Solomon v. HSBC Mortgage Corp. , 395 F. App'x 494 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
August 6, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
GARRY L. SOLOMON,
Plaintiff-Appellant,
v. No. 09-6293
(D.C. No. 5:09-CV-00200-C)
HSBC MORTGAGE CORPORATION (W.D. Okla.)
(USA), d/b/a HSBC Bank USA,
as Trustee; BAER & TIMBERLAKE
P.C.; AMERICA’S SERVICING
COMPANY, a/k/a ASC Recovery
Systems,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.
Garry L. Solomon appeals the district court’s dismissal of his complaint
as time-barred under the one-year statute of limitations applicable to the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
For the reasons that follow, we affirm the judgment of the district court in part
and reverse in part.
I.
In his initial complaint, filed February 20, 2009, Mr. Solomon alleged that
defendants HSBC Mortgage Corporation (HSBC), America’s Servicing Company
(ASC), and Baer & Timberlake, P.C., were liable to him for their attempts to
collect a debt related to his home mortgage. According to the complaint,
defendants provided him with conflicting information on the amount owed. And
after he requested debt validation information as a step in bringing his account
current, HSBC and ASC, represented by Baer & Timberlake, continued
debt-collection activities by initiating a foreclosure action in state court. In
foreclosure proceedings, defendants supplied him with discrepant reinstatement
figures. Further, Mr. Solomon alleged, defendants delayed resolution of the
matter in order to increase his interest charges and litigation costs.
Mr. Solomon’s lawsuit asserted entitlement to damages under the FDCPA
and state-law theories of negligence, infliction of emotional distress, unfair trade
practices, fraud, breach of the implied covenant of good faith and fair dealing,
unjust enrichment, and breach of contract. The sole basis for federal jurisdiction
was the FDCPA, which was enacted “to eliminate abusive debt collection
practices, to ensure that debt collectors who abstain from such practices are not
competitively disadvantaged, and to promote consistent state action to protect
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consumers.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA,
130 S. Ct. 1605, 1608 (2010) (citing 15 U.S.C. § 1692(e)). “The Act regulates
interactions between consumer debtors and ‘debt collector[s],’ defined to include
any person who ‘regularly collects . . . debts owed or due or asserted to be owed
or due another.’” Id. (alteration in original) (quoting §§ 1692a(5), (6)).
Defendants HSBC and ASC moved for dismissal of all claims. With regard
to the FDCPA claim, they alleged that they are not debt collectors under
§ 1692a(6) and therefore not subject to the provisions of the Act. They
characterized themselves as creditors or mortgage servicing companies. See
Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (“The legislative
history of section 1692a(6) indicates conclusively that a debt collector does not
include the consumer’s creditors, a mortgage servicing company, or an assignee
of a debt, as long as the debt was not in default at the time it was assigned.”). In
addition, HSBC and ACS argued that Mr. Solomon’s FDCPA claim was invalid
because he had not sought verification of the debt within thirty days of the
creditors’ notice of arrearage, as required by 15 U.S.C. § 1692g(b). 1
1
In pertinent part, § 1692g(b) provides:
If the consumer notifies the debt collector in writing within the
thirty-day period . . . that the debt, or any portion thereof, is
disputed, . . . the debt collector shall cease collection of the debt, or
any disputed portion thereof, until the debt collector obtains
verification of the debt . . . and a copy of such verification . . . is
(continued...)
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Focusing on the FDCPA claim, the district court determined that the
complaint failed to allege specific facts establishing HSBC and ACS as debt
collectors with liability under the FDCPA. In addition, it found a lack of clarity
in the allegations concerning Mr. Solomon’s request for verification of the debt.
The district court dismissed the complaint with leave to amend to cure the
identified defects.
Mr. Solomon filed an amended complaint asserting the same causes of
action, but elaborating on the underlying factual situation. The amended
complaint featured an allegation that ASC sent him a “letter dated January 21,
2008,” which was “the first notice . . . that he was in default on his account.”
Aplt. App. at 86. According to the amended filing, ASC “characterized itself as a
bona fide ‘debt collector,’” id. at 87, but its letter violated FDCPA disclosure
requirements, id. at 86-87. The amended complaint also alleged that defendants
continued to violate the FDCPA after January 21, 2008, by providing erroneous
account information, failing to furnish debt validation, continuing collection
1
(...continued)
mailed to the consumer by the debt collector. Collection activities
and communications that do not otherwise violate this subchapter
may continue during the 30-day period . . . unless the consumer has
notified the debt collector in writing that the debt, or any portion of
the debt, is disputed . . . .
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activities during the thirty-day period after his request for debt validation, and
being obstructive in foreclosure discovery proceedings.
The defendant law firm, Baer & Timberlake, P.C., filed a motion to dismiss
the amended complaint. Among other things, it argued that the FDCPA claim was
time-barred under 15 U.S.C. § 1692k(d) because the complaint was filed more
than one year after January 21, 2008, the date Mr. Solomon admittedly received
his first notice of delinquency. In a separate motion, HSBC and ASC continued
to maintain that they do not fall within the FDCPA definition of debt collector.
In response to the dismissal motions, Mr. Solomon specifically asserted
that HSBC and ASC are debt collectors as defined by the FDCPA. His primary
argument, however, was that defendants committed additional violations of the
FDCPA within the statute of limitations.
The district court determined that Mr. Solomon’s FDCPA cause of action
accrued upon the January 21 mailing date of the letter and was therefore
time-barred. Concerning Mr. Solomon’s allegations of FDCPA violations within
the one-year period before he filed his complaint, the district court concluded that
there was no legal support for a “continuing violation” theory. Aplt. App.
at 170-71. Further, Mr. Solomon would not be “permitted to revive this claim
through amendment,” in that his “own allegations . . . set forth the operative
dates, making the bar by the limitations period apparent.” Id. at 171. In the
absence of a valid federal claim, the district court declined to exercise
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supplemental jurisdiction over the state claims. Mr. Solomon appeals the district
court’s order of dismissal.
II.
On appeal, Mr. Solomon changes his approach to the issue of whether ASC
has debt-collector status. He also reasserts his argument that defendants
continued to violate the FDCPA after January 21, 2008. “The legal sufficiency of
a complaint is a question of law, and a Rule 12(b)(6) dismissal is reviewed de
novo. Courts must evaluate whether the complaint contains enough facts to state
a claim to relief that is plausible on its face.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (citations and quotation marks omitted). This court
“accept[s] as true all well-pleaded factual allegations and views these allegations
in the light most favorable to the plaintiff.” Id. (quotation marks and alteration
omitted). Although the statute of limitations is an affirmative defense, it may be
resolved on a Rule 12(b)(6) motion to dismiss “when the dates given in the
complaint make clear that the right sued upon has been extinguished.” Aldrich v.
McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980).
Mr. Solomon’s modified view of ASC’s role is based on the premise that
“[if] ASC is not a debt collector, then its January 21st letter was not within the
purview of the FDCPA and therefore the statute of limitations issue would be
moot.” Reply Br. at 7. Mr. Solomon argues that the district court should have
recognized the parties’ dispute over whether ASC qualified as a debt collector and
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allowed the case to go forward. His argument, however, ignores a well-settled
rule: a court should “restrict itself to looking at the complaint” when considering
a motion to dismiss under Rule 12(b)(6). Casanova, 595 F.3d at 1125. It is error
to consider and treat as true an assertion made in a defendant’s answer. See id.In ruling on the dismissal motion, the district court correctly confined its analysis
to the face of the amended complaint.
“‘An action to enforce any liability created by [the FDCPA] may be
brought . . . within one year from the date on which the violation occurs.’”
Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002) (first alteration in
original) (quoting 15 U.S.C. § 1692k(d)). And the complaint makes it clear that
the statute of limitations bars any FDCPA claim arising from deficiencies in the
January 21, 2008, letter.
Mr. Solomon’s next argument, however, has a more solid basis. He asserts
that the entire amended complaint should not have been dismissed simply because
one allegedly wrongful act occurred outside of the limitation period. The
FDCPA’s comprehensive scheme makes many debt-collecting maneuvers
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actionable. 2 Thus, separate communications can create separate causes of action
arising from collection of a single debt.
For statute-of-limitations purposes, discrete violations of the FDCPA
should be analyzed on an individual basis. 3 Mr. Solomon’s complaint may be
read to allege at least three kinds of violations within the one-year statutory
2
See 15 U.S.C. § 1692b (governing debt collector’s acquisition of location
information on the debtor); § 1692c (restricting communications with third parties
and debtors); § 1692d (prohibiting harassment, oppression, and abuse); § 1692e
(prohibiting false or misleading representations); § 1692f (prohibiting unfair or
unconscionable means of debt collection); § 1692g (requiring debt collector to
send consumer written notice of debt, along with specified information); § 1692h
(requiring application of payments in accordance with instructions of consumer
owing multiple debts); § 1692j (prohibiting use of deceptive forms).
3
This statement is in accord with the vast majority of federal cases that have
considered the issue. See, e.g., Purnell v. Arrow Fin. Servs., LLC, 303 F. App’x
297, 301-02 (6th Cir. 2008); Brandon v. Fin. Accounts Servs. Team, Inc.,
___ F. Supp. 2d ___, No. 3:09-CV-152, 2010 WL 1223919, at * (E.D. Tenn.
Mar. 24, 2010); Jones v. Baugher, 689 F. Supp. 2d 825, 829-30 (W.D. Va. 2010);
Ortiz v. Accounts Receivable Mgmt., Inc., No. 09-80124-CIV, 2010 WL 547910,
at *2 (S.D. Fla. Feb. 12, 2010); Puglisi v. Debt Recovery Solutions, LLC,
No. 08-CV-5024, 2010 WL 376628, at *3 (E.D.N.Y. Jan. 26, 2010); Ehrich v.
RJM Acquisitions LLC, No. 09 CIV. 2696 (BMC) (RER), 2009 WL 4545179,
at *2 (E.D.N.Y. Dec. 4, 2009); Craig v. Meyers, No. C-1-09-31, 2009 WL
3418685, at *4 (S.D. Ohio Oct. 19, 2009); McCorriston v. L.W.T., Inc.,
536 F. Supp. 2d 1268, 1272 (M.D. Fla. 2008). Any other rule would immunize
debt collectors from later wrongdoing.
The rule should not be confused, however, with a determination that
defendants’ collection activities amounted to a continuing violation, which
generally allows later claims to bring earlier actions within the statute of
limitations. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(in an employment discrimination case, contrasting a continuing-violation theory
used to “pull in” a time-barred act with allegations of a “discrete discriminatory
act [that] starts a new clock for filing charges alleging that act”).
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period: (1) falsely representing the amount of the debt or compensation for
collection of a debt, see 15 U.S.C. § 1692e(2)(A); (2) generally engaging in false,
deceptive, or misleading practices, see id., § 1692f; and (3) failing to provide debt
validation or to cease collection efforts within thirty days after he disputed the
debt, see § 1692g. On the face of the amended complaint, it is not at all evident
that these claims are barred by the statute of limitations.
III.
We have not evaluated the merits of Mr. Solomon’s claims or sorted
through allegations of liability as to each defendant. We decide only that the
district court improperly dismissed the entirety of Mr. Solomon’s case based on
statute-of-limitations grounds. We AFFIRM the judgment of the district court
with respect to any claim based on the contents of the January 21, 2008, letter
from ASC. We REVERSE and REMAND for further proceedings concerning the
remaining claims.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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