O'Rourke v. Palisades Acquisition Xvi, LLC

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1376

M ICHAEL O’R OURKE, individually and
on behalf of a class,
Plaintiff-Appellant,
v.

P ALISADES A CQUISITION XVI, LLC, and
P ALISADES C OLLECTION, LLC,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 00430—Charles R. Norgle, Sr., Judge.

A RGUED S EPTEMBER 30, 2010—D ECIDED M ARCH 17, 2011

Before F LAUM, M ANION, and T INDER, Circuit Judges.
M ANION, Circuit Judge. Michael O’Rourke had a large
outstanding balance on his credit card. Over the years,
the unpaid debt was sold to several debt collectors and
finally to Palisades Acquisition XVI. It sought but failed
to collect on the debt and eventually sued O’Rourke in
state court. Attached to the complaint was an exhibit that
2 No. 10-1376

closely resembled a credit card statement listing the
balance he owed and placing Palisades in the place of the
issuer. O’Rourke sued in federal court claiming that the
attachment violated the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 (“the Act”). Unlike most lawsuits
under the Act, he claimed that the attachment was action-
able because it was meant to mislead the state court judge.
The district court granted summary judgment for Palisades
and O’Rourke appeals. The Act regulates communica-
tions directed at the consumer; since it does not extend
to communications that are allegedly meant to mislead
the judge in a state court action, we affirm.

I.
In 2001, O’Rourke owed several thousand dollars on
his Citibank credit card but, for reasons unknown, he
never paid the bill. Over time, he mistakenly assumed
that the debt was barred by the statute of limitations. Then
one day he received a collection notice from a law firm
representing the debt’s new owner, Palisades. He ignored
it. Several months later, he received a summons and
complaint with some exhibits attached. One of the
exhibits was a statement that looked like a credit card
bill, complete with a statement closing date several
months before the complaint was filed, and it listed
Palisades as the issuing party. Despite looking authentic,
it was not an actual copy of a credit card statement. And
Palisades admits that it never sent the statement to
O’Rourke before filing the suit.
No. 10-1376 3

O’Rourke eventually hired a lawyer, and on the day of
trial, Palisades voluntarily dismissed the case. After
Palisades dismissed its suit, O’Rourke sued it in federal
court claiming that the exhibit violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692. Unlike most
cases filed under the Act, O’Rourke doesn’t claim that
the statement was materially deceptive to him or to the
unsophisticated consumer. Instead, he claims that the
statement is materially false, deceptive, and misleading
to a state court judge, specifically one who is viewing it
in the context of granting a default judgment.
O’Rourke frames his argument around the over-
burdened court system in Cook County, Illinois, the
problems inherent in the debt collection business, and
Palisades’s chicanery. He claims that in Cook County—
where Palisades filed its complaint—there are over 100,000
contract-claim cases filed every year, where parties sue
over bad debts. This massive volume of cases is
divided between seven full-time judges, giving each
over 14,000 of these cases a year, with most of them
being resolved by default judgments. A judgment, of
course, changes the nature of the obligation; the debt
collector can now create a judgment lien on real estate,
and enable other collection methods, including gar-
nishing the debtor’s wages.
Debt collectors who work on very thin profit margins
rely on these default judgments for two reasons. The
first is that it is too expensive to actually litigate the
case, especially when the debt is relatively small and
previous collection efforts have failed. So, when a party
4 No. 10-1376

actually defends against the suit, the debt collector
simply dismisses the suit—Palisades did precisely this
with O’Rourke. The second reason is that they cannot
always establish the debt. Like the current mortgage
problem that dominates the headlines, these debts are
packaged from the original owner and sold to debt col-
lectors in a portfolio; if the portfolio is large enough,
sometimes it’s split among several debt collectors. And
sometimes, the debt is packaged again and sold to a
second or third debt collector—Palisades was the fourth
successive assignee of O’Rourke’s debt. This poses dif-
ficulties for everyone. The packaging and re-packaging
of the debt can keep the debt collector from ever being
able to verify the original debt. It can also affect the
debtor: as in this case, the same debt is sold to multiple
parties with each attempting to collect on it, sometimes
at the same time. Thus, with the costs of litigation and
the difficulties establishing the debt, when a debt col-
lector cannot get payment through phone calls and
letters and it has to go to court, the debt collector will
often rely on default judgments as the last resort.
In most cases when a defendant fails to appear and
answer the allegations in a properly pleaded complaint,
those allegations are deemed admitted and default judg-
ment is entered for the plaintiff. But the Illinois Rules
of Civil Procedure also provide that even in the event
the defendant fails to appear and plead, “the court may
in either case, require proof of the allegations of the
pleadings upon which relief is sought.” 735 ILCS
5/2-1301(d). Although it is unclear how often courts
exercise their discretion and require proof of the allega-
No. 10-1376 5

tions in the complaint, it does happen. E.g., Universal Cas.
Co. v. Lopez, 876 N.E.2d 273, 278 (Ill. App. Ct. 2007); Colonial
Penn Ins. Co. v. Tachibana, 369 N.E.2d 177, 179 (Ill. App. Ct.
1977).
Naturally, with the difficulties outlined above, debt
collectors want to avoid having to prove their damages
to the court, so they attempt to fully establish all the
facts with the complaint and the exhibits. In Illinois, one
way that a plaintiff can establish a debt is through the
account-stated theory or method. Under that method,
when a party receives a bill or account statement and
does not object to it within a reasonable time, the bill or
statement serves as evidence of both an agreement to
pay and the account’s accuracy. Delta Consulting Grp, Inc.
v. R. Randle Constr., Inc., 554 F.3d 1133, 1138 (7th Cir.
2009) (citing W.E. Erickson, Constr., Inc. v. Congress-Kenil-
worth Corp., 477 N.E.2d 513, 520 (1985)).
With this understanding, the statement attached to
the complaint in this case takes on an added significance.
It explains why the statement would be dated for six
months before the complaint was filed and why it
was, in fact, never sent to O’Rourke: Palisades ap-
parently wanted to give the judge the impression that
O’Rourke had received the statement and never objected.
Thus, a judge who examines the complaint and the at-
tached statement trusting it to be authentic would
believe that there is no reason to exercise his discretion
and require additional proof of the debt.
While this reflects negatively on Palisades’s debt-collec-
tion practices, the question is not whether this dubious
6 No. 10-1376

method is an acceptable means of practicing law. Nor is
the question whether the attached statement would have
misled the unsophisticated consumer. Rather, the
question O’Rourke presents is whether this statement,
which O’Rourke alleges was meant to deceive the state
court judge, is actionable under the Act. No other
question was raised on appeal and no cross-appeal was
filed, so we are limiting our analysis to what the parties
have argued.1

II.
We review de novo the district court’s granting of
summary judgment. Ruth v. Triumph P’ships, 577 F.3d 790,
795 (7th Cir. 2009). And we may affirm on any ground
that appears in the record. Bivens v. Trent, 591 F.3d 555,
559 (7th Cir. 2010).
On appeal, O’Rourke continues to claim that the exhibit
is materially false and would mislead the Cook County
judge handling his case; thus, it violates § 1692e. That

1
Nothing in the opinion states or should be read to address
whether the Act applies to the entire judicial process. That
question was left open in Beler v. Blatt, Hasenmiller, Leibsker &
Moore, LLC, 480 F.3d 470, 473 (7th Cir. 2007), where we
observed, without holding, that the Act’s protections may not
stretch into formal legal pleadings. Id. at 473. This case does
not force us to revisit the question and answer whether it
does. Instead, this opinion addresses the question presented:
whether the Act covers filings that are meant to deceive a
state court judge.
No. 10-1376 7

section is broadly written and prohibits the use of “any
false, deceptive, or misleading representation[s] or means
in connection with the collection of any debt.” 15 U.S.C.
§ 1692e. It then has a non-exhaustive list of conduct that
violates the Act. O’Rourke specifically alleges that the
misleading credit card statement violates § 1692e(2)(A)
and (10). The first subsection prohibits the false repre-
sentation of “the character, amount, or legal status of any
debt.” The second prohibits “[t]he use of any false repre-
sentation or deceptive means to collect or attempt to
collect any debt.” Nothing in those subsections or in
§ 1692e states that the Act applies to statements made to
judges, but at the same time, the Act’s language is not
specifically limited to statements directed at consumers.
Yet when read in light of the Act’s purpose and numer-
ous provisions, the prohibitions are clearly limited to
communications directed to the consumer and do not
apply to state judges. The Act is meant “to protect con-
sumers against debt collection abuses.” 15 U.S.C. § 1692(e).
To accomplish this purpose, § 1692e broadly prohibits
a debt collector from using “any false, deceptive, or
misleading representation or means in connection with
the collection of any debt.” Id. § 1692e. Many of the
specific instances of conduct that violate this Section are
protections for consumers. They keep consumers from
being intimidated or tricked by debt collectors.2 With

2
E.g., 15 U.S.C. § 1692e(2); id. § 1692e(4); id. § 1692e(5); id.
§ 1692e(10) (using “false representations and deceptive means to
(continued...)
8 No. 10-1376

this focus on the consumer, we have noted that “[t]he
purpose of the Fair Debt Collection Practices Act is to
protect consumers.” Muha v. Encore Receivable Mgmt., Inc.,
558 F.3d 623, 627 (7th Cir. 2009). And its provisions
revolve around its purpose: “The statute is designed to
provide information that helps consumers to choose
intelligently.” Hahn v. Triumph P’ships LLC, 557 F.3d 755,
757 (7th Cir. 2009). Naturally we have used that under-
standing of the Act to interpret § 1692e, holding that to
be actionable a misleading statement must have the
ability to influence a consumer’s decision. Hahn, 557 F.3d
at 758 (“A statement cannot mislead unless it is material,
so a false but non-material statement is not actionable.”);
accord Miller v. Javitch, Block & Rathbone, 561 F.3d 588,
596 (6th Cir. 2009).

2
(...continued)
collect or attempt to collect a debt or information about a
consumer”); id. § 1692e(11) (prohibiting debt collectors from
failing to “disclose in the initial written communication with the
consumer . . . that the debt collector is attempting to collect a
debt”); see also Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d
Cir. 2002) (noting “[t]he FDCPA establishes certain rights for
consumers whose debts are placed in the hands of professional
debt collectors for collection, and requires that such debt
collectors advise the consumers whose debts they seek to collect
of specified rights.”(quotation omitted) (emphasis added));
Christian Stueben, Judge or Jury? Determining Deception or
Misrepresentation Under Fair Debt Collection Practices Act, 78
Fordham L. Rev. 3107, 3112-14 (2010) (outlining how the
purpose of the Act is to protect consumers).
No. 10-1376 9

Our cases focus on the consumer, and we have rejected
attempts to stretch the Act beyond its text and purpose.
See Tinsley v. Integrity Financial Partners, Inc., ___ F.3d ___,
No. 10-2045, 2011 WL 477486 (7th Cir. Feb. 11, 2011). In
Tinsley, when the debtor was contacted about a debt,
he found an attorney, who wrote a letter to the debt
collector stating that Tinsley had no assets and asking
that all future communications be sent to the attorney.
The debt collector complied and sent the next letter to
the attorney. Tinsley then sued. His argument was pre-
mised on the fact that the Act prevents any further com-
munication once a “consumer” maintains that he refuses
to pay the debt. 15 U.S.C. § 1692c(c). Tinsley argued that
the additional communications sent to his attorney—at
his direction—violated the Act. He claimed that under
the Act his attorney should be treated the same as a
consumer. In rejecting this argument, we held that such
an interplay between the subsections of the Act ren-
dered it “gibberish,” and called it an “implausible under-
standing” of the Act. Id. at 4-5. Unequivocally we held
that under § 1692c, a lawyer representing a debtor is not
a consumer.
Coming back to the question on appeal of whether the
Act covers false statements made to judges, we turn to
the Act’s language. Section 1692e states: “A debt collector
may not use any false, deceptive, or misleading repre-
sentation or means in connection with the collection of
any debt.” The text says nothing of to whom the represen-
tation has to be made for it to be actionable. Although
the section’s language has no specific limits, it cannot be
so open-ended as to include, for example, a misleading
10 No. 10-1376

letter sent to the wrong address. See David v. FMS Services,
475 F. Supp.2d 447, 448 (S.D.N.Y. 2007). There must be a
limiting principle.
The concurrence disagrees. First, it believes we should
resolve this case with reference to the unsophisticated
consumer standard, because at least in the district court
below O’Rourke claimed that Palisades intended to
deceive and mislead the court and the debtor; thus, even
if the document wasn’t created with him in mind, he
was an indirect recipient. Post at 24. Second, it believes
that communications meant to deceive judges fall under
the Act, because § 1692e does not exclude any “class of
persons” from the Act’s protection. Id. at 23. The concur-
rence reasons that state courts are a “medium through
which debt collection information is conveyed to con-
sumers,” id. at 24, and since state court judges can play “an
extremely consequential role in the debt collection pro-
cess,” filings meant to deceive the judge should also be
covered under the Act. Id. But even under the concur-
rence’s position there would be classes of persons ex-
cluded from the Act’s protections. Instead of focusing
on the “consumer,” courts would have to determine
whether the person plays an inconsequential, a conse-
quential, or “an extremely consequential role” in
the process.
And that is unnecessary. The Act does not extend
its protection beyond the consumer; there is no refer-
ence to anyone else in the process who may have a conse-
quential, let alone extremely consequential role in the debt-
collection process. Instead of relying on the concur-
rence’s reasoning, the Act’s purpose and focus provide
No. 10-1376 11

a clear limiting principle. See Norman J. Singer, 2B Suther-
land Statutory Construction, § 54:5 (7th ed. 2008); Gomez v.
United States, 490 U.S. 858, 864 (1989) (noting the Act
should be read in light of its purpose). The Act is meant
to protect consumers. Muha, 558 F.3d at 627. A consumer
is “any natural person obligated or allegedly obligated
to pay any debt.” 15 U.S.C. § 1692a(3). The definition
applies to every subsection of the Act.
As a general matter, the Act and its protections do not
extend to third parties. Although courts have extended
the Act’s prohibitions to some statements made to a
consumer’s attorney, Evory v. RJM Acquisitions Funding
L.L.C., 505 F.3d 769, 773-75 (7th Cir. 2007), and to others
who can be said to stand in the consumer’s shoes, Wright
v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647, 650 (6th Cir.
1997) (en banc) (holding that executrix could sue because
the Act applies to anyone who “stand[s] in the shoes of
the debtor [with] the same authority as the debtor to
open and read the letters of the debtor”), none has ex-
tended the Act to persons who do not have a special
relationship with the consumer. In fact, the Eighth
Circuit rejected an argument that the Act applied to
representations that were not directed to the consumer:
“The weight of authority applying section 1692e does so
in the context of a debt collector making a false, deceptive,
or misleading representation to the plaintiff.” Volden v.
Innovative Financial Systems, Inc., 440 F.3d 947, 954 (8th
Cir. 2006) (emphasis in the original) (the false statements
at issue were not made to the consumer but between
a check guarantee company and a returned-check proces-
sor). Thus, the Act is limited to protecting consumers
12 No. 10-1376

and those who have a special relationship with the con-
sumer—such that the Act is still protecting the con-
sumer—from statements that would mislead these con-
sumers. The Act is not similarly interested in pro-
tecting third parties. Id.; see also Guerrero v. RJM Acquisi-
tions, LLC, 499 F.3d 926, 934 (9th Cir. 2007) (noting “Con-
gress did not view attorneys as susceptible to the abuses
that spurred the need for the legislation”).
By drawing the line at communications directed at
consumers—“any natural person obligated or allegedly
obligated to pay any debt”—and those who stand in
their shoes, the Act fits its purpose: protecting consum-
ers. This gives consumers the full breadth of protection
that the Act permits and keeps us from reading into the
Act whatever implausible ends O’Rourke’s lawyers can
conjure up. This also avoids the arbitrary “class designa-
tion” of whether the third party has “an extremely conse-
quential role in the debt collection process.” And it
keeps us safe from the practical difficulty of parsing
claims about whether a communication directed at a
third party is actionable.3 Thus, we read the Act’s

3
For example, if we accept O’Rourke’s argument, we would
stretch an Act that is meant to protect the “unsophisticated
consumer” and place its protections on a judge, a judge who
has been to law school, who is likely an accomplished
attorney before ascending to the bench, and who is presumed
knowledgeable of the law due to his position on the bench—in
other words, a sophisticated individual. And just as we have
crafted standards for the “unsophisticated consumer” and the
(continued...)
No. 10-1376 13

protections as extending to consumers and those who
stand in the consumer’s shoes and no others.
The question then becomes whether judges stand in
the shoes of the consumer, such that the Act’s protec-
tions should be read to extend to them. Judges do not
have a special relationship with consumers. They stand
as impartial decision-makers in the discharge of their
office. 28 U.S.C. § 453; 705 ILCS 35/2. They are neither
a consumer’s advocate nor his adversary; their role is
to ensure that the process is followed. They have no
special relationship with the consumer; thus, the Act’s
protections do not extend to communications that
could mislead them.

III.
Because nothing in the Act’s text extends its protec-
tions to anyone but consumers and those who have a
special relationship with the consumer, we hold that the
Fair Debt Collection Practices Act does not extend to
communications that would confuse or mislead a state
court judge. Accordingly, the judgment of the district
court is A FFIRMED.

3
(...continued)
“competent lawyer,” Evory, 505 F.3d at 773-75, we would then
have to craft a test for whether a communication would
confuse or mislead the sophisticated judge, and so on with
each group of persons involved in the debt-collection process.
The practical futility of judging such claims reinforces the
holding of this case: The Act does not extend its protections to
third parties who do not stand in the shoes of the consumer.
14 No. 10-1376

T INDER, Circuit Judge, concurring in the result. I agree
with my colleagues’ ultimate conclusion that summary
judgment was properly granted against plaintiff-
appellant O’Rourke and in favor of Palisdes. I write
separately because I believe the holding of the majority
opinion—that the “Fair Debt Collection Practices Act
does not extend to communications that would confuse
or mislead a state court judge,” ante at 13—paints with
a brush broader than necessary to resolve the issues
presented here and in doing so potentially creates tension
with the text of the Fair Debt Collection Practices Act
(FDCPA or “the Act”) and the case law of our sister
circuits. If the question before us is “whether the Act
covers filings that are meant to deceive a state court
judge,” ante at 6 n.1; see also id. at 6, 9, 13, I think the
answer should be that even assuming it does, O’Rourke’s
claim fails.
As the majority explains, O’Rourke built his case on a
document that was attached to the complaint in a col-
lection suit filed against him in a Cook County, Illinois,
court. O’Rourke argued in the district court below that
the document was misleading under the Act both to him
as a consumer and to the Cook County judge who
would have decided his case if it had not been dismissed.
In this court, he confines his argument to the deceptive
effect the document could have had on the judge. I men-
tion this narrowing strategy because, in my view,
O’Rourke failed to produce evidence that the document
was false, misleading or deceptive to either a consumer
or a judge. I think we can avoid deciding the more dif-
ficult question of whether a false statement made to a
No. 10-1376 15

judge is proscribed by the Act by affirming the district
court’s assessment that O’Rourke’s claim lacks sufficient
evidentiary support.

I.
O’Rourke weaves allegations that the document at
issue was misleading and deceptive into a broader nar-
rative that it was patently false. His conflation of claims
is not analytically problematic; we have recognized the
overlapping nature of FDCPA claims relating to the
false, misleading, and deceptive nature of documents. In
Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 645-46 (7th
Cir. 2009), we linked false to misleading, observing, “If a
statement would not mislead the unsophisticated con-
sumer, it does not violate the FDCPA—even if it is false
in some technical sense.” See also Muha v. Encore
Receivable Mgmt., Inc., 558 F.3d 623, 627 (7th Cir. 2009)
(quoting Wahl for this proposition); Hahn v. Triumph P’ships
LLC, 557 F.3d 755, 758 (7th Cir. 2009) (same); cf. Evory v.
RJM Acquisitions Funding, L.L.C., 505 F.3d 769, 775 (7th
Cir. 2007) (holding that statements that mislead or
deceive the “competent lawyer” may also violate the
FDCPA). We have likewise noted that “ ‘[m]isleading’ is
similar to ‘deceptive,’ except that it can be innocent;
one intends to deceive, but one can mislead through
inadvertence.” Evory, 505 F.3d at 775. The upshot is that
to demonstrate actionable falsity in a debt collection
communication, an FDCPA plaintiff must also demon-
strate that unsophisticated consumers would be misled
or deceived by the statement at issue. See Ruth v. Triumph
16 No. 10-1376

P’ships, 577 F.3d 790, 800 (7th Cir. 2009) (“[Plaintiff]
could not prevail in the district court simply by proving
that statements in the notice were false. Whether they
were false or not, she had to prove that an unsophisticated
consumer would be deceived or misled by them.”);
Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 414 (7th
Cir. 2005) (explaining the “unsophisticated consumer”
standard).
In some circumstances, we require FDCPA plaintiffs
to produce extrinsic evidence to make this demonstration.
As we explained in Ruth, plaintiffs who come forward
with a document or statement that is clearly misleading
or deceptive on its face are entitled to summary judg-
ment on the basis of the document or statement alone.
See Ruth, 577 F.3d at 801 (noting that there is no need
for plaintiffs to “prove what is already clear”). But when
the document or statement at issue is “not plainly mis-
leading or deceptive but might possibly mislead or
deceive the unsophisticated consumer,” id. at 800, “plain-
tiffs may prevail only by producing extrinsic evidence,
such as consumer surveys, to prove that unsophisticated
consumers do in fact find the challenged statements
misleading or deceptive,” id.
O’Rourke has not produced anything showing that he
or anyone else was misled, deceived, or otherwise
duped by the document at issue. That would not pose an
obstacle to his recovery if the document was on its face
clearly misleading or deceptive. See id. at 801. But in my
view the document is not. O’Rourke’s theory is that the
document is misleading because it appears as though
No. 10-1376 17

it was sent to him, like a credit card statement, long
before the suit against him was initiated, when in fact,
it was not. O’Rourke points to the document’s display
of his address and a “Statement Closing Date” of July 5,
2007. The address and date might lead an unsophisticated
consumer to believe that the document had been sent to
him previously, but maybe not. “Statement Closing Date”
is not the equivalent of “Statement Sent On,” “Statement
Prepared On,” a post office cancellation mark, or a “sent”
stamp. “Our past cases indicate that summary judgment
may be avoided by showing that the letter, on its face, will
‘confuse a substantial number of recipients.’ ” Williams v.
OSI Educ. Servs., Inc., 505 F.3d 675, 678 (7th Cir. 2007)
(quoting Taylor v. Cavalry Inv., L.L.C., 365 F.3d 572, 575 (7th
Cir. 2004)). I do not doubt that it is possible that the
document could lead someone to believe it was designed
to appear as though it was sent to O’Rourke around July 5,
2007. But that is not the only reasonable conclusion
one could reach on the face of the document, so more
needed to be shown before summary judgment for
O’Rourke would have been warranted. See Ruth, 577
F.3d at 801.
Given the document’s potential to cause confusion,
it cannot be considered so clearly compliant with the
FDCPA on its face that summary judgment for Palisades
can be granted on that basis alone. See id. at 800 (discussing
cases in which we granted summary judgment for
debt collectors because the challenged documents or
statements “plainly, on their face, [were] not misleading
or deceptive”); see also Wahl, 556 F.3d at 646; Barnes v.
Advanced Call Ctr. Techs., LLC, 493 F.3d 838, 841 (7th Cir.
18 No. 10-1376

2007). There is some traction to O’Rourke’s claim that
the document appears to have been sent to him in
July 2007, and there may be even more traction to his
contention that the document looks so much like a
credit card statement that consumers might conclude
that it was one. Cf. Hartman v. Great Seneca Fin. Corp., 569
F.3d 606, 613 (6th Cir. 2009) (noting that a similar docu-
ment attached to a state court complaint gave rise to a
“genuine issue of material fact as to whether this docu-
ment would mislead the least sophisticated consumer”).
A grant of summary judgment for Palisades on the face
of the document alone would thus be improper. See
Ruth, 577 F.3d at 800.
I am left to conclude that the document at issue falls
somewhere in the middle of these extremes: it is not so
misleading on its face as to warrant immediate sum-
mary judgment for O’Rourke, but it is not so clear (and
not misleading) on its face as to warrant immediate sum-
mary judgment for Palisades. I acknowledge that this
document has a “potential for deception of the unso-
phisticated,” Evory, 505 F.3d at 776, but because this
court is not an “expert[ ] in the knowledge and under-
standing of unsophisticated consumers facing demands
by debt collectors,” id., O’Rourke “may prevail only by
producing extrinsic evidence . . . to prove that unsophisti-
cated consumers do in fact find the challenged statements
misleading or deceptive,” Ruth, 577 F.3d at 800.
O’Rourke attempted to meet this burden by submitting
a purported expert report from an attorney who had
experience with debt collection suits in Cook County
No. 10-1376 19

Circuit Court. After reviewing fifty-eight cases brought
by Palisades and thirty-seven collection cases brought
by non-party debt collector Midland Funding, LLC,
O’Rourke’s proposed expert presented two opinions:
“(1) In most cases brought by or on behalf of Debt Buyers,
an ex parte default judgment results without a prove-up
on damages. (2) Attaching a statement of account to the
complaint creates the appearance that the document was
sent to the debtor prior to the litigation which was not
objected to giving rise to an Account Stated.” The district
court concluded that neither of the opinions was predi-
cated on reliable methodology and excluded the report
on that basis. See Ammons v. Aramark Uniform Servs., Inc.,
368 F.3d 809, 816 (7th Cir. 2004) (“In determining whether
evidence is reliable, the district judge must determine
whether . . . the methodology underlying the expert’s
conclusions is reliable.” (quotation omitted)). This was
plainly not an abuse of discretion, see Myers v. Ill. Cent.
R.R., 629 F.3d 639, 641 (7th Cir. 2010) (“[W]e review for
an abuse of discretion the district court’s decision to
exclude the expert testimony.”), for the proposed
expert did not employ any sort of accepted evaluative
framework, such as statistics, a control group, or even
a true random sample.
O’Rourke did not bring any other evidence to the table.
He therefore was unable to create a genuine issue of
material fact for trial. See Williams, 505 F.3d at 678. He
tried to get around his failure of proof by arguing that
the document was primarily directed at the court. There-
fore, he contended, “a survey of unsophisticated con-
sumers makes no sense.” Appellant’s Br. 20, 28-29.
20 No. 10-1376

It is true that we have applied a different standard—that
of the “competent lawyer”—when assessing FDCPA
claims brought in response to statements made to
lawyers rather than consumers. See Evory, 505 F.3d at 775.
We have not identified a standard for judges, though
we have hinted that if one exists it would likewise be
higher than that applied to the unsophisticated consumer.
See Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480
F.3d 470, 473 (7th Cir. 2007) (“Whatever shorthand ap-
peared in the complaint—the payments system through
which credit-card slips flow is complex, and even many
lawyers don’t grasp all of its details—was harmless
rather than an effort to lead anyone astray. It was the
judge, not [the debtor], who had to be able to determine
to whom the debt was owed . . . .”); see also Evory, 505
F.3d at 775 (“A sophisticated person is less likely to be
either deceived or misled than an unsophisticated one.”).
If the FDCPA indeed supports O’Rourke’s theory of
judicial deception, we would seem to be confronted with
the crucial question of which standard, unsophisticated
consumer, competent lawyer, or something else, should
apply.
The events here do not require us to even begin down
that rabbit hole, however.1 It would be unreasonable to

1
The majority cautions that consideration of whether materials
submitted to judges are violative of the FDCPA could require
the crafting of a “judge test,” and perhaps others, see ante at 12
& n.3, leading a parade of horribles down the road to “practical
futility,” id. at 12 n.3. At least with respect to judges, I respect-
(continued...)
No. 10-1376 21

hold judges, like competent lawyers, to a standard lower
than that to which we hold the “uninformed, naive, or
trusting,” Gammon v. GC Servs. Ltd. P’ship, 27 F.3d 1254,
1257 (7th Cir. 1994), unsophisticated consumer who oc-
cupies the “lowest quartile . . . of consumer competence,”
Evory, 505 F.3d at 774. The way I see it, then, the unsophis-
ticated consumer standard effectively serves as a floor
beneath which our analysis will in any event have no
cause to descend. And that is what dooms O’Rourke
here, for he has not produced evidence showing that
even an unsophisticated consumer would be misled or
deceived by the statement. If he cannot make that
minimal showing, he is necessarily unable to demon-
strate that individuals held to a higher standard of com-
petence would be misled or deceived. The lack of eviden-
tiary proof stymies O’Rourke no matter how the docu-
ment’s audience—and the standard to which it is held—
is characterized. So even though there is a case to be made
that the statement equally targeted the court and
O’Rourke, see Donohue v. Quick Collect, Inc., 592 F.3d 1027,
1032 (9th Cir. 2010) (holding that a consumer was the
audience of a complaint that was served on him); see also
735 Ill. Comp. Stat. 5/2-201, 5/2-203 (requiring service of
state court complaint and summons on defendants);
Appellee’s Br. 3 (“[T]he purpose of the statement was
to provide information to a debtor served with a col-

1
(...continued)
fully disagree. Federal courts are well-suited to determine
whether statements submitted to judges in collection cases are
likely to mislead or deceive them.
22 No. 10-1376

lection complaint.”), O’Rourke’s retreat from that argu-
ment in this forum is of no matter.

II.
As the preceding section demonstrates, this case can be
resolved without expanding our extensive FDCPA prece-
dent. I respectfully submit that the categorical exclusion
of documents provided to state court judges from the
purview of the FDCPA goes beyond what is necessary
to find that summary judgment was properly granted here.
My colleagues correctly emphasize that the purpose
of the FDCPA is to protect consumers. See ante at 7-9.
I am not convinced, though, that the Act necessarily
should be read to exclude misleading documents sub-
mitted to a court from its proscriptions.
By its terms, the FDCPA aims “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 disadvan-
taged, and to promote consistent State action to protect
consumers against debt collection abuses.” 15 U.S.C.
§ 1692(e). This language is quite expansive; the Sixth
Circuit has characterized the Act as “extraordinarily
broad.” Hartman, 569 F.3d at 611 (quoting Barany-Snyder
v. Weiner, 539 F.3d 327, 332-33 (6th Cir. 2008)). The provi-
sion under which O’Rourke proceeds, 15 U.S.C. § 1692e,
is similarly unbounded in its proscription of false or
misleading representations: “A debt collector may not
use any false, deceptive, or misleading representation
No. 10-1376 23

or means in connection with the collection of any debt.”
In my view, the use of the judicial process is unques-
tionably a means by which debts are collected, and
I struggle to find in the language of the statute any
reason why statements or representations made during
the use of the judicial process should be categorically
excluded from its ambit. Indeed, we recognized in Evory
that §§ 1692d-1692f “do not designate any class of
persons, such as lawyers, who can be abused, misled, etc.,
by debt collectors with impunity.” Evory, 505 F.3d at 773.
Holding that state court judges are necessarily outside
the scope of the FDCPA would seem to create such a
“class of persons.”
While we deferred for another day the “decision
whether § 1692e covers the process of litigation” in Beler,
480 F.3d at 473, in two earlier cases, Gearing v. Check
Brokerage Corp., 233 F.3d 469 (7th Cir. 2000), and Veach v.
Sheeks, 316 F.3d 690 (7th Cir. 2003), we treated the allega-
tions of a state court pleading (a civil complaint, and, in
Veach, an attachment to it) as being within the ambit of
the FDCPA without any hesitation. Indeed, in Gearing
we concluded that a debt collector who falsely averred
in a state court complaint that it was subrogated to
another party “gave a false impression as to the legal
status it enjoyed,” and held that the false representation
was violative of 15 U.S.C. § 1692e(2) and (10), the very
subparts of § 1692e that O’Rourke alleges are implicated
here. Gearing, 233 F.3d at 472. Similarly, in Veach, we
used the unsophisticated consumer standard to con-
clude that a debt collector violated 15 U.S.C. § 1692e
when it stated in a small claims court complaint and
24 No. 10-1376

attached documentation that a debtor owed a sum that
included yet-unawarded treble damages, court costs, and
attorneys’ fees. See Veach, 316 F.3d at 692-93.
Of course, it does not appear that the parties in Gearing
or Veach disputed the applicability of the Act to the al-
legations in documents filed in state court, so I don’t
contend that the majority opinion in our case is in direct
conflict with these decisions; they will simply remain as
anomalous results. See Hughes v. United Air Lines, Inc., ___
F.3d ___, No. 10-1129, 2011 WL 383046, at *3 (7th Cir.
Feb. 8, 2011). And the majority appropriately dis-
tinguishes Evory, in which we held that statements debt
collectors make to consumers’ attorneys are actionable
under the FDCPA, see Evory, 505 F.3d at 774-75: it notes
that attorneys effectively “stand in the consumer’s
shoes,” ante at 11. It is true that judges do not stand
in consumers’ shoes, but aren’t state courts a medium
through which debt collection information is conveyed to
consumers? See 15 U.S.C. § 1692a(2). Again, recall that
O’Rourke received the document at issue only after it
was provided to the court. And it came to him as a part
of the packet of materials associated with a lawsuit
that could result in a judgment against him.
I respectfully suggest that the language of the Act may
be expansive enough to prohibit misleading submissions
to a court, that is, to a court which can impose liability
on the debtor. Cf. Wright v. Fin. Serv. of Norwalk, Inc.,
22 F.3d 647, 649 (6th Cir. 1994) (en banc) (“Unlike other
sections of the act where relief is limited to ‘consumers,’
under § 1692e a debt collection practice need not offend
No. 10-1376 25

the alleged debtor before there is a violation of the provi-
sion.”). Contra ante at 11-12 (“[T]he Act is limited to
protecting consumers and those who have a special
relationship with the consumer—such that the Act is still
protecting the consumer—from statements that would
mislead these consumers.”). A judge can play an extremely
consequential role in the debt collection process.2 This sup-
ports the notion that an effort to induce a judge to enter
a judgment based on a false, misleading, or deceptive
document ought to be considered an abusive practice
under the Act.
Applying 15 U.S.C. § 1692e in this way should not
“stretch” it “beyond its text and purpose.” Ante at 9.
While we recently emphasized in Tinsley v. Integrity
Fin. Partners, Inc., ___ F.3d ___, No. 10-2045, 2011 WL
477486 (7th Cir. Feb. 11, 2011), the conceptual, definitional,
and practical importance of distinguishing “consumers”

2
This is not to say I contend, as the majority suggests, ante at 10,
that the extent of an individual’s role in the debt collection
process should be used to determine whether the FDCPA’s
scope is wide enough to encompass statements directed pri-
marily at that individual. My point is that courts, unlike third
parties who have contracts with debt collectors that are unre-
lated to the debt collection process, see Volden v. Innovative
Fin. Sys., Inc., 440 F.3d 947, 950, 954 (8th Cir. 2006), are unques-
tionably “connect[ed]” to debt collectors’ collection efforts,
15 U.S.C. § 1692e. That such a statement is made to a court
holding the power to enter a judgment adverse to the con-
sumer also bears on whether such a statement would be
material. See Hahn, 557 F.3d at 757-58.
26 No. 10-1376

from “attorneys” and other third parties, we did so in
the context of 15 U.S.C. § 1692c, which regulates debt
collectors’ communications with “consumers,” period.
Section 1692e is not so limited. Indeed, the Sixth Circuit
has noted, en banc, that § 1692c “appears to be the
most restrictive of the FDCPA’s provisions. The other
provisions [including § 1692e, the provision at issue here],
are not limited to ‘consumers’ and thus are broader than
§ 1692c.” Wright, 22 F.3d at 649 n.1. Courts and judges
need not be equated with “consumers” to be en-
compassed within the language of § 1692e, which gen-
erally prohibits debt collectors from using “any false,
deceptive, or misleading representation[s] or means
in connection with the collection of any debt.”
Restricting our understanding of the FDCPA to
exclude communications to judges also has the potential
to put us at loggerheads with some of our sister circuits.
In a case involving a questionable statement virtually
identical to the one at issue here, see Hartman, 569 F.3d
at 610, 612, the Sixth Circuit reversed a district court’s
grant of summary judgment in favor of the defendants,
concluding that the plaintiffs had raised a genuine issue
of material fact as to whether the statement was
misleading or deceptive to the least sophisticated con-
sumer. Id. at 613. The Ninth Circuit, which does not go
as far as we do in recognizing an FDCPA cause of
action for statements sent to lawyers, see Guerrero v. RJM
Acquisitions, LLC, 499 F.3d 926, 935-36 (9th Cir. 2007),
nonetheless expressly has held that “a complaint served
directly on a consumer to facilitate debt-collection
efforts is a communication subject to the requirements of
No. 10-1376 27

§§ 1692e and 1692f,” Donohue v. Quick Collect, Inc., 592
F.3d 1027, 1031-32 (9th Cir. 2010). I recognize that we
are not bound by the holdings of other circuits, United
States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), but we
frequently look to them as informative and persuasive
authority. I also find it instructive that no other circuit,
even those unwilling to interpret the FDCPA to reach
statements made to lawyers, contra Evory, 505 F.3d at
775, has concluded that the FDCPA can never reach
statements made to courts or judges.
Answering the question of whether § 1692e covers the
papers filed in a state court collection suit is unnecessary
here, just as it was in Beler, 480 F.3d at 473. Even
assuming it does, judgment was properly entered
against O’Rourke. I therefore concur in the result.

3-17-11