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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11164
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-01627-EAK-TBM
ANDREW PARHAM,
Plaintiff-Appellant,
versus
SEATTLE SERVICE BUREAU, INC.,
a foreign profit corporation
d.b.a. National Service Bureau,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 28, 2016)
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Before HULL, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
Plaintiff Andrew Parham appeals the district court’s dismissal of his action
against defendant Seattle Service Bureau, Inc. (“Seattle Service”), a debt collector,
for claims alleged to arise under the Fair Debt Collection Practices Act (“FDCPA”)
and the Florida Consumer Collection Practices Act (“FCCPA”). The district court
determined that Parham’s complaint failed to state a claim under either the FDCPA
or the FCCPA because the alleged debt Seattle Service sought to collect did not
arise from a consensual “consumer” transaction but instead purportedly arose from
the negligent conduct of Parham’s sister in an automobile accident. The district
court concluded neither the FDCPA nor the FCCPA apply to the alleged tort debt
that Seattle Service sought to collect. After review of the record and briefs, we
affirm.
I. BACKGROUND
On January 10, 2013, Leahana Parham, the plaintiff’s sister, was involved in
a minor automobile collision with another motorist, Sheila Garrison. 1 Garrison’s
car was in front of Leahana’s car. Garrison began driving forward, but suddenly
1
We recount the facts from the allegations in the complaint, which we accept as true and
construe in the light most favorable to the plaintiff. Cinotto v. Delta Air Lines Inc., 674 F.3d
1285, 1291 (11th Cir. 2012).
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stopped. Due to Garrison’s sudden stop, Leahana’s car “bumped” the rear end of
Garrison’s car. The drivers exchanged insurance information.
Leahana’s brother Andrew Parham owned the car Leahana had been driving.
After the accident, Andrew reported the accident to his automobile insurance
carrier, Progressive. Progressive paid a claim of $298 for property damage to
Garrison’s vehicle.
In early November 2014, Andrew received a letter from Seattle Service
addressed to him and Leahana. The letter stated that Andrew and Leahana owed
$50,000 to State Farm Insurance Company for damage to its insured’s property,
without identifying what property was damaged. The record does not identify who
State Farm’s insured may have been.
About a week after Andrew received the letter, Seattle Service began calling
his home. Andrew’s mother answered the first call, during which a Seattle Service
representative warned that there was a judgment against Andrew and Leahana and
that their licenses and his automobile registration would be suspended if they did
not pay the claim.
When Andrew returned the call later that day, a Seattle Service
representative told him that the $50,000 claim was for bodily injury caused by the
January 10, 2013 accident. That is the date of Leahana’s accident with Garrison.
The representative said that if Andrew did not pay the money, he would forfeit his
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driver’s license and his automobile tag. That same day, Seattle Service called
Leahana and gave her a similar warning. On November 21, 2014, Andrew
received a second warning call from Seattle Service.
Parham alleged Seattle Service and State Farm Insurance Company never
provided him “an accounting” of the $50,000 that he and Leahana supposedly
owed from the January 10, 2013 automobile accident. The complaint alleges that:
(1) neither Seattle Service, State Farm, nor Garrison ever filed a lawsuit against
Andrew or Leahana and (2) no judgment has been recorded against them in the
county of their residence.
II. PROCEDURAL HISTORY
On July 10, 2015, Andrew Parham filed a complaint against Seattle Service
in federal district court. Parham asserted federal causes of action arising under the
FDCPA and state causes of action arising under the FCCPA and Florida’s civil
theft statute. Seattle Service thereafter filed a “Motion to Dismiss and/or Motion
for Judgment on the Pleadings.”
In a February 2, 2016 order, the district court dismissed Parham’s FDCPA
and FCCPA claims without prejudice and declined to exercise supplemental
jurisdiction over Parham’s remaining Florida civil theft claim. 2 As to the FDCPA
and FCCPA claims, the district court construed the complaint to allege that Seattle
2
The district court denied Seattle Service’s motion for judgment on the pleadings.
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Service “fabricated the existence of a debt that it claimed arose out of an
automobile accident.” The district court concluded that the complaint failed to
state a claim because any such debt, real or fabricated, did not arise out of a
consensual consumer transaction covered by either the FDCPA or the FCCPA.
The district court gave Parham an opportunity to amend his complaint, but
instructed that he needed to allege facts demonstrating that the alleged debt arose
as a result of a “consumer transaction” or was otherwise converted into a consumer
debt by some action of Seattle Service.
Parham did not file an amended complaint. In a March 11, 2016 order, the
district court dismissed the action. This appeal followed.3
III. DISCUSSION
A. FDCPA Claim
The FDCPA, codified at 15 U.S.C. §§ 1692-1692p, was passed “to eliminate
abusive debt collection practices by debt collectors” and provides consumers
remedies when debt collectors engage in such practices. 15 U.S.C. §§ 1692(e),
1692k.
The FDCPA regulates “debt collector[s]” that attempt to collect the kind of
debts covered by the statute. See id. § 1692a(6). The FDCPA specifically defines
those debts as “any obligation or alleged obligation of a consumer to pay money
3
We review de novo the district court’s grant of a motion to dismiss for failure to state a
claim. Cinotto v. Delta Air Lines Inc., 674 F.3d 1285, 1291 (11th Cir. 2012).
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arising out of a transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for personal, family, or
household purposes.” Id. § 1692a(5) (emphasis added). The statute thus regulates
only the collection of debts arising from consumer transactions. See Hawthorne v.
Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 1998).
The FDCPA specifies that the consumer debt sought to be collected need not
actually exist for the debt collector to be bound by the FDCPA’s requirements—
indeed, the statute applies to “any obligation or alleged obligation.” Id. However,
even an “alleged obligation” must purportedly arise out of a “transaction” where
“the subject of the transaction” is “primarily for personal, family, or household
purposes.” Id.
Parham argues that the debt Seattle Service sought to collect from him was a
debt he did not owe and even a debt that did not exist. In its motion to dismiss,
Seattle Service claimed that the debt was a “subrogation debt” arising from a tort
committed (presumably by Leahana Parham) in the January 10, 2013 automobile
accident. Parham contends that a claim by a debt collector against an individual
for a “debt not owed” qualifies as a consumer debt under both the FDCPA and the
FCCPA. Parham argues the district court erred in concluding otherwise and
dismissing his FDCPA and FCCPA claims against Seattle Service.
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Our decision in Hawthorne squarely controls the outcome in this case. Like
Andrew Parham’s sister, the plaintiff in Hawthorne was involved in an automobile
accident, allegedly resulting from the plaintiff’s negligence. 140 F.3d at 1369.
Like Seattle Service, a company in Hawthorne subsequently attempted to collect a
claim from the plaintiff, which the company alleged arose from the automobile
accident and was due to the plaintiff’s negligence. Id. And like Parham, the
plaintiff in Hawthorne filed an action against the company seeking relief under the
FDCPA. Id.
This Court determined that “the FDCPA may be triggered only when an
obligation to pay arises out of a specified ‘transaction’” within the meaning of the
statute. Id. at 1371. We noted that the word “‘transaction’ necessarily implies
some type of business dealing between parties” and referred to “consensual or
contractual arrangements, not damage obligations thrust upon one as a result of no
more than her own negligence.” Id. We explained that “the fact that [the
company] may have entered into a contract with the insurer for subrogation rights
does not change the fact that no contract, business, or consensual arrangement
between Hawthorne and the damaged party, its insurer, or [the company] exists.”
Id. Since the claim the company sought to collect was not a “specified
transaction,” we held that the FDCPA did not apply. Id. (quotation marks
omitted). As further support for our holding, we explained that the statute’s
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“language further limits application of the FDCPA to debts arising from consumer
transactions” and noted that the debt at issue “[did] not arise out of a consumer
transaction; it ar[ose] from a tort.”4 Id.
Here, it is undisputed that Seattle Service sought to collect an alleged debt
from Andrew and Leahana Parham that purportedly arose as a result of Leahana’s
negligence in the January 10, 2013 automobile accident, presumably the same
accident in which Leahana bumped Garrison’s car. If anything, the alleged debt
arose from a tort, not from a consensual, contractual, or consumer transaction
within the meaning of the FDCPA. Thus, the district court properly dismissed
Parham’s FDCPA claims.
B. FCCPA Claim
Our analysis fully applies to Parham’s FCCPA claims under Florida law as
well. The definition of “debt” in the FCCPA is identical to the definition of “debt”
in the FDCPA. Compare Fla. Stat. § 559.55(6), with 15 U.S.C. § 1692a(5). By its
own terms, the FCCPA only regulates debt collectors attempting to collect
consumer debts. See Fla. Stat. § 559.55(6). In addition, as to the application and
construction of the FCCPA, the FCCPA itself provides that “due consideration and
great weight shall be given to the interpretations of the Federal Trade Commission
and the federal courts relating to the federal Fair Debt Collection Practices Act.”
4
We also observed that the Federal Trade Commission’s “staff commentary on the
FDCPA support[ed] our understanding of the statute.” Id. at 1372 n.2.
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Id. § 559.77(5). Thus, Hawthorne controls our interpretation of the FCCPA with
equal force. Accordingly, the district court properly dismissed Parham’s FCCPA
claims as well.
C. Parham’s Remaining Arguments
Parham argues that, regardless of the type, if a debt not owed by virtue of its
nonexistence is deemed not to qualify as a consumer debt within the meaning of
the FDCPA or the FCCPA, then all a debt collector needs to do to avoid the reach
of these statutes is simply assert it is attempting to collect a debt arising out of a
subrogation or other such non-covered consumer transaction. Such an
interpretation of these statutes, Parham contends, would permit debt collectors to
attempt to collect fictitious subrogation debts, thereby turning the FDCPA or the
FCCPA into “‘How To Manual[s]’ for abusive and effective debt collection
practices.”
Without regard to these policy arguments, we must construe the FDCPA and
the FCCPA as written. Either Congress or the Florida Legislature could have
made these statutes apply to all debt collectors collecting every kind of debt. They
did not, however, and they instead limited these statutes to consumer debts as
described above. There may well be other statutory or common law remedies
available to individuals targeted by debt collectors seeking to collect purely
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fictitious subrogation debts. But unfortunately neither the FDCPA nor the FCCPA
provide those remedies.
For these reasons, the judgment of the district court is affirmed.
AFFIRMED.
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