NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2086
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CYNTHIA A. SIWULEC,
Appellant
v.
J.M. ADJUSTMENT SERVICES, LLC
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-10-cv-04193)
District Judge: Honorable Garrett E. Brown, Jr.
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Argued January 23, 2012
Before: FISHER and GREENAWAY, JR., Circuit Judges, and JONES,* District Judge.
(Filed: March 1, 2012)
Cathleen M. Combs (Argued)
Daniel A. Edelman
Edelman Combs Latturner & Goodwin
120 South LaSalle Street, Suite 1800
Chicago, IL 60603
Lawrence Katz
445 Central Avenue, Suite 201
Cedarhurst, NY 11516
Counsel for Appellant
*
The Honorable John E. Jones, III, District Judge for the United States District
Court for the Middle District of Pennsylvania, sitting by designation.
James W. Gicking (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103
Walter F. Kawalec
Marshall, Dennehey, Warner, Coleman & Goggin
200 Lake Drive East
Woodland Falls Corporate Park, Suite 300
Cherry Hill, NJ 08002
Thomas F. McGuane
McElroy, Deutsch, Mulvaney & Carpenter
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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JONES, District Judge.
On April 27, 2011, Cynthia A. Siwulec (“Appellant” or “Siwulec”) filed a Notice
of Appeal with the Court challenging the District Court of New Jersey‟s order dismissing
her amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons stated below, we shall reverse the order of the District Court and remand for
further proceedings.
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I. Factual Background1
On about May 10, 2010, Siwulec, a resident of Rumson, New Jersey, was visited
at her residence by a representative of J.M. Adjustment Services, LLC (“JMAS”) and
handed an envelope containing a letter from Chase, her lender. The letter sought
information from Siwulec to assist Chase in “resolv[ing]” a home mortgage loan that
Chase alleged was “past due.” Appellant alleged that the information requested by the
letter was to be used to collect her outstanding debt. Siwulec notes that the home
mortgage loan was obtained for personal, family or household purposes to pay for a
residence, and was not a loan secured for business purposes.
After accepting the letter from JMAS‟ field agent, Siwulec noticed that the agent
had dropped additional documents on her lawn. She claimed that the dropped or
discarded documents contained standard instructions and procedures provided by JMAS
to its agents. Siwulec also asserted that at no point during the interaction between herself
and JMAS‟ agent was she provided with any of the disclosures required by the Fair Debt
Collection Practices Act (“FDCPA”). 15 U.S.C. §§ 1692g, 1692e(11) (mandating that
debt collectors disclose original creditor, details of debt, and fact that any information
provided will be used to collect debt). Finally, she highlighted that on its website, JMAS
1
Unless otherwise noted, the following facts are derived from Appellant‟s
amended complaint. Moreover, because we write primarily for the parties, we shall only
provide a brief recitation of the facts below, supplementing our analysis with additional
details as necessary.
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claimed to be in “Full compliance with FDCPA and [Gramm-Leach-Bliley Act]
requirements.”
II. Procedural History
Siwulec filed her original complaint against JMAS on August 14, 2010. JMAS
filed a motion for a more definite statement on November 22, 2010. Siwulec responded
by filing an amended class action complaint alleging a single claim under the FDCPA, 15
U.S.C. § 1692g, on behalf of herself and a class of more than fifty (50) natural persons in
New Jersey or New York. She alleged that JMAS had violated the FDCPA by failing to
make the disclosures it requires of all debt collectors. Subsequently, JMAS filed its
motion to dismiss on January 5, 2011. Following full briefing on the motion, the District
Court issued a memorandum and order on April 1, 2011 granting the motion to dismiss.
It found that the services provided by JMAS qualified it as a messenger for Chase, rather
than a debt collector in its own right. It was therefore not required to provide FDCPA-
required disclosures on its own behalf.
III. Jurisdiction and Standard of Review
The District Court exercised jurisdiction over Siwulec‟s claim under 15 U.S.C.
§ 1692k and 28 U.S.C. § 1331. We have appellate jurisdiction over Siwulec‟s appeal
under 28 U.S.C. § 1291.
This Court exercises plenary review of a district court‟s grant of a motion to
dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). “When
considering an appeal from a dismissal of a complaint pursuant to Rule 12(b)(6), we
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accept as true all well-pled factual allegations.” Santiago v. GMAC Mort. Grp, Inc., 417
F.3d 384, 386 (3d Cir. 2005). Moreover, we “construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 224. In resolving
a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the
allegations in the complaint, as well as “documents that are attached to or submitted with
the complaint, . . . and any matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders, [and] items appearing in
the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.
2006) (marks and citations omitted).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading
requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and
plain statement of the claim showing that the pleader is entitled to relief, “in order to give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss
need not contain detailed factual allegations, it must contain “sufficient factual matter,
accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal,
--- U.S. ---, ---, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570)). To
survive a motion to dismiss, a civil plaintiff must allege facts that “raise a right to relief
above the speculative level . . . .” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir.
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2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility
standard, the complaint must indicate that a defendant‟s liability is more than “a sheer
possibility.” Iqbal, 129 S. Ct. at 1949. “Where a complaint pleads facts that are „merely
consistent with‟ a defendant‟s liability, it „stops short of the line between possibility and
plausibility of entitlement to relief.‟” Id. (quoting Twombly, 550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later formalized in
Iqbal, a district court must first identify all factual allegations that constitute nothing
more than “legal conclusions” or “naked assertions.” Twombly, 550 U.S. at 555, 557.
Such allegations are “not entitled to the assumption of truth” and must be disregarded for
purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S. Ct. at 1950. Next, the
district court must identify “the „nub‟ of the . . . complaint – the well-pleaded,
nonconclusory factual allegation[s].” Id. Taking these allegations as true, the district
judge must then determine whether the complaint states a plausible claim for relief. See
id.
However, “a complaint may not be dismissed merely because it appears unlikely
that the plaintiff can prove those facts or will ultimately prevail on the merits.” Phillips,
515 F.3d at 231 (citing Twombly, 127 S. Ct. at 1964-65, 1969 n.8). Rule 8 “does not
impose a probability requirement at the pleading stage, but instead simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.” Id. at 234.
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IV. Discussion
The primary issue before the Court is whether the District Court erred in
concluding that JMAS does not qualify as a “debt collector” under the FDCPA and
therefore need not make the disclosures required by that act. The FDCPA defines “debt
collector” as:
any person who uses any 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(6). As the lower court recognized, the purpose of the FDCPA is “to
eliminate abusive debt collection practices by debt collectors, to insure 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.” 15 U.S.C. § 1692(e). Although this Court has held that “[a] threshold
requirement for application of the FDCPA is that the prohibited practices are used in an
attempt to collect a „debt,‟” Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1167 (3d
Cir. 1987), the first determination must be whether the entity alleged to be engaged in the
debt collection activity regularly collects debt or whether debt collection is the principal
purpose of its business.
In finding that JMAS was not a debt collector, the District Court erred in two
respects. First, it concentrated on whether JMAS‟s activities had been deceptive,
although the FDCPA‟s definition of debt collector makes no reference to that inquiry. It
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stated that the “debt collection activity in this case pales by comparison to the deceptive
activity” in a Ninth Circuit FDCPA case and that “facts alleged by Plaintiff do not
indicate that [JMAS] used deceptive or harassing means of delivering Chase‟s message.”
(App. 25-26) (citing Romine v. Diversified Collection Servs., Inc., 155 F.3d 1142 (9th
Cir. 1998). This logic relies upon a kind of circular reasoning at odds with the FDCPA
itself. The FDCPA mandates that all debt collectors make disclosures, regardless of
whether they engage in deceptive practices, as a safeguard against deception. Whether or
not a debt collector acts deceptively is clearly not part of what makes it a debt collector
subject to the FDCPA‟s requirements.
The District Court‟s second logical error is perhaps more troubling. In
determining whether JMAS is an indirect debt collector, it focused almost exclusively on
the actions that Siwulec alleged JMAS took with respect to her, although the statutory
definition of debt collector turns on “the principal purpose” of a business and/or the
“regular[ ] collect[ion] of debts.” 15 U.S.C. § 1692a(6).2 The District Court noted that
the JMAS representative is alleged to have taken just two actions with respect to Siwulec:
the delivery of the letter and the dropping of the instructions on her lawn. (App. 24.) It
noted that Siwulec had not alleged that JMAS “sought or obtained [ ] information about
her property or her personal contact information, or that JMAS conveys such information
2
Congress stated that “the requirement that debt collection be done „regularly‟
would exclude a person who collects debt for another in an isolated instance, but would
include those who collect for others in the regular course of business.” S. Rep. No. 95-
382, 95th Cong. 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697-98.
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to lenders.” (Id. at 25.) It then concluded that “the alleged delivery of the Chase letter
would be nothing more than messenger service” and that JMAS therefore did not fall
within the purview of the FDCPA. (Id. at 26-27.)
Siwulec alleges much more with regard to the principal purpose of JMAS‟s
business than its actions with respect to her. Her complaint includes statements from
JMAS‟s website promoting its services to debt collectors and advertising its compliance
with the FDCPA. She also includes the text of the instructions dropped on her lawn,
which make clear that JMAS contracted with Chase to gather information both from
alleged debtors and through its own on-site investigation of their properties. These
allegations are well-pled and we must accept them as true. Santiago, 417 F.3d at 386.
Given the facts as alleged, JMAS is no mere messenger service for debt collectors.
Compare Udis v. Universal Comms. Co., 56 P.3d 1177 (Colo. Ct. App. 2002) (finding
Romine persuasive on interpretation of Colorado‟s analogous FDCPA and holding that a
company that markets its services gathering debtor contact-information to debt collectors
is covered by the Act) with Laubach v. Arrow Serv. Bureau, Inc., 987 F. Supp. 625, 631-
32 (N.D. Ill. 1997) (holding that printing and mailing of collection letters on behalf of
debt collector did not render mailing company debt collector for FDCPA purposes). In
addition to delivering letters, JMAS representatives are instructed to urge alleged debtors,
in person, to call the creditor while they watched. They were to gather contact
information from the debtors directly, to speak with their neighbors, and to conduct a
visual assessment of their properties. These activities bring JMAS out of any messenger
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exception and into the coverage of the FDCPA, which was certainly intended to regulate
in-person debt collection visits.
Consequently, we find that the amended complaint sufficiently alleged that JMAS
was a debt collector for purposes of the FDCPA because the principal purpose of JMAS‟s
business is the collection of debts and JMAS regularly engages in indirect debt collection.
The District Court‟s subsequent dismissal of the case was therefore in error based on a
plain reading of the well-pled facts in the amended complaint.
V. Conclusion
For the reasons stated above, we will reverse the order of the District Court
dismissing Siwulec‟s amended complaint. We shall remand for further proceedings
consistent with this opinion.
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