McKinney v. Cadleway Properties, Inc.

MANION, Circuit Judge,

concurring in part and concurring in the judgment.

I agree with the court’s well-reasoned analysis that the validation-of-debt notice Cadleway sent McKinney does not run afoul of the FDCPA. That McKinney herself does not claim to have been confused by the notice is telling. The notice is straightforward. It contains all the disclosures required by 15 U.S.C. § 1692g. It is in a normal, reasonably' sized font. And it allows a consumer either to confirm the total amount owed or indicate that the total amount owed listed on the notice is incorrect and provide the correct amount, including $0.

Given the adequacy of the notice Cadle-way sent McKinney, we need not resolve the question of whether Cadleway is a debt collector. But since the court discusses the issue, it is necessary to point out that neither the statute nor our prior precedent dictates that we conclude that Cadleway qualifies as a “debt collector” under the FDCPA. As we observed in Schlosser, in a case such as this — where the debt did not originate with the party attempting collection — Cadleway “could logically fall into either category,” creditor or debt collector, because the statutory definition of a creditor includes “any person ... to whom a debt is owed.” Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir.2003) (quoting 15 U.S.C. § 1692a(4)). The court resolves that ambiguity by referencing the exclusionary language in the FDCPA’s definition of a creditor: “[the] term [creditor] does not include any 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.” See supra, at 500-01; 15 U.S.C. § 1692a(4). But that passage does not automatically exclude those, like Cadle-way, who “receive[ ] an assignment or transfer of a debt in default” from being a creditor just because the debt on which they are attempting to collect was in default. Rather, that exclusionary portion of the FDCPA’s definition of a creditor (as well as the mirror-image provision in the FDCPA’s definition of a debt collector) labels an entity “not a creditor” (and therefore a “debt collector”) only if the *506entity is attempting to collect a debt in default “for another.” 15 U.S.C. § 1692a(4) (emphasis added); see id. § 1692a(6)(F)(iii).

In this case, when Cadleway contacted McKinney, it was not attempting to collect a debt in default “owed or due or asserted to be owed or due another. ” Id. § 1692a(6)(F)(iii) (emphasis added). It was collecting on a debt it had purchased from Lehman Capital — a debt it now owned and was collecting on its own behalf. Cf. Bailey v. Sec. Nat’l Servicing Corp., 154 F.3d 384, 386 (7th Cir.1998) (defendant was servicing loans on behalf of private investors who had purchased the loans from HUD). To be a debt collector, the statute requires that Cadleway be collecting on a debt “for another.” 15 U.S.C. § 1692a(4). Since Cadleway was collecting on a debt it now owned for itself, it should not be considered a debt collector, regardless of whether or not McKinney’s loan was in default.

At first blush, our decision in Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (7th Cir.2003), appears to inadvertently redact the FDCPA’s requirement that, to be a debt collector, the party attempting to collect the debt must be doing so “for another.” Not so. True, this court in Schlosser concluded that the defendant, Fairbanks Capital Corp., was a debt collector under the FDCPA despite the fact that it owned the debt upon which it was attempting to collect. But the question of whether Fairbanks was a debt collector despite not attempting to collect the debt “for another” never came up in Schlosser. Rather, this court only addressed the narrow question of whether Fairbanks, which in its collection letter had held itself out to be a debt collector, could be considered a “creditor” under the Act when the plaintiffs were not in fact in default on their loan — even though Fairbanks had believed the plaintiffs to be in default at the time it had sent its notice. Schlosser, 323 F.3d at 536. The district court had held “that under the plain language of the statutory definition, [Fairbanks was] not a debt collector because the [plaintiffs’] loan was not actually in default when Fairbanks acquired it.” Id. We disagreed with that statutory interpretation, holding only that Fairbanks could be a debt collector because it attempted to collect on a debt that it believed to be in default at the time it acquired the debt. See id. at 539. Importantly, we did not touch on the issue of whether a party attempting a collection, like Fairbanks or Cadleway, ought not to be considered a “debt collector” under the FDCPA because it then owned the debt that it was attempting to collect and was not therefore collecting the debt “for another.” That issue was outside the scope of what this court in Schlosser was addressing, and we did not consider it.1

*507We need not consider it here either; it is not necessary for the resolution of this case. Even assuming that Cadleway met the statutory definition of a debt collector, Cadleway’s validation-of-debt notice was objectively clear, as explained in Part II. B.2 of the court’s cogent opinion, and McKinney therefore loses. But because the court has chosen to address the issue of whether Cadleway qualifies as a debt collector, I must respectfully disagree with the court’s resolution of the question.

. Unlike this circuit in Schlosser, the Third Circuit did directly confront this issue in F.T.C. v. Check Investors, Inc., 502 F.3d 159 (3d Cir.2007), but its analysis is flawed. The Third Circuit never refuted the appellant’s statutory argument that it could not be a debt collector because it was owed the debt upon which it was collecting and was not therefore collecting the debt "for another.” Id. at 172 (citing 15 U.S.C. § 1692a(4)). The Third Circuit even went so far as to admit that the appellant "appear[ed] ... to satisfy the statutory definition of a creditor” and that "focusing on the status of the debt when it was acquired overlooks the fact that the person engaging in the collection activity may actually be owed the debt and is, therefore, at least nominally a creditor.” Id. at 173. Nevertheless, it relied on Schlosser — a case that never directly addressed the issue — and inconclusive language from the legislative history (used to override the definite language in the statute) to find that the appellant was a debt collector. See id. at 173-74. As explained above, such a finding completely ignores the plain text ("for another”) of both the statutory definition of a debt collector and the exclu*507sionary language in the statutory definition of a creditor.