Catencamp, Joseph v. Cendant Time Share ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2030
JOSEPH CATENCAMP,
Plaintiff-Appellant,
v.
CENDANT TIMESHARE RESORT
GROUP—CONSUMER FINANCE, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-0318(E)—C.N. Clevert, Jr., Judge.
____________
ARGUED OCTOBER 20, 2006—DECIDED DECEMBER 14, 2006
____________
Before EASTERBROOK, Chief Judge, and BAUER and
EVANS, Circuit Judges.
EASTERBROOK, Chief Judge. Every “debt collector” must
comply with the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692-1692o. That term includes anyone who
regularly collects debts. See Heintz v. Jenkins, 514 U.S.
291 (1995); Thomas v. Simpson & Cybak, 392 F.3d 914(7th Cir. 2004) (en banc). But a “debt collector” is defined
as a third party that assists or acts as an agent for the
creditor; the term does not include the creditor itself.
15 U.S.C. §1692a(6). To this exception for a creditor act-
ing on its own behalf, §1692a(6) attaches a proviso: the
term “debt collector” nonetheless “includes any creditor
2 No. 06-2030
who, in the process of collecting his own debts, uses
any name other than his own which would indicate that a
third person is collecting or attempting to collect such
debts.”
Joseph Catencamp contends in this suit under the
FDCPA that his lender used such a ruse and therefore had
to comply with the Act. Catencamp purchased from
Fairfield Resorts, Inc., a timeshare interest in one of
Fairfield’s resorts. Shortly after Catencamp signed the
contract, Fairfield Resorts assigned his account to Cendant
Timeshare Resort Group—Consumer Finance, Inc., though
Catencamp did not learn this till later. When he fell
behind in payments, he received a dunning letter from
“Resort Financial Services” (which small type declared
to be “A Division of CTRG—Consumer Finance”). CTRG
Consumer Finance is itself not a distinct legal entity; it
is a division of Cendant, a fact that the letter did not
mention; one reason why the letter does not comply
with the Act (if the Act applies in the first place) is that
real names were not used. 15 U.S.C. §1692e(14). The letter
said that “Fairfield Communities, Inc. has referred your
account to us for collection.” The letter added that, if
Catencamp disputed the amount due, “the validity of
this debt will be verified in writing with the creditor and
a copy of such verification promptly mailed to you.” When
a letter proclaims, as this one did, that it is coming from
someone other than the creditor—the letter identified
Fairfield Communities as the creditor and promised to
obtain verification from Fairfield on demand—a debtor
naturally supposes himself to be in contact with a debt
collector. Yet the district court granted summary judg-
ment to Cendant, because the letter came from it—and
Cendant is, after all, Catencamp’s creditor.
If the communication had been on the letterhead of
“Cendant Timeshare Resort Group—Consumer Finance,
Inc.”, then the district court would have a point. On the
No. 06-2030 3
one hand, it would be from the creditor in its own name.
On the other, it would falsely identify someone else
(Fairfield) as the creditor and promise to verify the debt
with Fairfield. That would confuse a reasonable recipient,
but the Act’s anti-confusion rule applies only to debt
collectors, which Cendant is not. Cendant did not, how-
ever, communicate with Catencamp in its own name. It
used a trade name, Resort Financial Services, that
Catencamp had never encountered before, and appended
another name, CTRG—Consumer Finance, that also was
novel to Catencamp. It is hard to see why recipients
should be expected to know that “Resort Financial Ser-
vices” and “CTRG—Consumer Finance” are the same as
“Cendant Timeshare Resort Group—Consumer Finance,
Inc.” when the word “Cendant” does not appear in the
letter and the document loudly proclaims that Fairfield
Communities is the creditor.
Maybe a sophisticated person could have guessed that
“CTRG” is an acronym for “Cendant Timeshare Resort
Group”. The Act does not require, however, either sophisti-
cation or guesswork. Courts must analyze debt-collection
communications from the perspective of unsophisticated
recipients. See Gammon v. GC Services Limited Partner-
ship, 27 F.3d 1254 (7th Cir. 1994). The effect of a poten-
tially misleading acronym is the subject of Maguire v.
Citicorp Retail Services, Inc., 147 F.3d 232 (2d Cir. 1998).
Citicorp Retail Services, the creditor, sent a dunning letter
in the name of “Debtor Assistance, A unit of CRS”; the
word “Citicorp” did not appear in the letter. The second
circuit held that, because an unsophisticated debtor
would think “CRS” to be distinct from “Citicorp,” the false-
name exception in §1692a(6) applied.
Catencamp’s situation likewise is governed by the
norm that unsophisticated readers do not see through
acronyms when the creditor’s full name is missing. Even
when that norm does not apply—for some acronyms, such
4 No. 06-2030
as AT&T and IBM, are so famous that even an unsophisti-
cated consumer must appreciate the source, see Gutierrez
v. AT&T Broadband, LLC, 382 F.3d 725 (7th Cir. 2004)—a
letter from an acronym that is self-proclaimed not to be
the creditor must be treated as one from a “debt collec-
tor.” Cendant’s letter stated that it was from a debt
collector rather than the creditor (identified as Fairfield
Communities). Having trumpeted Resort Financial Ser-
vices as a debt collector, Cendant had to comply with all
obligations that the Act places on debt collectors.
Cendant observes that the letter from Resort Financial
Services attached a copy of the original contract, showing
Fairfield Resorts as the creditor. But how does this help?
That certainly does not imply that Resort Financial
Services or CTRG was the creditor; it reinforces the point
that this dunning letter appeared to be from a third party.
Cendant, as the letter’s true author, must be treated as a
“debt collector” under §1692a(6).
Catencamp had advanced a second claim for relief. He
invokes 12 U.S.C. §2605(a), part of the Real Estate
Settlement Procedures Act, which provides that anyone
who makes a federally related mortgage loan (as Fairfield
did) must “disclose to each person who applies for the loan,
at the time of the application for the loan, whether the
servicing of the loan may be assigned, sold, or transferred
to any other person at any time while the loan is outstand-
ing.” In other words, the lender must reveal (in terms that
lay borrowers can understand) whether the note is negotia-
ble. Catencamp maintains that he did not receive this
notice, though he then signed negotiable paper (which
was indeed transferred to Cendant).
The district court blocked Catencamp from amending
his complaint to frame a claim under RESPA, writing
that an amendment would be futile because Fairfield
notified Catencamp about the loan’s transfer to Cendant.
No. 06-2030 5
Apparently the district judge misunderstood the nature
of this claim, which has nothing to do with notice of
transfers after loans have closed. Section 2605(a) deals
with notice about negotiability, and that notice must be
given before a loan closes. The regulations make this
pellucid, in case the statute were not enough. See 24
C.F.R. §3500.21. One may doubt that drowning borrowers
in oceans of paper (RESPA disclosures can exceed 100
pages) gives them effective notice of anything: the verbiage
blurs together, and the details are forgotten. Whether
short and simple would be preferable to complex and
complete is, however, a matter for the legislature.
Catencamp is entitled to litigate his claim that Fairfield
failed to comply with §2605(a).
REVERSED AND REMANDED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-14-06