In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3776
C AMILLE G BUREK, individually and on
behalf of all others similarly situated,
Plaintiff-Appellant,
v.
L ITTON L OAN S ERVICING LP,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-03188—Milton I. Shadur, Judge.
A RGUED A PRIL 15, 2009—D ECIDED JULY 27, 2010
Before B AUER, F LAUM, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Litton Loan Servicing (“Litton”)
serviced a mortgage on a home owned by Camille
Gburek. When Gburek fell behind on her mortgage pay-
ments, Litton sent her a letter offering to discuss ways
she could avoid losing her home in foreclosure and asking
for her current financial information. A few days later,
2 No. 08-3776
Gburek received a letter from Titanium Solutions
(“Titanium”) on behalf of Litton; this letter reiterated
Litton’s offer to work with Gburek on foreclosure alterna-
tives and asked again for Gburek’s financial information.
Gburek responded with this lawsuit, claiming that
Litton had engaged in illegal debt-collection practices
in violation of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692 et seq. The district court
granted Litton’s motion to dismiss, concluding that
Litton’s conduct did not fall within the scope of the
FDCPA because the letters Gburek received did not
contain a demand for payment.
We reverse. Generally speaking, a communication
from a debt collector to a debtor is not covered by the
FDCPA unless it is made “in connection with the collec-
tion of any debt.” Id. §§ 1692c, 1692e. The district court
thought Litton’s offer to participate in loan-workout
negotiations was not made “in connection with” any debt-
collection efforts because it did not contain an explicit
demand for payment. This reads the statutory language
too narrowly and ignores salient facts alleged in the
complaint: Gburek’s mortgage was in default, and the
text of the letters indicate they were sent to induce her
to settle her mortgage-loan debt in order to avoid fore-
closure. The complaint thus sufficiently alleges communi-
cations that were “sent in connection with an attempt to
collect a debt,” Ruth v. Triumph P’ships, 577 F.3d 790,
798 (7th Cir. 2009), and in violation of the FDCPA.
No. 08-3776 3
I. Background
Camille Gburek was in default on a mortgage loan
serviced by Litton Loan Servicing. As a loan servicer,
Litton was responsible for sending out monthly state-
ments, collecting and monitoring mortgage payments,
addressing late payments or other delinquencies, and
notifying Gburek of her account status. In December 2007
Gburek received two letters—attached as exhibits to
her complaint—that she claims violated the FDCPA.
Because the letters are important to this appeal, we set
forth their contents in detail.
In the first letter, Litton offered Gburek the opportunity
to discuss “foreclosure alternatives” and requested cer-
tain financial information.1 More specifically, this letter
said:
We recently sent you a letter requesting that you
contact our office to review your financial situation
and discuss foreclosure alternatives. To date, we
have not received a response to our request.
Again, we would like to emphasize that it is not too
late to save your home. Options may be available
1
Litton specifically requested that Gburek provide her
contact information as well as extensive financial information,
including her monthly income and expenses, her assets and
liabilities, her most recent pay stubs and tax returns, and recent
bank statements for her checking and savings accounts. Litton
also asked Gburek to explain why she had defaulted on
her mortgage loan and to propose ways to resolve her delin-
quent status.
4 No. 08-3776
to help preserve your homeownership. To determine
options that best fit your financial situation, you
must complete and return the enclosed form and
provide the requested documentation to [Litton’s
Loss Mitigation Department] within 14 business days.
....
Litton will not delay ongoing legal action on your
home until your financial information has been re-
ceived and processed.
If you are not obligated on the debt, or if the debt has
been discharged in a bankruptcy proceeding, the
Servicer is not attempting to collect from you person-
ally. You are being given this notice as a courtesy
because your interest in the real estate may be affected.
Should you have any questions concerning your
alternatives, do not hesitate to contact us . . . or visit
our website . . . .
At the bottom of the letter, the following text appeared:
“LITTON LOAN SERVICING LP IS A DEBT COLLECTOR.
THIS LETTER IS AN ATTEMPT TO COLLECT YOUR
DEBT AND ANY INFORMATION OBTAINED WILL BE
USED FOR THAT PURPOSE.” (This text also appeared
on the financial-information form in bold, lowercase
letters.)
A few days after Litton’s letter arrived, Gburek received
a letter from Titanium Solutions, a firm that partners with
mortgage-loan servicers like Litton and attempts to
facilitate communication between servicers and home-
owners on the brink of foreclosure. Like the Litton letter,
No. 08-3776 5
the Titanium letter also asked Gburek to complete and
return a financial-information form to Litton:
Your Servicer has requested our company, Titanium
Solutions Inc., to contact you because of certain pay-
ment arrearages on your Loan. It is our task to work
together with you and your Servicer to find a way, if
possible, for you to keep your home and to avoid
continuing arrearages, which may lead to foreclosure.
Please note that Titanium Solutions is not a debt
collector and is not involved in the collection of any
of the amounts due under the Servicer’s Loan. Our
Titanium Solutions’ representative is not authorized
to accept from you any mortgage payment or any
other type of payment. Please note that Titanium
Solutions will not request or accept any payment
from you for its services.
To provide this assistance, we must collect infor-
mation from you to analyze your current financial
position. We have enclosed a “Financial Information
Form” to be filled out by you and returned to Litton
Loan Servicing . . . . Your Servicer has also requested
a copy of your most recent pay stub(s) and/or
your most recent Federal Income Tax Return.
....
Your Servicer and Titanium Solutions hope that this
assistance program results in a mutually positive
experience for everyone. If you have any questions
upon completion of your interview with Titanium
Solutions, please don’t hesitate to call your Servicer’s
6 No. 08-3776
Loan Workout Department . . . or Titanium Solutions
General Offices . . . .
In response to these two letters, Gburek filed a class-
action lawsuit against Litton alleging three violations of
the FDCPA and seeking statutory damages and attor-
ney’s fees. Count One claimed that Litton violated 15
U.S.C. § 1692e(10) by using deceptive means to obtain
Gburek’s personal information; this count centered on
Litton’s use of a third party—Titanium—to communicate
with Gburek regarding the possibility of negotiating a
loan workout. Count Two alleged that Litton violated
§ 1692c(a)(2) by communicating directly with Gburek
despite knowing she was represented by an attorney.
Count Three alleged that Litton violated § 1692c(b) by
communicating with Titanium about Gburek’s mortgage
without Gburek’s consent.2
Litton moved to dismiss the complaint, contending that
the communications that formed the basis of these
claims were not made “in connection with the collection
of” Gburek’s debt as required by 15 U.S.C. §§ 1692c(a)-(b),
1692e. In an oral decision, the district court agreed, con-
cluding that under Bailey v. Security National Servicing
Corp., 154 F.3d 384 (7th Cir. 1998), a communication is
made “in connection with the collection of any debt” only
if it explicitly demands payment of that debt. Because
Litton’s communications did not expressly demand
2
Counts One and Two also claimed that Litton violated
15 U.S.C. § 1692f’s prohibition against using “unfair or uncon-
scionable means to collect or attempt to collect any debt.”
No. 08-3776 7
payment, the district court granted the motion to dis-
miss. Gburek appealed.
II. Discussion
We review the district court’s dismissal order de novo,
construing the complaint in the light most favorable to
Gburek, accepting as true all well-pleaded facts and
drawing all reasonable inferences in her favor. Justice
v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009). Because
the Litton and Titanium letters were attached to
Gburek’s complaint as exhibits, we treat them as part of
the pleading. F ED. R. C IV. P. 10(c).
The Fair Debt Collection Practices Act generally
prohibits “debt collectors” from engaging in abusive,
deceptive, or unfair debt-collection practices. 15 U.S.C.
§§ 1692 et seq. Among other things, the FDCPA regulates
when and where a debt collector may communicate with
a debtor, id. § 1692c; restricts whom a debt collector
may contact regarding a debt, id.; prohibits the use of
harassing, oppressive, or abusive measures to collect a
debt, id. § 1692d; and bans the use of false, deceptive,
misleading, unfair, or unconscionable means of col-
lecting a debt, id. §§ 1692e, 1692f. For the FDCPA to
apply, however, two threshold criteria must be met.
First, the defendant must qualify as a “debt collector,”
which the FDCPA defines as any person who “uses any
instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the col-
lection of any debts” or who “regularly collects or
attempts to collect, directly or indirectly, debts owed or
8 No. 08-3776
due or asserted to be owed or due another.” Id. § 1692a(6).
Here, the parties agree that Litton is a “debt collector”
under the statute. Second, the communication by the
debt collector that forms the basis of the suit must
have been made “in connection with the collection of any
debt.” Id. §§ 1692c(a)-(b), 1692e, 1692g. The issue in
this appeal is whether the communications Gburek chal-
lenges were made in connection with the collection of
her debt.
Neither this circuit nor any other has established a
bright-line rule for determining whether a communica-
tion from a debt collector was made in connection with
the collection of any debt. Three of our cases, however,
are instructive. In Bailey, 154 F.3d 384, a loan servicer
sent a letter to a delinquent debtor listing the next
four payments due on the debtor’s forbearance agree-
ment with the original creditor and expressing a willing-
ness to “work with” the debtor to resolve the under-
lying delinquency. Id. at 386. Although the plaintiff
argued that this letter qualified as a communication in
connection with the collection of the debt, we observed
that it did not demand payment and did not otherwise
attempt to collect the debt even though it warned the
debtor that any delinquent payments on the forbearance
agreement could trigger an obligation to immediately
repay the entire loan. We concluded that this letter
was not a communication in connection with the collec-
tion of any debt but, rather, merely a description of the
current status of the debtor’s account. Id. at 388-89.
Several factors were important to the decision in Bailey.
First, the debtor had not missed any payments on the
No. 08-3776 9
forbearance agreement; although the original loan was
in default, there was nothing past due on the forbearance
agreement that had superseded it. Second, the payment
dates listed in the letter were prospective, and the letter
simply warned the debtor of the consequences of missing
a future forbearance payment. Third, the letter con-
tained no demand for payment but instead simply set
forth the debtor’s current account status.
Bailey thus suggests some limits on the reach of the
FDCPA, making it clear that the statute does not apply
to every communication between a debt collector and a
debtor. The case does not, however, establish a categorical
rule that only an explicit demand for payment will
qualify as a communication made in connection with the
collection of a debt. The absence of a demand for pay-
ment was just one of several factors that influenced the
outcome in Bailey.
Our later decision in Horkey v. J.V.D.B. & Associates, 333
F.3d 769 (7th Cir. 2003), also undermines the district
court’s conclusion that a communication must contain
a demand for payment in order to qualify as a commu-
nication made in connection with the collection of any
debt. In Horkey the debtor received a call from a debt
collector at work, said she could not talk about the
matter at that time, and hung up the phone. The debt
collector then called the debtor’s co-worker and asked
him to tell the debtor “to quit being such a [expletive]
bi***.” Id. at 772. Although the phone call to the co-worker
contained no demand for payment, we noted that the
obvious point of the call was to “crudely but specifically”
10 No. 08-3776
induce the debtor “to be more receptive to his entreaties
regarding the debt.” Id. at 774. This was enough for us to
conclude that the phone call to the employee was cov-
ered by the FDCPA. Id. Horkey clarifies that a communi-
cation need not make an explicit demand for payment
in order to fall within the FDCPA’s scope; rather, that a
communication made specifically to induce the debtor
to settle her debt will be sufficient to trigger the protec-
tions of the FDCPA.
The third case that informs our analysis is Ruth v.
Triumph Partnerships, 577 F.3d 790 (7th Cir. 2009). In Ruth
a debt collector sent both a collection letter and a privacy
notice to a debtor in the same envelope. Although the
collection letter was undoubtedly an attempt to collect
the debt, the debt collector argued that the privacy
notice fell outside the scope of the FDCPA. We rejected
this argument for two reasons. First, we took note of the
relationship between the parties: “The only relationship
the defendants had with the plaintiffs arose out of [the
defendant’s] ownership of the plaintiffs’ defaulted debt.”
Id. at 799. Second, the privacy notice was sent in the
same envelope as the collection letter, which the defen-
dants conceded constituted an attempt to collect a debt.
We concluded in Ruth that “the defendants would not
have sent this combination of materials to the plaintiffs
if they had not been attempting to collect a debt,” and
thus the privacy notice was sent “in connection with
an attempt to collect a debt.” Id. at 798-99.
Together, these cases establish that the absence of a
demand for payment is just one of several factors that
No. 08-3776 11
come into play in the commonsense inquiry of whether
a communication from a debt collector is made in connec-
tion with the collection of any debt. The nature of the
parties’ relationship is also relevant, as illustrated by
both Ruth and Bailey. We commented in Ruth that “[t]he
only relationship the defendants had with the plaintiffs
arose out of . . . the plaintiffs’ defaulted debt,” id. at 799,
and found it significant in Bailey that there was a preex-
isting forbearance agreement in place. As was implicit
in all three cases, the purpose and context of the commu-
nications—viewed objectively—are important factors as
well. Id. at 798 (holding that the standard for evaluating
whether a communication is made in connection with
the collection of a debt is an objective one). We empha-
sized in Ruth that the privacy notice was sent in the
same envelope as a collection letter, and when packaged
together in this way constituted a communication “sent
in connection with an attempt to collect a debt.” Id. at 798-
99. Likewise, in Horkey we relied on the apparent pur-
pose of the debt collector’s telephone call—to threaten
and harass the debtor into settling her debt—to conclude
that it was a communication made in connection with
the collection of the debt.
Applying these principles here, we note first that
Gburek’s complaint centers on three separate commun-
ications that she alleges violated the FDCPA: (1) Litton’s
letter telling Gburek that she could avoid foreclosure
if she submitted certain financial information; (2) Tita-
nium’s letter to Gburek encouraging her to contact Litton
and attempting to collect the previously requested finan-
cial information; and (3) Litton’s contact with Titanium
12 No. 08-3776
about Gburek’s debt. We emphasized in Ruth that
“whether a communication was sent ‘in connection with’
an attempt to collect a debt is a question of objective fact,
to be proven like any other fact.” Id. at 798. Ruth was a
summary-judgment case, however, and we resolved
the question in the plaintiff’s favor as a matter of law on
the undisputed facts. Id. at 799. Here, the issue was
raised at the pleading stage, and we need only deter-
mine whether Gburek’s allegations—including the con-
tents of the letters she attached to her complaint—are
sufficient to survive Litton’s motion to dismiss.
The context and content of the first letter are sufficient
to bring Gburek’s claim within the scope of the FDCPA.
Gburek was in default on her mortgage loan, and Litton’s
letter offered to discuss “foreclosure alternatives” and
asked her for financial information in order to initiate
that process. This letter is Litton’s opening communica-
tion in an attempt to collect Gburek’s defaulted home
loan—by settlement or otherwise. Though it did not
explicitly ask for payment, it was an offer to discuss
Gburek’s repayment options, which qualifies as a commu-
nication in connection with an attempt to collect a debt.3
For similar reasons, Titanium’s letter to Gburek was
also sufficient to bring her claim within the scope of the
3
The letter bore a disclaimer identifying it as an attempt to
collect a debt, but this does not automatically trigger the
protections of the FDCPA, just as the absence of such
language does not have dispositive significance. See Lewis v.
ACB Bus. Servs., Inc., 135 F.3d 389, 400 (6th Cir. 1998).
No. 08-3776 13
statute. Although the letter states that Titanium was not
authorized to accept any “mortgage payment or any
other type of payment” from Gburek, the purpose of
the letter was to encourage Gburek to contact Litton
to discuss debt-settlement options. In this sense the
Titanium letter and the phone call in Horkey are no dif-
ferent—both were communications made to induce the
debtor to settle a debt. That the letter was sent by a third
party rather than the debt collector does not affect this
conclusion. Titanium was acting on Litton’s behalf when it
sent this letter. The text of the letter makes this explicit:
“Your Servicer [Litton] has requested our company,
Titanium Solutions Inc., to contact you . . . .”
The third and final communication is Litton’s contact
with Titanium, and this plainly constitutes a communi-
cation in connection with the collection of a debt. Tita-
nium’s letter to Gburek makes it clear that Litton con-
tacted Titanium and asked it to collect financial infor-
mation from Gburek for the purpose of evaluating her
foreclosure alternatives. The complaint specifically
alleges that Titanium was working on behalf of Litton to
gather information to collect Gburek’s debt. This is suf-
ficient to bring Litton’s communication with Titanium
within the scope of the FDCPA.
Accordingly, it was a mistake to dismiss the com-
plaint on the sole ground that none of these communica-
tions explicitly demanded payment from Gburek. Litton
argues in the alternative that we should affirm the dis-
missal of the complaint because these communications
did not amount to substantive violations of the FDCPA.
14 No. 08-3776
See 15 U.S.C. §§ 1692c(a)(2), 1692c(b), 1692e. This argu-
ment is not well-developed, however, and we decline
to address it. See Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d
344, 349 (7th Cir. 2009) (underdeveloped arguments are
considered waived).
R EVERSED and R EMANDED.
7-27-10