Thomas, Frank v. Law Firm Simpson ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1113
FRANK THOMAS,
Plaintiff-Appellant,
v.
LAW FIRM OF SIMPSON & CYBAK, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 C 8211—David H. Coar, Judge.
____________
REARGUED EN BANC JUNE 2, 2004—DECIDED DECEMBER 20, 2004*
____________
Before POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION,
KANNE, ROVNER, WOOD, EVANS, and WILLIAMS, Circuit
Judges.**
WILLIAMS, Circuit Judge. Frank Thomas appeals from
the district court’s dismissal of his suit which alleged that
*
An opinion in this case was originally issued on January 13,
2004. On February 10, 2004, the panel, on its own motion, vacated
its opinion and judgment. The case was submitted for circulation
pursuant to Circuit Rule 40(e) and a majority of the active judges
on the court favored rehearing en banc.
**
Chief Judge Flaum and Circuit Judge Sykes took no part in the
consideration of this matter.
2 No. 02-1113
General Motors Acceptance Corporation (“GMAC”), the law
firm Simpson & Cybak (“Simpson”), and their employees
failed to send him a debt validation notice advising him
of his rights as a debtor within five days of their initial
communication with him, as is required by the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-
1692o. Two principal questions are raised in this appeal:
whether a creditor’s letter to a debtor and whether a debt
collector’s initiation of a lawsuit in state court constitute
“initial communications” within the meaning of the FDCPA.
In dismissing Thomas’s case for failure to state a claim, the
district court determined that the creditor’s letter to the
debtor constituted an “initial communication,” while the
debt collector’s initiation of the lawsuit did not. We disagree
with both conclusions. Accordingly, we reverse the district
court’s decision to dismiss Thomas’s claim against Simpson,
and we remand for further proceedings.
I. BACKGROUND
In January 1998, Frank Thomas purchased a Chevrolet
Blazer from Apple Chevrolet under an installment contract
immediately assigned to GMAC. Around January 20, 2000,
shortly after Thomas lost his job with GMAC, he received a
default letter from GMAC operations manager Kay Candiano
on GMAC letterhead informing him that his payment on
the vehicle was past due.
On March 27, 2000, GMAC, through its attorneys,
Simpson & Cybak, sued Thomas in Illinois state court to
recover the vehicle. Kathleen Haggerty, a Simpson lawyer,
signed the complaint. The complaint included a statement
that, “[p]ursuant to the [FDCPA], you are advised that this
law firm is a debt collector attempting to collect a debt, and
any information obtained will be used for that purpose.”
The summons included similar language.
Thomas filed suit against GMAC and Simpson under the
FDCPA, claiming that neither party sent him a debt vali-
No. 02-1113 3
dation notice advising him of his rights as a debtor. See 15
U.S.C. § 1692g(a). The district court granted both defendants’
motions to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Thomas now appeals.
II. ANALYSIS
We review de novo the district court’s dismissal of
Thomas’s complaint for failure to state a claim, accepting as
true the well-pleaded allegations in Thomas’s complaint
and drawing all reasonable inferences in his favor. Porter v.
DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996).
The FDCPA requires that “within five days after the
initial communication with a consumer in connection with
the collection of any debt, a debt collector” must send the
debtor a written validation notice containing certain infor-
mation. 15 U.S.C. § 1692g(a). The notice must inform the
debtor of the amount of the debt, the name of the creditor,
and state that the debt will be assumed valid if the debtor
does not dispute its validity within 30 days of the receipt of
the notice. Id. § 1692g(a)(1)-(3). Furthermore, the notice
must include a statement that if the debtor disputes the
debt within 30 days of the notice, the debt collector will
obtain and send the debtor verification of the debt and, up-
on written request, send the debtor the name and address
of the current creditor, if different from the original credi-
tor. Id. § 1692g(a)(4)-(5).
Thomas argues that neither GMAC nor Simpson notified
him of these debt validation rights. Thomas primarily con-
tends that the summons and complaint Simpson filed
initiating state court litigation against him constituted an
“initial communication” under the FDCPA, and Simpson
was therefore required to notify him of his validation rights
within five days of the service of that communication.
As an initial matter, we must decide whether GMAC’s
January 20, 2000 default letter to Thomas constitutes an
4 No. 02-1113
“initial communication” for purposes of the FDCPA. Despite
the district court’s finding to the contrary, all parties to this
appeal now concede that the letter does not constitute an
“initial communication” regarding a debt under the FDCPA.
The FDCPA defines a “communication” broadly: “the con-
veying of information regarding a debt directly or indirectly
to any person through any medium.” 15 U.S.C. § 1692a(2).
But, because the Act regulates debt collectors rather than
creditors, Schlosser v. Fairbanks Capital Corp., 323 F.3d 534,
536 (7th Cir. 2003), GMAC’s letter to Thomas—a letter from
a creditor1—does not qualify as an “initial communication”
under the Act. Because the FDCPA makes debt collectors,
but not creditors, responsible for notifying debtors of their
validation rights, see 15 U.S.C. § 1692g(a), finding that
a letter from a creditor constitutes an “initial communi-
cation” could create significant unintended obligations for
debt collectors. For example, if a letter from a creditor con-
stitutes an “initial communication,” debt collectors would be
responsible for notifying debtors of their debt validation
rights within five days of an “initial communication” that
the debt collector did not send, or for one communicated even
before the creditor retained the debt collector. Nothing in
the FDCPA suggests that Congress intended creditors’
unilateral actions to obligate debt collectors to inform
debtors of their rights; rather, the Act is intended to deter
debt collectors from employing their own abusive tactics.
1
The district court found that GMAC was a creditor. Thomas v.
Law Firm of Simpson & Cybak, No. 00 C 8211, 2001 WL 1516746,
at *3 (N.D. Ill. Nov. 28, 2001). A creditor includes “any person who
offers or extends credit creating a debt or to whom a debt is
owed. . .,” whereas a debt collector includes “any person who uses
an instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any
debts, or 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(4), (6).
No. 02-1113 5
Because we decide that GMAC’s letter to Thomas does not
constitute an initial communication for FDCPA purposes,
no obligation to inform Thomas of his validation rights
arose upon the sending of the letter.
The principal question remains, whether Simpson’s service
of a summons and complaint, filed in state court, was an
“initial communication” within the meaning of the FDCPA,
such that its service triggered an obligation to notify
Thomas of his validation rights within five days. Simpson
concedes that it is a debt collector as defined in § 1692a(6),
but argues that pleadings do not constitute “communica-
tions.” The courts that have addressed this issue are divided
in their analyses. Compare, e.g., Vega v. McKay, 351 F.3d
1334, 1337 (11th Cir. 2003) (holding that a summons and
complaint do not constitute “initial communications” trig-
gering the debt validation notice requirements of § 1692g),
and McKnight v. Benitez, 176 F. Supp. 2d 1301, 1306-08
(M.D. Fla. 2001) (same), with Sprouse v. City Credits Co.,
126 F. Supp. 2d 1083, 1089 n.8 (S.D. Ohio 2000) (finding that
a summons and complaint served in a state court action
constitute “initial communications” under the FDCPA).
By its terms, as stated above, the FDCPA’s broad defi-
nition of a “communication” encompasses the service of a
summons and complaint. When Simpson served the sum-
mons and complaint, it conveyed information regarding
Thomas’s debt. The plain language of a statute “should be
conclusive ‘except in the rare cases [in which] the literal
application of a statute will produce a result demonstrably
at odds with the intentions of its drafters.’ ” Castellon-
Contreras v. INS, 45 F.3d 149, 153 (7th Cir. 1995) (quoting
United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242
(1989)). This is not such a case; rather, viewing the service
of a summons and a complaint as an “initial communica-
tion” is consistent with the drafters’ intent.
The statute was intended to “protect consumers from a
host of unfair, harassing, and deceptive debt collection prac-
tices. . . .” S. Rep. No. 382, 95th Cong. 2d. Sess. 4, 1. Our
6 No. 02-1113
interpretation of the statute furthers this objective because
it helps ensure that debtors will be informed about their
validation rights and that debt collectors, knowing that they
are obliged to advise debtors of these rights, will investigate
claims before initiating litigation to collect debts. Defen-
dants’ argument that state courts offer sufficient
protections to guard against abusive debt collection tactics
during litigation is unpersuasive. The FDCPA affords dif-
ferent protections than state court; debt collectors who
violate its provisions may be subject to civil liability. See 15
U.S.C. § 1692k.
Furthermore, to except the service of pleadings from the
definition of “communication” would erode the § 1692g re-
quirement to inform debtors of their validation rights; debt
collectors could avoid their obligation to advise debtors of
their validation rights altogether by initiating litigation.
Such a loophole, creating an end-run around the validation
notice requirement, is inconsistent with the drafters’
intention of protecting debtors from “unfair, harassing, and
deceptive” collection tactics, especially because many
debtors cannot afford to hire attorneys to represent them in
collection actions. Congress was careful to except pleadings
from the definition of “communication” where it so in-
tended. Section 1692e(11) provides that a debt collector
must disclose in its initial communication with the debtor
that “the debt collector is attempting to collect a debt and
that any information obtained will be used for that pur-
pose,” except that the provision does “not apply to formal
pleading[s] made in connection with a legal action.” 15
U.S.C. § 1692e(11). No such pleadings exception exists in
§ 1692g.2
2
We are aware that Congress has proposed a bill amending the
FDCPA to specifically exclude formal pleadings from the defi-
nition of a communication for purposes of 15 U.S.C. § 1692g, see
(continued...)
No. 02-1113 7
Defendants contend that we should ignore the FDCPA’s
plain language because deeming the service of a summons
and complaint an “initial communication” would interfere
with litigation by making debt collection lawsuits more
cumbersome for attorneys. In Heintz v. Jenkins, 514 U.S.
291 (1995), the Supreme Court considered and, in light of
the FDCPA’s plain language, rejected similar arguments.
The Court held that the FDCPA applies to lawyers who
regularly attempt to collect debts through litigation. Heintz,
514 U.S. at 292. In so holding, the Court considered
§ 1692c(c), which prohibits debt collectors from communi-
cating with consumers if the consumer requests that the
debt collector cease communication. The Court recognized,
“it would be odd if the Act empowered a debt-owing con-
sumer to stop the ‘communications’ inherent in an ordinary
lawsuit and thereby cause an ordinary debt-collecting
lawsuit to grind to a halt.” Id. at 296. But the Court noted
that such a reading was unnecessary, as § 1692c(c) allows
communication to “notify the consumer that the debt col-
lector or creditor intends to invoke a specified remedy,” an
exception that could be read as allowing communications in
the form of court-related documents. The Court thought it
more prudent to read the § 1692c(c) exception that way
than to “create a far broader exception, for all litigating
attorneys,” given the absence of such an explicit exception
in the Act itself. Id. at 296-97. Thus, the Court’s opinion
suggests that to the extent that they can be ameliorated,
concerns about interfering with litigation are alone insuf-
ficient to warrant ignoring the statute’s plain language.
Nonetheless, some of defendants’ concerns warrant further
discussion, as they claim our holding will create a host of
2
(...continued)
H.R. 3066, 108th Cong. (2003), but as an interpretative body, we
must interpret the law as it existed at the time the dispute arose.
8 No. 02-1113
practical difficulties; however, these practical difficulties
can be overcome. Section 1692g(b) directs debt collectors to
cease their collection efforts if within 30 days of receiving
the debt validation notice, the consumer seeks verification
of the debt. Thus, a consumer could potentially halt a law-
suit by requesting verification of the debt.3 This problem is
not insurmountable. A debt collector need not make the
summons and complaint its first communication with the
debtor; rather, it can have its initial communication with
the debtor upwards of 30 days before it intends to initiate
litigation. After the thirty-day verification period has ex-
pired, the debt collector can then initiate litigation without
fear that the debtor will “interfere” with the suit by seeking
verification of the debt.
Sending the notice in advance also avoids other complica-
tions. Some states prohibit the inclusion of other documents
with the summons and complaint. A debt collector avoids
running afoul of such a rule by sending the notice sepa-
rately, either in advance or within five days of the initial
communication. After all, the FDCPA does not require debt
collectors to notify debtors of their rights in the initial
communication itself. See 15 U.S.C. § 1692g(a).
Sending the notice along with the pleadings, or shortly
thereafter, might also confuse the debtor. A debtor must
comply with deadlines imposed by court rules and judges,
even if that debtor has requested verification of the debt.
While the §1692g notice indicates that the debtor has 30
3
In a typical case this is not a significant problem, as the debt
collector can resume its collection activities once it sends the
debtor verification of the debt. See Bartlett v. Heibl, 128 F.3d 497,
501 (7th Cir. 1997) (noting that a debt collector simply must
“cease his efforts at collection during the interval between being
asked for verification of the debt and mailing the verification to
the debtor”). But a debtor could act strategically by requesting
verification just before a court filing deadline.
No. 02-1113 9
days to dispute his debt, in federal court a defendant must
answer a complaint within 20 days of its filing. Fed. R. Civ.
P. 12(a)(1)(A). Failing to timely file an answer could result
in a default judgment. Fed. R. Civ. P. 55(a). Thus, the
validation notice could potentially give a debtor the false
impression that it has 30 days before it is required to take
any action in the lawsuit.
Nonetheless, there may be instances when a debt collector
believes delay in initiating a lawsuit is unwise, such as
when it fears the debtor will dissolve assets. Given the
potential for confusion, a debt collector who chooses to send
the validation notice either with the summons and com-
plaint or shortly thereafter should take care to phrase its
notice so as to not mislead. It should make clear that the
advice contained in the § 1692g validation notice in no way
alters the debtor’s rights or obligations with respect to the
lawsuit, emphasizing that courts set different deadlines for
filings.
As we have in cases addressing other FDCPA provisions,
see Miller v. McCalla, Raymer, Padrick, Cobb, Nichols and
Clark, L.L.C., 214 F.3d 872, 875 (7th Cir. 2000); Bartlett v.
Heibl, 128 F.3d 497, 501-02 (7th Cir. 1997), we think it
helpful to suggest explanatory language for debt collectors
to use. A debt collector who chooses to send the § 1692g
validation notice with the summons or complaint or shortly
thereafter can send a carefully worded notice, such as one
containing the following language, to comply with the
FDCPA without disrupting the litigation process:
This advice pertains to your dealings with me as a
debt collector. It does not affect your dealings with
the court, and in particular it does not change the
time at which you must answer the complaint. The
summons is a command from the court, not from
me, and you must follow its instructions even if you
dispute the validity or amount of the debt. The
10 No. 02-1113
advice in this letter also does not affect my rela-
tions with the court. As a lawyer, I may file papers
in the suit according to the court’s rules and the
judge’s instructions.
We note that an additional potential complication exists
under § 1692c(a)(2), which prohibits debt collectors from
communicating with a debtor it knows to be represented by
counsel. If pleadings are “communications” under the
FDCPA, in any jurisdiction in which a defendant must be
personally served, a debtor could arguably thwart service by
simply retaining an attorney.4 But other exceptions within
§ 1692c could be read to allow for service. For instance,
§ 1692c(a) permits communication with debtors represented
by attorneys with the express permission of the court. Court
rules permitting service could be interpreted as granting
such express permission.
The above-referenced practical difficulties are not insur-
mountable and, thus, do not warrant overriding the Act’s
plain language. See Jenkins v. Heintz, 25 F.3d 536, 539 (7th
Cir. 1994), aff’d, 514 U.S. 291 (1995) (commenting that “[w]e
should not disregard plain statutory language in order to
impose on the statute what we may consider a more
reasonable reading.”). Accordingly, we hold that Simpson’s
service of the summons and complaint was an “initial com-
munication,” which triggered its obligation to notify Thomas
of his validation rights. In so holding, we recognize that we
part company from the Eleventh Circuit, which reached
a contrary result. See Vega, 351 F.3d at 1337. But the
Eleventh Circuit relied principally on non-binding Federal
Trade Commission (“FTC”) staff commentary issued before
4
We hold today only that the service of a summons and com-
plaint is a “communication” for § 1692g purposes. Whether plead-
ings constitute “communications” under other provisions of the
Act, such as § 1692c, is not before us.
No. 02-1113 11
Heintz, see Federal Trade Commission—Staff Commentary
on the Fair Debt Collection Practices Act, 53 Fed. Reg.
50097, 50108 (1988), to which we do not give significant
weight. See Heintz, 514 U.S. at 298 (declining to give much
weight to FTC staff commentary discussing the FDCPA’s
application to attorneys). Indeed, the FTC itself, in a more
recent Advisory Opinion letter issued in 2000 noted the
following: “In light of Heintz, the Commission concludes that,
if an attorney debt collector serves on a consumer a court
document ‘conveying information regarding a debt,’ that
court document is a ‘communication’ for purposes of the
FDCPA.” Federal Trade Commission-Staff Opinion Letter
of March 31, 2000, at 3, available at http://
www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm. The FTC
may think it wise to issue advisory opinions providing guid-
ance for the many variations that lawyers may encounter in
their roles as statutory debt collectors, and 15 U.S.C.
§ 1692k(e) provides that no liability results from good faith
reliance on such opinions.
Because we have concluded that the service of a summons
and complaint by a debt collector constitutes an “initial
communication” under the FDCPA, Thomas has stated a
viable claim for violation of 15 U.S.C. § 1692g.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
dismissal under Rule 12(b)(6) of Thomas’s claim against
Simpson and REMAND for further proceedings consistent
with this opinion.
EVANS, Circuit Judge, joined by COFFEY, MANION, and
KANNE, Circuit Judges, dissenting. I agree that the FDCPA’s
definition of “communication” could be read to encompass
the filing of a summons and complaint by a lawyer. But I
don’t think it should be read that way. To do so, I submit,
12 No. 02-1113
leads to a result that is not consistent with the purpose of
the FDCPA, nor with the traditional view of what lawyers
must do when they take a pivotal step in their relationship
with a client—instituting formal legal proceedings in a
court of law.
No doubt, lawyers can be “debt collectors” when they act
like them—by engaging in the kind of “unfair, harassing
and deceptive debt collection practices” that the FDCPA is
designed to protect against. See Avila v. Rubin, 84 F.3d 222
(7th Cir. 1996) (lawyer sending out dunning letters is a
“debt collector” subject to the FDCPA). But in this case, the
lawyers were not sending dunning “communications” to Mr.
Thomas. Instead, they were doing what lawyers tradition-
ally do—filing a lawsuit in state court on behalf of their
client. To hold that they must include in their court plead-
ings all the notice/validation, etc. information required by
the FDCPA seems very odd indeed. And it will also be very
confusing—“you have 20 days to answer the complaint” and
“30 days to dispute the validity and request verification of
the debt.” All of which will make even a sophisticated
defendant scratch his head and say “Huh?”.
As a general rule, when statutory language is plain, there
is no cause to examine other indicia of legislative intent.
Indiana Port Comm’n v. Bethlehem Steel Corp., 835 F.2d
1207, 1210 (7th Cir. 1987). But we have long recognized
that a section of a statute should not be read in isolation
from the context of the statute as a whole. See Nupulse, Inc.
v. Schlueter Co., 853 F.2d 545, 549 (7th Cir. 1988). We also
have noted that “the Supreme Court has recognized limita-
tions on the requirement that statutory language be
interpreted literally. A literal construction is inappropriate
if it would lead to absurd results or would thwart the ob-
vious purposes of the statute.” Smith v. Bowen, 815 F.2d
1152, 1154 (7th Cir. 1987) (citing In re Trans Alaska Pipeline
Rate Cases, 436 U.S. 631, 643 (1978)).
To include the filing of a summons and complaint in the
definition of a “communication” with a debtor under the
No. 02-1113 13
FDCPA runs counter to the intent of the statute and creates
inconsistency, as Judge Moody, in McKnight v. Benitez, 176
F. Supp. 2d 1301 (M.D. Fla. 2001), astutely observed:
The purpose of the Act, as stated in § 1692(e), is “to
eliminate abusive debt collection practices by debt
collectors, to ensure that those debt collectors who
refrain from using abusive debt collection practices
are not competitively disadvantaged, and to pro-
mote consistent state action to protect consumers
against debt collection abuses.” That language indi-
cates that Congress intended to regulate unscrupu-
lous practices of debt collectors and level the playing
field for debt collectors who do not use abusive
practices. There is no indication whatsoever that
Congress considered state law legal remedies to be
“abusive,” nor does it appear necessary to alter the
procedures for filing state lawsuits to level the
playing field. After all, if state lawsuits are used in
an abusive manner, protection already exists in the
court where the action is brought.
Moreover, Congress did not overlook legal actions
as being potentially abusive. It made a specific pro-
vision in the Act, in a section entitled “Legal Actions
by Debt Collectors,” to regulate venue, the place
where a lawsuit could be filed. Had it wished to al-
ter the timing of the filing or create other changes
in existing legal remedies to curb “abuses,” it would
have been logical to do so there. Or, specific men-
tion of legal actions could have been made within
the definition of “communication.” The absence of
doing so is one indication that Congress did not
intend the revolutionary changes to long-standing
judicial remedies which are required if a legal action
is considered a “communication” within the mean-
ing of the Act.
176 F. Supp. 2d at 1305.
14 No. 02-1113
Recently, the Eleventh Circuit considered whether
McKnight was correctly decided and concluded, unequivo-
cally, that it was. Vega v. McKay, 351 F.3d 1334 (11th Cir.
2003) (per curiam). To quote our sister circuit: “We now con-
clude that the holding of McKnight, that a legal action does
not constitute an ‘initial communication’ within the meaning
of the FDCPA, accurately states the law.” Id. at 1337. We
should not be creating a circuit split on this issue.
Finally, as the majority notes, a bill is pending in Congress
to amend the FDCPA to specifically exclude formal plead-
ings from the definition of a communication under 15 U.S.C.
§ 1692g, see H.R. 3066, 108th Cong. (2003). While this
might well be an indication that Congress considers the
FDCPA’s current definition of “communication” to include
the filing of a summons and complaint, I think it’s more
likely that the purpose of the proposed amendment is to
make explicit what is clearly implicit. For what it’s worth,
I think the proposed amendment is more easily viewed as
an effort to curtail erroneous interpretations, like the one
the majority makes here.
For these reasons, I respectfully dissent.
No. 02-1113 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-20-04