Pilalas v. The Cadle Co

United States Court of Appeals
For the First Circuit

No. 11-2274

MARILYNN PILALAS,

Plaintiff, Appellant,

v.

THE CADLE COMPANY and CADLEROCK JV II, LP,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Boudin, Hawkins* and Dyk,

Circuit Judges.

Jan R. Schlichtmann for appellant.
David H. Rich with whom Michael Thad Allen, Todd & Weld, LLP,
Mark H. Bluver and Law Office of Mark H. Gluver LLC were on brief
for appellees.

September 12, 2012

*
Of the Ninth Circuit, sitting by designation.
 BOUDIN, Circuit Judge. Marilynn Pilalas, a resident of

Pembroke, Massachusetts, challenges the district court's grant of

summary judgment dismissing claims she brought against the Cadle

Company ("Cadle Company") and its corporate sibling CadleRock Joint

Venture II, L.P. ("CadleRock") for unlawful debt collection under

Massachusetts law; collectively, we refer to them both as "Cadle"

where the distinction does not matter. The facts of this case are

not seriously at issue and may be summarized briefly.

Some time before 1998, Marilynn Pilalas' husband,

Nicholas Pilalas, opened a credit card account with Bank of New

York. The account eventually became delinquent and was ultimately

purchased by the Cadle Company, which assigned it to a closely

related entity, CadleRock. Cadle began telephoning Nicholas

Pilalas to demand that he pay what was due. Despite occasional

partial payments, he died on December 10, 2002, leaving an unpaid

balance of somewhat more than $5,000.

Cadle took the position that Marilynn Pilalas was

responsible for the balance, although (according to Marilynn

Pilalas) Cadle refused to explain why.1 She paid installments but

only sporadically for several years; eventually, in May 2005,

CadleRock sued her in Massachusetts state court for "the principal

1
CadleRock's state-court complaint can be read as saying that
Marilynn Pilalas was a co-signatory to the credit card agreement;
it says that "Pilalas"--referring to Marilynn--"entered into a
credit agreement." Whatever the explanation, neither side offers
any illumination and it is not an issue on this appeal.

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balance of $5,534.28 and accrued interest due through March 7, 2005

of $3,136.93," plus costs and attorney's fees.

After discovery began, CadleRock offered to settle based

on an extended payment plan under which Pilalas would pay $4,400.00

in consecutive monthly installments of $100--just over 50 percent

of what the company claimed she owed including accrued interest; in

addition to the reduced payments, CadleRock sought a release that

barred all actions against CadleRock and its affiliated companies

for any claims "remotely attributable or related to" the debt.

Specifically, the release provided that Pilalas, as the obligor,

agree(s) to execute this Release in favor of
[Bank of New York Delaware], CadleRock Joint
Venture II, L.P. and its affiliates ("Released
Parties"), as third-party beneficiaries.
Obligor(s), his/her/their, heirs and assigns,
for itself, its successors and assigns (as the
appropriate case may be), hereby releases,
acquits and forever discharges the Released
Parties, their agents, servants and employees,
and all persons and entities in privity with
them or any of them, from any and all claims
or causes of action of any kind whatsoever, at
common law, statutory or otherwise, which
Obligor(s) and those on whose behalf
Obligor(s) sign(s) has, have or might have,
whether known or unknown, now existing or
arising hereafter, directly, indirectly, or
remotely attributable or related to the above
described Note(s) and/or Judgment(s), this
Release being intended and understood to
release all present and future claims of any
kind which Obligor(s) and those on whose
behalf Obligor(s) sign(s) might have against
those hereby released, arising from or growing
out of any act or omission occurring prior to
the date of this Release.

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 Acting without counsel, Marilynn Pilalas signed the

release on August 9, 2005, and a week later she and CadleRock's

attorney signed a stipulation of dismissal of the pending state

court suit. Over the next two and a half years, Marilynn Pilalas

continued making regular payments. She missed a few payments, but

largely performed as agreed and did not hear from any of the Cadle

entities.

Then, in April 2008, Marilynn Pilalas lost her job. She

failed to make a payment that month, and in July, she stopped

sending payments entirely. At that point, she had paid 31 of the

44 agreed-upon installments. Again, Marilynn Pilalas heard nothing

from the Cadle entities despite her outstanding obligation of

$1,300 under the settlement. Indeed, the Cadle entities have not

contacted Marilynn Pilalas at all following their August 2005

settlement.

Sixteen months after sending her last payment, on

November 16, 2009, Marilynn Pilalas filed a putative class action

suit in Massachusetts Superior Court, naming Cadle, CadleRock,

their common principal Daniel Cadle, and a host of related entities

as defendants. She advanced a series of charges under state law

and sought restitution, damages of various kinds including treble

damages, declaratory and injunctive relief, and costs and

attorneys' fees.

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 The defendants removed the case to federal court.

Marilynn Pilalas' effort to have the matter remanded to state court

failed and the defendants were whittled down to the Cadle Company

and CadleRock, but the details do not matter as neither is an issue

on appeal. The two defendants moved for summary judgment which,

accepting the recommendation of the magistrate judge, the district

court eventually granted. Marilynn Pilalas now appeals to this

court.

We review de novo the issues of law on which this case

turns. Vélez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441,

446 (1st Cir. 2009). Those issues arise under provisions of

Massachusetts law that govern both consumer fraud, Mass. Gen. Laws

ch. 93A, § 2 (2010), and debt collection, id. ch. 93, §§ 24-24A, as

well as a closely related provision establishing civil remedies for

consumer fraud, id. ch. 93A, § 9, specifically including unlawful

debt collection, id. ch 93, § 28. Also pertinent are statutes of

limitation that govern potential claims. Id. ch. 260, §§ 2A, 5A.

A central aspect of the debt collection provisions makes unlawful

"debt collection" (as defined in the statute) except when carried

out by certain exempted parties. Id. ch. 93, §§ 24-24A.

Marilynn Pilalas' position throughout has been that Cadle

engaged in unlawful debt collection and that the release itself was

obtained by fraud and illegal debt collection. However, the

limitations period under state law is three years for fraud claims,

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Mass. Gen. Laws ch. 260, § 2A, and four years for chapter 93A

claims, id., § 5A. Marilynn Pilalas filed her complaint on

November 16, 2009, so the four-year statute reaches back only to

November 2005.

It is quite possible--and we will assume arguendo in

Marilynn Pilalas' favor--that Cadle engaged in unlawful debt

collection by pursuing Marilynn Pilalas prior to its collection

lawsuit and the release that followed. Broadly speaking, the

statute, described in more detail below, forbids unlicensed debt

collection by anyone whose "principal" business is debt collection

and who seeks to collect by use of telephone or mails; it arguably

applies as well to anyone seeking to collect a debt in default

purchased from the original creditor. Mass. Div. of Banks,

Industry Letter Concerning the Massachusetts Debt Collection

Statutes, and its Applicability to Debt Buyers, So Called (June 16,

2006).

At the time it sought to collect from Marilynn Pilalas,

Cadle (it appears) was neither licensed nor within a statutory

exception. It had been sent a cease-and-desist letter for

unlicensed debt collection in 2003 and later denied a license. The

Cadle Co. v. Mass. Div. of Banks, SUCV2004-0101C, 2006 WL 4119647,

at *2 (Mass. Super. Ct. Nov. 17, 2006), aff'd, 888 N.E.2d 385

(Mass. App. Ct. 2008) (table). Ultimately, the attorney general

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secured a consent judgment against it. Commonwealth v. The Cadle

Co., No. 07-05359-D (Mass. Super. Ct. Nov. 17, 2009).

Nevertheless, Marilynn Pilalas chose to settle the

lawsuit, agreeing to pay about half of the claimed debt and giving

a release to the defendants from all claims she might have against

them, present and future. The release might be unenforceable under

state law as to claims arising after the release, at least for

regulatory and fraud claims. See Feeney v. Dell Inc., 908 N.E.2d

753, 761-66 (Mass. 2009); Bates v. Southgate, 31 N.E.2d 551, 558

(Mass. 1941). However, the release by its terms does extinguish

pre-release claims by Marilynn Pilalas, including civil claims for

unlawful debt collection, unless it is somehow invalid.

Had Cadle secured the release through fraudulent

misrepresentation, it would be voidable, Shaw's Supermarkets, Inc.

v. Delgiacco, 575 N.E.2d 1115, 1117 (Mass. 1991), but the district

court found no basis for Marilynn Pilalas' allegations that the

release was secured by fraud. Similarly, some forms of coercion

conceivably might render the release voidable, see Cabot Corp. v.

AVX Corp., 863 N.E.2d 503, 511-12 (Mass. 2007), but Marilynn

Pilalas does not attempt to make any detailed showing along these

lines.

In all events, "one seeking to repudiate an agreement

allegedly entered into under duress must promptly complain of the

circumstances under which the document was signed." In re Bos.

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Shipyard Corp., 886 F.2d 451, 455 (1st Cir. 1989). Here, Marilynn

Pilalas entered into the release in 2005, performed under it for

several years, was not again approached by the company even when

she ceased to perform, and waited over four years before bringing

the present suit, thereby attacking the release. Courts have

rejected such claims as untimely even with much shorter delays.

E.g., id. (eighteen month delay deemed untimely).

Marilynn Pilalas settled Cadle's suit apparently without

advice from counsel, and it is a defect of our legal system that,

absent attorneys' fee provisions (rarely of much help to those who

are sued), only the well-to-do, or the very poor who may get legal

aid, can afford complex civil litigation. But Massachusetts is not

claimed to have any rule against a pro se litigant litigating or

settling a consumer claim or lawsuit, even though such litigants

rarely understand fully or even adequately their legal rights. And

the inability to settle would in some cases disadvantage pro se

litigants.

Marilynn Pilalas says that she did not know that Cadle's

original debt collection efforts were unlawful; but the release on

its face embraced all claims "whether known or unknown, now

existing or arising hereafter, directly, indirectly, or remotely

attributable or related to the above described Note(s) and/or

Judgment(s) . . . ." Such "broad wording" releases all claims,

"even if they were not specifically in the parties' minds at the

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time the release was executed." Eck v. Godbout, 831 N.E.2d 296,

300-01 (Mass. 2005); see also Naukeag Inn, Inc. v. Rideout, 220

N.E.2d 916, 918 (Mass. 1966).2

This brings us to the question whether, given the release

of past claims, anything that occurred in or after November 2005,

restores or gives rise to a claim by Marilynn Pilalas.

Massachusetts defines a debt collector as

any person who uses an instrumentality of
interstate commerce or the mails in any
business the principal purpose of which is the
collection of a debt, or who regularly
collects or attempts to collect, directly or
indirectly, a debt owed or due or asserted to
be owed or due another.

Mass. Gen. Laws ch. 93, § 24. Those not subject to an exception

(e.g., attorneys collecting on behalf of clients, id., § 24(g)) may

not "directly or indirectly engage in the commonwealth in the

business of a debt collector" unless licensed, id. § 24A(a).

The aim of the statute is to bring such non-exempt debt

collectors within a regulatory regime, primarily under the

supervision of the Massachusetts banking regulators, Mass. Gen.

Laws ch. 93, § 24A(d), with further enforcement by the

Commonwealth's attorney general, id., §§ 28, 49; id. ch. 93A,

§ 2(c). On a more practical plane, the statute aims to curb the

2
There is no exemption from ordinary rules and practices in
Massachusetts for pro se litigants, whether in criminal or civil
cases. Commonwealth v. Jackson, 647 N.E.2d 401, 405 (Mass. 1995);
Leblanc v. Friedman, 781 N.E.2d 1283, 1288-89 (Mass. 2003).

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incessant telephone calls, mailings, and even home visits

associated with aggressive debt collection. Cf. Baldassari v. Pub.

Fin. Trust, 337 N.E.2d 701, 703-04 (Mass. 1975) (superseded by

statute, St. 1979, c. 406, § 1, as recognized in Leardi v. Brown,

474 N.E.2d 1094, 1100-01 (Mass. 1985)).

Standing alone, passively receiving a payment is

seemingly not within the Massachusetts statute. Although the term

"collect" could be extended from demanding payment to merely

receiving it, see, e.g., Collins English Dictionary (10th ed.

2009), passive receipt does not involve the vices of harassment

that the statute aims to suppress and, more important, the

Massachusetts banking authorities who enforce the statute have read

it more narrowly, explaining that

a debt buyer who purchases debt in default but
is not directly engaged in the collection of
these purchased debts is not required to
obtain a debt collector license provided that
all collection activity performed on behalf of
such debt buyer is done by a properly licensed
debt collector in the Commonwealth or an
attorney-at-law licensed to practice law in
the Commonwealth.

Mass. Div. of Banks, Op. Letter 06-060 (Oct. 13, 2006) (second

emphasis added).

However, passive receipt might be deemed tainted if

prompted by prior unlawful collection efforts by the creditor, and

this appears to be the position of the Massachusetts attorney

general: the later consent judgment against Cadle prohibited

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unlicensed debt collection, defined primarily as "request[ing]

payment on a debt," while allowing "accepting payment on a debt,

provided that such payment has not been preceded by unlicensed debt

collection." Commonwealth v. The Cadle Co., No. 07-05359-D (Mass.

Super. Ct. Nov. 17, 2009).

The present suit is not one by the attorney general to

enforce the consent decree; nor is Marilynn Pilalas faced merely

with a statute of limitations objection that she might overcome

(some might think oddly) by herself making payments to Cadle under

the settlement as late as 2008, the year before she began the

present suit. For in both cases the lynchpin of the argument

against Cadle would be the wrongfulness of Cadle's active debt

collection efforts prior to the 2005 lawsuit and the

impermissibility of reaping the fruits afterwards.

However, this case is different because Marilynn Pilalas

entered into a settlement and furnished a release. The settlement

created a new obligation to pay $4,400; the release surrendered,

from the standpoint of any further civil recovery by Marilynn

Pilalas, any damages from any wrongful active debt collection

activity by Cadle that preceded the release. And the settlement

and release are no longer vulnerable to attack by her--or at least

Marilynn Pilalas has offered no convincing conventional basis

(fraud, duress) and no ground for her delay in asserting any basis

she had.

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 Thus, the present lawsuit is simply a back-door attack on

and disregard of both the settlement and the release. Agreeing to

pay a much reduced claim against her and granting a release to

Cadle for any pre-release wrongful debt collection were the price

she chose to pay to forestall Cadle's own larger claim and achieve

the dismissal of its lawsuit against her. It is too late now to

resuscitate claims that ultimately depend on the wrongfulness of

the original debt collection efforts.

Whether any acceptance now of further payments by Cadle

would get it in trouble with the attorney general under either the

consent decree or the statute is not at issue; nor is it certain

how a Massachusetts court would react if Cadle sought to sue to

collect further payments, which it has not sought to do. As for

other members of the uncertified class who may have made no

settlement and granted no release, they must seek a new champion.

Affirmed.

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