Laura Edstrom-Smith v. Kass Shuler, P.A. , 680 F. App'x 813 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15940
Non-Argument Calendar
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D.C. Docket No. 9:16-cv-80341-JIC
LAURA EDSTROM-SMITH,
individually, and on behalf of others similarly situated,
Plaintiff-Appellant,
versus
KASS SHULER, P.A.,
a Florida professional service corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 21, 2017)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Laura Edstrom-Smith appeals the dismissal of her complaint that Kass
Shuler, P.A., included a false or misleading statement in a complaint to collect an
outstanding debt, in violation of the Fair Debt Collection Practices Act, see 15
U.S.C. § 1692e. The district court dismissed with prejudice Edstrom-Smith’s
complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6). We affirm.
Shuler, as counsel for Suncoast Credit Union, filed in a Florida court a
complaint against Edstrom-Smith for an amount owed on a loan. Between the
factual allegations and the prayer for relief, the state complaint contained the
following “Notice Under Fair Debt Collection Practices Act”:
Pursuant to Title 15 United States Code Section 1692, Plaintiff is
providing the following notice:
a) The amount of the debt is contained in this Complaint;
b) The Creditor to whom the debt is owed is the Plaintiff in this
lawsuit;
c) Unless this debt, or any portion thereof, is disputed within thirty
days after receipt of this notice, the debt will be assumed to be valid
by the Plaintiff;
d) If a consumer notifies the undersigned within the thirty day period
that the debt, or any portion thereof, is disputed, the undersigned will
obtain verification of the debt and a copy of such verification will be
mailed to such consumer;
e) Upon a consumer’s written request within the thirty-day period, the
undersigned will provide the consumer with the name and address of
the original creditor, if different from the current creditor.
Edstrom-Smith then filed this federal civil action and alleged that the notice
was “superfluous” and made the state complaint “confusing,” in violation of “15
U.S.C. § 1692e, generally, and specifically, § 1692e(10).” The notice, Edstrom-
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Smith alleged, led consumers to “belie[ve] that . . . they can simply notify the
Defendant that they dispute the debt and the Defendant must cease all collection
activity.” Edstrom-Smith also alleged that the notice “overshadow[ed] the
necessity of filing a response to the Complaint with the Court, thus paving the way
for Defendant to obtain a default judgment . . . [while] the consumer remains under
the mistaken belief that by disputing the debt, she needed do nothing more until
verification [of the debt] is received.”
We review de novo the dismissal of a complaint for failure to state a claim.
Vega v. McKay, 351 F.3d 1334, 1336 (11th Cir. 2003). We accept all allegations in
the complaint as true and construe them in the light most favorable to the plaintiff.
Bourff v. Rubin Lublin, LLC, 674 F.3d 1238, 1240 (11th Cir. 2012). Dismissal for
failure to state a claim is appropriate if the facts pleaded fail to state a claim for
relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The district court did not err by dismissing Edstrom-Smith’s complaint. To
violate the Debt Collection Act, the notice had to “tend to mislead the least
sophisticated consumer,” Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303
(11th Cir. 2014). Under that test, we “presume[] . . . [that the consumer]
possess[es] a rudimentary amount of information about the world and a willingness
to read . . . [the communication] with some care.” Id. (quoting LeBlanc v. Unifund
CCR Partners, 601 F.3d 1185, 1194 (11th Cir. 2010)). The notice described what
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actions Suncoast and Shuler would take in response to Edstrom-Smith’s conduct. If
she disputed the debt or inquired about its assignment, Shuler would provide a
copy of the verification of the debt and information about the original creditor. The
notice did not address the manner or timing of filing an answer to the state
complaint. And the notice did not “use . . . any false representation or deceptive
means to collect or attempt to collect any debt or to obtain information concerning”
Edstrom-Smith. See 15 U.S.C. § 1692e(10).
Edstrom-Smith argues that her federal complaint states a claim under the
Debt Collection Act in two ways, but both of her arguments fail. First, Edstrom-
Smith argues that adding the notice to the state complaint violates section 1692g,
but as the district court ruled, that argument is different from the “alleg[ation] in
her Complaint” that the notice was confusing under section 1692e. See Ochran v.
United States, 117 F.3d 495, 507 (11th Cir. 1997). And nothing in the Act
prohibited the inclusion of the notice in the state complaint. Second, Edstrom-
Smith argues that “the least sophisticated consumer could readily take the Notice
Language . . . [to mean] that failure to dispute the debt will result in the court
assuming the debt to be valid,” but we will not consider a theory of liability that
Edstrom-Smith raises for the first time on appeal, see Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331–32 (11th Cir. 2004). In any event, the notice
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states plainly that “the debt will be assumed to be valid by the Plaintiff,” not the
district court.
We AFFIRM the dismissal of Edstrom-Smith’s complaint.
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