto’s letter wasn’t bespoke, but a “mass-produced,
computer-generated form letter[].” Compl. ¶ 32. It did not
even address him by name. To see $0.00 in each of the form
letter’s interest and fees columns, and yet fail to understand
that they are inapplicable vestiges of a template letter, is to be
callow to an “unrealistic and fanciful” degree. Campuzano-
Burgos, 550 F.3d at 299. And yet, as Hopkins tells it, this same
person is also shrewdly speculative—extrapolating that he or
she needs to pay off the debt post haste because interest and
penalties are materially likely to accrue in the future. But see
Reyes v. Associated Credit Servs., No. 19-cv-1670, 2020 WL
3642441, at *2–3 (M.D. Pa. July 6, 2020) (least sophisticated
consumer would not interpret line itemizations of “Interest:
$0.00” and “Fees: $0.00” as debt collector’s threat to charge
them in future). Our FDCPA case law does not support attrib-
9
uting to the least sophisticated debtor simultaneous naïveté and
heightened discernment.
Were we for some reason constrained to consider only
the law of Circuits that employ the word “least” in their
FDCPA standards, we would still affirm.5
III. CONCLUSION
Hopkins’s complaint fails to state a claim, whether our
court’s “least sophisticated debtor” standard is functionally the
same as the “unsophisticated debtor” standard applied by other
Circuits or is instead an independent and less demanding
framework. We will affirm the District Court’s dismissal of
Hopkins’s complaint.
5
The Consumer Financial Protection Bureau (CFPB) recently
proposed detailed rules that seemingly condone itemizing
interest and fees as Collecto did. See 84 Fed. Reg. 23274 (May
21, 2019); see also 85 Fed. Reg. 12672 (Mar. 3, 2020) (supple-
mental notice). Those proposed rules were issued in final form
on January 19, 2021, and are slated to take effect on November
30, 2021. See 86 Fed. Reg. 5766 (Jan. 19, 2021). Under the
pending rules, debt collectors must include in certain notices a
table showing the interest, fees, payments, and credits that have
been applied—even if none have actually been applied—to a
consumer’s debt since the itemization date. 84 Fed. Reg. at
23404 (proposed 12 C.F.R. § 1006.34(c)(2)(ix)); 86 Fed. Reg.
at 5803–06. And “a debt collector may indicate that the value
of a required field is ‘0,’ ‘none,’ or may state that no interest,
fees, payments, or credits have been assessed or applied to the
debt.” 86 Fed. Reg. at 5807, 5860; see also 84 Fed. Reg. at
23415 (proposed comment 34(c)(2)(ix)-1).
10