In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3806
MICHAEL TODD,
Plaintiff‐Appellant,
v.
COLLECTO, INC. d/b/a ESO CCA,
Defendant‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 4984 — Ronald A. Guzmán, Judge.
SUBMITTED MAY 22, 2013* — DECIDED October 2, 2013
Before ROVNER, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff‐appellant Michael Todd
sued Collecto, Inc. for violating the Fair Debt Collection
Practices Act. The claims are based on Todd’s allegations that
Collecto called him and told him that his mother owed money
*
After examining the briefs and the record we have concluded that oral
argument is unnecessary . Thus, the appeal is submitted on the briefs and
the record . See Fed. R. App. P. 34(a)(2)(C).
2 No. 12‐3806
to AT&T. Todd speculates that the disclosure was meant to
encourage him either to pay the debt himself or to convince her
to pay.
The district court dismissed Todd’s complaint for failure to
state a claim for relief, finding that Todd lacks standing to
bring these FDCPA claims because he is not the person who
supposedly owed the debt. Todd argues on appeal that the
FDCPA provisions in question protect not only debtors but
also other persons harmed by a violation. We agree with the
district court that 15 U.S.C §1692b(2), which prohibits debt
collectors from disclosing a consumer’s debt to third parties,
protects only the person whose debt was disclosed. We agree
with Todd that non‐debtors can sue under §1692f, which
prohibits debt collectors from using “unfair or unconscionable”
collection practices, but we conclude that his allegations do not
state a claim for relief under that provision. We thus affirm the
district court’s judgment.
We begin with the allegations in the complaint. Todd
alleges that in May 2012 he received a recorded telephone
message from Collecto inviting him to call and help the
company locate his mother, Terry. When he called the number,
a Collecto representative told him that his mother owed money
to AT&T for cell phone service. Todd told the representative
that he is not Terry, but the representative “continued to
discuss the alleged debt.” At no point did the representative
ask how to reach Terry. Todd speculates that the representative
disclosed Terry’s debt in hopes that Todd would pay it or
would get his mother to pay, though the representative did not
ask Todd to pay the debt or to contact Terry. This interaction,
Todd alleges, harmed him emotionally.
No. 12‐3806 3
Todd claims that Collecto violated two provisions of the
FDCPA during their conversation. The first is 15 U.S.C. §1692b,
which permits a debt collector to call a third party to request
help in locating a “consumer”—defined as “any natural person
obligated or allegedly obligated to pay any debt,”
§1692a(3)—but prohibits revealing the existence of the con‐
sumer’s debt to the third party. The second provision is §1692f,
which more generally prohibits using “unfair or unconsciona‐
ble means to collect or attempt to collect any debt.” This
provision lists some specific practices that are unfair per se, but
the list of prohibited practices does not “limit[] the general
application” of §1692f to other unfair or unconscionable
practices. Todd says Collecto violated §1692f by implicitly
seeking to collect his mother’s debt either from or
through Todd.
Absent different indications from statutory text, only a
person within a statutory provision’s “zone of interest” has
standing to sue under it. Harzewski v. Guidant Corp., 489 F.3d
799, 803 (7th Cir. 2007); Kyles v. J.K. Guardian Sec. Services, Inc.,
222 F.3d 289, 294 (7th Cir. 2000). Relying on our decision in
O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938 (7th Cir.
2011), the district court concluded that Todd does not have
standing to sue under any provision of the FDCPA because he
is not the person who was alleged to owe the debt in question.
O’Rourke included some broad language to that effect, so the
district court’s reasoning is certainly understandable. We need
to clarify, though, that O’Rourke should not be read so broadly.
In O’Rourke, a consumer sued a debt collector under
§1692e—a different section of the FDCPA that prohibits false
or misleading communications from a debt collector—alleging
4 No. 12‐3806
that one of the debt collector’s filings in ongoing litigation was
misleading. We concluded that a potentially misleading
communication to a judge is not actionable under §1692e. In
explaining that conclusion, we used broad language that, if
taken out of context, could be read to say that only a “con‐
sumer” (i.e., a debtor or alleged debtor) can have a claim for
relief under §1692e or any other section of the FDCPA. See id.
at 943–44 (“[W]e read the Act’s protections as extending to
consumers and those who stand in the consumer’s shoes and
no others.”). Although the district court acknowledged that
O’Rourke does not dictate the outcome in this case, the court
relied upon that broad language and concluded that no
communication between a debt collector and someone other
than a consumer is actionable unless the recipient of the
communication “stands in the shoes” of the consumer.
Todd argues that both §1692b(2) and §1692f permit claims
by any aggrieved recipient of a communication from a debt
collector. The parties do not cite, and we have not found, any
published appellate decision deciding whether either provision
applies to a plaintiff who is not a “consumer,” but we find
sufficient guidance from the text of the two provisions, as well
as decisions interpreting them and other sections of the
FDCPA.
Before addressing sections 1692b(2) and 1692f specifically,
we must clarify that O’Rourke should not be read to foreclose
all FDCPA claims by persons other than consumers and their
proxies. Such a broad reading would place that decision in
tension with the text of several provisions of the FDCPA, as
well as the act’s legislative history and much appellate prece‐
dent interpreting it. In enacting the FDCPA, Congress specified
No. 12‐3806 5
that a “group of people who do not owe money, but who may
be deliberately harassed are the family, employer and neigh‐
bors of the consumer. These people are also protected by this
bill.” H.R. Rep. No. 95‐131, at 8 (1977).
This intent to extend protection beyond consumers is
clearly embodied in §1692k(a), the liability provision, which
specifies that “any debt collector who fails to comply with any
provision of this subchapter with respect to any person is liable
to such person.” (Emphasis added.) Similarly, §1692d says that
a “debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person
in connection with the collection of a debt.” (Emphasis added.)
Behavior that violates §1692d includes threats, violence,
obscene language, and repeated calls intended to annoy.
§1692d(1)–(2), (5).
When the issue has arisen, therefore, courts have stressed
that §1692d is not a protection just for consumers but for any
person mistreated by a debt collector. See Bridge v. Ocwen Fed.
Bank, 681 F.3d 355, 363 (6th Cir. 2012) (reversing dismissal of
claim by debtor’s spouse); Montgomery v. Huntington Bank,
346 F.3d 693, 696 (6th Cir. 2003) (using section‐by‐section
analysis to decide standing under the FDCPA); see also Evory
v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773 (7th Cir.
2007) (explaining that §§ 1692d, 1692e, and 1692f “do not
designate any class of persons … who can be abused, misled,
etc., by debt collectors with impunity,” and emphasizing the
words “any person” in §1692d). In contrast to §1692d, §1692c
restricts debt collectors’ communications with and about
consumers and is understood to protect only the consumer‐
debtors themselves. Montgomery, 346 F.3d at 696; Wright v.
6 No. 12‐3806
Finance Service of Norwalk, Inc., 22 F.3d 647, 649 n.1 (6th Cir.
1994) (en banc).
Accordingly, each provision of the FDCPA must be
analyzed individually to determine who falls within the scope
of its protection and thus to decide “with respect to” whom the
provision can be violated. See Montgomery, 346 F.3d at 696–97
(explaining that someone who is not a consumer has standing
under §1692d but not under §1692c). In O’Rourke, this court
addressed only §1692e, and we also did not consider claims
under that provision by plaintiffs who are not consumers. The
broad language in the opinion must be understood in that
context.
We turn to the specific provisions that Todd invokes. The
first is §1692b, which provides debt collectors with procedures
for requesting information from a third party about a con‐
sumer’s location. Among other limitations, debt collectors are
prohibited from disclosing to the third party that a consumer
owes a debt, §1692b(2), and it is this rule that Todd alleges
Collecto violated. But the “zone of interest” requirement
disallows suits by plaintiffs “whose interests are unrelated to
the statutory prohibitions” in question. Thompson v. North
American Stainless, LP, 131 S. Ct. 863, 870 (2011). We therefore
agree with the district court that §1692b(2) of the FDCPA is a
privacy protection only for the consumer who supposedly
owes the debt. The provision simply is not designed to protect
third parties from hearing about another person’s debts. Such
a purpose would be inconsistent with §1692c(b), a provision
that places control over the disclosure of a consumer’s informa‐
tion squarely in the hands of the consumer, not the third party
who may receive the disclosure. See id. (“Except as provided
No. 12‐3806 7
in section 1692b of this title [for requesting location informa‐
tion], without the prior consent of the consumer given directly to
the debt collector … a debt collector may not communicate, in
connection with the collection of any debt, with any person
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 collector.”) (empha‐
sis added). Todd thus is outside the provision’s zone of interest
and lacks standing to bring a claim for a violation of §1692b(2).
The second FDCPA provision Todd invokes, §1692f,
includes a general prohibition on unfair and unconscionable
debt collection practices. Unlike §1692d, this section does not
indicate that it protects “any person.” But the reach of §1692f
is readily apparent, and we conclude that anyone aggrieved by
a debt collector’s unfair or unconscionable collection practices
can fall within the provision’s zone of interest. This conclusion
is supported by the provision’s broad language and by the
example in §1692f(5), which prohibits debt collectors from
causing charges for collect calls or other communications “to
be made to any person … by concealment of the true purpose
of the communication.” For example, if a debt collector makes
a collect call to someone other than a consumer (perhaps to
learn how to contact the consumer) and disguises the purpose
of the call to induce the person to accept the charges, it would
be the person called, not the consumer, who would have a
claim against the debt collector under §1692f. Consistent with
our understanding, the Federal Trade Commission advises the
public on its website that the FDCPA protects the family
members of deceased debtors from being unfairly pressured to
pay their debts. See Federal Trade Commission, “Debts and
8 No. 12‐3806
D e c e a s e d R e l a t i v e s , ”
http://www.consumer.ftc.gov/articles/0081‐debts‐and‐deceas
ed‐relatives (last visited Sept. 12, 2013).
Todd thus has standing to sue under §1692f for his own
injuries even though he is not the consumer from whom
Collecto sought to collect. (Just as with §1692b(2), he also does
not have standing to sue under §1692f on Terry’s behalf.) Still,
his suit may not proceed if his allegations do not plausibly
describe a debt collection practice that was unfair or unconscio‐
nable with respect to him. 15 U.S.C. §§ 1692f, 1692k; see
Zemeckis v. Global Credit & Collection Corp., 679 F.3d 632, 634–35
(7th Cir. 2012) (applying Ashcroft v. Iqbal, 556 U.S. 662 (2009), to
FDCPA claims). Whether a particular collection practice other
than those specified in §1692f qualifies as unfair or unconscio‐
nable is assessed objectively and is a question for the jury
unless reasonable jurors could not find that the practice
described rose to that level. Turner v. J.V.D.B. & Assoc., Inc.,
330 F.3d 991, 997–98 (7th Cir. 2003).
Section 1692f’s catch‐all prohibition on unfairness is “as
vague as they come.” Beler v. Blatt, Hasenmiller, Leibsker &
Moore, LLC, 480 F.3d 470, 474 (7th Cir. 2007). The FTC has
issued a non‐binding interpretation that “[a] debt collector’s act
in collecting a debt may be ‘unfair’ if it causes injury to the
consumer that is (1) substantial, (2) not outweighed by counter‐
vailing benefits to consumers or competition, and (3) not
reasonably avoidable by the consumer.” FTC Commentary,
53 Fed. Reg. 50,107 (Dec. 13, 1988). But we have rejected this
interpretation as inconsistent with the examples given in
§1692f, some of which, like the prohibition on placing symbols
on a debt‐collection envelope, do not require a substantial
No. 12‐3806 9
injury. McMillan v. Collection Prof’ls, Inc., 455 F.3d 754, 764–65
(7th Cir. 2006).
Case law, however, provides instructive examples of
collection practices—both fair and unfair—that are not
specifically addressed in §1692f. Asking a consumer to pay a
debt discharged in bankruptcy, for example, is not unfair or
unconscionable within the meaning of §1692f, though it
violates another provision of the FDCPA. Turner, 330 F.3d
at 998. Neither is it unfair for a college to withhold a student’s
transcript until she has settled her debt to the school. Juras v.
Aman Collection Serv., Inc., 829 F.2d 739, 742–44 (9th Cir. 1987).
On the other hand, seeking a writ of garnishment when the
debtor was not behind in making payments can violate §1692f.
Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1517 (9th Cir.
1994). And closer to Todd’s allegations here, in an opinion
affirming a judgment in favor of the FTC and against a debt
collector for violations of §1692f and other sections of the
FDCPA, the Third Circuit described the defendant’s practice of
calling debtors’ family members and demanding payment as
one of its most egregious practices, though the court did not
specify which provision or provisions this particular conduct
violated. See FTC v. Check Investors, Inc., 502 F.3d 159, 164 (3d
Cir. 2007) (“Check Investors’ tactics apparently knew no limits.
It routinely contacted family members of obligors. In one case,
Check Investors[] repeatedly called a 64‐year old mother
regarding her son’s debt; fearing that her son would be
arrested and carted off to jail, she paid the amount of the
demand.”).
We conclude that Todd has not stated a plausible claim for
relief under §1692f. His allegations about his conversation with
10 No. 12‐3806
the Collecto representative are simply inadequate to support
a claim that Collecto subjected him to an unfair or unconscion‐
able collection practice. During their only conversation, the
Collecto representative made no request for payment and no
express or even implied threat of repercussions for Todd or his
mother. The mere disclosure of Terry’s debt and failure to
request location information would not allow a reasonable jury
to conclude that the treatment of Todd himself was unfair or
unconscionable.
The judgment of the district court dismissing the case is
therefore AFFIRMED.