17‐950
Cohen v. Rosicki, Rosicki & Assocs., P.C.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2017
(Argued: October 2, 2017 Decided: July 23, 2018)
Docket No. 17‐950‐cv
AARON COHEN, on behalf of himself and all others similarly situated,
Plaintiff‐Appellant,
v.
ROSICKI, ROSICKI & ASSOCIATES, P.C., DITECH FINANCIAL LLC,
Defendants‐Appellees.
Before: SACK, RAGGI, AND CARNEY, Circuit Judges.
Plaintiff‐Appellant Aaron Cohen appeals from a judgment entered
in favor of Defendants‐Appellees Ditech Financial LLC and Rosicki,
Rosicki & Associates, P.C., by the United States District Court for the
Eastern District of New York (Leonard D. Wexler, Judge). Cohen alleges
that the defendants violated the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq., in connection with their attempt to initiate foreclosure
proceedings on his home. The district court granted the defendantsʹ
motions to dismiss. We conclude that Cohen has failed to state a claim
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
under the Fair Debt Collection Practices Act. Accordingly, the judgment of
the district court is
AFFIRMED.
DANIEL A. EDELMAN, Edelman, Combs,
Latturner & Goodwin, LLC, Chicago,
Illinois (Tiffany N. Hardy, Edelman,
Combs, Latturner & Goodwin, LLC,
Chicago, Illinois; Shimshon Wexler, The
Law Office of Shimshon Wexler, PC,
Decatur, Georgia, on the brief), for Plaintiff‐
Appellant.
HENRY MASCIA (Cheryl F. Korman, on the
brief), Rivkin Radler LLP, Uniondale, New
York, for Defendant‐Appellee Rosicki, Rosicki
& Associates, P.C.
MARTIN C. BRYCE, JR. (Adam P. Hartley,
Alexander Kommatas, on the brief), Ballard
Spahr LLP, New York, New York, for
Defendant‐Appellee Ditech Financial, LLC.
Mary McLeod, General Counsel, John R.
Coleman, Deputy General Counsel, Steven
Bressler, Assistant General Counsel,
Nandan M. Joshi, Joseph Frisone, Counsel,
Consumer Financial Protection Bureau,
Washington, D.C., for Amicus Curiae
Consumer Financial Protection Bureau, in
support of Plaintiff‐Appellant.
SACK, Circuit Judge:
The plaintiff, Aaron Cohen, brings this putative class action against Ditech
Financial LLC (ʺDitechʺ), Cohenʹs mortgage‐loan servicer, and Rosicki, Rosicki &
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
Associates, P.C. (ʺRosickiʺ), the servicerʹs law firm, alleging violations of the Fair
Debt Collection Practices Act (ʺFDCPAʺ), 15 U.S.C. § 1692 et seq., in connection
with their attempt to initiate foreclosure proceedings on his home. The district
court (the late Leonard D. Wexler, Judge) granted the defendantsʹ motions to
dismiss. We conclude that the district court erred in dismissing Cohenʹs FDCPA
claims on the ground that the enforcement of a security interest through
foreclosure proceedings is not debt collection for purposes of the FDCPA. We
nevertheless affirm because Cohen has failed to plausibly allege that the
defendants violated the FDCPA.
BACKGROUND
Factual Background1
On or about August 11, 2005, Cohen obtained a mortgage loan of $359,650
from Sterling Empire Funding Associates, Ltd. (ʺSterlingʺ) to finance the
purchase of his personal residence in Pomona, Rockland County, New York.
Because Cohenʹs complaint was dismissed under Federal Rule of Civil Procedure
1
12(b)(6), we accept the facts alleged in the complaint as true for purposes of our review.
Hutchinson v. Deutsche Bank Sec., Inc., 647 F.3d 479, 481 (2d Cir. 2011). We also consider
on review ʺany written instrument attached to the complaint, statements or documents
incorporated into the complaint by referenceʺ; here, those include documents filed by
Rosicki in its state mortgage foreclosure suit against Cohen. Id.
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
Cohen has been in default on this mortgage since 2009. On June 1, 2010, Cohenʹs
mortgage and note was assigned to Countrywide/Bank of America, which on
June 10, 2013, transferred its rights in the mortgage and note to Green Tree
Servicing LLC (ʺGreen Treeʺ). Green Tree, through its attorney Rosicki, filed a
foreclosure action summons and complaint with respect to the mortgaged
property against Cohen in New York Supreme Court Rockland County on March
11, 2015. After the foreclosure action was filed, Green Tree changed its name to
Ditech.2 The defendants mailed copies of the summons and foreclosure
complaint to Cohen.
The complaint in the foreclosure action asserts that Green Tree is the
ʺholder of the subject note and mortgage, or has been delegated the authority to
institute a mortgage foreclosure action by the owner and holder of the subject
mortgage and note.ʺ Appʹx at 37. The summons states that Green Tree is ʺthe
creditor to whom the debt is owedʺ and provides that ʺ[u]pon your written
request within 30 days after receipt of this notice, Rosicki, Rosicki & Associates
P.C. will provide you with the name and address of the original creditor if
different from the current creditor.ʺ Appʹx at 34.
2 We use ʺDitechʺ and ʺGreen Treeʺ to refer to the same entity.
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
New York law requires foreclosure plaintiffs to file two additional
documents at the onset of a foreclosure proceeding. First, such a plaintiff must
attach to the complaint a ʺCertificate of Meritʺ signed by the plaintiffʹs attorney
that ʺcertif[ies] that the attorney has reviewed the facts of the case and that . . . to
the best of such attorneyʹs knowledge, information and belief there is a
reasonable basis for the commencement of such action and that the plaintiff is
currently the creditor entitled to enforce rights under such documents.ʺ N.Y.
C.P.L.R. § 3012‐b(a). Second, ʺ[a]t the time that proof of service of the summons
and complaint is filed with the county clerk, plaintiff shall file with the county
clerk a specialized request for judicial intervention (RJI), on a form prescribed by
the Chief Administrator of the Courts.ʺ N.Y. Comp. Codes R. & Regs. tit. 22,
§ 202.12a(b)(1). The RJI must contain, inter alia, ʺthe name of the mortgage
servicer,ʺ and ʺshall request that a settlement conference be scheduled.ʺ Id.
Here, Green Tree filed in Supreme Court the Certificate of Merit (the
ʺCertificateʺ) on March 11, 2015, the same date that the foreclosure complaint
was filed there. The Certificate was signed by Green Treeʹs attorney and certified
that Green Tree ʺis the creditor entitled to enforce rightsʺ under the mortgage
note and related documents. Appʹx at 93–94. Green Tree subsequently filed the
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
RJI with the court on March 26, 2015. Appʹx at 99–101. The RJI identifies the
nature of the action as a mortgage foreclosure proceeding and seeks a
ʺResidential Mortgage Foreclosure Settlement Conference.ʺ Appʹx at 99–100.
Cohen received copies of the Certificate and RJI from the defendants.
Cohen subsequently submitted a ʺqualified written requestʺ to Ditech
requesting information relating to the servicing of the loan.3 On September 23,
2015, Ditech sent Cohen a letter in response, which states that ʺ[t]he servicing of
the above account was transferred from Bank of America, N.A. to Ditech
effective June 1, 2013ʺ and that the account is owned by ʺFannie Mae.ʺ4 Appʹx at
110. The letter further explains, ʺPlease be aware Ditech did not originate nor
owns [sic] the account; it merely services it for a third party and can provide
information from the servicing transfer date forward.ʺ Id. Finally, the letter
advises Cohen that ʺthe owner does not service the account. All correspondence
and inquiries concerning the account should be addressed to the account
Under the Real Estate Settlement Procedures Act, a borrower who has a federally
3
related mortgage loan may submit a written request to the servicer of the loan
requesting information relating to the servicing of the loan. Such a request for
information is termed a ʺqualified written requestʺ and may impose on the loan servicer
a duty to respond to the borrowerʹs inquiry. 12 U.S.C. § 2605(e)(1)(B).
4 The record does not appear to reflect the date on which Cohenʹs loan was sold to
Fannie Mae or by whom.
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
servicer, Ditech . . . . The servicer has authority to act on the ownerʹs behalf with
regard to the administration of the account and respond to any questions about
the account.ʺ Id.
Procedural History
On December 1, 2015, Cohen filed this putative class action against Ditech
and its foreclosure counsel, Rosicki, seeking to recover statutory damages under
the FDCPA. See 15 U.S.C. § 1692k(a) (providing that a court may award up to
$1,000 in statutory damages for violation of the FDCPA). Cohen alleges that the
defendants violated two different provisions of the FDCPA by identifying Green
Tree, and not the Federal National Mortgage Association (ʺFannie Maeʺ), as the
creditor in the foreclosure complaint, Certificate, and RJI. Specifically, Cohen
alleges that the defendants violated 15 U.S.C. § 1692e, which prohibits false,
deceptive, or misleading representations made in connection with collecting a
debt, and 15 U.S.C. § 1692g(a), which requires debt collectors to provide debtors
with the name of the ʺcreditor to whom the debt is owedʺ within five days of an
ʺinitial communication with a consumer in connection with the collection of any
debt.ʺ
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
The defendants moved to dismiss Cohenʹs complaint under Federal Rule
of Civil Procedure 12(b)(6). On March 24, 2017, the district court dismissed
Cohenʹs complaint, concluding that Cohen had failed to state a claim upon which
relief can be granted because the ʺenforcement of a security interest through
foreclosure proceedings that do not seek monetary judgments against debtorsʺ
does not qualify as debt collection within the scope of the FDCPA. Cohen v.
Ditech Fin. LLC, No. 15‐CV‐6828 (LDW), 2017 WL 1134723, at *3, 2017 U.S. Dist.
LEXIS 43443, at *7–8 (E.D.N.Y. Mar. 24, 2017). The district court reasoned that
because ʺGreen Tree elected to commence an action to foreclose on the mortgage
and the ʹcommunicationsʹ at issue were made in the context of enforcing its
security interest . . . there was no attempt to enforce a debt actionable under the
FDCPA.ʺ Id. Cohen then timely filed this appeal.
DISCUSSION
I. Standard of Review
ʺWe review de novo a district courtʹs grant of a defendantʹs motion to
dismiss.ʺ City of Pontiac Gen. Empsʹ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d
Cir. 2011). To survive a motion to dismiss, a complaint ʺmust contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
face.ʺ Aschcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted). ʺA complaint is also deemed to include any written instrument
attached to it as an exhibit, materials incorporated in it by reference, and
documents that, although not incorporated by reference, are integral to the
complaint.ʺ L‐7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)
(brackets and internal quotation marks omitted).
II. Standing
Ditech argues that Cohen lacks standing under Article III of the
Constitution to bring this action. Because standing is a ʺthreshold matterʺ in
determining whether the district court had jurisdiction to hear and decide this
case, Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 44 (2d Cir. 2015)
(internal quotation marks omitted), we address standing at the outset of our
analysis.
To satisfy the ʺirreducible constitutional minimumʺ of Article III standing,
a plaintiff must demonstrate (1) ʺinjury in fact,ʺ (2) a ʺcausal connectionʺ between
that injury and the complained‐of conduct, and (3) a likelihood ʺthat the injury
will be redressed by a favorable decision.ʺ Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992) (internal quotation marks omitted).
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
According to Ditech, Cohen lacks standing because he has alleged only a
ʺbare [statutory] procedural violation, divorced from any concrete harm,ʺ which
is insufficient to satisfy the injury‐in‐fact requirement under Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1549 (2016). Ditech Br. at 51. However, Spokeo does not
ʺcategorically . . . preclude[] violations of statutorily mandated procedures from
qualifying as concrete injuries supporting standing.ʺ Strubel v. Comenity Bank,
842 F.3d 181, 189 (2d Cir. 2016) (citing Spokeo, 136 S. Ct. at 1550). It teaches,
instead, that in order ʺto determine whether a procedural violation manifests
injury in fact, a court properly considers whether Congress conferred the
procedural right in order to protect an individualʹs concrete interests.ʺ Id. ʺ[I]n
the absence of a connection between a procedural violation and a concrete
interest, a bare violation of the former does not manifest injury in fact.ʺ Id.
However, ʺwhere Congress confers a procedural right in order to protect a
concrete interest, a violation of the procedure may demonstrate a sufficient ʹrisk
of real harmʹ to the underlying interest to establish concrete injury without ʹneed
[to] allege any additional harm beyond the one Congress has identified.ʹʺ Id.
(emphasis and brackets in original) (quoting Spokeo, 136 S. Ct. at 1549).
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
Here, Cohen alleges that the defendants violated 15 U.S.C. §§ 1692e and
1692g. We have held in the wake of Spokeo, albeit in non‐binding summary
orders,5 that §§ 1692e and 1692g protect an individualʹs concrete interests, so that
an alleged violation of these provisions satisfies the injury‐in‐fact requirement of
Article III. See Zirogiannis v. Seterus, Inc., 707 F. Appʹx 724, 727 (2d Cir. Sept. 12,
2017) (summary order) (ʺ[W]e have no trouble concluding that § 1692g of the
FDCPA protects an individualʹs concrete interestsʺ (internal quotation marks and
brackets omitted)); Papetti v. Does 1‐25, 691 F. Appʹx 24, 26 (2d Cir. May 26, 2017)
(summary order) (concluding that plaintiffʹs allegations of violations of §§ 1692e
and 1692g by themselves entailed the concrete injury necessary for standing).
We reach the same conclusion here.
Congress enacted the FDCPA ʺto protect against the abusive debt
collection practices likely to disrupt a debtorʹs life.ʺ Simmons v. Roundup Funding,
LLC, 622 F.3d 93, 96 (2d Cir. 2010) (internal quotation marks omitted). Sections
1692e and 1692g further this purpose: the former secures a consumerʹs right to be
Although this Courtʹs rulings by summary order do not have precedential effect, see
5
2d Cir. Local R. 32.1.1(a), ʺdenying summary orders precedential effect does not mean
that the court considers itself free to rule differently in similar cases,ʺ Jackler v. Byrne, 658
F.3d 225, 244 (2d Cir. 2011) (brackets omitted) (internal quotation marks omitted). In
Jackler itself, though, we declined to follow the summary order in connection with
which we made this observation.
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
free from ʺfalse, deceptive, or misleadingʺ practices by debt collectors, 15 U.S.C.
§ 1692e, and the latter requires a debt collector who solicits payment from a
consumer to provide the consumer with ʺa detailed validation noticeʺ so that he
may confirm that he indeed owes the debt and its amount before paying it,
Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). Congress thus sought to
protect consumersʹ concrete economic interests in enacting these provisions.
Both of Cohenʹs FDCPA claims are based on the defendantsʹ allegedly
incorrect identification of Green Tree as the creditor in the foreclosure complaint,
Certificate, and RJI. Taken as true, this misrepresentation might have deprived
Cohen of information relevant to the debt prompting the foreclosure proceeding,
posing a ʺrisk of real harmʺ insofar as it could hinder the exercise of his right to
defend or otherwise litigate that action.6 See Strubel, 842 F.3d. at 190 (explaining
that ʺconsumer who is not given notice of his obligations is likely . . . unwittingly
Ditech argues that Cohen ʺhas failed to demonstrate any injury that could have
6
possibly resulted from Ditechʹs failure to identify Fannie Mae as the creditorʺ and that
this misinformation is too ʺtrivialʺ to cause harm. Ditech Br. at 53 (quoting Strubel, 842
F.3d at 190). This argument goes to the materiality of the allegedly false information in
the defendantsʹ communications. As discussed infra in Part IV, materiality is a
requirement for a successful § 1692e cause of action. We do not consider this merits
issue as part of our standing analysis. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 155
(1990) (“Our threshold inquiry into standing in no way depends on the merits of the
[petitionerʹs] contention that particular conduct is illegal . . . .” (alteration in original)
(internal quotation marks omitted)).
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
to lose the very . . . rights that the law affords himʺ (emphasis omitted)). We
conclude that Cohen has alleged an injury‐in‐fact and therefore has standing.
Accordingly, we proceed to the merits of this appeal.
III. The FDCPA and Mortgage Foreclosure Proceedings
We next address the district courtʹs conclusion that actions taken within a
foreclosure action do not categorically constitute debt collection within the scope
of the FDCPA. We disagree and join those of our sister circuits that have
concluded that a foreclosure action is an ʺattempt to collect a debtʺ as defined by
the FDCPA. See Kaymark v. Bank of Am., N.A., 783 F.3d 168, 174–79 (3d Cir. 2015);
Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 460–65 (6th Cir. 2013); Wilson v.
Draper & Goldberg, P.L.L.C., 443 F.3d 373, 376–78 (4th Cir. 2006); see also Reese v.
Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216–18 (11th Cir. 2012)
(concluding that letters threatening foreclosure are not exempt from the FDCPA
because ʺcommunication related to debt collection does not become unrelated to
debt collection simply because it also relates to the enforcement of a security
interestʺ); Kaltenbach v. Richards, 464 F.3d 524, 527–29 (5th Cir. 2006) (same).7
The Ninth Circuit has concluded that ʺenforcement of security interests is not always
7
debt collectionʺ within the scope of the FDCPA. Vien‐Phuong Thi Ho v. ReconTrust Co.,
NA, 858 F.3d 568, 573 (9th Cir. 2016). In Ho, the court decided that a trustee in a non‐
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
We begin with the ʺlanguage employed by Congress and the assumption
that the ordinary meaning of that language accurately expresses the legislative
purpose.ʺ Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–76 (2009) (internal
quotation marks omitted). The FDCPA defines ʺdebtʺ as ʺany obligation or
alleged 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.ʺ8 15
U.S.C. § 1692a(5). This provisionʹs ʺfocus on the underlying transaction indicates
that whether an obligation is a ʹdebtʹ depends not on whether the obligation is
secured, but rather upon the purpose for which it was incurred.ʺ Glazer, 704 F.3d
at 461. Cohenʹs payment obligations under the mortgage note fall within the
plain language of § 1692a(5): Cohen is a consumer who must pay money to the
judicial foreclosure scheme that does not allow for deficiency judgments was not
engaged in ʺdebt collectionʺ under the FDCPA. Id. at 571–74. In McNair v. Maxwell &
Morgan P.C., 893 F.3d 680 (9th Cir. 2018), however, the court subsequently observed that
ʺHo does not . . . preclude FDCPA liability for an entity that seeks to collect a debt
through a judicial foreclosure scheme that allows for deficiency judgmentsʺ and
concluded that actions taken by a law firm within a judicial foreclosure proceeding
constitute debt collection under the FDCPA. Id. at 683 (emphasis in original). The
instant case is like McNair, rather than Ho, because it involves a judicial foreclosure and
as discussed below, the applicable state law (New York) permits mortgagees to seek
deficiency judgments. Thus, we have no occasion to decide here if we would follow Ho
in the circumstances presented there.
8 ʺThe term ʹconsumerʹ means any natural person obligated or allegedly obligated to
pay any debt.ʺ 15 U.S.C. § 1692a(3).
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
mortgagee, and his obligation to do so arose from a transaction involving
property that is for Cohenʹs personal, family, or household purposes (the
mortgage note financed the purchase of his personal residence). See Reese, 678
F.3d at 1216–17; Wilson, 443 F.3d at 376. Cohenʹs obligation to pay off the
mortgage note is therefore a ʺdebtʺ for purposes of the FDCPA.
The defendants argue that the foreclosure action and the foreclosure filings
at issue here—the complaint, summons, Certificate, and RJI—do not constitute
an attempt to ʺcollectʺ that debt. We disagree. To be liable under the relevant
substantive provisions of the FDCPA, §§ 1692e and 1692g, a debt collectorʹs
targeted conduct must have been taken ʺin connection with the collection of any
debt,ʺ 15 U.S.C. §§ 1692e, 1692g(a), i.e., ʺany obligation or alleged obligation of a
consumer to pay money,ʺ id. § 1692a(5). Thus, FDCPA liability is defined not in
terms of whether the relief sought is money or property, but in terms of whether
the debt collectorʹs communication with the consumer is in connection with that
consumerʹs obligation to pay money. In other words, the FDCPA does not make
a distinction between an obligation itself grounded in money or property, and an
obligation the breach of which can give rise to an award of money damages at
law or of a property interest at equity.
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
Here, the purpose of the defendantsʹ foreclosure proceeding was to obtain
payment of the underlying mortgage note. Indeed, ʺevery mortgage foreclosure,
judicial or otherwise, is undertaken for the very purpose of obtaining payment
on the underlying debt, either by persuasion (i.e., forcing a settlement) or
compulsion (i.e., obtaining a judgment of foreclosure, selling the house at
auction, and applying the proceedings from the sale to pay down the
outstanding debt).ʺ Glazer, 704 F.3d at 461 (emphasis in original). Moreover,
mortgage foreclosure is contemplated in another portion of the statute. See 15
U.S.C. § 1692i(a)(1) (establishing venue requirements for a debt collector ʺin the
case of an action [brought by the debt collector] to enforce an interest in real
property securing the consumerʹs obligationʺ). We therefore conclude that
mortgage foreclosure meets the FDCPAʹs broad definition of ʺdebt collection.ʺ
The defendants counter that the foreclosure proceeding was not an
attempt to collect a debt because the purpose of the proceeding was to enforce a
security interest and obtain possession of property, rather than to obtain
payment on a debt. However, New York law gives mortgagors redemption
rights, N.Y. Real Prop. Acts § 1352, and allows mortgagees to obtain deficiency
judgments if the proceeds from the foreclosure sale are less than the outstanding
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
debt, id. § 1371. These provisions indicate that the purpose of foreclosure is to
obtain payment on the underlying loan, rather than mere possession of the
subject property. Indeed, ʺ[s]uch remedies would not exist if foreclosure were
not undertaken for the purpose of obtaining payment.ʺ Glazer, 704 F.3d at 461.
Moreover, contrary to the defendantsʹ assertions, a foreclosure proceeding
does not fall outside the scope of the FDCPA solely because it is an in rem legal
proceeding. As an initial matter, we have determined in previous cases that debt
collectors can be subject to FDCPA liability based on actions taken in legal
proceedings. See, e.g., Romea v. Heiberger & Assocs., 163 F.3d 111, 116 (2d Cir.
1998) (holding that a rent demand notice, required by New York law as a
condition precedent to a summary eviction proceeding, was a ʺcommunicationʺ
to collect a debt within the meaning of the FDCPA); cf. Heintz v. Jenkins, 514 U.S.
291, 292 (1995) (concluding that ʺa lawyer who ʹregularly,ʹ through litigation, tries
to collect consumer debtsʺ is a ʺdebt collectorʺ under the Act (emphasis in
original)). Second, to accept the defendantsʹ argument and exclude in rem
proceedings from the scope of the FDCPA ʺwould create an enormous loophole
in the [FDCPA] immunizing any debt from coverage if that debt happened to be
secured by a real property interest and foreclosure proceedings were used to
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collect the debt.ʺ Wilson, 443 F.3d at 376; see also Kaymark, 783 F.3d at 179; Reese,
678 F.3d at 1217–18. We therefore find it irrelevant that a mortgage foreclosure
action is an in rem action in equity rather than an in personam action at law.
We conclude that mortgage foreclosure, at least under the circumstances
presented here, constitutes debt collection under the FDCPA.
IV. Failure to State a Claim Under 15 U.S.C. § 1692e
We nonetheless affirm the dismissal of Cohenʹs § 1692e claim for failure to
state a claim. Section 1692e prohibits debt collectors from making ʺany false,
deceptive, or misleading representation or means in connection with the
collection of any debt.ʺ Cohenʹs principal allegation is that the defendants
violated § 1692e by falsely identifying Green Tree as the creditor with respect to
Cohenʹs mortgage in the foreclosure complaint, the Certificate, and RJI. The
defendants contend that Cohen failed to plausibly allege a violation of § 1692e
for two reasons. First, the defendants argue that the Certificate and RJI
accurately identified Green Tree as the creditor, so the defendants did not make
any false or misleading statements in connection with the collection of a debt. In
the alternative, the defendants contend that even if the identification of Green
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Tree as the creditor is false or misleading, it is not a material misrepresentation
and therefore not actionable under the FDCPA.
The defendantsʹ first argument requires us to consider whether the
defendantsʹ statement in the foreclosure documents that Green Tree is the
ʺcreditorʺ to whom Cohenʹs debt is owed was false or misleading. The FDCPA
excludes from its definition of creditor ʺany person to the extent that he receives
an assignment or transfer of a debt in default solely for the purpose of facilitating
collection of such debt for another.ʺ 15 U.S.C. § 1692a(4). Here, Green Tree
received the assignment of Cohenʹs loan on June 1, 2013, which was after Cohen
defaulted, in order to facilitate the collection of Cohen’s mortgage payments,
suggesting that Green Tree falls within § 1692a(4)ʹs exclusion and therefore is not
a creditor as defined by the FDCPA.
Green Tree nevertheless qualifies as a ʺcreditorʺ under New York law and
has standing to foreclose on Cohenʹs mortgage. New York law defines ʺcreditorʺ
as a ʺperson having any claim, whether matured or unmatured, liquidated or
unliquidated, absolute, fixed or contingent.ʺ N.Y. Debt. & Cred. Law § 270. A
servicer entitled to receive mortgage payments and to pursue foreclosure—even
on behalf of a third party—is a person having such a claim. See N.Y. U.C.C. § 3‐
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301 (ʺThe holder of an instrument whether or not he is the owner may . . . enforce
payment in his own name.ʺ); Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355,
360–61 (2015) (concluding that mortgage servicer in possession of note at time
foreclosure action commenced ʺwas vested with standing to forecloseʺ).
Accordingly, to determine whether the defendantsʹ identification of Green Tree
as the creditor was false or misleading, we would need to resolve this tension
between the different definitions of ʺcreditorʺ under the FDCPA and New York
law.
We do not resolve this issue here because even if the defendantsʹ creditor
statement was inaccurate, it would not be material and Cohenʹs § 1692e claim
therefore fails. Whether a communication is ʺfalse, deceptive, or misleadingʺ
under § 1692e ʺis determined from the perspective of the objective least
sophisticated consumer.ʺ Easterling v. Collecto, Inc., 692 F.3d 229, 233 (2d Cir.
2012) (internal quotation marks omitted). Under this standard, ʺcollection
notices can be deceptive if they are open to more than one reasonable
interpretation, at least one of which is inaccurate.ʺ Id. (internal quotation marks
omitted). However, we have explained that ʺnot every technically false
representation by a debt collector amounts to a violation of the FDCPA,ʺ Gabriele
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v. Am. Home Mortg. Serv., Inc., 503 F. Appʹx 89, 94 (2d Cir. 2012) (summary order),
and ʺFDCPA protection does not extend to every bizarre or idiosyncratic
interpretation of a collection notice,ʺ Easterling, 692 F.3d at 233–34 (internal
quotation marks omitted).
Several of our sister circuits have held that the least sophisticated
consumer standard encompasses a materiality requirement; that is, statements
must be materially false or misleading to be actionable under the FDCPA. See
Jensen v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015); Elyazidi v. SunTrust
Bank, 780 F.3d 227, 234 (4th Cir. 2015); Donohue v. Quick Collect, Inc., 592 F.3d
1027, 1033–34 (9th Cir. 2010); Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596
(6th Cir. 2009); Hahn v. Triumph Pʹships LLC, 557 F.3d 755, 757–58 (7th Cir. 2009).
These courts have determined that a statement is material ʺif it is capable of
influencing the decision of the least sophisticated [consumer].ʺ Jensen, 791 F.3d at
421; see also Hahn, 557 F.3d at 758 (ʺA statement cannot mislead unless it is
material, so a false but non‐material statement is not actionable.ʺ).
We cited this line of cases with approval in a summary order without
explicitly deciding that § 1692e incorporates a materiality requirement. See
Gabriele, 503 F. Appʹx at 94. We reach that conclusion here, adopting the
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persuasive reasoning of these courts of appeals. As the Seventh Circuit
observed, ʺ[m]ateriality is an ordinary element of any federal claim based on a
false or misleading statement,ʺ and there is no ʺreason why materiality should
not equally be required in an action based on § 1692e.ʺ Hahn, 557 F.3d at 757.
The FDCPA was designed to give consumers reliable information so that they
can make informed decisions about how to address debts, and ʺby definition
immaterial information neither contributes to that objective (if the statement is
correct) nor undermines it (if the statement is incorrect).ʺ Id. at 757–58. The
materiality requirement is thus a corollary to the well‐established proposition
that ʺ[i]f a statement would not mislead the unsophisticated consumer, it does
not violate the [FDCPA]—even if it is false in some technical sense.ʺ Id. at 758
(first brackets in original) (internal quotation marks omitted). In other words, ʺa
false statement is only actionable under the FDCPA if it has the potential to affect
the decision‐making process of the least sophisticated [consumer].ʺ Jensen, 791
F.3d at 421. This materiality requirement furthers the dual purposes of the least
sophisticated consumer standard: the need to protect unsuspecting consumers
from unscrupulous debt collectors and the need to ensure that debt collectors are
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not held liable ʺfor unreasonable misinterpretations of collection notices.ʺ
Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).
Applying this standard to the alleged misrepresentation here—the
defendantsʹ identification of Green Tree as the ʺcreditorʺ—we conclude that it
was immaterial and therefore not actionable under § 1692e. The materiality
inquiry focuses on whether the false statement would ʺfrustrate a consumerʹs
ability to intelligently choose his or her response.ʺ Donohue, 592 F.3d at 1034. As
we have explained, ʺ[o]ur case law demonstrates that communications and
practices that could mislead a putative‐debtor as to the nature and legal status of
the underlying debt, or that could impede a consumerʹs ability to respond to or
dispute collection, violate the FDCPA.ʺ Gabriele, 503 F. Appʹx at 94. By contrast,
ʺmere technical falsehoods that mislead no oneʺ are immaterial and consequently
not actionable under § 1692e. Donohue, 592 F.3d at 1034.
Here, there is no indication that the identification of Green Tree as the
creditor misrepresented the nature or legal status of the debt or undermined
Cohenʹs ability to respond to the debt collection. Although Ditechʹs response to
the qualified written request stated that Fannie Mae owned Cohenʹs mortgage
account, Green Tree was responsible for servicing the account. As the account
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
servicer, Green Tree had the right to collect mortgage payments and to pursue
foreclosure under New York law. Moreover, it is undisputed that the entity to
whom Cohenʹs payments on his debt were owed in the first instance was Green
Tree and that Green Tree was also the primary point of contact for any questions
Cohen may have had about his mortgage. See Appʹx at 110 (instructions to
Cohen in Ditechʹs response to Cohenʹs qualified written request that ʺ[a]ll
correspondence and inquiries concerning the account should be addressed to the
account servicer, Ditechʺ). On the facts reflected in the complaint and attached
documents, the false identification of Green Tree as the creditor would not have
caused even a highly unsophisticated consumer to suffer a disadvantage in
charting a course of action in response to the collection effort. Indeed, stating
accurately that Fannie Mae was the creditor to whom the debt is owed likely
would have caused confusion inasmuch as Cohen might then have been led to
believe—wrongly, of course—that he should make his monthly mortgage
payments to Fannie Mae.
We also think it significant that the challenged statements identifying
Green Tree as the creditor were made in filings in a foreclosure action in state
court. The ʺstate foreclosure process is highly regulated and court controlled,ʺ
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and the ʺstate courtʹs authority to discipline will usually be sufficient to protect
putative‐debtors like [Cohen] from legitimately abusive or harassing litigation
conduct.ʺ Gabriele, 503 F. Appʹx at 96 n.1. Moreover, as we have noted, Green
Tree met the state law definition of ʺcreditor.ʺ The identification of Green Tree as
the creditor in the foreclosure filings was therefore accurate within the context of
New York foreclosure law. Under these circumstances, we think that the
identification of Green Tree as the ʺcreditorʺ should be viewed as false only
insofar as it results from the different definitions of ʺcreditorʺ in the FDCPA and
New York law.
Accordingly, although it may have technically been legally inaccurate to
say that Green Tree was the ʺcreditorʺ of Cohenʹs mortgage, considering the
definition of the term in § 1692a(4), this statement was not false or misleading in
any material way. The defendantsʹ identification of Green Tree as the creditor
was not deceptive as to the nature or legal status of Cohenʹs debt, nor would it
have prevented the least sophisticated consumer from responding to or
disputing the action.
We reach this conclusion based on the specific facts and circumstances of
this case, i.e. a mortgage servicer that qualifies as a creditor under state law and
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that acts on behalf of a mortgage owner. We do not suggest that
misrepresentations concerning the identity of the creditor are categorically
immaterial. The identity of the creditor in debt collection communications can be
a ʺserious matter.ʺ Bourff v. Rubin Lublin, LLC, 674 F.3d 1238, 1241 (11th Cir.
2012). The ʺentity to which a debtor owes money potentially affects the debtor in
the most basic ways, such as what the debtor should write after ʹpay to the order
ofʹ on the payment check to ensure that the debt is satisfied.ʺ Eun Joo Lee v.
Forster & Garbus LLP, 926 F. Supp. 2d 482, 488 (E.D.N.Y. 2013). A
misrepresentation concerning the creditorʹs identity in debt collection notices can
cause a debtor ʺconfusion and delay in trying to contact the proper party
concerning payment on her loan and resolution of the problem.ʺ Wallace v. Wash.
Mut. Bank, F.A., 683 F.3d 323, 327 (6th Cir. 2012); see also Tourgeman v. Collins Fin.
Servs., Inc., 755 F.3d 1109, 1121–22 (9th Cir. 2014) (similar). Here, however, the
facts and circumstances of the foreclosure proceeding and the foreclosure filings
at issue in this lawsuit admit no plausible claim that the challenged
misrepresentation of Green Tree rather than Fannie Mae as the creditor
undermined Cohenʹs—or any other similarly situated mortgagorʹs—ability to
respond to the debt.
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
V. Failure to State a Claim Under 15 U.S.C. § 1692g
We also affirm the district courtʹs dismissal of Cohenʹs § 1692g claim for
failure to state a claim upon which relief can be granted. Cohen claims that the
defendants violated § 1692g(a)(2), which requires a debt collector, in its initial
communication with the debtor, to identify the creditor to whom the debt is
owed. Cohen contends that the Certificate and RJI9 were initial communications
as defined by § 1692g(a) and that because the defendants failed to identify the
correct creditor in these documents, they are liable for damages under the
FDCPA. The defendants counter that Cohen failed to state a § 1692g claim
because the Certificate and RJI are exempt from the FDCPAʹs definition of initial
communications. The defendants rely on § 1692g(d), which provides that ʺ[a]
communication in the form of a formal pleading in a civil action shall not be
treated as an initial communication for purposes of subsection (a).ʺ This ʺbroad
exclusionʺ applies not only to ʺthe formal documents that make up a standard
pleading,ʺ but also to ʺany communication forming any partʺ thereof, including
Cohenʹs complaint alleges that the foreclosure complaint itself is a ʺcommunication[]ʺ
9
as defined by the FDCPA, Appʹx at 11, but he does not raise this argument on appeal so
we consider it abandoned, see LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).
In any event, the foreclosure complaint falls squarely within § 1692g(d)ʹs exclusion for
ʺformal pleadings.ʺ See Carlin v. Davidson Fink LLP, 852 F.3d 207, 213 (2d Cir. 2017).
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
ʺexhibits attached to a complaint.ʺ Carlin v. Davidson Fink LLP, 852 F.3d 207, 213
(2d Cir. 2017).
We conclude that the Certificate falls within § 1692g(d)ʹs pleading
exclusion, and is therefore not an initial communication, because the defendants
were legally obligated to file this document with the foreclosure complaint. See
N.Y. C.P.L.R. § 3012‐b(a) (ʺIn any residential foreclosure action involving a home
loan . . . the complaint shall be accompanied by a certificate . . . certifying that the
attorney has reviewed the facts of the case and that . . . the plaintiff is currently
the creditor entitled to enforce rights under such documents.ʺ). In Carlin v.
Davidson Fink LLP, 852 F.3d 207, 213 (2d Cir. 2017), we held that documents
attached to a foreclosure complaint—even a superfluous attachment—are
covered by § 1692g(d)ʹs pleading exclusion. Therefore, under Carlin, legally
required filings accompanying a complaint are also exempt. The fact that the
Certificate is not denominated a ʺpleadingʺ under the Federal Rules of Civil
Procedure or the New York Civil Practice Law and Rules warrants no different
conclusion. As Carlin instructs, Congress adopted a ʺbroad exclusion that, on its
face, applies to any communication forming any part of a pleading.ʺ Id. (emphasis
added).
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We also conclude that the RJI is not an initial communication as defined by
the FDCPA. The RJI is dated fifteen days later than the foreclosure complaint,
summons, and Certificate and it was not filed and served with the foreclosure
complaint, summons, and Certificate. New York law nevertheless requires a
foreclosure plaintiff to file the RJI at the time that proof of service of the
summons and foreclosure complaint is filed. See 22 N.Y. Comp. Codes R. &
Regs. tit. 22, § 202.12a. New York law thus requires the RJI as part of the initial
assertion of a complaint seeking a foreclosure order, so the RJI can be viewed as
ʺforming [a] part of a pleading.ʺ Carlin, 852 F.3d at 213. We conclude that
Carlinʹs reasoning applies not only to documents attached to an initial pleading
but also to those documents that state law mandates a plaintiff to file shortly
thereafter, and in relation to that pleading, to complete the initiation of the case.
Cohenʹs § 1692g claim therefore fails because the documents Cohen has
identified as defective initial communications—the Certificate and RJI—are not
initial communications as defined by the FDCPA.
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Cohen v. Rosicki, Rosicki & Assocs., P.C.
CONCLUSION
We have considered the partiesʹ remaining arguments on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the judgment
of the district court.
30