Victor Gulley v. Markoff & Krasny

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2104
V ICTOR G ULLEY,
Plaintiff-Appellant,
v.
M ARKOFF & K RASNY,
an Illinois Partnership,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 1807—Robert W. Gettleman, Judge.
S UBMITTED D ECEMBER 8, 2011 Œ —D ECIDED D ECEMBER 22, 2011
Before F LAUM, K ANNE, and SYKES, Circuit Judges.
P ER C URIAM . Victor Gulley appeals the dismissal of his
lawsuit against Markoff & Krasny, a debt-collection law
Œ
After examining the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See F ED . R. A PP .
P. 34(a)(2)(C).
2 No. 11-2104
firm, for alleged violations of the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692-1692p, which protects
consumers against harassment and unfair collection
methods. Because we agree with the district court that
the alleged debts at issue in this case are not “debts” as
defined by the FDCPA, id. § 1692a(5), we affirm the
judgment.
In his amended complaint, Gulley explains that in 2008
the City of Chicago levied against him four separate
fines arising from a parcel of real estate that he no longer
owned. When he did not pay those fines, the City
retained Markoff & Krasny to collect. Gulley asserts that
he is a “consumer” under the FDCPA, see 15 U.S.C.
§ 1692a(3), and that Markoff & Krasny, in trying to
collect the unpaid fines, violated the statute by misrepre-
senting the total amount he owed, failing to validate
the alleged debts as requested, communicating with him
after being told to stop, and generally harassing him, see
id. §§ 1692c-g. Markoff & Krasny moved to dismiss
the amended complaint on the ground that it fails to
state a claim. See F ED. R. C IV. P. 12(b)(6). The law firm
argued primarily that, under the FDCPA, Gulley is not a
“consumer” and the unpaid fines the firm was trying to
collect are not “debts.” See 15 U.S.C. § 1692a(3), (5).
The district court agreed with Markoff & Krasny that
fines are not “debts” covered by the FDCPA. For
purposes of the statute, a “debt” can arise only from a
“transaction in which money, property, insurance, or
services which are the subject of the transaction are
primarily for personal, family, or household purposes.”
No. 11-2104 3
15 U.S.C. § 1692a(5). The amounts Gulley owed, the
court noted, were for nonconsensual fines attributable
to violations of the Chicago Municipal Code. The court
reasoned that a fine is a penalty imposed for breaking the
law—not the result of a consensual transaction—so, under
the plain wording of the FDCPA, Gulley’s amended
complaint fails to state a claim.
On appeal Gulley argues that the district court erred
by failing to analyze whether Markoff & Krasny
complied with § 1692g, which concerns the method by
which debt collectors must validate disputed debts. But
Gulley does not challenge the court’s conclusion that
the municipal fines at issue are not “debts” under the
FDCPA. And if the law firm did not try to collect a “debt,”
then its collection activity could not have violated § 1692g
or any other provision of the FDCPA.
Our analysis of the FDCPA must begin with the text
of the statute, McMillan v. Collection Prof’ls, Inc., 455 F.3d
754, 762 (7th Cir. 2006). The text, as we read § 1692a(5),
defines “debt” in a manner that necessarily excludes
fines from coverage. Our reading is shared by the
Federal Trade Commission, which “holds some inter-
pretative and enforcement authority with respect to the
FDCPA,” Carter v. AMC, LLC, 645 F.3d 840, 843 (7th Cir.
2011). See 15 U.S.C. §§ 1692k(e), 1692l, 1692o. That agency
has interpreted the FDCPA to exclude fines from the
definition of “debt.” See Statements of General Policy or
Interpretation Staff Commentary on the Fair Debt Collection
Practices Act, 53 F ED. R EG. 50,097, 50,102 (Dec. 13, 1988).
The agency’s commentary “is based primarily on issues
4 No. 11-2104
discussed in informal staff letters responding to public
requests for interpretations and on the Commission’s
enforcement program,” id. at 50,101, and does not receive
Chevron deference, see United States v. Mead Corp., 553
U.S. 218, 234 (2001). But the commentary is entitled to
“respectful consideration.” Carter, 645 F.3d at 844.
Apparently the question whether fines are “debts”
under the FDCPA has never arisen in a court of appeals
(at least not in a precedential decision). Yet that issue
has come up frequently in the district courts, which have
concluded uniformly that a fine does not stem from a
consensual transaction and thus is not a debt under
the FDCPA. See Reid v. Am. Traffic Solutions, Inc.,
Nos. 10-cv-204-JPG-DGW & 10-cv-269-JPG, 2010 WL
5289108, at *4-5 (S.D. Ill. Dec. 20, 2010) (concluding that
fines for traffic violations are not debts under FDCPA);
Mills v. City of Springfield, Mo., No. 2:10-CV-04036-NKL,
2010 WL 3526208, at *15-16 (W.D. Mo. Sept. 3, 2010) (same);
Durso v. Summer Brook Preserve Homeowners Ass’n, 641 F.
Supp. 2d 1256, 1264-65 (M.D. Fla. 2008) (concluding that
fines assessed against homeowner by homeowners associa-
tion did not create debts under FDCPA); Shannon v. ACS
State & Local Solutions, Inc., No. 08-594(DSD/SRN), 2008 WL
2277814, at *1 (D. Minn. May 30, 2008) (holding that fines
levied by county for parking violation and failure to
register vehicle did not meet criteria for FDCPA debts);
Williams v. Redflex Traffic Sys., Inc., No. 3:06-cv-400, 2008
WL 782540, at *5 (E.D. Tenn. Mar. 20, 2008) (holding that
unpaid traffic fine is not debt under FDCPA), aff’d on other
grounds, 582 F.3d 617 (6th Cir. 2009); Yon v. Alliance One
Receivables Mgmt., Inc., No. 07-61362-Civ, 2007 WL 4287628,
No. 11-2104 5
at *1 (S.D. Fla. Dec. 5, 2007) (same); Harper v. Collection
Bureau of Walla Walla, Inc., No. C06-1605-JCC, 2007 WL
4287293, at *7 (W.D. Wash. Dec. 4, 2007) (same); Graham v.
ACS State & Local Solutions, Inc., No. 0:06-cv-2708-JNE/JJG,
2006 WL 2911780, at *2 (D. Minn. Oct. 10, 2006) (concluding
that unpaid parking tickets do not qualify as debts
under FDCPA); Riebe v. Juergensmeyer & Assocs., 979
F. Supp. 1218, 1221-22 (N.D. Ill. 1997) (concluding that
unpaid fine imposed for overdue library book is not
debt under FDCPA). We agree with these decisions and,
as did the district court, conclude that the municipal
fines levied against Gulley cannot reasonably be under-
stood as “debts” arising from consensual consumer
transactions for goods and services. Accordingly, the
allegations in his amended complaint state no claim
under the FDCPA and were properly dismissed under
Rule 12(b)(6).
A FFIRMED.
12-22-11