Glover v. Federal Deposit Insurance , 698 F.3d 139 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 11-3382
______
MARY E. GLOVER, individually and
on behalf of other similarly situated former
and current homeowners in Pennsylvania,
Appellant
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
as receiver for Washington Mutual Bank, F.A.;
MARK J. UDREN; UDREN LAW OFFICES, P.C.;
WELLS FARGO HOME MORTGAGE;
GOLDMAN SACHS MORTGAGE COMPANY
______
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-08-cv-00990)
District Judge: Honorable Donetta W. Ambrose
______
Argued June 26, 2012
Before: FISHER and GREENBERG, Circuit Judges,
and OLIVER,* District Judge.
(Filed: September 5, 2012)
Joseph Decker
David W. Ross
Babst, Calland, Clements & Zomnir
Two Gateway Center, 6th Floor
Pittsburgh, PA 15222
Ralph N. Feldman
Michael P. Malakoff (ARGUED)
Malakoff & Brady
437 Grant Street
200 Frick Building
Pittsburgh, PA 15219
Counsel for Appellant
Jonathan J. Bart (ARGUED)
Wilentz, Goldman & Spitzer
Two Penn Center Plaza, Suite 910
Philadelphia, PA 19102
Counsel for Mark J. Udren and
Udren Law Offices, P.C.
*
The Honorable Solomon Oliver, Jr., Chief Judge of
the United States District Court for the Northern District of
Ohio, sitting by designation.
2
Martin C. Bryce
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Elysa M. Dishman
Richard P. Sobiecki
David A. Super
Baker Botts
1299 Pennsylvania Avenue, N.W.
The Warner
Washington, DC 20004
K. Issac deVyver
Reed Smith
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Counsel for Federal Deposit
Insurance Corp.
Perry A. Napolitano
James L. Rockney
K. Issac deVyver
Reed Smith
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Counsel for Wells Fargo Home
Mortgage
R. Bruce Allensworth
Ryan M. Tosi
3
K&L Gates
One Lincoln Street
State Street Financial Center
Boston, MA 02111
Thomas E. Birsic
Emily B. Thomas
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
Counsel for Goldman Sachs
Mortgage Company
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Mary Glover (―Glover‖) appeals the District Court‘s
dismissal of her claims against defendants Mark Udren and
Udren Law Offices (―Udren‖ or ―Udren Defendants‖) under
the Fair Debt Collection Practices Act (―FDCPA‖) and
Pennsylvania‘s Fair Credit Extension Uniformity Act
(―FCEUA‖). This appeal requires us to flesh out the notice
requirements inherent in Federal Rule of Civil Procedure
15(c), as well as address novel issues of statutory
interpretation pertaining to each statute. We will affirm.
4
I. FACTUAL BACKGROUND1
In August of 2002, Glover entered into a mortgage
loan transaction with Washington Mutual Bank (―WaMu‖).
After suffering injuries from an automobile accident in March
of 2005, Glover fell behind on her mortgage and requested a
―work-out‖ agreement to reduce her monthly payments.
WaMu initially threatened to foreclose on the home, but
subsequently agreed to postpone her payments until the
request had been evaluated. Eventually, on March 14, 2006,
WaMu denied Glover‘s work-out request.
Around this time, Bill Murray, an attorney with Udren
Law Offices, called Glover and informed her that she owed
WaMu eleven missed mortgage payments, in addition to
attorney‘s fees and costs, totaling approximately $3,397.28.
On April 10, 2006, WaMu filed a Foreclosure Complaint
against Glover in the Court of Common Pleas of Allegheny
County, claiming $12,652.36 on the mortgage and threatening
foreclosure if Glover did not pay. The aggregate claim
included $9,703.57 in principal, $633.71 in interest, $280.00
in anticipated court costs, $1,250.00 in anticipated attorney‘s
fees, and various other fees. Mark Udren of Udren Law
Offices was counsel of record on WaMu‘s Foreclosure
Complaint. No further action took place following this initial
filing.
1
These facts are derived from Glover‘s original and
amended pleadings, and assumed to be true in our review of a
district court‘s grant of a Rule 12(b)(6) motion to dismiss.
Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir. 2006).
5
After various communications between Glover and
WaMu‘s assignee, Wells Fargo,2 Glover entered into a Loan
Modification Agreement (―Agreement‖ or ―Modification
Agreement‖) with Wells Fargo on January 4, 2008. The
Agreement stipulated to unpaid principal in the amount of
$12,152.02, increased Glover‘s monthly payment, and
extended the repayment period by six years. Although
Glover began making payments under the Agreement soon
thereafter, the Foreclosure Complaint was not discontinued
until November 25, 2009.
II. PROCEDURAL HISTORY
On June 9, 2008, Glover filed a putative class-action
Complaint in the Court of Common Pleas of Allegheny
County against WaMu, Wells Fargo, and the Udren
Defendants, alleging, inter alia, violations of the FCEUA, 73
Pa. Cons. Stat. Ann. § 2270.4(a), premised in turn on broadly
alleged violations of the FDCPA, 15 U.S.C. § 1692 et seq.
The case was removed to the United States District Court for
the Western District of Pennsylvania on July 14, 2008, and
motions to dismiss were filed by all defendants.
2
WaMu assigned Glover‘s mortgage loan to Wells
Fargo on November 15, 2006.
6
On October 23, 2008, the Federal Deposit Insurance
Corporation (―FDIC‖), in its capacity as receiver for WaMu,3
filed a motion for a ninety-day stay for Glover to submit her
claims against WaMu to the FDIC‘s mandatory claims review
process. The motion was granted on October 24, 2008. On
January 22, 2009, at the conclusion of the stay, the FDIC
again moved to stay the proceedings pending completion of
its review process. The motion was granted over Glover‘s
objections on March 20, 2009, and reaffirmed on June 15,
2009. On September 24, 2009, the FDIC denied Glover‘s
claims against WaMu.
Glover filed a First Amended Complaint on October
14, 2009, adding a count against the Udren Defendants for
FDCPA violations arising out of the Udren Defendants‘
alleged failure to voluntarily discontinue the Foreclosure
Complaint after Glover signed the Modification Agreement.
(App. at 143a.) The Udren Defendants filed a motion to
dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). On June 3, 2010, the Magistrate Judge
issued a Revised Report recommending dismissal of the
newly alleged FDCPA claim against the Udren Defendants
with prejudice.
3
The FDIC was appointed receiver for WaMu on
September 25, 2008, by the Office of Thrift Supervision
following a nine-day run on the bank‘s deposits. See Office
of Thrift Supervision, OTS Fact Sheet on Washington Mutual
Bank 3 (Sep. 25, 2008).
7
On June 9, 2010, Glover filed a Second Amended
Complaint, adding Goldman Sachs as a defendant and
restyling, among other claims, the FDCPA claim against the
Udren Defendants. (App. at 290a-294a.) The Magistrate
Judge vacated the Revised Report to allow filing of the
Second Amended Complaint, but subsequently reinstated the
Report. On August 18, 2010, adopting the Revised Report,
the District Court entered an order dismissing the First
Amended Complaint‘s FDCPA and FCEUA counts against
the Udren Defendants without prejudice, thereby rendering
the Second Amended Complaint the operative pleading.4
On October 22, 2010, the Udren Defendants filed a
motion to dismiss the Second Amended Complaint. The
District Court granted the motion as to the FDCPA claim,
4
This was an adroit compromise by the District Court
to allow the case to proceed in an orderly fashion, and bears
some significance on appeal. Notably, the District Court‘s
dismissal of the First Amended Complaint, though on the
merits, was not a final, appealable order because it was
without prejudice. See Bethel v. McAllister Bros., Inc., 81
F.3d 376, 381 (3d Cir. 1996) (observing that ―an order
dismissing a complaint without prejudice is ordinarily not
appealable‖). Moreover, ―an amended complaint, once filed,
normally supersedes the antecedent complaint.‖ Connectu
LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008). Thus,
although we are free to affirm on any ground supported by the
record, Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001),
the District Court‘s August 18, 2010 order dismissing the
First Amended Complaint is not before us on appeal.
8
finding that the Amended Complaint was not filed within the
FDCPA‘s one-year statute of limitations, 15 U.S.C.
§ 1692k(d), and did not relate back to the timely filed original
Complaint under Federal Rule of Civil Procedure 15(c)(1)(B).
The District Court also dismissed Glover‘s FCEUA claims
against the Udren Defendants, finding that the Udren
Defendants were not ―debt collectors‖ under the FCEUA
because Glover‘s mortgage was a purchase money mortgage,
and hence excluded from the FCEUA‘s definition of ―debt.‖
See 73 Pa. Cons. Stat. Ann. § 2270.3. Glover timely
appealed.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court exercised jurisdiction over Glover‘s
FDCPA claims under 15 U.S.C. § 1692k(d) and, the matter in
controversy exceeding $5 million, over the putative class
action under 28 U.S.C. § 1332(d)(2). The District Court
exercised supplemental jurisdiction over Glover‘s FCEUA
9
claims under 28 U.S.C. § 1367. We have appellate
jurisdiction under 28 U.S.C. § 1291.5We exercise plenary review of a district court‘s
interpretation and application of Rule 15(c), Lundy v. Adamar
of N.J., Inc., 34 F.3d 1173, 1177 (3d Cir. 1994), and the
dismissal of a claim based on the statute of limitations. Lake
v. Arnold, 232 F.3d 360, 365-66 (3d Cir. 2000). We exercise
plenary review over a district court‘s dismissal for failure to
state a claim under Rule 12(b)(6), applying the same standard
as the district court. Brown v. Card Serv. Ctr., 464 F.3d 450,
452 (3d Cir. 2006). We must accept all well-pled allegations
in the complaint as true and ask whether, under any
reasonable interpretation, the plaintiff states a claim that
would entitle her to relief. Id. Our review of a district court‘s
interpretation of a state statute is plenary. Moody’s v. Sec.
Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir. 1992).
5
Because this is an appeal from an order dismissing
fewer than all of Glover‘s claims against two of the various
defendants, the parties to this appeal were required to obtain
certification under Federal Rule of Civil Procedure 54(b) that
the District Court‘s order was final and appealable. To satisfy
Rule 54(b), the District Court was required to make an
express determination that there was ―no just reason for
delay.‖ Elliot v. Archdiocese of N.Y., 682 F.3d 213, 229 (3d
Cir. 2012). Although the initial Rule 54(b) certification was
perhaps lacking in this regard, the parties obtained a
supplemental order on July 25, 2012, that satisfies this
jurisdictional prerequisite.
10
IV. ANALYSIS
Glover appeals the District Court‘s dismissal of her
FDCPA and FCEUA claims against the Udren Defendants.
We address each claim in turn.
A. FAIR DEBT COLLECTION PRACTICES ACT
The District Court treated the FDCPA claim against
the Udren Defendants as accruing on January 4, 2008, the
date on which the Modification Agreement was signed.
Although the FDCPA imposes a one-year statute of
limitations from the date of the alleged violation, Glover filed
her First Amended Complaint, in which she first presented
this claim, on October 14, 2009. Glover argued that the claim
was timely because it related back to her original Complaint
under Federal Rule of Civil Procedure 15(c)(1)(B), or, in the
alternative, because the statute of limitations was tolled
during the FDIC‘s mandatory review of her claims against
WaMu. The District Court found that Glover‘s First
Amended Complaint bore ―absolutely no connection‖ to her
original claims against the Udren Defendants, and therefore
rejected Glover‘s relation back argument. And after
―generously‖ accounting for the stays issued in response to
the FDIC claims review process, the District Court calculated
that the statute of limitations expired on October 9, 2009, five
days before Glover filed her First Amended Complaint.
On appeal, Glover submits that the District Court erred
in finding that her amended FDCPA claim against the Udren
Defendants did not relate back to her original Complaint. She
also argues that the District Court erred in calculating the
11
statute of limitations by using the incorrect accrual date for
her claim and by failing to toll the statute of limitations for
the proper length of time.
1. Relation Back
Glover initially contends that the District Court erred
in finding that her amended FDCPA claim against the Udren
Defendants did not relate back to her original Complaint.
Despite the presence of overlapping facts between the two
pleadings, we reach the same result because Glover‘s original
pleading failed to give fair notice to the Udren Defendants of
her subsequently amended claim.
Under Federal Rule of Civil Procedure 15(c)(1)(B), an
amendment to a pleading relates back to the date of the
original pleading where ―the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the
original pleading.‖ Relation back is structured ―to balance
the interests of the defendant protected by the statute of
limitations with the preference expressed in the Federal Rules
of Civil Procedure in general, and Rule 15 in particular, for
resolving disputes on their merits.‖ Krupski v. Costa
Crociere S.p.A., 130 S. Ct. 2485, 2494 (2010). Where an
amendment relates back, Rule 15(c) allows a plaintiff to
sidestep an otherwise-applicable statute of limitations,
thereby permitting resolution of a claim on the merits, as
opposed to a technicality. See id. At the same time, Rule
15(c) endeavors to preserve the important policies served by
the statute of limitations – most notably, protection against
the prejudice of having to defend against a stale claim, as well
12
as society‘s general interest in security and stability – by
requiring ―that the already commenced action sufficiently
embraces the amended claims.‖ Nelson v. Cnty. of Allegheny,
60 F.3d 1010, 1014-15 (3d Cir. 1995).
As we have explained, application of Rule 15(c)(1)(B)
normally entails a ―search for a common core of operative
facts in the two pleadings.‖ Bensel v. Allied Pilots Ass’n, 387
F.3d 298, 310 (3d Cir. 2004). Importantly, however, Rule
15(c) is not merely an ―identity of transaction test,‖ such as
the rules governing joinder of claims or parties. 6A Charles
Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1497 (2010). Though not expressly
stated, it is well-established that the touchstone for relation
back is fair notice, because Rule 15(c) is premised on the
theory that ―a party who has been notified of litigation
concerning a particular occurrence has been given all the
notice that statutes of limitations were intended to provide.‖
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 n.3
(1984); Bensel, 387 F.3d at 310. Thus, only where the
opposing party is given ―fair notice of the general fact
situation and the legal theory upon which the amending party
proceeds‖ will relation back be allowed. Bensel, 387 F.3d at
310. Conversely, amendments ―that significantly alter the
nature of a proceeding by injecting new and unanticipated
claims are treated far more cautiously.‖ United States v.
Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002).
In Bensel, we approved relation back of amendments
that ―restate the original claim with greater particularity or
amplify the factual circumstances surrounding the pertinent
conduct.‖ 387 F.3d at 310. In that case, the plaintiff‘s broad
13
allegations of breach of a duty of fair representation in the
original complaint easily encompassed the ―more
particularized claims‖ alleged in the amended pleading, and
the defendant was therefore ―unquestionably on notice that it
would be held liable for every possible breach of its fair
representation duty occasioned by the outlined facts.‖ Id.Thus, the facts in Bensel fit squarely within the contours of
Rule 15(c)(1)(B), and gave us no opportunity to speak to the
limits imposed by the notice requirement.
We do so now: where the original pleading does not
give a defendant ―fair notice of what the plaintiff‘s [amended]
claim is and the grounds upon which it rests,‖ the purpose of
the statute of limitations has not been satisfied and it is ―not
an original pleading that [can] be rehabilitated by invoking
Rule 15(c).‖ Baldwin, 466 U.S. at 149 n.3 (internal marks
and citation omitted); see 6A Wright et al., Federal Practice &
Procedure § 1497 (―Although not expressly mentioned in the
rule, . . . courts also inquire into whether the opposing party
has been put on notice regarding the claim or defense raised
by the amended pleading. Only if the pleading has performed
that function . . . will the amendment be allowed to relate
back . . . .‖). Put another way, the underlying question for a
Rule 15(c) analysis is ―whether the original complaint
adequately notified the defendants of the basis for liability the
plaintiffs would later advance in the amended complaint.‖
Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866 (D.C. Cir.
2008) (emphasis added); see Wilson v. Fairchild Republic
Co., 143 F.3d 733, 738 (2d Cir. 1998) (―The pertinent
inquiry, in this respect, is whether the original complaint gave
the defendant fair notice of the newly alleged claims.‖ (citing
14
Baldwin, 466 U.S. at 149. n.3)), overruled on other grounds
by Slayton v. Am. Express Co., 460 F.3d 215, 227-28 (2d Cir.
2006) (adopting de novo standard of review for Rule 15(c)).
Here, we cannot agree that Glover‘s original
Complaint adequately notified the Udren Defendants of the
basis for liability asserted against them in the amended
FDCPA claim because it did not arise from the factual
occurrences which, fairly construed, implicated the Udren
Defendants in her first pleading. Glover‘s amended FDCPA
claim specifically averred that the Udren Defendants violated
the FDCPA by ―failing to withdraw the Foreclosure
Complaint against Ms. Glover‖ after Glover signed the
Modification Agreement, because the Foreclosure Complaint
constituted a ―continuing representation‖ that Glover had
defaulted on and had not yet paid her mortgage debt. (App. at
257a-58a, 290a-93a (Amend. Compl. ¶¶ 57-58, 179-90).)
Glover‘s original Complaint, by comparison, alleged no such
conduct by the Udren Defendants. In fact, amongst the
plethora of allegations made in Glover‘s 40-page and 139-
paragraph Complaint, Glover accused the Udren Defendants
only of making a debt-collection phone call and of filing a
Foreclosure Complaint demanding payment of purportedly
unlawful attorney‘s fees. Both of these ―communications‖ or
―representations‖ would constitute violations of the FDCPA
that are factually and legally distinct from each other and
from the amended claim, see 15 U.S.C. § 1692e (prohibiting
―any false, deceptive or misleading representation or means in
connection with the collection of any debt‖), and could
neither offer ―fair notice of the general fact situation‖ nor of
the ―legal theory‖ upon which Glover ‗s amended FDCPA
15
claim relied. Bensel, 387 F.3d at 310. In other words,
Glover‘s amended FDCPA claim differed in ―time and type‖
from the claims earlier alleged against the Udren Defendants.
See Mayle v. Felix, 545 U.S. 644, 657-59 (2005); Oja v. U.S.
Army Corps of Eng’rs, 440 F.3d 1122, 1134 (9th Cir. 2006)
(adding allegation of publication of private information in
violation of Privacy Act did not relate back to earlier
complaint alleging publication of same information, but at a
different time and from a different URL address).
We acknowledge, as we must, that the District Court
arguably mischaracterized the relationship between Glover‘s
original and amended FDCPA claims as bearing ―absolutely
no connection.‖ Buried amidst Glover‘s excruciatingly and
often excessively detailed pleading (so much so that it
apparently evaded the eyes of the District Court), and
presented almost as an afterthought, Paragraph 53 averred
that:
―Although the monetary claims in Washington
Mutual‘s Foreclosure Complaint have now long
been resolved as a result of Wells Fargo‘s and
Ms. Glover‘s January 4, 2008 loan
modification, neither Washington Mutual nor
Wells Fargo have withdrawn that Complaint.
Thus, the now existing public record shows that
Washington Mutual is pursuing a claim for well
over $12,652.36 that, according to Wells
Fargo‘s January []4, 2008 agreement is neither
due nor owing. This again is a form of ‗double
billing.‘‖
16
(App. at 57a-58a (Compl. ¶ 53)) (emphasis added). As
Glover observes, Paragraph 53 of the original Complaint
referenced the Modification Agreement and the Foreclosure
Complaint, both of which pertain to her amended FDCPA
claim against the Udren Defendants. Yet factual overlap
alone is not enough, because the original complaint must have
given fair notice of the amended claim to qualify for relation
back under Rule 15(c). See, e.g., Mayle, 545 U.S. at 658-59(listing cases in which amended claim did not relate back for
lack of fair notice despite presence of overlapping facts);
Meijer, 533 F.3d at 866 (―Although the original and amended
claims have some elements and facts in common, the whole
thrust of the amendments is to fault [defendants], and to fault
them for conduct different from that identified in the original
complaint.‖).
Fair notice was lacking here. Just as Rule 8(a) requires
that a complaint ―be presented with clarity sufficient to avoid
requiring a district court or opposing party to forever sift
through its pages in search‖ of the nature of the plaintiff‘s
claim, Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir. 1990),
Rule 15(c) cannot save a complaint that obscures the factual
predicate and legal theory of the amended claim. See Bensel,
387 F.3d at 310; Nelson, 60 F.3d at 1014-15 (relation back
does not permit a plaintiff to perform an ―end-run‖ around the
statute of limitations). Pleadings are not like magic tricks,
where a plaintiff can hide a claim with one hand, only to pull
it from her hat with the other. Here, the facts alleged in
Paragraph 53 appeared entirely peripheral to the Complaint‘s
central allegations concerning WaMu and Wells Fargo‘s
direct communications with Glover and, even under the most
17
generous reading, gave no suggestion that the Udren
Defendants were culpable in any way for the conduct
attributed to WaMu or Wells Fargo. Cf. Fed. R. Civ. P.
15(c)(1)(C) (requiring satisfaction of Rule 15(c)(1)(B) and
notice to the new defendant for relation back where ―the
amendment changes the party . . . against whom a claim is
asserted‖); Nelson, 60 F.3d at 1014-15 (discussing importance
of notice requirement in Rule 15(c)(1)(C)).
Nor did Glover‘s sweeping allegation in Count IV of
the original Complaint – that ―Debt collectors that make false
representations about the ‗character, amount or legal status of
any debt‘ violate the FDCPA, § 1692e(2)(A),‖ (App. at 72a
(Compl. ¶ 110)) – provide clarity. The facts alleged in Count
IV described only Wells Fargo‘s purportedly deficient notices
and letters to Glover, and Glover‘s wholesale incorporation of
the previous 106 paragraphs illuminated neither the acts that
constituted ―false representations‖ nor the defendants liable
for those acts. The absence of any limit in the application of
Rule 15(c) to such expansive pleadings ―could cause
defendants‘ liability to increase geometrically and their
defensive strategy to become far more complex long after the
statute of limitations had run.‖ Nelson, 60 F.3d at 1015(quoting Leachman v. Beech Aircraft Corp., 694 F.2d 1301,
1309 (D.C. Cir. 1982)).
Perhaps, by making several inferential leaps, the Udren
Defendants might have guessed that, hidden between the
factual allegations and the unmoored recitation of the
FDCPA, a claim might be asserted against them for the
conduct attributed to Wells Fargo and WaMu. But the
Federal Rules do not place the onus on the defendant to piece
18
together the disparate fragments of a disjointed complaint to
distill the essence of a claim. Courts frown on ―pleading by
means of obfuscation,‖ Jennings, 910 F.2d at 1436, because a
pleading that is ―prolix and/or confusing makes it difficult for
the defendant to file a responsive pleading and makes it
difficult for the trial court to conduct orderly litigation.‖
Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771,
776 (7th Cir. 1994). Glover could have given some clue in
her original pleading that the Udren Defendants were
complicit in failing to discontinue the Foreclosure Complaint,
and therefore liable for that false representation. She did not.
―Although the relation-back rule ameliorates the effect of
statutes of limitations, it does not save the claims of
complainants who have sat on their rights.‖ Nelson, 60 F.3d
at 1015 (internal citation omitted). The fair notice required
by Rule 15(c) was lacking, and accordingly, we agree with
the District Court that Glover‘s amended FDCPA claim
against the Udren Defendants does not qualify for relation
back.
2. Statute of Limitations
Having rejected Glover‘s relation back argument, we
turn to her arguments concerning the District Court‘s
calculation of timeliness. A claim under the FDCPA ―may be
brought . . . within one year from the date on which the
violation occurs.‖ 15 U.S.C. § 1962k(d). Glover first
contends that the District Court erred in finding that her claim
accrued on the date the Modification Agreement was signed,
as opposed to the date that the Udren Defendants learned of
the existence of the Modification Agreement. She then
argues that the District Court improperly calculated the
19
running of the statute of limitations during the period that her
claims against WaMu were being reviewed by the FDIC,
pursuant to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (―FIRREA‖), Pub. L. No. 101-73,
103 Stat. 183 (incorporated in various United States Code
provisions). As did the District Court, we reject Glover‘s
arguments.
a. Accrual of the Claim
We are not persuaded that the Udren Defendants‘
alleged violation of the FDCPA occurred only after learning
of the Modification Agreement. The FDCPA is generally
characterized as a ―strict liability‖ statute because ―it imposes
liability without proof of an intentional violation.‖ Allen ex
rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 & n.7
(3d Cir. 2011); accord Ellis v. Solomon & Solomon, P.C., 591
F.3d 130, 135 (2d Cir. 2010) (―To recover damages under the
FDCPA, a consumer does not need to show intentional
conduct on the part of the debt collector.‖). Section
1692e(2)(A), which makes it unlawful for a debt collector, ―in
connection with the collection of any debt,‖ to make a ―false
representation‖ about the ―character, amount or legal status of
any debt,‖ is no different. The language of this provision
creates a straightforward, objective standard. Nothing
suggests that an allowance is to be made for a defendant‘s
lack of knowledge or intent. And notably, recognizing the
accrual of a claim only upon the intentional violation of the
FDPCA would undermine the ―deterrent effect of strict
liability,‖ Allen, 629 F.3d at 368, despite our obligation to
construe the statute broadly to effectuate its remedial purpose.
See Brown, 464 F.3d at 453.
20
In this case, Glover characterized her claim as a ―false
representation‖ that she had not paid her debt, when, in fact,
the Modification Agreement and her subsequent payments
had taken her debt out of default. The representation that
Glover had not paid her debt was false, regardless of whether
the Udren Defendants knew it to be so. And although Glover
suggests that her claim was for a ―continuing representation,‖
as opposed to a one-time communication, at no point does the
FDCPA make such a distinction.
Glover relies on the language of the FDCPA‘s ―bona
fide error‖ defense in asserting that the violation must be
intentional, but her argument is misplaced. Under the bona
fide error defense, ―[a] debt collector may not be held liable
. . . if the debt collector shows . . . that the violation was not
intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably
adapted to avoid any such error.‖ 15 U.S.C. § 1692k(c); see
Beck v. Maximus, Inc., 457 F.3d 291, 297-98 (3d Cir. 2006)
(listing elements of bona fide error defense). The text of
§ 1692k(c) cuts against the very interpretation that Glover
offers: by immunizing a debt collector for an unintentional
violation where reasonable error-avoidance procedures have
been employed, § 1692k(c) indicates that a violation of the
FDCPA does not have to be intentional in the first place. An
interpretation of the FDCPA that required an intentional
violation would, of course, render this language pure
surplusage, a path which we decline to take. See, e.g., TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001).
Although, in certain situations, some courts have
determined that the FDCPA‘s statute of limitations begins to
21
run on the date of ―the debt collector‘s ‗last opportunity to
comply with the Act,‘‖ Naas v. Stolman, 130 F.3d 892, 893
(9th Cir. 1997) (brackets omitted) (quoting Mattson v. U.S.
West Commc’ns, Inc., 967 F.2d 259, 261 (8th Cir. 1992)), the
premise for such decisions is lacking here. An accrual date
based on the moment the violation becomes intentional
(which Glover defines by reference to the bona fide error
defense) fails to provide ―a date which may be ‗fixed by
objective and visible standards,‘ one which is easy to
determine, ascertainable by both parties, and may be easily
applied.‖ Mattson, 967 F.2d at 261. The question of when a
defendant learns that his conduct violates the FDCPA, in spite
of ―procedures reasonably adapted to avoid such error,‖ 15
U.S.C. § 1692k(c), requires qualitative assessments of
whether a procedure is ―reasonably adapted.‖ And if a
defendant lacks such a defense, a court would have to make a
subjective estimate of when the defendant should have
learned of the violation. Accordingly, we agree with the
District Court that Glover‘s claim arose on the date that the
Modification Agreement was signed and the representation
about her debt became objectively false: January 4, 2008.6
6
Thus, it is of no moment that the date that the Udren
Defendants purportedly learned of the Modification
Agreement, March 3, 2008, was absent from the record when
the District Court rendered its decision.
22
b. Tolling Under FIRREA‘s Mandatory
Exhaustion Requirement
The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Pub. L. No. 101-73, 103 Stat. 183(incorporated in various United States Code provisions),
imposes exhaustion requirements on claims asserted against a
failed financial institution for which the FDIC is appointed
receiver. See FDIC v. Shain, Schaffer & Rafanello, 944 F.2d
129, 131-32 (3d Cir. 1991); Marquis v. FDIC, 965 F.2d 1148,
1151-55 (1st Cir. 1992). Under FIRREA, the FDIC, in its
capacity as receiver, ―may resolve claims against the failed
institution.‖ Shain, 944 F.2d at 132 (citing 12 U.S.C.
§ 1821(d)(4) & (5)). The FDIC‘s review of a claim presents a
jurisdictional bar to federal courts, because ―Congress
expressly withdrew jurisdiction from all courts over any
claim to a failed bank‘s assets that are made outside‖ the
FDIC claims process. Id. (citing 12 U.S.C. § 1821(d)(6),
(d)(13)(D)). Consequently, ―in order to obtain jurisdiction to
bring a claim in federal court, one must exhaust
administrative remedies by submitting the claim to the
receiver in accordance with the administrative scheme for
adjudicating claims detailed in § 1821(d).‖ Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa. v. City Sav., F.S.B., 28 F.3d 376,
383 (3d Cir. 1994).
Based on this exhaustion requirement, Glover argues
that the District Court lacked jurisdiction over the litigation
for the entire period during which the FDIC, as receiver for
WaMu, had jurisdiction to review her claims against the bank.
In calculating the timeliness of Glover‘s claim, however, the
District Court simply added up the days during which the
23
Court was deprived of jurisdiction due to various non-
contiguous stays and then added those days to the FDCPA‘s
one-year limitations period, effectively extending the
limitations period by 200 days.7 Glover therefore contends
that the District Court should also have included a period
between the stays (from January 24, 2009 until March 20,
2009) during which the FDIC‘s review process was
purportedly in motion.
Although Glover does not frame it as such, we
understand her jurisdictional argument as an attempt to justify
the application of equitable tolling. The doctrine of equitable
tolling ―can rescue a claim otherwise barred as untimely by a
statute of limitations [only] when a plaintiff has been
prevented from filing in a timely manner due to sufficiently
inequitable circumstances.‖ Santos ex rel. Beato v. United
States, 559 F.3d 189, 197 (3d Cir. 2009) (citation and internal
quotation marks omitted). Equitable tolling is extended only
sparingly, in circumstances ―(1) where the defendant has
actively misled the plaintiff respecting the plaintiff's cause of
action; (2) where the plaintiff in some extraordinary way has
been prevented from asserting his or her rights; or (3) where
the plaintiff has timely asserted his or her rights mistakenly in
the wrong forum.‖ Id. Although tolling the statute of
7
FIRREA permits a receiver to request an initial 90-
day stay under 12 U.S.C. § 1821(d)(12)(A), and requires that
a determination to allow or disallow a claim be made within
the 180-day period after the filing of the claim with the
receiver under 12 U.S.C. § 1821(d)(5)(A)(i). See Marquis,
965 F.2d at 1151-55.
24
limitations for the requested period would be more than
adequate to render her FDCPA claim timely, Glover is not
entitled to equitable tolling by virtue of FIRREA‘s exhaustion
requirement.
First, we need not venture into FIRREA‘s intricate
statutory web to determine that Glover‘s claim against the
Udren Defendants was not subject to a jurisdictional bar. To
the extent that it pertains to Glover‘s suit, FIRREA‘s
jurisdictional bar governs solely ―(1) claims for payment from
the assets of [the failed bank], (2) actions for payment from
those assets and (3) actions for a determination of rights with
respect to those assets.‖ Rosa v. Resolution Trust Corp., 938
F.2d 383, 393 (3d Cir. 1991); 12 U.S.C. § 1821(d)(13)(D)(i).
Glover‘s claim against the Udren Defendants was not a claim
against a failed bank, to obtain payment from bank assets, or
for a determination of rights with respect to those assets. She
was not obligated to submit the claim to the FDIC, nor
obligated to sit on her hands while the FDIC processed her
claims against WaMu. We reject this argument accordingly.
Second, even if we were to apply FIRREA‘s
jurisdictional bar to these claims, we agree with the First
Circuit‘s well-reasoned opinion in Marquis that when a bank
fails after a claim is filed in federal court, the jurisdictional
bar does not apply. The text of 12 U.S.C. § 1821(d), Marquis
held, ―show[s] Congress‘[s] discernible intent to preserve
jurisdiction over civil actions filed against failed institutions
prior to the FDIC‘s appointment as receiver.‖ 965 F.2d at
1153; see, e.g., 12 U.S.C. § 1821(d)(5)(F)(ii) (―the filing of a
claim with the receiver shall not prejudice any right of the
claimant to continue any action which was filed before the
25
appointment of the receiver‖ (emphasis added)). In those
circumstances, a district court may stay the proceedings upon
request ―so as to permit exhaustion of the mandatory
administrative claims review process,‖ but retains jurisdiction
over the litigation, to resume if needed at the conclusion of
the stay. Marquis, 965 F.2d at 1155; see 12 U.S.C.
§ 1821(d)(12)(A) (―After the appointment of [a receiver,] the
. . . receiver may request a stay . . . .‖). Glover filed her
original Complaint in state court on June 9, 2008, and it was
removed to the District Court on July 14, 2008. The FDIC
was appointed receiver for WaMu on September 25, 2008.
Because the FDIC‘s receivership began after the case was
removed to the District Court, the essence of the jurisdictional
argument rings hollow.
Although there may have been some time periods that
Glover was prevented from filing her FDCPA claims against
the Udren Defendants because proceedings were stayed, there
is no reason why the statute of limitations should be tolled by
more than 200 days. Thus, we find no error in the District
Court‘s determination that Glover‘s FDCPA claim was not
timely.
B. FAIR CREDIT EXTENSION UNIFORMITY ACT
The FCEUA, 73 Pa. Cons. Stat. Ann. § 2270.1 et seq.,
prohibits ―unfair methods of competition and unfair or
deceptive acts or practices with regard to the collection of
debts,‖ id. § 2270.2, including any violation of the FDCPA by
a ―debt collector.‖ Id. § 2270.4(a). Though premised on the
same alleged FDCPA violation, the FCEUA imposes a two-
year statute of limitations under which Glover‘s claim would
26
have been timely. Id. § 2270.5(b). Nevertheless, the District
Court found that the Udren Defendants were not ―debt
collectors,‖ and consequently that Glover failed to state a
FCEUA claim against the Udren Defendants.
We will affirm the District Court, though on different
grounds. There can be no dispute that, based on the facts
alleged in the pleadings, the Udren Defendants qualify as
―debt collectors‖ under the FDCPA.8 Whether a defendant is
8
A ―debt collector‖ under the FDCPA includes ―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 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). Before the filing of the Foreclosure Complaint,
an associate at Udren Law Offices called Glover requesting
immediate payment on her mortgage debt. Furthermore,
attorneys that ―regularly, through litigation, tr[y] to collect
consumer debts‖ are considered debt collectors under that
Act. Heintz v. Jenkins, 514 U.S. 291, 292 (1995); FTC v.
Check Investors, Inc., 502 F.3d 159, 172 n.11 (3d Cir. 2007).
In filing the Foreclosure Complaint against Glover, the Udren
Defendants self-identified as a ―debt collector‖ and confirmed
that the Foreclosure Complaint was ―an attempt to collect a
debt,‖ and Glover‘s pleadings allege that the Udren
Defendants engaged in such litigation as a common debt
collection practice. We therefore have no hesitation in
concluding that the Udren Defendants meet the FDCPA
definition of ―debt collector.‖
27
a ―debt collector‖ under the FCEUA, however, is somewhat
more complicated, because rather than adopting the FDCPA‘s
definition of ―debt collector,‖ the FCEUA provides its own.
Under the FCEUA, a ―debt collector‖ is ―[a] person not a
creditor . . . engaging or aiding directly or indirectly in
collecting a debt . . . .‖ Id. § 2270.3. The FCEUA includes
within this definition ―[a]n attorney, whenever such attorney
attempts to collect a debt, as herein defined, except in
connection with the filing or service of pleadings or discovery
or the prosecution of a lawsuit to reduce a debt to judgment.‖
Id. § 2270.3(3)(iii). This is narrower than the FDCPA
definition of ―debt collector.‖ See FTC v. Check Investors,
Inc., 502 F.3d 159, 172 n.11 (3d Cir. 2007) (―Attorneys who
regularly engage in debt collection or debt collection
litigation are covered by the FDCPA, and their litigation
activities must comply with the requirements of the
FDCPA.‖). Thus, even where a defendant ostensibly falls
within the FDCPA‘s definition of ―debt collector,‖ such
defendant may not be liable under the FCEUA‘s narrower
scope.9
9
Glover suggests that we should not read the
FCEUA‘s definition of ―debt collector‖ to exclude from
liability conduct prohibited by the FDCPA because doing so
would contravene the purpose of incorporating the federal
statute. However, our obligation is not to redraft statutes as
we might think they should be crafted, but to give meaning to
each provision as it is presently written. 1 Pa. Cons. Stat.
Ann. § 1921(a). In doing so, we adhere to the plain meaning
of the text. Id. § 1921(b). Rather than stating that the
28
The Udren Defendants‘ activities were clearly ―in
connection with . . . the prosecution of a lawsuit to reduce a
debt to judgment,‖ and so the Udren Defendants are not ―debt
collectors‖ under the FCEUA. See Silva v. MidAtlantic
Mgmt. Corp., 277 F. Supp. 2d 460, 466 (E.D. Pa. 2003). We
therefore agree with the District Court that Glover‘s FCEUA
claims against the Udren Defendants must fail.
V. CONCLUSION
For the foregoing reasons, we will affirm the District
Court‘s dismissal of Glover‘s FDCPA and FCEUA claims
against the Udren Defendants.
FCEUA incorporates ―any violation of the FDCPA,‖ the
FCEUA states that such a violation must be committed by a
―debt collector,‖ for which it provides a definition that
departs from that contained in the FDCPA. We will respect
this legislative choice.
29