Filed: Jan. 29, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1461 _ FITZROY POWELL, on behalf of himself and others similarly situated, Appellant v. ALDOUS & ASSOCIATES, P.L.L.C.; JOHN DOES 1-25 _ Appeal from the United States District Court for the District of New Jersey (D.C. Civ. Action No. 2-17-cv-03770) District Judge: Honorable Kevin McNulty _ Submitted Under Third Circuit L.A.R. 34.1(a) January 18, 2019 _ Before: GREENAWAY, JR., SHWARTZ, PORTER, Circuit Judges. (Opinion
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1461 _ FITZROY POWELL, on behalf of himself and others similarly situated, Appellant v. ALDOUS & ASSOCIATES, P.L.L.C.; JOHN DOES 1-25 _ Appeal from the United States District Court for the District of New Jersey (D.C. Civ. Action No. 2-17-cv-03770) District Judge: Honorable Kevin McNulty _ Submitted Under Third Circuit L.A.R. 34.1(a) January 18, 2019 _ Before: GREENAWAY, JR., SHWARTZ, PORTER, Circuit Judges. (Opinion F..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________________
No. 18-1461
__________________________
FITZROY POWELL,
on behalf of himself and others similarly situated,
Appellant
v.
ALDOUS & ASSOCIATES, P.L.L.C.;
JOHN DOES 1-25
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. Action No. 2-17-cv-03770)
District Judge: Honorable Kevin McNulty
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 18, 2019
______________
Before: GREENAWAY, JR., SHWARTZ, PORTER, Circuit Judges.
(Opinion Filed: January 29, 2019)
______________
OPINION *
______________
GREENAWAY, JR., Circuit Judge.
This is a putative class action brought by Fitzroy Powell against the law firm
Aldous & Associates, P.L.L.C. (“Aldous”). Powell alleges that the debt settlement letter
Aldous sent him violated sections 1692e(3), (5), and (10) of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692e(3), (5), (10). In his view, the letter could
confuse the least sophisticated consumer into believing that an attorney at Aldous was
meaningfully involved, when none had been, and that Aldous was threatening legal
action that it could not take and did not intend to take. The District Court granted
Aldous’ motion to dismiss on the grounds that the letter sufficiently disclaims meaningful
attorney involvement and, when read in its entirety, does not threaten legal action or
suggest that a suit is imminent. We will affirm.
I. Background
Aldous is a law firm in Utah that acts as a debt collector. In a letter dated January
21, 2017, Aldous sought to collect from Powell a debt owed to Diamond Wireless. In
relevant part, the one page letter reads,
The original creditor of this file, Diamond Wireless, has developed an
“Amnesty Program,” for seriously delinquent accounts.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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Therefore, you will be permitted to clear your obligation on your past due
amount by paying 50% of the Total Due to our office no later than April 15,
2017.
Amnesty Program amount to settle debt: $200.00. Pay now online by going
to www.aldouslegal.com and click “Pay Now” at the top. Be sure to reference
the listed account number.
A negative credit report reflecting on your credit record may be submitted to
a credit reporting agency and will remain if you fail to fulfill the terms of
your credit obligations. Upon receipt of this payment, your account and any
negative report to the credit bureau will be “Settled in Full,” and you will be
released from further obligation.
If you desire to pay over the phone, please contact our office today at
1.888.221.5155. More than thirty (30) days has passed since our first written
notice to you. Currently, your obligation is not resolved.
When payment is received your obligation will be finalized and closed. Once
paid and if you choose, you will be able to enter into a new agreement with
the original creditor.
Sincerely,
Aldous & Associates, P.L.L.C.
THIS IS AN ATTEMPT TO COLLECT A DEBT: ANY
INFORMATION OBTAINED WILL BE USED FOR THAT
PURPOSE. THIS COMMUNICATION IS FROM A DEBT
COLLECTOR.
At this time, not [sic] attorney with this firm has personally reviewed the
particular circumstances of your account.
OUR ATTORNEYS ARE ADMITTED TO PRACTICE IN ONE OR
MORE OF THE FOLLOWING: NEW YORK**, LOUISIANA*,
PENNSYLVANIA*, UTAH*
JA 8–9, 22.
Powell filed suit, alleging that this letter violates 15 U.S.C. § 1692e(3), (5), and
(10). He premised those allegations on his view that the letter could mislead the least
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sophisticated consumer to believe that an attorney at Aldous was meaningfully involved
in collecting the debt, and that Aldous could commence legal action against said
consumer. That, in turn, would not only violate sections 1692e(3) and (5), 1 but also
section 1692e(10) and 1692e more generally, as the letter could constitute using false,
deceptive, or misleading representations to attempt to collect a debt.
Aldous filed a motion to dismiss for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6), and the District Court granted that motion. The District
Court concluded that the letter sufficiently disclaims meaningful attorney involvement,
and “merely states that failure to pay the debt at all may have a negative impact on one’s
credit[.] . . . [It] does not threaten legal action or suggest that a suit is imminent.” JA 18–
19.
Powell appealed.
II. Jurisdiction and Standard of Review
Pursuant to 28 U.S.C. § 1331, the District Court had subject matter jurisdiction
over Powell’s FDCPA claims. We have jurisdiction under 28 U.S.C. § 1291 and review
de novo a district court’s decision on a motion to dismiss. Taksir v. Vanguard Grp., 903
F.3d 95, 96 (3d Cir. 2018) (citation omitted). Thus, as the District Court did, we examine
whether, accepting the well-pleaded factual allegations in the complaint as true and
drawing all reasonable inferences in Powell’s favor, a plausible claim to relief exists.
1
Sections 1692e(3) and (5) specifically prohibit “[t]he false representation or
implication that any individual is an attorney or that any communication is from an
attorney,” and “[t]he threat to take any action that cannot legally be taken or that is not
intended to be taken,” respectively. 15 U.S.C. § 1692e(3), (5).
4
McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009) (citation omitted).
III. Analysis
The crux of Powell’s case is that Aldous’s letter is a debt collection letter from a
law firm, which uses the firm letterhead, and includes numerous legal terms of art such as
“amnesty,” “obligation,” and “settlement.” This is despite the fact that the letter
simultaneously acknowledges that no lawyer from the firm has been admitted to practice
in the debtor’s state. In Powell’s view, such a letter violates section 1692e(3) because it
implies meaningful attorney involvement where there was none; it violates section
1692e(5) because it implies that a lawsuit could be instituted by Aldous when it cannot;
and section 1692e(10) because it could be read to have two or more meanings on each of
those points, one of which is inaccurate.
Aldous counters that the letter is FDCPA-compliant because it contains an
attorney disclaimer—a statement disclaiming that an attorney has personally reviewed the
debtor’s account—placed on the “front and center” of the letter, as opposed to on the
back. To that effect, Aldous argues that its letter is consistent with our decision in Lesher
v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993 (3d Cir. 2011). See Appellee Br. 2,
12 (stating that “[t]he Lesher court was concerned about the placement, not the verbiage
of the disclaimer”).
Both parties miss the mark.
Powell’s argument is ultimately unhelpful because the letter does include language
intended to clear up any misimpression that Aldous was acting as an attorney and that
there was meaningful attorney involvement. The letter prominently places two
5
disclaimers, one clearly stating, inter alia, “THIS IS AN ATTEMPT TO COLLECT A
DEBT. . . . THIS COMMUNICATION IS FROM A DEBT COLLECTOR[,]” and
the other that, “[a]t this time, not [sic] attorney with this firm has personally reviewed
the particular circumstances of your account.” JA 22 (emphases in original).
Aldous, on the other hand, puts undue weight on the placement of the disclaimers. To
be clear, that is a factor to consider. In Lesher, we observed that “disclaimers included in
[debt collection] letters, which are printed on the backs,” do not “make clear to the least
sophisticated debtor that [the law firm in question] is acting solely as a debt collector and
not in any legal capacity in sending the letters.” 650 F.3d at 1003. But we also
considered the collection letters at issue in their totality, and concluded that they “falsely
impl[ied] that an attorney, acting as an attorney, [was] involved in collecting [the
relevant] debt.”
Id. (explaining that the disclaimer printed on the back “completely
contradict[ed] the message sent on the front of the letters[,]” which was “that the creditor
retained a law firm to collect the debt”).
In granting Aldous’s motion, the District Court’s analysis was consistent with our
approach in Lesher. The District Court expressly states that its conclusion that the
attorney disclaimer at issue in this case is sufficient is premised on “[m]any factors.” JA
18. It proceeds to explain those factors: (a) the disclaimer is (i) in a bold, normal size
font, (ii) located on the front of a one-page letter, (iii) set apart in a separate paragraph,
and (b) the letter is not signed by an attorney.
Id. We agree that, given the totality of the
letter, such a disclaimer is sufficient to dispel the impression of meaningful attorney
involvement.
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Likewise, Powell’s section 1692e(5) claim fails because, for the reasons provided by
the District Court, we also conclude that the letter would not lead the least sophisticated
consumer to believe that a lawsuit was being threatened. In so holding, because Powell’s
arguments related to his section 1692e(10) claims depend on the same facts and
arguments as those for his sections 1692e(3) and (5) claims, we do not find the sort of
ambiguity Powell suggests in support of his section 1692e(10) claim.
We will therefore affirm the District Court’s dismissal of Powell’s FDCPA claims.
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