PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Case No. 17-2244
_____________
ROBERT A. SCHULTZ, JR.;
DONNA SCHULTZ, on behalf of themselves and
those similarly situated,
Appellants
v.
MIDLAND CREDIT MANAGEMENT, INC.;
JOHN DOES 1-10
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-16-cv-04415)
District Judge: Hon. Jose L. Linares
______________
Argued January 23, 2018
______________
Before: HARDIMAN, VANASKIE, and SHWARTZ,
Circuit Judges
(Opinion Filed: September 24, 2018)
Cary L. Flitter, Esq.
Andrew M. Milz, Esq. [ARGUED]
Flitter Milz
450 North Narberth Avenue
Suite 101
Narberth, PA 19072
Yongmoon Kim, Esq.
Kim Law Firm
411 Hackensack Avenue
Suite 701
Hackensack, NJ 07601
Counsel for Plaintiffs-Appellants Robert A. Schultz, Jr.
and Donna Schultz
Han Sheng Beh, Esq.
Ellen B. Silverman, Esq.
Hinshaw & Culbertson
800 Third Avenue
13th Floor
New York, NY 10022
Joel D. Bertocchi, Esq.
David M. Schultz, Esq. [ARGUED]
Hinshaw & Culbertson
151 North Franklin Street
Suite 2500
Chicago, IL 60606
Counsel for Defendant-Appellee Midland Credit
Management, Inc.
2
___________
OPINION OF THE COURT
___________
VANASKIE, Circuit Judge.
The question before us in this matter is whether a
statement in a debt collection letter to the effect that
forgiveness of the debt may be reported to the Internal Revenue
Service constitutes a violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq. The
District Court concluded that the statement found in dunning
letters sent by Appellee Midland Credit Management Inc.,
(“Midland”) to Appellants Robert A. Schultz, Jr., and his wife,
Donna (the “Schultzes”) could not constitute a violation of the
FDCPA, and dismissed their putative class action complaint.
We disagree, and hold that the statement in question may
violate the FDCPA. Accordingly we will reverse the dismissal
of this action and remand for further proceedings.
I.
On four dates in 2015—July 21, August 24, September
2, and October 23—Midland sent letters to Robert Schultz, Jr.,
attempting to collect three separate outstanding debts that had
been outsourced to Midland for collection after Robert had
defaulted on them. On August 24 and October 23, 2015,
Midland sent Donna Schultz separate letters likewise
attempting to collect a separate outstanding debt from her.
None of the Schultzes debts exceeded $600. Each letter
offered to settle the amount of indebtedness for less than the
3
full amount owing. 1 Four of the letters noted that “[i]f you pay
your full balance we will report your account as Paid in Full.
If you pay less than your full balance, we will report your
account as Paid in Full for less than the full balance.” (App.
24, 30, 32, 36). All of the aforementioned letters contained the
following language: “We are not obligated to renew this offer.
We will report forgiveness of debt as required by IRS
regulations. Reporting is not required every time a debt is
canceled or settled, and might not be required in your case.”
(App. 17). Since the Department of the Treasury only requires
an entity or organization to report a discharge of indebtedness
of $600 or more to the IRS, and because each of the debts
linked to the Schultzes was less than $600, the Schultzes
claimed that the inclusion of the foregoing language was
“false, deceptive and misleading” in violation of the FDCPA,
(App. 18), which broadly prohibits the use of any false,
deceptive, or misleading representation in connection with the
collection of any debt. See 15 U.S.C. § 1692e.
On July 20, 2016, the Schultzes filed a putative class
action complaint on behalf of themselves and others similarly
situated asserting violations of the FDCPA. Midland moved
pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss on the ground
that the Schultzes failed to plead a plausible violation of the
FDCPA. The District Court granted Midland’s motion on May
1
All but one of the letters offered a 10% discount on
the indebtedness if prompt payment was made. For example,
the July 21, 2015 letter to Robert offered to settle the amount
then due—$389.59—for $350.64 if that amount was paid by
August 20, 2015. (App. at 24). The October 23, 2017 letter
to Donna offered a 40% discount on the amount then due,
$479.83. (Id. at 36).
4
8, 2017, concluding that the Schultzes indeed failed to
plausibly allege a violation of the FDCPA because the
language set forth in the dunning letters was not “deceptive” or
“otherwise violative of the FDCPA.” (App. 8). In the District
Court’s view, the language:
[did] not threaten the reader of the
letter with a legal action that
cannot be taken, nor [did] the letter
include any false or deceptive
statements designed to enhance its
ability to collect the outstanding
debt. Rather, Defendant’s letter,
when read in its entirety by the
least sophisticated consumer,
[could] only have one
interpretation. That interpretation
is simply that, in certain
circumstances, debt settlement
and/or discharge] may be
reportable to the IRS, not all
settlements and/or discharges are
reportable, and that the subject
statement may not be applicable to
the reader.
(App. 8-9). 2 The Schultzes timely appealed the District
Court’s ruling to our Court.
2
Midland had also filed a Motion to Compel
Arbitration in this matter because it maintained that the
claims raised in Mr. Schultz’s original complaint, concerning
the Synchrony Bank/Lowe’s indebtedness of $389.59, were
5
II.
The District Court had subject matter jurisdiction under
28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We afford plenary review to a district court’s order
granting a motion to dismiss for failure to state a claim. Black
v. Montgomery Cty., 835 F.3d 358, 364 (3d Cir. 2016).
III.
Congress enacted the FDCPA in 1977 after noting the
“abundant evidence of the use of abusive, deceptive, and unfair
debt collection practices by many debt collectors.” 15 U.S.C.
§ 1692(a); see also Brown v. Card Serv. Ctr., 464 F.3d 450,
453 (3d Cir. 2006). The Act’s purpose is twofold: It seeks not
only to eliminate abusive practices by debt collectors, but also
“to insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively
disadvantaged.” Brown, 464 F.3d at 453 (quoting 15 U.S.C.
§ 1692(e)).
The portion of the FDCPA relevant here, § 1692e, states
that “[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
subject to an Arbitration Clause in the pertinent credit card
agreement. (App. 63). The District Court, after granting
Midland’s dismissal motion, declined to address Defendant’s
Motion to Compel Arbitration, owing to mootness. (Id. at 9).
Because we are remanding, this issue should be reviewed in
the first instance by the District Court.
6
collection of any debt.” The section goes on to describe the
following as violations of the FDCPA:
The threat to take any action that
cannot legally be taken or that is
not intended to be taken.
...
The use of any false representation
or deceptive means to collect or
attempt to collect any debt or to
obtain information concerning a
consumer.
Id. §§ 1692e(5), (10). Whether a collection letter is “false,
deceptive, or misleading” under § 1692e is determined from
the perspective of the “least sophisticated debtor.” Brown, 464
F.3d at 453. In Brown, we articulated the standard for
deception under § 1692e as follows:
The least sophisticated debtor
standard requires more than
simply examining whether
particular language would deceive
or mislead a reasonable debtor
because a communication that
would not deceive or mislead a
reasonable debtor might still
deceive or mislead the least
sophisticated debtor. This lower
standard comports with a basic
purpose of the FDCPA: as
previously stated, to protect all
7
consumers, the gullible as well as
the shrewd, the trusting as well as
the suspicious, from abusive debt
collection practices.
Id. at 454 (citations and internal quotation marks omitted). The
plaintiff’s burden is low under this objective standard. She
need not prove that she was confused or misled, but only that
the least sophisticated consumer would be. Jensen v. Pressler
& Pressler, 791 F.3d 413, 419 (3d Cir. 2015).
On appeal, the Schultzes argue that by including the
language, “[w]e will report forgiveness of debt as required by
IRS regulations,” Midland presented a false or misleading view
of the law—one designed to scare or intimidate the Schultzes
into paying the outstanding debts listed on the debt collection
letters even though Midland knew that any discharge of the
Schultzes’ debt would not result in a report to the IRS. We
agree.
Here, the reporting requirement under the Internal
Revenue Code is wholly inapplicable to the Schultzes’ debts
because none of them totaled $600 or more, and IRS
regulations clearly state that only discharges of debt of $600 or
more “must” be included on a Form 1099-C and filed with the
IRS. See 26 C.F.R. § 1.6050P-1(a). 3 By including the
reporting language on collection letters addressing debts of less
than $600, we believe that the least sophisticated debtor might
3
Significantly, “multiple discharges of indebtedness of
less than $600 are not required to be aggregated.” 26 C.F.R.
§1.6050P-1(a)(2).
8
be persuaded into thinking that the discharge of any portion of
their debt, regardless of amount discharged, may be reportable.
Midland argues that, in order to conclude that a
consumer would be misled by this statement, one would have
to read the first sentence in isolation while paying no attention
to the second qualifying statement—i.e., that “[r]eporting is not
required every time a debt is canceled or settled, and might not
be required in your case.” (App. 17). However, even with this
qualifying statement, the least sophisticated debtor could be
left with the impression that reporting could occur. Indeed, this
is precisely what happened in the Schultzes’ case—there was
no possibility of IRS reporting in light of the fact that the debt
was less than $600, but use of the conditional “might”
suggested that reporting was a possibility.
Midland argues that if we were to adopt the Schultzes’
interpretation of the language contained in the letters, we
would essentially give credence to a “bizarre or idiosyncratic”
interpretation of the letters, which does not preserve “a
quotient of reasonableness and . . . a basic level of
understanding and willingness to read with care.” Wilson v.
Quadramed Corp., 225 F.3d 350, 354–55 (3d Cir. 2000). For
Midland, the use of the conditional “might” should signal to
the least sophisticated debtor that only under certain
circumstances will reporting occur. The problem with this
argument, however, is that, for the Schultzes, under no set of
circumstances will reporting ever occur. As we held in Brown,
even if the language in a letter is true, it can still be deceptive
where “it can be reasonably read to have two or more different
meanings, one of which is inaccurate.” 464 F.3d at 455
(citation omitted). And the facts here are not so different than
those in Brown, such that our holding here should be different.
In Brown, a debt collector suggested that if a debtor did not pay
9
her outstanding debt within five days it could result in a lawsuit
against her. Id. at 451-53. While the debt collector had the
authority to bring such a suit, because five days passed and it
failed to do so and rarely had done so in the past, the threat of
legal action was considered deceptive in violation of the
FDCPA. Id. at 455 (stating that “it would be deceptive under
the FDCPA for [the debt collector] to assert that it could take
an action that it had no intention of taking and has never or very
rarely taken before” and that “where the debt collector ‘has
reason to know there are facts that make the action unlikely in
the particular case, a statement that the action was possible
would be misleading’” (citation omitted)).
The FDCPA sweeps broadly—it is not just outright lies
that it condemns. As the Ninth Circuit held in Gonzales v.
Arrow Financial Services, LLC, 660 F.3d 1055, 1063 (9th Cir.
2011), anytime a debt collector includes “language in a debt
collection letter [that] can reasonably be interpreted to imply
that the debt collector will take action it has no intention or
ability to undertake, the debt collector that fails to clarify that
ambiguity does so at its peril.” Similar to Brown, although
even more egregious, Gonzales dealt with a debt collector who
had bought up years of debts owed to health clubs, all of which
were more than seven years old, and thereby pursuant to the
Fair Credit Reporting Act, ineligible for reporting to a credit
reporting agency. Id. at 1059. In its collection notices, the
following statement was made: “[I]f we are reporting the
account, the appropriate credit bureaus will be notified that this
account has been settled.” Id. (emphasis omitted). Because
there was no possible way that all of the debts could be legally
reported, the Ninth Circuit deemed this statement misleading.
Id. at 1063. The Court went on to say that “[w]here the law
places affirmative limits on a debt collector’s actions, the debt
10
collector that ‘goes perilously close to an area of proscribed
conduct takes the risk’ that it will be liable under the FDCPA
for misleading consumers.” Id. at 1063 (citation omitted).
And, of particular note, the Court also stated “[c]onditional
language, particularly in the absence of any language clarifying
or explaining the conditions, does not insulate a debt collector
from liability.” Id.; see also Campuzano-Burgos v. Midland
Credit Mgmt., Inc., 550 F.3d 294, 301 (3d Cir. 2008) (“in
certain contexts a completely accurate statement can be
deceptive or misleading”). 4
4
Several district courts in our Circuit have found
similar collection letter language to be sufficiently deceptive
to survive a motion to dismiss. See, e.g., Disla v. Northstar
Location Servs., LLC, No. 16-cv-4422, 2017 WL 2799691, at
*1, *4 (D.N.J. June 27, 2017) (concluding that the statement
“Barclays Bank Delaware is required to report the amount of
the debt forgiven to the Internal Revenue Service” could be
misleading because the “language does not accurately reflect
26 C.F.R. § 1.6050P-1 because it discusses no exceptions to
the reporting requirement”) (emphasis omitted); Medina v.
Allianceone Receivables Mgmt., Inc., No. 16-4664, 2017 WL
220328, at *2 (E.D. Pa. Jan. 19, 2017) (finding that the
statement “Department Store National Bank will report
forgiveness of debt as required by IRS regulations” to be
deceptive because “[a] reasonable recipient of the letter could
rightly interpret as to mean not when but because” and
thereby understand the IRS reporting requirement to be
mandatory even though exceptions may apply); Good v.
Nationwide Credit, Inc., 55 F. Supp. 3d 742, 744, 748 (E.D.
Pa. 2014) (finding the statement that “GE CAPITAL RETAIL
BANK is required to file a form 1099C with the Internal
11
The Seventh Circuit has held that “a dunning letter is
false and misleading if it ‘impl[ies] that certain outcomes might
befall a delinquent debtor, when legally, those outcomes
cannot come to pass.’” Boucher v. Fin. Sys. of Green Bay, Inc.,
880 F.3d 362, 367 (7th Cir. 2018) (quoting Lox v. CDA Ltd.,
689 F.3d 818, 825 (7th Cir. 2012)). Thus, it is not merely the
inclusion of a lie but also incomplete or inapplicable language
in a collection letter that may form the basis for a potential
FDCPA violation. 5
Finally, we would be remiss if we did not address two
cases that Midland submitted in support of its position after
oral argument: Ceban v. Capital Management Services, L.P.,
No. 17-CV-4554 (ARR) (CLP), 2018 WL 451637, at *1
(E.D.N.Y. Jan. 17, 2018), and Antista v. Financial Recovery
Revenue Service for any cancelled debt of $600 or more” to
be deceptive because exceptions may apply).
5
Midland argues that including tax consequence
language in a letter can be helpful to the consumer, as it gives
the debtor more information to make an informed choice
about what to do with a debt. Yet, as Midland also concedes,
the Second Circuit has already held that “a debt collector
need not warn of possible tax consequences when making a
settlement offer for less than the full amount owed to comply
with FDCPA.” Altman v. J.C. Christensen & Assocs., Inc.,
786 F.3d 191, 192 (2d Cir. 2015). Furthermore, the
suggestion that forgiveness of the debt may be reported to the
IRS could compel the unsophisticated debtor to pay the full
amount of the indebtedness to avoid having to deal with the
potential tax ramifications when debt forgiveness is reported
to the IRS.
12
Services, No. 2:17-cv-3567 (WJM), 2017 WL 259771, at *1
(D.N.J. Jan. 2, 2018). In Ceban, the district court held that the
statement “[t]his settlement may have tax consequences” was
not false, deceptive, or misleading. “[T]he statement simply—
and correctly—put plaintiff on notice that a settlement ‘may’
have tax consequences. Ceban, 2018 WL 451637, at *7. In
Antista, the court held that we must presume that even the least
sophisticated debtor can distinguish between “may” and
“must” when it comes to any statement regarding the IRS
reporting requirement. Antista, 2018 WL 259771, at *3.
Neither case is persuasive. First, Ceban dealt with a
debt that was over $600. Therefore, the district court’s analysis
was written in reference to a completely different set of
circumstances than those applicable to the Schultzes in this
case. Second, even if we accept Antista’s statement that the
least sophisticated debtor can distinguish between “may” and
“must”, the circumstances in our case demonstrate that the
language at issue references an event that would never occur,
distinguishing it from Antista. Here, it is reasonable to assume
that a debtor would be influenced by potential IRS reporting
and that, if that reporting cannot come to pass, it could signal a
potential FDCPA violation regardless of the use of conditional
language.
While we recognize that Midland, like many debt
collection companies, uses form letters when contacting its
debtors, we must reinforce that convenience does not excuse a
potential violation of the FDCPA. We therefore are obligated
to reverse the order of the District Court granting Midland’s
motion to dismiss, as a reasonable juror may find a violation of
the FDCPA in this instance.
13
IV.
Based on the foregoing, we will reverse the May 8,
2017, Order of the District Court as we find that the Schultzes
have pled sufficient factual allegations that state a plausible
claim upon which a court may grant relief under the FDCPA.
We will therefore remand for further proceedings consistent
with this opinion.
14