Scribner v. Works & Lentz, Inc.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 21, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TODD SCRIBNER,

Plaintiff - Appellant,

v. No. 15-5034
(D.C. No. 4:14-CV-00177-JHP-PJC)
WORKS & LENTZ, INC., (N.D. Okla.)

Defendant - Appellee.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________

Plaintiff Todd Scribner appeals from the grant of summary judgment entered

in favor of defendant Works & Lentz, Inc. (W&L), a debt collector, in this action

under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§1692-1692p.

Scribner’s claims arise out of one telephone call made by a W&L employee to the

manager of his apartment complex. The district judge decided the call was not a

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prohibited communication actionable under the FDCPA. Circuit precedent compels

us to affirm.

BACKGROUND

Here, Scribner focuses exclusively on whether W&L violated the FDCPA’s

qualified restriction on contact with third parties, consisting of § 1692c(b), which

prohibits “communication[s]” from debt collectors to third parties “in connection

with the collection of any debt,” and § 1692b, which excepts from that prohibition a

one-time communication by a debt collector who, as relevant here, “identif[ies]

himself, state[s] that he is confirming or correcting location information concerning

the consumer,” and does “not state that such consumer owes any debt.”

See Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 362 (3d Cir. 2015)

(“[T]he FDCPA generally prohibits a debt collector from contacting third parties,

with the debt collector’s ability to seek location information framed as an exception

to this general prohibition.”). In a provision applicable throughout the FDCPA, the

term “communication” is defined as “the conveying of information regarding a debt

directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). In

Marx v. General Revenue Corp., 668 F.3d 1174, 1177-78 (10th Cir. 2011), cert.

granted in part by 132 S. Ct. 2688, and judgment aff’d by 133 S. Ct. 1166 (2013), we

decided § 1692c(b)’s prohibition on third-party contact is limited to communications

as defined in § 1692a(2) and, hence, once it is determined that a debt collector’s

contact with a third party (in Marx, a fax seeking to verify the debtor’s employment)

does not convey information about a debt, there can be no violation of § 1692c(b).

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Accord Brown v. Van Ru Credit Corp., 804 F.3d 740, 742-45 (6th Cir. 2015)

(following Marx).

Turning to the operative facts here, in 2013 W&L was attempting to collect a

debt owed by Scribner. On May 30, 2013, W&L employee Erica Pruitt called the

manager of Scribner’s apartment complex, Brigitte Coffman, for the purpose (she

asserts) of confirming or correcting his current location information. While the

record is not entirely clear as to whether Pruitt actually told Coffman this was the

purpose of the call,1 another matter is undisputed: Pruitt did not identify herself or

her employer as a debt collector or refer to any debt owed by Scribner. Nor did

Coffman understand or infer (from what she was told) the call to be concerned with

a debt owed by Scribner. Pruitt did ask Coffman to post a note (to be faxed later) on

Scribner’s door—a request calling for a tell-tale answer regarding Scribner’s

residence at the complex. Coffman’s response was vague, agreeing only to see what

she could do.2 No fax was ever received from W&L. After concluding the short

conversation with Pruitt, Coffman sent a text message about the call to Scribner,

1
In an affidavit Pruitt’s claims to having made a statement about the purpose
of the call. In her affidavit, (consistent with a text she sent Scribner at the time)
Coffman denies such a statement was made, although her later equivocal deposition
testimony suggests that possibility. As will be evident shortly, this point, which
relates only to § 1692b’s exception to § 1692c(b)’s prohibition on third-party
communications, is not material; the prohibition was not violated in the first place.
Moreover, § 1692b is inapplicable for the same reason § 1692c(b) is inapplicable.
2
In this regard, there is some dispute as to whether Pruitt said Scribner had not
been answering phone calls. Coffman affirms it is true; Pruitt denies it. That dispute
is also not material to our disposition of the case.

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which prompted an exchange of multiple messages. Only through the exchange with

Scribner did Coffman became aware of an attempt to collect a debt owed by Scribner.

Scribner brought this action alleging Pruitt’s call to Coffman violated several

FDCPA proscriptions, including the §§ 1692c(b)/1692b limitation on third-party

communications, the focus of this appeal. In a summary judgment, the district judge

concluded the call did not constitute a communication within the meaning of the

FDCPA, because the undisputed facts showed it neither directly nor indirectly

conveyed information about Scribner’s debt to Coffman. Consequently, relying on

Marx, he decided as a matter of law there had been no violation of the cited sections

of the FDCPA.3

ANALYSIS

We review the grant of summary judgment de novo, using the same standard

as the district court under Fed. R. Civ. P. 56(a). Certain Underwriters at Lloyd’s

London v. Garmin Int’l, Inc., 781 F.3d 1226, 1229-30 (10th Cir. 2015). That is, we

will affirm the district court’s determination if “‘there is no genuine dispute as to any

3
At one point he loosely observed that the lack of a qualifying communication
precluded any and all claims under the FDCPA. But, as Scribner notes, there are
numerous prohibitions in the FDCPA not involving a communication, such as
15 U.S.C. §§ 1692d(1) (prohibiting use of violence or other criminal means for
collection purposes), 1692f(2) (prohibiting acceptance of checks or instruments
postdated more than five days), 1692f(4) (prohibiting early deposit of postdated
checks or instruments), and 1692i (prohibiting filing of collection action in
inconvenient forum). Because our holding is restricted to §§ 1692c(b)/1692b, which
expressly refer to communications, we affirm without embracing overbroad
conclusions about the FDCPA as a whole. Scribner’s several counterexamples do not
undermine our more limited holding.

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material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting

Rule 56(a)).

While the primary focus of this appeal is on Marx’s legal holding regarding

the interaction of the definition of communication in § 1692a(2) and the use of that

term in § 1692b(c), Scribner does raise two factual issues. Both concern § 1692b’s

exception of location-information inquiries from § 1692c(b)’s prohibition on

third-party communications. He contends W&L’s showing (for this exception) in

support of its motion for summary judgment was deficient because (1) evidence

indicated W&L already knew he lived at the apartment complex and (2) there is a

genuine dispute as to whether Pruitt told Coffman she was confirming that fact. But

these points relate to a factual matter immaterial to our disposition. If (as, per Marx,

we hold below) the absence of third-party contact qualifying as a communication

under § 1692a(2) precludes any violation of § 1692c(b), the question of § 1692b’s

exception for location-information inquiries never arises. To avoid this conclusion,

Scribner seems to argue that a failure to satisfy the conditions for § 1692b’s

exception to liability for third-party communications is somehow itself a separate

basis for such liability. Leaving aside the logical problem the argument presents, any

independent claim under § 1692b would fail for the same reasons the § 1692c(b)

claim fails. The introductory sentence of § 1692b states: “Any debt collector

communicating with any person other than the consumer for the purpose of acquiring

location information about the consumer shall” satisfy the six conditions that follow.

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(Emphasis added). Thus, § 1692b, like § 1692c(b), is not violated unless (per Marx)

the third-party contact qualifies as a communication under § 1692a(2).4

Which brings us back to the nub of this appeal—the application of Marx’s

holding to Scribner’s §§ 1692c(b)/1692b claim. He attempts to avoid this result in

two ways. To begin with, he contends Marx is inapposite because it dealt with a

violation of § 1692c(b) rather than a violation of § 1692b. As indicated above, this

argument appears to rest on a mischaracterization of the role § 1692b plays in

determining an actionable violation of the FDCPA’s qualified prohibition on contact

with third parties, which is that of a limited exception to liability under § 1692c(b),

not a separate basis for liability. Moreover, as also noted above, § 1692b itself refers

to communication and hence implicates the definition in § 1692a(2). Consequently,

Marx’s holding that in the absence of a qualifying communication there can be no

liability is analytically pertinent in any event. Nothing in Marx suggests its holding

would not control here.

According to Scribner, applying § 1692a(2)’s definition of communication in

this manner renders the exception in § 1692b superfluous—a result to be avoided

whenever it is possible to do so through a permissible contrary construction of the

statute in question, see Marx, 668 F.3d at 1183. His argument runs as follows:

applying the statutory definition of communication, no actionable violation can arise

4
Also immaterial, and for the same reasons, is Scribner’s complaint that Pruitt
exceeded the scope of permissible location-information contact under § 1692b when
she asked about getting a message posted to his door.

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unless a debt collector “convey[s] . . . information regarding a debt directly or

indirectly,” § 1692(a)(2); but one of the conjunctive conditions for § 1692b’s

exception to liability is that the debt collector “not state [to the third party] that [the]

consumer owes any debt,” § 1692b(2); thus, the redundant requirement for the

reference to debt in both prohibition and exception means that the exception will

apply only when it is not needed, i.e., when there could be no violation in the first

place.5 Two considerations lead us to reject this argument.

First, the argument depends on equating § 1692a(2)’s broad and inclusive

reference to “the conveying of information regarding a debt directly or indirectly”

(emphasis added) with § 1692b(2)’s strict and specific reference to “stat[ing] that

[the] consumer owes a[] debt” (emphasis added). These are not equivalent. One can

convey some information regarding a debt (especially indirectly) to a third party so

as to trigger § 1692c(b) without stating “consumer ‘x’ owes a debt.” Thus, it appears

§ 1692b’s location-information exception may still be available to excuse contact

otherwise coming within § 1692c(b)’s prohibition on third-party communications as

defined in § 1692a(2).

In any event, basically the same redundancy/superfluity argument, directed at

one of the other conditions for invoking § 1692b’s location-information exception,

was squarely rejected in Marx. Sub-section 1695b(5) requires the debt collector to

5
A consequence of this, he adds, is this: if third-party contact does not qualify
as communication under § 1692a(2), the debt collector is free to engage in conduct
Congress clearly intended to curb through constraints imposed by the various other
requirements for invoking the location-information exception in § 1692b.

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avoid use of language or symbols evincing a prohibited “communication.” In Marx,

this court conceded the debtor’s point that giving effect to the statutory definition of

communication made § 1692b(5) superfluous (because it would be satisfied only

when there had been no communication to violate § 1692c(b) in the first place), but

noted “[a] court should not apply the superfluity canon [in construing the statute]

unless it first determines that the term being construed is ambiguous.” Marx,

668 F.3d at 1183. Holding “the statutory definition of the key term ‘communication’

is unambiguous,” Marx “decline[d] to avoid [the superfluity the term created] by

creating an ambiguity where none exists.” Id. at 1184. We cannot accept Scribner’s

similar argument here without impermissibly diverging from our holding in Marx.

The judgment of the district court is affirmed.

Entered for the Court

Terrence L. O’Brien
Circuit Judge

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