FILED: January 31, 2014
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 13-1151
(5:12-cv-00400-BO)
___________________
DANA CLARK, on behalf of herself and all others similarly
situated; DAVID CLARK, on behalf of himself and all others
similarly situated
Plaintiffs - Appellants
v.
ABSOLUTE COLLECTION SERVICE, INCORPORATED
Defendant – Appellee
___________________
O R D E R
___________________
The court amends its opinion filed January 31, 2014, as
follows:
On the cover page, in the disposition section, "Reversed" is
corrected to read "Vacated."
On page 10, line 10, "REVERSED" is corrected to read
"VACATED."
For the Court--By Direction
/s/ Patricia S. Connor, Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1151
DANA CLARK, on behalf of herself and all others similarly
situated; DAVID CLARK, on behalf of himself and all others
similarly situated,
Plaintiffs - Appellants,
v.
ABSOLUTE COLLECTION SERVICE, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-cv-00400-BO)
Argued: October 30, 2013 Decided: January 31, 2014
Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
Vacated and remanded by published per curiam opinion.
ARGUED: Deepak Gupta, GUPTA BECK, PLLC, Washington, D.C., for
Appellants. Sean T. Partrick, YATES, MCLAMB & WEYHER, LLP,
Raleigh, North Carolina, for Appellee. ON BRIEF: Craig M.
Shapiro, KEOGH LAW, LTD., Chicago, Illinois; Joseph A. Bledsoe,
THE BLEDSOE LAW FIRM, Fayetteville, North Carolina; Gregory A.
Beck, Jonathan E. Taylor, GUPTA BECK, PLLC, Washington, D.C.,
for Appellants. Jennifer D. Maldonado, William T. Kesler, Jr.,
YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for
Appellee.
2
PER CURIAM:
This case involves a putative class action under the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq. Dana Clark and David Clark (“the Clarks”) sued Absolute
Collection Service, Inc. (“ACS”), 1 on behalf of themselves and
all others similarly situated, for its actions in attempting to
collect a debt. The Clarks alleged that ACS’s collection notice
violated section 1692g(a)(3) of the FDCPA by stating that
debtors only could dispute the validity of their debt in
writing. ACS moved to dismiss the Clarks’ lawsuit, contending
that the collection notice complied with the FDCPA because
section 1692g(a)(3) contains an inherent writing requirement.
The district court granted the motion, and the Clarks appealed.
For the reasons set forth below, we vacate the district court's
judgment and remand the case for further consideration.
I.
The Clarks incurred two debts at a health care facility in
Raleigh, North Carolina. When the Clarks were unable to pay,
the health care facility referred the debts to ACS, a third-
party collector. In its efforts to collect, ACS sent separate
1
ACS changed its corporate name on June 29, 2012, after
this case was filed. Although the defendant now is called
FKAACS, Inc., we refer to it as ACS throughout.
3
collection notices to the Clarks at their home in Raleigh. In
both collection notices, a disclosure statement provided that:
ALL PORTIONS OF THIS CLAIM SHALL BE ASSUMED VALID
UNLESS DISPUTED IN WRITING WITHIN THIRTY (30) DAYS; IN
WHICH CASE, VERIFICATION OF THE DEBT OR A COPY OF THE
JUDGMENT WILL BE PROVIDED TO YOU. IF THE ORIGINAL
CREDITOR IS DIFFERENT FROM THE ABOVE NAMED CREDITOR,
THE NAME OF THE ORIGINAL CREDITOR WILL BE PROVIDED
UPON REQUEST.
J.A. 11, 12.
The Clarks sued ACS in the United States District Court for
the Eastern District of North Carolina, at Raleigh, alleging
that its collection notice failed to comply with the FDCPA. 15
U.S.C. § 1692 et seq. The Clarks asserted that ACS violated
their right to challenge their debt orally under section
1692g(a)(3) of the FDCPA because the collection notice stated
that the debt would be “assumed valid unless disputed in
writing.” They also contended that ACS’s imposition of a
writing requirement amounted to the use of “false representation
or deceptive means to collect or attempt to collect any debt,”
in violation of section 1692e(10) of the FDCPA.
ACS moved to dismiss the complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, arguing that
section 1692g(a)(3) contains an inherent writing requirement and
that the Clarks, therefore, failed to state a claim upon which
relief could be granted. The district court agreed, dismissing
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the complaint. In its reasoning, the district court stated that
permitting an oral dispute of the validity of a debt under
section 1692g(a)(3) would leave consumers “with fewer
protections and in a potentially far more confusing station than
if a writing is required.” J.A. 26.
II.
We review de novo the district court’s decision to grant
the motion to dismiss. Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008). We also review de novo questions of statutory
construction. Stone v. Instrumentation Lab. Co., 591 F.3d 239,
242-43 (4th Cir. 2009).
A.
As in all statutory construction cases, our inquiry begins
with the language of the statute. See Lamie v. U.S. Tr., 540
U.S. 526, 534 (2004). “[W]hen the statute’s language is plain,
the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according to
its terms.” Id. (internal quotation marks omitted).
Congress enacted the FDCPA with the goal of eliminating
abusive, deceptive, and unfair debt collection practices. 15
U.S.C. § 1692. Among its safeguards against abuse and
deception, the FDCPA requires a debt collector to send written
notice to consumer debtors with whom it communicates in
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connection with the collection of a debt. 15 U.S.C. § 1692g.
Section 1692g(a) provides that the written notice must contain:
(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 a judgment against the consumer
and a copy of such verification or 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)(1)–(5).
Pursuant to section 1692g(b), if a consumer “notifies the
debt collector in writing” that the debt is disputed, the debt
collector must “cease collection of the debt, or any disputed
portion thereof, until the debt collector obtains verification
of the debt . . . and a copy of such verification . . . is
mailed to the consumer by the debt collector.” 15 U.S.C. §
1692g(b).
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On appeal, the Clarks ask whether section 1692g(a)(3)
permits consumers to dispute the validity of a debt orally, or
whether it imposes a writing requirement. This is a matter of
first impression for this Court. The Third Circuit has held
that section 1692g(a)(3) must be read to include a writing
requirement, finding any other reading contrary to the purposes
of the FDCPA. See Graziano v. Harrison, 950 F.2d 107 (3d Cir.
1991). In contrast, the Second and Ninth Circuits have found
that the plain text of section 1692g(a)(3) permits oral
disputes, and that such a reading results in a logical,
bifurcated scheme of consumer rights. See Hooks v. Forman,
Holt, Eliades & Ravin, LLC, 717 F.3d 282 (2d Cir. 2013); Camacho
v. Bridgeport Fin. Inc., 430 F.3d 1078 (9th Cir. 2005).
In line with the Second and Ninth Circuits, we find that
the FDCPA clearly defines communications between a debt
collector and consumers. Sections 1692g(a)(4), 1692g(a)(5), and
1692g(b) explicitly require written communication, whereas
section 1692g(a)(3) plainly does not. 2 ACS asks that we
disregard the statutory text to read into it words that are not
there. We decline to do so. “[W]here Congress includes
2
We also note that the term “dispute,” as commonly used,
contemplates oral communication. See, e.g., Random House
Webster’s Unabridged Dictionary 569 (2d ed. 2001) (“to argue or
debate about; discuss”).
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particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello v. United States, 464 U.S.
16, 23 (1983) (internal quotation marks omitted).
B.
Accepting that section 1692g(a)(3) does not contain an
explicit writing requirement, ACS argues that it must be read as
imposing an inherent writing requirement or else the procedure
would be inconsistent with the other debt dispute mechanisms
under section 1692g. In ACS’s view, allowing oral disputes
under section 1692g(a)(3) serves only to confuse consumers. ACS
also points out that a writing requirement preserves the core
protections of sections 1692g(a)(3) through 1692g(b), and all
other rights consumers have under other sections of the FDCPA.
Without it, ACS argues, “consumers may be led to believe that an
oral dispute triggers the further protections” of sections
1692g(a)(4), 1692g(a)(5), and 1692g(b) when, in fact, those
protections are waived if not invoked in writing. Appellee’s
Br. at 21.
We find ACS’s arguments unavailing for several reasons.
First, like the Second and Ninth Circuits, we are not persuaded
that the plain language of section 1692g(a)(3) leads to absurd
results, which would have permitted a search for meaning beyond
8
the statutory text. See Lamie, 540 U.S. at 534. As written,
section 1692g(a)(3) triggers statutory protections for consumers
independent of the later sections 1692g(a)(4), 1692g(a)(5), and
1692g(b). For one, once a consumer disputes a debt orally under
section 1692g(a)(3), a debt collector cannot communicate that
consumer’s credit information to others without disclosing the
dispute. 15 U.S.C. § 1692e(8); see Hooks, 717 F.3d at 285;
Camacho, 430 F.3d at 1082. Also, if a consumer owes multiple
debts and makes a payment, a debt collector cannot apply that
payment to a debt that has been disputed orally. See 15 U.S.C.
§ 1692(h); Hooks, 717 F.3d at 285–86; Camacho, 430 F.3d at 1082.
Because we conclude that the plain language of section
1692g(a)(3) does not lead to absurd results, we decline to
insert additional language.
Second, under well-established principles of statutory
construction, this Court must “give effect, if possible, to
every clause and word of a statute.” United States v. Menasche,
348 U.S. 528, 538-39 (1955) (internal quotation marks omitted).
If possible, a court should avoid an interpretation that renders
any “clause, sentence, or word . . . superfluous, void, or
insignificant.” Duncan v. Walker, 533 U.S. 167, 174 (2001).
Relying on the writing requirements in sections 1692g(a)(4),
1692g(a)(5), and 1692g(b) to give effect to section 1692g(a)(3)
9
would violate these principles, leaving section 1692g(a)(3) with
no independent meaning.
As a result, we find that section 1692g(a)(3) permits
consumers to dispute the validity of a debt orally, and it does
not impose a writing requirement.
III.
Accordingly, we vacate the judgment of the district court
that dismissed the plaintiff's complaint and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED
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