Roberto Vega v. Scott D. McKay

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13520
December 2, 2003
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 03-00146-CV-T-23-MAP

ROBERTO VEGA, on his own
behalf and on behalf of all
others similarly situated, CECILIA
VEGA, on her own behalf and on
behalf of others similarly situated,

Plaintiffs-Appellants,

versus

SCOTT D. MCKAY,
MCKAY LAW FIRM, P.A.,

Defendants-Appellees.

__________________________

Appeal from the United States District Court for the
Middle District of Florida
_________________________

(December 2, 2003)

Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:

Roberto and Cecilia Vega (hereinafter “the Vegas”), private citizens

proceeding with the assistance of counsel, appeal the dismissal under Federal Rule

of Civil Procedure 12(b)(6) of their civil action brought under the Fair Debt

Collection Practice Act (“FDCPA”), 15 U.S.C. § 1692 et seq. On appeal, the

Vegas argue that the district court, in dismissing their action, erroneously found

that a complaint and summons package does not constitute an “initial

communication” within the meaning of the FDCPA. We agree with the ruling of

the district court and affirm.

The Vegas, private citizens who lease property from Holiday Cove R. V.

Resort (“the Resort”), filed this class action against Scott D. McKay and McKay

Law Firm, P.A. (“McKay”), alleging violations of the FDCPA. In their complaint,

the Vegas asserted that they were obligated to pay rent to the Resort for the lease

of trailer space on weekends. The Vegas maintained that McKay represented the

Resort in a small claims action to recover damages from the Vegas, and in that

regard had sent the Vegas a package containing a civil complaint, a summons to

appear for a pretrial conference, and a FDCPA notice. The Vegas argued that

McKay was a “debtor collector” within the meaning of the FDCPA, that the

complaint package constituted an “initial communication” within the statute as

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well, and that the summons contained therein “overshadow[ed] and contradict[ed]

the debt validation notice required by 15 U.S.C. § 1692g(a) thereby rendering this

notice ineffective in violation of [the FDCPA].”

McKay moved to dismiss the Vegas’ action under Rule 12(b)(6), arguing

that, in light of McKnight v. Benitez, 176 F.Supp.2d 1301, 1308 (M.D. Fla. 2001),

which held that the service of papers in a legal action does not constitute an

“initial communication” within the meaning of the FDCPA, the complaint package

that McKay had served upon the Vegas was not an “initial communication.”

McKay maintained that, because its complaint package did not constitute an

“initial communication” necessitating a notice of debt under 15 U.S.C. § 1692g,

the sufficiency of the FDCPA notice contained in the package was irrelevant.

The Vegas responded, inter alia, that McKay’s reliance on McKnight was

erroneous because McKnight had been overruled by In re Martinez, 311 F.3d 1272

(11th Cir. 2002), a case in which the underlying bankruptcy court had implicitly

found that a state court collection suit constituted an “initial communication”

within the meaning of the FDCPA. The Vegas noted that In re Martinez failed to

directly address the issue of whether a state court collection suit constitutes an

“initial communication.” The Vegas argued, however, that this Court’s summary

affirmance of the lower court’s decision evinced an intent to overrule McKnight.

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 The district court found that, in accordance with McKnight, McKay’s

complaint package did not constitute an “initial communication” within the

meaning of the FDCPA. The court found that, therefore, the adequacy of the

“FDCPA Notice” attached to the complaint package was irrelevant. Accordingly,

the court granted McKay’s motion to dismiss. In reaching its decision, the court

did not address the effect of In re Martinez on McKnight.

The Vegas argue on appeal that the district court erroneously found that

McKay’s complaint package did not constitute an “initial communication” within

the meaning of the FDCPA. The Vegas maintain that, under the plain language of

§ 1692a(2), written documents that are conveyed via a process server, and that

compose a state court collection suit, should constitute a “communication.”

Additionally, the Vegas contend that the district court’s reliance on McKnight was

erroneous because McKnight was overruled by our decision in In re Martinez.

We review de novo a district court’s grant of a motion to dismiss under Rule

12(b)(6). Lotierzo v. A Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182

(11th Cir. 2002). The FDCPA provides that:

[w]ithin five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall, unless
the following information is contained in the initial communication or
the consumer has paid the debt, send the consumer a written notice
containing [required debt verification information].

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15 U.S.C. § 1692g(a). “The term ‘communication’ means the conveying of

information regarding a debt directly or indirectly to any person through any

medium.” 15 U.S.C. § 1692a(2).

Neither this Court nor any other circuit has addressed the issue of whether a

legal action constitutes an “initial communication” within the meaning of

§1692g(a). Under factual circumstances similar to the instant case, the Middle

District of Florida has held that “it is more consistent with the purpose and intent

of Congress . . . [that] the term ‘communication’ as used in the Act does not

include a ‘legal action’ or pleadings or orders connected therewith.” McKnight,

176 F.Supp.2d at 1306, 1308 (noting that the purpose of the FDCPA is to “curb

abusive debt collection practices, not legal actions”). Significant to the court’s

holding in McKnight was the fact that the Federal Trade Commission does not

consider a legal action to be a “communication” in connection with the collection

of a debt. See id. at 1305-06 (noting that the FTC has stated in non-binding

commentary that “[a] debt collector’s institution of formal legal action against a

consumer . . . is not a ‘communication in connection with collection of any debt,’

and thus does not confer section 809 notice-and-validation rights on the

consumer”) (citing 53 FR 50097, 50108).

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 On the other hand, at least two courts have issued opinions, although non-

binding, that contradict McKnight. The Oklahoma court of civil appeals has

expressly held that a legal action does constitute an “initial communication”

within the meaning of the FDCPA. Mendus v. Morgan & Associates, P.C., 994

P.2d 83, 88 (Okla.Civ.App. 1999) (citing Heintz v. Jenkins, 514 U.S. 291, 299,

115 S.Ct. 1489, 1493, 131 L.Ed.2d 395 (1995), which held that the FDCPA

governs attorneys who regularly engage in debt collection activities “even when

that activity consists of litigation”). While one could argue that the bankruptcy

court for the Southern District of Florida may have implicitly held in In re

Martinez, 266 B.R. 523, 533 (Bankr.S.D.Fla. 2001), that a legal action constitutes

an “initial communication” under the FDCPA, we think not. The sole issue in In

re Martinez was whether the defendant had effectively conveyed to the plaintiff

notice of the right to dispute the plaintiff’s debt, as required by § 1692q. See id. at

530. In explaining the circumstances under which the FDCPA notice had been

conveyed to the plaintiff, the court stated that “[t]he Initial Communication in this

case was a 16 page package which included a summons and complaint. The

FDCPA Notice was on page eight.” Id. at 533. Notably, the question of whether a

legal action constitutes an “initial communication” was not before the bankruptcy

court. Moreover, that issue was not raised or addressed when the case was

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appealed to the district court or this Court. See In re Martinez, 271 B.R. 696, 700

(S.D.Fla. 2001); In re Martinez, 311 F.3d 1272 (11th Cir. 2002).

We now conclude that the holding of McKnight, that a legal action does not

constitute an “initial communication” within the meaning of the FDCPA,

accurately states the law. The Vegas’ contention, that McKnight has been

overruled by In re Martinez, is without merit because the question of whether a

legal action constitutes an “initial communication” was never at issue in In re

Martinez, and we in no way indicated our intent to overrule McKnight.

We agree with the conclusion set forth in McKnight that it seems far more

consistent with the purpose of the Act that the term “communication” as used does

not include a “legal action or pleading.” In making this decision we give serious

consideration to the interpretation put forth by the Federal Trade Commission

which is the agency changed with enforcing the provisions of the FDCPA and has

developed the expertise in this area. As we have stated, “it is enough to observe

that the well-reasoned views of the agencies implementing a statute constitute a

body of experience and informed judgment to which courts and litigants may

properly resort for guidance.” See Bell South Telecomms., Inc. v. Town of Palm

Beach, 252 F.3d 1169, 1188 n.11 (11th Cir. 2001) (quoting Olmstead v. Zirming,

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527 U.S. 581, 589 (1999) (following the FCC’s guideline interpretation of a

particular statutory provision).

Accordingly, we conclude that the district court did not err by finding that

McKay’s complaint and summons package did not constitute an “initial

communication” within the meaning of the FDCPA. We, therefore, affirm.

AFFIRMED.

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