SUSAN L. CARNEY, Circuit Judge:
Matthew J. Hart sued FCI Lender Services, Inc. ("FCI"), his mortgage loan servicer and a debt collector, seeking damages under the Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C. § 1692 et seq., on behalf of himself and others similarly situated. Hart asserts that FCI violated the Act by sending him two written communications that failed to comply with FDCPA requirements that debt collectors timely provide certain notices to debtors. The first of the communications is a letter advising Hart that FCI had assumed mortgage servicing responsibilities related to Hart's mortgage loan. The second is a payment statement that FCI sent Hart some months later. The Act's notice obligations are triggered by a debt collector's "initial communication with a consumer in connection with the collection of any debt." 15 U.S.C. § 1692g.
The United States District Court for the Western District of New York (Charles J. Siragusa, Judge) granted FCI's motion to dismiss Hart's amended complaint for failure to state a claim, ruling principally that the letter, which the court viewed as primarily a transfer-of-servicing informational notice sent pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605, was not also a communication
Construing the FDCPA in light of its remedial purposes, we agree with Hart that he has adequately alleged that FCI sent the letter "in connection with the collection of [a] debt," thereby triggering the FDCPA's initial notice requirements. We accordingly vacate the judgment and remand for further proceedings, without addressing Hart's alternative arguments that the later payment statement triggered those requirements and that he should have been given a further opportunity to amend his complaint.
We draw this narrative from the allegations of Hart's first amended complaint, see App. 113-32, including the documents attached to the amended complaint as exhibits, see Fed.R.Civ.P. 10(c). We accept Hart's well-pleaded factual allegations as true and draw all reasonable inferences in his favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Hart, a mortgagor, filed suit under the Act seeking damages from FCI, a corporation offering "a full spectrum of loan servicing, collection and foreclosure services locally or nationally." Am. Compl. ¶ 8. As an "integral part of its business," FCI regularly collects payments on "non[-]performing" loans — that is, loans that are in default. Id. ¶ 11. Hart's case rests primarily on a letter sent to him by FCI in July 2012 (the "Letter"), after FCI assumed loan servicing obligations for Hart's mortgage loan from GMAC Mortgage, LLC ("GMAC"), the prior servicer. Hart was in default on his mortgage loan when FCI assumed servicing responsibilities.
The text of the Letter requires our close scrutiny. Entitled "Transfer of Servicing Letter" and dated "7/17/2012," it consists of one and one-half pages on FCI letterhead in the format of a signed letter, and two numbered pages of attachments. App. 123-26. In the body of the Letter, FCI notifies Hart that FCI has become his mortgage loan servicer: The text begins, "Please be advised that effective June 28, 2012 the servicing of your mortgage loan with GMAC Mortgage, LLC, secured by a Deed of Trust/Mortgage on real property, has been assigned to FCI Lender Services, Inc." App. 123. It informs Hart that his loan number has been changed and instructs that "[b]eginning June 28, 2012 you should mail your payments, including all past due payments, to FCI Lender Services, Inc....." Id. The Letter provides relevant timing, payment, and correspondence particulars about the transfer.
The body of the Letter also refers expressly to consumer rights conferred by section 6 of RESPA. Congress enacted RESPA to protect consumers from certain "abusive practices" that had developed "in some areas of the country" with respect to the settlement process used for residential real estate purchases and sales. 12 U.S.C. § 2601(a). RESPA obligates a new servicer of certain types of mortgage loans timely to notify the borrower of the change in servicer and to provide certain other information regarding the transfer. See id. § 2605(c). Reflecting (as none dispute) FCI's effort to meet its obligations under RESPA, the Letter's body identifies the effective date of the servicing transfer, provides phone numbers for both FCI and
The Letter's third page (the first page of the attachment) plays a pivotal role here. Entitled "IMPORTANT NOTICES — PLEASE READ," it contains the following language, in the following format (insofar as reproducible here):
THIS IS AN ATTEMPT TO COLLECT UPON A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE
App. 125(sic).
On February 13, 2013, Hart filed this suit against FCI as a putative class action, alleging that FCI violated the FDCPA by sending the Letter and, inter alia, "failing to identify the current creditor" and "misstat[ing] the debtor's rights," Compl. ¶ 28 — information that the Act requires a debt collector to provide within five days of an "initial communication with a consumer in connection with the collection of any debt," 15 U.S.C. § 1692g. Hart sought an award of statutory damages.
FCI moved under Fed.R.Civ.P. 12(b)(6) to dismiss the amended complaint for failure to state a claim, arguing principally that as a matter of law the Letter was not FCI's "initial communication ... in connection with the collection of any debt" under the FDCPA. The District Court accepted that argument and granted FCI's motion to dismiss. See Hart, 2014 WL 198337, at *7-8. In light of deadlines imposed by a scheduling order entered in the interim,
Hart timely appealed.
Hart maintains that the Letter was sent "in connection with the collection of [a] debt." In the alternative, he contends that the amended complaint plausibly established that the Payment Statement triggered FCI's notice obligations and that the District Court abused its discretion in denying him leave to further amend his complaint to add new allegations relating to the Payment Statement. FCI responds, in essence, that: (1) the Letter was intended merely to comply with RESPA by providing certain information — that is, it was not aimed at "collect[ing][a] debt" — and thus did not trigger the FDCPA's notice requirements; (2) Hart failed to plead adequately that the Payment Statement served as a predicate for an FDCPA violation; and (3) the District Court acted within the fair scope of its discretion in denying Hart a second opportunity to amend his complaint.
We review de novo a district court's grant of a defendant's motion to dismiss. See City of Pontiac Gen. Emps.' Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted).
In passing the FDCPA, Congress aimed "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). A particular goal was to address "`the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.'" Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir.2008) (quoting S.Rep. No. 95-382, at 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1699).
FCI concedes for purposes of this appeal that it is a "debt collector" covered by the Act. Further, the parties agree that the Letter was FCI's "initial communication" with Hart.
FCI urges that, rather than seeking to compel Hart to pay his debt, the Letter was intended only to provide transfer-of-servicing information so as to comply with RESPA. Accordingly, FCI argues, the Letter was not sent "in connection with the collection" of Hart's debt, and FCI had no obligation to provide the complete recitation of debt-related information required by § 1692g.
The District Court accepted this construction of both the Act and the Letter. Examining the Letter, which it denominated
Hart, 2014 WL 198337, at *6-7 (emphasis in original). The court acknowledged that the third page of the Letter included certain required FDCPA notifications — including the language "THIS IS AN ATTEMPT TO COLLECT UPON A DEBT," see id. at *2 — but the court did not refer to 1 that material in its analysis, see id. at *5-7.
This court has never addressed the scope of the FDCPA's "in connection with the collection of any debt" language. We here conclude that whether a communication is "in connection with the collection of [a] debt" is a question of fact to be determined by reference to an objective standard. Thus, in determining at the motion to dismiss stage whether the Letter triggers the Act's notice provisions, we must view the communication objectively, asking whether Hart has plausibly alleged that a consumer receiving the communication could reasonably interpret it as being sent "in connection with the collection of [a] debt," rather than inquiring into the sender's subjective purpose. See, e.g., Ruth v. Triumph P'ships, 577 F.3d 790, 798 (7th Cir.2009) ("[T]he proper standard [for assessing whether a communication is in connection with the collection of any debt] is an objective one."); cf. Grden v. Leikin Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir.2011) (affirming award of summary judgment to defendant where a "reasonable jury could not find" that the communication was in connection with the collection of a debt). Such an inquiry is consistent with the FDCPA's goal of protecting consumers: if a consumer receiving a letter could reasonably understand it to be a communication in connection with the collection of a debt, then the consumer is entitled to the protections Congress has mandated for such communications. An objective standard that determines the apparent purpose of a communication with an eye towards a consumer's understanding also aligns with our teaching that the FDCPA is "remedial in nature, [and] its terms must be construed in liberal fashion if the underlying Congressional purpose is to be effectuated." Vincent v. The Money Store, 736 F.3d 88, 98 (2d Cir.2013) (internal quotation marks omitted).
The parties dispute the extent to which a communication — to be deemed made "in connection with the collection of any debt" — must be designed to induce the debtor's payment. FCI, citing standards adopted by the Sixth and Seventh Circuits, argues that such a communication "must attempt to induce the borrower to pay, not just convey information about the debt." Appellee's Br. 19; see Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 384-85 (7th Cir.2010) (ruling that the FDCPA "does not apply to every communication between a debt collector and a debtor," but that a communication made "to induce" a debtor to settle her debt will trigger the statute's protections (emphasis in original)); see also Grden, 643 F.3d at 173 (holding that, for the FDCPA's notice provision to apply, "an animating purpose of the communication must be to induce payment by the debtor"). Hart, in turn, points out that a district court in our Circuit, in Tocco v. Real Time Resolutions, Inc., 48 F.Supp.3d 535 (S.D.N.Y.2014), recently construed the phrase far more flexibly
We need not delineate the outer bounds of the phrase "in connection with the collection of any debt," however, because we have no difficulty in concluding that an attempt to collect a debt — which we believe the Letter was — qualifies as a communication "in connection with the collection of any debt." Indeed, we see few types of communications as more obviously "in connection with the collection" of debts than attempts to collect debts. See, e.g., Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303 (11th Cir.2014) (concluding that a letter was "an attempt to collect a debt" and therefore a "communication in connection with the collection of a debt"). Moreover, in passing the FDCPA, Congress identified abusive collection attempts as primary motivations for the Act's passage. See S.Rep. No. 95-382, at 2. Accordingly, we think that treating an attempt to collect a debt as a communication "in connection with the collection of any debt" easily accords with the plain meaning of the broad statutory language, as well as with the Act's remedial purpose of halting abusive collection practices and giving debtors adequate information about their rights and obligations.
Hart has sufficiently alleged that the Letter — viewed objectively — is an attempt to collect a debt. The Letter references Hart's particular debt, directs Hart to "mail [his] payments, including all past due payments, to FCI Lender Services, Inc." at a specified address, and refers to the FDCPA by name. App. 123, 125. More critically, it warns Hart that he must dispute the debt's validity within thirty days after receiving the Letter or his debt will "be assumed to be valid." App. 125. Finally, and most importantly, the Letter, in its two-page attachment, emphatically announces itself as an attempt at debt collection: "THIS IS AN ATTEMPT TO COLLECT UPON A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." Id. A reasonable consumer would credit the Letter's warning, its instruction to take action within thirty days, and its statement that it represents an attempt to collect a debt.
FCI asserts that the inclusion of RESPA-required notices in the Letter's main body demonstrates that the Letter's purpose was merely to convey the information that RESPA mandated. In support of that position, it further notes that the Letter does not discuss the current status of Hart's debt or the amount due on his loan, nor does it explicitly demand payment from Hart. But for the reasons discussed above, even if it could be ascertained that FCI's sole intention in sending the Letter was to comply with RESPA, we are hard put to accept that a reasonable consumer receiving the Letter would necessarily understand that FCI did not send the Letter in connection with the collection of her debt. And we see no reason that the Letter could not serve more than one purpose
FCI further asserts that it is circular to conclude that the Letter's statement that it is "an attempt to collect a debt" helps render the Letter a communication "in connection with the collection of [a] debt." As FCI points out, the Act elsewhere requires debt collectors to "disclose in the initial written communication with the 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). FCI argues that it would be unfair to consider this statutorily-required language as evidence that the Letter is in actuality an attempt to collect a debt. But a debtor receiving the Letter has no reason to know that the language is required by the FDCPA or to believe that the language mandated by § 1692e can safely be disregarded on that basis. To the contrary, as we have highlighted, the Letter clearly announces itself an attempt to collect a debt, and its other text only emphasizes the plausibility and gravity of that announcement. We see no reason why we should not take it at its word, nor any reason that a consumer would (or indeed should) fail to credit the clear language of the document. See, e.g., Alibrandi v. Fin. Outsourcing Servs., Inc., 333 F.3d 82, 87-88 (2d Cir.2003) (holding that lender's agent's self-identification as a debt collector in communication to borrower was relevant to whether lender considered the loan in default). While it may be unfortunate for debt collectors that the use of a defective notice helps give rise to an obligation to provide a proper notice, the solution is to improve the defective notice.
Indeed, defective § 1692g notices pose particular dangers to consumers. Here for instance, because the Letter states that the debt will, after thirty days, be "assumed to be valid," a consumer who fails timely to act upon the Letter might believe that she has forfeited her right to challenge the accuracy of FCI's debt assessment. But under § 1692g(a) — which FCI paraphrased incompletely in the Letter — such an unchallenged debt may be assumed to be valid only by the debt collector, leaving the consumer free to contest the debt with the lender either directly or in the courts. Compare App. 125 (quoted supra pp. 221-22), with 15 U.S.C. § 1692g(a). By misleading the consumer into believing she had forfeited her right to dispute the validity of her putative debt with the lender, FCI would have frustrated a major objective of the FDCPA.
Finally, FCI points out that Congress, in explaining its decision to pass the FDCPA, cited a number of aggressive practices engaged in by the debt collection industry that it particularly intended to deter by passing the Act. FCI's argument seems to be that, because Congress "targeted specific methods of collection," Appellee's Br. 19, which did not include communications such as the Letter, the Act's
In sum, Hart has plausibly alleged that the Letter was a "communication in connection with the collection of [a] debt." Accordingly, the District Court erred in dismissing the amended complaint and ruling as a matter of law that the Letter did not trigger § 1692g's notice requirement.
Because we conclude that Hart has stated a claim based on the Letter, we need not decide whether Hart alleged adequately that the Payment Statement also was a communication in connection with the collection of a debt. A debt collector's duty to provide a § 1692g notice arises only upon the "initial communication with a consumer in connection with the collection of any debt." 15 U.S.C. § 1692g(a) (emphasis added). As Hart himself notes, "[t]here is only one claim and one recovery of damages regardless of the number of collection communications sent without complying with § 1692g." Appellant's Reply Br. 17. Since Hart has plausibly alleged that the Letter was sent "in connection with the collection of any debt," any allegations relating to the Payment Statement are irrelevant in determining whether Hart stated a claim that FCI violated the Act by failing to provide a § 1692g notice.
Similarly, we need not decide whether the District Court abused its discretion in denying Hart's request to amend his complaint a second time. Hart's request to amend was expressly conditioned on a ruling that the Letter was not a communication "in connection with the collection of any debt": at oral argument before the District Court on FCI's motion to dismiss, Hart stated that he "would ask for an opportunity to replead with [the Payment Statement], if the Court were inclined to rule" that the Letter did not trigger § 1692g notice obligations. App. 191; see also Appellant's Br. 40 ("[T]he Court should ... hold that plaintiff's amended complaint stated a claim, or alternatively, that plaintiff should be allowed to amend.").
Applying an objective standard to resolve the question, we decide that Hart
15 U.S.C. § 1692g(a).