Steven Demarais v. Gurstel Chargo, P.A.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3173
___________________________
Steven Demarais
lllllllllllllllllllll Plaintiff - Appellant
v.
Gurstel Chargo, P.A.; RAzOR Capital, LLC
lllllllllllllllllllll Defendants - Appellees
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DBA International, Inc.
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 8, 2017
Filed: August 29, 2017
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Before BENTON, BEAM, and MURPHY, Circuit Judges.
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BENTON, Circuit Judge.
Steven Demarais alleges Gurstel Chargo, P.A., violated the Fair Debt
Collection Practices Act (FDCPA) while collecting a consumer debt owned by
RAzOR Capital, LLC. The district court dismissed Demarais’s complaint. Having
jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.
I.
This court considers the facts alleged by Demarais. He incurred debt to
Citibank, N.A. No later than 2010, Citibank charged off the debt. Following the
charge off, no one sent him statements showing the accumulation of interest.
In June 2014, RAzOR—represented by law firm Gurstel Chargo—sued
Demarais in a Minnesota state court. RAzOR, claiming to be the successor in interest
to Citibank, said Demarais owed it $20,591.11 plus $5,030.21 in interest. According
to Demarais, RAzOR sought post-charge-off interest that it had no right to collect.
Demarais did not timely answer RAzOR’s state-court complaint. Gurstel
Chargo did not move for default judgment. It instead allowed the court to set the case
for an October 5, 2015, trial. When alleged debtors do not file answers, Gurstel
Chargo often allows the cases to be set for trial rather than moving for default
judgments. On the trial date, Gurstel Chargo appears without any client
representatives, witnesses, or other evidence. Gurstel Chargo does this, Demarais
says, to avoid a Minnesota statute about default judgments on consumer debts, Minn.
Stat. § 548.101. Rather than seeking default judgments, Gurstel Chargo seeks
judgments based on non-appearance at trial. If a consumer appears for trial, Gurstel
Chargo either requests a continuance or dismisses the suit.
On October 5, Gurstel Chargo appeared for Demarais’s scheduled trial and
about 17 other consumer-debt trials. Gurstel Chargo had no client representative,
witnesses, or other evidence. Demarais claims Gurstel Chargo assumed he would not
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appear for trial, and its appearance for trial was an attempt to collect the post-charge-
off interest. But Demarais did appear, with an attorney, prepared for trial. Gurstel
Chargo asked for a continuance. The court reset the trial for January 4, 2016.
Demarais then served discovery requests on RAzOR. RAzOR did not timely
respond. Demarais’s attorney asked Gurstel Chargo about the responses. It asked for
an extension, and Demarais’s attorney agreed. Gurstel Chargo never responded to the
discovery requests.
On January 4, Demarais appeared with his attorney, prepared for trial. Gurstel
Chargo appeared, but was not prepared—again, no client representatives, no
witnesses, and no evidence. Gurstel Chargo dismissed RAzOR’s case against
Demarais with prejudice. Gurstel Chargo also appeared for plaintiffs in two other
trials that day. In one, it sought a judgment against the consumer-defendant based
upon non-appearance at trial.
Demarais provides case numbers for six other cases where he alleges Gurstel
Chargo obtained or is obtaining judgments despite appearing without the ability to
introduce evidence. He also provides case numbers for seven cases where he alleges
Gurstel Chargo appeared without supporting documentation and, when the court
asked for it, requested a continuance and then ignored the case.
On January 22, 2016—eighteen days after dismissal—Gurstel Chargo served
Demarais with interrogatories and document-and-admission requests bearing the
caption and number of the dismissed case. The letter said it was a communication
“from a debt collector and is an attempt to collect a debt.” It said he was required to
provide responses within 30 days. This was false, Demarais says, because the claim
had been dismissed.
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On February 5, 2016, Demarais sued Gurstel Chargo and RAzOR in federal
district court, claiming they violated the FDCPA. (This court refers to the parties
collectively as “Gurstel Chargo.”) He alleged they violated 15 U.S.C. §§ 1692e and
1692f by falsely representing the amount of debt, falsely threatening to take action,
using unfair means to attempt to collect debt, and attempting to collect debts not
owed. Gurstel Chargo moved to dismiss. The district court dismissed, concluding
any violation at the October 5 hearing was barred by the statute of limitations, Gurstel
Chargo’s statements in court were “permissible litigation tactics and not actionable
false assertions,” and the January 22 letter was not likely to deceive anyone.
Demarais appeals.
II.
Gurstel Chargo argues, for the first time on appeal, that Demarais lacks
standing because he has not alleged he suffered a concrete injury in fact. To have
standing, a “plaintiff must have . . . suffered an injury in fact.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). “To establish injury in fact, a plaintiff must
show that he or she suffered an invasion of a legally protected interest that is concrete
and particularized and actual or imminent, not conjectural or hypothetical.” Id. at
1548 (internal quotation marks omitted). “A ‘concrete’ injury must be ‘de facto’; that
is, it must actually exist.” Id. Both tangible and intangible injuries can be concrete.
Id. at 1549. At the motion to dismiss stage, “the standing inquiry must . . . be done
in light of the factual allegations of the pleadings.” City of Clarkson Valley v.
Mineta, 495 F.3d 567, 570 (8th Cir. 2007), citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992).
Demarais says Gurstel Chargo’s actions caused concrete injuries: (A) its
January 22 letter—an attempt to collect a debt not owed in violation of § 1692f(1);
and (B) its October 5 appearance and continuance request—an attempt to collect debt
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not owed in violation of §§ 1692f(1) and 1692e(2), and an improper threat to take an
action that it could not and did not intend to take in violation of § 1692e(5).
A.
Demarais does not allege any tangible harms from the January 22 letter. He
alleges only that Gurstel Chargo sent him a letter stating it was “an attempt to collect
a debt” and serving him with interrogatories, requests for production of documents,
and requests for admissions. The discovery requests had the caption and number of
the dismissed state case and said he was “required” to respond within 30 days.
According to Demarais, this conduct violated § 1692f(1) because it was an attempt
to collect a debt that was extinguished after Gurstel Chargo dismissed its state-court
complaint with prejudice. See Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 583
(Minn. 2010) (“Consequently, the judgment of dismissal with prejudice and on the
merits was an adjudication that extinguished and discharged the right of the Dykes
to bring claims against Superior in a subsequent lawsuit . . . .”). See also Daewoo
Elecs. Corp. of Am. v. W. Auto Supply Co., 975 F.2d 474, 478 (8th Cir. 1992) (“The
dismissal extinguished Daewoo’s underlying claim.”). A debt collector violates
§ 1692f(1) when it sends a letter attempting to collect money not permitted by law.
Duffy v. Landberg, 215 F.3d 871, 875 (8th Cir. 2000).
“[A] plaintiff [does not] automatically satisf[y] the injury-in-fact requirement
whenever a statute grants a person a statutory right and purports to authorize that
person to sue to vindicate that right.” Spokeo, 136 S. Ct. at 1549. The violation of
the statute must cause a concrete injury. That concrete injury can be “the risk of real
harm.” Id. Where “the violation of a procedural right granted by statute” creates the
risk of real harm, a plaintiff “need not allege any additional harm beyond the one
Congress has identified.” Id.
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With § 1692f(1), Congress identified a harm—being subjected to attempts to
collect debts not owed. This “alleged intangible harm has a close relationship to a
harm that has traditionally been regarded as providing a basis for a lawsuit in English
or American courts.” Id. It is similar to the harm suffered by victims of the common-
law torts of malicious prosecution, wrongful use of civil proceedings, and abuse of
process. See, e.g., Bertero v. Nat’l Gen. Corp., 529 P.2d 608, 614 (Cal. 1974) (in
bank) (“The individual is harmed because he is compelled to defend against a
fabricated claim which not only subjects him to the panoply of psychological
pressures most civil defendants suffer, but also to the additional stress of attempting
to resist a suit commenced out of spite or ill will, often magnified by slanderous
allegations in the pleadings.”); Carter v. Oster, 112 S.W. 995, 999 (Mo. App. 1908)
(“But there are torts of which mental distress is the proximate and natural result, and
for which damages may be assessed. Such are malicious prosecutions . . . .”); Baglini
v. Lauletta, 768 A.2d 825, 839 (N.J. Super. Ct. App. Div. 2001) (“Courts have
required little or no proof with regard to intangible damages for malicious use of
process, apparently in the belief that a ‘normal person’ subjected to wrongful
litigation would have suffered at least some damages.”). See also Restatement
(Second) of Torts §§ 674, 681 (June 2017 update); Dan B. Dobbs et al., The Law
of Torts § 593 (2d ed. June 2017 update) (“According to most counts, a majority of
American courts allow the plaintiff to pursue the wrongful civil litigation claim
without showing any special kind of injury.”). The harm of being subjected to
baseless legal claims, creating the risk of mental distress, provides the basis for both
§ 1692f(1) claims and the common-law unjustifiable-litigation torts.
Congress recognized that abusive debt collection practices contribute to harms
that can flow from mental distress, like “marital instability” and “the loss of jobs.”
§ 1692(a). “[B]ecause Congress is well positioned to identify intangible harms that
meet minimum Article III requirements, its judgment is . . . instructive and
important.” Spokeo, 136 S. Ct. at 1549. Congress created a statutory right to be free
from attempts to collect debts not owed, helping to guard against identified harms.
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This is not a situation where “[i]t is difficult to imagine how” the violation of a
statutory right alone could cause concrete harm. See Spokeo, 136 S. Ct. at 1550
(“dissemination of an incorrect zip code”); Braitberg v. Charter Commc’ns, Inc.,
836 F.3d 925, 930 (8th Cir. 2016) (“the retention of information lawfully obtained,
without further disclosure”). Demarais alleges Gurstel Chargo served him with
discovery requests on an extinguished debt, falsely told him he had to respond to
them, and told him it was attempting to collect a debt. These violations, directed at
Demarais and tending to cause reasonable people mental distress, create the risk of
real, concrete harms. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 183 (2000) (diminishment of aesthetic value of river is an injury
in fact); FEC v. Akins, 524 U.S. 11, 21 (1998) (denial of information that would help
plaintiffs evaluate candidates is a “concrete” injury); Havens Realty Corp. v.
Coleman, 455 U.S. 363, 374 (1982) (receipt of false housing information is an injury
in fact). The alleged violations of Demarais’s § 1692f(1) rights were concrete injuries
in fact.
Gurstel Chargo says Demarais can prove no concrete injury from the January
22 letter because Demarais’s counsel stipulated that the discovery requests were sent
“directly” to counsel. Assuming without deciding that this court can consider an
outside-the-pleadings stipulation at the motion-to-dismiss stage, the stipulation does
not destroy standing. Gurstel Chargo served the discovery requests on Demarais by
sending them to his counsel. See Minn. R. Civ. P. 5.02(a) (“Whenever under these
rules service is required or permitted to be made upon a party represented by an
attorney, the service shall be made upon the attorney unless service upon the party is
ordered by the court.”). Representations made to a consumer’s attorney “routinely
come to the consumer’s attention and may affect his or her defense of a collection
claim”—even if not “made ‘directly’ to the consumer debtor.” Hemmingsen v.
Messerli & Kramer, P.A., 674 F.3d 814, 818 (8th Cir. 2012). In light of the
similarities between Demarais’s alleged harm and traditionally recognized harms, and
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Congress’s judgment that attempts to collect debts not owed cause real injuries,
Demarais alleges the January 22 letter caused him a concrete injury in fact.
B.
Demarais alleges tangible harm from Gurstel Chargo’s October 5 appearance
and continuance request. Demarais alleges that Gurstel Chargo threatened to proceed
to trial to win a judgment for money he does not owe. In response to the threat,
Demarais obtained counsel, served discovery requests, prepared for trial, and
appeared at trial. Gurstel Chargo caused these actions because, had Demarais not
acted, it would have been able to obtain judgment for interest he did not owe.
Demarais alleges a concrete injury in fact. “For standing purposes, a loss of
even a small amount of money is ordinarily an ‘injury.’” Czyzewski v. Jevic Holding
Corp., 137 S. Ct. 973, 983 (2017). He alleges that Gurstel Chargo’s actions caused
him to obtain an attorney and serve discovery requests, which ordinarily cost money.
See Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 576 (D.C. Cir.
2003) (“the funds necessarily expended to defend against the wrongful legal
proceedings” can be “damages for ‘loss of property’”). He also alleges spending time
defending against the meritless suit, itself an injury. See Remijas v. Neiman Marcus
Grp., LLC, 794 F.3d 688, 692 (7th Cir. 2015) (individuals alleging fraudulent credit-
card charges suffered Article III injury—“the aggravation and loss of value of the
time needed to set things straight”). See also Wells v. Willow Lake Estates, Inc., 390
Fed. Appx. 956, 959 (11th Cir. 2010) (being “forced to spend time and money
complying with [selectively-enforced] regulations . . . is an injury in fact.”); Sisley v.
Sprint Commc’ns Co., L.P., 284 Fed. Appx. 463, 466 (9th Cir. 2008) (“We have
recognized, at least in certain circumstances, that lost time and income spent dealing
with wrongful conduct can constitute a cognizable injury in fact.”).
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Demarais also alleges Gurstel Chargo’s October 5 conduct violated his
§§ 1692f(1), 1692e(2), and 1692e(5) rights. As discussed, Gurstel Chargo’s alleged
invasion of Demarais’s § 1692f(1) rights is a concrete injury in fact. The same is true
of the alleged invasions of his § 1692e(2) and (5) rights. Gurstel Chargo’s alleged
false representation in court pleadings of the amount of Demarais’s debt and its false
threat to proceed to trial create the same risks of mental distress traditionally
recognized in unjustifiable-litigation torts and that Congress judged sufficient for
standing to sue. Demarais has alleged concrete injuries in fact and has standing to sue
Gurstel Chargo.
III.
An action brought under the FDCPA must be brought “within one year from
the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The district court
concluded this statute of limitations barred Demarais’s claim that Gurstel Chargo’s
October 5 appearance and continuation request were an attempt to collect an interest
not owed. This court reviews “de novo . . . whether a claim is barred by the statute
of limitations.” In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063
(8th Cir. 2017) (en banc).
As a threshold matter, Gurstel Chargo says Demarais’s brief fails to challenge
the district court’s statute-of-limitations holding. To the contrary, Demarais’s brief
does so, at length.
By the plain language of § 1692k(d), the statute of limitations begins “from the
date on which the violation occurs.” The applicability of § 1692k(d) turns on when
the alleged “violation” occurred. Demarais alleges “Gurstel Chargo’s October 5,
2015 appearance was an attempt on behalf of RAzOR to obtain a judgment and thus
collect the full amount demanded in the Complaint,” including “post charge-of[f]
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interest” he did not owe. Demarais alleges a violation occurred October 5, 2015. He
sued four months after the alleged violation occurred.
The district court, relying on Nutter v. Messerli & Kramer, P.A., 500 F. Supp.
2d 1219, 1223 (D. Minn. 2007), said, “communications during the course of litigation
that merely restate or relate back to assertions made in the complaint do not restart the
limitations period.” It concluded that since Demarais said the October 5 appearance
was an attempt to collect the amount demanded in the complaint, its allegation
“relate[d] back to the complaint and d[id] not start a new limitations period.”
The district court erred. If a debt collector violates the FDCPA, an individual
may sue to enforce FDCPA liability within one year of that violation. It does not
matter that the debt collector’s violation restates earlier assertions—if the plaintiff
sues within one year of the violation, it is not barred by § 1692k(d). Each alleged
violation of the FDCPA is “evaluate[d] . . . individually to determine whether any
portion of” the “claim is not barred by the statute of limitations.” Llewellyn v.
Allstate Home Loans, Inc., 711 F.3d 1173, 1188 (10th Cir. 2013). Accord Solomon
v. HSBC Mortg. Corp., 395 Fed. Appx. 494, 497 (10th Cir. 2010) (“The FDCPA’s
comprehensive scheme makes many debt-collecting maneuvers actionable. Thus,
separate communications can create separate causes of action arising from collection
of a single debt.” (footnote omitted)); id. (“For statute-of-limitations purposes,
discrete violations of the FDCPA should be analyzed on an individual basis.”);
Purnell v. Arrow Fin. Servs., LLC, 303 Fed. Appx. 297, 301-02 & n.3 (6th Cir.
2008) (rejecting argument that “all the FDCPA claims were time barred because the
violations first occurred outside the limitations period.”). As the Tenth Circuit points
out, “Any other rule would immunize debt collectors from later wrongdoing.”
Solomon, 395 Fed. Appx. at 497 n.3.
The district court referred to communications “relat[ing] back” to the
complaint. Cf. Fed. R. Civ. P. 15(c) (applying “relation back” principle to
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amendments to pleadings). The district court should have focused on Demarais’s
allegation—on October 5, Gurstel Chargo attempted to collect interest he did not
owe—and determined whether he plausibly alleged that Gurstel Chargo violated the
FDCPA on that date. If he did, his claim is not barred by the statute of limitations.
IV.
The FDCPA generally prohibits debt collectors from using “any false,
deceptive, or misleading representation or means in connection with the collection
of any debt.” § 1692e. It specifically prohibits the “threat to take any action . . . that
is not intended to be taken.” § 1692e(5). The district court determined that the acts
Demarais said violated § 1692e—including Gurstel Chargo’s request for a
continuance—were “permissible litigation tactics and not actionable false assertions.”
This court reviews the district court’s dismissal de novo. In re Pre-Filled Propane
Tank Antitrust Litig., 860 F.3d at 1063.
The district court relied on St. John v. CACH, LLC, 822 F.3d 388 (7th Cir.
2016). There, “the plaintiffs claimed that the debt collectors violated § 1692e(5) of
the Act by initiating the state court proceedings with no intention of going to trial.”
St. John, 822 F.3d at 389. The Seventh Circuit gave two reasons for rejecting the
§ 1692e(5) claim. First, the plaintiffs “failed to show that the defendants ever
threatened to go to trial at all” because “the mere filing of a civil action does not
include an implicit declaration that the plaintiff intends to advance the action all the
way through trial.” Id. at 390-91. Second, the plaintiffs failed to “sufficiently
allege[] that the defendants did not intend to proceed to trial when they initially filed
their collection complaints in state court.” Id. at 390.
Demarais asks this court to reject St. John. He points out that this court has
suggested that activity like that in St. John violates § 1692e: “a § 1692e complaint
alleging that the defendant debt collector lawyer routinely files collection complaints
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containing intentionally false assertions of the amount owed, serves the complaints
on unrepresented consumers, and then dismisses any complaint that is not defaulted
would raise . . . issues of abusive, deceptive, or unfair means of debt collection . . . .”
Hemmingsen, 674 F.3d at 818. This court, however, need not decide whether St.
John was correctly decided. Even if it were, Demarais has plausibly pled that Gurstel
Chargo threatened to take an action it did not intend to take.
First, Demarais plausibly pled that Gurstel Chargo threatened to go to trial
when it appeared for a scheduled trial, discovered Demarais was present with a
lawyer, and requested the trial be continued. A communication to a debtor is a
§ 1692e(5) “threat” if an “unsophisticated consumer would likely be led to believe
that” the debt collector would take an action. Duffy, 215 F.3d at 875. But while the
“unsophisticated consumer” standard applies to communications with debtors, a
“competent attorney” standard applies “[w]here an attorney is interposed as an
intermediary between a debt collector and a consumer.” Powers v. Credit Mgmt.
Servs., Inc., 776 F.3d 567, 574 (8th Cir. 2015). This court has not previously
addressed which standard applies when, like here, a debt collector communicates
something to a court, a debtor, and his attorney simultaneously. This court need not
answer that question because Demarais pleads factual content allowing a reasonable
inference that Gurstel Chargo’s conduct would likely lead both an unsophisticated
consumer and a competent attorney to believe it would proceed to trial. In
Minnesota, a party “may not demand a continuance for the purpose of delay.” State
v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). See also Minn. Gen. R. Prac. 122.
Demarais plausibly alleges an unsophisticated consumer and a competent attorney
would likely be led to believe that a party requesting a continuance on the day of trial
intends to prove its case on the new trial date.
Gurstel Chargo contends that Demarais does not allege it “made affirmative
representations” that it “definitively intended to try the collection case.” But whether
a statement is a threat turns on what it likely leads people to believe; it need not be
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an “affirmative representation.” See Duffy, 215 F.3d at 875. And conditional
statements can be threats. See id. at 873-74 (debt collector’s letter stating that, “in the
event the parties proceeded to litigation, it would seek ‘ . . . attorney’s fees, and such
other remedy as the court may grant’” was a § 1692e(5) threat)).
Second, Demarais plausibly pled that Gurstel Chargo did not intend to proceed
to trial when requesting the continuance. He alleges that when Gurstel Chargo is
forced to prove up a case, it requests additional time to provide proof and then
ignores the case. He references seven case numbers supporting this allegation. He
also alleges that Gurstel Chargo appeared for the October 5 trial date with no
evidence, never responded to his discovery requests despite asking for an extension,
and appeared for the January 4 trial date with no evidence. Demarais plausibly
alleges that Gurstel Chargo had no way of proving its case against him and never
intended to prove its case at trial.
Contrary to Gurstel Chargo’s suggestion, finding Demarais plausibly pled a
§ 1692e(5) violation does not mean that every continuance request violates the
FDCPA. Gurstel Chargo’s potential liability flows from an alleged false threat to
proceed to trial. If Gurstel Chargo did not falsely threaten to proceed to trial, it is not
liable. Also contrary to Gurstel Chargo’s suggestion, the fact that it used an
ordinarily “permissible litigation tactic” does not insulate it from FDCPA liability.
“The Act does apply to lawyers engaged in litigation.” Heintz v. Jenkins, 514 U.S.
291, 294 (1995). See also Hemmingsen, 674 F.3d at 819 (explaining there are
“diverse situations in which potential FDCPA claims may arise during the course of
litigation”). True, this court must interpret the statute to “implement ‘the statute’s
apparent objective of preserving creditors’ judicial remedies.’” Id. at 818, quoting
Heintz, 514 U.S. at 296. Interpreting the FDCPA to prohibit debt collectors from
falsely threatening to proceed to trial—coercing consumers and their attorneys to
prepare for and appear at a trial that the debt collector did not intend to
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pursue—preserves creditors’ judicial remedies. See id. (indicating similar conduct
would violate the FDCPA). Demarais plausibly pled a violation of § 1692e.1
V.
Demarais alleges Gurstel Chargo’s January 22 letter violated § 1692f(1). The
letter allegedly said it was a communication “from a debt collector and is an attempt
to collect a debt,” included discovery requests, and said Demarais was required to
respond within 30 days. Section 1692f(1) specifically prohibits “collection of any
amount (including any interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the agreement creating the
debt or permitted by law.” Letters attempting to collect money not permitted by law
are “a violation of the plain language of section 1692f(1).” Duffy, 215 F.3d at 875.
Demarais claims the letter was sent after Gurstel Chargo dismissed with prejudice its
claims against him, and thus was “an attempt to collect a debt” not owed.
The district court dismissed Demarais’s claim. It stated that the letter was sent
to his attorney and not actionable because it was unlikely to deceive a competent
attorney.2 It also concluded, “Regardless of the statutory label, Demarais’s
1
Gurstel Chargo argues that imposing liability violates its First Amendment
rights. Because it did not make this argument in the district court, this court declines
to consider it. See Wiser v. Wayne Farms, 411 F.3d 923, 926 (8th Cir. 2005).
2
The fact that the letter was sent to Demarais’s attorney was not in his
complaint; his attorney admitted that fact at oral argument in the district court.
“Statements of counsel at oral argument raising new facts not alleged in the pleadings
constitute ‘matters outside the pleadings’ and, if considered by the district court,
require treatment of a Rule 12(b)(6) motion to dismiss as one for summary judgment.”
Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 948 (8th Cir. 1999).
Since the district court considered the attorney’s statements at oral argument, it
should have treated Gurstel Chargo’s motion to dismiss as a motion for summary
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allegations are inadequate because they do not show that anyone was likely to be
misled, deceived, or otherwise duped by the discovery requests.”
The district court erred. A plaintiff need not allege someone was likely to be
misled, deceived, or otherwise duped to plead a § 1692f(1) violation. This court
begins “with a careful examination of the statutory text.” Henson v. Santander
Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017). There is no “misled, deceived,
or duped” requirement in the plain language of § 1692f(1). Section 1692f generally
prohibits debt collectors from using “unfair or unconscionable means to collect or
attempt to collect any debt.” Section 1692f(1) explains that “collection of any
amount” not owed violates § 1692f. Neither of these sections has the terms “misled,”
“deceived,” or “duped.” Nor does a violation of these sections necessarily mislead,
deceive, or dupe a consumer. A debt collector might “collect[] . . . any amount” not
“expressly authorized by the agreement creating the debt or permitted by law,” when
it garnishes a consumer’s wages despite having no judgment against her. See, e.g.,
Scott v. Portfolio Recovery Assocs., LLC, 139 F. Supp. 3d 956, 969-70 (S.D. Iowa
2015). See also Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1517 (9th Cir.
1994) (“[A] jury could rationally find the filing of an application for a writ of
garnishment when the Foxes were current in payments demanded by Citicorp agents
to constitute an unfair or unconscionable means of collection or attempted collection
of a debt under section 1692f.”). An erroneous garnishment does not mislead a
consumer; it deprives him or her of property in violation of the law.
judgment. Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) . . . , matters
outside the pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56.”). The district court’s error,
however, was harmless because—as discussed below—the competent attorney
standard is inapplicable to Demarais’s § 1692f(1) claim regardless of the nature of the
motion.
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Other specific § 1692f provisions are inconsistent with a “misled, deceived, or
duped” requirement. Section 1692f(6)(A) prohibits “[t]aking . . . nonjudicial action
to effect dispossession . . . of property” if the debt collector has “no present right to
possession of the property.” Violations of this prohibition generally do not mislead,
deceive, or dupe consumers—they harm consumers by depriving them of property.
Section 1692f(7) prohibits “[c]ommunicating with a consumer regarding a debt by
post card.” Violations of this provision generally do not mislead, deceive, or dupe
consumers—they invade consumers’ privacy by showing alleged debts to people
viewing their mail. See Joseph v. J.J. Mac Intyre Cos., 281 F. Supp. 2d 1156, 1163
(N.D. Cal. 2003).
Further, § 1692e specifically prohibits debt collectors from using any “false,
deceptive, or misleading representation or means” (emphasis added). It is unlikely
that Congress would expressly prohibit “deceptive” and “misleading” conduct in one
section of a statute, and silently prohibit it in another. Where Congress places an
express requirement in one part of a statute but leaves it out of another, courts should
not “add[] that term” where it was “conspicuously absent.” See Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 252 (2010). By the same token, reading
§ 1692f to require “deceptive” or “misleading” conduct, would make § 1692f
superfluous—any conduct violating § 1692f would necessarily also violate § 1692e’s
prohibition on “deceptive” or “misleading” conduct. That reading is strongly
disfavored, especially where, as here, Congress passed both § 1692e and § 1692f in
the same statute. See Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1177 (2013)
(“[T]he canon against surplusage is strongest when an interpretation would render
superfluous another part of the same statutory scheme.”). The district court’s
determination that Demarais must show a likelihood of being misled, deceived, or
duped “[r]egardless of the statutory label” contradicts the statute.
This court’s cases interpreting § 1692f do not impose a “misled, deceived, or
duped” requirement. In Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567 (8th Cir.
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2015), the plaintiffs alleged that a debt collector’s discovery requests “confuse and
mislead the unsophisticated consumer as to his or her rights in answering said
discovery”—a § 1692e claim. Powers, 776 F.3d at 573-75. In this context, this court
said that “a representation by a debt collector that would be unlikely to deceive a
competent lawyer, even if he is not a specialist in consumer debt law, should not be
actionable.” Id. at 574, quoting Evory v. RJM Acquisitions Funding L.L.C., 505
F.3d 769, 775 (7th Cir. 2007). See also Evory, 505 F.3d at 774-75 (discussing a
situation where “communication to the lawyer is alleged to be deceptive” (emphasis
in original)). Similarly, in Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814
(8th Cir. 2012), this court said no one “was misled, deceived, or otherwise duped” in
the context of finding a plaintiff failed to “prove that . . . assertions were false or
misleading for purposes of § 1692e.” Hemmingsen, 674 F.3d at 819. And in Janson
v. Katharyn B. Davis, LLC, 806 F.3d 435 (8th Cir. 2015), this court held that a
plaintiff did not state a generic § 1692f claim when he alleged that a debt
collector-attorney filed an affidavit without personal knowledge of the facts stated:
“Absent an allegation that he actually did not owe rent, Janson has not plausibly
alleged that the defendant’s practice misled the state court in any meaningful way.”
Janson, 806 F.3d at 438. But that just means an attorney does not violate § 1692f by
providing truthful, non-misleading information to a court—not that deception is a
requirement of § 1692f.
Gurstel Chargo asserts that the Supreme Court’s recent decision in Midland
Funding, LLC v. Johnson, 137 S. Ct. 1407 (2017), supports the district court’s
“misled, deceived, or duped” requirement for § 1692f(1) claims. In Midland
Funding, the Court considered whether a debt collector violates § 1692e or § 1692f
by filing a proof of claim for a time-barred debt in a Chapter 13 bankruptcy.
Evaluating the § 1692e claim, the Court said determining “whether a statement is
misleading normally requires consideration of the legal sophistication of its
audience.” Midland Funding, 137 S. Ct. at 1413 (internal quotation marks omitted).
Separately evaluating the § 1692f claim, the Court noted that, compared to a debt
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collector’s civil suit, the “features of a Chapter 13 bankruptcy proceeding make it
considerably more likely that an effort to collect upon a stale claim in bankruptcy will
be met with resistance, objection, and disallowance.” Id. at 1413-14. It also noted
that untimeliness is an affirmative defense in bankruptcy, and finding § 1692f
applicable would effectively shift the burden of investigating staleness to the debt
collector. Id. at 1414-15. Neither of the Court’s § 1692f considerations apply to
Gurstel Chargo’s alleged attempt to collect an extinguished debt in a civil suit. And
neither indicates that the specific subsection at issue here—§ 1692f(1)—requires
proof someone was likely to be “misled, deceived, or duped.”
Gurstel Chargo argues the district court’s “misled, deceived, or duped”
conclusion was a finding that the letter’s misrepresentations were not material and
therefore not actionable. The Supreme Court has reserved the question whether an
FDCPA plaintiff must show materiality to prove a § 1692e claim. See Sheriff v.
Gillie, 136 S. Ct. 1594, 1602 n.6 (2016). This court has not directly addressed
whether materiality is required, although it once indicated—in discussing class
certification—that materiality would be an issue in proving a § 1692f(1) claim. See
Powers, 776 F.3d at 571. Assuming materiality is required, an attempt to collect a
debt not owed is a material violation of § 1692f(1). As this court held in Duffy, a debt
collector’s “letters seeking” debts not owed are “an attempt to collect interest not
permitted by law, and therefore a violation of the plain language of section 1692f(1).”
Duffy, 215 F.3d at 875. Duffy did not evaluate whether anyone was likely to be
misled by the letters’ overstated interest amounts; it considered whether they
attempted to collect interest not owed. Id. Accord Simon v. FIA Card Servs., N.A.,
732 F.3d 259, 269-70 (3d Cir. 2013) (“[T]he ‘competent attorney’ standard d[oes] not
apply to the debtor’s § 1692f(1) claim because the only inquiry under § 1692f(1) is
whether the amount collected was expressly authorized by the agreement creating the
debt or permitted by law. This inquiry d[oes] not turn on the reader’s sophistication.”
(internal quotation marks and citation omitted)).
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Gurstel Chargo’s argument for a “misled, deceived, or duped” requirement
narrowly reads the FDCPA as prohibiting only debt-collection activities that mislead
consumers into paying debts not owed. But the FDCPA, by its terms, guards against
many other harms—the mental distress that can cause “marital instability” and “the
loss of jobs,” as well as “invasions of individual privacy.” § 1692(a). See also
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1720 (2017)
(“Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s
eye to the debt collection industry.”). The attempted collection of debts not owed
harms consumers not just by inducing the payment of false claims. It also forces
consumers to spend time and money addressing the false claims—even if they know
they do not actually owe the claimed debt. Being subjected to attempts to collect
debts one knows he or she does not owe can disrupt marriages, impair performance
on the job, and cause public embarrassment—the very harms motivating Congress to
pass the FDCPA. The district court erred in dismissing Demarais’s claim that Gurstel
Chargo’s January 22 letter and discovery requests violated § 1692f(1).
*******
The judgment of the district court is reversed, and the case remanded for
proceedings consistent with this opinion.
BEAM, Circuit Judge, concurs in the judgment.
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