Tinsley v. Integrity Financial Partners, Inc.

In the United States Court of Appeals For the Seventh Circuit No. 10-2045 C HRISTOPHER T INSLEY, Plaintiff-Appellant, v. INTEGRITY F INANCIAL P ARTNERS, INC., Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 C 7925—James F. Holderman, Chief Judge. S UBMITTED O CTOBER 21, 2010—D ECIDED F EBRUARY 11, 2011 Before E ASTERBROOK, Chief Judge, and M ANION and H AMILTON, Circuit Judges. E ASTERBROOK, Chief Judge. After being dunned for a debt, Christopher Tinsley retained a lawyer, who sent the debt collector (Integrity Financial Partners) a letter stating that Tinsley refuses to pay and lacks assets that the creditor could seize. The letter concluded: “we request that you cease all further collection activities and direct all future communications to our office.” The 2 No. 10-2045 debt collector has refrained from calling or writing to Tinsley but did call the lawyer with a request for pay- ment. Tinsley then filed this suit under 15 U.S.C. §1692c(c), a section of the Fair Debt Collection Practices Act that, Tinsley contends, prohibits debt collectors from contacting a debtor’s legal counsel as well as the debtor himself, once the debtor refuses to pay. Here is the text of §1692c(c): If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except— (1) to advise the consumer that the debt col- lector’s further efforts are being terminated; (2) to notify the consumer that the debt collec- tor or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt. The district court concluded that a lawyer is not “the consumer” and granted summary judgment to the debt No. 10-2045 3 collector. The court relied on §1692c(d), which defines the word “consumer” for the purpose of §1692c to include “consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.” This list excludes lawyers, the court observed. Tinsley’s principal argument on appeal is that, whether or not a debtor’s lawyer is “the consumer”, the lawyer is the debtor’s agent, so notice to the lawyer should be treated as notice to the debtor. Tinsley observes that 15 U.S.C. §1692a(2) defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” Anything a debt collector says to a debtor’s lawyer is an indirect communication to the debtor. Our opinion in Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773 (7th Cir. 2007), relied on §1692a(2) when holding that docu- ments sent to a debtor’s lawyer must contain the infor- mation that is required to be in documents sent directly to the debtor. Accord, Allen v. LaSalle Bank, N.A., 2011 U.S. App. L EXIS 587 at *9 (3d Cir. Jan. 12, 2011). It follows, Tinsley maintains, that, once a debtor invokes his rights under §1692c(c), any communication to either the debtor or his lawyer is forbidden, unless it comes within one of the subsection’s three provisos. At least one district judge has accepted this argument, Startare v. Credit Bureau of North America, LLC, 2010 U.S. Dist. L EXIS 54830 (N.D. Ill. June 3, 2010), though as far as we can tell no appellate court has done so. (Nor has any appellate court rejected it; this appears to be the first time the issue has reached a court of appeals.) 4 No. 10-2045 The language of §1692c(c), read together with §1692a(2) and the rule that a communication to an agent is deemed to be a communication to the principal, supports Tinsley’s argument. But we have yet to consider sub- sections (a) and (b) of §1692c, which put matters in a different light. Here is the full text of §1692c: Communication in connection with debt collec- tion (a) Communication with the consumer generally Without the prior consent of the consumer given directly to the debt collector or the express permis- sion of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt— (1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the ab- sence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antemeridian and before 9 o’clock postmeridian, local time at the consumer’s location; (2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a com- No. 10-2045 5 munication from the debt collector or unless the attorney consents to direct communica- tion with the consumer; or (3) at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communi- cation. (b) Communication with third parties Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express per- mission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not com- municate, in connection with the collection of any debt, with any person other than the con- sumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector. (c) Ceasing communication If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except— 6 No. 10-2045 (1) to advise the consumer that the debt collec- tor’s further efforts are being terminated; (2) to notify the consumer that the debt collec- tor or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt. (d) “Consumer” defined For the purpose of this section, the term “con- sumer” includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator. Subsections (a) and (b) provide valuable context. Tinsley’s argument makes hash of them, because if the word “consumer” is replaced by “lawyer” (whether because a lawyer is a “consumer” or because a communication to a lawyer is an indirect communication to a consumer) both subsections become gibberish. Subsection (a)(2) tells us that a debt collector who knows that a consumer is represented by an attorney must communicate only with the lawyer. Replace the word “attorney” in this subsection with “consumer,” and it goes haywire. It would then say that, if a debt collector knows that a consumer is represented by a consumer, No. 10-2045 7 the debt collector must communicate with the con- sumer rather than the consumer. The problem is not simply that the words “consumer” and “attorney” must mean different things in this subsection (which in con- nection with §1692c(d) implies that they mean dif- ferent things throughout §1692c). It is that the point of subsection (a)(2) is to tell the debt collector that it is OK to communicate with the debtor’s attorney even when it is forbidden to communicate with the debtor. On Tinsley’s understanding of “consumer” and §1692a(2), by contrast, once a debt collector knows that a debtor has a lawyer, it becomes illegal to communicate with either the debtor or the lawyer—because any communi- cation with the lawyer is an “indirect” communication with the client, and thus forbidden. That would be an implausible understanding of §1692c(a)(2). Why would Congress have provided that hiring a lawyer makes it impossible for the debtor and debt collector to communi- cate through counsel? Suppose that, after a debtor hires a lawyer, the debt collector approaches counsel with a settlement pro- posal. You can’t negotiate terms without first demanding (some) payment. Subsection (c)(2) and (3) permits the debt collector to inform counsel that a suit is impending. If that’s permissible, settlement negotiations also should be possible, so that litigation can be averted. Yet any settlement proposal made to the lawyer would have to be discussed with the client, which would amount to an indirect communication to the consumer. Tinsley’s understanding of §§ 1692a(2) and 1692c would throw a monkey wrench into ordinary pre-litigation discussions between lawyers. 8 No. 10-2045 Now consider subsection (b). This subsection says that, except with a debtor’s or a court’s permission (or in connection with post-judgment proceedings), a debt collector must not communicate with persons “other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collec- tor.” Once again this tells us that “consumer” and the debtor’s “attorney” mean something different. An un- avoidable implication of subsection (b) is that it is per- missible to communicate with the consumer’s attorney whether or not the consumer or a court has approved in advance. On Tinsley’s reading of “consumer” and §1692a(2), however, this subsection loses its meaning. Because Tinsley’s understanding causes serious problems for the structure and operation of subsections (a)(2) and (b), and is not supported by subsection (d)—which, recall, does not include the debtor’s lawyer in the definition of “consumer”—we conclude that §1692c as a whole permits debt collectors to communicate freely with consumers’ lawyers. A debtor who does not want to be pestered by demands for payment, settle- ment proposals, and so on, need only tell his lawyer not to relay them. This conclusion is consistent with Evory, which did not concern §1692c. To the contrary, the holding of Evory that debt collectors must furnish debtors’ lawyers with the same information that goes in notices sent directly to debtors supposes that debt collectors are free to contact debtors’ known lawyers under §1692c(a)(2) and (b), No. 10-2045 9 something that Tinsley’s interpretation of the statute would forbid. Integrity Financial Partners did just what Tinsley’s lawyer requested: it “direct[ed] all further communications to our office.” Doing this did not violate the Act. A FFIRMED 2-11-11