Kharyn Ramsay v. Sawyer Property Management of Maryland , 593 F. App'x 204 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1795
KHARYN RAMSAY,
Plaintiff - Appellant,
v.
SAWYER PROPERTY MANAGEMENT OF MARYLAND LLC; JEFFREY TAPPER,
Attorney-At-Law,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:12-cv-02741-RDB)
Argued: September 16, 2014 Decided: December 9, 2014
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Wilkinson joined. Judge Gregory wrote a
separate opinion dissenting in part.
ARGUED: Max F. Brauer, LAW OFFICE OF E. DAVID HOSKINS, LLC,
Baltimore, Maryland, for Appellant. James Edward Dickerman,
ECCLESTON & WOLF, PC, Hanover, Maryland; Donald A. Rea, SAUL
EWING LLP, Baltimore, Maryland, for Appellees. ON BRIEF: E.
David Hoskins, THE LAW OFFICES OF E. DAVID HOSKINS, LLC,
Baltimore, Maryland, for Appellant. Geoffrey M. Gamble, SAUL
EWING LLP, Baltimore, Maryland, for Appellee Sawyer Property
Management of Maryland LLC. Lauren E. Marini, ECCLESTON & WOLF,
PC, Hanover, Maryland, for Appellee Jeffrey Tapper, Attorney-at-
Law.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Kharyn Ramsay appeals the district court’s dismissal of her
claims asserted under the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. §§ 1692 through 1692p. Ramsay alleged that
the rental agent for her former apartment and the agent’s
attorney violated the FDCPA by placing certain language on two
court orders, thereby causing her to be confused regarding her
obligation to appear at court proceedings. The district court
dismissed Ramsay’s complaint, concluding under Federal Rule of
Civil Procedure 12(b)(6) that Ramsay had failed to state a
claim. Upon our review, we hold that the rental agent was not a
“debt collector” bound by the requirements of the FDCPA, and
that the language added to the court orders by the agent’s
attorney was not “false, deceptive, or misleading” within the
meaning of the FDCPA. We therefore affirm the district court’s
judgment.
I.
Ramsay was a tenant of certain residential property owned
by SRH Woodmoor LLC (Woodmoor). The property was managed by
defendant Sawyer Property Management of Maryland, LLC (Sawyer).
When Ramsay defaulted on her rent obligations, Sawyer later
obtained a judgment against Ramsay in Maryland state court in
the amount of $1,540.84.
3
Following Ramsay’s failure to pay the judgment amount,
Sawyer hired defendant Jeffrey Tapper, an attorney and
collection agent licensed by the state of Maryland, to collect
the debt from Ramsay. Pursuant to Maryland state court
procedures, Tapper served Ramsay with a “DC/CV 32” court order
signed by a Maryland district court judge, which order directed
Ramsay to appear in court for an oral examination regarding her
assets and property. See Md. Rule § 3-633(b).
After Ramsay failed to appear, Tapper obtained and served
on her a “DC/CV 33” order from the court requiring that she
appear in court for a show cause hearing. Because Ramsay did
not appear for the show cause hearing as ordered, the court
found her in contempt of court. Ramsay later was arrested and
released on her own recognizance.
On the portion of both orders completed by Tapper
requesting court action, Tapper had used an “ink stamp” to add
certain language (the stamped language). The stamped language,
which is at issue in this case, stated that:
THIS COMMUNICATION IS FROM A DEBT COLLECTOR. IT IS AN
ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED
WILL BE USED FOR THAT PURPOSE.
Ramsay argued in the district court: (1) that the stamped
language was deceptive, causing her to ignore both court orders,
see 15 U.S.C. § 1692e; and (2) that Sawyer improperly collected
debts without obtaining a collection agency license as required
4
by Maryland law, see 15 U.S.C. § 1692f. Ramsay also brought
state law claims under the Maryland Consumer Debt Collection Act
and the Maryland Consumer Protection Act.
The district court dismissed Ramsay’s FDCPA claims under
Federal Rule of Civil Procedure 12(b)(6). The court declined to
exercise supplemental jurisdiction over the state law claims,
and dismissed those claims without prejudice. This appeal
followed.
II.
Ramsay argues that the district court erred in dismissing
her claims against Sawyer based on the court’s conclusion that
Sawyer was not a “debt collector” under the FDCPA. According to
Ramsay, Sawyer’s status as a debt collector was established by
the fact that Sawyer was Woodmoor’s agent, and regularly acted
in that capacity collecting money owed to its principal. We
disagree with Ramsay’s argument, which is precluded by the
FDCPA’s definition of “debt collector.”
In enacting the FDCPA, Congress sought “to eliminate
abusive debt collection practices by debt collectors.” 15
U.S.C. § 1692. Section 1692e generally prohibits “debt
collectors” from using “any false, deceptive, or misleading
representation or means in connection with the collection of any
debt.” Additionally, Section 1692f forbids “debt collectors”
5
from using “unfair or unconscionable means to collect or attempt
to collect any debt.”
The FDCPA defines a “debt collector” as (1) “any person 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) any person “who regularly collects or
attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).
Critically, the FDCPA excludes from the definition of “debt
collector” “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).
A rental agent generally “obtains” a debt when a lease is
executed, which necessarily predates a default under the lease,
unless the agent’s relationship with its principal begins at
some later date. 1 Carter v. AMC, LLC, 645 F.3d 840, 843 (7th
Cir. 2011). In the present case, Ramsay entered into her lease
agreement with Sawyer, which was acting as the rental agent of
the property owner, Woodmoor. In this capacity, Sawyer was
1
A rental agent “‘obtains’ a debt in the sense that it
acquires the authority to collect the money on behalf of
another.” Carter, 645 F.3d at 844.
6
listed on the lease as Ramsay’s landlord and, under the terms of
the lease, Ramsay was obligated to remit her monthly rental
payments to Sawyer.
In her complaint, Ramsay offers no contrary allegations
that undermine the facts plain on the face of the lease
document, namely, that Sawyer “obtained” Ramsay’s debt when she
first signed the lease. Because Sawyer obtained Ramsay’s debt
before the debt was in default, Sawyer was not a “debt
collector” bound by the requirements of the FDCPA. See 15
U.S.C. § 1692a(6)(F)(iii). Accordingly, the district court did
not err in dismissing Ramsay’s FDCPA claims against Sawyer.
III.
Ramsay next argues that Tapper violated the FDCPA by adding
the stamped language to the DC/CV 32 and 33 court orders. As
noted above, the stamped language stated:
THIS COMMUNICATION IS FROM A DEBT COLLECTOR. IT IS AN
ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED
WILL BE USED FOR THAT PURPOSE.
Ramsay contends that the stamped language was false, because the
“communication” was an order from the court rather than from a
debt collector. 2 She further argues that the stamp deceptively
implied that the DC/CV 32 and DC/CV 33 documents were not court
2
Tapper indisputably was a debt collector within the
meaning of the FDCPA.
7
orders requiring a response. We disagree with Ramsay’s
arguments.
To effectuate its goal of eliminating abusive debt
collection practices, the FDCPA imposes certain affirmative
requirements on debt collectors and prohibits a wide range of
conduct. See Russell v. Absolute Collection Servs., 763 F.3d
385, 388-89 (4th Cir. 2014). In addition to the general
prohibition that “[a] debt collector may not use any false,
deceptive, or misleading representation or means in connection
with the collection of any debt,” Section 1692e also specifies a
non-exhaustive list of prohibited conduct, including:
The use of any false representation or deceptive means
to collect or attempt to collect any debt or to obtain
information concerning a consumer.
§ 1692e(10),
The failure to disclose in the initial written
communication with the consumer . . . that the debt
collector is attempting to collect a debt and that any
information obtained will be used for that purpose,
and the failure to disclose in subsequent
communications that the communication is from a debt
collector, except that this paragraph shall not apply
to a formal pleading made in connection with a legal
action.
§ 1692e(11), and
The false representation or implication that documents
are not legal process forms or do not require action
by the consumer.
§ 1692e(15).
8
In evaluating claims under Section 1692e, we must determine
whether a “least sophisticated consumer” would be misled or
deceived by the communication. Absolute Collection Servs., 763
F.3d at 394. The question whether a communication is deceptive
or misleading to such a consumer “does not turn on the
credibility of extrinsic evidence.” Terran v. Kaplan, 109 F.3d
1428, 1432 (9th Cir. 1997) (discussing debtor’s assertion that
certain language in a collection letter rendered confusing the
notice provision in the letter required by Section 1692g of the
FDCPA). Instead, a court must consider whether the
communication in question reasonably can be viewed as being
deceptive or misleading. See Russell v. Equifax A.R.S., 74 F.3d
30, 35 (2d Cir. 1996) (holding that a collection notice violated
§ 1692e when it “was reasonably susceptible to an inaccurate
reading”).
This determination requires an objective inquiry, which
involves application of a less demanding standard than that of a
“reasonable” consumer. Gonzales v. Arrow Fin. Servs., LLC, 660
F.3d 1055, 1061-62 (9th Cir. 2011); see Absolute Collection
Servs., 763 F.3d at 394-95 (discussing objective nature of the
standard); United States v. Nat’l Fin. Servs., Inc., 98 F.3d
131, 135-36 (4th Cir. 1996) (explaining the standard and citing
cases). Given the objective nature of this inquiry, a district
court’s application of the least sophisticated consumer test
9
ordinarily presents a question of law, which we review on appeal
de novo. 3
The use of a test evaluating the understanding of a least
sophisticated consumer is intended to ensure that “the gullible
as well as the shrewd” are not deceived by communications from a
debt collector. Nat’l Fin. Servs., Inc., 98 F.3d at 136
(citation omitted). Although the FDCPA protects uninformed
consumers, the standard employed nevertheless protects creditors
from “liability for bizarre or idiosyncratic interpretations of
collection notices by preserving a quotient of reasonableness
and presuming a basic level of understanding and willingness to
read with care.” Id. Accordingly, courts must remain mindful
not to “conflate lack of sophistication with unreasonableness.”
Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir.
2010) (discussing standard of the least sophisticated consumer
in the context of Section 1692g).
To evaluate Ramsay’s claim that a least sophisticated
consumer reasonably would have been misled or deceived by the
stamped language, we consider that language in the context of
3
We recognize that some cases may involve disputed factual
issues that must be resolved before the court makes the legal
determination whether a communication is false, deceptive, or
misleading to the least sophisticated consumer. The enumerated
violations in Section 1692e may depend on factual questions such
as, for example, whether a debt collector in fact intended to
take threatened action under Section 1692e(5). See Nat’l Fin.
Servs., 98 F.3d at 136-39.
10
the entirety of the documents on which the language appeared.
The first line of the DC/CV 32 was captioned, “District Court of
Maryland for Baltimore County,” and was followed by the court’s
address and a case number. The top half of the document was
entitled “Request for Order Directing Defendant to Appear for
Examination in Aid of Enforcement of Judgment,” and listed
Sawyer as the “plaintiff/judgment creditor” and Ramsay as the
“defendant/judgment debtor.” The bottom half of the document
prominently was labeled, “Order of Court.” This portion of the
document stated that Ramsay was “subpoenaed to appear in person
before a judge of this Court . . . to be examined under oath
concerning any assets, property or credits,” on a specified
date.
The bottom portion of the document further warned:
NOTICE TO PERSON SERVED: If you refuse or without
sufficient excuse neglect to obey this Order, you may
be punished for contempt.
This portion of the document also stated, in boldface, upper-
case letters, “YOU ARE ORDERED TO APPEAR IN PERSON,” and bore
the signature of a judge.
The DC/CV 33 document similarly listed the court’s name and
address, the case number, and the parties’ names at the top of
the document. The middle portion of the form was titled
“Request for Show Cause Order for Contempt.” The bottom portion
of the document prominently was labeled, “Show Cause Order for
11
Contempt,” and stated that Ramsay was “ordered . . . [to] appear
in person before this Court . . . to show cause why this Court
should not find [her] in contempt for refusing or failing to
respond.” This portion of the document also bore the signature
of a judge, and warned the recipient that “[i]f you fail to
appear, an order may be issued resulting in your arrest and you
may be found in contempt of court.”
Upon consideration of all the language on each of these two
documents, we conclude that the stamped language did not
reasonably render either document deceptive or misleading,
within the meaning of Section 1692e, to a least sophisticated
consumer. As noted above, both documents plainly stated that
they were orders of the court, and set forth both the name of
the court and the signature of a judge. The orders directed
Ramsay to appear in court in person on a specified date, and
explicitly stated the potential penalties for failing to do so,
including being held in contempt of court and being subject to
arrest. Thus, such a consumer would not reasonably have been
deceived regarding the fact that the documents were court orders
requiring the consumer to appear in court.
The presence of the stamped language did not alter these
clear representations that the documents were issued by a court
and required compliance with the court’s directives. The
stamped language appeared on the form below the name of the
12
court, the case number, and the parties, and did not conceal or
obscure any text of either document or suggest that Ramsay could
ignore the remainder of the documents and their contents. Nor
did the stamped language offer any information contrary to that
contained in the documents. In fact, the stamped language was
consistent with the overall message of the court orders, namely,
that Sawyer and Tapper sought to compel Ramsay’s attendance at a
debt collection proceeding. While the FDCPA protects the
uninformed consumer, courts nevertheless “presum[e] a basic
level of understanding and willingness to read with care.”
Nat’l Fin. Servs., 98 F.3d at 136 (citation omitted).
We also disagree with Ramsay’s alternative contention that
the stamped language employed by Tapper was “false” because the
documents were court orders, rather than communications from a
debt collector. Maryland district court procedures require that
a creditor, as the plaintiff in a collection proceeding,
complete the top portion of the DC/CV 32 and 33 forms, including
listing the creditor and debtor, before submitting the document
for entry as a court order. Tapper placed the stamped language
on the portion of the documents that he was required to
complete, and served Ramsay with a copy of each court order.
Tapper’s representation that the orders were “communications
from a debt collector” was not false because he originated the
communications by supplying the necessary information and taking
13
steps to ensure that the orders were entered by the court. 4 We
therefore hold that the district court properly dismissed the
Section 1692e claim against Tapper under Rule 12(b)(6). 5
IV.
For these reasons, we affirm the district court’s judgment
dismissing Ramsay’s complaint. 6
AFFIRMED
4
We find no merit in Ramsay’s contention that the court
orders were “formal pleadings” exempt from the disclosure
requirement of Section 1692e(11) and that, therefore, the
disclosure requirement was inapplicable on this basis.
Additionally, to the extent that Ramsay argues that Tapper
disclosed more than was required by the statute for subsequent
communications with a consumer, we conclude that any extra
language was mere surplusage that did not render the court
orders false, deceptive, or misleading.
5
Ramsay also asserts that Tapper violated Section 1692f of
the FDCPA, which prohibits a debt collector from “us[ing] unfair
or unconscionable means to collect or attempt to collect any
debt.” She maintains that Tapper’s collection efforts were
unconscionable because they are contrary to the “strong public
policy against imprisonment for debt.” However, Ramsay has
forfeited this claim by failing to raise it in her complaint in
the district court. See Wood v. Crane Co., 764 F.3d 316, 326
(4th Cir. 2014).
6
In light of our decision affirming the district court’s
dismissal of Ramsay’s federal claims, we conclude that the court
did not abuse its discretion in declining to exercise
supplemental jurisdiction over the remaining state law claims.
See 28 U.S.C. § 1367(c)(3); Shanaghan v. Cahill, 58 F.3d 106,
110 (4th Cir. 1995). We therefore affirm the court’s dismissal
of those claims without prejudice.
14
GREGORY, Circuit Judge, dissenting in part:
I agree with the majority that Sawyer cannot be liable
under the FDCPA because the debt it obtained was not yet in
default. But I believe that Ramsay’s complaint plausibly
alleges that the language stamped by Tapper on the court orders
was false, misleading, or deceptive. See 15 U.S.C. § 1692e. I
therefore respectfully dissent in part.
The material facts are these:
1) The underlying document in question was a court
order, representing a direct communication from the
court to a debtor.
2) A debt collector affixed the following statement
near the top of the order: THIS COMMUNICATION IS
FROM A DEBT COLLECTOR. IT IS AN ATTEMPT TO COLLECT
A DEBT AND ANY INFORMATION OBTAINED WILL BE USED
FOR THAT PURPOSE.
Under the FDCPA, Ramsay need not prove “an intentional or
knowing violation on the part of the debt collector to recover
damages[.]” Russell v. Absolute Collection Servs., Inc., 763
F.3d 385, 389 (4th Cir. 2014). She need only show that the
message misstated or at the very least sowed confusion about the
nature and/or source of the document.
To that end, Sawyer has plausibly alleged that the stamp
was deceptive or misleading to the least sophisticated consumer.
See United States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 136
(4th Cir. 1996) (observing that the “least-sophisticated-
consumer standard” protects “the gullible as well as the
15
shrewd”) (quoting Clomon v. Jackson, 988 F.2d 1314, 1318 (2d
Cir. 1993)). The least sophisticated consumer is not well-
versed in legal language, forms, and formalities. When a
conspicuous statement appears on the top of a document and
declares it is “from a debt collector,” a gullible consumer will
likely believe the message, or at least be puzzled by it. As
this case demonstrates, the costs of resulting consumer inaction
are severe, including arrest, detention, and the collateral
consequences that follow.
Tapper’s stamped language is also plainly false. The
majority opinion avers that the stamp is accurate because Tapper
“originated the communications by supplying the necessary
information and taking steps to ensure that the orders were
entered by the court.” Regardless of whether Tapper had to fill
out information on the forms, a court order signed by a judge is
not a communication between a debt collector and consumer as
understood by the FDCPA. Instead, a court order is expressly a
communication between the court and debtor, directing the debtor
to appear or perform some action. See Black’s Law Dictionary
1123 (7th ed. 1999) (defining “order” as “[a] written direction
or command delivered by a court or judge”); Sayyed v. Wolpoff &
Abramson, 485 F.3d 226, 229-30 (4th Cir. 2007) (relying on the
plain meaning of the FDCPA to interpret its terms). Tapper
16
cites nothing in the statutory text or legislative history to
suggest otherwise.
It is true that this Court has left open the question
whether certain types of legal forms like interrogatories served
by debt collectors are communications that require disclosure
language similar to Tapper’s stamp under 15 U.S.C. § 1692e(11).
See Sayyed, 485 F.3d at 235 n.2. An interrogatory, however, is
a different legal species than a court order. An interrogatory
is a set of written questions prepared by a party and submitted
to any opposing party in a lawsuit as part of discovery. See
Fed. R. Civ. P. 33. An order, by contrast, is a command
directly from the court. Nothing in the statutory text of the
FDCPA, or legislative history cited by the parties, suggests
that an order could be considered a communication from a debt
collector triggering the disclosure requirement.
A debt collector who violates the Act’s terms in good faith
can nonetheless prevail, but it bears the burden to prove the
affirmative defense that “(1) it unintentionally violated the
FDCPA; (2) the violation resulted from a bona fide error; and
(3) it maintained procedures reasonably adapted to avoid the
violation.” Russell, 763 F.3d at 389 (citing 15 U.S.C.
§ 1692k(c)). Had the district court denied the motion to
dismiss, as I believe was the proper course of action, such a
defense would have remained available to Tapper.
17
For these reasons, I respectfully dissent.
18