ANDERSON, Circuit Judge.
Xilena Caceres appeals the district court's dismissal of her putative class action suit against law firm McCalla Raymer for violating the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA" or "the Act"). The district court granted McCalla's motion to dismiss, reasoning that its letter to Caceres was not an initial communication, as defined by the Act, and that the alleged error in the letter was not misleading. Caceres appeals, arguing that the district court got both conclusions wrong.
Caceres received a letter from McCalla Raymer dated October 19, 2012, which
Although the subject line was "Reverse Mortgage Solutions, INC. vs. XILENA CACERES," the letter was not accompanied by the service of any papers initiating a lawsuit, nor did it provide any other information pertaining to a legal matter. It did state, "Even though you are required to file a response to the lawsuit prior to the thirty (30) days, your validation rights, as set forth in this notice, shall not expire for thirty (30) days." This statement, a stray reference to the creditor as plaintiff, and the caption were the only indications that a lawsuit was forthcoming. A foreclosure action was indeed filed three days later and the complaint was served on Caceres two days after that.
Caceres brought suit pursuant to 15 U.S.C. § 1692e, which prohibits debt collectors from using false or deceptive means to collect a debt. The FDCPA also requires the debt collector to send the debtor a written notice containing certain information in an initial communication (or provided within five days). This written notice is sometimes referred to as a validation notice. The required information includes the amount of the debt, the name of the creditor to whom the debt is owed, and information about disputing the debt. 15 U.S.C. § 1692g(a). Specifically, and of importance in this case, the Act requires a statement that a failure to dispute the amount within thirty days will result in the debt collector assuming that the debt is valid. § 1692g(a)(3).
The district court dismissed Caceres' class action suit. It held that the letter was not an initial communication as defined in the Act because it was issued regarding a foreclosure and thus fell under an exception to the definition of communication. In the alternative, the court held that even if the letter were, the technical violation of the statute would not mislead the least sophisticated consumer regarding the nature of her rights. We first address the initial communication issue, and then the issue of whether the letter was misleading.
Congress enacted the FDCPA "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.
Several courts have stated that the Act defines communication expansively. The Second Circuit held that if a communication conveys information about a debt and its aim is at least in part to induce the debtor to pay, it falls within the scope of the Act. Romea v. Heiberger & Assocs., 163 F.3d 111, 116 (2d Cir.1998). This Court adopted that reasoning in Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1218 (11th Cir.2012), where we rejected a law firm's argument that a letter pertaining to a secured debt did not fall under the Act's strictures. In Reese, we looked at the language of the letter to determine that it was an attempt to collect a debt. Id. at 1217. We pointed specifically to the statements in the letter that the lender demanded full and immediate payment, threatened that unless the debtors paid, attorneys' fees would be added, and stated that the law firm was attempting to collect a debt and was acting as a debt collector; we held it was an attempt to collect a debt. Id. We rejected the law firm's argument that it was simply to inform the debtors that the lender was seeking a nonjudicial foreclosure; we stated we would not ignore the statements demanding payment and pointed out that a communication can have more than one purpose. Id. We stated, "The fact that the letter and documents relate to the enforcement of a security interest does not prevent them from also relating to the collection of a debt within the meaning of § 1692e." Id.
Beginning, as we should, with the language of the statute, we agree that the definition of communication is very broad. As noted above, it is defined as "the conveying of information regarding a debt directly or indirectly to any person through any medium." Also, as noted above, the prohibition of "false, deceptive, or misleading" representations applies "in connection with the collection of any debt." § 1692e. In turn, the exception to the definition of "initial communication" clearly exempts "[a] communication in the form of a formal pleading." § 1692g(d).
The absence of one or more of the statutory requirements for the validation notice is actionable as a violation of 15 U.S.C. § 1692e
Id. at 1194 (internal quotations and citations omitted).
Here, the letter substituted "creditor" for "debt collector" when informing the consumer of who would assume that
Because we hold that the letter, which was an initial communication, would not
AFFIRMED.
15 U.S.C. § 1692g(d) & (e).
15 U.S.C. § 1692e.
Most of the cases relied upon by Caceres involved validation notices that omitted altogether the phrase "by the debt collector," § 1692g(a)(3), and did not advise the debtor what entity would be entitled to assume the debt to be valid. See, e.g., Koch v. Atkinson, Diner, Stone, Mankuta, & Ploucha, P.A., 2011 WL 4499100 (S.D.Fla. Sept. 27, 2011); Guerrero v. Absolute Collection Serv., Inc., 2011 WL 8183860 (N.D.Ga. Oct. 6, 2011); Nelson v. Select Fin. Servs., Inc., 430 F.Supp.2d 455 (E.D.Pa.2006). Those cases concluded that a validation notice that did not identify the entity which could assume the validity of the debt meant that the least sophisticated consumer might reasonably believe that the failure to dispute the debt within thirty days would entitle a court or other authoritative entity to assume the validity of the debt — i.e., that the debtor's right to dispute the debt after the thirty days would be adversely affected. Of course, such a perception would be inconsistent with the statute, which expressly provides that the failure of the debtor to dispute the debt within thirty days "may not be construed by any court as an admission of liability." § 1692g(c). The risk that the least sophisticated consumer would think that a court or other authoritative agency would be entitled to assume the validity of the debt — the risk feared by those cases — is not present in the instant case. Thus, the cases relied upon by Caceres are distinguishable. Only one case, Iyamu v. Clarfield, Okon, Salomone, & Pincus, PL, 950 F.Supp.2d 1271 (S.D.Fla.2013), actually supports Caceres' position. For the reasons set forth in this opinion, we disagree with the result of Iyamu.
Finally, we note that debt collectors might consider including in their validation notices the substance of § 1692g(c). Section 1692g(c) provides as follows: "The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer." 15 U.S.C. § 1692g(c).