Jeffrey Lox v. CDA Limited , 689 F.3d 818 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2729
JEFFREY L OX,
Plaintiff-Appellant,
v.
CDA, L IMITED, doing business as
Creditors Discount & Audit Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:10-cv-01042—John A. Gorman, Magistrate Judge.
A RGUED M AY 25, 2012—D ECIDED A UGUST 2, 2012
Before P OSNER, F LAUM, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. In 2005, Jeffrey Lox received
medical treatment from Dr. Mark Baylor, and as a result,
he incurred a debt. Lox failed to pay, and so his debt was
referred by Dr. Baylor to Creditors Discount & Audit
Company (“CDA”), a debt collection agency. One of the
ways by which CDA attempted to collect Lox’s debt
was through dunning letters, and one of those dunning
2 No. 11-2729
letters included a warning that failure to pay his debt could
lead to a lawsuit brought against Lox. The letter further
stated that if Dr. Baylor was successful in his lawsuit,
Lox could be ordered by the court to pay Dr. Baylor’s
attorney fees. Lox contends that Dr. Baylor could not,
under any circumstances, have recovered attorney fees
from Lox, and thus believes that the several dunning
letters sent to him by CDA violated the Fair Debt Collec-
tion Practices Act (the “FDCPA”), 15 U.S.C. § 1692, et seq.
Lox advanced this theory in a suit against CDA brought
in the Central District of Illinois. The district court dis-
agreed with Lox’s assessment of the dunning letters
and granted CDA’s summary judgment motion. Lox now
appeals the district court’s decision. For the following
reasons, we reverse the ruling of the district court.
I. Background
Jeffrey Lox is a resident of Glasford, Illinois, and at some
point in 2005, he suffered an injury, the nature and cause
of which are irrelevant to the disposition of this appeal.
He went to Dr. Baylor to be treated for his injury, and
before receiving medical care, he signed a Patient Reg-
istration Form. The form stated, inter alia:
All professional services rendered are charged to
the patient. The patient is responsible for all fees,
regardless of insurance coverage. It is customary to
pay for services when rendered unless other arrange-
ments have been made in advance with our office
bookkeeper.
No. 11-2729 3
After being treated by Dr. Baylor, Lox owed $235.07. He
lost his job around this time, and thus was unable (or
unwilling) to pay his bill.
The debt was eventually referred by Dr. Baylor to
CDA, and over the course of nine months or so, CDA sent
Lox numerous debt collection letters and made several
debt collection phone calls. Two of the debt collection
letters included the following warnings:
You have the right to pay this claim now. To avoid
further steps, respond within 48 hours. Consider our
clients [sic] lawful alternatives closely. Our client
may take legal steps against you and if the courts
award judgement, the court could allow court costs
and attorney fees.
On February 19, 2010, Lox filed a complaint in the
Central District of Illinois, alleging that CDA violated
the FDCPA by way of several improper statements
found in the various collection letters sent to Lox. One of
Lox’s claims was that the language concerning attorney
fees, quoted above, was false and misleading, and thus
ran afoul of 15 U.S.C. §1692e, which states, “A debt col-
lector may not use any false, deceptive, or misleading
representation or means in connection with the collec-
tion of any debt.” At his deposition, Lox had this to say
about the relevant attorney fees language:
Q. Do you think that it’s deceptive or deceiving?
...
A. Yes.
4 No. 11-2729
Q. Why?
A. Because I wouldn’t have to pay for the attorney
fees.
Q. Okay. What do you mean by that? Can you explain
that further?
A. I wouldn’t have to pay for the attorney’s fees.
Q. It’s deceptive because you personally wouldn’t
have to pay for attorney’s fees?
...
A. [No audible response.]
Q. Okay. And why—why would you not have to pay
for attorney’s fees?
...
A. Why would I have to pay for attorney’s fees?
Why would I pay for the opposing side’s attorney
fees?
Q. All right. So that’s—you just don’t believe that you
would?
A. No.
After discovery, both parties filed summary judgment
motions. Lox’s motion claimed, among other things, that
the pertinent debt-collection language quoted above
falsely threatened that a court could award attorney fees.
He did not present any extrinsic evidence to support
the misleading nature of the language, but rather relied on
his own assertions. The magistrate judge handling the
suit denied Lox’s motion and granted CDA’s summary
No. 11-2729 5
judgment motion, finding that the letters in question
made no specific demand for attorney fees and did not
state a specific amount of attorney fees that would be
owed. The magistrate judge also found the use of condi-
tional language (i.e., “our client may take legal steps” and
“the court could allow . . . attorney fees” (emphasis added))
to be relevant, and ruled that no reasonable consumer
could have believed that he owed more than the debt
due upon receipt of the letter. On these bases, the magis-
trate judge ruled that the attorney fees language was not
violative of the FDCPA.
Despite the fact that the magistrate judge granted CDA
summary judgment on all of Lox’s FDCPA claims, Lox
only appeals the court’s dismissal of his challenge to the
attorney fees language.
II. Discussion
When a district court grants a party’s summary judg-
ment motion, we review that decision de novo. Mercatus
Group, LLC v. Lake Forest Hosp., 641 F.3d 834, 839 (7th Cir.
2011). “We construe facts favorably to the nonmoving
party and grant the nonmoving party ‘all reasonable
inferences’ in its favor.” Bagley v. Blagojevich, 646 F.3d
378, 388 (7th Cir. 2011) (quoting Ogden v. Atterholt, 606
F.3d 355, 358 (7th Cir. 2010)).
As stated above, the FDCPA prohibits the use of “false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. This is a broad prohibition, and while § 1692e
6 No. 11-2729
has 16 subsections describing ways by which a debt
collector could violate the FDCPA, that list is nonexhaus-
tive, Nielsen v. Dickerson, 307 F.3d 623, 634 (7th Cir. 2002),
and a plaintiff need not allege a violation of a specific sub-
section in order to succeed in a § 1692e case, Ruth v.
Triumph P’ships, 577 F.3d 790, 794 n.2 (7th Cir. 2009).
Despite the breadth of § 1692e’s coverage, however,
there are limits to its reach. As we made clear in Wahl
v. Midland Credit Mgmt., a statement made by a
debt collector that is technically false but in no way
misleading does not run afoul of § 1692e. 556 F.3d 643, 645-
46 (7th Cir. 2009). Instead, we use the “unsophisticated
consumer” standard, as we do with all claims under
§ 1692e, and “[f]or purposes of § 1692e . . . a statement
isn’t ‘false’ unless it would confuse the unsophisticated
consumer.” Id. at 646. The unsophisticated consumer
may be “uninformed, naïve, [and] trusting,” Veach v.
Sheeks, 316 F.3d 690, 693 (7th Cir. 2003), but is not a
dimwit, has “rudimentary knowledge about the finan-
cial world,” and is “capable of making basic logical de-
ductions and inferences,” Wahl, 556 F.3d at 645 (quoting
Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d
1057, 1060 (7th Cir. 2000)). Furthermore, because we have
rejected the “least sophisticated consumer” standard, a
letter must be confusing to “a significant fraction of the
population.” Taylor v. Cavalry Inv., L.L.C., 365 F.3d 572,
574 (7th Cir. 2004).
Contrary to some other circuits, see, e.g., Gonzales v.
Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 n.3
(9th Cir. 2011), we treat the question of whether an unso-
phisticated consumer would find certain debt collection
No. 11-2729 7
language misleading as a question of fact. See Walker v.
Nat’l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999). As
an outgrowth of this practice, we have determined
that there are three categories of § 1692e cases. Ruth, 577
F.3d at 800. The first category includes cases in which
the allegedly offensive language is plainly and clearly
not misleading. Id. In cases of this nature, no ex-
trinsic evidence is needed to show that the reasonable
unsophisticated consumer would not be confused by
the pertinent language. Id. The second category of cases
includes debt collection language that is not misleading
or confusing on its face, but has the potential to be mis-
leading to the unsophisticated consumer. Id. If a case
falls into this category, “we have held that plaintiffs
may prevail only by producing extrinsic evidence, such
as consumer surveys, to prove that unsophisticated
consumers do in fact find the challenged statements
misleading or deceptive.” Id. The final category includes
cases involving letters that are plainly deceptive or mis-
leading, and therefore do not require any extrinsic evi-
dence in order for the plaintiff to be successful. Id. at 801.
Thus, to succeed on this appeal, Lox must convince
us that CDA’s statement regarding attorney fees is not
only false, but would mislead the unsophisticated con-
sumer. Further, since Lox did not present any extrinsic
evidence at the summary judgment stage, he must show
that the statement is plainly and clearly misleading on
its face, thus eliminating any need for evidence of its
deceptive nature. There is one more hurdle that Lox must
clear to succeed as well. In Hahn v. Triumph P'ships,
we observed that “[m]ateriality is an ordinary element of
8 No. 11-2729
any federal claim based on a false or misleading state-
ment,” and we determined that § 1692e claims are no
exception to this requirement. 557 F.3d 755, 757-58 (7th
Cir. 2009). Therefore Lox must also demonstrate that
CDA’s attorney fees language constituted a materially
false statement.
Lox argues that he has cleared all of these hurdles.
He believes that the clear language in CDA’s letters
intimated that if Lox did not pay his debt, CDA could
have filed suit, and a court would have had the legal
authority to impose CDA’s attorney fees upon Lox. This,
Lox claims, was in violation of the FDCPA, since, under
the so-called “American Rule,” a losing party cannot be
charged with the winning party’s attorney fees unless a
statute or a contract explicitly states otherwise. Lox
contends that CDA’s statement was so clearly false
and misleading that no extrinsic evidence is necessary
to prove its deceptive nature. He further argues that the
conditional nature of the statement at issue (i.e., that a
court could impose attorney fees if CDA were to bring
suit) does not save the practice, since there are no cir-
cumstances under which attorney fees could have been
levied against Lox. Finally, Lox claims that this false
statement was material, since it suggested that Lox may
have had to pay more than the actual amount owed to
Dr. Baylor if Lox did not pay his debt off within 48 hours.
CDA disagrees, arguing that it is hard to even assign
a truth-value to the attorney fees language, since it was
couched in so many conditionals. CDA contends that
in order to run afoul of § 1692e, the language would
No. 11-2729 9
have had to include either a statement suggesting that
CDA or Dr. Baylor intended to seek attorney fees or a
threat of a specific amount of attorney fees. CDA also
believes that even if the attorney fees language was not
clearly proper on its face, Lox would have needed to
present extrinsic evidence to prove that the statement was
misleading. CDA next argues that regardless of whether
or not the statement was misleading, it was not mate-
rial for two reasons: (1) it would not have had an effect on
the reasonable unsophisticated consumer; and (2) Lox’s
deposition testimony suggests that he never believed
that he would have to pay attorney fees, and thus the
statement could not have caused him to act any dif-
ferently than he would have but for the letters. CDA’s
final argument is that Lox did not bring up this
particular language until his summary judgment mo-
tion. Since the statement was not mentioned in either
his complaint or his amended complaint, therefore, the
argument should be deemed waived, or so CDA contends.
As to the first question—whether CDA’s statement
regarding attorney fees was actually false—Lox presents
several sources explaining that both Illinois and the
federal courts follow the so-called “American Rule”—the
rule that disallows the award of attorney fees absent a
contractual or statutory exception. See Hardt v. Reliance
Std. Life Ins. Co., 130 S.Ct. 2149, 2156-57 (2010); Krantz
v. Chessick, 668 N.E.2d 77, 81 (Ill. App. Ct. 1996). Lox
also asserts that the only reference to fees in the agree-
ment between himself and Dr. Baylor refers to medical
fees, not attorney fees, see supra section I, thus preventing
any possibility that a contractual basis for attorney fees
10 No. 11-2729
exists. CDA does not contest either of these assertions,
and thus the parties agree (at least through waiver)
that attorney fees could not have been awarded
to CDA, the debt collection letters notwithstanding.
The district court nonetheless held, “It is almost impos-
sible to characterize [the] statement as true or false,
given the multiple hypothetical words contained in [the]
single sentence.” In support of this conclusion, the
district court cites Taylor, 365 F.3d 572, observing that “the
Seventh Circuit found ‘downright frivolous’ the claim
that a letter was false because it said the creditor ‘might’
add interest.” As an initial matter, the district court was
incorrect to say that the pertinent statement could not
be deemed true or false. The statement at issue is the
following: “Our client may take legal steps against you
and if the courts award judgement, the court could allow
court costs and attorney fees.” The clear meaning of this
statement is that if CDA decided to bring legal action
against Lox and was victorious, the award of attorney
fees to CDA was one possible outcome. CDA admits
(through waiver) that the award of attorney fees was not
a possible outcome; thus, the statement is false.
As for the district court’s reliance on Taylor, it is mis-
placed. In Taylor, the dunning letter at issue stated that
“if applicable, your account may have or will accrue
interest at a rate specified in your contractual agreement
with the original creditor.” Id. at 574 (both emphases
added). The only reasonable interpretation of this state-
ment, even for an unsophisticated consumer, is that
interest might accrue if the debtor’s original debt agree-
No. 11-2729 11
ment provided for such interest. There is no similar
limiting language in this case. If CDA’s dunning
letter stated that attorney fees could be awarded if
Lox’s agreement with Dr. Baylor provided for such fees,
then Taylor would be an apt comparison, but this lan-
guage is not present. As the statement was actually writ-
ten, it is false, and therefore may be in violation of § 1692e.
As stated above, however, technical falsity is not
enough for a statement to be violative of § 1692e—it must
actually be misleading to the unsophisticated con-
sumer. Wahl, 556 F.3d at 645-46. Further, Lox has not
presented any extrinsic evidence illustrating the decep-
tive nature of the statement, and thus he must convince
us that it is misleading on its face. Ruth, 577 F.3d at 800-01.
The district court held that the lack of any specific
demand for or amount of attorney fees in the relevant
statement would make it unreasonable for an unsophisti-
cated consumer to believe that “he must presently
pay some unspecified amount of attorney fees in order
to satisfy the debt.” As Lox correctly points out, however,
the district court misunderstood Lox’s argument. He is
not suggesting that an unsophisticated consumer would
believe the letters to say that attorney fees had already
been added to the debt. Rather, he argues that CDA
falsely implied that one possible outcome of Lox’s
failure to promptly pay his debt was the incurrence of the
obligation to pay CDA’s attorney fees. Lox contends
that the unsophisticated consumer is not aware of the
American Rule on attorney fees, and thus a false state-
ment from a debt collector that attorney fees could be
levied against a debtor would undoubtedly mislead said
12 No. 11-2729
unsophisticated consumer about the possible con-
sequences of his various courses of action. In addition,
he argues that the use of conditional language (i.e., “[o]ur
client may take legal steps,” “if the courts award judg-
ment,” and “the court could allow . . . attorney fees”) does
not make the statement any less confusing, and thus
does not save the practice.
In support of his argument, Lox cites several cases,
beginning with Ruth. In Ruth, the defendant sent a debt
collection letter warning, “To the extent permitted by
law, we may collect and/or share all the information
we obtain in servicing your account.” Id at 793. In
reality, the defendant was legally barred from sharing
any information about the plaintiff absent consent. Id.
at 801. Despite the conditional nature of the pertinent
statement, we held that “the only reasonable conclusion
that an unsophisticated consumer . . . could reach is
that the defendants were claiming a legal right to
disclose the n onp ub lic inform ation about the
debtor . . . and were threatening to do so.” Id. Lox also
cites Gonzales, a Ninth Circuit case in which a debt col-
lector sent a collection letter that stated “if we are
reporting the account, the appropriate credit bureaus
will be notified that this account has been settled.” 660
F.3d at 1059. The court held, “As there is no cir-
cumstance under which Arrow could legally report an
obsolete debt to a credit bureau, the implication that
Arrow could make a positive report in the event of pay-
ment is misleading.” Id. at 1063. In reaching this con-
clusion, the Ninth Circuit reasoned that “[c]onditional
language, particularly in the absence of any language
No. 11-2729 13
clarifying or explaining the conditions, does not insulate
a debt collector from liability.” Id.Ruth and Gonzales establish that it is improper under
the FDCPA to imply that certain outcomes might befall
a delinquent debtor when, legally, those outcomes cannot
come to pass. See Ruth, 577 F.3d at 801; Gonzales, 660
F.3d at 1063. We have that situation here, since there is
only one reasonable interpretation of CDA’s attorney
fees language: that a lawsuit is a possible outcome of
nonpayment, and that attorney fees are a possible out-
come of a lawsuit. As explained above, the latter part
of this proposition is false. While it is true that the unso-
phisticated consumer has a “rudimentary knowledge
about the financial world,” Wahl, 556 F.3d at 645, we do
not presume that the same consumer has knowledge
of relevant legal precedent. Cf. Peters v. Gen. Serv.
Bureau, Inc., 277 F.3d 1051, 1056 (8th Cir. 2002) (“[A]n
unsophisticated consumer cannot be expected to know
the legal meanings of terms . . . . ”). The naive, trusting,
unsophisticated consumer is therefore likely to believe
a debt collector when it says that attorney fees are a
potential consequence of nonpayment, and the language
at issue is therefore misleading. Perhaps CDA could
argue—though it did not—that its letter was a form letter,
and that it was not distinguishing between debtors that
have contracts providing for attorney fees and debtors
without such contracts, thus making it true that, in
relation to all debtors, attorney fees could be applied.
Even if this were the case, we agree with the Ninth Cir-
cuit’s advice to debt collectors: “When language in a
debt collection letter can reasonably be interpreted to
14 No. 11-2729
imply that the debt collector will take action it has no
intention or ability to undertake, the debt collector that
fails to clarify that ambiguity does so at its peril.” Gonzales,
660 F.3d at 1063.
CDA provides two counterarguments to this rea-
soning, both of which are unavailing. First, CDA argues
that the letters never suggest that either CDA or Dr. Baylor
would seek attorney fees, and thus it would be unrea-
sonable for an unsophisticated consumer to interpret
the statement as a threat. This fact is unimportant, for
someone in Lox’s position would not care whether the
assessment of attorney fees is initiated by a court or an
opposing party, nor would he know that a court would
only impose such fees upon request of an opposing
party. The language at issue was clearly suggesting that
Lox needed to pay his debt, lest several unattractive
consequences befall him, including the assessment of
attorney fees.
CDA also contends that Lox never believed that he
would need to pay for CDA’s attorney fees, regardless of
what the hypothetical unsophisticated consumer would
have believed. CDA bases this argument on one line
from Lox’s deposition, where Lox stated, “Why would
I have to pay for attorney fees? Why would I pay for
the opposing side’s attorney fees?” As Lox points out,
however, this deposition took place well after Lox had
retained an attorney about the many dunning letters
that Lox received, and that attorney presumably
informed Lox that attorney fees could not be levied
against a losing litigant absent a contract or statute that
No. 11-2729 15
says otherwise. The deposition testimony therefore
does not indicate what Lox believed regarding attorney
fees at the time he received the letters in question.
Further, even if Lox had an inclination that attorney fees
could not be assessed against him, that fact is not
dispositive for three reasons. First, an unsophisticated
consumer without the knowledge of a lawyer could
likely be shaken from a general belief that attorney fees
cannot be assessed against a losing party if a debt collector
implies that attorney fees are, in fact, a legitimate possi-
bility. Second, Lox could have been concerned about
the mere possibility of a fight over attorney fees, even if
he felt confident that he would win that fight. Cf. Captain
v. ARS Nat’l Servs., Inc., 636 F. Supp. 2d 791, 796-97
(N.D. Ill. 2009) (observing that “[p]arties often knowingly
make threats of illegal action,” and that “[t]he state-
ment that a debt collector plans to add a $15 per day
charge to an account (regardless of its legality) would, at
the very least, mislead a competent lawyer about
whether the company actually planned to add the
charge”). Finally, and most importantly, the unsophisti-
cated consumer test is “an objective one,” Williams v. OSI
Educ. Servs., Inc., 505 F.3d 675, 677-78 (7th Cir. 2007),
meaning that it is unimportant whether the individual
that actually received a violative letter was misled or
deceived. Accord Gonzales, 660 F.3d at 1062 (“[A]n unusu-
ally savvy consumer (such as [plaintiff]) would seek
clarification of whether his debt could be reported. We
are not, however, to read the language from the perspec-
tive of a savvy consumer, and consumers are under no
obligation to seek explanation of confusing or misleading
16 No. 11-2729
language in debt collection letters.”); Kistner v. Law Offices
of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir.
2008) (“The least-sophisticated-consumer test is objec-
tive and is designed ‘to ensure that the FDCPA pro-
tects all consumers, the gullible as well as the shrewd.’ ”
(quoting Fed. Home Loan Mortgage Corp. v. Lamar, 503
F.3d 504, 509 (6th Cir. 2007)).
For the reasons discussed, the statement at issue was
not only false, but misleading. Further, the letter is mis-
leading on its face, and extrinsic evidence is unnecessary.
CDA baldly argues that the attorney fees statement is not
plainly misleading, and thus extrinsic evidence is neces-
sary to illustrate confusion. But assuming that attorney
fees could not, under any circumstances, have been
assessed against Lox in an action brought by CDA—which
we must, since they did not argue otherwise—there is no
question of interpretation remaining. To believe the
letter was to believe a statement that, in reality, was
false. The only question remaining would be whether
the hypothetical, unsophisticated consumer is aware of
the “American Rule,” and thus would disbelieve
CDA’s assertion. This is not the type of legal knowledge
we can presume the general public has at its disposal.
We therefore find CDA’s language to be misleading on
its face.
The next question we must answer is whether CDA’s
misleading statement regarding attorney fees is mate-
rial. In Hahn, we established that a false or misleading
statement is only actionable under the FDCPA if it is
material, 557 F.3d at 757, meaning that it has “the ability
No. 11-2729 17
to influence a consumer’s decision,” O’Rourke v. Palisades
Acquisition XVI, LLC, 635 F.3d 938, 942 (7th Cir. 2011)
(emphasis in original). The allegedly false language at
issue in Hahn involved the classification of debt. Hahn,
557 F.3d at 756. The plaintiff argued that the defendant
only labeled $82.64 of her debt as interest, when in
reality much more of the debt was interest. Id. We dis-
agreed, finding that the defendant’s statements were not
actually false, but we also held that even if the state-
ments were false, they were immaterial. Id. at 757. We
reasoned that “the difference between principal and
interest is no more important to the Fair Debt Collec-
tion Practices Act than the color of the paper that [the
defendant] used,” because “[a] dollar due is a dollar due.”
Id. It would be different, we maintained, if the rate of
interest were misstated, since that would lead to a real
injury. Id. Similarly, in Donahue v. Quick Collect Inc., cited
by CDA, the Ninth Circuit held that the mislabeling of
a debt’s principal and interest was immaterial, since
the total amount of the debt was accurately reported
and the plaintiff would not have altered her behavior
if the debt were properly labeled. 592 F.3d 1027, 1034
(9th Cir. 2010).
CDA suggests that the statement at issue here, like the
statements in Donahue and Hahn, was immaterial, since
no additional amount of debt was reported, and thus
Lox would not have taken a different course of action if
the attorney fees statement were absent from the
dunning letters. We disagree. In Hahn and Donahue, the
alleged false statements did not, and could not, have
any effect on the amount of debt owed by the plaintiff,
18 No. 11-2729
regardless of when plaintiff decided to pay off the debt.
Here, Lox would not have had to pay any additional
money if he paid his debt immediately upon receipt of
the dunning letters, but if CDA’s statement regarding
attorney fees were accurate, a decision to contest the
debt could have turned out to be much more costly.
Whether or not this fact would have led Lox to alter his
course of action, it would have undoubtedly been a
factor in his decision-making process, and very well
could have led to a decision to pay a debt that he would
have preferred to contest. The false statement was there-
fore material.
The final question we must confront is whether Lox
waived the argument that the attorney fees language was
violative of the FDCPA. CDA contends that Lox did not
identify this language as constituting an FDCPA viola-
tion until his summary judgment motion, and thus
waived the argument. A review of Lox’s amended com-
plaint reveals that he did not specifically quote the lan-
guage at issue when describing the violations that oc-
curred. He did, however, attach a copy of the allegedly
violative letter to his amended complaint and stated
generally that all of CDA’s dunning letters violated
§ 1692e(10), which prohibits “[t]he use of any false repre-
sentation or deceptive means to collect.” 15 U.S.C.
§ 1692e(10). Further, in response to CDA’s interrogatories,
Lox stated that all the language found in a specified
portion of the letters in question was violative of the
FDCPA, and the attorney fees language resided within
that section. Finally, CDA specifically questioned Lox
about the pertinent language at his deposition and why
No. 11-2729 19
it might be false or misleading, illustrating that CDA
was, in fact, put on notice of this claim. We therefore
hold that Lox’s argument about the false and misleading
nature of CDA’s attorney fees assertion was not waived.
III. Conclusion
For the reasons stated above, we hold that the attorney
fees statements found in CDA’s dunning letters were
materially false and misleading on their face. We there-
fore R EVERSE both the grant of CDA’s summary judg-
ment motion and the denial of Lox’s summary
judgment motion, and R EMAND to the district court for
proceedings consistent therewith.
8-2-12