Ricardo Gomez v. Cavalry Portfolio Services, L

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1737
RICARDO A. GOMEZ and DEBORA GOMEZ,
Plaintiffs-Appellants,
v.
CAVALRY PORTFOLIO SERVICES, LLC, and CAVALRY SPV I,
LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14-cv-09420 — Andrea R. Wood, Judge.
____________________
ARGUED DECEMBER 12, 2019 — DECIDED JUNE 19, 2020
____________________
Before BAUER, EASTERBROOK, and ST. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. In 2009 Ricardo and Debora
Gomez stopped paying their debt on a credit card issued by
Bank of America. Later that year the Bank concluded that
collection was unlikely and treated the account as a bad
debt; it stopped sending monthly statements. But it did not
tell the Gomezes that they no longer owed the money. In
2 No. 19-1737
2011 it sold the debt to Cavalry SPV, which used Cavalry
Portfolio Services (Cavalry) to collect. In January 2013 Caval-
ry sent a le^er seeking payment of about $5,800, of which
roughly $1,600 was interest for months after the Bank gave
up billing the Gomezes. It sent another le^er in March 2013
seeking $6,200.
A lawyer for the Gomezes asked Cavalry to verify the
debt. In March 2014 the lawyer received this reply:
Per your request, please find enclosed the verification of your
client’s debt. Your account is now subject to resumption of col-
lection efforts. You may contact us at [phone number] from
[time] Monday through Friday.
This le^er added that the balance due was $6,320.13. It did
not explain how much of this was interest, but since the orig-
inal unpaid debt was only $3,226.35, the le^er effectively
claimed an entitlement to more than $3,000 in interest, in-
cluding the $1,600 that Cavalry believes had accrued before
the Bank sold the account.
Eight months later the Gomezes filed this suit under the
Fair Debt Collection Practices Act (FDCPA). They contended
that, by demanding interest during the months between the
Bank’s decision to write off the debt and its sale, Cavalry
violated 15 U.S.C. §1692e, which prohibits “any false, decep-
tive, or misleading representation … in connection with the
collection of any debt.” Section 1692e(2) adds that this
phrase includes a “false representation of … the character,
amount, or legal status of any debt”. The district court con-
cluded that the Bank had waived interest during the months
after the charge-off—despite a non-waiver clause in the con-
tract—by not sending monthly statements. For this conclu-
sion the judge relied on 12 C.F.R. §1026.5(b)(2), which re-
No. 19-1737 3
quires banks to send periodic statements during any time
when interest or fees are charged to the accounts. But the
judge dismissed the suit as untimely. 2018 U.S. Dist. LEXIS
163575 (N.D. Ill. Sept. 24, 2018). The period of limitations is
one year, 15 U.S.C. §1692k(d), and the two dunning le^ers
had been sent more than a year before suit began. The verifi-
cation le^er came within a year before the suit, but the judge
thought the le^er factual and unproblematic.
Plaintiffs presented several legal theories and claims that
the district judge did not mention. The decision is nonethe-
less final. The court entered a take-nothing judgment in de-
fendants’ favor. The district judge’s omissions could have
been bases of appeal (though they aren’t) but do not prevent
appeal.
Subject-ma^er jurisdiction is another potential problem.
The complaint does not identify a concrete harm that any of
the three le^ers caused, which makes standing to sue doubt-
ful. See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016);
Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329 (7th
Cir. 2019). We recognize, however, that some decisions of
this and other appellate courts have found, or assumed, that
standing exists when the dunning le^er allegedly violates
§1692e. See Barnes v. Advanced Call Center Technologies, LLC,
493 F.3d 838 (7th Cir. 2007); Tourgeman v. Collins Financial
Services, Inc., 755 F.3d 1109, 1116 (9th Cir. 2014); Boucher v.
Finance System of Green Bay, Inc., 880 F.3d 362 (7th Cir. 2018).
Cavalry does not ask us to revisit that subject, so we shall
take circuit law as we found it, without inquiring whether
our older cases are consistent with Spokeo and Casillas.
The suit is timely with respect to the third le^er. Plaintiffs
contend that the amount stated in this le^er is “false” within
4 No. 19-1737
the statute’s meaning. That Cavalry sent earlier le^ers that
also demanded $1,600 in interest for time between the write-
off and the Bank’s sale of the debt to Cavalry is neither here
nor there. Each violation of a federal statute carries its own
period of limitations. See National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002). The third le^er was not an inevi-
table consequence of the first two. Cf. LedbeIer v. Goodyear
Tire & Rubber Co., 550 U.S. 618 (2007). It was a stand-alone
response to a demand for verification, and it could have
omi^ed or recalculated the amount claimed.
Consider a hypothetical from the law of torts. If Perkins
alleges that a postal truck negligently dented her car in Jan-
uary 2018, again in January 2019, and a third time in January
2020, a claim and suit about the third dent under the Federal
Tort Claims Act, which has a two-year period of limitations,
28 U.S.C. §2401(b), could be filed any time before the end of
2021. Each tort would be a distinct claim with its own period
of limitations. A negligent driver could not acquire immuni-
ty by waiting, before transgressing again, until the time to
sue on an earlier wrong had expired. Just so with le^ers said
to violate the Fair Debt Collection Practices Act. Cf. Rotkiske
v. Klemm, 140 S. Ct. 355 (2019) (time to sue under the Act be-
gins on the date of each violation, rather than at some differ-
ent time determined by principles of equity).
But we do not think that the third le^er violates the stat-
ute. Plaintiffs’ contention that it is “false” or “misleading” to
seek any amount greater than a court eventually finds to be
due lacks support in the statute, when we use the word
“false” as people commonly use it. We can see how it could
be “false” to seek payment on a debt that cannot be collected
at all. That’s the basis for our holding in Pantoja v. Portfolio
No. 19-1737 5
Recovery Associates, LLC, 852 F.3d 679 (7th Cir. 2017), that the
statute forbids a debt collector to send dunning le^ers when
the debt collector knows that a court would be sure to reject
the claim, because the statute of limitations on collection had
expired. (Pantoja reserves the question whether it is proper
to send such a le^er if the sender adds that the debt is unen-
forceable but asks the debtor to pay on moral rather than le-
gal grounds.) Yet the sort of claim that Cavalry presented is
not one that any careful debt collector would know to be un-
enforceable.
The Gomezes promised to pay interest, and Cavalry’s
computer used the correct rate. The contract provided that
the Bank’s inaction or silence would not waive any of its
rights. The Bank’s failure to send monthly statements, cou-
pled with 12 C.F.R. §1026.5(b)(2), might block the collection
of interest for the months before the debt was sold—but per-
haps the right way to enforce §1026.5(b)(2) is to impose ad-
ministrative penalties rather than deem contractual interest
to be forfeited. That was (and remains) a topic for litigation.
A demand for payment cannot be called “false” just be-
cause, several years later, a judge disagrees with a legal ar-
gument supporting the debt collector’s calculation of how
much is due. A statement is false, or not, when made; there
is no falsity by hindsight. All of the decisions in this circuit
in which a le^er was deemed to have falsely stated the
amount of the debt dealt with errors known or readily
knowable when the le^er was sent. See, e.g., Seeger v. AFNI,
Inc., 548 F.3d 1107, 1111–13 (7th Cir. 2008) (unauthorized col-
lection fee); Shula v. Lawent, 359 F.3d 489 (7th Cir. 2004)
(a^empt to collect court costs when none had been allowed
by a court).
6 No. 19-1737
In a post-argument submission, plaintiffs concede that
developments after a le^er has been sent do not render it
false. Still, relying on Fields v. Wilber Law Firm, P.C., 383 F.3d
562, 565 (7th Cir. 2004), they contend that a debt collector
must openly state the legal position behind its calculation, if
it wants to avoid having a le^er tagged as misleading or
worse. We need not decide whether this reading of Fields is
correct because plaintiffs’ position encounters a further
problem: Cavalry sent the third le^er to a lawyer, not to a
potentially credulous debtor.
Bravo v. Midland Credit Management, Inc., 812 F.3d 599, 603
(7th Cir. 2016), concludes that the right question under
§1692e for a le^er to counsel is whether it would deceive or
mislead a competent a^orney. Bravo cited many other deci-
sions in this circuit, dating back to Turner v. J.V.D.B. & Asso-
ciates, Inc., 330 F.3d 991, 995 (7th Cir. 2003). Lawyers often
receive and critically evaluate demands against their clients.
They have the resources to determine for themselves wheth-
er those demands are valid. If the plaintiffs’ lawyer doubted
the propriety of the figure mentioned in the verification
le^er, he could have followed up with Cavalry or advised
his clients not to pay the $1,600, which the first two le^ers
showed had been included. Cavalry did not need to explain
to a lawyer something that the first two le^ers revealed, and
it certainly did not need to provide a disquisition on the
non-waiver clause in the contract or Cavalry’s take on 12
C.F.R. §1026.5(b)(2). Verification of a debt is supposed to be a
simple process, not an occasion for a legal brief.
Several circuits agree with Bravo and its predecessors
about how §1692e applies to correspondence between debt
collectors and debtors’ lawyers. See, e.g., Kropelnicki v. Siegel,
No. 19-1737 7
290 F.3d 118, 128 (2d Cir. 2002); Powers v. Credit Management
Services, Inc., 776 F.3d 567, 573–75 (8th Cir. 2015); Dikeman v.
National Educators, Inc., 81 F.3d 949, 953–54 (10th Cir. 1996).
Others see ma^ers differently. See, e.g., Simon v. FIA Card
Services, N.A., 732 F.3d 259, 269–70 (3d Cir. 2013); Bishop v.
Ross Earle & Bonan, P.A., 817 F.3d 1268, 1277 (11th Cir. 2016).
Plaintiffs have not asked us to abandon the standard of Bravo
and its predecessors, and we are not disposed to jump from
one side of a circuit conflict to the other without a powerful
argument based on the statute’s language.
The third le^er would not have misled a competent law-
yer, who also would not deem “false” a demand by a poten-
tial opponent in litigation just because counsel believes that
his client may be able to persuade a judge that there is a de-
fense.
Plaintiffs advance an argument for declaratory and in-
junctive relief, which they say is not under the federal stat-
ute—but they do not develop a substantive argument under
any other body of law. This means that the judgment dis-
missing the suit must be
AFFIRMED.