Iris Calogero v. Shows, Cali & Walsh, L.L.P., et a

Case: 19-30558 Document: 00515529958 Page: 1 Date Filed: 08/17/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2020
No. 19-30558
Lyle W. Cayce
Clerk
IRIS CALOGERO, on her own behalf and on behalf of all others similarly
situated,
Plaintiff - Appellant
v.
SHOWS, CALI & WALSH, L.L.P., a Louisiana Limited Liability Partnership;
MARY CATHERINE CALI; JOHN C. WALSH,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before WIENER, GRAVES, and WILLETT, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Appellant-Plaintiff Iris Calogero appeals from the dismissal of her Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., claim
against Shows, Cali & Walsh, L.L.P. and its partners Mary Catherine Cali and
John C. Walsh (collectively “SCW”). For the following reasons, we REVERSE
and REMAND.
I. BACKGROUND
In the aftermath of Hurricanes Katrina and Rita’s devastation to
displaced homeowners whose primary residences were either destroyed or
severely damaged, Congress appropriated billions of dollars through the
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Community Development Block Grant program (“CDBG”) of the Department
of Housing and Urban Development (“HUD”). In 2006, Louisiana applied for
CDBG funds for the Road Home Program (“Road Home”) to provide grants for
home repair and rebuilding, support affordable rental housing, and offer
housing support services. Upon HUD’s approval of the largest single housing
recovery program in the United States, the Louisiana Office of Community
Development (“OCD”) and Louisiana Recovery Authority (“LRA”) were tasked
with implementing Road Home.
Calogero resides in Slidell, Louisiana, and her home was significantly
damaged by Hurricanes Katrina and Rita. Calogero applied for a Road Home
grant used as “compensation for damages suffered [by homeowners] from the
Hurricanes.” Once approved as a Road Home recipient, Calogero entered into
an agreement 1 with the OCD and received $33,392.68 disbursed in one lump
sum. The agreement consisted of four parts—the Road Home Declaration of
Covenants Running with the Land; the Road Home Program Grant
Agreement; the Road Home Limited Subrogation/Assignment Agreement; and
the Road Home Grant Recipient Affidavit. As part of the Declaration of
Covenants, Calogero agreed to several terms, including limitations on the
transfer and sale of her property, occupancy of the Slidell property as her
primary residence for three years after the execution of the agreement,
maintenance of casualty and flood insurance, documentation demonstrating
compliance with the agreement, and a waiver disclaiming Louisiana, the
1 Calogero attached three exhibits to her complaint—four documents that
memorialized Calogero’s acceptance of Road Home grant money and program conditions;
SCW’s letter dated February 9, 2018 seeking repayment of excess funds awarded; and SCW’s
letter dated April 10, 2018 providing verification of repayment owed. “In deciding a motion
to dismiss the court may consider documents attached to or incorporated in the complaint
and matters of which judicial notice may be taken.” U.S. ex rel. Willard v. Humana Health
Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003) (citing Lovelace v. Software Spectrum Inc.,
78 F.3d 1015, 1017-18 (5th Cir. 1996)).
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United States, or any other government branch or agency’s liability for actions
relating to the grant. Under the Limited Subrogation/Assignment Agreement
and “in consideration for [her] receipt of funds under Road Home program,”
Calogero assigned to the State any recovery of funds she received from
insurance or the Federal Emergency Management Agency (“FEMA”). Calogero
also agreed to promptly pay the State any insurance or assistance payments
that would have reduced the Road Home grant amount if Calogero received
such payments prior to the receipt of the Road Home grant.
Over a decade after Calogero received the Road Home grant, Appellee
SCW sent a letter to Calogero seeking $4,598.89 as repayment for an alleged
grant overpayment per the Road Home Program Agreement. SCW identified
itself as a “debt collector” representing Louisiana and Road Home in connection
with the hurricane relief grant Calogero received. After Calogero disputed the
overpayment, SCW sent another letter providing a breakdown of the amount,
including $5,300 owed in duplicated FEMA benefits, $1,269.85 owed in
overpaid homeowner insurance proceeds, and a $1,970.96 credit due to a
recalculated insurance penalty. 2 Calogero then initiated this federal suit
against SCW in the Eastern District of Louisiana. Calogero alleged on behalf
of herself and a proposed class that SCW violated the FDCPA for its purported
use of misrepresentation, false or deceptive means, and unfair or
unconscionable means to collect a debt that cannot be legally taken. See 15
2 Specifically, the letter explained that Calogero initially reported $5,200 in FEMA
benefits but the Office of Community Development Disaster Recovery Unit later verified that
she received $10,500 in FEMA benefits for Replacement Housing and Real Property. The
letter also explained that Calogero initially reported $14,733.29 in Homeowner’s Insurance
Benefits but her homeowner’s insurance carrier confirmed that the total amount was
$16,003.14 resulting in a variance of $1,269.85. Because Calogero lacked flood insurance
coverage on the damaged property at the time of the grant closing, her initial penalty of 30%
was recalculated based on amount she should have received and resulted in a credit of
$1,970.96.
3
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U.S.C. §§ 1692e(2)(A), 1692e(5), 1692e(10), 1692f. Calogero also brought claims
individually against SCW for using deceptive means or unfair or
unconscionable means to collect or attempt to collect $4,598.89 in violation of
the FDCPA. See 15 U.S.C. §§ 1692e(10), 1692f.
SCW subsequently filed a Rule 12(b)(6) motion to dismiss for failure to
state a claim, contending that the FDCPA is inapplicable to Calogero’s claims
because the Road Home money was a form of disaster compensation and
Calogero failed to establish that the money being collected qualified as “debt”
under 15 U.S.C. § 1692a(5). The district court granted SCW’s motion and
dismissed Calogero’s FDCPA claims with prejudice after concluding that the
money owed under the Road Home Program was not a “debt” within the
meaning of the FDCPA. Calogero timely appealed.
II. STANDARD OF REVIEW
We review a district court’s order granting a motion to dismiss for failure
to state a claim de novo. Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013).
We view the well-pleaded facts in the light most favorable to the nonmoving
party. Turbomeca, S.A. v. Era Helicopters, LLC, 536 F.3d 351, 354 (5th Cir.
2008). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
III. DISCUSSION
The FDCPA was enacted in part “to eliminate abusive debt collection
practices by collectors.” 15 U.S.C. § 1692(e). Prohibited practices include
conduct designed to “harass, oppress, or abuse any person in connection with
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the collection of a debt,” 15 U.S.C. § 1692d, and the use of “false, deceptive, or
misleading representation or means in connection with the collection of any
debt,” 15 U.S.C. § 1692e.
“To state an FDCPA claim, Plaintiffs must first allege that they have
been the object of collection activity arising from ‘debt.’” Hall v. Phenix
Investigations, Inc., 642 F. App’x 402, 405 (5th Cir. 2016) (citing Douglas v.
Select Portfolio Servicing, Inc., No. 4:14-1329, 2015 WL 1064623, at *4 (S.D.
Tex. Mar. 11, 2015) (setting forth the elements of a FDCPA claim)). The
FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to
pay money arising out of a transaction in which the money, property,
insurance, or services which are the subject of the transaction are primarily
for personal, family, or household purposes, whether or not such obligation has
been reduced to judgment.” 15 U.S.C. § 1692a(5). In simpler terms, FDCPA
debts are “payment obligations of (1) a consumer arising out of (2) a transaction
in which the money, property, insurance or services at issue are (3) primarily
for personal, family or household purposes.” Agrelo v. Affinity Mgmt. Servs.,
LLC, 841 F.3d 944, 950 (11th Cir. 2016) (quoting Oppenheim v. I.C. Sys., Inc.,
627 F.3d 833, 837 (11th Cir. 2010)). The parties do not dispute that Calogero
is a consumer 3 or that Road Home provided disaster relief money for personal,
family, or household purposes. The crux of the appeal is whether Calogero’s
obligation to repay grant money “aris[es] out of a transaction” for purposes of
a “debt” under the FDCPA. 15 U.S.C. § 1692a(5).
To assist in making this determination, the Third Circuit has helpfully
“distill[ed] a three-part test to evaluate whether an obligation constitutes ‘debt’
under the FDCPA.” St. Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898
3 A “consumer” is statutorily defined as “any natural person obligated or allegedly
obligated to pay any debt.” 15 U.S.C. § 1692a(3).
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F.3d 351, 360 (3d Cir. 2018). First, we determine if the “underlying obligation
arises out of a transaction” meaning the “consensual exchange involv[es] an
affirmative request and the rendition of a service or purchase of property or
other item of value, such as a contract.” Id. (internal citations and quotations
omitted). Second, if we affirmatively answer the first question, we “next
identify what money, property, insurance, or services . . . are the subject of the
transaction, i.e., what it is that is being rendered in exchange for the monetary
payment.” Id. at 361 (internal citation and quotation omitted). Third, “we
consider the characteristics of that ‘money, property, insurance, or services’ to
ascertain whether they are ‘primarily for personal, family, or household
purposes.’” Id. (quoting 15 U.S.C. § 1692a(5)). Under the Third Circuit’s test, a
plaintiff must satisfy all three prongs of the St. Pierre test for the obligation of
repayment to constitute an FDCPA debt.
A. Whether the obligation to repay Road Home money arises out
of a “transaction”?
i. Statutory Interpretation of “Transaction”
“When interpreting a statute, we look first and foremost to its text.”
United States v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994). The term
“transaction” is not defined in the FDCPA or in any other relevant statutory
provision. See Barlow v. Safety Nat. Cas. Corp., 856 F. Supp. 2d 828, 834 (M.D.
La. 2012) (acknowledging that FDCPA cases can create close calls when the
“facts hardly constitute the quintessential consumer debt”).
Accordingly, we apply the “fundamental canon of statutory construction”
which instructs that “words generally should be interpreted as taking their
ordinary . . . meaning . . . at the time Congress enacted the statute.” New Prime
Inc. v. Oliveira, 139 S. Ct. 532, 535 (2019) (internal quotations and citations
omitted). We are prohibited from “freely invest[ing] old statutory terms with
new meanings” as it risks courts “amending legislation outside the ‘single,
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finely wrought and exhaustively considered, procedure’ the Constitution
commands.” Id. at 532 (emphasis added) (quoting I.N.S. v. Chadha, 462 U.S.
919, 951 (1983)).
When Congress passed the FDCPA in 1978, many dictionaries defined
“transaction” as an agreement, negotiation, or business dealing. See, e.g.,
Oxford English Dictionary 251 (1933) (defining “transaction” as “the
adjustment of dispute between parties by mutual concession, compromise;
hence gen, an arrangement, an agreement, a covenant”); American College
Dictionary 1285 (1970) (defining “transaction” as “an act of transacting” and
defining “transact” as “to carry through (affairs, business, etc.) to a conclusion
or settlement” or “to carry through affairs or negotiations”); Random House’s
College Dictionary 1394 (1973) (defining transaction as “an act of transacting”
and defining “transact” as “to carry on or conduct (business, negotiations,
activities, etc.) to a conclusion of a settlement”); Webster’s Third New
International Dictionary of the English Language 2425-26 (1976) (defining
“transaction” as “an adjustment or compromise in Roman or civil law of a
disputed claim effected by mutual agreement and resembling the accord and
satisfaction of the common law” or “a communicative action or activity
involving two parties or two things reciprocally affecting or influencing each
other”); Webster’s New Collegiate Dictionary 1239 (1977) (indicating that the
most common meaning 4 of the term “transaction” is “a business deal” but that
meaning is subsumed within the more general definition “an act, process, or
instance of transacting”). Black’s Law Dictionary defined “transaction” as “act
of transacting or conducting any business; negotiation, management;
proceeding that which is done” and said that the term “may involve selling,
4“[E]sp” is “used to introduce the most common meaning included in the more general
preceding definition.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 568 (2012) (quoting
12,000 Words: A Supplement to Webster's Third 15a (1986)).
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leasing, borrowing, mortgaging, or lending.” Black’s Law Dictionary 1341 (5th
ed. 1979). It further noted that the word “is a broader term than ‘contract’” and
“must therefore consist of an act or agreement, or several acts or agreements
having some connection with each other, in which more than one person is
concerned, and by which the legal relations of such persons between
themselves are altered.” Id.
We have also determined that the “ordinary meaning of the term
‘transaction’ is a broad reference to many different types of business dealings
between parties, and does not connote any specific form of payment.” Hamilton
v. United Healthcare of La., Inc., 310 F.3d 385, 392 (5th Cir. 2002) (citing one
definition of “transaction” from a 1986 version of Webster’s New World
Dictionary but interchangeably using the word “contract”); see also
Oppenheim, 627 F.3d at 837 (recognizing “the broad scope of ‘debt’ in the
FDCPA” as long as the “transaction creates an obligation to pay” (internal
citation omitted)). The consensus among circuit courts also strengthens our
view that the term “transactions” refers to business dealings best characterized
as “a consensual exchange involving an affirmative request” and “the rendition
of a service or purchase of property or other item of value.” St. Pierre, 898 F.3d
at 360 (internal citations and quotations omitted); see also Turner v. Cook, 362
F.3d 1219, 1227 (9th Cir. 2004) (limiting FDCPA’s reach “to those obligations
to pay arising from consensual transactions, where parties negotiate or
contract for consumer-related goods or services” (quoting Bass v. Stolper,
Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir. 1997)));
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 1998) (“[A]t
a minimum, a ‘transaction’ under the FDCPA must involve some kind of
business dealing or other consensual obligation . . . .”).
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ii. The Road Home Program Agreement
Turning to the facts here, the district court determined that “the precise
transaction that created the [repayment] obligation was OCD’s issuing a grant
to Calogero under the Road Home Program, a condition of which was that she
agreed to repay any overpayments.”
On appeal, SCW mischaracterizes the Road Home grant as simply an
unreciprocated donation for which Louisiana and OCD received nothing in
return for issuing hurricane disaster relief grants. That description is an
oversimplification of the thirteen-page agreement—including a declaration of
covenants, limited subrogation, and affidavit—voluntarily signed by Calogero
and OCD representatives. It is evident that there was a mutual exchange of
value that reciprocally affected and influenced both Calogero and OCD.
Through the Road Home Program, OCD provided hurricane relief money to
encourage Calogero and many homeowners to return to and reside in
Louisiana in the wake of Hurricanes Katrina and Rita. Specifically, in
exchange for the OCD grant payment of $33,392.68, Calogero agreed to several
conditions that aided Louisiana, such as occupying her property as her primary
residence for a period of three years 5; promising to not sell her property except
to a buyer who agreed to abide by the covenants; maintaining property
insurance against wind, hail, and flood damage 6; recording these covenants in
the parish records; and providing the State with evidence of her compliance
with these covenants. At the very least, the Road Home grant contract between
5 The Road Home Program Grant Agreement specifically notes that the occupancy of
property requirement is “a material consideration without which the Homeowner(s) would
have received a lesser amount under the Road Home Program. Homeowner(s) will be
required to repay the Grant in the event of a violation of this Section[.]”
6 The Road Home Declaration of Covenants included a covenant that Calogero’s
“failure to maintain flood insurance could result in repayment of the Grant” and her future
ineligibility “for federal disaster relief assistance for repair, replacement, or restoration of
damage due to flooding.”
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Calogero and Louisiana did involve a “consensual exchange”: Louisiana gave
Calogero money to repair her home, and Calogero gave Louisiana her word
that she would comply with the significant requirements set forth in the Road
Home grant agreement. St. Pierre, 898 F.3d at 360. As SCW acknowledges, the
debt at issue here—Calogero’s obligation to repay excess grant money—
specifically arises out of the Limited Subrogation/Assignment Agreement in
which Calogero assigned to the State any recovery of future funds she received
from insurance or FEMA “in consideration of [her] receipt of funds under the
Road Home Program for Hurricane Katrina/Hurricane Rita victims.”
We have previously held that a group health insurer’s contract-based
subrogation claim for reimbursement of benefits it had paid the plaintiff was a
“debt” under the FDCPA. Hamilton, 310 F.3d at 385. The consumer in
Hamilton was covered under an insurance policy that required him to
reimburse the insurer for duplicate payments received from another company
for the same coverage. Id. at 392. We found that the consumer’s obligation to
pay arose from the consumer’s purchase of insurance even though, as the
district court observed, “had [the consumer] not engaged in another
transaction wholly unrelated to his contract with United, i.e., obtaining his
own [underinsured motorist] policy through another insurer, no obligation
would exist.” Id. at 395 n.2 (quoting Hamilton v. United Healthcare of La., Inc.,
Nos. Civ. A. 01-585, 01-650, 2001 WL 812076, at *3 (E.D. La. July 16, 2001)).
It logically follows that Road Home’s subrogation claim for reimbursement
arises out of Calogero’s direct voluntary acceptance of the program’s terms,
especially when there is no unrelated, separate contract at issue here. See id.
at 395-98 (Garza, J. dissenting in part) (emphasizing that United’s subrogation
claim was too attenuated from the underlying contract or transaction).
SCW also urges us to adopt the district court’s reasoning which likened
Calogero’s obligation to repay excess relief funds to an employee’s obligation to
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repay a salary overpayment due to a unilateral accounting error. See Orenbuch
v. Leopold, Gross & Sommers, P.C., 586 F. Supp. 2d 105, 108 (E.D.N.Y. 2008)
(analyzing an FDCPA claim premised on an employer’s attempt to recollect
over $2,000 as overpaid salary to an employee); see also Arnold v. Truemper,
833 F. Supp. 678, 683 (N.D. Ill. 1993) (concluding that a bank customer’s
obligation to repay a deposit mistakenly transferred into a bank account was
not considered an FDCPA debt because there was no transaction involving an
obligation to repay and there was no source of the debt beyond an accounting
error). However, the district court overlooked a critical distinction in these
cases. Indeed, the Eleventh Circuit importantly noted that neither Arnold nor
Orenbuch involved a contract that created a specific obligation dictating the
plaintiffs’ liability in the event of any overpayment. See Oppenheim, 627 F.3d
at 838 (“Arnold and Orenbuch do not stand for the proposition that one who
improperly receives money does not incur a ‘debt’ subject to the FDCPA.
Rather, they stand for the proposition that a consumer’s obligation must arise
from a ‘transaction’ in order for the FDCPA to apply.”). In this case, Calogero’s
consent to her obligation to repay excess funds amply meets the “transaction”
test and distinguishes it from the cases of overpayment in which there was no
explicit consent to repay an erroneous deposit of money.
We of course do not read the term “transaction” in a vacuum. Reed v.
Taylor, 923 F.3d 411, 415 (5th Cir. 2019) (“[J]udges, like all readers, must be
attentive not to words standing alone but to surrounding structure and other
contextual cues that illuminate meaning.”). “Interpretation of a word or phrase
depends upon reading the whole statutory text, considering the purpose and
context of the statute, and consulting any precedents or authorities that inform
the analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). We cannot
find, nor have the parties pointed to, anything in the FDCPA statute that
excludes an obligation to repay excess Road Home funds.
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Therefore, we find that Calogero’s obligation of repayment for excess
grant money arises from a “transaction,” which encompasses consensual
agreements and negotiations like this one. See Bass, 111 F.3d at 1326 (holding
that an FDCPA transaction encompasses “consensual” exchanges “where
parties negotiate or contract for consumer-related goods or services”). Compare
Shorts v. Palmer, 155 F.R.D. 172, 175-76 (S.D. Ohio 1994) (obligation to pay
for shoplifted merchandise not a “debt” under the FDCPA because “plaintiff
has never had a contractual arrangement of any kind with any of the
defendants”), with Romea v. Heiberger & Assocs., 163 F.3d 111, 115 (2d Cir.
1998) (“Back rent by its nature is an obligation that arises only from the
tenant’s failure to pay the amounts due under the contractual lease
transaction” and the tenant’s “breach” of “its payment obligations in the
contract between the parties”). We turn to the next step of the St. Pierre
inquiry.
B. The Subject of the Road Home Transaction between Calogero
and OCD.
To identify what “money, property, insurance, or services are the subject
of the transaction,” we must ask “what is being rendered in exchange for
payment[.]” St. Pierre, 898 F.3d at 362. The district court concluded that “there
was no consumer transaction between Calogero and OCD” because “Calogero
did not give OCD money for goods or services, or vice versa” and Calogero
“would never be obligated to repay unless she broke one of the covenants or
received an overpayment.”
This is incorrect. Calogero received funds from the government in
exchange for contractual obligations, including a promise to repay excess grant
money. This exchange of government-backed funds for promises comports with
other cases in which we have assumed the FDCPA applies. See generally Peter
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v. GC Serv. L.P., 310 F.3d 344 (5th Cir. 2002) (applying the FDCPA in the
context of collecting student loan payments owed to the federal government).
SCW also maintains that the FDCPA’s reach is limited to transactions
involving the “normal creditor/debtor relationship.” However, such a narrow
reading of the FDCPA prohibitively restricts the plain meaning of
“transaction.” Hamilton, 310 F.3d at 390. If Congress had intended to limit
FDCPA’s definition of “debt” to repayments to creditors or obligations arising
out of the exchange of tangible goods, “it could have and would have drafted
the statute to demonstrate that intention.” Chance v. Dallas Cty. Hosp. Dist.,
176 F.3d 294, 296 (5th Cir. 1999); see also Brown v. Budget Rent-A-Car Sys.,
Inc., 119 F.3d 922, 924 (11th Cir. 1997) (An “extension of credit is not a
prerequisite to the existence of a debt covered by the FDCPA”); Romea, 163
F.3d at 114 n.4 (noting that several circuits have “disavowed” the “dicta” that
the FDCPA applies only to transactions involving the “offer or extension of
credit”). The principles of statutory interpretation prohibit us from reading
into the FDCPA’s clear statutory language a restriction that Congress itself
did not include. See Hubbard v. United States, 514 U.S. 695, 703 (1995).
Accordingly, we find that Calogero “voluntarily elect[ed] to avail h[er]self” of
disaster relief money in exchange for her consent to Road Home’s covenants
and subrogation agreements. St. Pierre, 898 F.3d at 362 (quoting Piper v.
Portnoff Law Assocs., Ltd., 396 F.3d 227, 233 n.8 (3d Cir. 2005)). Such an
arrangement falls within “a classic pro tanto exchange.” Id.
C. Whether the grant money from the Road Home Program
Agreement was “primarily for personal, family, or household
purposes”?
Having identified what Calogero rendered in exchange for the grant
money, we next determine if the money Calogero received in exchange for
compliance with Road Home’s terms was for the private benefit of a “personal,
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family, or household” service or good. St. Pierre, 898 F.3d at 363 (citing 15
U.S.C. § 1692a(5)). As discussed earlier, the parties do not dispute this prong
of the St. Pierre test. The Road Home Program was established to provide
grants for home repair and rebuilding, support affordable rental housing, and
offer housing support services. The Road Home Program’s Declaration of
Covenants also states that property owners, like Calogero, have “been awarded
the Grant as compensation for damages suffered from the Hurricanes.”
In sum, we hold that the district court erred in concluding that
Calogero’s obligation to pay the Road Home Program did not fall under the
FDCPA. We make no comment on whether Calogero’s claim will satisfy the
other required elements to ultimately prevail on her FDCPA claim as those
issues were not under consideration of this appeal. 7
IV. CONCLUSION
For these reasons, we REVERSE the district court’s determination that
the obligation of repayment at issue in this case does not qualify as a “debt”
under the FDCPA and REMAND for further proceedings consistent with this
opinion.
7 SCW also offers two alternative arguments in support of the district court’s Rule
12(b)(6) dismissal of Calogero’s complaint. SCW maintains that (1) their alleged conduct and
communications to Calogero did not violate the FDCPA and (2) that OCD is not a “federal
agency” making Calogero’s claims subject to Louisiana’s ten-year prescriptive period and
thus not a collection of a “time-barred debt.” We have “authority to consider grounds
presented to but not ruled upon by the district court[.]” Bogy v. Ford Motor Co., 538 F.3d 352,
355 (5th Cir. 2008). But we decline further appellate review as the resolution of these issues
is tied to factual determinations that extend beyond the complaint’s allegations (i.e. the
development of the Road Home Program, the federal government’s involvement, and specific
actions SCW used in attempting to collect the debt). See id. (ruling that the district court
would benefit from further evidentiary presentation on unaddressed issues). Accordingly, we
will remand these alternative grounds of dismissal to the district court for further
consideration.
14