Maloy v. Phillips

United States Court of Appeals,

Eleventh Circuit.

No. 94-9238.

Non-Argument Calendar.

Mark E. MALOY, Plaintiff-Counter-Defendant, Appellant,

v.

Arthur L. PHILLIPS, Phillips, Davis & Donner, a Georgia
Partnership, Defendants-Counter-Claimants, Appellees.

Sept. 15, 1995.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 93-CV-98-ATH (WDO)), Wilbur D. Owens,
Jr., Judge.

Before EDMONDSON, COX and DUBINA, Circuit Judges.

PER CURIAM:

Mark E. Maloy ("Maloy") appeals the district court's judgment

dismissing his action filed under the Fair Debt Collection

Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Specifically,

Maloy challenges the district court's finding that the alleged

violation of 15 U.S.C. § 1692e(11) occurred on the date the debt

collection letter in question was mailed, thereby barring Maloy's

action as filed outside the applicable one-year statute of

limitations. We reverse and remand.

I.

The relevant facts in this case are undisputed. The

defendant/appellee, Arthur L. Phillips and Phillips, Davis &

Donner, a Georgia Partnership, ("Phillips"), mailed the debt

collection letter in question to Maloy on November 13, 1992. Maloy

received the letter on November 16, 1992, and on November 15, 1993,

he filed this suit against Phillips in federal district court.
Holding that Maloy's complaint was filed outside the applicable

one-year statute of limitations, the district court entered its

judgment of dismissal.

II.

Section 1692k(d) provides that actions to enforce liability

created by the FDCPA must be brought "within one year from the date

on which the violation occurs." In Maahs v. United States, 840

F.2d 863, 866-67 (11th Cir.1988), this court held that the method

of calculation used in Rule 6(a) of the Federal Rules of Civil

Procedure generally applies to statutes such as the FDCPA which

were enacted after the Federal Rules of Civil Procedure were

adopted in 1937. Rule 6(a) provides in relevant part that

computation of any period of time prescribed by a statute shall not

include the date of the event from which the time begins to run.

Therefore, Maloy was required to bring this action within one year

from the date that the alleged violation of the FDCPA occurred, and

the calculation of the time period begins on the day after the

alleged violation occurred.

A.

Before determining whether the district court erred in

dismissing Maloy's complaint, we must first determine whether the

alleged violation occurred on the date the collection letter was

mailed or on the date it was received. This question has not been

decided in this circuit. In fact, research reveals that the Eighth

Circuit is the only circuit court to directly address the issue. 1

1
In Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 n. 2
(2d Cir.1992), the Second Circuit discussed in dicta when a
violation of the FDCPA occurs. Although the court did not decide
In Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 261

(8th Cir.1992), the debt collector mailed a collection letter dated

November 27, 1989, and the debtor filed her action on November 27,

1990. The Eighth Circuit affirmed the dismissal of the action,

reasoning that the statute of limitations began to run on the date

the letter was mailed because that was the debt collector's last

opportunity to comply with the FDCPA. Id. In addition, the court

concluded that using the date of mailing was a better and more

practical approach because it provided a date that was easy to

determine, ascertainable by both parties, and easily applied. Id.

B.

We find the reasoning of the Eighth Circuit persuasive and

adopt the approach used in Mattson, save for the calculation of the

days from the mailing of the collection letter. As stated above,

in computing the statute of limitations we will exclude the mailing

date as the triggering date of the alleged FDCPA violation in

accordance with Rule 6(a). Accordingly, we hold that the day after

Phillips mailed the collection letter, November 14, 1992, is the

date from which the one-year period of limitations began to run.

Because Maloy filed his complaint on November 15, 1993, the

district court properly determined that any claims arising out of

the letter Phillips mailed to Maloy on November 13, 1992, were

barred by the one-year statute of limitations.

III.

In addition to violations arising out of the debt collection

the issue, it recognized that the harmful effect of illegal debt
collection practices does not occur until a debtor receives the
abusive collection notice.
mailed on November 13, 1992, Maloy claims that Phillips violated §

1692(g) of the FDCPA by failing to send a second letter containing

required debt verification information within five days of the

initial collection letter. Section 1692(g) mandates that a second

letter is required only if the initial debt collection letter does

not provide required debt verification information. If the initial

collection letter did not provide this information, Phillips would

have until five days after the initial communication to comply with

the requirements of § 1692(g), and the claim under this sub-section

would thus not have ripened until five days after the initial

letter of November 13, 1992. Under these circumstances, Maloy's

cause of action under § 1692(g) would have been timely filed.

Because the district court made no findings as to whether Phillips'

initial letter contained the information required under § 1692(g),

we remand this case to the district court to determine whether the

initial letter complied with § 1692(g).

Finally, because the record demonstrates that this appeal was

timely filed, we hold that Phillips' claim that the notice of

appeal was untimely has no merit.

REVERSED and REMANDED.2

2
The district court properly held that Maloy's action under
15 U.S.C. § 1692e(11) occurred on the date the debt collection
letter in question was mailed; nonetheless, we must reverse the
district court's judgment dismissing Maloy's complaint because he
may have a valid § 1692(g) claim that was not filed outside the
applicable one-year statute of limitations.