Vincent C. Todd, Lakewood, Colorado, for Plaintiff-Appellant.

Thomas C. Helgeson (Jerome V. Porter and Elizabeth S. Kreis with him on the brief), Wheat Ridge, Colorado, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, HENRY, Circuit Judge, and COOK,* District Judge.

H. DALE COOK, District Judge.

This case comes before us on the appeal of the plaintiffs after a jury verdict for the defendants. The plaintiffs seek damages for alleged violations of the Fair Debt Collection Practices Act (FDCPA). The plaintiffs appeal from the dismissal of their claim that a statutorily required disclosure was not made, from the refusal of one proposed jury instruction and from one jury instruction that was made over their objection.

In November of 1992, Darryl Sampson, an employee acting on behalf of the Continental Collection Agency (Continental), contacted the appellants Brian and Angela Dikeman in an attempt to collect rent and other charges claimed by the Aztec Villa Apartments, where the Dikemans had previously resided. Within thirty days of the initial communication, the appellants, acting through counsel, requested verification of the debt under 15 U.S.C. § 1692g. Continental and Darryl Sampson responded to appellants' counsel with a letter of December 9, 1992 and additional pages of documentation of the amount owed. Nowhere in the papers submitted by way of verification did there appear any verbal statement1 disclosing that the debt collector was attempting to collect a debt and that any information obtained would be used for that purpose.2

Attorneys for Continental prepared a county court complaint claiming $1,138.55, including $150 in attorney fees. The amount of the debt was overstated in the verification and the initial complaint.3 In response to further inquiry,4 Darryl Sampson and Continental determined that Aztec Villa Apartments had overstated the amount of the debt. Sampson and Continental, however, made no subsequent written verification reflecting the correct amount of the debt.5 Whatever may have been the nature of the error,6 it is clear that after discovering the error the defendants amended their complaint to reduce the claim on account of the error. There is nothing in the record on appeal to suggest that the defendants attempted to collect the overstatement of their verification before or after amending their complaint aside from the act of serving and filing of the original complaint.

The initial complaint was served on the plaintiffs on December 19, 1992 and filed December 22, 1992. The amended complaint, filed on January 13, 1993, claimed $612.78, which amount also included $150 for attorney fees. After some discovery, the plaintiffs tendered unconditional payment of $206.11, an amount they did not dispute. Continental voluntarily withdrew the county court action.

The appellants then brought this action in federal court under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq. The plaintiffs claimed that the defendants violated the Act by: (1) failing to provide a statutorily required disclosure in their communication with the debtor's attorney, (2) attempting to collect an attorney fee in excess of that which was actually incurred, and (3) commencing their county court action before verifying the correct amount of the debt.

In the court below, the jury evidently viewed the verification overstating the amount owed as not being a validation of the debt under the statute and found that the defendants had "commenced suit against the Plaintiffs without providing validation of a disputed debt." Nevertheless, the jury also found that this error was unintentional and made in good faith.7

The first issue in this case is whether the trial court correctly held as a matter of law that the disclosure requirement of 15 U.S.C. § 1692e(11) was not violated. We review such questions of law de novo. Jenkins v. Heintz, 25 F.3d 536, 538 (7th Cir.1994), aff'd, --- U.S. ----, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). Resolution of this issue requires the interpretation of statutory language defining the following as one form of "false or misleading representation":

Except as otherwise provided for communications to acquire location information under section 1692b of this title, the failure to disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.

15 U.S.C. § 1692e(11).

The precise legal question we address here is whether the required statutory disclosure of § 1692e(11) must be included in a verbal statement in communications to an attorney when the matters required to be disclosed would be clear to an attorney from the communication viewed in context.8

"In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S. Ct. 2589, 2594, 120 L. Ed. 2d 379 (1992). In the case before us, our inquiry begins with meaning of the word "disclose".9 However, in construing the statute we also look to other provisions of the Act to determine the purpose of the law and the context in which the word is used.

The term "disclose" used in the statute is, viewed in isolation, ambiguous as to whether a verbal statement is required.10 We contrast the use of "disclose" in this subsection with the use of "statement" in § 1692g of the same subchapter to define the requirements for disclosure by creditors in a different context. The definition of the word "statement" focuses on express communication orally or in writing. The word "statement" also suggests intentional communication and, it also connotes literal verbal communication. The word "disclosure" does not have as strong a connotation of intention or verbal expression as does the word "statement".11

We also take note that § 1692e(11) does not place the required disclosure in quotation marks or set forth any specific required wording for the disclosure but merely defines what the content of the required disclosure will be: "that the debt collector is attempting ..." (emphasis added) Id.

The definition of the term "disclose" is sufficiently ambiguous that, in an appropriate context, it could be construed to include other forms of making facts known than verbal statements. To determine whether such a broad construction is appropriate with regard to this subsection in this circumstance we look to the nature of the legal requirement, the nature of the recipient of the communication, the larger statutory context and the purposes of the statute as stated at the beginning of the subchapter of which the disputed statutory language is a part.

We begin our analysis with the language of the section at issue. The disclosure requirement here is contained in a subsection of § 1692e. That section prohibits generally "false, deceptive, or misleading representation or means in connection with the collection of any debt." The section then lists examples of such improper conduct "[w]ithout limiting the general application of the foregoing." Id. The section does not say the reverse, however, that the more general language of § 1692e cannot be considered in limiting the scope of ambiguous terms used in the subsections.

In view of the purpose of § 1692e(11) to define a form of deceptive or misleading means used in connection with the collection of a debt, we are reluctant to conclude that there is a deceptive or misleading practice in the mere failure to disclose by verbal statement to a lawyer what should be clear to the lawyer from the fact of the communication, its nature, contents and context.12 We are here inclined to adopt a broad construction of the word "disclose" in part because to do otherwise would characterize this particular form of innocent and sufficient communication as deceptive or misleading, contrary to the plain meaning of the language of the section in which the word is used.

In a factual situation where the failure to make the required disclosure by verbal statement might be misleading to a lawyer, the statute may require disclosure by verbal statement of such of the required information as is not obvious to a lawyer,13 but those are not the facts before us here. In this case the lawyer to whom the communication was made requested the communication in the course of representing his clients on the collection matter. The verification contained a cover letter with a letterhead stating "Continental Collection Agency, Ltd.", a signed "Statement of Deposit Accounts" itemizing the rent and other fees claimed with a bottom line stating the "TOTAL AMOUNT DUE OWNER", the lease agreement and copies of move in and move out reports on the condition of the property showing a cleaning charge of $160.

The legal implications of communicating with a debt collector would be especially within the professional competence of a lawyer hired to represent a client's interests in the collection process, and the fact that a communication is made to collect a debt is something that the lawyer's professional expertise would allow him or her to discern easily on facts such as these. In short, both elements required to be disclosed would have been clear to a lawyer from the requested verification.

In our interpretation of the word "disclose", we also rely on the statement of purposes at the beginning of the subchapter in § 1692(e), which says: "It is the purpose of this subchapter 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." (emphasis added)

The failure to make a verbal statement to a lawyer of what would be clear to a lawyer from the communication viewed in context is not fairly characterized as an abusive debt collection practice nor does failure to make a verbal disclosure give a competitive advantage to any debt collector, other than a de minimis savings of time, because the debtor's representative will know just as much regardless of whether a verbal disclosure is made. In addition, since the Act is for consumer protection and the disclosure requirement is designed to protect such consumers as may not have the sophistication to appreciate the significance of debt collection communications, it is not likely that Congress imagined that verbal statements of characterizations and legal implications obvious to an attorney would ordinarily be required in communications made to a debtor's attorney.14

Accordingly, we hold that the fact of the debt verification and its content, viewed in context, was adequate to disclose to an attorney hired to represent the debtor that the debt collector was attempting to collect a debt and that any information obtained would be used for that purpose within the meaning of § 1692e(11).15 A disclosure pursuant to § 1692e(11) by verbal statement would be a pointless formality and is not required in such a situation.

The plaintiffs argue that a claim for $150 in attorney fees in the complaint against them was a violation of 15 U.S.C. § 1692f. They argue that the refusal of the trial judge to instruct the jury that the defendants could only seek attorney fees if allowed by contract was prejudicial to their case "in light of the jury's finding that the Defendants did not collect or attempt to collect amounts not permitted by the contract or authorized by law." In their statement of issues, the plaintiffs frame the issue as whether the complaint demanding $150 in attorney fees violated 15 U.S.C. § 1692f. That section prohibits the use of unfair and unconscionable means of collecting or attempting to collect a debt. Subsection 1 of that section specifically prohibits: "The 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."

We find that the record on appeal is inadequate, and we are therefore unable to review this issue. The documents which the plaintiffs submitted are incomplete in that they do not fully detail the substance of this issue, nor do they sufficiently convey all the facts which form the basis of the issue. Further, we are not convinced that the plaintiffs adequately documented that this issue was preserved for appeal, and we thus refrain from addressing the substance of the plaintiffs' claim. An appellant who provides an inadequate record does so at his peril. Deines v. Vermeer Mfg. Co., 969 F.2d 977, 978-79 (10th Cir.1992).

The jury's third finding states: "Defendants National Educators, Inc., d/b/a Continental Collection Agency, Ltd. and Angela L. Field did commence suit against the plaintiffs without providing validation of a disputed debt." The jury also found good faith and a bona fide error defense as to this finding. The plaintiff argues that there was not sufficient evidence to support the bona fide error defense to the third finding and appeals the trial court's decision to instruct the jury on this issue.

"An erroneous jury instruction requires reversal only if, after review of the record as a whole, we determine the error to have been prejudicial." United States v. Caro, 965 F.2d 1548 (10th Cir.1992). At trial, when the defendant proffered the disputed instruction on bona fide error, its attorney referred to testimony from two agency employees that was intended to lay the foundation for the instruction. It is apparent that these witnesses would have supplied the evidence, if anyone did. However, their complete testimony was not furnished to us on appeal. If plaintiffs challenge the sufficiency of that testimony, it is not unreasonable to expect the plaintiffs to have provided it. We therefore find it unnecessary to reach the merits of this issue because of the inadequate record provided. Deines, 969 F.2d at 978-79.

Affirmed.