In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3184
G EANIECE D. C ARTER,
Plaintiff-Appellant,
v.
AMC, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 7181—Robert W. Gettleman, Judge.
S UBMITTED M ARCH 23, 2011—D ECIDED M AY 13, 2011
Before E ASTERBROOK, Chief Judge, and K ANNE and
S YKES, Circuit Judges.
E ASTERBROOK, Chief Judge. Geaniece Carter rented an
apartment at Riverstone Apartments in Bolingbrook,
Illinois. AMC, LLC, managed the building on behalf of
its owner, Jackson Square Properties. AMC filed suit in
state court to have Carter evicted. (AMC’s name at the
time was American Management Consultants, LLC; we
use its current name in this opinion.) The trial court
2 No. 10-3184
entered an eviction order but the appellate court
reversed, holding that AMC had not given a notice re-
quired by state law. American Management Consultants,
LLC v. Carter, 392 Ill. App. 3d 39, 915 N.E.2d 411 (2009)
(relying on 735 ILCS 5/9-211). One judge concluded that
AMC also had violated the Fair Debt Collection Prac-
tices Act, 15 U.S.C. §§ 1692–1692p. See 392 Ill. App. 3d at
48–52, 915 N.E.2d at 420–24 (McDade, J.). The other mem-
bers of the panel did not join that portion of the opin-
ion. 392 Ill. App. 3d at 65–66, 915 N.E.2d at 434 (Wright
& Schmidt, JJ., concurring specially).
Having prevailed in state court, Carter filed this
federal suit seeking damages for the violation of the
FDCPA that Justice McDade believed had occurred.
Carter contends that AMC violated the Act in two ways:
by telling a credit bureau that she owed rent without in-
forming it that she disputed that position, see 15 U.S.C.
§1692e(8), and by misrepresenting the status of the debt
during the state litigation, see §1692e(2)(A). Cf. Thomas
v. Simpson & Cybak, 392 F.3d 914 (7th Cir. 2004) (en banc)
(holding that the Act applies to some documents filed
in state court, though the conclusion of Thomas that
lawyers must send a verification notice before or with
a complaint was undone by an amendment in 2006; see
15 U.S.C. §1692g(d)).
AMC might have replied that the state court was
the right forum for Carter’s contentions. But it did not
contend that a claim under the FDCPA was a compul-
sory counterclaim in the state case or that principles of
claim preclusion (res judicata) otherwise block a federal
No. 10-3184 3
suit. Preclusion is an affirmative defense that debt col-
lectors forfeit by failing to invoke it in the district court.
See Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480
F.3d 470, 472 (7th Cir. 2007). (Carter does not want to
upset the state judgment, for she prevailed in state
court; our suit therefore does not present any issue
under the Rooker–Feldman doctrine, which a federal court
must raise on its own because it curtails subject-
matter jurisdiction. See Kelley v. Med-1 Solutions, LLC,
548 F.3d 600 (7th Cir. 2008); Epps v. Creditnet, Inc., 320
F.3d 756 (7th Cir. 2003).)
For her part, Carter does invoke preclusion: She con-
tends that the state court resolved the FDCPA claim in
her favor, and that the federal court’s only role is to
supply the remedy. That isn’t so. The opinion of one
member of a three-judge panel does not resolve any
issue; it takes a majority to make an authoritative rul-
ing. And even if another member of the panel had joined
this part of Justice McDade’s opinion, it would not be
conclusive. The doctrine of issue preclusion (collateral
estoppel) applies only when an issue is actually
and necessarily decided in the earlier suit. Restatement
(Second) of Judgments §27 (1982); In re A.W., 231 Ill. 2d 92,
99, 896 N.E.2d 316, 321 (2008). Justice McDade stated
that her view about the FDCPA was not necessary to the
court’s decision—and the other members of the panel
agreed with that assessment when they concurred with-
out expressing an opinion on the topic.
The federal district judge assumed that AMC owns
Riverstone Apartments and thus is Carter’s lessor and
4 No. 10-3184
creditor. Justice McDade, who made the same assump-
tion, concluded that lessors are “debt collectors” covered
by the FDCPA. The district judge disagreed, observing
that a “debt collector” is someone who regularly collects,
or attempts to collect, “debts owed or due or asserted to
be owed or due another.” 15 U.S.C. §1692a(6) (emphasis
added). An entity that tries to collect money owed to
itself is outside the FDCPA. This led the district judge
to dismiss Carter’s complaint. 2010 U.S. Dist. L EXIS 91729
(N.D. Ill. Sept. 2, 2010).
There’s nothing wrong with the district court’s legal
analysis, but its factual assumption is incorrect. AMC
does not own Riverstone Apartments and is not Carter’s
landlord. The lease, which is in the record, is explicit:
Jackson Square Properties, a California corporation, owns
the building and is Carter’s creditor; AMC is Jackson
Square’s agent. AMC described itself as an agent in the
state-court papers. Why Justice McDade treated it as
the owner is mysterious. Why Judge Gettleman did
so is easier to understand. Carter named “American
Management Consultants LLC/Riverstone Apartments”
as the defendant and relied on Justice McDade’s opin-
ion. AMC’s lawyer did not disabuse Judge Gettleman of
the mistake that the complaint shared with Justice
McDade. And in this court, counsel filed a corporate
disclosure statement naming “AMC, LLC/Riverstone
Apartments” as his client. There is no such entity. River-
stone Apartments is a building, and perhaps a trade
name too, but it is not a person or organization. It is no
more possible to sue “Riverstone Apartments” than it
would be to sue the Mississippi River. See Schiavone v.
Fortune, 477 U.S. 21 (1986).
No. 10-3184 5
We know from the lease that AMC is the lessor’s agent
rather than the building’s owner. This sets up an argu-
ment for Carter, because AMC is not her creditor and
thus potentially is a debt collector, as §1692a(6) defines
that term. We say “potentially” because not all agents
are debt collectors. The Act excludes not only the
original creditor but also any person who tries to collect
a debt that “was not in default at the time it was ob-
tained by such person.” 15 U.S.C. §1692a(6)(F)(iii). If a
management firm “obtains” a debt, it does so when the
lease begins, which necessarily precedes default, or when
the agency relation begins (if that happens after a
given apartment has been let). The harder question is
whether an agent “obtains” the debt at all, or that word
instead denotes only ownership. See Ruth v. Triumph
Partnerships, 577 F.3d 790, 796–97 (7th Cir. 2009); McKinney
v. Cadleway Properties, Inc., 548 F.3d 496, 500–01 (7th
Cir. 2008); Schlosser v. Fairbanks Capital Corp., 323 F.3d
534, 536–37 (7th Cir. 2003); Whitaker v. Ameritech Corp., 129
F.3d 952, 958–59 (7th Cir. 1997).
At least four courts of appeals, including ours, have
concluded that a servicing agent for a mortgage loan
“obtains” the debt even though the bank owns the note.
See Bailey v. Security National Servicing Corp., 154 F.3d 384,
387–88 (7th Cir. 1998); Alibrandi v. Financial Outsourcing
Services, Inc., 333 F.3d 82, 84–85 (2d Cir. 2003); Wadlington
v. Credit Acceptance Corp., 76 F.3d 103, 107 (6th Cir. 1996);
Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.
1985). Apparently the question whether this is also true
of the servicing agent for a lessor has never arisen in a
court of appeals—at least, has not led to a precedential
6 No. 10-3184
decision. But it has come up frequently in district
courts, which have concluded uniformly that a servicing
agent “obtains” the debt when the lease is signed.
Reynolds v. Gables Residential Services, Inc., 428 F. Supp. 2d
1260, 1264 (M.D. Fla. 2006); Williams v. Edelman, 408
F. Supp. 2d 1261, 1265–66 (S.D. Fla. 2005); Kvassay v. Hasty,
236 F. Supp. 2d 1240, 1269–70 (D. Kan. 2002); Alexander v.
Omega Management, Inc., 67 F. Supp. 2d 1052, 1055–56
(D. Minn. 1999); Franceschi v. Mautner-Glick Corp., 22
F. Supp. 2d 250, 253–54 (S.D.N.Y. 1998); Azar v. Hayter,
874 F. Supp. 1314, 1319 (N.D. Fla. 1995), affirmed
without opinion, 66 F.3d 342 (11th Cir. 1995).
The Federal Trade Commission holds some interpre-
tive and enforcement authority with respect to the
FDCPA. See 15 U.S.C. §§ 1692k(e), 1692l, 1692o. It has
not issued regulations or advisory opinions on this
subject or commenced an administrative adjudication.
But the staff of its Division of Credit Practices has con-
cluded that the managing and servicing agent for a
lessor or condominium association “obtains” the debt
when it becomes the creditor’s agent, and thus is not a
“debt collector” unless a given debt was in arrears
when the agent assumed that role. See the letters of
August 31, 1992, and November 6, 1995, available at
http://www.ftc.gov/os/statutes/fdcpa/letters/sheehan.htm
and http://www.ftc.gov/os/statutes/fdcpa/letters/goodacre.
htm. These letters don’t receive Chevron deference, see
United States v. Mead Corp., 533 U.S. 218 (2001), but they
are entitled to respectful consideration and show that
the district judges and the responsible agency are in
agreement.
No. 10-3184 7
We conclude that, although one usually “obtains” a debt
by purchasing it, this is not the only way to do so. A
servicing agent “obtains” a debt in the sense that it ac-
quires the authority to collect the money on behalf of
another. Cf. Sprint Communications Co. v. APCC Services,
Inc., 554 U.S. 269 (2008) (discussing assignments for
collection); CWCapital Asset Management, LLC v. Chicago
Properties, LLC, 610 F.3d 497 (7th Cir. 2010) (discussing
servicers of mortgage pools). It follows that AMC “ob-
tained” an interest in Carter’s debt to Jackson Square
Properties when AMC became Jackson Square’s agent—
which occurred before Carter got behind in her rent (if,
indeed, that ever occurred, a question that the state’s
court of appeals did not reach). Section 1692a(6)(F)(iii)
thus tells us that AMC is not a debt collector and does
not owe Carter any duties under the FDCPA. (Justice
McDade reached a contrary conclusion without men-
tioning §1692a(6) or the FTC’s opinion letters; her
opinion accordingly lacks the power to persuade.)
Carter’s brief contends that AMC’s attorneys violated
the Act even if AMC itself is not covered by the statute.
Attorneys can be debt collectors, see Heintz v. Jenkins,
514 U.S. 291 (1995), but none is a party to this suit, so
this possibility need not be discussed further.
A FFIRMED
5-13-11