Patricia Evankavitch v. Green Tree Servicing LLC

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1114
___________
PATRICIA EVANKAVITCH,
v.
GREEN TREE SERVICING, LLC,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-12-cv-02564)
District Judge: Honorable James M. Munley
____________________________________
Argued: December 9, 2014
Before: FUENTES, FISHER, and KRAUSE, Circuit Judges
(Filed: July 13, 2015)
_____________
Carlo Sabatini, Esq.
216 North Blakely Street
Dunmore, PA 18512
Deepak Gupta, Esq. [Argued]
Gupta Wessler
1735 20th Street, NW
Washington, DC 20009
Counsel for Appellee
Barbara K. Hager, Esq.
Henry F. Reichner, Esq.
Reed Smith
1717 Arch Street
Three Logan Square, Suite 3100
Philadelphia, PA 19103
David J. Bird, Esq. [Argued]
Reed Smith
225 Fifth Avenue
Suite 1200
Pittsburgh, PA 15222
Counsel for Appellant
___________
OPINION OF THE COURT
KRAUSE, Circuit Judge.
Under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq., a debt collector is
2
liable to a consumer for contacting third parties in pursuit of
that consumer’s debt unless the communication falls under a
statutory exception. One of those exceptions covers
communication with a third party “for the purpose of
acquiring location information about the consumer” but, even
then, prohibits more than one such contact “unless the debt
collector reasonably believes that the earlier response of such
person is erroneous or incomplete and that such person now
has correct or complete location information.” 15 U.S.C. §
1692b. In this appeal following a jury verdict and judgment
entered against a debt collector for repeated contact with third
parties, we consider a matter of first impression among the
Courts of Appeals: whether the burden in such a case is on
the debt collector to prove or the consumer to disprove that
the challenged third-party communications fit within §
1692b’s exception for acquisition of location information.
We conclude that the debt collector bears that burden and
will therefore affirm.
I. Facts and Procedural History
In 2005, Patricia Evankavitch executed a $43,300.00
mortgage against her property so that she could, in turn, lend
money to her son, Christopher.1 In order for Evankavitch to
repay the loan, Christopher regularly deposited checks into
her bank account, and she then paid the mortgage company.
Eventually, however, Christopher had financial difficulties
and stopped depositing his checks. As a result, Evankavitch
fell behind on her loan payments. In May 2011, with
1
For ease of reference, we refer to Evankavitch’s
children by their first names throughout this opinion.
3
Evankavitch four months behind, the mortgagee’s rights were
assigned to Green Tree Servicing, LLC (“Green Tree”).2
Green Tree and Evankavitch had periodic
conversations about the loan over the next several months.
Evankavitch initiated one of those discussions by calling
Green Tree from a cell phone belonging to her daughter,
Cheryl, which apparently led Green Tree to record Cheryl’s
number as an additional number where it could reach
Evankavitch. Thus, towards the end of 2011, Green Tree
made numerous unsuccessful calls to Evankavitch at both
Evankavitch’s and Cheryl’s numbers.
In January 2012, Green Tree reached Cheryl on her
cell phone. Cheryl said that she would ask her mother to call
Green Tree. A month later, Evankavitch called Green Tree
again from Cheryl’s cell phone. This time, she informed
Green Tree that the number was her daughter’s and instructed
Green Tree to stop using it. Instead, over the next several
months, representatives from Green Tree continued to call
both Evankavitch’s and Cheryl’s numbers and left several
messages on Cheryl’s voicemail requesting that Evankavitch
call Green Tree.
2
Ordinarily, creditors are not considered debt
collectors under the FDCPA. See Pollice v. Nat’l Tax
Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000). However,
an assignee of a loan “may be deemed a ‘debt collector’ if the
obligation is already in default when it is assigned.” Id.Green Tree assumed the assignment under those
circumstances and thus constitutes a debt collector for
FDCPA purposes in this case.
4
In August 2012, after failing to reach Evankavitch,
Green Tree began calling Evankavitch’s neighbors, Robert
and Sally Heim. After a Green Tree employee asked Mr.
Heim to have Evankavitch call Green Tree, Mr. Heim passed
Green Tree’s contact information on to Evankavitch.3 After
two more months without hearing from Evankavitch, Green
Tree made at least three more calls to the Heims, leaving two
messages and speaking with Mr. Heim once more. Mr. Heim
told Green Tree in that final call that Christopher had moved
to California and that Green Tree should stop calling the
Heims. After learning of these communications, Evankavitch
brought suit, claiming, among other things, that Green Tree
impermissibly contacted Mr. Heim in its debt collection
efforts, in violation of § 1692b-c of the FDCPA.
A. The District Court’s Challenged Rulings
With limited exceptions, the FDCPA forbids a debt
collector from contacting third parties in its attempts to
collect a consumer’s debt, 15 U.S.C. § 1692c(b), and makes
the debt collector liable in an individual action for statutory
damages up to $1,000, over and above any actual damages,
id. at § 1692k(a). In both an in limine ruling and in its jury
charge, the District Court took the position that when a debt
collector alleges that it made a contact that falls within the
3
Although Green Tree suggests otherwise in its
briefing, it cites little in the record that indicates that it
actually attempted to discern the location of Evankavitch
during this call or any subsequent call. Instead, these calls to
the Heims appear to have been made with the same purpose
as the calls made to Cheryl, i.e., for these third parties to
function as Green Tree’s message service in soliciting a
return call from Evankavitch.
5
exception for acquisition of location information, the debt
collector has the burden to prove the exception as an
affirmative defense. Specifically, the District Court advised
the jury that Evankavitch and Green Tree “agree that the Fair
Debt Collection Practices Act is violated in the sense that
they agree that the Defendant contacted third parties and did
so multiple times, . . . which is generally a violation of the
Act.” App. 404-405. It went on to state that the “burden is
on the Defendant to determine and establish that it sought
location information.” App. 405. Thus, the District Court
instructed:
[T]he issues for you to decide are[:] one,
whether the Defendant has established that it
contacted the third parties to obtain location
information; and two, whether the Defendant
contacted the third party multiple times because
the Defendant reasonably believed that the
earlier response of the third party is incorrect or
incomplete, and that the third party now has the
correct or the complete location information.
App. 408.
The jury returned a verdict in favor of Evankavitch.
The District Court entered judgment in her favor for $1,000,
and this appeal ensued. Green Tree argues on appeal that
both the in limine ruling and the jury instructions were
improper, such that the verdict should be vacated and this
matter re-tried with the burden of proof on Evankavitch to
disprove that any exception applied.
6
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. §
1291.
When reviewing a jury charge, “we exercise plenary
review to determine whether the instruction misstated the
applicable law.” Franklin Prescriptions, Inc. v. N.Y. Times
Co., 424 F.3d 336, 338 (3d Cir. 2005).4 We also exercise
plenary review over legal rulings made pursuant to an in
limine order. United States v. Romano, 849 F.2d 812, 814 (3d
Cir. 1988).
4
Evankavitch argues that Green Tree failed to preserve
its objection to the charge so that we should reverse only if
the error is “fundamental and highly prejudicial or if the
instructions are such that the jury is without adequate
guidance on a fundamental question and our failure to
consider the error would result in a miscarriage of justice.”
Fashauer v. N.J. Transit Rail Operations, 57 F.3d 1269, 1289
(3d Cir. 1995) (internal quotation marks omitted). We
disagree. After a careful review of the record, we conclude
that Green Tree’s trial counsel adequately raised its
objections and that the District Court made a definitive and
“explicit rejection of [Green Tree’s] proposed instructions.”
Collins v. Alco Parking Corp., 448 F.3d 652, 656 (3d Cir.
2006).
7
III. Discussion
A. The FDCPA and Its General Prohibitions on
Third-Party Contacts
The FDCPA was enacted in 1977 in response to “the
abundant evidence of the use of abusive, deceptive, and unfair
debt collection practices by many debt collectors.” Lesher v.
Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 996 (3d
Cir. 2011) (internal quotation marks omitted). The purpose of
the Act is both to “eliminate abusive debt collection
practices” and to “‘insure that those debt collectors who
refrain from using abusive debt collection practices are not
competitively disadvantaged.’” Id. (quoting 15 U.S.C. §
1692(e)). As remedial legislation, the Act is construed
broadly to effectuate those purposes. Caprio v. Healthcare
Revenue Recovery Grp., LLC, 709 F.3d 142, 148 (3d Cir.
2013).
“[T]he invasion of privacy,” we recently explained, is
“a core concern animating the FDCPA.” Douglass v.
Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014);
accord 15 U.S.C. 1692(a) (stating that unfair debt collection
practices lead to, among other things, “invasions of individual
privacy”). One way Congress addressed this concern was to
“prohibit[] a debt collector from communicating with third
parties about the consumer’s debt.” Edwards v. Niagara
Credit Solutions, Inc., 584 F.3d 1350, 1353 (11th Cir. 2009)
(citing § 1692c(b)). Legislative history indicates this
prohibition was considered an “extremely important
protection.” S. Rep. 95-382, at 4 (1977), reprinted in 1977
U.S.C.C.A.N. 1695, 1699.
8
In recognition of a “debt collector’s legitimate need to
seek the whereabouts of missing debtors,” id. at 4, however,
the Act provides an exception to this general prohibition for
communications made “for the purpose of acquiring location
information about the consumer.” 15 U.S.C. § 1692b.5 In
other words, a debt collector may contact third parties to
ascertain where it may locate the consumer. That exception is
itself limited, however, as debt collectors may “not
communicate with any such person more than once . . . unless
the debt collector reasonably believes that the earlier response
of such person is erroneous or incomplete and that such
person now has correct or complete location information.”
Id. at § 1692b(3).
None of our sister Circuits has yet addressed the
question whether the consumer has the burden of disproving
this exception as part of its case-in-chief, or whether the debt
collector carries the burden of proving the exception as an
affirmative defense, and the district courts have taken
divergent approaches.6 It is to this question we now turn.
5
Other exceptions to the general prohibition on third-
party communications include prior consent by a consumer,
the express permission of a court of competent jurisdiction,
and communications reasonably necessary for a debt collector
to effectuate a post-judgment judicial remedy. 15 U.S.C. §
1692c(b).
6
Compare, e.g., Williams v. Web Equity Holdings,
LLC, No. 13-13723, 2014 WL 3845952, at *4 (E.D. Mich.
Aug. 5, 2014) (“The language of § 1692b(3) creates an
exception for debt collectors seeking to locate the debtor to
contact persons they reasonably believe have such location
9
B. Determining Burdens of Proof
We generally start our analysis with the plain text of a
statute. But where, as here, that text “is silent on the
allocation of the burden of persuasion,” we “begin with the
ordinary default rule that plaintiffs bear the risk of failing to
prove their claims.” Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49, 56 (2005). This long-standing, common-sense rule
stems from the understanding that “[t]he burdens of pleading
and proof with regard to most facts have been and should be
assigned to the plaintiff who generally seeks to change the
present state of affairs and who therefore naturally should be
expected to bear the risk of failure of proof or persuasion.” 2
McCormick On Evid. § 337 (7th ed. 2013).
information. This, in turn, imposes a pleading burden on
plaintiffs alleging a violation of this section to provide facts
to support an inference that the debt collector had no reason
to believe that the person knew the whereabouts of the debtor
or that they provided an incomplete or erroneous response.”),
with Kempa v. Cadlerock Joint Ventures, L.P., No. 10-11696,
2011 WL 761500, at *4 (E.D. Mich. Feb. 25, 2011)
(“CadleRock has not provided any evidence to show that, in
any of her messages or communications to Kempa’s parents,
Hunt stated that she was confirming or correcting Kempa’s
location information. . . . Since the FDCPA is a strict liability
act, Kempa is entitled to summary judgment with regards to
Kempa’s 15 U.S.C. § 1692c(b) claim.”), and Kasalo v.
Monco Law Offices, S.C., No. 09-2567, 2009 WL 4639720, at
*6 (N.D. Ill. Dec. 7, 2009) (“[W]e treat the exception in
Section 1692b(3) on which defendant relies as an affirmative
defense, which defendant has the burden of proving.”).
10
Green Tree essentially asks that we end our inquiry at
this point and treat the default rule as an absolute one. We
decline, for “when both a statute and its legislative history are
silent on the question” of the burden of proof, “[i]t is common
ground that no single principle or rule solves all cases by
setting forth a general test.” Schaffer, 546 U.S. at 62 (2005)
(Stevens, J., concurring) (citing Alaska Dep’t of Envtl.
Conservation v. E.P.A., 540 U.S. 461, 494 n.17).7
Beyond the ordinary default rule that a plaintiff bears
the burden of proving her claims, we glean from decisions of
the Supreme Court, this Court, and other Courts of Appeals a
7
The FDCPA’s legislative history, while not
completely silent on the subject, offers little insight into
Congress’s intent. At the beginning of the legislative process,
the House of Representatives placed the burden of proof on
the debt collector after a minimal showing by the consumer.
The House proposed a burden-shifting framework under
which, if a consumer alleged that a debt collector
inappropriately contacted a third party and pleaded that he or
she did not consent to any third-party contacts, the burden of
proof would shift to the debt collector. H. Rep. 95-131, 19
(1977). Among other changes, and without a readily apparent
explanation, the Senate did not include that subsection in its
version of the Act, S. Rep. 95-382 (1977), reprinted in 1977
U.S.C.C.A.N. 1695, which the House adopted in its entirety
by floor amendment, avoiding a conference committee, 123
Cong. Rec. 28109 (Sept. 8, 1977). Given this ambiguity, and
lacking “that veritable Rosetta Stone of legislative
archaeology, a crystal clear Committee Report,” United States
v. R.L.C., 503 U.S. 291, 309 (1992) (Scalia, J., concurring in
part), we do not accord weight to this legislative history.
11
number of factors relevant to our analysis here, including: (1)
whether the defense is framed as an exception to a statute’s
general prohibition or an element of a prima facie case; (2)
whether the statute’s general structure and scheme indicate
where the burden should fall; (3) whether a plaintiff will be
unfairly surprised by the assertion of a defense; (4) whether a
party is in particular control of information necessary to prove
or disprove the defense; and (5) other policy or fairness
considerations. We address each factor below.
1. Statutory Exceptions
The Supreme Court has instructed that while the
default rule applies to “most” disputes about burdens,
Schaffer, 546 U.S. at 57, another “general rule of statutory
construction” provides “that the burden of proving
justification or exemption under a special exception to the
prohibitions of a statute generally rests on one who claims its
benefits,” FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948);
see also Meacham v. Knolls Atomic Power Lab., 554 U.S. 84,
91 (2008) (repeating “the familiar principle that ‘[w]hen a
proviso . . . carves an exception out of the body of a statute or
contract those who set up such exception must prove it’”)
(quoting Javierre v. Cent. Altagracia, 217 U.S. 502, 508
(1910)); United States v. Taylor, 686 F.3d 182, 190 & n.5 (3d
Cir. 2012) (compiling “numerous Supreme Court decisions”
for the proposition that “where the statute contains . . . an
exception, the defendant bears the burden of proving it”).
This “longstanding convention is part of the backdrop against
which the Congress writes laws, and we respect it unless we
have compelling reasons to think that Congress meant to put
the burden of persuasion on the other side.” Meacham, 554
U.S. at 91-92.
12
Here, § 1692c(b) states that “[e]xcept as provided in
section 1692b . . . a debt collector may not communicate, in
connection with the collection of any debt, . . . [with third
parties].” 15 U.S.C. § 1692c(b). Thus, the FDCPA generally
prohibits a debt collector from contacting third parties, with
the debt collector’s ability to seek location information
framed as an exception to this general prohibition. Repeat
contacts made pursuant to that exception are even further
limited, with telltale language likewise indicative of an
affirmative defense:
Any debt collector communicating with any
person other than the consumer for the purpose
of acquiring location information about the
consumer shall . . . not communicate with any
such person more than once unless requested to
do so by such person or unless the debt
collector reasonably believes that the earlier
response of such person is erroneous or
incomplete and that such person now has
correct or complete location information[.]
15 U.S.C. § 1692b(3) (emphasis added); see United States v.
Franchi-Forlando, 838 F.2d 585, 591 (1st Cir. 1988) (Breyer,
J.) (stating that introducing provisions with the words
“unless” and “except” may indicate an affirmative defense).
Moreover, in assessing which party has the burden of
proof under this rule, courts often “focus[] on the relationship
between the defense in question and the plaintiff’s primary
case,” and “on whether a defense raises factual or legal issues
other than those put in play by the plaintiff’s cause of action.”
In re Sterten, 546 F.3d 278, 284 (3d Cir. 2008). Put
differently, as we recently held in the criminal context,
13
“[w]hether a particular statutory phrase constitutes a defense
or an element of the offense . . . turns on whether the statutory
definition is such that the crime may not be properly
described without reference to the exception.” Taylor, 686
F.3d at 191 (internal quotation marks omitted). If that is the
case, “the exception is an element of the crime”; if not, the
exception is an affirmative defense. Id.
In the case of the FDCPA, no reference to the Act’s
exceptions is necessary to discern that calls to third parties in
pursuit of collecting a consumer’s debt are prohibited.
Instead, what constitutes a violation is apparent from the plain
language of § 1692c(b). Thus, we find no compelling reason
to reverse the “longstanding convention” that a party seeking
shelter in an exception—here, the debt collector—has the
burden to prove it. Meacham, 554 U.S. at 91.
2. The Statutory Scheme
The structure of the statute, another useful indicator of
Congressional intent, also leads us to place the burden of
proof on the debt collector. See United Sav. Ass’n of Tex. v.
Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
(1988) (“A provision that may seem ambiguous in isolation is
often clarified by the remainder of the statutory scheme.”);
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 59-60 (1987) (analyzing statutory language in a
way that is in accord with the “language and structure” of the
section of law at issue).
We find persuasive in this regard that the language and
interaction of the general prohibition in § 1692c(b) and its
exception for location information in § 1692b closely track
the language and interaction of § 1692k, which imposes civil
14
liability for FDCPA violations, and its two exceptions, which
are widely recognized as affirmative defenses. See Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S.
573, 578 (2010) (citing 15 U.S.C §§ 1692k(c) and (e) for the
proposition that “[t]he Act contains two exceptions to
provisions imposing liability on debt collectors”). The first of
these is the so-called good faith error defense, which
explicitly places the burden on the debt collector to prove that
it acted unintentionally and had procedures in place to avoid
such an error. 15 U.S.C. § 1692k(c).8 The second provides a
safe harbor for a debt collector that seeks and receives legal
opinions from the Consumer Financial Protection Bureau
before they proceed. 15 U.S.C. § 1692k(e).9 Although this
second exception lacks the explicit burden-shifting language
of the first, both are delineated as affirmative defenses by §
1692k(a)’s general statement that a debt collector shall be
held liable “[e]xcept as otherwise provided by this section,”
with the particular affirmative defenses described in separate
subsections. 15 U.S.C. §§ 1692k(a), (c), (e).
8
15 U.S.C. § 1692k(c) states: “A debt collector may
not be held liable . . . if [it] shows by a preponderance of
evidence 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.”
9
15 U.S.C. § 1692k(e) states: “No provision of this
section imposing any liability shall apply to any act done or
omitted in good faith in conformity with any advisory opinion
of the [Consumer Financial Protection Bureau] . . . .”
15
The location-information exception at issue in this case
qualifies § 1692c(b)’s general prohibition against third-party
contacts in almost identical terms, providing that third-party
contacts are forbidden “[e]xcept as provided in section
1692b,” and setting off the description of the exception in that
separate section. Such placement of the exception and the
general prohibition in different parts of the statute has been
recognized by the Supreme Court as indicative of an
affirmative defense. See Meacham, 554 U.S. at 87, 91(concluding that an exception for employer conduct otherwise
prohibited by the Age Discrimination in Employment Act
constituted an affirmative defense based in part on “how the
statute reads, with exemptions laid out apart from the
prohibitions”). Thus, the statutory structure and the parallels
between the language of § 1692c(b), with its exception for
location-information in § 1692b, and § 1692k(a), with its
well-established affirmative defenses in §§ 1692k(c) and
1692k(e), strongly indicate that § 1692b also was intended to
be an affirmative defense. See Kirtsaeng v. John Wiley &
Sons, Inc., 133 S. Ct. 1351, 1362 (2013) (“[W]e normally
presume that . . . words . . . carry the same meaning when
they appear in different but related sections.”); Gwaltney, 484
U.S. at 59-60 (interpreting statute in accord with its general
language and structure).
Green Tree attempts to differentiate § 1692k on the
ground that its exceptions require a showing of subjective
intent or good faith and thus are appropriately deemed
affirmative defenses because the proof is in the possession of
the debt collector. In contrast, Green Tree argues, one of §
1692b’s subsections, the provision that allows for follow-up
calls to obtain location information if the debt collector
“reasonably believes” the third party did not originally
16
provide and now has complete or accurate information,
imports an objective test into § 1692b, such that the exception
can and should be disproven by the plaintiff.10 Green Tree’s
argument proves too much, however, for the sine qua non of
any communication that qualifies under § 1692b, whether
initial or follow up, is that the communication was “for the
purpose of” acquiring location information—a question of
subjective intent that is appropriate, even by Green Tree’s
logic, for treatment as an affirmative defense.
3. Avoiding Surprise and Undue
Prejudice
Another factor for our consideration in categorizing an
exception as an affirmative defense is the need to avoid unfair
surprise and undue prejudice. See Sterten, 546 F.3d at 285;
see also Ingraham v. United States, 808 F.2d 1075, 1079 (5th
Cir. 1987). In examining this concern, we consider, given
what a plaintiff is “already required to show” to prove its
case, whether a defendant’s failure to raise the specific issue
10
In support, Green Tree cites to the Fourth Circuit’s
unpublished, per curiam opinion in Worsham v. Accounts
Receivable Management., Inc., 497 F. App’x 274, 277 (4th
Cir. 2012). Worsham, however, did not address the burden of
proof under § 1692b but only the standard for reasonableness
under § 1692b(3), concluding “[t]he use of the word
‘reasonably’ indicates that this is an objective standard that
the debt collector must meet to avoid liability under the
FDCPA.” Id. Moreover, albeit in dictum, the court’s
reference to the objective standard as one “the debt collector
must meet,” would appear, if anything, to undermine Green
Tree’s position.
17
would otherwise “deprive[] [a plaintiff] of an opportunity to
rebut that defense or to alter her litigation strategy
accordingly.” Sterten, 546 F.3d at 285.
In Sterten, a consumer brought a case pursuant to the
Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq.,
alleging that a creditor failed to accurately disclose finance
charges in connection with a home mortgage. 546 F.3d at
281. We found no unfair surprise when a defendant,
referencing a general denial in its answer to the complaint,
later sought shelter in TILA’s “tolerances provision,” a
section of the statute that specifies the extent to which a
lender may miscalculate a finance charge before incurring
liability.11 See id. at 285-87 (examining 15 U.S.C. § 1605(f)).
In concluding there was no undue prejudice to the plaintiff-
consumer as a consequence of the defendant’s failure to raise
the tolerances provision as an affirmative defense, we
reasoned that the very same analysis that a consumer would
undertake to prove that a disclosure was inaccurate would
also reveal whether the inaccuracy fell within the tolerances
provision. Id. at 285. In other words, proving the claim
would necessarily disprove the defense, and the consumer
therefore would neither have sought different discovery nor
altered her trial strategy had the defendant affirmatively
pleaded the defense, rather than a general denial. Id.11
In Sterten, we addressed the burden of pleading
rather than the burden of proof at trial, a distinction without a
difference for purposes of today’s analysis. See Taylor v.
Sturgell, 553 U.S. 880, 907 (2008) (stating that when a party
seeks shelter in an affirmative defense it is “[o]rdinarily . . .
incumbent on the defendant to plead and prove such a
defense”).
18
The exception we consider here stands in stark
contrast. If a debt collector acknowledges that it made a
generally prohibited call, but contends it did so based on a
purpose or reasonable belief that would exempt it from
liability, a diligent consumer will need to explore the debt
collector’s knowledge and intent. Thus, a consumer faced
with the assertion that a call was made pursuant to the
FDCPA’s location-information exception would reasonably
change her discovery and trial strategy to prove that the debt
collector was not seeking location information, or, in a
follow-up call, did not have a reasonable belief that the earlier
information was incorrect and likely to be corrected.
Accordingly, considerations of unfair surprise and undue
prejudice also counsel in favor of finding that § 1692b is an
affirmative defense.
4. The Party with Peculiar Knowledge
of the Relevant Facts
Another general rule of statutory construction, “that
where the facts with regard to an issue lie peculiarly in the
knowledge of a party, that party has the burden of proving the
issue,” also indicates the burden rests with the debt collector.
Dixon v. United States, 548 U.S. 1, 9 (2006) (internal
quotation marks omitted); accord Nat’l Commc’ns Ass’n Inc.
v. AT&T Corp., 238 F.3d 124, 130 (2d Cir. 2001) (noting that
“all else being equal, the burden is better placed on the party
with easier access to relevant information”). This “ordinary
rule, based on considerations of fairness, does not place the
burden upon a litigant of establishing facts peculiarly within
the knowledge of his adversary.” Schaffer, 546 U.S. at 60(quoting United States v. N.Y., N.H. & H.R. Co., 355 U.S.
253, 256 n.5 (1957)); see also Gomez v. Toledo, 446 U.S.
635, 640-41 (1980) (holding that qualified immunity is an
19
affirmative defense to a § 1983 action in part because the
facts that might support the defense are in the possession of
the official asserting it).
Here, Green Tree has unique access to the information
at issue: its purpose for making the calls to third parties and
its basis, if any, when making follow-up calls, to reasonably
believe the third parties did not originally provide and later
had correct or complete information. Where the consumer
challenges a communication from a debt collector to the
consumer herself under the FDCPA, the consumer can be
expected to attach and offer into evidence a copy of a written
communication, see, e.g., McLaughlin v. Phelan Hallinan &
Schmieg, LLP, 756 F.3d 240, 243 (3d Cir. 2014) (examining
letter from a law firm to a consumer), or to plead and testify
about a verbal communication, see, e.g., Hoover v. Monarch
Recovery Mgmt., Inc., 888 F. Supp. 2d 589, 596 (E.D. Pa.
2012) (examining allegedly harassing telephone calls).
Where the communication is from a debt collector to a third
party, however, the consumer will have no first-hand
knowledge of the conversation, and the third party cannot
reasonably be expected to keep notes about or recall in detail
random calls to his or her home. See Lupyan v. Corinthian
Colls. Inc., 761 F.3d 314, 322 (3d Cir. 2014) (recognizing
that only the most “enterprising (or particularly compulsive)
individual” would “maintain logs of incoming”
correspondence).
This reality was laid bare when, at trial and in its
briefing before us, Green Tree was unable to adduce any
credible evidence—despite deposition testimony from
multiple call-center employees, a corporate designee’s pretrial
deposition, and two days of trial testimony with a recess for
the express purpose of allowing that same corporate designee
20
to search Green Tree’s records yet again—that Mr. Heim
originally gave incorrect or incomplete information or that the
calls made to the Heims were for the purpose of acquiring
new or updated location information about Evankavitch.12
Moreover, when questioned at argument as to how
Evankavitch would prove her claim if we were to remand and
place the burden on her, Green Tree candidly acknowledged
that her case would be difficult because Mr. Heim could not
recall significant details about the conversations. Thus, if
Green Tree’s reading of the statute were correct, the absence
of information—seemingly caused by its own lax record-
keeping—would inure to its benefit, and the only party with
any realistic ability to document the conversation would be
motivated to do the opposite. Common sense dictates against
this result.
The Federal Communications Commission’s (“FCC”)
interpretation of the Telephone Consumer Protection Act
(“TCPA”), an analogous consumer protection statute, rests
upon the same premise. The TCPA makes it unlawful “to
make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial
or prerecorded voice . . . to any telephone number assigned to
12
Nor was Green Tree able to adduce such evidence
with regard to the calls to Evankavitch’s daughter. Rather,
because Evankavitch had placed two calls to Green Tree from
Cheryl’s cellphone (albeit, in one of them, to advise Green
Tree that the number was her daughter’s and should not be
called), Green Tree urged the jury to conclude that the
repeated calls to Cheryl did not constitute third-party calls at
all.
21
a . . . cellular telephone service.” 47 U.S.C. §
227(b)(1)(A)(iii)). Put differently, the statute forbids, among
other things, autodialing a person’s cell phone, with two
exceptions: consent and emergency.
Like the FDCPA, the TCPA is silent about the burden
of proving these exceptions. However, pursuant to a
declaratory ruling by the FCC, “the creditor should be
responsible for demonstrating that the consumer provided
prior express consent,” 23 F.C.C.R. 559, 565 (Jan. 4, 2008),
and the courts generally have placed the burden to prove
these TCPA exceptions on the creditor, see Osorio v. State
Farm Bank, F.S.B., 746 F.3d 1242, 1253 (11th Cir. 2014);
Hartley-Culp v. Credit Mgmt. Co., No. 14-0282, 2014 WL
4630852, at *2 (M.D. Pa. Sept. 15, 2014); Elkins v. Medco
Health Solutions, Inc., No. 12-2141, 2014 WL 1663406, at *6
(E.D. Mo. Apr. 25, 2014). The rationale for treating these
TCPA exceptions as affirmative defenses applies as well to
the FDCPA: To the extent a caller seeks to avail itself of an
exemption to a general ban on a certain category of calls, the
caller is in the best position to generate and maintain records
of those communications.
5. Other Fairness and Policy
Considerations
The soundness of placing the burden on the debt
collector is even more compelling when considered in the
context of Congress’s concern, expressly stated in 15 U.S.C.
§ 1692(a), with the “invasions of individual privacy” of
consumers. See Nat’l Commc’ns Ass’n, 238 F.3d at 131(“[T]he policies underlying the statute at issue are
appropriately considered by courts when allocating the
burden of proof.”); Ingraham, 808 F.2d at 1079 (holding that
22
policy considerations are an appropriate factor in determining
burdens of proof).
While Mr. Heim may not have understood the precise
details of his conversations with Green Tree, he clearly
understood the subject matter to be private and sensitive—the
very type of interaction the FDCPA is intended to limit. See,
e.g., Tr. of Robert Heim, ECF No. 25-3, 9:14-17 (“If they
were [calling] from Green Tree or whatever, [they would] ask
if I would get Patty next door, I -- I wouldn’t go. I wouldn’t
bother her with something like that. It’s her own business.”);
id. at 13:6-9 (“I [kept] telling them, don’t call this house again
for a message to go next door. I said, I have my own
problems and she has hers.”). Saddling consumers with the
burden to prove the absence of the debt collector’s proper
purpose or reasonable belief, however, would mean that
consumers like Evankavitch would endure the embarrassment
of such calls to neighbors and other third parties with no
means of proving a FDCPA violation unless those third
parties took copious notes or recalled the conversations in
detail or the debt collector offered up testimony or
documentary proof of its own violation in discovery. It
would also run contrary to the tenet that “all else . . . being
equal, courts should avoid requiring a party to shoulder the
more difficult task of proving a negative.” Nat’l Commc’ns
Ass’n, 238 F.3d at 131; see also Lupyan, 761 F.3d at 322
(“The law has long recognized that such an evidentiary feat is
next to impossible.”).
In sum, allocating the burden to the consumer would
be inconsistent with the Act’s remedial purpose and our duty
to construe it broadly, see Lesher, 650 F.3d at 997, and we
23
therefore will place the burden where it belongs: on the debt
collector.13
IV. Conclusion
We started our analysis with the default rule that a
plaintiff bears the burden of proving her claim, but we end
13
Green Tree makes additional arguments, including
(1) because Congress crafted two explicit affirmative
defenses in the Act, we should not read other, implicit
defenses into it; and (2) our holding would create a burden-
shifting scheme too complex for a jury to apply. Neither is
persuasive. First, “the canon that expressing one item of a
commonly associated group or series excludes another left
unmentioned is only a guide, whose fallibility can be shown
by contrary indications that adopting a particular rule or
statute was probably not meant to signal any exclusion of its
common relatives.” United States v. Vonn, 535 U.S. 55, 65
(2002). That is, we will not assume that Congress’s explicit
apportionment of burden on a defendant in certain
circumstances implies rejection of the apportionment of
burden in other circumstances, unless we discern an
indication that Congress considered and meant to exclude the
latter. See Marx v. Gen. Revenue Corp., 133 S. Ct. 1166,
1175 (2013). We discern no such intent in the provisions of
the FDCPA at issue. Second, juries are more than capable of
evaluating basic justifications and affirmative defenses. See,
e.g., Dixon, 548 U.S. at 17 (affirming conviction where a jury
charge stated the defendant had to prove affirmative defense
of duress ); United States v. Dodd, 225 F.3d 340, 343 (3d Cir.
2000) (affirming conviction where a jury charge “placed the
burden of persuasion on the affirmative defense of
justification on the defendant”).
24
with the canon that, absent compelling reasons to the
contrary, a party seeking shelter in an exception to a statute
has the burden of proving it. We find no such compelling
reasons in this case. Accordingly, we conclude that the
District Court’s jury instructions and in limine ruling properly
placed the burden of proof on Green Tree, and we will affirm.
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