Goldman v. Cohen

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2005

(Argued: January 13, 2006 Decided: April 12, 2006

Docket No. 05-2645-cv Errata Filed: May 16, 2006)

LESLIE GOLDMAN ,

Plaintiff-Appellee,

v.

JEFFREY F. COHEN ,

Defendant-Appellant.

Before: CABRANE S and SACK , Circuit Judges, and AMON , District Judge.*

We consider here whether the District Court (Lawrence M. McKenna, Judge) erred in

concluding that a consumer debt collector’s initiation of a lawsuit in state court seeking recovery of

unpaid rent is an “initial communication” within the meaning of the Fair Debt Collection Practices

Act, thereby requiring a consumer debt collector to provide “validation notices” in accordance with

15 U.S.C. § 1692g(a).

Affirmed.

MATTHEW K. FLANAGAN , L’Abbate, Balkan, Colavita & Contini,
L.L.P., Garden City, NY, for Defendant-Appellant.

ROBERT K. SOKOLSKI, Sokolski & Zekaria, P.C., New York City,
NY, for Plaintiff-Appellee.

JOSÉ A. CABRANES, Circuit Judge:

*
The Honorable Carol B. Amon, United States District Judge for the Eastern District of New York, sitting by
designation.
 We consider here, as a matter of first impression in our Circuit, whether a consumer debt

collector’s initiation of a lawsuit in state court seeking recovery of unpaid rent is an “initial

communication” within the meaning of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et

seq., (the “FDCPA”), thereby requiring a debt collector to provide “validation notices” in accordance

with 15 U.S.C. § 1692g(a).

The 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.” DeSantis v. Computer Credit, Inc., 269

F.3d 159, 161 (2d Cir. 2001). Specifically, the Act requires that “[w]ithin five days after the initial

communication with a consumer in connection with the collection of any debt,” a debt collector

must send the consumer a written notice containing:

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be assumed to
be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the
thirty-day period that the debt, or any portion thereof, is disputed, the debt collector
will obtain verification of the debt or a copy of the judgment against the consumer
and a copy of such verification of judgment will be mailed to the consumer by the
debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period,
the debt collector will provide the consumer with the name and address of the
original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a). These provisions are often referred to as the FDCPA’s “validation notice”

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requirements.1

In June 2000, Defendant-Appellant Jeffrey F. Cohen, who is an attorney, was retained by

55th Management Corporation, a landlord, to initiate nonpayment proceedings against its tenant,

Plaintiff-Appellee Leslie Goldman. On June 30, 2000, Cohen filed a petition in the Civil Court of

the City of New York for New York County, seeking recovery of $13,030.52 in back rent and at

least $3,000 in attorneys’ fees. See Goldman v. Cohen, No. 01-cv-5952 (LMM), 2004 U.S. Dist. LEXIS

25517, at *3 (S.D.N.Y. Dec. 17, 2004). On June 29, 2001, Goldman brought suit in the United

States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) under

the FDCPA, alleging that Cohen’s notice of petition and petition constituted an “initial

communication” that was “‘completely devoid of any of the litany of warnings and notices required

by 15 U.S.C. § 1692g.’” Id. at *4 (quoting Compl. ¶ 16).2

The District Court determined that “the applicable law supports the conclusion that a legal

pleading, Cohen’s petition in this case, is a ‘communication’ that must comply with the FDCPA’s

provisions. Since Cohen failed to provide Goldman with the § 1692g validation notice at the time

of, or within five days of, serving Goldman with the notice of petition (the ‘initial communication’ in

this case), Cohen violated the FDCPA.” Goldman, 2004 U.S. Dist. LEXIS 25517, at *23-*24.

On appeal, Cohen argues that, as a matter of statutory construction, the District Court erred

in interpreting the phrase “initial communication” in the FDCPA to include legal pleadings because

1
The term “debt” as defined under the FDCPA refers to “any obligation of a consumer to pay money arising out of
a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for
personal, family, or household purposes .” 15 U.S.C. § 1692a(5) (emphasis added). Accordingly, actions arising out of
com mercial debts are not covered by the protective provision s of the FDCP A. See, e.g., First Gibraltar Bank, FSB v. Sm ith,
62 F.3d 133, 135-36 (5th Cir. 1995).

2
In the proceeding before the District Court, Goldman also claimed that Cohen violated 15 U.S.C. § 1692e by
misstating the am ount of attorne ys’ fees ow ed. Becau se the D istrict Cou rt concluded that the re was an issue of fact w ith
rega rd to whether this fee calculation w as false, it denied both Cohen’s mo tion fo r sum mary judgm ent and Go ldm an’s
cross-m otion for su mmary judgm ent on this issue. See Goldman, 2004 U .S. Dist. LE XIS 2551 7, at * 33. N either pa rty
appeals the District Court’s ruling on this question; accordingly, we do not here address § 1692e.

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the purpose of the FDCPA was to “‘curb abusive debt collection practices, not legal actions.’” Br.

of Def.-Appellant at 8 (quoting McKnight v. Benitez, 176 F. Supp. 2d 1301, 1306 (M.D. Fla. 2001)).

Cohen further contends that the District Court’s reading will not only “creat[e] confusion for

consumers” who must comply with two timetables—one set forth under the FDCPA and another

established by state rules governing litigation—but will also “infring[e] on the states’ rights to

establish the rules governing litigation in their own courts” and create obstacles to the service of

process where creditors are aware that debtors are represented by an attorney. Id. at 8, 17-18.

We review de novo a district court’s grant of summary judgment, drawing all reasonable

inferences in favor of the opposing party, who in this case was Cohen. See, e.g., Konits v. Valley Stream

Cent. High Sch. Dist., 394 F.3d 121, 124 (2d Cir. 2005); Carney v. Thilippone, 332 F.3d 163, 167 (2d Cir.

2003).

Upon our review of the record, we hold that a consumer debt collector’s initiation of a

lawsuit in state court seeking recovery of unpaid consumer debts is an “initial communication”

within the meaning of the FDCPA. Our conclusion is based on several considerations. First, the

plain language of the FDCPA broadly defines “[t]he term ‘communication’ [as] the conveying of

information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. §

1692a(2) (emphasis added). “The plain meaning of legislation should be conclusive, except in the

rare cases in which the literal application of a statute will produce a result demonstrably at odds with

the intentions of its drafters.” United States v. Ron Pair Enters., Inc. 489 U.S. 235, 242 (1989) (internal

quotation marks and brackets omitted). Here, the plain meaning of the FDCPA is entirely

consistent with Congress’s goal of preventing what it characterized as “serious and widespread” debt

collection abuses. See Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996) (citing S. Rep. No. 95-

382, 95th Cong., 1st Sess. 1977, reprinted in 1977 U.S.C.C.A.N. 1695, 1697). Indeed, any

construction of the FDCPA that exempted state legal proceedings from the definition of “initial

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communication” would permit debt collectors to avoid the validation notice requirements of the

statute simply by collecting debts through the medium of litigation.

Second, the Supreme Court held in Heintz v. Jenkins, 514 U.S. 291 (1995), that the term “debt

collector,” as defined in the FDCPA, 15 U.S.C. § 1692a(6), encompasses “lawyer[s] who regularly

tr[y] to obtain payment of consumer debts through legal proceedings.” Id. at 294 (emphasis added). The

Court thus concluded that “the [FDCPA] applies to attorneys who ‘regularly’ engage in consumer-

debt-collection activity, even when that activity consists of litigation.” Id. at 299 (emphasis added).

Although Congress has since amended another section of the FDCPA to clarify that certain

disclosure requirements (other than those specified in § 1692g(a)) do not apply “to a formal legal

pleading made in connection with a legal action.” 15 U.S.C. § 1692e(11), 3 we agree with the District

Court’s assessment that “[t]his section’s express exclusion of a legal pleading from the scope of the

term ‘communication’ implies the drafters’ understanding that the term ‘communication’ would

otherwise include legal pleadings,” Goldman, 2004 U.S. Dist. LEXIS 25517, at *9. See also Alger v.

Ganick, O’Brien, & Sarin, 35 F. Supp. 2d 148, 158 n.18 (D. Mass 1999) (noting that Congress’s 1996

amendment to § 1692e(11) “evidences an intent and an awareness that the FDCPA otherwise

encompasses litigation activity”). Accordingly, we hold that the District Court did not err in

concluding that “in those portions of the statute that mention ‘communication’ without expressly

3
15 U.S.C. § 1692e(11), provides, in relevant part, that a debt collector violates the FDCP A through

[t]he failure to disclose in the initial written communication with the consumer and, in addition, if the
initial communication with the consumer is oral, in that initial oral communication, that the debt
collector is attempting to collect a debt and that any information obtained will be used for that
purpose, and the failure to disclose in subsequent communications that the communication is from a
debt collector, except that this paragraph shall not apply to a formal pleading mad e in connection with a legal action.

(emphasis ad ded ).

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excluding legal pleadings”—such as § 1692g(a)—“legal pleadings are included.”4 Goldman, 2004 U.S.

Dist. LEXIS 25517, at *9.

Third and finally, we recognized in Romea v. Heiberger & Associates, 163 F.3d 111 (2d Cir.

1998), that a letter to a tenant threatening to initiate summary eviction proceedings unless the tenant

paid back rent constituted a “communication” for purposes of the FDCPA. Id. at 116-18. The fact

that the letter “also served as a prerequisite to commencement of the Article 7 [of the New York

Real Property Actions and Proceedings Law] process” was deemed “wholly irrelevant to the

requirements and applicability of the FDCPA” because the “aim in sending the letter was at least in

part to induce [the tenant] to pay the back rent she allegedly owed.” Id. at 116. In Romea, we

considered the FDCPA’s “process server exemption” and concluded that “[i]f Congress had wanted

to exempt any document that was served on the consumer, rather than just the delivery of such a

document, it presumably would have adopted language akin to that in § 1692e(11), which exempts ‘a

formal pleading made in connection with a legal action’ from certain, but not all, of the FDCPA’s disclosure

requirements.” Id. at 117 n.7 (emphasis added).

For the foregoing reasons, we hold that the District Court did not err in concluding that

Cohen’s initiation of a lawsuit in state court seeking recovery of back rent and attorneys’ fees was an

“initial communication” within the meaning of § 1692g(a). In so holding, we join at least one sister

circuit. See Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914 (7th Cir. 2004) (en banc), rev’g 354

F.3d 696 (7th Cir. 2004). In Thomas, the Court of Appeals for the Seventh Circuit, convened en banc,

held that a debt collector’s initiation of a lawsuit constitutes an “initial communication” for purposes

4
We further note that congressional committees have, on at least two occasions, considered—but not referred
to the entire Congress—legislative amend ments to the FDCP A that would have specifically exempted legal pleadings
from the A ct’s definitio n of “com munic ations” and fro m its valid ation notice provisio ns. See H.R. 3066, 108th Cong.
(2003), 2003 Bill Tracking H.R. 3066 (referred to the House Subcommittee on Financial Services Sept. 10, 2003); H.R.
1059, 105th Cong. (1997), 1997 Bill Tracking H.R. 1059 (referred to the House Banking and Financial Services
Committee M arch 13, 1997).

6
of the FDCPA. See also Sprouse v. City Credits Co., 126 F. Supp.2d 1083, 1089 n.8 (S.D. Ohio 2000)

(“A lawsuit initiated to collect debts is certainly included within th[e] definition [of ‘communication’

in 15 U.S.C. § 1692a(2)].”). But see Vega v. McKay, 351 F.3d 1334 (11th Cir. 2003) (holding that

initiation of a lawsuit does not constitute an “initial communication”).5

In cases where debt collectors send debtors a validation notice either along with a summons

and complaint or shortly thereafter,6 we recognize the risk that some debtors will become confused.

To avoid such confusion, it is imperative that a debt collector (1) “make clear that the advice

contained in the § 1692g validation notice in no way alters the debtor’s rights or obligations with

respect to the lawsuit” and (2) “emphasiz[e] that courts set different deadlines for filings.” Thomas,

392 F.3d at 919. We therefore join the Seventh Circuit in exhorting debt collectors who choose to

send § 1692g validation notices along with paperwork initiating legal proceedings to send debtors a

notice, such as one containing the following language, that will ensure compliance with the FDCPA

while only minimally disrupting the litigation process:

This advice pertains to your dealings with me as a debt collector. It does not affect
your dealings with the court, and in particular it does not change the time at which
you must answer the complaint [or other legal pleading]. The summons is a
command from the court, not from me, and you must follow its instructions even if
you dispute the validity or amount of the debt. The advice in this letter also does not
affect my relations with the court. As a lawyer, I may file papers in the suit
according to the court’s rules and the judge’s instructions.

5
We note that in reaching its decision that a legal pleading is not a “communication” within the meaning of the
FDC PA, the Eleventh Circuit relied upon a Staff Commentary of the Federal Trade Comm ission which had been
superseded. Vega, 351 F.3d at 1337 (discussing Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.
Reg. 50,097, 50,108 (Fed. Trade Comm ’n Dec. 13, 1988)). A Comm ission advisory opinion issued in March 2000
explicitly repudiated that Staff Commentary in light of the Supreme Court’s decision in Heintz, and held that a formal
legal pleading which conveyed information about a debt would indeed constitute a communication within the scope of
the F DCP A. See American Collectors Association, Commission Advisory Opinion (Federal Trade Commission March
31, 2000), available at http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm.

6
As the Seventh Circuit observed, “[a] debt collector need not m ake the sum mon s and com plaint its first
com munication with the debtor; rather, it can have its initial commu nication with the debtor u pward s of 30 days be fore
it intends to initiate litigation.” Thomas, 392 F.3d at 91 9. On e adv antage to this approach is that a debtor’s decision to
contest a particu lar debt— which m ust occu r within 30 day s of the de btor’s receipt of the v alidation notice, see 15 U.S.C.
§ 1692g(b)—would not interfere with any pending litigation.

7
Id. at 919-20.

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 CONCLUSION

In sum, we hold that

(1) a consumer debt collector’s initiation of a lawsuit in state court seeking

recovery of unpaid consumer debts is an “initial communication” within the

meaning of the Fair Debt Collection Practices Act;

(2) the District Court correctly entered judgment for Goldman on the basis that

Cohen failed to provide, within the requisite time period, “validation notices”

in accordance with 15 U.S.C. § 1692g(a); and

(3) debt collectors choosing to send § 1692g validation notices along with

paperwork initiating legal proceedings should ensure that their validation

notices (a) advise the debtor that the § 1692g notice in no way alters the

debtor’s rights or obligations with respect to the legal proceedings and (b)

emphasize that courts set deadlines for filings that may differ from the

deadlines set forth under the FDCPA.

* * * *

We have reviewed Cohen’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the District Court.

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