Bishop v. Ross Earle & Bonan, P.A.

• Decision Date: 25 March 2016
• Docket Number: No. 15–12585.,15–12585.
• Citation: 817 F.3d 1268
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Connie BISHOP, on behalf of herself and all others similarly situated, Plaintiff–Appellant, v. ROSS EARLE & BONAN, P.A., a Florida professional association, Jacob E. Ensor, individually, Defendants–Appellees.

817 F.3d 1268

Connie BISHOP, on behalf of herself and all others similarly situated, Plaintiff–Appellant,

v.ROSS EARLE & BONAN, P.A., a Florida professional association, Jacob E. Ensor, individually, Defendants–Appellees.

No. 15–12585.

United States Court of Appeals, Eleventh Circuit.

March 25, 2016.

Leo W. Desmond, Law Office of Leo W. Desmond, Vero Beach, FL, S. Keley Jacobson, Fort Pierce, FL, for Plaintiff–Appellant.

David Palmer Hartnett, Maureen G. Pearcy, West Allan Holden, Hinshaw & Culbertson, LLP, Coral Gables, FL, for Defendants–Appellees.

Before MARCUS, JORDAN and BLACK, Circuit Judges.

BLACK, Circuit Judge:

I. BACKGROUND

This case concerns an interpretation of §§ 1692g and 1692e of the Fair Debt Collection Practices Act (FDCPA). Section 1692g of the FDCPA requires a debt collector to provide a consumer with a notice of debt that contains:

a statement that if the consumer notifies the debt collector in writing within [a] thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.

15 U.S.C. § 1692g(a)(4) (emphasis added). This notice must be either contained in the "initial communication with a consumer" or provided within five days of such communication. Id. § 1692g(a).

On December 23, 2014, Appellees Ross Earle & Bonan, P.A., and Jacob Ensor (the Collectors) sent a debt-collection letter to the attorney of Appellant Connie Bishop.¹ The letter properly informed Bishop that she had thirty days to dispute the debt, but it neglected to inform her that she must dispute the debt "in writing." Specifically, the letter said:

Federal law gives you thirty (30) days after your receipt of this letter, to dispute the validity of the debt or any portion of it. If you do not dispute it within that period, we will assume it is valid. If you do dispute the debt, or any portion of it, you must notify us within the said thirty (30) day period, and we will, as required by law, obtain and mail to you, proof of the debt.

On February 18, 2015, Bishop filed a complaint against the Collectors under the FDCPA. She alleged that the letter violated § 1692g of the FDCPA by failing to notify her of the "in writing" requirement. She also alleged that omitting the "in writing" requirement violated § 1692e, which prohibits using "false representation or deceptive means to collect or attempt to collect any debt." Id. § 1692e(10). The district court dismissed the complaint with prejudice for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). Bishop appeals.

II. STANDARD OF REVIEW

We review de novo the grant of a motion to dismiss for failure to state a claim. Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1296–97 (11th Cir.2015). We accept "the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff." Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003). However, "conclusory allegations ... are not entitled to an assumption of truth—legal conclusions must be supported by factual allegations." Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir.2010). To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face," meaning it must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

III. THE FDCPA

The FDCPA was enacted in the context of existing Federal Trade Commission (FTC) regulation of unfair and deceptive debt-collection practices. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1172–75 (11th Cir.1985). Despite existing regulation, Congress found "abundant evidence of abusive, deceptive, and unfair debt collection practices by many debt collectors." 15 U.S.C. § 1692(a). "Existing laws and procedures for redressing these injuries [were] inadequate to protect consumers." Id. § 1692(b). Moreover, Congress found that "[m]eans other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts." Id. § 1692(c).

Congress set out to correct these problems by supplementing and expanding upon existing debt-collection regulations. Jeter, 760 F.2d at 1174. The declared purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). To advance these goals, the FDCPA codified several specific consumer-protective rights, including the rights set forth in § 1692g. Jeter, 760 F.2d at 1174 n. 5. Most significantly, the FDCPA gave consumers a private right of action to enforce its provisions against debt collectors. Id.

IV. DISCUSSION

We address three issues of first impression in the Eleventh Circuit. The first is whether a debt-collection letter sent to the consumer's attorney—rather than directly to the consumer—qualifies as a "communication with a consumer" so as to trigger § 1692g of the FDCPA. The second is whether omitting the "in writing" requirement set forth in § 1692g amounts to waiver of that requirement by the debt collector, and, if so, whether such a waiver advances the purpose of the FDCPA. The third is whether omission of the "in writing" requirement states a claim for "false, deceptive, or misleading" behavior in violation of § 1692e. We address each issue in turn.

A.

The Collectors first argue that because the debt-collection letter was sent to Bishop's attorney, and not to Bishop herself, it was not a "communication with a consumer" within the meaning of § 1692g. The question of whether, and when, the FDCPA regulates attorney communications has been a subject of disagreement between the circuits. Compare Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 936 (9th Cir.2007) (holding that "communications directed only to a debtor's attorney, and unaccompanied by any threat to contact the debtor, are not actionable under the [FDCPA]" (footnote omitted)), with Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773–75 (7th Cir.2007) (holding that communications directed to a consumer's attorney are actionable under §§ 1692d–1692g).

The Eleventh Circuit first addressed this question in Miljkovic v. Shafritz & Dinkin, P.A., holding that "conduct toward a consumer's attorney [is] covered by the FDCPA in the absence of any express exemption therefor." Miljkovic, 791 F.3d at 1297. Miljkovic was decided in the context of §§ 1692d–1692f, which prohibit "abusive, misleading, and unfair" debt-collection practices. Id. at 1294. Yet its reasoning is applicable here. Following Miljkovic, we conclude that the protections of § 1692g, like those set forth in §§ 1692d–1692f, do not fail simply because the consumer has retained an attorney.

As in Miljkovic, our inquiry begins with the specific provision invoked. See id. at 1300. Section 1692g regulates the contents of a "notice of debt," as well as certain procedures for handling disputed debts. 15 U.S.C. § 1692g(a) -(b). Its protections are triggered when a debt collector makes an "initial communication with a consumer."² Id. § 1692g(a). To confirm that § 1692g applies to attorney communications, we need look no further than this triggering phrase. The FDCPA defines the term "consumer" as "any natural person obligated or allegedly obligated to pay any debt." Id. § 1692a(3). It defines "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." Id. § 1692a(2) (emphasis added). It follows that § 1692g, which applies to the "initial communication with a consumer," can be triggered either by a direct communication or by an indirect communication.

We join the Third, Fourth, and Seventh Circuits in holding that a debt-collection notice sent to a consumer's attorney is just such an "indirect" communication. See Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir.2011) ; Evory, 505 F.3d at 773 ; Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 232–33 (4th Cir.2007). This conclusion flows from a commonsense understanding of the attorney-client relationship. See Evory, 505 F.3d at 773 ("The lawyer receives the notice and shares it with, or explains it to, his client. Hence the debt collector is communicating with the consumer within the meaning of the Act...."); Model Rules of Prof'l Conduct R. 1.4 (2014) ("A lawyer shall ... keep the client reasonably informed [and] explain a matter to the extent reasonably necessary to permit the client to make informed decisions."). The attorney is a conduit to the consumer; thus, a debt-collection letter sent to the consumer's attorney is an indirect communication with the consumer.

That § 1692g covers attorney communications is borne out by the larger statutory context. See Miljkovic, 791 F.3d at 1301–02 (analyzing §§ 1692d–1692f in the context of the FDCPA as a whole). First, § 1692c provides further evidence that attorney communications are "indirect" communications with the consumer. Section 1692c states that "a debt collector may not communicate with a consumer ... if the debt collector knows the consumer is represented by an attorney ... unless the attorney consents to direct communication with the consumer." 15 U.S.C. § 1692c(a)(2) (emphasis added). By employing the word "direct" in this manner, § 1692c distinguishes between "direct" communication with the consumer—permitted only with attorney consent—and "indirect" communication through the consumer's attorney. See id. § 1692a(2) (establishing that communication under the FDCPA is...