Nedzad Miljkovic v. Shafritz and Dinkin, P.A.

Case: 14-13715 Date Filed: 06/30/2015 Page: 1 of 36
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13715
________________________
D.C. Docket No. 8:14-cv-00635-VMC-TBM
NEDZAD MILJKOVIC,
Plaintiff - Appellant,
versus
SHAFRITZ AND DINKIN, P.A.,
MITCHELL A. DINKIN.
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 30, 2015)
Before WILSON and ANDERSON, Circuit Judges, and VOORHEES, ∗ District
Judge.
∗
Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
Case: 14-13715 Date Filed: 06/30/2015 Page: 2 of 36
WILSON, Circuit Judge:
Plaintiff-appellant Nedzad Miljkovic (Appellant) appeals from the district
court’s dismissal with prejudice of his complaint against defendants-appellees
Shafritz and Dinkin, P.A. and Mitchell A. Dinkin (collectively, Appellees), debt-
collection attorneys for non-party Publix Employees Federal Credit Union
(Publix), for failure to state a claim under the Fair Debt Collection Practices Act
(FDCPA), see 15 U.S.C. §§ 1692–1692p. On appeal, we are tasked with
determining the extent to which the conduct-regulating provisions of the FDCPA
apply to actions taken by debt-collector attorneys in collecting on a debt.
This matter has its roots in state court. After Appellant failed to repay an
automobile loan, resulting in a final debt judgment in favor of Publix, Appellees
sought and obtained a continuing writ of garnishment against Appellant’s wages to
recover the unpaid balance. In response, Appellant filed a claim of exemption
from the garnishment; Appellees, in turn, filed a sworn reply disputing Appellant’s
right to an exemption. Shortly thereafter, but prior to a hearing on Appellant’s
exemption claim, the writ was dissolved on Appellees’ motion.
Appellant then commenced this action in federal court, alleging that
Appellees’ sworn reply was an abusive, misleading, and unfair means of collecting
on Appellant’s debt and, as such, violated multiple provisions of the FDCPA. See
id. §§ 1692d–1692f. Appellees moved to dismiss for failure to state a claim,
2
Case: 14-13715 Date Filed: 06/30/2015 Page: 3 of 36
asserting the FDCPA was not intended to regulate representations made by debt-
collecting attorneys in procedural court filings. Appellees further argued that,
because the sworn reply was directed to the state court and to Appellant’s attorney,
as opposed to Appellant, it was not an actionable communication under the
FDCPA. The district court agreed and dismissed Appellant’s complaint on the
grounds that the FDCPA did not apply to Appellees’ conduct before the state court
and, even if it did, Appellant had failed to state a claim under the Act.
This appeal followed, presenting us with an issue of first impression in the
Eleventh Circuit: whether representations made by an attorney in court filings
during the course of debt-collection litigation are actionable under the FDCPA.
Contrary to the district court’s analysis, we find that the plain language of the
FDCPA, other persuasive decisions interpreting that language, and the purpose
underlying the Act mandate a finding that the FDCPA applies to attorneys, like
Appellees, who regularly engage in debt collection activity, even when that activity
includes litigation and even when the attorneys’ conduct is directed at someone
other than the consumer. 1 Absent a statutory exception, then, documents filed in
court in the course of judicial proceedings to collect on a debt, like Appellees’
1
The FDCPA defines a “consumer” as “any natural person obligated or allegedly
obligated to pay any debt.” See 15 U.S.C. § 1692a(3). As such, courts often use “consumer” and
“debtor” interchangeably. Except, however, in the context of 15 U.S.C. § 1692c, which provides
a broader, section-specific definition of “consumer.” See id. § 1692c(d) (“For the purpose of this
section, the term ‘consumer’ includes the consumer’s spouse, parent (if the consumer is a minor),
guardian, executor, or administrator.”). Section 1692c is not at issue in this appeal.
3
Case: 14-13715 Date Filed: 06/30/2015 Page: 4 of 36
sworn reply, are subject to the FDCPA. However, because we agree with the
district court’s finding that Appellant failed to state a claim under the FDCPA, we
affirm the dismissal of his complaint.
I.
In December 2013, Appellees, on behalf of Publix, filed a motion in Florida
state court seeking a continuing writ of garnishment against Appellant’s wages in
order to collect on a previously-obtained final debt judgment. The writ was
approved on or about January 2, 2014. After the writ was served on Appellant’s
then-employer, twenty-five percent of Appellant’s wages were withheld according
to the terms of the writ.
Appellant filed a claim of exemption from garnishment, asserting that,
because his wages were the primary source of income for his household, he
qualified as a “head of family” under Florida law and his wages were thus exempt
from garnishment. 2 In a sworn affidavit, Appellant explained that his household
included his wife and him; that his wife was disabled, unable to work, and received
Social Security benefits; and that his wages, which typically did not exceed $750
2
See Fla. Stat. § 222.11(1)(c) (defining the “head of family” as “any natural person who
is providing more than one-half of the support for a child or other dependent”).
4
Case: 14-13715 Date Filed: 06/30/2015 Page: 5 of 36
per week, provided more than one-half of his wife’s support.3 The affidavit did not
state the amount of Appellant’s wife’s Social Security benefits.
Appellees filed a sworn reply in opposition to Appellant’s claim of
exemption, which stated, in pertinent part:
3. On behalf of [Publix], the undersigned disputes that [Appellant]
is a head of household/family within the meaning of Florida Statutes.
4. The facts supporting [Appellant’s] Claim of Exemption are in
dispute and, therefore, this garnishment action should be set for trial
to determine these factual issues and [Publix’s] right to garnishment
of the wages/salary at issue.
Appellees then issued discovery to Appellant. In an initial, partial response to
Appellees’ discovery requests, Appellant provided three months of bank
statements to demonstrate his household’s income and monthly budget.
The parties discussed possible dates for the impending evidentiary hearing
on Appellant’s claim of exemption. In the course of such conversations, Appellees
offered to settle Appellant’s debt for less than the amount due and owing in lieu of
moving forward with the hearing, but Appellant refused. An evidentiary hearing
was scheduled for March 31, 2014. Appellees reiterated their settlement offer to
no avail, and discovery continued.
3
See id. § 222.11(2)(a) (exempting from garnishment “[a]ll of the disposable earnings of
a head of family whose disposable earnings are less than or equal to $750 a week”); see also id. §
77.041.
5
Case: 14-13715 Date Filed: 06/30/2015 Page: 6 of 36
Appellant noticed the deposition of Appellee Mitchell A. Dinkin for March
10, 2014, for the stated purpose of questioning Mr. Dinkin regarding the factual
basis for the sworn reply, which Mr. Dinkin had signed on behalf of Appellees.
Appellant also returned his outstanding discovery responses to Appellees. Soon
after receiving all of Appellant’s discovery responses and accompanying
documents, Appellees filed a motion to dissolve the writ of garnishment, and the
writ was dissolved by court order on March 6, 2014.
Appellant then initiated the instant action against Appellees for violations of
the FDCPA. The complaint alleged that, in filing the sworn reply, Appellees
employed conduct the natural consequence of which was to harass, oppress, and
abuse Appellant; used false, misleading, and deceptive means in connection with
the collection of Appellant’s debt; and engaged in unfair and unconscionable
means to collect Appellant’s debt. See 15 U.S.C. §§ 1692d–1692f. Appellant
claimed that his sworn affidavit provided Appellees with “actual knowledge” of
the fact that his wages were exempt from garnishment, and thus, Appellees had “no
factual basis” for opposing Appellant’s claim of exemption. The sworn reply,
Appellant alleged, was a calculated effort to force a settlement of his debt.
Appellees moved to dismiss Appellant’s complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). Appellees argued that Florida’s garnishment statute
requires debt-collecting plaintiffs to file a sworn written statement in opposition to
6
Case: 14-13715 Date Filed: 06/30/2015 Page: 7 of 36
an individual’s claim of exemption before an evidentiary hearing will be set. See
Fla. Stat. § 77.041(3). The sworn reply, Appellees averred, was a mere procedural
filing directed first to the state court and then to Appellant’s counsel. Appellees
asserted that the sworn reply was not the type of conduct from which Congress
sought to protect consumers in enacting the FDCPA.
The district court agreed with Appellees. Skeptical of the idea that Congress
intended to create FDCPA liability for “formulaic procedural filings,” the district
court concluded that, to the extent the sworn reply was a procedural filing rather
than “a formal pleading making factual allegations,” the FDCPA was inapplicable.
The district court further determined that communications directed to someone
other than the consumer are not actionable under the FDCPA. Thus, because the
sworn reply was filed with and directed to the state court rather than to Appellant
himself, the FDCPA did not apply to Appellees’ conduct. Finally, the district court
found that, even if the FDCPA applied, Appellant nonetheless failed to state a
claim under the Act. Appellant’s complaint was dismissed with prejudice, and this
appeal followed.
II.
We review de novo a district court’s interpretation of a statute. See
Bankston v. Then, 615 F.3d 1364, 1367 (11th Cir. 2010) (per curiam). We also
review de novo the grant of a motion to dismiss under Rule 12(b)(6), “accepting
7
Case: 14-13715 Date Filed: 06/30/2015 Page: 8 of 36
the allegations in the complaint as true and construing them in the light most
favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per
curiam). However, “conclusory allegations . . . are not entitled to an assumption of
truth—legal conclusions must be supported by factual allegations.” Randall v.
Scott, 610 F.3d 701, 709–10 (11th Cir. 2010). To survive a motion to dismiss, a
complaint must “state a claim to relief that is plausible on its face,” meaning it
must contain “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 4 Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted).
III.
Our review is in two parts. We must first determine whether the FDCPA
applies where, as here, the representations alleged to have violated the Act were
made in court filings in the course of debt-collection proceedings. If the FDCPA
does not apply to such representations, then the district court’s dismissal could be
affirmed without further discussion. However, because we find that a debt-
collector attorney’s representations in court filings and his conduct toward a
consumer’s attorney are all covered by the FDCPA in the absence of any express
exemption therefor, we must also decide whether the district court erred in
4
Appellant attached multiple exhibits to his complaint, including a copy of his affidavit
and of the sworn reply, and we treat those documents as part of the complaint for Rule 12(b)(6)
purposes. See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per
curiam); see also Fed. R. Civ. P. 10(c).
8
Case: 14-13715 Date Filed: 06/30/2015 Page: 9 of 36
dismissing Appellant’s complaint under Rule 12(b)(6). Finding that Appellant has
failed to state a claim under the FDCPA, we affirm on those grounds.
A.
The threshold issue is the extent to which the FDCPA applies to the
activities of debt-collector attorneys. The district court concluded and Appellees
argue on appeal that the FDCPA does not apply to representations made in
“formulaic procedural filings” or to communications directed only to the
consumer’s attorney, rather than to the consumer himself. We disagree. The
statutory text is entirely clear: the FDCPA applies to lawyers and law firms who
regularly engage in debt-collection activity, even when that activity involves
litigation, and categorically prohibits abusive conduct in the name of debt
collection, even when the audience for such conduct is someone other than the
consumer. The plain language of the FDCPA is conclusive here, and so we must
do no more than enforce the Act according to its terms. See United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 1030 (1989). We therefore
decline to read into the Act those exceptions urged by Appellees and find that
Appellees’ conduct before the state court is actionable under the FDCPA.
1.
The FDCPA regulates what debt collectors can do in collecting debts. See
15 U.S.C. §§ 1692–1692p. A “debt collector” includes “any person who . . .
9
Case: 14-13715 Date Filed: 06/30/2015 Page: 10 of 36
regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” Id. § 1692a(6). As a lawyer and a law firm
who regularly practice in the field of consumer debt collection, Appellees do not
dispute that they qualify as “debt collectors” within the meaning of the Act.
However, they do challenge the extent to which the FDCPA applies to the conduct
of debt collectors engaged in litigation; specifically, Appellees aver that court
filings that are “purely procedural” do not fall within the ambit of the Act.
Appellees’ argument is foreclosed by both Supreme Court precedent and the plain
text of the FDCPA.
In Heintz v. Jenkins, the Supreme Court expressly held that the FDCPA
“applies to the litigating activities of [debt-collector] lawyers.” 514 U.S. 291, 294,
115 S. Ct. 1489, 1490 (1995). In Heintz, a bank’s law firm brought a collections
action against a consumer, Darlene Jenkins, to recover on an automobile loan. Id.
at 293, 115 S. Ct. at 1490. A lawyer for the bank, George Heintz, sent Jenkins’s
lawyer a letter in an attempt to settle the suit. Id. Jenkins claimed the letter
included a false statement of the amount she owed to the bank. Id. She sued
Heintz and his law firm under the FDCPA. Id. The district court dismissed
Jenkins’s action for failure to state a claim on the grounds that the FDCPA did not
apply to “lawyers engaging in litigation.” Id. at 294, 115 S. Ct. at 1490. The
10
Case: 14-13715 Date Filed: 06/30/2015 Page: 11 of 36
Seventh Circuit reversed, and the Supreme Court affirmed, holding that “[t]he Act
does apply to lawyers engaged in litigation.” Id.
The Supreme Court’s holding aligned with the FDCPA’s definition of “debt
collector.” See id. at 294, 115 S. Ct. at 1490–91 (citing 15 U.S.C. § 1692a(6)). “In
ordinary English,” the Court reasoned, “a lawyer who regularly tries to obtain
payment of consumer debts through legal proceedings is a lawyer who regularly
‘attempts’ to ‘collect’ those consumer debts.” See id. at 294, 115 S. Ct. at 1491
(citing Black’s Law Dictionary 263 (6th ed. 1990) (“To collect a debt or claim is to
obtain payment or liquidation of it, either by personal solicitation or legal
proceedings.”)). A prior version of the FDCPA “contained an express exemption
for lawyers,” which stated that “the term ‘debt collector’ did not include ‘any
attorney-at-law collecting a debt as an attorney on behalf of and in the name of a
client.’” Id. (quoting Pub. L. No. 95-109, § 803(6)(F), 91 Stat. 874, 875 (1977)).
However, Congress later “repealed this exemption in its entirety, without creating a
narrower, litigation-related, exemption to fill the void”—a choice the Court found
significant. Id. at 294–95, 115 S. Ct. at 1491 (citation omitted). Taking stock of
Congress’s action, the Court theorized that Congress must have “intended that
lawyers be subject to the Act whenever they meet the general ‘debt collector’
definition.” Id. at 295, 115 S. Ct. at 1491.
11
Case: 14-13715 Date Filed: 06/30/2015 Page: 12 of 36
Heintz asked the Court to imply an “exemption for those debt-collecting
activities of lawyers that consist of litigating,” but the Court would not oblige. Id.
For one thing, the Court did not view its holding as limiting an attorney’s ability to
advance the interests of his client. See id. at 296–98, 115 S. Ct. at 1491–92; see
also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 600,
130 S. Ct. 1605, 1622 (2010) (“An attorney’s ethical duty to advance the interests
of his client is limited by an equally solemn duty to comply with the law and
standards of professional conduct.” (internal quotation marks omitted)). It pointed
to a number of exceptions in the text of the FDCPA “authoriz[ing] the actual
invocation of the remedy that the collector ‘intends to invoke’” in accord with the
Act’s “apparent objective of preserving creditors’ judicial remedies.” Heintz, 514
U.S. at 296, 115 S. Ct. at 1492. For another thing, the Court found “nothing either
in the Act or elsewhere indicating that Congress intended . . . to create [such an]
exception from the Act’s coverage—an exception that . . . falls outside the range of
reasonable interpretations of the Act’s express language.” Id. at 298, 115 S. Ct. at
1492–93. Under Heintz, then, the FDCPA unquestionably applies to the litigating
activities of lawyers who regularly engage in debt collection—and to Appellees’
conduct before the state court. See id. at 299, 115 S. Ct. at 1493.
A post-Heintz amendment to the FDCPA further confirms that the Act
applies here. See Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 231 (4th Cir.
12
Case: 14-13715 Date Filed: 06/30/2015 Page: 13 of 36
2007). After Heintz was handed down, Congress amended 15 U.S.C. § 1692e(11)
of the Act, which prohibits initial written communications to the consumer that fail
to disclose that they are from a debt collector, to exclude formal pleadings “made
in connection with a legal action” from the requirements of that subsection. §
1692e(11); see Sayyed, 485 F.3d at 231. In so doing, Congress expressly exempted
formal pleadings—and formal pleadings alone—from a “sole, particularized
requirement of the FDCPA.” Sayyed, 485 F.3d at 231. After Congress’s
amendment, debt-collector attorneys who file a complaint or respond to a
complaint need not state that such pleadings are filed by a debt collector. 5 See §
1692e(11). Congress did not otherwise constrain the Act’s general applicability to
lawyers using litigation to collect debts.
We presume that, in amending a statute, Congress has knowledge of prior
judicial interpretation of the statute. See Lorillard v. Pons, 434 U.S. 575, 580–81,
98 S. Ct. 866, 870 (1978). That Congress exempted formal pleadings from a single
requirement of the FDCPA after the Supreme Court issued its decision in Heintz
suggests that Congress was aware of the Court having interpreted the Act to apply
to the litigating activities of debt-collector attorneys “and accepted it,” except to
the extent that it exempted formal pleadings from § 1692e(11)’s requirements. See
5
See Black’s Law Dictionary 1339 (10th ed. 2014) (defining a “pleading” as “[a] formal
document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to
allegations, claims, denials, or defenses,” such as “the plaintiff’s complaint and the defendant’s
answer”).
13
Case: 14-13715 Date Filed: 06/30/2015 Page: 14 of 36
Sayyed, 485 F.3d at 231 (emphasis added). If Congress had intended to exempt all
litigating activities or any one litigating activity from the Act’s other provisions, “it
presumably would have done so expressly,” as it did in § 1692e(11). Russello v.
United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983). Instead, Congress has
effectively instructed that all litigating activities of debt-collecting attorneys are
subject to the FDCPA, except to the limited extent formal pleadings are exempt
under § 1692e(11).6 See Sayyed, 485 F.3d at 231.
Here, an implied exemption from the FDCPA’s coverage for Appellees’
sworn reply would “fall[] outside the range of reasonable interpretations of the
Act’s express language.” See Heintz, 514 U.S. at 298, 115 S. Ct. at 1492–93; see
also Merritt v. Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir. 1997) (“Courts
have no authority to alter statutory language.”). Both the clear language chosen by
Congress and the Supreme Court’s explicit pronouncement in Heintz compel the
conclusion that the FDCPA applies to all litigating activities of debt-collecting
attorneys, subject only to § 1692e(11)’s express exemption. See Andrus v. Glover
Constr. Co., 446 U.S. 608, 616–17, 100 S. Ct. 1905, 1910 (1980) (“Where
Congress explicitly enumerates certain exceptions to a general prohibition,
6
We need not determine whether the sworn reply filed by Appellees is, in fact, a
“procedural filing” or whether a “procedural filing” would or could never qualify as a “formal
pleading” under § 1692e(11) because the instant appeal does not implicate the particular
requirements of that subsection. For our purposes, § 1692e(11) simply demonstrates that
Congress can craft explicit exemptions from the FDCPA’s proscriptions for the litigating
activities of debt-collecting attorneys where it sees fit to do so. See, e.g., United States v. Mount
Sinai Med. Ctr. of Fla., Inc., 486 F.3d 1248, 1252 (11th Cir. 2007).
14
Case: 14-13715 Date Filed: 06/30/2015 Page: 15 of 36
additional exceptions are not to be implied, in the absence of evidence of a
contrary legislative intent.”); CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d
1217, 1228 (11th Cir. 2001) (“Those who ask courts to give effect to perceived
legislative intent by interpreting statutory language contrary to its plain and
unambiguous meaning are in effect asking courts to alter that language . . . .”). The
Act thus encompasses actions undertaken by Appellees, both in and out of state
court, in collecting on Appellant’s debt.
2.
Appellees try to extricate the sworn reply from the FDCPA’s proscriptions
by arguing that the sworn reply was directed to Appellant’s attorney, not to
Appellant, and communications directed to a consumer’s attorney, rather than to
the consumer, are not actionable under the Act. 7 They reason that the FDCPA
should not apply to a debt collector’s conduct when an attorney is interposed
between the consumer and the debt collector because, in those instances, the
7
Appellees also argue, for the first time on appeal, that the sworn reply does not qualify
as a “communication” under the FDCPA. See 15 U.S.C. § 1692a(2) (defining the term
“communication”). We need not exercise our discretion to consider this issue because it is
unconnected to our ultimate determination. See Akanthos Capital Mgmt., LLC v. CompuCredit
Holdings Corp., 677 F.3d 1286, 1292 (11th Cir. 2012) (providing this court has discretion to
consider issues not presented below). First, Appellant did not allege below and does not allege
on appeal that the sworn reply constitutes a “communication” under the FDCPA; Appellant’s
claims are based on Appellees’ “conduct.” Second, communications in connection with debt
collection are governed by § 1692c, a provision that is not at issue here. Third, the provisions
that are at issue, §§1692d–1692f, regulate more than a debt collector’s communications; they
prohibit specified conduct, representations, and means of collection. While these sections
necessarily encompass communications, a violation thereof may be premised on conduct not
falling within the statutory definition of “communication.” See §§ 1692a(2), 1692d–1692f.
Appellees’ red herring is a rough fish.
15
Case: 14-13715 Date Filed: 06/30/2015 Page: 16 of 36
attorney, rather than the FDCPA, will protect the consumer from the debt
collector’s conduct. It should be clear from the statutory text and from Heintz that
Appellees’ argument is ill-fated. Still, given the varied holdings of our Sister
Circuits on this issue, we think it necessary to address Appellees’ argument. In so
doing, we find it impossible to conclude, under the plain language of the FDCPA,
that a debt collector’s communications to an attorney representing a consumer are
not covered by the Act.
Our inquiry begins with the specific provisions invoked by Appellant. The
first is § 1692d, which expressly provides that “debt collector[s] may not engage in
any conduct the natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.” 15 U.S.C. § 1692d (emphasis
added). Given the phrase “any person,” § 1692d’s universal application could not
be clearer. See Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773 (7th
Cir. 2007) (emphasizing § 1692d’s reference to “any person”). On its face, §
1692d is not a protection for consumers alone; it ostensibly protects any person
from being harassed, oppressed, or abused by a debt collector in connection with
the collection of a debt. In the absence of any language to the contrary, a
consumer’s attorney is undoubtedly “any person.” Cf. 15 U.S.C. § 1692c, (d)
(restricting application of section to consumers and “the consumer’s spouse, parent
(if the consumer is a minor), guardian, executor, or administrator”).
16
Case: 14-13715 Date Filed: 06/30/2015 Page: 17 of 36
The same holds true for § 1692e. Section 1692e broadly prohibits “any
false, deceptive, or misleading representation or means in connection with the
collection of any debt.” Id. § 1692e (emphasis added). A particular class of
persons to whom such representations or means cannot be directed is not specified;
rather, in listing examples of conduct that would violate § 1692e, Congress
explicitly provided examples of conduct directed to consumers and other persons
alike. A debt collector may violate § 1692e by threatening “to take any action that
cannot legally be taken,” using “any false representation or deceptive means . . . to
obtain information concerning a consumer,” or by failing to disclose in an initial
written communication “with the consumer” that the communication is from a debt
collector. See id. § 1692e(5), (10), (11). As such, § 1692e is naturally read to bar
“any” prohibited representation, regardless of to whom it is directed, so long as it
is made “in connection with the collection of any debt.” See id. § 1692e.
Like § 1692e, the third section at issue, § 1692f, does not expressly state that
it protects “any person.” Section 1692f generally prohibits a debt collector from
using “unfair or unconscionable means to collect or attempt to collect any debt.”
Id. § 1692f. Still, the provision’s broad language coupled with its illustrative
examples of violative conduct support the conclusion that § 1692f applies whether
the unfair and unconscionable means are employed against consumers or non-
consumers. Section 1692f(5), for example, bars debt collectors from “[c]ausing
17
Case: 14-13715 Date Filed: 06/30/2015 Page: 18 of 36
charges to be made to any person for communications by concealment of the true
purpose of the communication.” Id. § 1692f(5) (emphasis added). In this scenario,
it is the person who accepts the charges as a result of the debt collector’s
concealment who is also afforded protection under § 1692f, and nothing in the
language of the statute suggests that that person need be the consumer. Cf. id. §
1692c.
In sum, not one of the three sections at issue here “designate[s] any class of
persons, such as lawyers, who can be abused, misled, etc., by debt collectors with
impunity.” See Evory, 505 F.3d at 773. The FDCPA’s statutory text does not
provide nor does it imply immunity for debt collection practices otherwise
forbidden by the Act simply because those debt collection practices are directed at
a consumer’s attorney or any other non-consumer. Appellees’ contention that
attorneys representing consumers are excluded from the class of persons to whom
a debt collector may not direct conduct prohibited under §§ 1692d–1692f finds no
support in the plain language of the Act.
To the contrary, § 1692c specifically provides that, where a debt collector
knows that a consumer is represented by an attorney, he or she shall direct all
communications to the consumer’s attorney, absent permission to communicate
directly with the consumer. See 15 U.S.C. § 1692c(a)(2). Section 1692c, as a
whole, regulates debt collectors’ communications with consumers. See id. §
18
 Case: 14-13715 Date Filed: 06/30/2015 Page: 19 of 36
1692c; see also id. § 1692b(2). In contrast to other provisions, § 1692c explicitly
refers to the “consumer” and clearly and necessarily distinguishes “consumers”
from “attorneys” and other third parties. It is thus understood to protect only
consumers and those individuals enumerated in §1692c(d). See Wright v. Fin.
Serv. of Norwalk, Inc., 22 F.3d 647, 649 & n.1 (6th Cir. 1994) (en banc) (noting
that § 1692c is the only provision limited to “consumers,” while “a debt collection
practice need not offend the alleged debtor before there is a violation of [§
1692e]”). Section 1692c’s singular focus does not, however, evidence a
congressional intent to afford attorneys and their consumer-clients disparate
protection under other sections of the Act. See, e.g., Russello, 464 U.S. at 23, 104
S. Ct. at 300 (“Where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
(internal quotation marks omitted)).
Indeed, the FDCPA’s liability provision is in no way limited to conduct and
communications directed only to consumers. Pursuant to § 1692k(a), “any debt
collector who fails to comply with any provision of this subchapter with respect to
any person is liable to such person.” 15 U.S.C. § 1692k(a) (emphasis added). The
phrase “with respect to any person” is expansive and is properly understood to
encompass all persons. See CBS Inc., 245 F.3d at 1223 (“[I]n the absence of any
19
Case: 14-13715 Date Filed: 06/30/2015 Page: 20 of 36
language limiting the breadth of [the] word [‘any’], it must be read as referring to
all of the subject that it is describing.” (internal quotation marks omitted)). It
follows that if “any person” is entitled to redress under the FDCPA, then all
persons must be entitled to protection under it—be it the consumer under § 1692c,
see Wright, 22 F.3d at 649 n.1, or any person who is mistreated in the connection
with the collection of any debt under §§ 1692d–1692f. See United States v. DBB,
Inc., 180 F.3d 1277, 1281 (11th Cir. 1999) (“[W]e read the statute to give full
effect to each of its provisions. . . . [and] look to the entire statutory context.”). By
painting § 1692k with broad strokes, Congress ensured that debt collectors could
be held liable to consumers and non-consumers alike for violations of the Act’s
conduct-regulating provisions. We refuse to read §1692k to be narrower than the
plain meaning of the phrase “any person” implies. See, e.g., United States v. Silva,
443 F.3d 795, 798 (11th Cir. 2006) (per curiam) (outlining rules of statutory
construction).
Finally, if the statutory text left any room for doubt on the consumer-
attorney-communication issue, appellate precedent resolves it. Our lodestar,
Heintz, involved a communication from a debt-collector attorney to a consumer’s
attorney. Jenkins’s FDCPA claims in Heintz were based on a letter from Heintz,
the debt collector, to Jenkins’s attorney. See 514 U.S. at 293, 115 S. Ct. at 1490.
On these facts, the Supreme Court held that the Act applies to lawyers “who
20
Case: 14-13715 Date Filed: 06/30/2015 Page: 21 of 36
‘regularly’ engage in consumer-debt-collection activity, even when that activity
consists of litigation.” Id. at 299, 115 S. Ct. at 1493. In so doing, the Court
assumed, without deciding, that a false representation sent to a debtor’s attorney by
a debt collector violates the Act. See id. at 298–99, 115 S. Ct. at 1492–93. In
accord with Heintz, a number of courts of appeals have since read §§ 1692d–1692f,
or a combination thereof, as applying to a debt collector’s communications with
persons other than the consumer, see, e.g., Hemmingsen v. Messerli & Kramer,
P.A., 674 F.3d 814, 818–19 (8th Cir. 2012); Todd v. Collecto, Inc., 731 F.3d 734,
737–39 (7th Cir. 2013); Evory, 505 F.3d at 773; see also Sayyed, 485 F.3d at 232–
34, and we join with those courts today.
The language of the FDCPA is plain and clear. Debt collectors are
categorically prohibited from making false or misleading representations and from
engaging in abusive and unfair practices in connection with the collection of any
debt. See 15 U.S.C. §§ 1692d–1692f. A proper reading of the statutory text
dictates that a debt collector’s communications with a consumer’s attorney,
including those communications required by § 1692c, are subject to §§ 1692d–
1692f of the Act to the same extent as a debt collector’s communications with the
consumer himself.8 See, e.g., id. § 1692k(a). It would create an odd situation,
8
Appellees also suggest that the sworn reply is not actionable under the FDCPA because
it was “directed to the state court.” This contention fails for the same reasons Appellees’
argument regarding attorney-to-attorney communications fails: (1) the Act’s prohibitions are not
21
Case: 14-13715 Date Filed: 06/30/2015 Page: 22 of 36
indeed, if the fact that a consumer was represented by an attorney somehow
excused the debt collector from otherwise observing the FDCPA’s requirements.
Therefore, in the absence of statutory language to the contrary, we decline
Appellees’ invitation to exempt conduct or communications directed to a
consumer’s attorney from the Act’s coverage.
3.
Upon a brief examination of the Act’s declared purpose, we are fortified in
our conclusions. The FDCPA was passed in response to “abundant evidence of . . .
abusive, deceptive, and unfair debt collection practices by many debt collectors”;
then-existing laws and procedures for redressing injuries caused by such practices
had proven inadequate to protect consumers. See 15 U.S.C. § 1692(a)–(b). Its
purpose is “to eliminate abusive debt collection practices by debt collectors, to
insure that those debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote consistent State
limited to representations made directly to or conduct directed solely at consumers, see §§
1692d–1692f, and (2) documents submitted to a court in the course of judicial proceedings to
collect on a debt fall within the ambit of “litigating activities,” see Heintz, 514 U.S. at 294, 115
S. Ct. at 1490. Also, because debts are often collected through the judicial process, see id. at
294, 115 S. Ct. at 1491 (citing Black’s Law Dictionary 263 (6th ed. 1990) (“To collect a debt or
claim is to obtain payment or liquidation of it, either by personal solicitation or legal
proceedings.”)); O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 949 (7th Cir. 2011)
(Tinder, J., concurring in the result) (citing § 1692a(2)) (noting that courts are a medium through
which debt collection information is conveyed to consumers), we think it would “compel absurd
results” indeed if abusive, misleading, or unconscionable documents submitted to a court (and
served on the consumer or his counsel) in an attempt to collect on any debt were excluded from
the Act’s proscriptions, see Jerman, 559 U.S. at 600, 130 S. Ct. at 1622. Appellees cannot avoid
the FDCPA by arguing that the sworn reply was primarily directed to the state court.
22
Case: 14-13715 Date Filed: 06/30/2015 Page: 23 of 36
action to protect consumers against debt collection abuses.” Id. § 1692(e).
Congress found that non-abusive means “[were] available for the effective
collection of debts.” Id. § 1692(c).
“[T]he import of the words Congress has used is clear.” Harris v. Garner,
216 F.3d 970, 976 (11th Cir. 2000) (en banc). The Act’s natural point of aim is the
debt-collecting activities of debt collectors, and the inbuilt consequence of its
regulation of debt collectors is the protection of both consumers and other persons
who find themselves on the receiving end of prohibited debt-collecting activities.
See, e.g., §§ 1692(b), 1692(e), 1692a(2), 1692d–1692f, 1692k(a). Interpreting the
FDCPA to permit otherwise prohibited conduct merely because it is directed at a
consumer’s attorney or takes the form of a procedural filing would not only subvert
the plain text of the Act, it would also frustrate the Act’s stated objectives. See,
e.g., United States v. Am. Trucking Ass’ns, 310 U.S. 534, 542, 60 S. Ct. 1059, 1063
(1940) (“In the interpretation of statutes, the function of the courts is . . . . to
construe the language so as to give effect to the intent of Congress.”); Isbrandtsen
Co. v. Johnson, 343 U.S. 779, 783, 72 S. Ct. 1011, 1014–15 (1952) (“[A statute]
should be interpreted so as to effect its purpose.”).
In the context of communications to a consumer’s attorney, for example,
Appellees’ reading of the FDCPA protects a consumer from otherwise prohibited
debt collection efforts “only so long as she does not retain an attorney.” Guerrero
23
Case: 14-13715 Date Filed: 06/30/2015 Page: 24 of 36
v. RJM Acquisitions LLC, 499 F.3d 926, 945 (9th Cir. 2007) (per curiam) (Fletcher,
J., concurring in part, dissenting in part). Once the consumer retains an attorney,
though, the debt collector is free to convey false or misleading information to the
consumer’s attorney without fear of consequences. See, e.g., § 1692e. In other
words, in seeking the advice of an attorney, the consumer opens himself up to the
very abuses the Act is meant to redress, see Guerrero, 499 F.3d at 945 (Fletcher, J.,
concurring in part, dissenting in part); see also § 1692(a) (listing effect of abusive
debt collection practices), because the consumer, rather than the debt collector, will
be forced to bear the costs resulting from the debt collector’s conduct, cf. §
1692k(a) (holding debt collectors civilly liable for illicit debt collection practices).
Such a result would destroy, not achieve, the spirit and force of the FDCPA. See
DBB, Inc., 180 F.3d at 1283.
4.
Guided by Supreme Court precedent and the plain language of the FDCPA,
we find that the Act applies to the litigating activities of lawyers and law firms
engaged in consumer debt collection, subject only to the limited exceptions
Congress has chosen to include in the statute. See Harris, 216 F.3d at 976 (“We
will not do to the statutory language what Congress did not do with it . . . .”). The
statutory text also leads us to conclude that the Act prohibits debt collectors from
engaging in proscribed conduct with respect to any person in connection with the
24
Case: 14-13715 Date Filed: 06/30/2015 Page: 25 of 36
collection of any debt, see 15 U.S.C. §§ 1692d–1692f, 1692k, except where
Congress has expressly limited applicability of the Act to a particular person or
group of persons, see, e.g., id. §§ 1692b, 1692c.
To the extent our reading of the FDCPA “imposes some constraints on a
lawyer’s advocacy on behalf of [his] client, it is hardly unique in our law,” and we
do not think it absurd to require a debt-collecting attorney advancing the interests
of his client to fulfill his “equally solemn duty to comply with the law.” Jerman,
559 U.S. at 600, 130 S. Ct. at 1622. The FDCPA is nothing short of a
straightforward statutory directive to hold debt collectors accountable for abusive,
deceptive, and unfair debt collection practices. Had Congress intended to restrict
application of the FDCPA to conduct directed only to the consumer or to exempt
certain procedural filings from its provisos, it presumably would have done so
expressly, see, e.g., §§ 1692c(d), 1692e(11), but it did not draft the statute that
way. Therefore, because Appellees filed the sworn reply in connection with the
collection of Appellant’s debt, Appellees’ conduct is actionable under the FDCPA.
B.
Having determined that the FDCPA does apply to Appellees’ conduct here,
we must examine whether Appellant pled facts sufficient to allow this court “to
draw the reasonable inference that [Appellees are] liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. In a single cause of action,
25
Case: 14-13715 Date Filed: 06/30/2015 Page: 26 of 36
Appellant alleges that Appellees violated each of § 1692d, § 1692e, and § 1692f by
filing the sworn reply, notwithstanding Appellant’s assertions that his wages were
exempt, and in not releasing the writ of garnishment sooner. However, on this
issue, we agree with the district court and find that Appellant’s complaint fails to
sufficiently allege that Appellees engaged in conduct prohibited by the FDCPA.
1. § 1692d
Section 1692d does not, as a matter of law, proscribe Appellees’ conduct in
this case. Under § 1692d, a debt collector “may not engage in any conduct the
natural consequence of which is to harass, oppress, or abuse any person in
connection with the collection of a debt.” 15 U.S.C. § 1692d. Banned conduct
includes the “use of violence,” the “use of obscene or profane language,” and
repeated phone calls intended to annoy or harass “any person at the called
number.” See, e.g., id. § 1692d(1)–(6) (listing types of prohibited conduct). We
view claims under § 1692d “from the perspective of a consumer whose
circumstances make[] him relatively more susceptible to harassment, oppression,
or abuse.” See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985).
Here, Appellant alleges that Appellees violated § 1692d by filing the sworn reply
despite Appellant’s affidavit stating his wages were exempt from garnishment.
We considered the scope of § 1692d in Jeter. In that case, Credit Bureau,
Inc. (Credit Bureau) notified the consumer, Diane Jeter, that she was “indebted to”
26
Case: 14-13715 Date Filed: 06/30/2015 Page: 27 of 36
Credit Bureau’s client. Id. at 1171. The letter provided that, “unless satisfactory
arrangements [we]re made” within a five-day period, Credit Bureau would
recommend that its client bring an action against Jeter to collect the debt. Id. We
acknowledged that, while a threatened “lawsuit might cause a consumer
embarrassment, inconvenience, and further expense . . . . [s]uch consequences of a
debt collection (or any other) lawsuit are so commonplace that even a consumer
susceptible to harassment, oppression, or abuse would not have been harassed,
oppressed, or abused by the statement in and of itself.” Id. at 1179 (internal
quotation marks omitted). We noted that, while Credit Bureau’s written statements
may have fallen within § 1692e as “potentially deceptive or false . . . threats to
recommend legal action,” id. (citing § 1692e(5), (10)), “[d]eception or falsehood
alone . . . is wholly different from the conduct condemned in [§ 1692d],” id. As
such, we found that Credit Bureau’s conduct was outside the scope of § 1692d—
and we reach the same conclusion here.
If the filing of a lawsuit does not have the natural consequence of harassing,
abusing, or oppressing a debtor, surely a simple oppositional statement does not
“represent[] the type of coercion and delving into the personal lives of debtors that
the FDCPA in general, and § 1692d in particular, was designed to address.” Id. at
1180 n.12; see Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 330 (6th Cir.
2006) (“[T]he filing of a debt-collection lawsuit without the immediate means of
27
Case: 14-13715 Date Filed: 06/30/2015 Page: 28 of 36
proving the debt does not have the natural consequence of harassing, abusing, or
oppressing a debtor.”). It is not enough that the sworn reply caused Appellant
unwanted “embarrassment, inconvenience, and further expense,” Jeter, 760 F.2d at
1179 (internal quotation marks omitted); indeed, as the Sixth Circuit has noted,
“[a]ny attempt to collect a defaulted debt will be unwanted by a debtor,” see
Harvey, 453 F.3d at 330. Rather, the debt collector’s conduct must manifest “a
tone of intimidation,” Jeter, 760 F.2d at 1179 (internal quotation marks omitted),
and no such tone emanates from Appellees’ sworn reply here.
Even viewed from the perspective of the least sophisticated consumer, the
filing of the sworn reply does not have the natural consequence of harassing,
abusing, or oppressing Appellant. See Jeter, 760 F.2d at 1179; see also Chalik v.
Westport Recovery Corp., 677 F. Supp. 2d 1322, 1330 (S.D. Fla. 2009) (finding
sworn statement denying exemption filed without specific knowledge regarding
exemption was not the type of conduct covered by § 1692d); Watkins v. Peterson
Enters., 57 F. Supp. 2d 1102, 1108–09 (E.D. Wash. 1999) (holding that serving
writs of garnishment that overstated debt was not an abusive practice because the
types of behavior described in § 1692d “are a far cry from that at issue”). In
employing the court system in the way alleged by Appellant here—namely, filing
an oppositional statement—Appellees did not engage in “conduct the natural
consequence of which [was] to harass, oppress, or abuse” within the meaning of §
28
Case: 14-13715 Date Filed: 06/30/2015 Page: 29 of 36
1692d. See, e.g., § 1692d(1)–(6). Therefore, the district court did not err in
dismissing Appellant’s claim under § 1692d. 9
2. § 1692e
Appellant has also failed to allege facts sufficient to state a claim under §
1692e(10) or, more generally, § 1692e. Section 1692e generally prohibits
deceptive practices in debt collection. Examples of proscribed conduct include
implying that the consumer committed any crime, falsely representing the amount
of the debt, and threatening to take legal action that is not intended to be taken.
See 15 U.S.C. § 1692e(1)–(16). Appellant contends that the sworn reply qualifies
as a “false representation or deceptive means” of collecting a debt under subsection
(10) because Appellees were without a factual basis for opposing his claim of
exemption. In determining whether Appellees’ conduct was deceptive under §
1692e and/or § 1692e(10), we must consider whether the “least sophisticated
consumer” would be deceived by the sworn reply. 10 See Jeter, 760 F.2d at 1177.
9
See Jeter, 760 F.2d at 1179 (citing S. Rep. No. 95-832, at 4 (1977), reprinted in 1977
U.S.C.C.A.N. 1695, 1698) (“Ordinarily, whether conduct harasses, oppresses, or abuses will be a
question for the jury. Nevertheless, Congress has indicated its desire for the courts to structure
the confines of § 1692d.”).
10
While we have determined that the FDCPA applies to debt-collection activities
directed to a consumer’s attorney, the standard by which such claims should be evaluated is a
different question. Appellees reasonably suggest that the “least sophisticated consumer”
standard is inappropriate for evaluating the tendency of conduct or language to deceive or
mislead a consumer’s attorney. The Seventh Circuit, among others, has adopted a “competent
lawyer” standard to determine whether a communication or representation to a consumer’s
attorney would deceive or mislead that attorney under § 1692e. See Evory, 505 F.3d at 774–75;
see also Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 574 (8th Cir. 2015). We do not
29
Case: 14-13715 Date Filed: 06/30/2015 Page: 30 of 36
The sworn reply is not misleading or deceptive in the traditional sense. It
does not misrepresent the nature or effect of the writ of garnishment. See Fuller v.
Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361, 1369–70 (M.D. Fla. 2002). It
does not erroneously state the amount of the debt owed by Appellant. See Kojetin
v. C U Recovery, Inc., 212 F.3d 1318, 1318 (8th Cir. 2000) (per curiam). It does
not incorrectly identify the holder of the alleged debt. See Wallace v. Wash. Mut.
Bank, F.A., 683 F.3d 323, 327–28 (6th Cir. 2012). It does not contain “false or
deliberately ambiguous threats” of future litigation. See Jeter, 760 F.2d at 1177–
78 & n.11; see also Crossley v. Lieberman, 868 F.2d 566, 567, 571–72 (3d Cir.
1989). Instead, the sworn reply simply states Appellees’ legal position relative to
Appellant’s claim of exemption.
Still, Appellant maintains that Appellees’ legal position was baseless
because Appellees received Appellant’s affidavit in support of his claim of
exemption prior to filing the sworn reply. Appellees, however, were under no
obligation to take Appellant’s affidavit as the truest representation of his financial
situation. Indeed, Appellant’s affidavit failed to provide the amount of his wife’s
Social Security benefits. Appellees needed to ascertain the amount of Appellant’s
wife’s Social Security benefits in order to determine whether Appellant provided
adopt or reject such a standard here because, if Appellant cannot make the minimal showing
under Jeter, he is necessarily unable to demonstrate that individuals held to a higher standard of
competence, be it an attorney or a state court judge, could be misled or deceived by the sworn
reply.
30
Case: 14-13715 Date Filed: 06/30/2015 Page: 31 of 36
more than one-half of her support. See Fla. Stat. § 222.11. Appellees sought that
information through discovery, and, in order to avoid dissolution of the writ of
garnishment before such discovery took place, Appellees had to file the sworn
reply. See id. § 77.041(3) (“If the plaintiff or the plaintiff’s attorney does not file a
sworn written statement that answers the defendant’s claim of exemption . . . no
hearing is required and the clerk must automatically dissolve the writ and notify
the parties of the dissolution by mail.”). In short, at the time the sworn reply was
filed, the facts underlying Appellant’s right to an exemption were in dispute.
Appellant does not allege how he—or anyone else—was “misled, deceived,
or otherwise duped” by the submission of a sworn statement that disputed his
contention that he was a “head of family” under Florida law. See Hemmingsen,
674 F.3d at 819 (internal quotation marks omitted). Appellees were fully within
their rights to assert their position with regard to Appellant’s claim of exemption
and to request more information or details about Appellant’s right to an exemption.
It is not enough to allege that Appellant believed that he was entitled to the “head
of family” exemption and that Appellees inconveniently and disappointingly
disagreed. It would be passing odd to find that allegations that a state court filing
asserted a legal position contrary to that of the consumer were sufficient to state a
claim under § 1692e. See Jerman, 559 U.S. at 599–600, 130 S. Ct. at 1621–22
(noting “the Act’s conduct-regulating provisions . . . should not be assumed to
31
Case: 14-13715 Date Filed: 06/30/2015 Page: 32 of 36
compel absurd results when applied to debt collecting attorneys”). Without more,
we will not limit a debt-collector attorney’s ability to engage in conduct inherent to
the adversarial process—and expected in a garnishment action in Florida state
court. See Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir.
2008) (per curiam) (“[T]he complaint’s ‘[f]actual allegations must be enough to
raise a right to relief above the speculative level.’”).
Appellees’ subsequent dissolution of the writ of garnishment does not affect
our analysis. An “apparent objective” of the FDCPA is the preservation of
creditors’ judicial remedies. See Heintz, 514 U.S. at 296, 115 S. Ct. at 1492. If
judicial proceedings are to accurately resolve disputes, including debt collection
disputes, debt-collector attorneys must be permitted to present legal arguments in
their clients’ favor and to invoke the remedies available to them, including wage
garnishment. See id. (citing § 1692c(2)–(3)) (“[The Act allows] the actual
invocation of the remedy that the collector ‘intends to invoke.’”). The fact that
Appellees’ attempt to collect on Appellant’s debt by garnishing his wages
“turn[ed] out ultimately to be unsuccessful” does not make the filing of the sworn
reply “an action that cannot legally be taken.” See id. at 296, 115 S. Ct. at 1491
(internal quotation marks omitted).
32
Case: 14-13715 Date Filed: 06/30/2015 Page: 33 of 36
Because Appellant’s allegations as stated in his complaint are insufficient to
establish deceptive means of collecting a debt under § 1692e or § 1692e(10),
Appellant fails to state a cause of action, and his claim was properly dismissed. 11
3. § 1692f
Finally, § 1692f’s catch-all prohibition on unfair and unconscionable
conduct does not net Appellant’s complaint. See Todd, 731 F.3d at 739 (labeling §
1692f a “catch-all prohibition”). Section 1692f generally prohibits the use of
“unfair or unconscionable means to collect or attempt to collect any debt.” 15
U.S.C. § 1692f. Whether conduct qualifies as unfair or unconscionable is assessed
objectively from the point of view of the “least sophisticated consumer.” 12
LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1200–01 (11th Cir. 2010) (per
curiam) (internal quotation marks omitted).
The Act does not supply definitions for “unfair” or “unconscionable,” so we
turn to the common usage of the words to determine their meaning. See Consol.
Bank, N.A. v. United States Dep’t of Treasury, 118 F.3d 1461, 1464 (11th Cir.
1997). “Unfair” is defined as “marked by injustice, partiality, or deception.”
11
Generally, “whether the ‘least sophisticated consumer’ would construe [the conduct] as
deceptive is a question for the jury.” Jeter, 760 F.2d at 1178. However, whether Appellant
alleged facts sufficient to state a claim under § 1692e(10) is a legal question for the court. See
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (“Facial challenges to
the legal sufficiency of a claim or defense . . . . always present[] a purely legal question . . . .”).
12
As suggested above, whether an attorney would find Appellees’ conduct unfair or
unconscionable is a question different from whether the least sophisticated consumer would find
Appellees’ conduct unfair or unconscionable. See supra note 10. However, given the
circumstances of this case, we need not traverse that quagmire today.
33
Case: 14-13715 Date Filed: 06/30/2015 Page: 34 of 36
Merriam Webster’s Collegiate Dictionary 1290 (10th ed. 1996); see also LeBlanc,
601 F.3d at 1200 (“[I]n Jeter, we noted in dictum that in the FTC context, ‘an act
or practice is deceptive or unfair if it has the tendency or capacity to deceive.’”). A
step beyond unfair, “unconscionable” is defined as “shockingly unfair or unjust.”
Merriam Webster’s Collegiate Dictionary 1286; see Black’s Law Dictionary 1757
(10th ed. 2014) (“having no conscience; unscrupulous . . . showing no regard for
conscience; affronting the sense of justice, decency, or reasonableness”). As
defined, neither of these terms describes Appellees’ conduct here.
We first note that Appellant fails to allege any conduct beyond that which he
asserts violates the other provisions of the FDCPA, and, in doing so, Appellant
fails to specifically identify how Appellees’ conduct here was either unfair or
unconscionable in addition to being abusive, deceptive, or misleading. 13 See
LeBlanc, 601 F.3d at 1200 & n.31 (finding consumer’s § 1692f claim dependent in
part on consumer’s success under § 1692e(5) because “it’s doubtful” conduct not
found to violate § 1692e(5) could be perceived as unfair and unconscionable). A
catch-all is not a free-for-all. In order to proceed under § 1692f, Appellant is still
required to allege facts showing that the least sophisticated consumer would or
13
Appellant’s allegation that Appellees filed the sworn reply in a bad faith attempt to
leverage a settlement of the subject debt is a legal conclusion, which we are not required to treat
as true. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
34
Case: 14-13715 Date Filed: 06/30/2015 Page: 35 of 36
could view Appellee’s sworn reply as partial and unjust or as unscrupulous and
unethical. See id. at 1200. Appellant makes no such allegations.
Looking to the conduct that is alleged, we fail to see how the sworn
statement, which was filed after Appellees had obtained a writ of garnishment and
for purposes of persuading the state court to hold an evidentiary hearing on
Appellant’s exemption claim, was either deceitful or an affront to justice. See
Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 472–75 (7th
Cir. 2007) (holding law firm did not violate § 1692f when efforts to collect on debt
judgment resulted in three-week freeze of consumer’s checking account); Todd,
731 F.3d at 739–40 (finding plaintiff failed to state claim under § 1692f where debt
collector made no request for payment and no express or implied threat of
repercussion to plaintiff or his consumer-mother); McMillan v. Collection Prof’ls
Inc., 455 F.3d 754, 756, 763–65 (7th Cir. 2006) (concluding least sophisticated
consumer could find letter with heading “YOU ARE EITHER HONEST OR
DISHONEST YOU CANNOT BE BOTH” unfair under § 1692f); see also Fox v.
Citicorp Credit Servs., Inc., 15 F.3d 1507, 1517 (9th Cir. 1994) (holding pursuit of
writ of garnishment where debtor was current on credit card payments could be
found to violate § 1692f). Appellees’ conduct, as alleged, is a “far cry” from the
types of behavior proscribed by § 1692f. See Watkins, 57 F. Supp. 2d at 1109; see
also 15 U.S.C. § 1692f(1)–(8).
35
Case: 14-13715 Date Filed: 06/30/2015 Page: 36 of 36
The crux of Appellant’s § 1692f claim is Appellees’ assertion in the sworn
reply of a legal position contrary to that of Appellant. Unfortunately, disagreement
is the nature of litigation; Appellees’ conduct before the state court does not,
without more, rise to the level of unfair or unconscionable under § 1692f. As such,
we affirm the district court’s dismissal of Appellant’s § 1692f claim as well.
IV.
For the reasons set forth above, we disagree with the district court’s finding
that the FDCPA does not apply to Appellees’ conduct before the state court.
Because the plain text of the Act makes no exception for “formulaic procedural
filings” and does not limit applicability of §§ 1692d–1692f to conduct directed at
the consumer, Appellees’ state-court activities fall squarely within the four corners
of the FDCPA and were actionable thereunder. However, we ultimately affirm the
district court’s dismissal of Appellant’s complaint based on Appellant’s failure to
state a claim under the FDCPA.
AFFIRMED.
36