dissenting.
I believe the plain language of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692-1692o, requires us to reverse the judgment of the district court. I also think the district court misapplied the standards for deciding motions under Fed. R.Civ.P. 12(b)(6) and 56. Therefore, I must respectfully dissent.
I.
The Dayton Case
In finding no violation of the FDCPA, the majority opinion relies heavily on legislative history and other decisional devices that are properly employed when a legislative enactment is vague, obscure, ambiguous, or inherently contradictory. If I thought for a moment that we were free to decide this ease on the basis of “legislative history,” “Senate Reports,” “the purpose behind the [FDCPA],” what “Congress appears to have intended,” “Federal Trade Commission advisory opinions,” “the policy of the legislation as a whole,” and whether ACB’s collection practices are “less coercive” than litigation, as the majority apparently does, I might be tempted to sign on to the majority opinion. But I do not, and, therefore, I cannot.
There are very few propositions defining the proper scope of judicial review that are more firmly settled than the rule that when the language of a congressional enactment is clear and unambiguous, courts may not “interpret” or “construe” the meaning of the language of the law by resort to “legislative history,” apparent “legislative policy,” or “legislative intent,” but must simply apply what Congress has said, assigning to the words used in the statute their primary and generally accepted meaning. The FDCPA is such a statute. There is nothing ambiguous, unclear, vague, or inherently contradictory about any of the language of the FDCPA. As a matter of fact, the provisions of the statute are so painfully, some might think annoyingly, even nitpickingly, clear, and impose such unambiguous burdens upon even ethical debt collectors, that it is somewhat understandable that the majority opinion would resort to interpretation and construction to soften some of the harsh effects of the statute.
This case chronicles seemingly benign and ethical collection efforts by an apparently reputable company directed at an unappealing and even infuriating deadbeat debtor. Certainly, Congress did not intend to proscribe the legitimate collection of an undisputed debt, but it is our business to determine what Congress said, not what it probably intended. If this statute is harsh, inflexible, hypertechnieal, unforgiving, and unfairly burdensome to debt collectors, and if it sweeps into the ambit of its prohibited practices the acts of the virtuous and the vicious alike, the problem is one for legislative correction, not judicial “interpretation.”
*414The majority opinion acknowledges that the broad and sweeping language of the FDCPA effectively forbids any communications by a collector to a debtor in the aftermath of the debtor’s cease and desist letter, subject to three narrow exceptions. The three exceptions are that the debt collector may:
(1) ... advise the consumer that the debt collector’s further efforts are being terminated;
(2) ... notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
(3) where applicable, ... notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
15 U.S.C. § 1692c(c)(l)-(3).
The majority opinion acknowledges that the June 3 collection letter ACB sent to Lewis does not literally fall within any one of the three exceptions and, as a matter of fact, explicitly states “THIS IS AN ATTEMPT TO COLLECT A DEBT.” But, according to the majority opinion, this plain and unambiguous language “can not be interpreted as a demand for payment” because the statement in the letter that “THIS IS AN ATTEMPT TO COLLECT A DEBT” was included in the letter merely to comply with 15 U.S.C. § 1692e(ll), which has since been amended, and which read in relevant part that “the failure to disclose clearly in all communications ... that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose” is a violation of the FDCPA. But subsection 11 reads:
Except as otherwise provided for communications to acquire location information under section 1692b of this title, the failure to disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.
15 U.S.C. § 1692e(ll) (emphasis added). Therefore, there was no need for ACB to comply with section 11 by declaring that its letter “is an attempt to collect a debt,” unless the letter was indeed another “communication!] made to collect a debt,” rather than one of the three types of notifications excepted from the bar of the statute in section 1692c(c)(l)-(3).
In addition to its puzzling explanation on that point, the majority opinion also mistakenly concludes that ACB’s letter “can be construed as a type of settlement offer” and can be read as a notification to “the consumer!, under section 1692e(c)(2),] that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor.” That “construction is warranted,” the majority opinion concludes, despite that the text of the letter never uses the term “remedy,” explicitly declares that the letter “IS AN ATTEMPT TO COLLECT A DEBT,” and offers “AN OPPORTUNITY TO PAY THIS DEBT” through “ONE OF THE FOLLOWING PAYMENT ARRANGEMENTS.”
The plain language of section 1692c(c)(2) permits a debt collector to notify a consumer of unilateral action the debt collector may take against the consumer, such as filing suit, issuing a prejudgment garnishment, or invoking such other “remedies” as are “ordinarily invoked.” 15 U.S.C. § 1692c(c)(2). A letter declaring that “THIS IS AN ATTEMPT TO COLLECT A DEBT” and offering payment plans for doing so, is plainly and obviously not a letter notifying the debtor that the “creditor may invoke specified remedies.” Id. (emphasis added). If it were, then a debt collector, despite receiving a cease and desist notice from the debtor, would never be barred from contacting a consumer to notify him or her that payment of the debt would “remedy” the problem. Witness Mark Nakon testified that the letter to Lewis is similar to letters used by ACB in situations where notice to cease further communications has not been received. Indeed the letter is nothing more than an attempt to bargain with Lewis regarding his debt, and is exactly what it says it is: “ ... an attempt to collect a debt.” The observations in the majority opinion that “the letter can be construed as a type of settlement offer” and should not be “construed as an abusive collection practice”; that it “may result in reso*415lution of the debt without resorting to litigation”; and “is certainly less coercive and more protective of the interests of the debt- or” than costly and time-consuming litigation, are of course entirely beside the point. The letter is not a mere notification of the invocation of remedies ordinarily invoked; it is a debt collection letter, just as it says it is, and its issuance was a violation of the plain language of section 1692e.
Likewise, I must dissent from the majority’s refusal to recognize a violation of section 1692e in ACB’s use of the alias “M. Hall” in the June 3 letter. Although the use of the alias seems harmless, the plain language of the FDCPA prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. § 1692e(10). The defendants have admitted that there is no such person as “M. Hall.” Thus, the letter, which purports to have been sent by a person named “M. Hall” and which utilizes the pronouns “I,” “me,” and “my” a total of eight times, is a “false and deceptive representation” that it was sent by a person named “M. Hall.” The language of the letter and the use of the name “M. Hall” were designed to induce the debtor to believe that a specific individual named “M. Hall” was handling the debtor’s case, and would assist him in making arrangements for payment of the debt, when ACB knew, that was not true.
Concededly it is difficult to see the harm caused by this particular deception, but the FDCPA unambiguously proscribes deception in any form, not only in circumstances in which a debt collector or this court might think that the end justifies the means. In all events, to suggest, as ACB does, that using a “desk name” is proper because it has always been done that way, or that no harm has shown to have resulted in this instance, does not excuse compliance with the plain language of the statute; nor does it justify this court in applying basketball’s “equitable” maxim of “no harm no foul.”
II.
The Cincinnati Case
The district court held that Lewis’s allegation in the Cincinnati suit, that in filing the state-court collection case in Columbus, Amex violated Lewis’s rights under the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691-1691f, does not state an actionable claim under Fed.R.Civ.P. 12(b)(6). Lewis alleged that the collection suit was filed in retaliation for his exercising his rights under the FDCPA. The majority opinion holds that the district court correctly dismissed Lewis’s ECOA claim because “he is unable to show that he suffered an adverse action because the ECOA does not cover ‘[a]ny action ... relating to an account taken in connection with ... default[ ] or delinquency.’ ” (Citing 12 C.F.R. § 202.2(c)(2)(ii).) I disagree.
It is unnecessary to review here the well-settled jurisprudence of this circuit describing the heavy burden cast upon a party who seeks dismissal of a claimant’s lawsuit on the basis of Rule 12(b)(6). It suffices to say that ACB’s obligation here was to show that Lewis could prove no set of facts in support of his retaliation claims. Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 228 (6th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). The burden is onerous, and in my judgment ACB has not carried it.
The ECOA makes it unlawful for any creditor to discriminate against a debtor who has exercised any right under the Consumer Credit Protection Act. See 15 U.S.C. § 1691-1691f; 12 C.F.R. Pt. 202. The majority opinion correctly observes that a claim of this sort is analyzed under the burden allocation framework established for Title VII retaliation in employment claims. Consequently, to survive a 12(b)(6) dismissal motion Lewis was required to plead that he (1) engaged in a statutorily protected activity; (2) suffered an adverse credit action; and that (3) there is a causal connection between 1 and 2. See Johnson v. United States Dep’t of Health and Human Servs., 30 F.3d 45, 47 (6th Cir.1994). My colleagues think Lewis is “unable to make such a showing” primarily because they think he will be unable to prove that he suffered an adverse action since “the ECOA does not cover ‘[a]ny action ... relating to an *416account taken in connection with - default ] or delinquency.’” My brothers believe that Lewis has pleaded nothing more than a creditor taking a lawful “action to recover thousands of dollars in undisputed debt that the consumer refuses to honor.”
I respectfully disagree that the ECOA does not proscribe collection suits against defaulting debtors if such suits are filed for retaliatory purposes.
In the first place, it is clear that the ECOA’s definition of an “adverse action” does not determine what constitutes discrimination for purposes of section 1691(a), but rather determines what actions require notice compliance under section 1691(d). Section 1691(a)(3) plainly makes unlawful a collection suit filed in retaliation for an FDCPA enforcement action. Whether Lewis could succeed in persuading a fact finder that the Columbus suit was filed for retaliatory purposes is another matter. It is possible, for example, that Lewis could prove that Amex is usually more patient with debtors and that Lewis was only subjected to the Columbus collection suit because he filed the Dayton suit. Lewis’s claim would be. very similar, for example, to an employment discrimination suit alleging retaliation for the filing of an EEOC charge where the complaining employee has a poor work history.
The district court reasoned that Lewis had not pleaded the existence of similarly situated debtors who had not been sued by Amex. But it is not necessary in order to plead a retaliation claim that Lewis plead even more facts than are necessary to establish a prima facie ease of unlawful retaliation.
The question is not, as the majority apparently thinks it is, whether ACB has the right to sue to collect on a debt; clearly it has. The question is whether Lewis can prove that the suit to collect on the debt was filed in retaliation for exercising his protected right. It may well be that Lewis could not prove the causal connection necessary to prevail on a retaliation charge, yet under Rule 12(b)(6), the inquiry concerns whether Lewis could establish his ease under any set of facts. To me, it is clear that it is possible that he could do so.
There are other conclusions in the majority opinion with which I disagree, but those I have discussed are the most serious, and no useful purpose will be served by elucidating the rest.
I would reverse the judgment of the district court and allow the case to be decided by the trier of fact on the evidence.