OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Plaintiff Lillian Misleh commenced this suit in state court on July 29, 2010, asserting federal and state-law claims against the Defendant law firm, Timothy E. Baxter & Associates, arising from a debt collection letter sent by Defendant to Plaintiff's attorney. Plaintiff alleges in her complaint that this letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Michigan Collection Practices Act ("MCPA"), Mich. Comp. Laws § 445.251 et seq. Defendant removed the case to this Court on September 22, 2010, citing Plaintiff's assertion of claims arising under federal law. See 28 U.S.C. §§ 1441(a), 1331.

By motion filed on September 28, 2010, Defendant now seeks the dismissal of each of the claims asserted in Plaintiff's complaint for failure to state a claim upon which relief can be granted. In support of this motion, Defendant argues that the letter giving rise to Plaintiff's claims is not actionable under the FDCPA because the letter was sent to Plaintiff's counsel, rather than to Plaintiff directly. Defendant further contends that the MCPA does not apply because a law firm is not a "regulated person" within the meaning of this Michigan statute. In a November 15, 2010 response in opposition to this motion, Plaintiff contests both of Defendant's challenges, arguing that letters sent to a consumer's attorney are actionable under the FDCPA, and that the MCPA applies to law firms.

Having reviewed the parties' briefs in support of and opposition to Defendant's motion, as well as the remainder of the record, the Court finds that the pertinent facts, allegations, and legal issues are sufficiently presented in these materials, and that oral argument would not assist in the resolution of this motion. Accordingly, the Court will decide Defendant's motion "on the briefs." See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court's rulings on this motion.

II. FACTUAL BACKGROUND

Defendant Timothy E. Baxter & Associates is a law firm engaged in debt collection. In 2007, Defendant represented Atlantic Credit & Finance, Inc. in a state-court collection action against Plaintiff Lillian Misleh. The case was dismissed without prejudice in November of 2007, after the Defendant law firm failed to appear at a settlement conference. Although Atlantic Credit & Finance moved to reinstate the case, its counsel (the Defendant law firm) again failed to appear at the hearing on this motion. Thus, on December 17, 2007, an order was entered allowing the case to be reinstated only upon Atlantic Credit & Finance's satisfaction of certain conditions, but the case was never reinstated.

Over two years later, on February 28, 2010, the Defendant law firm sent a letter to Robert S. Ajlouny, Plaintiff's attorney in the 2007 suit, attempting to collect the same alleged debt that formed the basis for the 2007 suit. The letter referenced the caption and case number of the 2007 suit against Plaintiff, and also indicated a balance due in excess of what Atlantic Credit & Finance sought to recover in the 2007 suit. Although the letter was addressed to attorney Ajlouny, it appeared to be directed at Plaintiff herself, stating in pertinent part that "[w]e would like to try to resolve this with you before it goes any further," and that "we want to give you some options to resolve the outstanding Court Judgment against you." (Plaintiff's Response, Ex. A, 2/28/2010 Letter.)1

Plaintiff then commenced this suit on July 29, 2010, alleging that the February 2010 letter violated the FDCPA through its use of "false, deceptive, or misleading representation or means," 15 U.S.C. § 1692e, or "unfair or unconscionable means to collect or attempt to collect any debt," 15 U.S.C. § 1692f. Plaintiff further alleges that the letter violated the MCPA's similar prohibition against false, misleading or deceptive statements in a communication to collect a debt. See Mich. Comp. Laws § 445.252(e)-(f).

III. ANALYSIS

A. The Standards Governing Defendant's Motion

Through the present motion, Defendant seeks the dismissal of each of the claims in Plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When considering a motion brought under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pled factual allegations as true. League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007). In this case, the pertinent allegations are not disputed, at least for present purposes, and the disposition of Defendant's motion turns upon purely legal issues as to the proper meaning and interpretation of certain key terms in the FDCPA and the MCPA. Accordingly, the Court turns to these questions.

B. A Debt Collector's Letter to a Debtor's Attorney May Give Rise to a Claim Under the FDCPA.

In Count I of her complaint, Plaintiff alleges that the letter sent by the Defendant law firm to the attorney who represented her in the 2007 debt collection suit violated various provisions of the FDCPA that govern the communications and practices of debt collectors. Defendant now moves for the dismissal of Plaintiff's claims under the FDCPA, arguing that this statute does not regulate a debt collector's communications with a consumer's attorney, but only communications with the consumer herself. The Court cannot agree.

The starting point of the Court's inquiry is the language of the FDCPA itself. Specifically, Plaintiff's claims in this case rest upon two of the statute's provisions, 15 U.S.C. § 1692e and § 1692f. The first of these provisions states that a "debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § 1692e, and it then provides a non-exhaustive list of actions that run afoul of this prohibition. Similarly, the second provision states that a "debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt," 15 U.S.C. § 1692f, and it again identifies specific sorts of conduct that violate this provision. The question presented in Defendant's motion, then, is whether a debt collector's letter to a consumer's attorney fails as a matter of law to qualify as action or conduct prohibited by these FDCPA provisions.

The Sixth Circuit has not yet addressed this question. In Barany-Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir.2008), the court observed that it ordinarily applies the objective "least sophisticated consumer" standard in deciding whether particular conduct violates the FDCPA. In that case, however, the communications giving rise to the plaintiff's FDCPA claims were found in exhibits to a complaint and reply brief that had been served upon the plaintiff's counsel, rather than the plaintiff herself. Under these circumstances, the defendant debt collectors argued that the "least sophisticated consumer" standard was inappropriate, because the allegedly false or deceptive communications sent by the defendants had not been directed to or received by a consumer, but instead by the consumer's attorney. See Barany-Snyder, 539 F.3d at 333 n. 2. The Sixth Circuit found it unnecessary to consider this question, in light of its ruling that the plaintiff's FDCPA claims were subject to dismissal on other grounds. Barany-Snyder, 539 F.3d at 333 n. 2.

Outside the Sixth Circuit, there is a split of authority on this issue. Defendant relies principally on a Ninth Circuit ruling, over a dissent, that "communications directed solely to a debtor's attorney are not actionable under the [FDCPA]." Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir.2007). In so holding, the panel majority pointed to a number of FDCPA provisions that distinguish between a consumer and his or her attorney, reasoning that "[t]he statute as a whole thus suggests a congressional understanding that, when it comes to debt collection matters, lawyers and their debtor clients will be treated differently." Guerrero, 499 F.3d at 935. The court further observed that a consumer's attorney was "conspicuous[ly] absent" from the statute's otherwise broad definition of a "consumer," thereby suggesting that "Congress did not view attorneys as susceptible to the abuses that spurred the need for the legislation to begin with." 499 F.3d at 935. Thus, the court concluded that the FDCPA's "purposes are not served by applying its strictures to communications sent only to a debtor's attorney." 499 F.3d at 938.2

Judge Fletcher dissented from the ruling in Guerrero, opining that "[t]he majority's conclusions are inconsistent with the plain language of the statute." Guerrero, 499 F.3d at 941 (Fletcher, J., dissenting). In analyzing the FDCPA provision giving rise to some of the plaintiff's claims in that case — as well as certain of Plaintiff's claims here — Judge Fletcher explained:

Guerrero, 499 F.3d at 943-44 (Fletcher, J., dissenting).

Similarly, in Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773-74 (7th Cir.2007), the Seventh Circuit found nothing in the FDCPA provisions at issue here, §§ 1692e and 1692f, that would immunize debt collectors from liability for communications made to attorneys, as opposed to consumers. The court reasoned:

Evory, 505 F.3d at 773-74. Accordingly, the Seventh Circuit reached and decided the issue reserved by the Sixth Circuit in Barany-Snyder, holding that the "least sophisticated consumer" standard was "inappropriate for judging communications with lawyers." Evory, 505 F.3d at 774. Rather, the court elected to apply a "competent lawyer" standard, ruling 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." 505 F.3d at 775.3

Upon reviewing these decisions, the Court is persuaded that the Seventh Circuit and the dissent in Guerrero have put forward the better reading of the pertinent statutory language. As observed by the Seventh Circuit, sections 1692e and 1692f prohibit debt collectors from making false, deceptive, or misleading representations or employing unfair means to collect a debt, without delineating the classes of persons against whom debt collectors may or may not take such actions. See Evory, 505 F.3d at 773; see also Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir.2006) (noting that, in contrast to other FDCPA provisions that "restrict the scope of [their] application by including the word `consumer' in the text," "[s]ection 1692e contains no indication of to whom it applies, but rather states to what it applies (`any' representation or means)").4 The focus of these provisions, in other words, is on the debt collector, with sections 1692e and 1692f specifying various practices that debt collectors may not use. Nothing in these provisions indicates that, as a matter of congressional intent, representations cannot be false, deceptive, or misleading and debt collection practices cannot be unfair or unconscionable so long as they are targeted at attorneys rather than consumers. Rather, the Court agrees with the Seventh Circuit that such questions — i.e., whether a particular representation to a debtor's counsel is false, deceptive, or misleading, or whether a particular practice directed at a consumer's attorney is unfair or unconscionable — are better addressed through an appropriate tailoring of the usual "least sophisticated consumer" standard, as opposed to a per se rule of immunity that the FDCPA itself does not provide.

Having determined that communications to a debtor's counsel may give rise to viable claims under §§ 1692e and 1692f, the Court readily concludes that Plaintiff's FDCPA claims are not subject to dismissal at the present juncture. Defendant's challenge to these claims rests exclusively upon a legal proposition that the Court has now rejected — namely, that communications directed solely to a consumer's attorney are not actionable under the FDCPA. To be sure, Defendant remains free to argue that the particular communication it sent to Plaintiff's counsel — whether viewed under the "competent attorney" standard or any other standard Defendant might wish to advocate — did not violate either § 1692e or § 1692f. Yet, this is not a matter that can be resolved on the pleadings alone — and, in any event, Defendant has not urged the Court to do so. Accordingly, Plaintiff's FDCPA claims may go forward.

C. The Defendant Law Firm Is a "Regulated Person" Within the Meaning of the MCPA.

In Count II of her complaint, Plaintiff alleges that Defendant violated various provisions of the MCPA by communicating with her in a misleading or deceptive manner, making an inaccurate, misleading, untrue, or deceptive statement in a communication to collect a debt, and misrepresenting certain facts in a communication with her. In seeking the dismissal of this claim, Defendant argues that it does not qualify as a "regulated person" within the meaning of the Michigan statute. Upon reviewing the pertinent provisions of the MCPA, the Court finds that Plaintiff's claims under this statute may go forward.

Much like its federal counterpart, the FDCPA, the MCPA prohibits various sorts of conduct, communications, and activities in the collection of a consumer debt. See Mich. Comp. Laws § 445.252. These prohibitions are directed at "regulated person[s]," Mich. Comp. Laws § 445.252, which the statute defines as "person[s] whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency." Mich. Comp. Laws § 445.251(g).5 The statute then lists various categories of business entities and individuals that are encompassed within its definition of a "regulated person," and this list includes "[a]n attorney handling claims and collections on behalf of a client and in the attorney's own name." Mich. Comp. Laws § 445.251(g)(xi).

In support of its contention that it is not a "regulated person" within the meaning of the MCPA, Defendant relies exclusively on an unpublished federal district court decision holding that the defendant law firm in that case was not a "regulated person" under the Michigan statute. See Stolicker v. Muller, Muller, Richmond, Harms, Myers, & Sgroi, P.C., No. 04-733, 2005 WL 2180481, at *7 (W.D.Mich. Sept. 9, 2005). In that case, as here, the claims against the defendant law firm, Muller, arose from its activities undertaken on behalf of its client — namely, the law firm's filing of a state court collection action against plaintiff/debtor Sylvia Stolicker on behalf of creditor Capital One Bank. The Muller firm argued that it was not a "regulated person" under the MCPA because it did not file the state court suit in its "own name," as arguably required under the portion of the statutory definition of a "regulated person" addressing attorneys. The court agreed:

Stolicker, 2005 WL 2180481, at *7 (footnote omitted).

This Court is not persuaded by Stolicker's reading of the statutory definition of a "regulated person." As a threshold matter, Plaintiff correctly observes that this reading would wholly remove attorneys from the reach of the MCPA's definition of "regulated persons," because there seemingly is no circumstance under which an attorney would be simultaneously "handling claims and collections on behalf of a client and in the attorney's own name." Mich. Comp. Laws § 445.251(g)(xi) (emphasis added). Yet, if the Michigan Legislature meant to altogether exclude attorneys and law firms from the MCPA's definition of a "regulated person," there would be no reason to include a clause in this definition that expressly refers to attorneys. Because Defendant's preferred reading of the statute would render its reference to attorneys a nullity, there is strong reason to believe that this proposed interpretation of the MCPA is not correct.

When the MCPA's definition of a "regulated person" is juxtaposed against the very same language found in the section of the Michigan Occupational Code directed at collection agencies, it becomes clear that the term "regulated person" as used in the MCPA is intended to encompass a law firm pursuing debt collection activities on behalf of a client. The Occupational Code's definition of a "collection agency" includes language that exactly mimics the MCPA's definition of a "regulated person," with the result that those who are excluded from the definition of a "collection agency" are included as "regulated persons" under the MCPA. Compare Mich. Comp. Laws § 339.901(b) (providing that a "[c]ollection agency does not include a person whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency," and then specifying a non-exhaustive list of entities that are not collection agencies, including "[a]n attorney handling claims and collections on behalf of clients and in the attorney's own name"), with Mich. Comp. Laws § 445.251(g) (defining "regulated person" to include the persons excluded under the Occupational Code — namely, those "whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency"). Thus, the courts have recognized that a person or entity engaged in debt collection activities is either a "collection agency" under the Occupational Code or a "regulated person" under the MCPA, but not both. See Gradisher v. Check Enforcement Unit, Inc., 133 F.Supp.2d 988, 992-93 (W.D.Mich.2001); McKeown v. Mary Jane M. Elliott, P.C., No. 07-12016, 2007 WL 4326825, at *9 (E.D.Mich. Dec. 10, 2007).

Viewed in this context, the MCPA's reference to "[a]n attorney handling claims and collections on behalf of a client and in the attorney's own name," Mich. Comp. Laws § 445.251(g)(xi), is better understood as encompassing both attorneys who handle claims and collections on behalf of a client and attorneys who seek to collect a debt owed to themselves or their firms. To be sure, this statutory intent would be more clear if the word "and" were replaced with "or" in the above-quoted clause, and the Court is reluctant to rewrite the statute based solely upon its belief as to what the Michigan Legislature likely intended. Yet, the use of the word "and" in the MCPA appears to be a product of the wholesale replication of the corresponding language from the Occupational Code, with the evident legislative intent to include within the definition of a "regulated person" those persons and entities that are excluded from the definition of a "collection agency." The use of the word "and" in the Occupational Code is arguably more appropriate, as it appears in a non-exhaustive list of individuals and entities that do not qualify as a "collection agency," and thus is fairly read as excluding both attorneys who handle claims and collections "on behalf of clients" and those who pursue collections "in the attorney's own name." Mich. Comp. Laws § 339.901(b)(xi). By repeating this same language in the MCPA, the Michigan Legislature evidently intended to achieve what it sought to achieve more generally through its mirror-image definitions of "collection agency" and "regulated person" — namely, that attorneys should be treated as "regulated persons" (and should be excluded from the definition of a "collection agency") whether they handle claims and collections "on behalf of a client" or "in the attorney's own name."

The court in McKeown, supra, reached precisely this conclusion, albeit without any extended discussion or analysis of the pertinent statutory language. There, as here, the plaintiffs asserted claims under the MCPA (as well as the FDCPA) arising from the defendant law firm's collection activities on behalf of a creditor. The court agreed with the law firm's contention that it was not a "collection agency" under the Michigan Occupational Code, but found that the firm "fits squarely within the definition" of a "regulated person" under the MCPA. McKeown, 2007 WL 4326825, at *9. Likewise, this Court finds that the Defendant law firm here fits squarely within this definition. Accordingly, the Court rejects Defendant's legal challenge to Plaintiff's claims under the MCPA.

IV. CONCLUSION

For the reasons set forth above,

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant's September 28, 2010 motion to dismiss (docket #3) is DENIED.