Sayyed v. Wolpoff & Abramson ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FARID M. SAYYED, 
Plaintiff-Appellant,
v.  No. 06-1458
WOLPOFF & ABRAMSON,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(8:05-cv-01104-PJM)
Argued: March 15, 2007
Decided: May 9, 2007
Before WILKINS, Chief Judge, and WILKINSON and
MOTZ, Circuit Judges.
Reversed and remanded by published opinion. Judge Wilkinson wrote
the opinion, in which Chief Judge Wilkins and Judge Motz joined.
COUNSEL
ARGUED: Ernest Paul Francis, Arlington, Virginia, for Appellant.
Ronald Scott Canter, WOLPOFF & ABRAMSON, Rockville, Mary-
land, for Appellee. ON BRIEF: Anne S. Cruz, WOLPOFF &
ABRAMSON, Rockville, Maryland, for Appellee.
2 SAYYED v. WOLPOFF & ABRAMSON
OPINION
WILKINSON, Circuit Judge:
This case involves claims under the Fair Debt Collection Practices
Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (2000). Farid Sayyed sued
the law firm Wolpoff & Abramson ("W&A") under the FDCPA for
actions taken in W&A’s effort to collect a debt from Sayyed by
means of a suit in Maryland state court. Defendant W&A moved to
dismiss for failure to state a claim, arguing that it enjoyed common
law litigation immunity from the FDCPA. The district court agreed
and dismissed Sayyed’s suit on the ground that absolute immunity
protected W&A. Sayyed appealed. Because the FDCPA, not common
law, must govern the disposition of this action, we reverse the district
court’s judgment and remand the case for further consideration.
I.
W&A is a law firm regularly practicing in the field of consumer
debt collection. Discover Bank, the issuer of the Discover Credit
Card, retained W&A to pursue an action against Sayyed for defaulted
credit card debt. On behalf of Discover Bank, W&A sued Sayyed in
Maryland state court to collect the balance due.
After W&A moved for summary judgment in the state collection
suit, Sayyed sued W&A in federal court, alleging that W&A violated
the FDCPA in pursuing the state action.1 Sayyed alleged FDCPA vio-
lations arising from W&A’s interrogatories to Sayyed and its sum-
mary judgment motion.
Sayyed alleged that the interrogatories failed to state that they were
a communication from a debt collector, in violation of 15 U.S.C.
§ 1692e(11). He also alleged that the interrogatories violated
§ 1692e(10)’s prohibition against false representations and § 1692f’s
prohibition against unfair or unconscionable collection attempts by
making three false statements: (1) that the trial date for the Maryland
1
As to the outcome of the state collection suit, W&A states that, after
Sayyed filed a counterclaim in state court, Discover Bank obtained new
counsel, from whom W&A has learned that the case ultimately settled.
SAYYED v. WOLPOFF & ABRAMSON 3
case was June 11, 2004; (2) that Sayyed had to state his grounds of
refusal to answer the interrogatories under oath; and (3) that the state
court could enter a default judgment against Sayyed if he did not mail
answers to W&A within thirty days after the date of service.
Sayyed alleged that W&A’s motion for summary judgment contra-
vened the FDCPA in that its false statement of the amount of Say-
yed’s debt violated § 1692e(2)(A), and its statement that Sayyed was
liable for attorney’s fees of fifteen percent of the principal balance
violated § 1692e(2)(B) as a false representation and § 1692f(1) as the
collection of an amount not permitted by law or expressly authorized
by the agreement creating the debt.
W&A filed a motion to dismiss under Federal Rule of Civil Proce-
dure 12(b)(6). W&A argued, first, that attorneys enjoy absolute com-
mon law immunity from claims based on statements made in the
course of judicial proceedings. W&A also contended that, even if it
was not entitled to immunity, the interrogatories and summary judg-
ment motion were served upon Sayyed’s counsel rather than Sayyed,
and thus could not give rise to violations of the FDCPA. Finally,
W&A argued that Sayyed’s claims relating to the summary judgment
motion should be dismissed because the allegedly false statements
were based upon information furnished to W&A by its client, Dis-
cover Bank, and W&A as counsel had the right to rely upon that
information.
The District Court orally granted W&A’s motion to dismiss. It con-
cluded that W&A enjoyed absolute immunity from the FDCPA for its
interrogatories and summary judgment motion. The district court
spoke at times in terms of "witness immunity," although W&A’s
interrogatories involved no witnesses. But the court also spoke more
broadly in terms of litigation immunity, "a common law immunity
from claims based on statements made in the course of judicial pro-
ceedings." J.A. at 78. It finally held that "absolute immunity obtains
with regard to these statements." Id. at 82. The court alternatively dis-
missed Sayyed’s claims relating to the summary judgment motion
because of W&A’s reliance on the statements of its client, Discover
Bank. Finally, the court determined that attorney’s fees equal to fif-
teen percent of the debt represented a per se reasonable fee.
4 SAYYED v. WOLPOFF & ABRAMSON
Sayyed appeals. We review a dismissal for failure to state a claim
de novo. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993).
II.
W&A argues that it cannot be subject to claims under the FDCPA
because an absolute common law immunity attaches to "any state-
ments made during the course of judicial proceedings." In W&A’s
view, the allegedly false statements in W&A’s interrogatories and
summary judgment motion thus cannot constitute FDCPA violations.
We cannot accept this conclusion. The FDCPA clearly defines the
parties and activities it regulates. The Act applies to law firms that
constitute debt collectors, even where their debt-collecting activity is
litigation. W&A asks that we disregard the statutory text in order to
imply some sort of common law litigation immunity. We decline to
do so. Rather, "where, as here, the statute’s language is plain, the sole
function of the courts is to enforce it according to its terms." United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (internal
quotation marks omitted).
A.
The statutory text makes clear that there is no blanket common law
litigation immunity from the requirements of the FDCPA. First and
foremost, the plain meaning of the Act’s definition of "debt collector"
encompasses attorneys. Section 1692a(6) of the FDCPA provides:
The term "debt collector" means any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another.
The provision goes on to state six specific exceptions to this defini-
tion, none of which cover attorneys, much less attorneys specifically
engaged in litigation. The exceptions cover (1) any officer or
SAYYED v. WOLPOFF & ABRAMSON 5
employee of a creditor collecting debts in the name of the creditor;
(2) any person whose principal business is not collecting debts but
who is collecting debts for another person, both of whom are related
by common ownership or affiliated by corporate control; (3) any offi-
cer or employee of the United States or any state performing official
duties; (4) any person attempting to serve legal process in connection
with the judicial enforcement of a debt; (5) any nonprofit organization
performing bona fide consumer credit counseling at the request of
consumers; and (6) any person whose activity is "incidental to a bona
fide fiduciary obligation or a bona fide escrow arrangement; concerns
a debt which was originated by such person; concerns a debt which
was not in default at the time it was obtained by such person; or con-
cerns a debt obtained by such person as a secured party in a commer-
cial credit transaction involving the creditor." See 15 U.S.C.
§ 1692a(6). If Congress had wished to exempt the litigating activities
of attorneys from the definition of "debt collector," it could easily
have drafted a seventh exception to this effect.
W&A does not dispute that it is a law firm regularly practicing in
the field of consumer debt collection, and that it fails to fit into any
of the statutorily provided exceptions. Therefore, according to the
plain text of the statute, W&A is a debt collector subject to the
FDCPA’s provisions.
The Supreme Court has expressly confirmed this reading of the
FDCPA. Heintz v. Jenkins, 514 U.S. 291, 293 (1995), involved a col-
lection suit brought by a bank’s law firm against Darlene Jenkins to
recover on an automobile loan. George Heintz, a lawyer with the
bank’s firm, sent Jenkins’s lawyer a letter in an attempt to settle the
suit. Id. The letter gave what Jenkins claimed was a false statement
of the amount she owed the bank. Id. She sued Heintz and his firm
under the FDCPA, and the district court dismissed her suit for failure
to state a claim, on the ground that the FDCPA did not apply to liti-
gating lawyers. Id. at 294.
The Seventh Circuit reversed, 25 F.3d 536, 540 (7th Cir. 1994),
and the Supreme Court upheld its view that "[t]he Act does apply to
lawyers engaged in litigation." 514 U.S. at 294. The Court grounded
this conclusion in the FDCPA’s definition of "debt collector" at
§ 1692a(6). The Court recognized that Heintz and his firm fell under
6 SAYYED v. WOLPOFF & ABRAMSON
the § 1692a(6) definition: "In ordinary English, a lawyer who regu-
larly tries to obtain payment of consumer debts through legal proceed-
ings is a lawyer who regularly ‘attempts’ to ‘collect’ those consumer
debts." Id.
The Court further recognized that an earlier version of § 1692(a)(6)
had provided an express exception for lawyers, which stated that the
term "debt collector" did not include "any attorney-at-law collecting
a debt as an attorney on behalf of and in the name of a client." Id. (cit-
ing Pub. L. 95-109, § 803(6)(F), 91 Stat. 874, 875 (1977)). In 1986,
however, Congress repealed the attorney exemption. Id. (citing Pub.
L. No. 99-361, 100 Stat. 768 (1986) ("[A]ny attorney who collects
debts on behalf of a client shall be subject to the provisions of [the
Act].")). The Court recognized the significance of Congress having
repealed the attorney exemption "in its entirety, without creating a
narrower, litigation-related exemption to fill the void." Id. at 294-95.
The Court declined to imply such a litigation-related exception, hold-
ing that such an exception "falls outside the range of reasonable inter-
pretations of the Act’s express language." Id. at 298. Thus the Court
confirmed that there is no implied exemption to the statute’s defini-
tion of debt collector: as is clear from its face, the FDCPA "applies
to the litigating activities of lawyers." Id. at 294.
After Heintz, Congress passed an amendment to the statute that
provides further confirmation that the FDCPA applies to conduct like
that at issue here. It amended § 1692e(11), which prohibits communi-
cations that fail to disclose that they are from a debt collector, to state
that the provision "shall not apply to a formal pleading made in con-
nection with a legal action." 15 U.S.C. § 1692e(11), as amended Pub.
L. 104-208, § 2305(A), 110 Stat. 3009, 3009-425 (1996). This provi-
sion expressly exempts formal pleadings from a sole, particularized
requirement of the FDCPA: the requirement that all communications
state that they come from a debt collector.
If W&A were correct that conduct in the course of litigation, or
even formal pleadings more specifically, were entirely exempt from
the FDCPA, § 1692e(11)’s express exemption of formal pleadings
would be unnecessary. "[C]ourts should disfavor interpretations of
statutes that render language superfluous." Conn. Nat’l Bank v. Ger-
main, 503 U.S. 249, 253 (1992). The amendment by its terms in fact
SAYYED v. WOLPOFF & ABRAMSON 7
suggests that all litigation activities, including formal pleadings, are
subject to the FDCPA, except to the limited extent that Congress
exempted formal pleadings from the particular requirements of
§ 1692e(11). Furthermore, because Congress is presumed to act with
awareness of a judicial interpretation of a statute, the fact that the
amendment occurred after Heintz further indicates that Congress was
aware of the Court’s interpretation of the FDCPA and accepted it,
except for the narrow exemption it provided for formal pleadings
from the requirements of § 1692e(11). See, e.g., Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-82 (1982)
(Congress presumed to be aware of prior judicial interpretation in
amending statute). Thus, under multiple precepts of statutory interpre-
tation, Congress’ amendment of § 1692e(11) provides clear evidence
that litigation activity is subject to the FDCPA, except to the limited
extent that Congress exempted formal pleadings from the require-
ments of that particular subsection.
Our view that common law immunities cannot trump the Act’s
clear application to the litigating activities of attorneys is fortified by
its bona fide error defense provision. Section 1692k(c) provides:
A debt collector may not be held liable in any action
brought under this subchapter if the debt collector shows by
a preponderance of evidence that the violation was not
intentional and resulted from a bona fide error notwithstand-
ing the maintenance of procedures reasonably adapted to
avoid any such error.
15 U.S.C. § 1692k(c). This provision offers a kind of qualified immu-
nity to debt collectors, protecting actions which otherwise are covered
by the statute but arose from bona fide error and were not intentional
violations. Such a provision supplies an additional argument against
implying immunities as to which the statute is silent: Congress
addressed the issue of immunity expressly and extended it only as far
as § 1692k(c) provides. To insist that some unarticulated, common
law immunity survived the creation of the FDCPA would be to fail
to give effect to the scope of the immunity articulated in the text.
What we hold is nothing new. Even before the Supreme Court
decided Heintz, we stated that, under the plain meaning of the
8 SAYYED v. WOLPOFF & ABRAMSON
FDCPA, a litigating attorney fell under the statute’s definition of
"debt collector." See Scott v. Jones, 964 F.2d 314, 318 (4th Cir.
1992). We rejected the contention that attorney Jones was "engaged
in the practice of law, not the collection of debts" as an "artificial dis-
tinction:" "No matter what name is applied to Jones’ activities, it is
clear that the ‘principal purpose’ of his work was the collection of
debt." Id. at 316. After Heintz, this court has recognized that "it is
well-established that lawyers can be ‘debt collectors’ even if conduct-
ing litigation." Wilson v. Draper & Goldberg, 443 F.3d 373, 378 (4th
Cir. 2006) (citing Heintz, 514 U.S. at 299) (emphasis added); see also
Carroll v. Wolpoff & Abramson, 961 F.2d 459, 461 (4th Cir. 1992)
(applying FDCPA to law firm’s post-litigation follow-up letter to
debtor).
All circuits to consider the issue, except for the Eleventh, have rec-
ognized the general principle that the FDCPA applies to the litigation
activities of attorneys who qualify as debt collectors under the statu-
tory definition. See, e.g., Goldman v. Cohen, 445 F.3d 152, 155 (2nd
Cir. 2006); Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d
432, 446 (6th Cir. 2006); Piper v. Portnoff Law Assocs., Ltd., 396
F.3d 227, 232 (3d Cir. 2005); Thomas v. Law Firm of Simpson &
Cybak, 392 F.3d 914, 917 (7th Cir. 2004) (en banc); Johnson v. Rid-
dle, 305 F.3d 1107, 1117 (10th Cir. 2002); Addison v. Braud, 105
F.3d 223, 224 n.1 (5th Cir. 1997); but see Vega v. McKay, 351 F.3d
1334, 1337 (11th Cir. 2003) (relying on superseded FTC commentary
to hold complaint did not constitute initial communication under
FDCPA).
B.
Despite all this, W&A makes a number of specific arguments that
the district court was correct to dismiss this case on the basis of
immunity for the firm’s litigating activities. While it should be clear
from the statute that these arguments are foreclosed, we shall never-
theless address them briefly.
First, W&A argues that FDCPA liability cannot attach to commu-
nications made by a debt collection attorney to a debtor’s counsel,
rather than to the debtor. But the statute defines "communication"
broadly as "the conveying of information regarding a debt directly or
SAYYED v. WOLPOFF & ABRAMSON 9
indirectly to any person through any medium." 15 U.S.C. § 1692a(2).
A communication to debtor’s counsel, regarding a debt collection
lawsuit in which counsel is representing the debtor, plainly qualifies
as an indirect communication to the debtor. Furthermore, in a section
entitled "Communication in connection with debt collection," the stat-
ute provides that, if the debt collector knows the debtor is represented
by an attorney in connection with the debt, and if the debt collector
can readily ascertain the attorney’s contact information, the debt col-
lector may not communicate directly with the debtor, unless the debt-
or’s attorney does not respond to a communication in a reasonable
amount of time. See id. § 1692c(a)(2). This provision is but another
indication that communications with a debtor’s attorney with regard
to the debt are "communications" as defined and regulated by the
FDCPA — and that such communications must in fact be directed to
the attorney under the terms of the statute.
If the statute left any room for doubt about this issue, Heintz
resolved it. Heintz itself involved a communication from a debt col-
lection attorney to debtor Darlene Jenkins’ counsel, not to Jenkins
herself. See 514 U.S. at 293. The Supreme Court held that Jenkins had
a cause of action under the FDCPA on the basis of statements con-
tained within the letter to her counsel. See id. at 294. Thus, plainly,
the FDCPA covers communications to a debtor’s attorney.
Second, W&A argues by analogy to case law under 42 U.S.C.
§ 1983. It contends that, because the Supreme Court has recognized
common law immunities under 42 U.S.C. § 1983, some such immu-
nity must necessarily exist under the FDCPA. This argument fails as
well. The cases cited by W&A involve the preservation of state com-
mon law immunities for public officials under § 1983. W&A identi-
fies no state common law litigation immunity that would protect the
actions of a private attorney in this case.
A bigger flaw in W&A’s argument is its faulty premise: in analo-
gizing to § 1983, W&A overlooks the FDCPA’s statutory framework.
The FDCPA in form and structure is a far cry from a Reconstruction-
era civil rights statute. It is instead a "comprehensive and reticulated"
statutory scheme, involving clear definitions, precise requirements,
and particularized remedies. Cf. Nachman Corp. v. Pension Benefit
Guar. Corp., 446 U.S. 359, 361 (1980) (describing ERISA). The stat-
10 SAYYED v. WOLPOFF & ABRAMSON
ute contains more words in its first section, the "Congressional find-
ings and declaration of purpose," than the entirety of § 1983. It is
clear that Congress meant not to incorporate common law immunities
in this area, such as they may be, but to overwrite them, defining the
scope of liability and immunity entirely by statute. Where the intent
of Congress is so clearly expressed in the text of one statute (the
FDCPA), it may not be turned aside by comparison to an entirely dif-
ferent statute (Section 1983). See, e.g., Nix v. O’Malley, 160 F.3d 343,
352-53 (6th Cir. 1998) (no common law "attorney immunity" under
federal wiretap statute); Steffes v. Stepan Co., 144 F.3d 1070, 1074-75
(7th Cir. 1998) (no common law litigation immunity under Title VII
and ADA); Blevins v. Hudson & Keyse, Inc., 395 F. Supp. 2d 662,
667-68 (S.D. Ohio 2004) (no common law litigation immunity under
FDCPA); Irwin v. Mascott, 112 F. Supp. 2d 937, 963 (N.D. Cal.
2000) (same).
Ultimately, W&A’s specific arguments are manifestations of the
same general claim: that it simply cannot be the case that the FDCPA
covers litigation, the entire purpose of which is to arrive at the truth
through the clash of the adversarial process. This argument may have
some intuitive appeal, but the fact that an interpretation may seem
appealing does not mean that it is correct. While the district court
stated, "I cannot see how commercial litigation could proceed" if the
statements at issue in this case were subject to the FDCPA, the
FDCPA does not apply to commercial litigation: it covers debt collec-
tion where "debt" is defined as an obligation of a "consumer," defined
as a "natural person," for "personal, family, or household purposes."
15 U.S.C. § 1692a(3), (5). And, in any event, "[i]n the ordinary case,
absent any indication that doing so would frustrate Congress’s clear
intention or yield patent absurdity, our obligation is to apply the stat-
ute as Congress wrote it." Hubbard v. United States, 514 U.S. 695,
703 (1995) (internal quotation marks omitted). Operating from "the
understanding that Congress says in a statute what it means and
means in a statute what it says there," Hartford Underwriters Ins. Co.
v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000), we reverse the
district court’s dismissal of the action.
III.
For the sake of clarity on remand, we must address some final
arguments advanced by W&A.
SAYYED v. WOLPOFF & ABRAMSON 11
W&A argues that, even if no absolute litigation immunity applies,
Sayyed’s claims arising from W&A’s summary judgment motion
must still be dismissed due to "witness immunity." W&A argues that
Sayyed’s allegations fail to state a claim, because they take issue with
statements made by witnesses in affidavits attached to the summary
judgment motion. In support of this proposition, W&A invokes a line
of cases discussing the scope of immunity for witnesses under the
common law. See, e.g., Malley v. Briggs, 475 U.S. 335, 340 (1986)
(finding no common law immunity for a "complaining witness");
Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983)(finding common law
immunity for trial witnesses against defamation suits).
We need not explore the scope of witness immunity because, con-
trary to W&A’s contention, Sayyed’s suit does not raise this issue.
W&A claims that "Sayyed’s suit asserts W&A is liable for purported
false statements contained in affidavits signed by Discover and
W&A." This is not the case. Sayyed’s complaint alleges that the sum-
mary judgment motion itself contained false statements. Sayyed
claims that the summary judgment motion (1) falsely represented the
amount of Sayyed’s debt, in violation of § 1692e(2)(A); (2) sought
attorney’s fees not expressly authorized by the credit card agreement
or permitted by law, in violation of § 1692f(1); and (3) in seeking
unauthorized attorney’s fees, falsely represented the compensation
which the debt collector could lawfully receive, in violation of
§ 1692e(2)(B).
The summary judgment motion contained these statements. The
affidavits attached to the motion repeated these statements: the affida-
vit of a Discover Bank account manager stated the amount of Say-
yed’s debt and asserted that Sayyed was liable for attorney’s fees "as
allowed by the credit card agreement," while the affidavit of W&A
attorney Ronald S. Canter asserted that W&A’s agreement with Dis-
cover Bank allowed it to seek fees of fifteen percent. J.A. at 30. But
Sayyed is not seeking to hold W&A liable for the affidavits; his cause
of action is based upon the summary judgment motion itself. Com-
pare Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432,
444 (6th Cir. 2006) (law firm as complaining witness enjoyed no wit-
ness immunity from FDCPA for affidavit commencing garnishment
proceeding). For reasons we have discussed at length, the motion is
subject to the provisions of FDCPA under which Sayyed seeks relief.
12 SAYYED v. WOLPOFF & ABRAMSON
We express no opinion on whether witness immunity would apply to
affidavits executed by a debt collector, because that issue is not raised
by this case.
In the alternative, W&A argues that it should not be held liable for
the statements in the summary judgment motion, because it reason-
ably relied upon the affidavit of its client for those statements. The
district court agreed with W&A and noted this circumstance as an
alternative ground for dismissing Sayyed’s claims relating to the sum-
mary judgment motion. The court stated, "[T]he fact that the lawyer
. . . relies on the client’s representation and then makes the statement
in my view would be another reason why the lawyer could not be
individually liable under the act." J.A. at 82-83.
In this, the district court was in error. The district court treated
W&A’s alleged reliance as another reason to dismiss for failure to
state a claim, but its proper role is as a defense against legally cogni-
zable claims under the FDCPA. It is uncontestable that the FDCPA
creates a cause of action against attorneys who act as debt collectors
for their false statements about the debt. The Act also provides the
exclusive method of considering whether the attorney’s false state-
ments were the product of reasonable reliance upon another party: the
bona fide error defense of § 1692k(c). Thus, for example, in Heintz
v. Jenkins, the circuit court reversed the district court’s dismissal for
failure to state a claim. See Jenkins v. Heintz, 25 F.3d 536, 540 (7th
Cir. 1994), aff’d, 514 U.S. 291 (1995). On remand, the district court
applied the bona fide error defense of § 1692k(c) and granted sum-
mary judgment to attorney Heintz, and the Seventh Circuit affirmed.
See Jenkins v. Heintz, 1996 WL 535167 (N.D. Ill. 1996), aff’d, 124
F.3d 824 (7th Cir. 1997).
On remand, W&A may of course (1) contend that there were no
statutory violations, or (2) avail itself of the § 1692k(c) defense by
showing by a preponderance of the evidence that any violations were
not intentional and "resulted from a bona fide error notwithstanding
the maintenance of procedures reasonably adapted to avoid any such
error." 15 U.S.C. § 1692k(c). W&A’s reliance on its client may well
be relevant to that inquiry. But the district court erred in dismissing
Sayyed’s claims outright on the basis of this concern. The statutory
SAYYED v. WOLPOFF & ABRAMSON 13
framework establishes that the proper place for the inquiry is not at
the Rule 12(b)(6) stage.2
IV.
The FDCPA aims "to eliminate abusive debt collection practices by
debt collectors, to insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively disad-
vantaged, and to promote consistent State action to protect consumers
against debt collection abuses." 15 U.S.C. § 1692(e). Adopting the
sweeping immunities urged by appellee would stop the statute in its
tracks. We must therefore reverse the district court and remand so that
the case may be decided in accordance with the statutory framework
that Congress has set forth.
REVERSED AND REMANDED
2
In a similar vein, the district court erred in dismissing two of Sayyed’s
claims on grounds that were not briefed by the litigants or fully
addressed by the court. First, the district court dismissed Sayyed’s claim
under § 1692e(11) that the interrogatories failed to disclose that they
were from a debt collector, on the ground that the interrogatories fell into
§ 1692e(11)’s exemption for a "formal pleading made in connection with
a legal action." Second, the district court dismissed Sayyed’s claim under
§ 1692f(1) on the ground that attorney’s fees of fifteen percent were per
se reasonable. At the Rule 12(b)(6) stage, these issues had not been fully
briefed by the parties; indeed, W&A, in asserting both grounds in its
motion to dismiss, cited no legal authority for either. Moreover, the dis-
trict court’s rulings on these issues were secondary to its holding that all
of the defendant’s activity was protected by common law immunity. See
J.A. at 83 ("But in any event, it’s still all protected by the absolute[ ]
immunity that exists in connection with these papers filed in this case.").
Now that it is clear that no such immunity exists, the application of spe-
cific FDCPA provisions may be thoroughly addressed below with the aid
of briefing by the parties. For these reasons, we express no opinion upon
these issues and remand for further consideration.