Inge Goodson v. Bank of America, N.A. , 600 F. App'x 422 ( 2015 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0091n.06
No. 14-5419
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
INGE GOODSON, ) FILED
) Jan 28, 2015
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
BANK OF AMERICA, N.A., ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Defendant-Appellee. )
)
)
BEFORE: BATCHELDER and ROGERS, Circuit Judges; and BECKWITH, Senior District
Judge.*
ROGERS, Circuit Judge. Plaintiff Inge Goodson appeals the district court’s grant of
defendant Bank of America, N.A.’s (BANA’s) motion for summary judgment on her Fair Debt
Collection Practices Act (FDCPA) claim. After a confusing foreclosure process, Goodson filed
suit in district court alleging that four letters sent by or on behalf of BANA included “false,
deceptive or misleading” representations in violation of the FDCPA. After the close of
discovery, the district court granted BANA’s motion for summary judgment, finding that (1) two
of Goodson’s letters were time-barred; and (2) because the remaining two letters did not
constitute communications made in connection with the collection of a debt, they did not violate
the FDCPA. Plaintiff appeals. Because neither the discovery rule nor equitable tolling applies to
*
The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio, sitting
by designation.
No. 14-5419
Inge Goodson v. Bank of America, N.A.
the first two letters, and the remaining two communications had not been made to induce
Goodson to pay her defaulted mortgage, the district court correctly granted BANA’s motion for
summary judgment.
In 2008, Goodson refinanced her home in Lyles, Tennessee with a residential mortgage
loan in the amount of $235,226.00 from Taylor, Bean & Whitaker (“TBW”). TBW included
Goodson’s loan in a mortgage-backed security issued by the Government National Mortgage
Association (“Ginnie Mae”) in April 2008. According to Goodson, the Federal Reserve Bank of
New York held the mortgage-backed security, and was the entity to whom Goodson owed her
debt through July 2010.
In March 2009, on the advice of TBW, Goodson defaulted on her mortgage in the hopes
of qualifying for a loan modification. While Goodson’s loan was still in default, however,
Ginnie Mae defaulted TBW and terminated any rights TBW had to Goodson’s note.
Consequently, on August 23, 2009, BAC Home Loans Servicing, LP (which has since merged
with BANA), sent Goodson a letter to inform her that BAC was now the servicer of her loan.
The letter further indicated that Goodson owed $240,985.49 to Ginnie Mae, the creditor, and
included an FDCPA standard disclaimer.1 Goodson claims that this notice violated the FDCPA
by incorrectly identifying Ginnie Mae as the creditor when, in actuality, the Federal Bank of
New York (the owner of the mortgage-backed security pool), owned her loan.
1
The disclaimer stated:
Under the Fair Debt Collections Practices Act, as well as various state-specific acts, BAC Home
Loans is considered a debt collector. BAC Home Loans must provide certain information to you
in order to make sure you are informed when a communication is related to a debt. The “warning
language”, such as the required information provided at the bottom of this letter, provides the
specific verbiage we must include when discussing the collection of a debt. Although your loan
payment may not yet be due, we have provided this information in order to comply under the
appropriate laws governing debt collection.
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On May 6, 2010, the law firm of Shapiro & Kirsch, LLP (“Shapiro”) sent Goodson a
letter to inform her that it had been “retained [by BANA] to initiate foreclosure proceedings” on
her property. The letter identified BAC as the creditor, and advised Goodson that she currently
owed $253,880.31 on her mortgage. Shapiro sent a follow-up notice in July 2010 to inform
Goodson that a non-judicial foreclosure of her home would take place on August 3, 2010.
Goodson later learned during discovery that at the time of Shapiro’s correspondence, BAC (or
later BANA) did not own her loan or note. Thus, Goodson contends that the May 6, 2010 letter
was false and misleading in violation of the FDCPA because it misidentified the creditor.
BAC/BANA then allegedly bought Goodson’s home at the foreclosure sale for
$260,643.41 cash, and Shapiro recorded deeds to that effect. During discovery, Goodson later
learned that BANA had obtained the property through a “dead credit bid” (i.e., a credit bid
instead of cash because the cash would be returned to BANA anyway).2 In state court
proceedings initiated by Shapiro to eject Goodson from the property, Shapiro had filed an
affidavit and substitute trustee deed that indicated that BANA had bought the property for cash.
However, in later testimony, Shapiro explained that the property had been sold through a “dead
credit bid.” BANA similarly maintained that it had purchased Goodson’s property at
foreclosure, though it did not know if it had, in fact, paid anything of value for Goodson’s
property.3 For the first time in her “Opposition to Defendant’s Motion for Summary Judgment,”
2
“The credit bid rule provides that when a lender bids at a foreclosure sale, it is not required to pay cash, but rather
is permitted to make a credit bid because any cash tendered [] would be returned to it.” Grayer v. JPMorgan Chase
Bank, N.A., No. 12-11125, 2013 WL 4414867, at *4 n.4 (E.D. Mich. Aug. 15, 2013) (Michigan law) (internal
quotation marks omitted). Tennessee law recognizes that if, at the foreclosure sale, the lender or mortgagee bids the
full amount of the outstanding debt and accepts the property as full payment of the debt, the mortgage will be
extinguished. First Inv. Co. v. Allstate Ins. Co., 917 S.W.2d 229, 231 (Tenn. Ct. App. 1994); accord Penn Mut. Life
Ins. Co. v. Cleveland Mall Assocs., 916 F. Supp. 715, 717 (E.D. Tenn. 1996).
3
During oral argument, the attorney for BANA explained that BANA’s representative during the deposition had
simply not known the specifics of the foreclosure transaction. BANA’s representative had, however, repeatedly
stated that Shapiro, the foreclosure firm that had handled the foreclosure of Goodson’s home, would be able to
answer such questions.
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Goodson alleged that BANA violated the FDCPA when it falsely represented that it had
purchased her property for cash, as opposed to through a dead credit bid.
Despite Shapiro’s testimony that, following the foreclosure sale, Goodson’s loan should
have been reflected as paid in full, Goodson continued to receive notices that indicated a
remaining balance. On July 8, 2011, BANA sent Goodson a letter to inform her that, “[e]ffective
July 1, 2011, the servicing of home loans by our subsidiary—BAC Home Loans Servicing, LP,
transfers to its parent company—Bank of America, N.A.” The letter included a standard FDCPA
disclaimer, notifying Goodson that “Bank of America, N.A. is required by law to inform you that
this communication is from a debt collector attempting to collect a debt.” On the second page, in
a section tracking the notice requirements of 15 U.S.C. § 1692g, BANA informed Goodson that
as of June 30, 2011, she owed $278,681.40 to the creditor, GNMA-MSS-TBW 9262 AA.
BANA sent Goodson a follow-up letter on July 13, 2011, which stated: “Between late June and
early July we mailed you a ‘Fair Debt Collections Practices Act and State Law Notice’ in
connection with your prior home loan account noted above. We are writing to let you know that
this Notice was sent to you in error and ask that you disregard it.” Goodson alleges that the July
8, 2011 letter violated the FDCPA because it (1) misidentified the creditor as a different entity
than Ginnie Mae; and (2) indicated that she owed in excess of her loan.
Upon receipt of the July 8, 2011 letter, Goodson sent an inquiry to BANA disputing the
debt and requesting verification. On October 7, 2011, Blank Rome LLP responded to Goodson’s
inquiry on behalf of BANA. In the letter’s first paragraph, Blank Rome LLP explained, “This
firm represents Bank of America, N.A., as successor by merger to BAC Home Loans Servicing,
LP (“Bank of America”) for the sole purpose of responding to your correspondence dated July 8,
2011.” Blank Rome LLP also provided her with a payment history. The letter indicated that
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Inge Goodson v. Bank of America, N.A.
Ginnie Mae held Goodson’s note, and stated that the payoff statement would “show all amounts
necessary to pay off” her previous loan. The payment history, however, did not reflect any credit
made to Goodson’s account following BANA’s purchase of her property at foreclosure.
Goodson contends that this letter was false and misleading because it indicated that she owed in
excess of her loan.
Finally, in January 2013, BANA sent another letter notifying Goodson that she owed
$310,784.22.4 The letter also advised Goodson of the requirements she had to follow to pay off
the loan, and informed her of prepayment considerations. Despite the fact that her property had
been foreclosed in 2010, Goodson remained, and as of December 1, 2014, was still living on the
property.
Goodson filed suit in district court on July 6, 2012, alleging that BANA violated 15
U.S.C. §§ 1692e and 1692g of the FDCPA, by sending her “an FDCPA communication in
connection with the collection of a debt which contained at least one false, deceptive or
misleading representation or means when, among other things, it stated that she owed in excess
of the amount of the loan and that, according to Bank of America’s agent, misidentified the
creditor to whom the debt was owed.” BANA filed a Motion to Dismiss on August 9, 2012,
which was subsequently denied by the district court on September 26, 2013.
After the close of discovery in April 2013, BANA filed a Motion for Summary Judgment,
arguing that (1) the claims arising from the August 23, 2009 and May 6, 2010 letters were time-
barred; and (2) because the remaining two letters were “merely informational communications,
[and] not debt collection activities,” they were not subject to the FDCPA. Goodson filed a
motion in opposition, asserting that the discovery rule, equitable tolling and the continuing-
4
Goodson mentions this letter in her brief. However, she does not appear to argue that it should serve as the basis
for a separate FDCPA claim, nor did she mention it in her complaint.
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violation doctrine permitted inclusion of the claims against BANA that would otherwise be time-
barred, and that a reasonable jury could conclude that the communications were made in
connection with debt collection activities.
The district court granted BANA’s Motion for Summary Judgment on March 11, 2014.
After finding that Goodson’s claims based on the August 23, 2009 and May 6, 2010 letters were
time-barred, the court rejected Goodson’s arguments regarding the limitations period based upon
the discovery rule, equitable tolling, and the continuing-violation doctrine. The court reasoned
that the discovery rule was inapplicable because Goodson alleged only violations of the FDCPA,
without asserting that she had been injured by fraud. Equitable tolling was similarly inapplicable
because “[t]he basis of her FDCPA claim [wa]s that the August 23, 2009 and May 6, 2010 letters
were misleading, not that BANA [may] have made misrepresentations to the state court in the
foreclosure proceedings,” and the alleged conduct did not prevent her from discovering her
FDCPA cause of action. The court rejected the continuing-violation doctrine because the court
determined that the sending of each letter was a discrete act that, for statute of limitations
purposes, “should be analyzed on an individual basis.” Lastly, the court held that the remaining
letters were not communications made in connection with debt collection activity, as required by
the FDCPA, because they were intended to merely inform, rather than “induce payment.”
This appeal followed. Each of the three issues raised by Goodson on appeal is without
merit. First, the district court was not required to consider the false and misleading
representations made by BANA during the foreclosure proceedings, and correctly limited
Goodson’s FDCPA claim to the four letters described above. Second, the district court was not
required by the discovery rule or the equitable tolling doctrine to extend the statute of limitations
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periods for the August 23, 2009 and May 6, 2010 letters. Third, the district court properly
determined that the communications at issue did not constitute debt collection activity.
I.
First, the district court correctly limited review of Goodson’s FDCPA claim to the four
letters because her complaint did not allege an FDCPA violation based on deceptive and
misleading representations made by BANA during either the foreclosure process or subsequent
state court proceedings. A plaintiff may not raise a new theory for the first time in opposition to
summary judgment because “[t]o permit a plaintiff to do otherwise would subject defendants to
unfair surprise.” Tucker v. Union of Needletrades, Indus. and Textile Emps., 407 F.3d 784, 788
(6th Cir. 2005); see also Guiffre v. Local Lodge No. 1124, No. 90-3540, 1991 WL 135576, at *5
(6th Cir. July 24, 1991) (unpublished).
In her opposition to BANA’s motion for summary judgment, Goodson alleged, for the
first time, that BANA violated the FDCPA when it (1) falsely informed her that it had purchased
her property in cash, when in fact it had purchased it through a dead credit bid, and (2) stated that
her property had sold at foreclosure.5 Goodson’s complaint, however, alleged no such
violations. The complaint stated only the following claim for relief under the FDCPA:
5
On appeal, Goodson clarified the false statements, alleging:
In the detainer summons, [BANA] falsely stated that the home sold at foreclosure and then had its
agent [Shapiro] file an affidavit in the state court attesting that BANA paid cash for the property at
foreclosure.
At the time of those filings, Goodson had no reason to believe those statements were false.
Indeed, she had received an earlier letter from [Shapiro] stating that the home had been sold at
foreclosure, and the detainer summons was posted at her home, stating it was sold at foreclosure.
There were supposed substitute trustee deeds filed showing conveyance of the property to BANA,
because it purchased the property at foreclosure. . . .
The falsity of these statements only began to come to light in July 2011 when she received a letter
from BANA stating she owed more money on the loan that it supposedly sold for.
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This action seeks redress for collection practices utilized by Defendant Bank of
America, N.A., formerly known as BAC Home Loans Servicing, LP (together,
“Bank of America”), that violate the Fair Debt Collection Practices Act
(hereinafter “FDCPA”), 15 U.S.C. § 1692 et seq., by sending to Plaintiff Inge
Goodson an FDCPA communication in connection with the collection of a debt
which contained at least one false, deceptive or misleading representation or
means when, among other things, it stated that she owed in excess of the amount
of the loan and that, according to Bank of America’s agent, misidentified the
creditor to whom that debt was owed.
BANA’s alleged mischaracterizations of the manner in which it had purchased Goodson’s
property, or whether her home had been foreclosed on at all, clearly did not (1) represent that
Goodson “owed in excess of the amount of the loan” or (2) misidentify the creditor to whom that
debt was owed, the specific false representations discussed in her FDCPA claim.
It is true that Goodson mentioned the foreclosure in her complaint, in her response to
BANA’s motion to dismiss, and in her response to a discovery interrogatory. However, she
appears to have mentioned the foreclosure solely to provide a factual basis for her later claim that
BANA, in its July 8, 2011 and October 7, 2011 letters, falsely represented that she “owed in
excess of the amount of the loan.” She did not assert a stand-alone FDCPA violation based on
representations made during the foreclosure.
For instance, in her complaint, Goodson states:
17. Bank of America, via Shapiro & Kirsch, subsequently foreclosed on Ms.
Goodson’s property in August 2010.
18. Bank of America and Shapiro & Kirsch have represented that BAC Home
Loans Servicing, LP F/K/A Countrywide Home Loans Servicing, LP purchased
the property at foreclosure for $260,643.41.
19. Bank of America and Shapiro & Kirsch have represented that this amount of
$260,643.41 was provided as consideration for the purchase of the property.
20. On or about July 8, 2011, Ms. Goodson received a communication from
Defendant Bank of America stating that she owed $278,681.40 on the debt as of
June 30, 2011. . . .
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21. Ms. Goodson disputed the debt via letter dated July 8, 2011. . . .
22. Bank of America responded via letter from its agent dated October 7, 2011.
That letter included a payment history on the loan, which shows that no payment
was made on the loan associated with the supposed purchase of the property by
Bank of America at foreclosure.
23. The communications from Defendant violates the FDCPA because they
contain false, deceptive or misleading representations.6
In order to explain why the July 8, 2011 and October 7, 2011 letters falsely represented the
amount owed, Goodson needed to show that, following foreclosure, her loan should have been
credited the purchase price. Nowhere did she allege that BANA made false statements during
the foreclosure process when it indicated that her property had been foreclosed on, or that it had
purchased the property with cash, as opposed to through a dead credit bid.
Likewise, in response to a discovery interrogatory asking Goodson to “[s]tate each and
every fact which supports or forms the basis of your claim that BANA violated the FDCPA,”
Goodson answered:
Ms. Goodson is a consumer under the FDCPA who had a loan associated with her
property that was used for [personal and] household purposes. BANA is a debt
collector under the FDCPA, as it admitted and stated in some of its letters to
Goodson. BANA has represented that it bought the property at auction in August
2010, which is in an amount that would have paid off the loan. Yet, the letters
6
Similarly, in her motion in opposition to BANA’s motion to dismiss, Goodson discussed the foreclosure
proceedings only to inform the court as to why the July 8, 2011 and October 7, 2011 letters misrepresented the
amount owed. Goodson’s motion stated:
BANA, via Shapiro & Kirsch, LLP, then foreclosed upon Goodson’s property in August 2010.
BANA and Shapiro & Kirsch have represented that BANA (specifically via its prior entity,
BACHLS) purchased the property at foreclosure for $260,643.41, and that this amount of
$260,643.41 was provided as consideration for the purchase of the property.
Around July 8, 2011, Ms. Goodson received a communication from BANA stating that she owed
$278,681.40 on the debt as of June 30, 2011, which Goodson disputed. Bank of America
responded via letter from its agent dated October 7, 2011. That letter included a payment history
on the loan, which shows that no payment was made on the loan associated with the supposed
purchase of the property by Bank of America at foreclosure. . . .
Goodson contends these communications from BANA violate the FDCPA because they contain
false, deceptive or misleading representations.
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from BANA since August 2010 falsely state, or provide deceptive or misleading
representations, that Goodson still owes on the loan and/or that she owes more
than any amount due. For example, the October 2011 letter does not show that
BANA paid for the property at auction on August 3, 2010, as BANA previously
represented under oath to a Tennessee court.
Here, Goodson clearly indicated that the “letters from BANA since August 2010” are the
communications that “falsely state, or provide deceptive or misleading representations,” in
violation of the FDCPA. Goodson discussed the foreclosure only to show that the subsequent
communications deceptively stated that she owed more money than should have been due
following the sale. Ultimately, Goodson contends that the letters were false for failing to
account for the foreclosure purchase payment that should have been credited to her loan. She
does not allege that BANA made any misrepresentations—either about whether BANA had, in
fact, foreclosed on the property at all, or whether it had paid cash in consideration—during the
foreclosure proceeding itself.
It is not surprising that Goodson failed to raise an FDCPA claim based on BANA’s
alleged misrepresentations during the foreclosure proceeding in her initial complaint because, by
her own admission, she did not uncover the deceptive representations until discovery.7 However,
had Goodson wished to place the claim properly before the court, she should have submitted an
amended complaint, rather than raise it for the first time at the summary judgment stage. “At the
summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend
7
Goodson explained,
It was not until BANA’s counsel confirmed in October 2011, by enclosing the payment history,
that no payment or credit associated with the foreclosure was made on Goodson’s loan that
Goodson could even begin to realize the potential fraud that BANA, with the complicity of its
agent [Shapiro], was committing. It was not until the March 12, 2013 deposition of BANA, when
BANA admitted that it does not know if it purchased the property at foreclosure or paid anything
of value, that the fraud was confirmed. That, of course, directly belies the materials BANA, via its
agent [Shapiro], filed in the state court proceeding and upon which the state court relied in
awarding the property to BANA.
Though Goodson discusses BANA’s “fraud” in her brief, her complaint fails to assert such an allegation.
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the complaint in accordance with Rule 15(a),” which provides for “liberal amendment of the
complaint.” Tucker, 407 F.3d at 788 (citing 10A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 2723 (3d ed. Supp. 2005)). Absent an amended
complaint, the district court correctly limited its review to the four letters.
II.
Second, the district court correctly determined that the August 23, 2009 and May 10,
2010 letters—which Goodson alleged violated the FDCPA by misidentifying the creditor—were
time-barred because they were sent more than one year before Goodson filed her FDCPA claim
in district court on July 6, 2012. “An action to enforce any liability created by this [FDCPA]
subchapter may be brought in any appropriate United States district court without regard to the
amount in controversy, or in any other court of competent jurisdiction, within one year from the
date on which the violation occurs.” 15 U.S.C. § 1692k(d) (emphasis added). Though Goodson
contends that the discovery rule and/or the equitable tolling doctrine should extend the one-year
limitations period in light of BANA’s fraudulent conduct during the 2010 foreclosure
proceedings, neither is applicable.
Assuming arguendo that Goodson properly raised the discovery rule and equitable tolling
doctrines, neither applies to the August 23, 2009 and May 10, 2010 letters because she could
have discovered, in the exercise of reasonable diligence, that BANA had misidentified the
creditor. A reasonable person, after receiving two letters that identified different creditors,
would have been put “on notice of the possibility that one of the letters may have misidentified
the creditor.” Under the discovery rule, “accrual is delayed until the plaintiff has ‘discovered’
his cause of action.” Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013) (internal quotations and
citations omitted). A cause of action “is deemed to be discovered when, in the exercise of
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reasonable diligence, it could have been discovered.” Id. Similarly, under the equitable tolling
doctrine, the limitations “period will begin to run when the borrower discovers or had reasonable
opportunity to discover the fraud involving the complained” of violation. Foster v. D.B.S.
Collection Agy., 463 F. Supp. 2d 783, 799 (S.D. Ohio 2006).
The only alleged FDCPA violation that was related to the August 2009 and May 2010
letters could have been discovered in the exercise of reasonable diligence at the time that
Goodson received the second letter. Goodson contends that BANA’s alleged fraudulent conduct
during the foreclosure proceedings—proceedings that occurred after Goodson received the
second letter—prevented her from uncovering the extent of BANA’s misrepresentations within
the limitations period. However, Goodson does not show how such conduct impeded her ability
to discover the particular FDCPA violation complained of, namely that BANA had misidentified
the creditor. Consequently, neither the discovery rule nor the equitable tolling doctrine is
applicable.8
III.
Third, the district court correctly found that the July 8, 2011 and October 7, 2011
letters—which Goodson alleged falsely represented that she owed in excess of her loan balance
and misidentified the creditor—did not violate the FDCPA because they were not
communications made “in connection” with debt collection activities. Under the FDCPA, “[a]
debt collector may not use any false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C. § 1692e (emphasis added). “The text of §
1692e makes clear that, to be actionable, a communication need not itself be a collection attempt;
it need only be ‘connect[ed]’ with one.” Grden v. Leikin Ingber & Winters PC, 643 F.3d 169,
8
Because the August 23, 2009 and May 6, 2010 letters are time-barred, we do not address whether they were
communications made in connection with debt collection activity.
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173 (6th Cir. 2011). However, it is equally clear that “‘the statute does not apply to every
communication between a debt collector and a debtor.’” Id. (quoting Gburek v. Litton Loan
Serv. LP, 614 F.3d 380, 385 (7th Cir. 2010)) (emphasis in original).
The July 8, 2011 and October 7, 2011 letters were not made “in connection” with debt
collection activities because their “animating purpose” was not to induce Goodson to make
payments on her defaulted mortgage. “[F]or a communication to be in connection with the
collection of a debt, an animating purpose of the communication must be to induce payment by
the debtor.” Grden, 643 F.3d at 173. Though “[t]he ‘animating purposes’ of the communication
is a question of fact that generally is committed to the discretion of the jurors, not the court,”
Estep v. Manley Deas Kochalski, LLC, 552 Fed.App’x 502, 505 (6th Cir. 2014), where “a
reasonable jury could not find that an animating purpose of the statements was to induce
payment,” summary judgment is appropriate. Grden, 643 F.3d at 173.
A review of the language and structure of the two letters shows that they were sent to
inform Goodson, rather than to induce payment. This review takes into account the following
factors: (1) the nature of the relationship of the parties; (2) whether the communication expressly
demanded payment or stated a balance due; (3) whether it was sent in response to an inquiry or
request by the debtor; (4) whether the statements were part of a strategy to make payment more
likely; (5) whether the communication was from a debt collector; (6) whether it stated that it was
an attempt to collect a debt; and (7) whether it threatened consequences should the debtor fail to
pay. Id.; McDermott v. Randall S. Miller & Assocs., P.C., 835 F. Supp. 2d 362, 370−71 (E.D.
Mich. 2011).
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First, the “animating purpose” of the July 8, 2011 letter was to inform Goodson about a
change in her loan servicer, not to induce her to resume payments on her defaulted mortgage. In
pertinent part, the letter provided:
IMPORTANT MESSAGE ABOUT YOUR LOAN
Effective July 1, 2011, the servicing of home loans by our subsidiary-BAC Home
Loans Servicing, LP, transfers to its parent company-Bank of America, N.A.
Based upon our records as of June 30, 2011, the home loan account noted above
is affected by this servicing transfer. The information contained in this
communication does not change or affect any other communications you may
have received or will receive regarding this servicing transfer.
IMPORTANT ADDITIONAL INFORMATION
Under the federal Fair Debt Collections Practices Act and certain state laws, Bank
of America, N.A. is considered a debt collector. As a result, we are sending you
the enclosed Fair Debt Collection Practices Act Notice containing important
information about your loan and your rights under applicable federal and state
law. . . .
THANK YOU
We appreciate the opportunity to serve your home loan needs. [ . . . ]
At the bottom of the first page, in bold, BANA included the following boilerplate
disclaimer:
Bank of America, N.A. is required by law to inform you that this communication
is from a debt collector attempting to collect a debt, and any information obtained
will be used for that purpose. Notwithstanding the foregoing, if you are currently
in a bankruptcy proceeding or have received a discharge of the debt referenced
above, this notice is for informational purposes only and is not an attempt to
collect a debt.
It was not until the second page, in a section tracking the FDCPA notice requirements of
15 U.S.C. § 1692g, that BANA falsely represented the amount of money Goodson owed:
(a) The amount of the debt: As of June 30, 2011, you owe $278,681.40. Because
of interest, late charges, and other charges that may vary from day to day, the
amount due on the day you pay may be greater. Therefore, if you pay the amount
shown above, an adjustment may be necessary after we receive your payment, in
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which event we will inform you or your agent before accepting the payment for
collection.
Though the letter was sent by a debt collector who had had no relationship with Goodson
prior to her default, and stated the balance owed as of June 30, 2011, the factors in favor of
finding that it had been sent in connection with a debt collection activity end there. The letter
did not make an express demand for payment, list a payment due date or threaten consequences
should Goodson fail to pay. Further, the standard disclaimer language—which stated that
BANA was “a debt collector attempting to collect a debt”—did not, by itself, transform the
informational letter into debt collection activity. Courts have found that a disclaimer identifying
the communication as an “attempt to collect a debt[] . . . does not automatically trigger the
protections of the FDCPA.” Gburek, 614 F.3d at 386 n.3. Like the Seventh Circuit in Gburek,
the Tenth Circuit in Maynard v. Cannon, 401 F.App’x 389 (10th Cir. 2010), has found the
inclusion of an FDCPA notice “legally irrelevant.” Id. at 395.
Finally, the structure of the letter supports finding that its “animating purpose” was to
inform Goodson of a change in her loan servicer, not to induce payment. The first page of the
letter opened with the header “IMPORTANT MESSAGE ABOUT YOUR LOAN,” followed by
a discussion of the service provider change, without any mention of payment or Goodson’s
outstanding balance. It next offered a standard FDCPA disclaimer, before concluding with a
“THANK YOU” section. The allegedly false representation of the amount owed did not appear
until the second page when BANA included language that tracks the notice requirements of 15
U.S.C. § 1692g, for communications made in connection with the collection of a debt. Though
Goodson suggests that inclusion of this language proves that BANA believed it was sending a
communication in connection with debt collection activities, and therefore the letter was in
connection with debt collection activities, BANA was likely simply trying to conform to FDCPA
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No. 14-5419
Inge Goodson v. Bank of America, N.A.
requirements. Thus, for the same reason that inclusion of a standard FDCPA disclaimer, on its
own, should not always trigger the protections of the FDCPA, additional disclosures tracking the
notice requirements of 15 U.S.C. § 1692g—a provision intended to ensure that the consumer is
informed—should not automatically transform an otherwise informational letter into a debt
collection activity. In light of the language and structure of the July 8, 2011 letter, a reasonable
jury could not find that its animating purpose was to induce payment.
The October 7, 2011 letter, similarly, was sent not to induce payment, but rather to
respond to Goodson’s inquiry. From the outset, Blank Rome LLP informed Goodson that it
represented “Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP
(“Bank of America”) for the sole purpose of responding to your correspondence dated July 8,
2011,” in which “you dispute the validity of the debt.” When communications are “merely a
ministerial response to a debtor inquiry, rather than part of a strategy to make payment more
likely,” this court has found that inducing payment is not their animating purpose. See, e.g.,
Grden, 643 F.3d at 173. Further, the letter did not make a demand for payment, state a balance
due, indicate that it was an attempt to collect a debt, or threaten negative consequences should
Goodson fail to pay. Under the circumstances presented, no reasonable jury could find that
BANA sent the letter to induce payment.
To the extent Goodson argues that the “July 2011 letter and the October 2011 letter are
part of BANA’s strategy to make payment more likely,” and thus should be viewed together, her
claim is equally meritless. Since the October 2011 was sent only in response to Goodson’s
inquiry, to find that the July 2011 and October 2011 letters combined show a “strategy” on the
part of BANA to induce payment would permit a debtor to “manufacture” collection activity
simply by submitting an inquiry in response to an informational communication.
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No. 14-5419
Inge Goodson v. Bank of America, N.A.
The judgment of the district court is AFFIRMED.
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