Case: 22-30487 Document: 104-1 Page: 1 Date Filed: 03/15/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 15, 2024
No. 22-30487
Lyle W. Cayce
____________ Clerk
Iris Calogero, on her own behalf and on behalf of all others similarly
situated; Margie Nell Randolph, individually and on behalf of all
others similarly situated,
Plaintiffs—Appellants,
versus
Shows, Cali & Walsh, L.L.P., a Louisiana limited liability
partnership; Mary Catherine Cali; John C. Walsh,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-6709
______________________________
Before Clement, Haynes, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:*
Widowed octogenarians Iris Calogero and Margie Nell Randolph
received dunning letters from a Louisiana law firm named Shows, Cali &
Walsh. The widows sued under the Fair Debt Collection Practices Act. The
_____________________
*
Judge Haynes concurs in the judgment only.
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district court granted summary judgment to defendant law firm. We reverse
and remand.
I.
A.
This case centers on the “Road Home” grant program. As we
previously described the program:
In the aftermath of Hurricanes Katrina and Rita’s devastation
to displaced homeowners whose primary residences were
either destroyed or severely damaged, Congress appropriated
billions of dollars through the Community Development Block
Grant program (“CDBG”) of the Department of Housing and
Urban Development (“HUD”). In 2006, Louisiana applied for
CDBG funds for the Road Home Program (“Road Home”) to
provide grants for home repair and rebuilding, support
affordable rental housing, and offer housing support services.
Upon HUD’s approval of the largest single housing recovery
program in the United States, the Louisiana Office of
Community Development (“OCD”) and Louisiana Recovery
Authority (“LRA”) were tasked with implementing Road
Home.
Calogero v. Shows, Cali & Walsh, L.L.P., 970 F.3d 576, 579 (5th Cir. 2020).
OCD in turn outsourced a number of duties to contractors including ICF
Emergency Management Services, LLC. (“ICF”). ICF handled individual
grant applications, calculated award eligibility, and disbursed funds.
All Road Home grant recipients were required to sign a suite of
documents. Breach of any of these agreements could result in demand for
repayment by either the federal or state governments. For example, the
program required Road Home applicants to disclose repair benefits they
previously received. And where Road Home beneficiaries failed to disclose
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previous repair benefits, the Road Home Grant Agreement authorized the
State to recoup duplicative payments.
B.
Calogero and Randolph are Louisiana homeowners. In 2005, their
homes were devastated by Hurricane Katrina. That same year, Calogero
received repair payments from FEMA and her insurance carrier. Randolph
also received an insurance payment in 2005.
In the summer of 2007, both women applied for and received Road
Home grants. Allegedly, neither woman disclosed the repair benefits she
previously received from FEMA or a private insurance carrier. Calogero
received a total Road Home grant of $33,393, which closed on May 11, 2007.
ROA.6337, 7126. Randolph received a total Road Home grant of $28,793,
which closed on June 30, 2007. ROA.6337, 7126.
On July 3, 2007, FEMA reported to the State of Louisiana its 2005
payments to Calogero. ROA.7814, 6338, 7126. A few weeks later, on August
5, 2007, Calogero’s insurance carrier notified the State of its 2005 payments
to Calogero. ROA.7814, 7229–30. Shortly thereafter, on October 23, 2007,
the State received notice of Randolph’s 2005 insurance payment. ROA.6129,
8097–98. In March 2008, the State’s contractor, ICF, noticed the potential
double payments to the two women and placed an internal flag on their
accounts in the Road Home database. ROA.7837, 7840.
A decade passed.
Then, in 2017, Shows, Cali & Walsh (“SCW”) appeared on the scene.
The State of Louisiana paid SCW more than $10 million to help recover
double payments made in the Road Home program.
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On February 9, 2018, SCW sent Calogero a dunning letter. The
reference line stated, “Total Grant Funds Repayment Amount Due:
$4,598.89.” ROA.7929. The letter explained:
Our client’s records indicate that you received more in total
insurance proceeds than the amount used to calculate your
Grant award. Since you have not repaid those additional
insurance funds to Road Home in accordance with your Road
Home Grant Agreement, you have breached your Grant
obligations. Those obligations are clearly outlined in your Road
Home Grant Agreement.
Ibid. The letter demanded payment in 90 days, or else SCW “may proceed
with further action against you, including legal action.” Ibid. It further stated:
“[y]ou may also be responsible for legal interest from judicial demand, court
costs, and attorney fees if it is necessary to bring legal action against you.”
Ibid.
Calogero, through counsel, disputed the debt. SCW then sent a more
detailed letter. In its second letter, SCW changed the basis of the alleged debt
from “insurance proceeds” alone to include FEMA relief and a “30%
penalty” for “lack” of flood insurance. ROA.7940–42. The Road Home
grants make no mention of a 30% flood insurance-based “penalty.”
ROA.7721–33. And the second letter cites no basis for assessing Calogero a
30% “penalty.” ROA.7941.
SCW likewise sent Randolph a dunning letter on August 3, 2017,
demanding $2,500. It contained no basis for that figure, other than a
reference to her Road Home grant from ten years earlier. Like Calogero’s
letter, it contained a threat to proceed to litigation in 90 days if the debt was
not paid. This threat of litigation also included the possibility that Randolph
would have to pay attorneys’ fees and other litigation costs.
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Randolph was “terrified” by SCW’s letter and feared that she would
lose her house. ROA.7029. She called SCW’s office and was told that her
only option was to pay the money. Randolph explained that she did not have
the money for a lump payment, but the firm agreed to accept monthly
payments of $25 if she signed a promissory note. She took that deal for fear
that litigation would destroy her financially. She dutifully wrote personal
checks for $25, payable to SCW, every month.
C.
Calogero instead sued SCW under the Fair Debt Collection Practices
Act (“FDCPA”). The FDCPA regulates the practices of debt collectors like
SCW. The FDCPA’s text provides in material part:
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt. Without limiting the general application
of the foregoing, the following conduct is a violation of this
section:
***
(2) The false representation of—
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may
be lawfully received by any debt collector for the collection of a
debt.
***
(5) The threat to take any action that cannot legally be taken or
that is not intended to be taken.
***
(10) The use of any false representation or deceptive means to
collect or attempt to collect any debt . . . .
15 U.S.C. § 1692e (emphasis added).
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In applying § 1692e, a court must “view the letter from the
perspective of an unsophisticated or least sophisticated consumer.” Salinas
v. R.A. Rogers, Inc., 952 F.3d 680, 683 (5th Cir. 2020) (quotation omitted).
Under that standard, “we do not consider the debtor as tied to the very last
rung on the intelligence or sophistication ladder.” Ibid. (quoting Goswami v.
Am. Collections Enter., 377 F.3d 488, 495 (5th Cir. 2004)). We have
“generally treat[ed] . . . as a question of law,” the application of the
unsophisticated-consumer standard. Manuel v. Merchants & Pro. Bureau, Inc.,
956 F.3d 822, 826 (5th Cir. 2020) (quoting Salinas, 952 F.3d at 683 n.2).
The district court dismissed Calogero’s complaint, finding that the
Road Home program grants were not debts within the meaning of the
FDCPA. See Calogero, 970 F.3d at 580. We reversed. See id. at 586. On
remand, Calogero amended her complaint to add Randolph as a plaintiff. The
amended complaint alleged SCW: (1) collected or attempted to collect time-
barred debts; (2) failed to itemize the alleged debts; and (3) threatened to
assess attorneys’ fees without determining whether such a right existed. The
parties cross-moved for summary judgment.
The district court granted summary judgment to SCW. It held (1) the
alleged debts were not time-barred; (2) the alleged debts did not require
itemization, and the dunning letters did not misrepresent those debts in any
event; and (3) that SCW could recover attorneys’ fees.
Plaintiffs timely appealed. Our review is de novo. See Playa Vista
Conroe v. Ins. Co. of the W., 989 F.3d 411, 414 (5th Cir. 2021).
II.
As always, jurisdiction first. See, e.g., E.T. v. Paxton, 41 F.4th 709, 714
(5th Cir. 2022). SCW argues that the widows do not have standing to bring
this claim because they lack a concrete injury.
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The Supreme Court recently reiterated that: “Article III standing
requires a concrete injury even in the context of a statutory violation.”
TransUnion LLC v. Ramirez, 594 U.S. 413, 426 (2021) (quoting Spokeo, Inc.
v. Robins, 578 U.S. 330, 341 (2016)). The Court explained that beyond typical
harms like physical and money damages, “intangible harms” may also be
cognizable. Id. at 425. But an intangible harm is not concrete for Article III
purposes unless it has a “close relationship to a harm traditionally recognized
as providing a basis for a lawsuit in American courts.” Ibid.
In applying TransUnion, we must “focus[] on types of harms
protected at common law, not the precise point at which those harms become
actionable.” Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816,
822 (5th Cir. 2022) (alteration in original) (quoting Cranor v. 5 Star Nutrition,
LLC, 998 F.3d 686, 693 (5th Cir. 2021)). That inquiry does not look to an
exact analog at common law, but rather to harms that are close “in kind, not
degree” to those traditionally remedied in American courts. Ibid. (quoting
Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett,
J.)).
This case is controlled by Perez. There we recognized that “emotional
distress” is a traditional harm that satisfies TransUnion’s concreteness
requirement. Id. at 824 (citing TransUnion, 594 U.S. at 434–37). And
Calogero and Randolph complained of “fear, anxiety, and emotional
distress” after receiving “intimidating” and “misleading” dunning letters.
ROA.823. Randolph was so “terrified” by SCW’s unlawful threat to sue and
by the prospect of losing her home that she agreed to make monthly payments
on a promissory note. See ROA.7028–30. That is a concrete and cognizable
harm under Article III. See Perez, 45 F.4th at 824.
SCW’s only responses border on frivolous. First, SCW selectively
quotes Perez to omit the passage that explicitly recognizes emotional distress
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as a concrete injury. See Red Br. 21–22. Second, SCW claims that Calogero
did not establish her emotional distress in her original complaint, so she
cannot fix that omission later. It is true, subject-matter jurisdiction “depends
on the state of things at the time of the action brought.” Mollan v. Torrance,
22 U.S. (9 Wheat.) 537, 539 (1824). But that just means one plaintiff must
have suffered emotional distress at the time the complaint was filed—not that
failure to plead that injury in the original complaint forever deprives federal
courts of jurisdiction. Cf. Rockwell Int’l Corp. v. United States, 549 U.S. 457,
473 (2007) (“The state of things and the originally alleged state of things are
not synonymous. . . .”). That is why federal law expressly allows plaintiffs to
cure defective allegations of jurisdiction—an allowance that would mean
nothing if plaintiffs got only one shot, as SCW says. See 28 U.S.C. § 1653.
“Thus, when a plaintiff files a complaint in federal court and then voluntarily
amends the complaint, courts look to the amended complaint to determine
jurisdiction.” Rockwell, 549 U.S. at 473–74 (citation omitted).
III.
On the merits, the district court erred in granting summary judgment
to SCW. Viewing the facts in the light most favorable to plaintiffs, we hold
that a reasonable jury could find that SCW violated the FDCPA in three
ways: (A) by misrepresenting the judicial enforceability of the time-barred
debts; (B) by mischaracterizing Calogero’s debt; and (C) by misrepresenting
the availability of attorneys’ fees.
A.
We start with the limitations period. Attempting to collect on a time-
barred debt does not per se violate the FDCPA. Manuel, 956 F.3d at 829; see
also Mahmoud v. De Moss Owners Ass’n, Inc., 865 F.3d 322, 333 (5th Cir. 2017)
(holding it was not a violation of the FDCPA to collect a partially time-barred
debt when only a small portion was subject to the statute of limitations);
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Holzman v. Malcolm S. Gerald & Assocs., Inc., 920 F.3d 1264, 1273–74 (11th
Cir. 2019) (“[C]ourts generally have recognized that the FDCPA does not
impose a bright-line rule prohibiting debt collectors from attempting to
collect on time-barred debt.”). But a debt-collector can run afoul of the
FDCPA by threatening judicial action while completely failing to mention
that a limitations period might affect judicial enforceability. Manuel, 956 F.3d
at 831 (emphasizing that disclosure of a potential limitations problem “might
give a consumer at least some inkling that the debt might be too old to be
legally enforceable”). As we have explained:
When a collection letter creates confusion about a creditor’s
right to sue, that is illegal. The FDCPA singles out as unlawful
the false representation of the character, amount, or legal
status of any debt. Whether a debt is legally enforceable is a
central fact about the character and legal status of that debt. A
misrepresentation about the limitations period amounts to a
straightforward violation of § 1692e(2)(A).
Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 512 (5th Cir. 2016)
(quotation omitted).
The parties argue at length as to which limitations period should apply.
The plaintiffs’ first assert it should be the six-year federal statute of
limitations under 28 U.S.C. § 2415(a). Alternatively, plaintiffs point to a five-
year prescription period under article 1564 of the Louisiana Civil Code. On
the other hand, SCW contends that Louisiana’s general ten-year prescription
period should apply. See La. Civ. Code Ann. art. 3499.
We need not resolve that dispute, however, because the dunning
letters were untimely even under the most liberal, 10-year time window.
Thus, no matter which limitations period applies, SCW misrepresented the
judicial enforceability of these debts by threatening suit without
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acknowledging its timeliness problem. We (1) explain that timeliness
problem and then (2) reject SCW’s counterarguments.
1.
Under article 3499 of the Louisiana Civil Code, “a personal action is
subject to a liberative prescription of ten years.” This includes contract
actions. Taranto v. Louisiana Citizens Prop. Ins. Corp., 62 So. 3d 721, 734 (La.
2011).
Normally, the prescription period begins to run when the injured
party has knowledge of the “facts that would entitle him to bring a suit.”
Campo v. Correa, 828 So. 2d 502, 510 (La. 2002). The State of Louisiana
emphasizes that this is not an “actual knowledge” requirement; rather, state
law imputes “constructive knowledge” of “whatever notice is enough to
excite attention and put the injured party on guard and call for inquiry.” Id.
at 510–11. “Such notice is tantamount to knowledge or notice of everything
to which a reasonable inquiry may lead.” Id. at 511. The general rule in a
contract action is that a claim accrues (and hence the prescriptive period
begins to run) on the date of the breach. All. Hosp., LLC v. Esquivel, 322 So.
3d 253, 256 (La. Ct. App. 2021); see also Richard v. Wal-Mart Stores, Inc., 559
F.3d 341, 345 (5th Cir. 2009) (same, applying Louisiana law).
Here, insofar as plaintiffs breached their contracts with the State of
Louisiana, the breach occurred when they closed on their Road Home grants.
For Calogero that was on May 11, 2007; for Randolph that was on June 30,
2007. On those dates, the women received their respective Road Home
payments. And on those dates, the women allegedly failed to disclose
duplicative repair payments they received two years earlier in 2005. So from
their closing dates in 2007 (May 11 and June 30), both Calogero and
Randolph were suable for breaching their Road Home contracts. Neither
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received a dunning letter until over a decade later in either August 2017
(Randolph) or February 2018 (Calogero).
Moreover, FEMA and Calogero’s insurance carrier provided actual
notice to the State of the allegedly duplicative payments in 2007. FEMA
provided its notice on July 3, 2007. And Calogero’s insurer provided its
notice on August 5, 2007. Thus, as to Calogero, the latest conceivable accrual
date for the State’s claim was August 5, 2007—the date it received notice of
the allegedly duplicative payments. Still, Calogero did not receive a dunning
letter until over a decade later, in February 2018. Thus, SCW’s dunning
letter to Calogero plainly violated the FDCPA. Manuel, 956 F.3d at 829; see
also Daugherty, 836 F.3d at 513.
Randolph’s situation is slightly more complicated. (But only slightly.)
Her insurer provided notice to the State of Randolph’s allegedly duplicative
repair benefit on October 23, 2007. If that constituted the accrual date for the
State’s claim, it might appear that SCW’s dunning letter to Randolph—
dated August 3, 2017—fell within the 10-year prescriptive period. But it did
not. In its dunning letter to Randolph, SCW threatened to sue if not paid in
90 days. That 90 days ran until November 3, 2017—and by that time,
Randolph’s debt would be barred under any conceivable application of the
10-year prescriptive period. Thus, SCW’s threat to Randolph (pay us now,
or we will sue you in 90 days) was misleading. Manuel, 956 F.3d at 829; see
also Daugherty, 836 F.3d at 513.
2.
SCW offers two counterarguments.1 Both are wrong.
_____________________
1
The district court discussed the equitable doctrine of contra non valentem, which
it used to toll the prescription period. SCW does not press that argument on appeal. Cf.
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First, the firm claims that “the time period in C.C. art. 3499 does not
commence to run until the party becomes aware of the breach.” Red Br. 45.
For this proposition, SCW cites New Orleans Jazz and Heritage Foundation,
Inc. v. Kirksey, 40 So. 3d 394, 408 (La. Ct. App. 2010). Applying that
standard, SCW claims prescription began to run on March 1, 2008, when the
State’s contractor, using data it already had at its disposal, internally flagged
that Calogero and Randolph may have been overpaid. To SCW, “aware”
means the date the State’s contractor chose to review existing information
and put a notification in its database. Red Br. 45.
This is a misstatement of Louisiana law. New Orleans Jazz applied the
ten-year period in a straightforward breach of contract case, and the court
remarked in passing about the date the plaintiff “first became aware” of the
alleged breach. 40 So. 3d at 408. It is obvious from the context of those three
words that the court was simply describing the facts of its case—not
announcing some new, pathbreaking rule that deviates from the well-settled
principle of state law that actual notice is not required. The Louisiana
Supreme Court could not be clearer on this point. Campo, 828 So. 2d at 510–
11 (constructive notice sufficient); see also Hawthorne Land Co. v. Occidental
Chem. Corp., 431 F.3d 221, 228 (5th Cir. 2005) (similar, applying Louisiana
law). A passing description of the facts in an intermediate appellate court
decision cannot somehow overrule the State Supreme Court on a point of
state law.
_____________________
Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) (explaining that a party forfeits
an argument by failing to adequately brief it). And in any event, contra non valentem would
likely not apply here, as the Louisiana Supreme Court has warned that it “only applies in
exceptional circumstances.” Marin v. Exxon Mobil Corp., 48 So. 3d 234, 245 (La. 2010)
(quotation omitted). And none of those “exceptional” preconditions are met here. Ibid.
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Applying the correct, constructive-notice standard required by
Louisiana law, we hold the State had constructive notice of plaintiffs’ alleged
breach of the Road Home contracts at the very latest when FEMA and the
insurance carrier provided notice to the State in August and October 2007.
SCW can find no support in state law for its contention that a claim does not
accrue until a third party actually studied the notices sent to the State and
flagged them. Were it otherwise, the State (or any other contractual
counterparty) could stick its head in the sand, sleep on its rights, and
otherwise delay enforcing a contract indefinitely. That is the exact opposite
of the “reasonable inquiry” required by state law. Campo, 828 So. 2d at 511.
Second, SCW argues that the Louisiana legislature tolled the normal
prescription period, for some undefined length of time, when it supposedly
“stay[ed]” OCD’s efforts in 2014. See Red Br. 46 (citing La. Stat. Ann.
§ 49:663.1). But § 49:663.1 does no such thing. It simply directed OCD to
develop new, robust procedures for grant payment recovery. See §§ 49:663.1
(d)–(e). The Legislature’s action makes no reference to the judicial
enforceability of debts. It says nothing about the prescription period. And
SCW offers no authority for inferring that this legislative silence should add
some indeterminate amount of time to the prescription period.
B.
Next, SCW mischaracterizes Calogero’s debt. The parties argue at
length over whether SCW was required to itemize Calogero’s debt in its
dunning letter. We need not decide whether the FDCPA requires
itemization. Cf. Manuel, 956 F.3d at 824 (deciding to “leave for another day”
the question of whether a certain practice was “misleading as a matter of
law”); Salinas, 952 F.3d at 684 (“To date, our court has not settled on
precise definitions for the FDCPA terms ‘deceptive’ and ‘misleading.’”).
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That is because Calogero’s letter was misleading and easily transgresses our
precedent regardless of its failure to itemize.
Take for example our decision in Goswami. In that case, a collection
letter falsely advised a debtor that the holder of the underlying debt would
only accept a 30% write-down of the principal value, and such an offer was
only available for a limited time. 377 F.3d at 495. The client had in fact
authorized a 50% write-down at any time. Ibid. Our court found a violation of
the FDCPA because the dunning letter was deceptive on the true value of the
write-down. Id. at 496; see also Taylor v. Perrin, Landry, deLaunay & Durand,
103 F.3d 1232, 1237–38 (5th Cir. 1997) (finding a debt collector’s form letter
misleading under the FDCPA because it appeared on law firm letterhead,
even though no attorney ever participated in the dunning efforts).
SCW’s letter stated that Calogero owed $4,598.89 in “insurance
proceeds.” ROA.7929. But in reality, it was nowhere close to that figure.
When pressed by Calogero’s counsel, SCW completely changed that
calculation. Upon inspection, most of that $4,598.89 was made up of FEMA
benefits. And it included a 30% “penalty” for “lack” of flood insurance.
ROA.7941. SCW provided no basis for the “penalty” assessment. Ibid. And
it is nowhere to be found in the Road Home documents. It is plainly an
incomplete and incorrect presentation under 15 U.S.C. § 1692e to represent
to a consumer that a debt is for one thing, and then switch justifications
completely when pressed by counsel. Cf. Goswami, 377 F.3d at 496; Taylor,
103 F.3d at 1237–38.
SCW nonetheless contends that the only relevant question is whether
Calogero owed the final bottom-line number specified in the dunning letter.
If Calogero owed $4,598.89, SCW contends, the rest of the letter is no-harm-
no-foul.
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We disagree. The FDCPA forbids SCW from misleading or deceiving
debtors. 15 U.S.C. § 1692e. “As the addition of the term ‘misleading’
confirms, the statute outlaws more than just falsehoods. That is why truth is
not always a defense.” Buchanan v. Northland Grp., Inc., 776 F.3d 393, 396
(6th Cir. 2015) (quotation omitted). If a debt collector hopes to pressure
someone into paying a debt, it cannot demand payments on imaginary debts
and then escape the FDCPA’s reach by pointing to the bottom line. It instead
must present the debt accurately.2
C.
Finally, SCW violated the FDCPA by threatening to collect attorneys’
fees that it had no lawful basis to recover.
A debt collector violates the FDCPA when it has “no legal basis” for
its demand. See 15 U.S.C. § 1692e(5) (banning “[t]he threat to take any
action that cannot legally be taken or that is not intended to be taken”).
Therefore, the question is whether SCW had a legal basis to threaten
plaintiffs with attorneys’ fees.
Louisiana law follows the “American Rule,” under which courts
cannot award attorneys’ fees unless authorized by contract or statute. See,
e.g., Maloney v. Oak Builders, Inc., 235 So. 2d 386, 390 (La. 1970). In
interpreting a contractual fee-shifting provision, “[t]he reasonable intention
of the parties to a contract is to be sought by examining the words of the
_____________________
2
The dunning letter SCW sent to Randolph does not contain these same deceptive
and misleading flaws. The Randolph letter simply demands payment for $2,500. As to that
letter, plaintiffs urge us to hold the letter was deceptive because SCW failed to itemize the
$2,500 debt. We need not do so, however, because Randolph’s letter was misleading and
deceptive both because it unlawfully attempted to recover on a time-barred debt (as
discussed in Part III.A, supra) and because it unlawfully attempted to recover attorneys’
fees (as discussed in Part III.C, infra).
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contract itself.” Prejean v. Guillory, 38 So. 3d 274, 279 (La. 2010). And
“[w]hen the words of a contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search of the parties’
intent.” Ibid. (citation omitted).
This case is governed by the “American Rule,” because none of the
contracts in the Road Home program authorized the fee shifting that SCW
threatened. And SCW points to no statute sanctioning the firm’s demands.
Yet its dunning letters to Calogero and Randolph threatened that the widows
would be “responsible for legal interest from judicial demand, court costs,
and attorney fees if it is necessary to bring legal action against you.”
ROA.7927. That plainly violates § 1692e(5).3
SCW nonetheless points to one fee-related document in the Road
Home suite of contracts—the Road Home Limited Subrogation/Assignment
Agreement (“LSAA”). SCW is correct that the LSAA authorizes the State
to recover attorneys’ fees. But SCW is incorrect that the LSAA applies to
either Calogero or Randolph. The LSAA provides in relevant part:
[T]o the extent of the grant proceeds awarded or to be awarded
to me under the Program, all of my/our claims and future
rights to reimbursement and all payments hereafter
received or to be received by me/us (a) under any policy of
casualty or property damage insurance or flood insurance on
the residence, excluding contents (“Residence”) described in
my/our application . . . .
ROA.7728–29, 7741–42 (emphasis added). Thus, the LSAA allows for
recuperation (and fees) only where the grant recipient receives future
_____________________
3
The attorneys’ fees threat is an independent violation of the FDCPA under 15
U.S.C. § 1692e(5). So even if SCW timely dunned some grant recipients for alleged
overpayments, any unlawful threats of attorneys’ fees would constitute distinct violations
of the FDCPA.
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No. 22-30487
payments after signing the Road Home suite of contracts. It provides no fee-
shifting remedy against grant recipients like Calogero and Randolph who
allegedly received payments before signing the LSAA.
A separate document in the Road Home suite of contracts—called the
“Grant Agreement”—applies to payments received and not disclosed before
closing. ROA.7726, 7731. And that instrument authorizes fee-shifting in the
tightly circumscribed scenario in which a homeowner sued the Road Home
program and suffered an adverse judgment. That obviously has not happened
here, so the Grant Agreement does not justify the threat in SCW’s dunning
letters.
SCW’s last remaining counterargument is that it should be able to
pick and choose different clauses from the LSAA and the Grant Agreement
and then mush them together to demand money from debtors. SCW offers
no authority for this proposition,4 but simply urges this court to combine the
separate instruments into one. We will not. The words of the LSAA are
“clear and explicit”: fee shifting can occur only for future payments. Prejean,
38 So. 3d at 279. SCW does not dispute that clarity.
_____________________
4
Although not pressed by SCW on appeal, the district court cited Robinson v.
Marks, 30 So. 2d 200, 203 (La. 1947), for the proposition that multiple contracts between
the same parties can constitute “one entire and indivisible contract or one transaction.”
Ibid. But the rule from Robinson has been partially abrogated by statute. La. Civ. Code
Ann. art. 2053 (“[O]ther contracts of a like nature between the same parties” should be
used to interpret only “doubtful provisions.”). The provisions at issue here are not
“doubtful.” Ibid. And, in any event, SCW forfeited the point by not pressing it. The district
court also sua sponte raised a theory of fraud against Calogero and Randolph. SCW forfeited
that point too by failing to press it on appeal. Rollins, 8 F.4th at 397.
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No. 22-30487
* * *
For the foregoing reasons, the district court’s judgment is
REVERSED, and the case is REMANDED for further proceedings
consistent with this opinion.
18