Ricky Henson v. Santander Consumer USA, Inc. ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1187
RICKY HENSON; IAN MATTHEW GLOVER; KAREN PACOULOUTE, f/k/a
Karen Welcome Kuteyi; PAULETTE HOUSE,
Plaintiffs - Appellants,
v.
SANTANDER CONSUMER USA, INC.,
Defendant - Appellee,
and
COMMERCIAL RECOVERY SYSTEMS, INC.; NCB MANAGEMENT SERVICES,
INCORPORATED,
Defendants.
-------------------------
AARP; NATIONAL CONSUMER LAW CENTER; NATIONAL ASSOCIATION OF
CONSUMER ADVOCATES; CIVIL JUSTICE, INC.; PUBLIC JUSTICE
CENTER, INC.; MARYLAND CONSUMER RIGHTS COALITION, INC.;
ATTORNEY GENERAL OF MARYLAND,
Amici Supporting Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:12-cv-03519-RDB)
Argued: December 9, 2015 Decided: March 23, 2016
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Duncan and Judge Agee joined.
ARGUED: Cory Lev Zajdel, Z LAW, LLC, Reisterstown, Maryland,
for Appellants. Kim M. Watterson, REED SMITH LLP, Pittsburgh,
Pennsylvania, for Appellee. ON BRIEF: Travis Sabalewski,
Robert Luck Jr., Richmond, Virginia, Richard L. Heppner, REED
SMITH LLP, Pittsburgh, Pennsylvania, for Appellee. Julie
Nepveu, AARP FOUNDATION LITIGATION, Washington, D.C., for Amicus
AARP. Joseph S. Mack, Catherine Gonzalez, CIVIL JUSTICE, INC.,
Baltimore, Maryland; Brian E. Frosh, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amici
Attorney General of Maryland, Civil Justice, Inc., Maryland
Consumer Rights Coalition, Inc., National Association of
Consumer Advocates, National Consumer Law Center and Public
Justice Center, Inc.
2
NIEMEYER, Circuit Judge:
Four Maryland consumers commenced this action against
Santander Consumer USA, Inc., and its agents, alleging that the
defendants violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692-1692p, by engaging in prohibited
collection practices when collecting on the plaintiffs’
automobile loans. The loans were originally made by
CitiFinancial Auto, and, after the plaintiffs were unable to
make payments, CitiFinancial Auto foreclosed on the loans,
leaving the plaintiffs obligated to pay deficiencies.
CitiFinancial Auto then sold the defaulted loans to Santander as
part of an investment bundle of receivables, and Santander
thereafter attempted to collect on the loans it had purchased.
The district court granted Santander’s motion to dismiss
the claims against it under Federal Rule of Civil Procedure
12(b)(6) on the ground that the complaint did not allege facts
showing that Santander qualified as a “debt collector” subject
to the FDCPA. The court concluded that the complaint
demonstrated that Santander was a consumer finance company that
was collecting debts on its own behalf as a creditor and that
the FDCPA generally does not regulate creditors collecting on
debt owed to themselves.
We affirm. While the FDCPA is a somewhat complex and
technical regulation of debt collector practices, we conclude
3
that it generally does not regulate creditors when they collect
debt on their own account and that, on the facts alleged by the
plaintiffs, Santander became a creditor when it purchased the
loans before engaging in the challenged practices.
I
Ricky Henson, Ian Glover, Karen Pacouloute, and Paulette
House, Maryland consumers who are the plaintiffs in this action,
each signed a retail installment sales contract with
CitiFinancial Auto Credit, Inc., CitiFinancial Auto Corp., or
CitiFinancial Auto, LTD (collectively, “CitiFinancial Auto”) to
finance the purchase of an automobile. When the plaintiffs were
unable to make the payments required by the contracts and
thereby defaulted, CitiFinancial Auto repossessed and sold their
vehicles and subsequently informed each plaintiff that he or she
owed a deficiency balance.
On December 1, 2011, CitiFinancial Auto sold $3.55 billion
in loan receivables, including the plaintiffs’ defaulted loans,
to Santander, a consumer finance company. The plaintiffs allege
that, as part of its business, Santander “acquires defaulted
consumer debt . . . for a few cents on the dollar.”
Thereafter, Santander and its agents, presumably in an
effort to collect more than the few cents on the dollar that it
paid for defaulted loans, “began communicating with [the
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plaintiffs] . . . in an attempt to collect on the alleged
debts.” And during the course of those communications,
Santander and its agents allegedly misrepresented the amount of
the debt and their entitlement to collect it.
The plaintiffs commenced this action in November 2012
against Santander and its agents, alleging that they violated
the FDCPA in pursuing the debts and in the manner they pursued
them. In their complaint, they proposed to represent a class of
certain debtors “who were subjected to debt collection efforts
by Santander Consumer USA, Inc. on or after December 1, 2011,”
the date on which Santander purchased the receivables from
CitiFinancial Auto.
Santander filed a motion to dismiss the complaint against
it under Federal Rule of Civil Procedure 12(b)(6) on the ground
that the complaint’s allegations did not demonstrate that
Santander qualified as a “debt collector,” as necessary to
trigger liability under the FDCPA, and the district court
granted the motion by order dated May 6, 2014. In its
supporting opinion, the court noted that the FDCPA applies to
“debt collectors,” as that term is defined in the Act, but not
to “creditors collecting debts in their own names and whose
primary business is not debt collection.” In reaching its
conclusion, the court rejected the plaintiffs’ argument that,
because the plaintiffs’ loans were in default when Santander
5
acquired them from CitiFinancial Auto, Santander qualified as a
debt collector under the FDCPA, rather than as a creditor.
The plaintiffs filed this appeal, presenting the single
issue of whether, as necessary to state an FDCPA claim, their
complaint adequately alleged that Santander was acting as a
“debt collector,” as that term is defined in 15 U.S.C.
§ 1692a(6), when it engaged in the collection practices
challenged in the suit.
II
In their brief on appeal, the plaintiffs state their
position that Santander was a “debt collector,” subject to
regulation by the FDCPA, based on the following reasoning:
The terms “debt collector” and “creditor” are mutually
exclusive under the FDCPA. An entity can be either a
“debt collector” or a “creditor” in any particular
transaction. The determining factor of whether an
entity is a “debt collector” or “creditor” in any
particular transaction when the entity in question is
not the originating lender is whether the debt was
acquired prior to default or after default. Since
Santander acquired [the plaintiffs’] debts from the
original lender well after each [plaintiff] defaulted
on their debt, Santander’s collection activities on
these defaulted debts make[] it a “debt collector.”
(Emphasis added). To make their argument, the plaintiffs rely
on their interpretations of 15 U.S.C. §§ 1692a(4) and 1692a(6),
which define “creditor” and “debt collector,” respectively.
Their argument rests on the premise that the FDCPA regulates
debt collectors, not creditors, and that the two terms, as used
6
in the Act, are mutually exclusive. See Bridge v. Ocwen Fed.
Bank, FSB, 681 F.3d 355, 359 (6th Cir. 2012); FTC v. Check
Investors, Inc., 502 F.3d 159, 173 (3d Cir. 2007). Thus, they
reason, because § 1692a(4) excludes from the definition of
creditor “any person to the extent that he receives an
assignment or transfer of a debt in default solely for the
purpose of facilitating collection of such debt for another,”
such person must of logical necessity be a debt collector.
Because Santander fits, as they argue, the exclusion from the
definition of “creditor,” it must therefore be a “debt
collector.” They claim that this conclusion is fortified by one
of the exclusions to the definition of “debt collector.” See 15
U.S.C. § 1692a(6)(F)(iii) (excluding from the definition of debt
collector “any person collecting or attempting to collect any
debt . . . owed or due another to the extent such activity . . .
concerns a debt which was not in default at the time it was
obtained” (emphasis added). At bottom, they maintain that the
default status of debt determines whether a purchaser of debt,
such as Santander, is a debt collector or a creditor.
The plaintiffs’ argument, however, contains several
interpretational and logical flaws, such that their
interpretation of the FDCPA ultimately stands in tension with
its plain language. When arguing from the definition of
creditor, they overlook the fact that the exclusion applies only
7
to a person who receives defaulted debt “solely for the purpose
of facilitating collection . . . for another.” 15 U.S.C.
§ 1692a(4) (emphasis added). Similarly, in relying on the
exclusion in § 1692a(6)(F)(iii), they fail to address whether
Santander fits under any definition of “debt collector” before
addressing whether the (F)(iii) exclusion applies.
We conclude that the default status of a debt has no
bearing on whether a person qualifies as a debt collector under
the threshold definition set forth in 15 U.S.C. § 1692a(6).
That determination is ordinarily based on whether a person
collects debt on behalf of others or for its own account, the
main exception being when the “principal purpose” of the
person’s business is to collect debt.
We begin our explanation by noting at a general level that
the FDCPA purports to regulate only the conduct of debt
collectors, not creditors, generally distinguishing between the
two based on whether the person acts in an agency relationship
with the person to whom the borrower is indebted. With limited
exceptions, a debt collector thus collects debt on behalf of a
creditor. A creditor, on the other hand, is a person to whom
the debt is owed, and when a creditor collects its debt for its
own account, it is not generally acting as a debt collector.
The FDCPA’s definitions of debt collector and creditor bear
out this distinction.
8
The definition of debt collector, which is contained in
§ 1692a(6), is comprised of two parts. The first part defines
the classes of persons that are included within the term “debt
collector,” while the second part defines those classes of
persons that are excluded from the definition of debt collector.
The first part, defining those who are included, provides in
relevant part:
The term “debt collector” means any person [1] who
uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which
is the collection of any debts, or [2] who regularly
collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed
or due another. Notwithstanding the exclusion
provided by clause (F) of the last sentence of this
paragraph, the term includes any creditor [3] who, in
the process of collecting his own debts, uses any name
other than his own which would indicate that a third
person is collecting or attempting to collect such
debts.
15 U.S.C. § 1692a(6) (emphasis added). Stated more simply, this
provision defines a debt collector as (1) a person whose
principal purpose is to collect debts; (2) a person who
regularly collects debts owed to another; or (3) a person who
collects its own debts, using a name other than its own as if it
were a debt collector.
The second part of § 1692a(6) defines the classes of
persons that are excluded from the definition of debt collector,
so that a person who meets one of the definitions of debt
collector contained in the first part of § 1692a(6) will not
9
qualify as such if it falls within one of the exclusions. As
relevant here, exclusion (F)(iii) provides that “[t]he term
[debt collector] does not include . . . any person collecting or
attempting to collect any debt owed or due or asserted to be
owed or due another to the extent such activity . . . concerns a
debt which was not in default at the time it was obtained by
such person.” 15 U.S.C. § 1692a(6)(F)(iii). To simplify, this
exclusion means that a person collecting nondefaulted debts on
behalf of others is not a debt collector. This exclusion was
intended by Congress to protect those entities that function as
loan servicers for debt not in default. See S. Rep. No. 95-382,
at 3-4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1698
(“[T]he committee does not intend the definition [of debt
collector] to cover the activities of . . . mortgage service
companies and others who service outstanding debts for others,
so long as the debts were not in default when taken for
servicing” (emphasis added)).
Thus, the overall structure of § 1692a(6) makes clear that
when assessing whether a person qualifies as a “debt collector,”
we must first determine whether the person satisfies one of the
statutory definitions given in the main text of § 1692a(6)
before considering whether that person falls into one of the
exclusions contained in subsections § 1692a(6)(A)-(F). If a
person does not satisfy one of the definitions in the main text,
10
the exclusions in subsections § 1692a(6)(A)-(F) do not come into
play. See Davidson v. Capital One Bank (USA), N.A., 797 F.3d
1309, 1314 (11th Cir. 2015) (“[W]here a person does not fall
within subsection (F) or any one of the six statutory
exclusions, he is not deemed a ‘debt collector’ as a matter of
course. [Instead], . . . he must satisfy the Act’s substantive
requirements”).
The material distinction between a debt collector and a
creditor -- at least with respect to the second definition of
“debt collector” provided by § 1692a(6) -- is therefore whether
a person’s regular collection activity is only for itself (a
creditor) or whether it regularly collects for others (a debt
collector) -- not, as the plaintiffs urge, whether the debt was
in default when the person acquired it. See Heintz v. Jenkins,
514 U.S. 291, 293 (1995) (“The Act’s definition of the term
‘debt collector’ includes a person ‘who regularly collects or
attempts to collect, directly or indirectly, debts owed [to]
. . . another’” (alteration in original) (quoting § 1692a(6)));
see also Davidson, 797 F.3d at 1315-16 (“The statutory text is
entirely transparent. . . . [A] person must regularly collect
or attempt to collect debts for others in order to qualify as a
‘debt collector’ under the second definition of the term”); S.
Rep. No. 95-382, at 3 (“The Committee intends the term ‘debt
collector,’ subject to the exclusions discussed below, to cover
11
all third persons who regularly collect debts for others”
(emphasis added)). But see Bridge, 681 F.3d at 359; Ruth v.
Triumph P’ships, 577 F.3d 790, 796-97 (7th Cir. 2009); Check
Investors, 502 F.3d at 173.
With this interpretation of § 1692a(6), we turn to the
complaint in this case to assess what it states about Santander.
The complaint alleges that the plaintiffs borrowed money from
CitiFinancial Auto to purchase automobiles and that, when the
plaintiffs went into default on the loans, CitiFinancial Auto
repossessed and sold their automobiles, leaving them owing
deficiency balances. It also alleges that when the loans were
in default but before December 1, 2011, Santander was “hired
. . . as a servicer to collect” on the loans, presumably on
behalf of CitiFinancial Auto.
But the very next paragraph of the complaint alleges that
on December 1, 2011, CitiFinancial Auto sold the plaintiffs’
loans to Santander. Only thereafter, when Santander began
collecting from the plaintiffs on the loans that it had
purchased, did Santander engage in the conduct that the
plaintiffs allege was in violation of the FDCPA. Specifically,
the complaint alleges that after December 1, 2011, Santander
improperly contacted the borrowers directly, misrepresented the
amounts owed, and misrepresented the fact that Santander was
entitled to collect on the loans. Importantly, however, the
12
complaint does not allege that, when Santander engaged in the
allegedly illegal collection practices, it was collecting the
debts on behalf of CitiFinancial Auto. Rather, it alleges that
CitiFinancial Auto had sold the loans to Santander, presumably
“for a few cents on the dollar,” thus leaving Santander to
collect on the debts for its own account. And this allegation
is consistent with public SEC filings, which reveal that
Santander purchased $3.55 billion in loan receivables from
CitiFinancial Auto on December 1, 2011, following which
Santander presumably attempted to obtain a return by collecting
more than a few cents on the dollar through its collection
efforts.
Applying these allegations to the definition of debt
collector in § 1692a(6), it is apparent that Santander does not
fall within the first or third definitions of debt collector.
The complaint does not allege, nor do the plaintiffs argue, that
Santander’s principal business was to collect debt, alleging
instead that Santander was a consumer finance company. The
complaint also does not allege, nor do the plaintiffs contend,
that Santander was using a name other than its own in collecting
the debts. Thus, to allege that Santander was a debt collector,
the complaint is left to satisfy the second definition of debt
collector -- that Santander regularly collects debts owed to
others and was doing so here.
13
Yet, the complaint’s allegations also do not satisfy this
definition because the debts that Santander was collecting were
owed to it, Santander, not to another. This is alleged
specifically and unambiguously. The complaint asserts that
after Santander purchased the plaintiffs’ debts on December 1,
2011 (and became the entity to which the debts were owed), it
engaged in collection efforts that violated the FDCPA. Thus,
those collection efforts were pursued for its own account, as
the loans were then owed to it. Santander was therefore not a
person collecting a debt on behalf of another, so as to qualify
as a debt collector under the second definition, but on behalf
of itself, making it a creditor.
Because the complaint does not satisfy any definition of
debt collector, the analysis ends, and the exclusions from the
definition of debt collector, on which the plaintiffs rely, have
no significance.
Nonetheless, the plaintiffs argue that the default status
of a debt is determinative of whether a person who purchased the
debt is a debt collector, pointing to exclusion (F)(iii), which
excludes from the class of persons defined as a debt collector
“any person collecting or attempting to collect any debt owed or
due . . . another to the extent such activity . . . concerns a
debt which was not in default at the time it was obtained by
such person.” 15 U.S.C. § 1692a(6)(F)(iii) (emphasis added).
14
They argue that because that provision excludes persons
collecting debts not in default, the definition of debt
collector must, by a negative pregnant, necessarily include
persons collecting defaulted debts that they did not originate.
This logic, however, turns the statutory provision upside down,
failing to recognize that the FDCPA defines debt collector by
reference to those who are included in the various classes and
then excludes, among others, the subset of persons who obtain
nondefaulted debt to collect on it for others. As noted
earlier, this exclusion was included by Congress to protect
mortgage service companies and similar loan servicers who
acquire debt not in default and service it for a fee. The
exclusion thus does not define “debt collector,” but rather
identifies a class of persons excluded from the definition of
“debt collector.”
In a similar vein, the plaintiffs argue that the definition
of creditor supports their position that the default status of a
debt defines whether a person attempting to collect that debt is
a debt collector. In making this argument, they rely on the
exclusion to the definition of creditor but, in doing so, the
plaintiffs again apply the same kind of upside-down logic that
relies on an inaccurate premise and a negative pregnant that
does not follow.
15
The term “creditor” is defined by the FDCPA as “any person
who offers or extends credit creating a debt or to whom a debt
is owed.” 15 U.S.C. § 1692a(4). The definition then excludes
“any person to the extent that he receives an assignment or
transfer of a debt in default solely for the purpose of
facilitating collection of such debt for another.” Id. The
plaintiffs argue that Santander fits the creditor exclusion and
therefore must necessarily be a debt collector.
The logic does not follow, mainly because debt collector is
defined separately and that definition, rather than some implied
definition, is determinative. But the logic is flawed even more
fundamentally because the premise that Santander satisfies the
exclusion is incorrect. In arguing that Santander satisfies the
exclusion, the plaintiffs recharacterize the facts they alleged
in the complaint, stating in their brief that, “although
Santander currently owns [the plaintiffs’] debts, those debts
were assigned to Santander after default and solely for the
purpose of facilitating collection of the debts for
CitiFinancial [Auto].” (Emphasis added). But the facts that
the plaintiffs presume in their brief are not the facts of their
complaint. The complaint alleges that CitiFinancial Auto sold
the loans to Santander and that Santander thereafter attempted
to collect on them for its own account. Santander was, at the
time of its allegedly illegal collection conduct, the
16
plaintiffs’ creditor, and nothing in the complaint suggests that
it was acting on behalf of CitiFinancial Auto. The complaint
does allege that before CitiFinancial Auto sold the loans to
Santander, CitiFinancial Auto had “hired” Santander as a
servicer to collect the plaintiffs’ defaulted debt. But any
conduct that Santander might have carried out as a debt servicer
on CitiFinancial Auto’s behalf was carried out before the debts
were sold to Santander and before Santander engaged in the
allegedly illegal collection conduct.
Apart from their argument based on the default status of
debt, the plaintiffs also seek to avoid the interpretation of
“debt collector” that we make, arguing that the second
definition of debt collector in § 1692a(6) includes two separate
classes of persons, one of which regularly collects “debts owed
or due” and the other of which regularly collects “debts . . .
asserted to be owed or due another.” They argue that Santander
fits into the first class of persons, even if it does not fit
into the second, because the word “another” applies only to the
second. To make this argument, however, the plaintiffs break in
two the singular statutory phrase in § 1692a(6), which defines
debt collector as including any person who “regularly collects
or attempts to collect . . . debts owed or due or asserted to be
owed or due another,” 15 U.S.C. § 1692a(6) (emphasis added),
arguing that the term “another” modifies only the portion of the
17
last phrase, “asserted to be owed or due another.” We do not
agree. While Congress did break up the definition of debt
collector in § 1692a(6), defining several distinct classes of
persons who qualify as a debt collector, it did not divide the
“regularly collects” phrase. As the phrase is written, the word
“another” modifies both “owed or due” and “asserted to be owed
or due,” so that the phrase defines a debt collector as
including a person who collects debt due another or asserted to
be due another. Cf. Paroline v. United States, 134 S. Ct. 1710,
1721 (2014) (“When several words are followed by a clause which
is applicable as much to the first and other words as to the
last, the natural construction of the language demands that the
clause be read as applicable to all” (quoting Porto Rico Ry.,
Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920))).
In another attempt to avoid our interpretation, the
plaintiffs argue that “debts owed or due another” could refer to
debts that were due another either when they were first incurred
or at the time of the collection activity. Thus, according to
the plaintiffs, when Santander collected on the debts that it
had purchased, it could be seen as having acted to collect the
debts of another because the loans were originally due to
CitiFinancial Auto. This argument, however, is no more
persuasive. Insofar as Congress was regulating debt-collector
conduct, defining the term “debt collector” to include a person
18
who regularly collects debts owed to another, it had to be
referring to debts as they existed at the time of the conduct
that is subject to regulation. See Davidson, 797 F.3d at 1318
(“[O]ur inquiry under § 1692a(6) is not whether Capital One
regularly collects on debts originally owed or due another and
now owed to Capital One; our inquiry is whether Capital One
regularly collects on debts owed or due another at the time of
collection”); see also Schlegel v. Wells Fargo Bank, NA, 720
F.3d 1204, 1209 (9th Cir. 2013) (“The statute is not susceptible
to the [plaintiffs’] interpretation that ‘owed or due another’
means ‘originally owed or due another’”).
Finally, the plaintiffs argue that because Santander had,
before December 1, 2011, been a debt collector with respect to
their loans, it remained a debt collector after it purchased
their loans and thereafter collected on them. They suggest that
Santander’s status as a debt collector, generally, made it
subject to regulation. As they summarize:
In order for this Court to hold that Santander is not
a “debt collector” with respect to [plaintiffs’]
defaulted debts, this Court would have to create a
loophole in the FDCPA that allows an entity acting as
a “debt collector” while servicing . . . defaulted
debts to become a “creditor” simply by purchasing the
defaulted debt it was collecting for another.
Again, we reject this argument. Under the plaintiffs’
interpretation, a company such as Santander -- which, as a
consumer finance company, lends money, services loans, collects
19
debt for itself, collects debt for others, and otherwise engages
in borrowing and investing its capital -- would be subject to
the FDCPA for all of its collection activities simply because
one of its several activities involves the collection of debts
for others. Congress did not intend this. Rather, it aimed at
abusive conduct by persons who were acting as debt collectors.
See 15 U.S.C. § 1692(e) (“It is the purpose of this subchapter
to eliminate abusive debt collection practices by debt
collectors”). It therefore provided that, barring application
of one of the exclusions, an entity that “collects or attempts
to collect . . . debts owed or due . . . another” on a regular
basis qualifies as a debt collector when it engages in
collection activity on behalf of another. Id. § 1692a(6). But
when that same entity acts to collect its own debts, it is
acting as a creditor, not a debt collector. See id.
§§ 1692a(4), 1692a(6). Santander is therefore subject to the
FDCPA only when acting as a “debt collector” as defined in
§ 1692a(6). Were it otherwise, every creditor that collects on
its own loans and that also engages in the business of regularly
collecting debts on behalf of others would be pulled under the
regulation of the FDCPA not just when it collects for others,
but also when it collects for itself.
At bottom, a valid claim under the FDCPA inherently
requires the coming together of all the statutory elements at
20
the time of and in connection with the prohibited conduct.
Thus, for example, when a plaintiff claims that a defendant
violated § 1692e (prohibiting a “debt collector” from using “any
false, deceptive, or misleading misrepresentation or means in
connection with the collection of any debt”), he must prove that
the defendant was acting as a debt collector, as defined by
§ 1692a(6), when it engaged in misrepresentations in connection
with the collection of debt from the plaintiff.
* * *
Because the complaint failed to allege facts demonstrating
that Santander was acting as a “debt collector,” as defined by
§ 1692a(6), when it was collecting on debts owed by the
plaintiffs, we affirm the judgment of the district court.
AFFIRMED
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