In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1113
FRANK THOMAS,
Plaintiff-Appellant,
v.
LAW FIRM OF SIMPSON & CYBAK, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00-CV8-211—David H. Coar, Judge.
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ARGUED SEPTEMBER 22, 2003—DECIDED JANUARY 13, 2004
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Before ROVNER, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Frank Thomas appeals
from the district court’s dismissal of his suit which alleged
that General Motors Acceptance Corporation (“GMAC”), the
law firm Simpson & Cybak (“Simpson”), and their em-
ployees failed to send him a debt validation notice advising
him of his rights as a debtor within five days of their initial
communication with him, as is required by the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692-1692o.
Two principal questions are raised in this appeal: whether
a creditor’s letter to a debtor or a debt collector’s initiation
of a lawsuit in state court constitute “initial communica-
tions” within the meaning of the FDCPA. In dismissing
Thomas’s case for failure to state a claim, the district court
2 No. 02-1113
determined that the creditor’s letter to the debtor consti-
tuted an “initial communication,” while the debt collector’s
initiation of the lawsuit did not. We disagree with both
conclusions. Accordingly, we reverse the district court’s
decision to dismiss Thomas’s claim against Simpson, and
we remand for further proceedings.
I. BACKGROUND
In January 1998, Frank Thomas purchased a Chevrolet
Blazer from Apple Chevrolet under an installment contract
immediately assigned to GMAC. Around January 20, 2000,
shortly after Thomas lost his job with GMAC, he received a
default letter from GMAC operations manager Kay
Candiano on GMAC letterhead informing him that his pay-
ment on the vehicle was past due.
On March 27, 2000, GMAC, through its attorneys,
Simpson & Cybak, sued Thomas in Illinois state court to
recover the vehicle. Kathleen Haggerty, a Simpson lawyer,
signed the complaint. The complaint included a statement
that, “[p]ursuant to the [FDCPA], you are advised that this
law firm is a debt collector attempting to collect a debt, and
any information obtained will be used for that purpose.”
The summons included similar language.
Thomas filed suit against GMAC and Simpson under the
FDCPA, claiming that neither party sent him a debt
validation notice advising him of his rights as a debtor. See
15 U.S.C. § 1692g(a). The district court granted both
defendants’ motions to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Thomas now appeals.
II. ANALYSIS
We review de novo the district court’s dismissal of
Thomas’s complaint for failure to state a claim, accepting as
No. 02-1113 3
true the well-pleaded allegations in Thomas’s complaint
and drawing all reasonable inferences in his favor. Porter v.
DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996).
The FDCPA requires that “within five days after the
initial communication with a consumer in connection with
the collection of any debt, a debt collector” must send the
debtor a written validation notice containing certain infor-
mation. 15 U.S.C. § 1692g(a). The notice must inform the
debtor of the amount of the debt, the name of the creditor,
and that the debt will be assumed valid if the debtor does
not dispute its validity within 30 days of the receipt of the
notice. Id. § 1692g(a)(1)-(3). Furthermore, the notice must
include a statement that, if the debtor disputes the debt
within 30 days of the notice, the debt collector will obtain
and send the debtor verification of the debt and, upon writ-
ten request, send the debtor the name and address of the
current creditor, if different from the original creditor. Id.
§ 1692g(a)(4)-(5).
Thomas argues that neither GMAC nor Simpson notified
him of these debt validation rights. Thomas primarily con-
tends that the summons and complaint Simpson filed ini-
tiating state court litigation against him constituted an
“initial communication” under the FDCPA, and Simpson
was therefore required to notify him of his validation rights
within five days of that communication.
As an initial matter, we need to decide whether GMAC’s
January 20, 2000 default letter to Thomas constitutes an
“initial communication” for purposes of the FDCPA. Despite
the district court’s finding to the contrary, all parties to this
appeal now concede that the letter does not constitute an
“initial communication” regarding a debt under the FDCPA.
The FDCPA defines a “communication” broadly: “the con-
veying of information regarding a debt directly or indirectly
to any person through any medium.” 15 U.S.C. § 1692a(2).
4 No. 02-1113
But, because the Act regulates debt collectors rather than
creditors, Schlosser v. Fairbanks Capital Corp., 323 F.3d
534, 536 (7th Cir. 2003), GMAC’s letter to Thomas—a letter
from a creditor1—does not qualify as an “initial communica-
tion” under the Act. Because the FDCPA makes debt
collectors, but not creditors, responsible for notifying
debtors of their validation rights, see 15 U.S.C. § 1692g(a),
a contrary position could create significant unintended
obligations for debt collectors. Debt collectors would be
responsible for notifying debtors of their debt validation
rights within five days of an “initial communication” that
the debt collector did not send or for one communicated
before the creditor retained the debt collector. Nothing in
the FDCPA suggests that Congress intended creditors’
unilateral actions to obligate debt collectors to inform
debtors of their rights; rather, the Act is intended to deter
debt collectors from employing their own abusive tactics.
Because we decide that GMAC’s letter to Thomas does not
constitute an initial communication for FDCPA purposes,
no obligation to inform Thomas of his validation rights
arose upon the sending of the letter.
The principal question remains, whether Simpson’s fil-
ing of the summons and complaint, in state court, was an
“initial communication” within the meaning of the FDCPA,
such that the filing triggered an obligation to notify Thomas
of his validation rights within five days. No appellate court
1
The district court found that GMAC was a creditor. Thomas
v. Law Firm of Simpson & Cybak, No. 00 C 8211, 2001 WL
1516746, at*3 (N.D. Ill. 2003). A creditor includes “any person who
offers or extends credit creating a debt or to whom a debt is owed.
. .,” whereas a debt collector includes “any person who uses an
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due
another.” 15 U.S.C. § 1692a(3) & (6).
No. 02-1113 5
has addressed this issue, and district courts are divided in
their analyses. See, e.g., McKnight v. Benitez, 176 F. Supp.
2d 1301, 1306-08 (M.D. Fla. 2001) (holding that a summons
and complaint do not constitute “initial communications”
triggering the debt validation notice requirements of §
1692g); but see, e.g., Sprouse v. City Credit Co., 126 F. Supp.
2d 1083, 1089 n.8 (S.D. Ohio 2000) (finding that a summons
and complaint served in a state court action constitute
“initial communications” under the FDCPA).
By its terms, as stated above, the FDCPA’s broad defi-
nition of a “communication” encompasses the filing of a
summons and complaint. When Simpson filed the summons
and complaint, it conveyed information regarding Thomas’s
debt.2 The plain language of a statute “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.’ ” Castellon-Contreras v. INS,
45 F.3d 149, 153 (7th Cir. 1995) (quoting United States v.
Ron Pair Enter., Inc., 489 U.S. 235, 242 (1989)). This is not
such a case; rather, viewing the filing of a summons and a
complaint as an “initial communication” is consistent with
the drafter’s intent.
The statute was intended to “protect consumers from
a host of unfair, harassing, and deceptive debt collection
practices. . . .” S. Rep. No. 95-382, at 1 (1977). Our interpre-
2
We are aware that Congress has proposed a bill amending the
FDCPA to specifically exclude formal pleadings from the defi-
nition of a communication for purposes of 15 U.S.C. § 1692g, see
H.R. 3066, 108th Cong. (2003), but as an interpretative body, we
must interpret the law as it existed at the time the dispute arose.
Nonetheless, the proposed amendment may be viewed as an in-
dication that Congress considered the FDCPA’s current definition
of “communication” to include the filing of a summons and
complaint.
6 No. 02-1113
tation of the statute furthers this objective because it helps
ensure that debtors will be informed about their validation
rights and that debt collectors will investigate claims before
initiating litigation to collect debts. Defendants’ argument
that state courts offer sufficient protections to guard
against abusive debt collection tactics during litigation is
unpersuasive. The FDCPA affords different protections
than state court; debt collectors who violate its provisions
may be subject to civil liability. See 15 U.S.C. § 1692k.
Defendants contend that we should ignore the FDCPA’s
plain language because deeming the filing of a summons
and complaint an “initial communication” would interfere
with litigation by making debt collection lawsuits more
cumbersome for attorneys. In Heintz v. Jenkins, 514 U.S.
291 (1995), the Supreme Court considered and, in light of
the FDCPA’s plain language, rejected similar arguments.
The Court held that the FDCPA applies to lawyers who
regularly try to collect debts through litigation. Heintz, 514
U.S. at 292. Although the Court did not specifically consider
whether initiating a lawsuit fell within the definition of a
“communication,” its opinion suggests that concerns about
interfering with litigation are not sufficient to warrant
ignoring the statute’s plain language. Defendants’ argu-
ment is further belied by the fact that the FDCPA does not
require debt collectors to notify debtors of their rights in
those communications. Instead, debt collectors have the
option of notifying debtors within five days of the initial
communication. 15 U.S.C. § 1692g(a).
Because we have concluded that the filing of a summons
and complaint by a debt collector constitutes an “initial
communication” under the FDCPA, Thomas has stated a
viable claim for violation of 15 U.S.C § 1692g.
No. 02-1113 7
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
dismissal under Rule 12(b)(6) of Thomas’s claim against
Simpson and REMAND for further proceedings consistent
with this opinion.
EVANS, Circuit Judge, dissenting. I agree that the
FDCPA’s definition of “communication” could be read to en-
compass the filing of a summons and complaint by a lawyer.
But I don’t think it should be read that way. To do so, I
submit, leads to a result that is not consistent with the
purpose of the FDCPA, nor with the traditional view of
what lawyers must do when they take a pivotal step in that
relationship—instituting formal legal proceedings in a court
of law to collect a debt.
No doubt, lawyers can be “debt collectors” when they act
like them—by engaging in the kind of “unfair, harassing
and deceptive debt collection practices” that the FDCPA is
designed to protect against. See Avila v. Rubin, 84 F.3d 222
(7th Cir. 1996) (lawyer sending out dunning letters is a debt
collector subject to the FDCPA). But in this case, the
lawyers were not sending dunning “communications” to Mr.
Thomas. Instead, they were doing what lawyers tradition-
ally do—filing a lawsuit in state court on behalf of their
client. To hold that they must include in their court plead-
ings all the notice/validation, etc. information required by
the FDCPA seems very odd indeed.
8 No. 02-1113
As a general rule, when statutory language is plain, there
is no cause to examine other indicia of legislative intent.
Indiana Port Comm’n v. Bethlehem Steel Corp., 835 F.2d
1207 (7th Cir. 1987). But we have long recognized that a
section of a statute should not be read in isolation from the
context of the statute as a whole. See Nupulse, Inc. v.
Schlueter, 853 F.2d 545 (7th Cir. 1988). We also have noted
that “the Supreme Court has recognized limitations on the
requirement that statutory language be interpreted liter-
ally. A literal construction is inappropriate if it would lead
to absurd results or would thwart the obvious purposes of
the statute.” Smith v. Bowen, 815 F.2d 1152, 1154 (7th Cir.
1987) (citing In re Trans Alaska Pipeline Rate Cases, 436
U.S. 631, 643 (1978)).
To include the filing of a summons and complaint in
the definition of a “communication” with a debtor under the
FDCPA runs counter to the intent of the statute and creates
inconsistency, as Judge Moody, in McKnight v. Benitez, 176
F. Supp. 2d 1301 (M.D. Fla. 2001), astutely observed:
The purpose of the Act, as stated in § 1692(e), is “to
eliminate abusive debt collection practices by debt col-
lectors, to ensure that those debt collectors who refrain
from using abusive debt collection practices are not
competitively disadvantaged, and to promote consistent
state action to protect consumers against debt collection
abuses.” That language indicates that Congress in-
tended to regulate unscrupulous practices of debt
collectors and level the playing field for debt collectors
who do not use abusive practices. There is no indication
whatsoever that Congress considered state law legal
remedies to be “abusive,” nor does it appear necessary
to alter the procedures for filing state lawsuits to level
the playing field. After all, if state lawsuits are used in
an abusive manner, protection already exists in the
court where the action is brought.
No. 02-1113 9
Moreover, Congress did not overlook legal actions as
being potentially abusive. It made a specific provision
in the Act, in a section entitled “Legal Actions by Debt
Collectors,” to regulate venue, the place where a lawsuit
could be filed. Had it wished to alter the timing of the
filing or create other changes in existing legal remedies
to curb “abuses,” it would have been logical to do so
there. Or, specific mention of legal actions could have
been made within the definition of “communication.”
The absence of doing so is one indication that Congress
did not intend the revolutionary changes to long-stand-
ing judicial remedies which are required if a legal
action is considered a “communication” within the
meaning of the Act.
176 F. Supp. 2d at 1304.
The majority notes, in a footnote, that a bill is pending in
Congress to amend the FDCPA to specifically exclude
formal pleadings from the definition of a communication
under 15 U.S.C. § 1692g, see H.R. 3066, 108th Cong. (2003).
The majority sees this as “an indication that Congress
considered the FDCPA’s current definition of ‘communica-
tion’ to include the filing of a summons and complaint.” I
think it’s more likely that the purpose of the proposed
amendment is to make explicit what is clearly implicit. The
proposed amendment is, I submit, more easily viewed as an
effort to curtail erroneous interpretations of what is
included in the word “communication” under the FDCPA.
For these and other reasons quite well stated in
McKnight, I respectfully dissent.
10 No. 02-1113
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-13-04