McMillan, April v. Collection Prof'l ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2745
APRIL McMILLAN,
Plaintiff-Appellant,
v.
COLLECTION PROFESSIONALS,
INCORPORATED, an Illinois
corporation,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6921—Blanche M. Manning, Judge.
____________
ARGUED JANUARY 10, 2006—DECIDED JULY 7, 2006
____________
Before BAUER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. April McMillan brought this ac-
tion against Collection Professionals, Inc. (“CPI”). She
alleges that a collection letter that she received from CPI
violates the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq. The district court held that Ms.
McMillan’s claim failed to state a claim upon which relief
could be granted. See Fed. R. Civ. P. 12(b)(6). Ms. McMillan
now appeals the dismissal of her claim. For the reasons
stated in the following opinion, we reverse the judgment of
2 No. 05-2745
the district court and remand the case for further proceed-
ings consistent with this opinion.
I
BACKGROUND
A. Facts
Ms. McMillan received a letter from CPI dated Decem-
ber 8, 2004; it demanded payment for a dishonored check
that had been made payable to “Testa IGA” for $86.43 as
well as payment of $146.05 for unspecified “Previous
Debts.” R.1, Ex.A. The letter stated in pertinent part:
YOU ARE EITHER HONEST OR DISHONEST YOU
CANNOT BE BOTH
Your creditor believed you to be honest when credit
was extended.
The injustice of permitting this account to become past
due and then ignoring all requests for payment, casts a
doubt of good intentions.
We would like to give you this final opportunity to
prove your honesty and good intentions. Payment in
full or satisfactory arrangements for payment must be
made without further delay.
Collection Professionals, Inc., is a debt collection
agency. This is an attempt to collect a debt and any
information will be used for that purpose.
Id. (emphasis in original).
In her complaint, Ms. McMillan alleged that the letter
used “false, deceptive, or misleading representation[s] or
means” in violation of 15 U.S.C. § 1692e and that the letter
No. 05-2745 3
was an attempt to disgrace her in violation of 15 U.S.C.
§ 1692e(7). She also alleged that the letter employed unfair
or unconscionable means to collect a debt in violation of
15 U.S.C. § 1692f.
CPI filed an answer to Ms. McMillan’s complaint, and
then moved to dismiss under Federal Rule of Civil Proce-
dure 12(b)(6).1 In its motion, CPI submitted that the lan-
guage in the letter was true and accurate, and Ms. McMillan
therefore did not state a claim under § 1692e. CPI also
contended that the letter did not state or imply that Ms.
McMillan had committed a crime or other fraud, so she had
not stated a claim under § 1692e(7). CPI further submitted
that, because the letter contained only true statements, it
could not be considered “unfair or unconscionable” within
the meaning of 15 U.S.C. § 1692f.
B. District Court Disposition
Initially, the district court recognized that the FDCPA
should be construed broadly to protect the “unsophisticated
consumer.” R.17 at 2 (quoting Marshall-Mosby v. Corporate
1
In CPI’s answer to Ms. McMillan’s complaint, it stated that Ms.
McMillan had failed to assert a claim upon which relief can be
granted. See R.5 at 4-5. Under Federal Rule of Civil Procedure
12(h)(2), a defendant’s motion to dismiss for failure to state a
claim can be included in an answer. However, CPI then filed a
separate 12(b)(6) motion to dismiss. See R.12. We have held that
a 12(b)(6) motion filed after an answer has been filed is to be
treated as a 12(c) motion for judgment on the pleadings and can
be evaluated under the same standard as a Rule 12(b)(6) motion.
See Lanigan v. Vill. of East Hazel Crest, Illinois, 110 F.3d 467, 470 n.2
(7th Cir. 1997).
4 No. 05-2745
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000)). Neverthe-
less, the court determined that, in this case, “[Ms.] McMillan
wrote a check to a third-party which was returned for
insufficient funds and did not cure the bounced check.” Id.
The court therefore held that “[s]tating that the third-party
‘believed her to be honest when credit was extended’ was
not intended to disgrace McMillan and is not an unfair
statement.” Id. (original alterations omitted).
The district court then distinguished cases, relied upon by
Ms. McMillan, in which we had held that an FDCPA
complaint can survive a motion to dismiss under 12(b)(6)
simply by alleging that a collection letter was confusing.
Id. (citing Marshall-Mosby, 205 F.3d at 326; Johnson v. Revenue
Mgmt. Corp., 169 F.3d 1057, 1059 (7th Cir. 1999)). The district
court stated that these cases involved claims brought under
15 U.S.C. § 1692g, which requires certain language in an
initial debt collection letter. Id. Because no claim under
§ 1692g had been brought in this case, the district court held
that those cases were inapplicable. Id.2
2
The district court also stated that the letter at issue in this case
does not contain the requisite language in § 1692g. R.17 at 2.
Section 1692g states that within five days of the initial communi-
cation, the debt collector must provide certain information to the
debtor, including the amount of debt and a statement that the
debtor has thirty days to contest the validity of the debt before it
will be assumed to be valid. See 15 U.S.C. § 1692g(a)(1) and (a)(3).
The court gave Ms. McMillan leave to file an amended complaint
alleging a violation of § 1692g; instead, however, Ms. McMillan
appealed the dismissal of her complaint.
No. 05-2745 5
II
DISCUSSION
We review a district court’s grant of a dismissal under
Rule 12(b)(6) de novo, accepting as true all well-pleaded
factual allegations and drawing all reasonable inferences
in favor of the plaintiff. Dawson v. Gen. Motors Corp., 977
F.2d 369, 372 (7th Cir. 1992). The plaintiff’s claims should
survive dismissal if relief could be granted under any set
of facts that could be proved consistent with the allegations.
Id.
When assessing an FDCPA claim, we view the claim
through the eyes of an “unsophisticated debtor.”3 Gammon
v. GC Servs. Ltd. P’ship, 27 F.3d 1254, 1257 (7th Cir. 1994)
(stating that such a standard “protects the consumer
who is uninformed, naive, or trusting, yet it admits an
objective element of reasonableness”). In the context of a
§ 1692g claim, we have stated that “[h]ow a particular notice
affects its audience is a question of fact, which may be
3
Other circuits use a “least sophisticated consumer” standard
rather than our “unsophisticated” standard. See Gammon v. GC
Servs. Ltd. P’ship, 27 F.3d 1254, 1257 (7th Cir. 1994). We have
noted that the “least sophisticated consumer” contemplated by
other circuits is “the very last rung on the sophistication
ladder”—the very least sophisticated consumer that exists. Id.
However, we also noted that other circuits view even their “least
sophisticated consumer” with an element of reasonableness. Id.
In formulating the “unsophisticated consumer” standard, our
cases have sought to protect consumers who were not sophisti-
cated, while at the same time, like our sister circuits, allowing
a reasonableness inquiry to ensure that debt collectors were
not liable for “unrealistic or peculiar interpretations” of collection
letters. Id.
6 No. 05-2745
explored by testimony and devices such as consumer
surveys.” Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 501 (7th
Cir. 1999).4 However, as a matter of law, we shall not
entertain a plaintiff’s bizarre, peculiar, or idiosyncratic
interpretation of a collection letter. See Durkin v. Equifax
Check Servs., Inc., 406 F.3d 410, 414 (7th Cir. 2005); Pettit v.
Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057, 1060
(7th Cir. 2000).
We believe that our court’s treatment of claims brought
under § 1692g will be helpful in our analysis of claims
brought under §§ 1692e and 1692f. In several cases, we have
focused on the requirements of a claim under 15 U.S.C.
§ 1692g, which sets forth mandatory information that a debt
collector must provide in a written form to a debtor. If the
required information is not communicated to the debtor, or
if it is provided in a manner that is “confusing” to the
consumer, § 1692g has been violated.5 A letter will not be
4
We recognize that other circuits have held that the question of
how a least sophisticated debtor would interpret a letter is
a “question of law.” Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir.
1997) (stating that the question of whether a letter would vio-
late § 1692g and “confuse a least sophisticated debtor” is
a question of law) (citing Russell v. Equifax A.R.S., 74 F.3d 30,
33, 35 (2d Cir. 1996)).
5
We have noted that, while § 1692g “does not say in so many
words that the disclosures required by it must be made in a
nonconfusing manner,” the statute does create an “implied duty
to avoid confusing the unsophisticated consumer.” Bartlett v.
Heibel, 128 F.3d 497, 500 (7th Cir. 1997). Therefore, a debt collector
can violate § 1692g by contradicting the required information or
by “overshadowing” it. Id.; see also Johnson v. Revenue Mgmt.
Corp., 169 F.3d 1057, 1060 (7th Cir. 1999) (stating that a letter can
(continued...)
No. 05-2745 7
considered to be a violation of § 1692g, however, unless “a
significant fraction of the population would be . . . mislead”
by the letter. Durkin, 406 F.3d at 415. We have held that,
when a complaint alleges that a dunning letter is confusing,
and thus a violation of § 1692g, the plaintiff has stated a
recognizable legal claim; no more is necessary to survive a
Rule 12(b)(6) motion. See Marshall-Mosby, 205 F.3d at 326-27
(“[A] FDCPA complaint survives a motion to dismiss under
Rule 12(b)(6) simply by alleging that a dunning letter was
confusing.”); Walker, 200 F.3d at 503; Johnson, 169 F.3d at
1059. Because confusion is a fact-based question, dismissal
is typically not available under 12(b)(6), which is appropri-
ate only when there is no set of facts consistent with the
pleadings under which the plaintiff could obtain relief. See
Johnson, 169 F.3d at 1059-60.
We have cautioned that a district court must tread
carefully before holding that a letter is not confusing as a
matter of law when ruling on a Rule 12(b)(6) motion
because “district judges are not good proxies for the ‘unso-
phisticated consumer’ whose interest the statute protects.”
Walker, 200 F.3d at 501-03 (stating that, even if the lawyers
and judge involved thought a letter was not confusing, it
would be “possible to imagine facts” that still would
support a conclusion that the letter was confusing, such as
survey results suggesting that four out of five high school
dropouts found it to be confusing). “[W]hat seems pellucid
to a judge, a legally sophisticated reader, may be opaque”
to the unsophisticated consumer. Johnson, 169 F.3d at 1060.
5
(...continued)
be confusing when it overshadows the necessary language, when
it contradicts the required language or when it fails to explain an
apparent contradiction).
8 No. 05-2745
We cannot accept the district court’s view that claims
brought under § 1692e or § 1692f are different from claims
brought under § 1692g for purposes of Rule 12(b)(6) analy-
sis. Whether or not a letter is “false, deceptive, or mislead-
ing” (in violation of § 1692e) or “unfair or unconscionable”
(in violation of § 1692f) are inquiries similar to whether a
letter is confusing in violation of § 1692g. After all, as our
cases reflect, the inquiry under §§ 1692e, 1692g and 1692f is
basically the same: it requires a fact-bound determination of
how an unsophisticated consumer would perceive the letter.
See Fields v. Wilber Law Firm, 383 F.3d 562, 565-66 (7th Cir.
2004) (applying the “unsophisticated consumer” standard
to claims brought under §§ 1692e and 1692f); Turner v.
J.V.D.B. & Assoc., Inc., 330 F.3d 991, 995, 997 (7th Cir. 2003)
(same); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th
Cir. 1997) (applying the “unsophisticated consumer”
standard to § 1692e claim); Gammon, 27 F.3d at 1257-58
(same). Indeed, neither Marshall-Mosby, Johnson, nor Walker
stated that their analysis was limited to only the § 1692g
context.
CPI contends there are no facts imaginable that would
support Ms. McMillan’s claim; however, Ms. McMillan
submits that she should be allowed to conduct a con-
sumer survey to determine if consumers would find the
letter she received to be false or misleading, in violation of §
1692e, or unfair or unconscionable, in violation of § 1692f.6
6
CPI contends that, because Ms. McMillan did not argue to the
district court that she wished to conduct a consumer survey,
she should be foreclosed from now claiming that she wishes to
conduct one to prove her claim. See Appellee’s Br. at 17. While
new arguments usually are not allowed on appeal, we have
stated that a plaintiff “may . . . be able to revive a claim dismissed
(continued...)
No. 05-2745 9
We have stated on several occasions that a “carefully
designed and conducted consumer survey” is one way to
create a triable issue of fact as to how an unsophisticated
consumer would interpret a collection letter. Chuway v. Nat’l
Action Fin. Servs., Inc., 362 F.3d 944, 948 (7th Cir. 2004); see
also, e.g., Walker, 200 F.3d at 501 (“How a particular notice
affects its audience is a question . . . [that] may be explored
by testimony and devices such as consumer surveys.”);
Johnson, 169 F.3d at 1060; Durkin, 406 F.3d at 415. CPI relies
on Taylor v. Calvary Investment, L.L.C., 365 F.3d 572 (7th Cir.
2004), for the proposition that the court can determine from
the face of a letter “that not even a significant fraction of the
population would be misled by it.” 365 F.3d at 574 (internal
quotations omitted). However, that statement was made in
Taylor in the course of evaluating a district court’s grant of
summary judgment; the court was therefore determining
whether the record in that case contained a genuine issue of
triable fact, a different and significantly more demanding
standard than the Rule 12(b)(6) standard applicable in this
case. Id. at 575. Therefore, Taylor is not apposite to Ms.
6
(...continued)
under Rule 12(b)(6) by asserting on appeal new facts and theories
consistent with the original complaint.” Hart v. Transp. Mgmt. of
Racine, Inc., 426 F.3d 863, 866 (7th Cir. 2005); see also Stevens v.
Umstead, 131 F.3d 697, 705 (7th Cir. 1997). We have stated that
such a rule is necessary to give plaintiffs the benefit of the broad
standard for surviving a Rule 12(b)(6) motion. Dawson v. Gen.
Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992). In this case, at its
core, Ms. McMillan is claiming that an “unsophisticated con-
sumer” could find the language used in the letter to be unfair and
also could interpret the language as an attempt to disgrace the
recipient. The favorable result of a consumer survey would be a
fact consistent with her allegations in her complaint.
10 No. 05-2745
McMillan’s present claim that the motion to dismiss was
improperly granted.7
In sum, the requisite inquiries under § 1692e and § 1692f
are necessarily fact-bound. Whether characterized as issues
of fact or issues of mixed fact and law, district courts must
act with great restraint when asked to rule in this context on
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Undoubtedly, there will be occasions when a
district court will be required to hold that no reasonable
person, however unsophisticated, could construe the
wording of the communication in a manner that will violate
the statutory provision. In most instances, however, a
proper application of the rule will require that the plaintiff
be given an opportunity to demonstrate that his allegations
are supported by a factual basis responsive to the statutory
standard.
7
Taylor v. Calvary Investment, L.L.C., 365 F.3d 572, 574 (7th Cir.
2004), was an appeal that consolidated two closely-related cases
under the FDCPA. The second case discussed in Taylor involved
an FDCPA complaint that was dismissed on the pleadings. In that
case, the plaintiff stated at oral argument that the only evidence
he planned to present was his affidavit stating that the collection
letter was confusing. Id. at 576. The court stated that the single
affidavit would be an “unavailing” form of proof. Id. In this case,
however, Ms. McMillan stated that she intended to conduct a
consumer survey, whose results could conceivably show that a
number of consumers would find the letter she received to be
false, misleading, unfair or unconscionable. Cf. Pettit v. Retrieval
Masters Creditors Bureau, Inc., 211 F.3d 1057, 1061-62 (7th Cir.
2000) (holding that a plaintiff’s self-serving deposition testimony
was not enough for her FDCPA claim to survive summary
judgment, but that a consumer survey may have been sufficient).
No. 05-2745 11
With the applicable standard now before us, we must
examine the record in light of the requirements of the statute
and determine whether it is “possible to imagine evidence”
that would support the allegations of the complaint and
establish violations of § 1692e and § 1692f. See Walker, 200
F.3d at 503. If it is possible that Ms. McMillan might be able
to produce such evidence, we shall have to conclude that the
district court’s action was, at best, premature. See id.
A. FDCPA Section 1692e
Section 1692e states that a debt collector cannot use “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. The statute also enumerates a non-exhaustive list of
specific practices that are per se “false or misleading.”8 Id.
One action that is specifically barred under this section is
“[t]he false representation or implication that the consumer
committed any crime or other conduct in order to disgrace
the consumer.” Id. § 1692e(7).
1.
Ms. McMillan submits that CPI’s letter questioning her
honesty was false or misleading, in violation of the general
8
In addition to the specific prohibitions found in §§ 1692e and
1692f, the legislative history states that the FDCPA “prohibits
in general terms any harassing, unfair, or deceptive collection
practice. This will enable the courts, where appropriate, to
proscribe other improper conduct which is not specifically
addressed.” S. Rep. No. 95-382, at 4 (1977), reprinted in 1977
U.S.C.C.A.N. 1695, 1698.
12 No. 05-2745
prohibition found in § 1692e, because the non-payment of a
debt does not mean necessarily that the debtor is “dishon-
est.” R.1 at 3. She specifically claims that the language
stating that “YOU ARE EITHER HONEST OR DISHONEST
YOU CANNOT BE BOTH,” that the “creditor believed you
to be honest when credit was extended,” and that CPI
“would like to give you this final opportunity to prove your
honesty and good intentions” is false or misleading. See R.1
at 3 (emphasis omitted). Ms. McMillan contends there are
many reasons why a check might be dishonored that does
not involve a lack of honesty, including mathematical error,
bank error, or the unexpected delay in the clearing of funds
to cover the check. See Appellant’s Br. at 18. Further, she
argues that the record does not contain any evidence that
she actually wrote a check that did not clear or that she did
not cure the defect. See id. at 17 n.2.
Ms. McMillan’s complaint may be read as implying that
she had written a check that did not clear, although on
appeal she argues that the record contains no evidence of
whether or not she wrote the check or whether or not it
was honored. See R.1 at 3 (stating that CPI’s statements
are “intended to disgrace [her] because she did not pay the debt
at issue” (emphasis added)). Nevertheless, we agree with
Ms. McMillan that on the face of the complaint, there is no
evidence in the record as to why her check did not clear, or
that CPI had any prior communications asking for payment
that Ms. McMillan ignored. Therefore, the language stating
that she committed the “injustice of permitting the account
to become past due” and then “ignor[ed] all request for
payment” may be false.9
9
CPI stated at oral argument that this letter was not the first
(continued...)
No. 05-2745 13
CPI submits, however, that the statements at issue are
“true statements that a person is either dishonest or honest,
and that creditors, when extending credit, believe, in
good faith, that consumers are honest.” Appellee’s Br. at 9.
CPI is correct in its assertion that the letter, read literally,
does not state that Ms. McMillan is dishonest, but rather
that she is “either honest or dishonest.” Although this
statement may be literally true, in some cases “the literal
truth may convey a misleading impression” that violates
§ 1692e. Gammon, 27 F.3d at 1258 (Easterbrook, J., concur-
ring); see also Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. 1996).
Many individuals who write a dishonored check are not
necessarily dishonest; there are a variety of reasons that
a check may be dishonored that do not necessarily indi-
cate that an individual did not have every intention of
paying the underlying debt when the check was issued.10
9
(...continued)
communication between Ms. McMillan and CPI. However, this
was the first time this court was advised that this was not the first
communication between CPI and Ms. McMillan; CPI does not
state such a fact in either its motion to dismiss or its appellate
brief. Since the record is silent on this issue, it is not clear what
communications, if any, transpired between CPI and
Ms. McMillan prior to the letter at issue. Drawing all inferences
in favor of Ms. McMillan, as we must at this stage of the litiga-
tion, we cannot assume that previous communications disclosed
to Ms. McMillan in a clear way that she owed a debt to CPI and
that she ignored those communications.
10
In any event, “[a] basic tenet of the [FDCPA] is that all consum-
ers, even those who have mismanaged their financial affairs
resulting in default on their debt, deserve ‘the right to be treated
in a reasonable and civil manner.’ ” Bass v. Stolper, Koritzinsky,
(continued...)
14 No. 05-2745
Indeed, the legislative history of the FDCPA indicates that
Congress was aware that not all debtors actually intend to
become delinquent on their debts when they take out credit:
One of the most frequent fallacies concerning debt
collection legislation is the contention that the primary
beneficiaries are ‘deadbeats.’ In fact, however, there is
universal agreement among scholars, law enforcement
officials, and even debt collectors that the number of
persons who willfully refuse to pay just debts is minus-
cule. . . . [T]he vast majority of consumers who obtain
credit fully intend to repay their debts. When default
occurs, it is nearly always due to an unforseen event
such as unemployment, overextension, serious illness,
or marital difficulties or divorce.
S. Rep. No. 95-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N.
1695, 1697. While CPI’s letter to Ms. McMillan literally says
“you can either be honest or dishonest,” the underlying
implication, at least arguably, is that the debtor is being
dishonest by allowing the check to be dishonored. By calling
into question a debtor’s honesty and good intentions simply
because a check was dishonored, a collection letter may be
making a statement that is false or misleading to the
unsophisticated consumer. Therefore, Ms. McMillan has
stated a § 1692e claim sufficient to survive a Rule 12(b)(6)
motion.
10
(...continued)
Brewster & Neider, S.C., 111 F.3d 1322, 1324 (7th Cir. 1997) (citing
Baker v. G.C. Servs. Corp., 677 F.2d 775, 777 (9th Cir. 1982) (citing
123 Cong. Rec. 10241 (1977))).
No. 05-2745 15
2.
Ms. McMillan also contends that the language in the letter
stating “YOU ARE EITHER HONEST OR DISHONEST
YOU CANNOT BE BOTH,” that the “creditor believed you
to be honest when credit was extended,” and that CPI
“would like to give you this final opportunity to prove your
honesty and good intentions” violated § 1692e(7), the
prohibition on statements intended to disgrace. 15 U.S.C. §
1692e(7) (prohibiting “[t]he false representation or implica-
tion that the consumer committed any crime or other
conduct in order to disgrace the consumer”). CPI replies
that, because it did not imply that Ms. McMillan committed
a crime or that she committed fraud, its statements did not
violate § 1692e(7). In support of its argument, CPI cites the
Federal Trade Commission commentary, which only lists a
“[f]alse allegation of fraud” or a “[m]isrepresentation of
criminal law” as violations of § 1692e(7). See Statements of
General Policy or Interpretation Staff Commentary On the
Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097,
50,106 (Fed. Trade Comm’n Dec. 13, 1988) (hereinafter “FTC
Statements”).
We begin our analysis with the text of the statute itself,
which, as we have stated, “is the most reliable indicator of
congressional intent.” Bass v. Stolper, Koritzinsky, Brewster &
Neider, S.C., 111 F.3d 1322, 1324-25 (7th Cir. 1997); see also
Mace v. Van Ru Credit Corp., 109 F.3d 338, 343 (7th Cir. 1997)
(“[C]onstruing the FDCPA in accordance with its plain
language may best honor its drafters’ intent.”). The statutory
language of § 1692e(7) states that a debt collector cannot
make “[t]he false representation or implication that the
consumer committed any crime or other conduct in order to
disgrace the consumer.” (emphasis added). We believe that
this language makes clear that Congress intended to
16 No. 05-2745
proscribe conduct beyond falsely implying that a debtor
committed a crime. When the statutory term “disgrace” is
given its normal meaning, it is clear that Congress intended
that the statute also proscribe conduct that shames or
humiliates a debtor. Calling into question another’s honesty,
and implying that the individual has dishonest intentions
arguably rises to the level of language that could shame or
humiliate the reader of the letter.11
Therefore, we decline to give § 1692e(7) the restrictive
meaning advocated by CPI. When the term “disgrace” is
given its natural meaning, we believe that Ms. McMillan
may be able to establish a factual basis that would permit
her relief under § 1692e(7). Ms. McMillan therefore has
stated a claim under § 1692e(7), and it is possible that the
facts will demonstrate that a significant fraction of the
population would find the language in the letter to be
disgraceful.
11
Extrinsic sources are of little interpretative assistance on this
point. The legislative history does not mention the phrase “in
order to disgrace the consumer.” See S. Rep. No. 95-382, at 8. The
Federal Trade Commission commentary is also equally unavail-
ing; as CPI points out, it only lists a “[f]alse allegation of fraud”
or a “[m]isrepresentation of criminal law” as violations of
§ 1692e(7). Statements of General Policy or Interpretation Staff
Commentary On the Fair Debt Collection Practices Act, 53 Fed.
Reg. 50,097, 50,106 (Fed. Trade Comm’n Dec. 13, 1988). Notably,
the FTC commentary does not state that these are the exclusive
means by which a debt collector can violate § 1692e(7), nor does
it even address the language in the statute regarding disgrace.
No. 05-2745 17
B. FDCPA Section 1692f
Ms. McMillan also alleges that the letter is unfair or
unconscionable in violation of § 1692f. Section 1692f, like
§ 1692e, states a general prohibition on using “unfair or
unconscionable means to collect or attempt to collect any
debt.” 15 U.S.C. § 1692f. The provision then lists eight
specific violations “without limiting the general applica-
tion” of the statute.12 Id. CPI submits that its
12
The text of 15 U.S.C. § 1692f states:
A debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt. Without
limiting the general application of the forgoing, the following
conduct is a violation of this section:
(1) The collection of any amount (including any interest,
fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized
by the agreement creating the debt or permitted by law.
(2) The acceptance by a debt collector from any person
of a check or other payment instrument postdated by
more than five days unless such person is notified in
writing of the debt collector’s intent to deposit such
check or instrument not more than ten nor less than
three business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated
check or other postdated payment instrument for the
purpose of threatening or instituting criminal prosecu-
tion.
(4) Depositing or threatening to deposit any postdated
check or other postdated payment instrument prior to
the date on such check or instrument.
(5) Causing charges to be made to any person for com-
munications by concealment of the true purpose of the
(continued...)
18 No. 05-2745
conduct was not “unfair or unconscionable” because it did
not utilize any of the eight specifically barred practices
in § 1692f, nor did it “do anything remotely similar to any of
these practices.” Appellee’s Br. at 10.13 However, as the
12
(...continued)
communication. Such charges include, but are not
limited to, collect telephone calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action
to effect dispossession or disablement of property if—
(A) there is no present right to possession of the
property claims as collateral through an enforceable
security interest;
(B) there is no present intention to take possession
of the property;
(C) the property is exempt by law from such dispos-
session or disablement.
(7) Communicating with a consumer regarding a debt by
postcard.
(8) Using any language or symbol, other than the debt
collector’s address, on any envelope when communicat-
ing with a consumer by use of mails or by telegram,
except that a debt collector may use his business name if
such name does not indicate that he is in the debt
collection business.
13
CPI also urges us to follow the test that it claims that the
Supreme Court of the United States has set out for establishing
unfair conduct: (1) whether the practice offends public policy; (2)
whether the conduct is oppressive, and (3) whether it causes
substantial injury to consumers. Appellee’s Br. at 10-11 (citing
Federal Trade Comm’n v. Sperry & Hutchinson Co., 405 U.S. 233, 244-
45 n.5 (1972)). However, Sperry was interpreting a portion of the
Federal Trade Commission Act, 15 U.S.C. § 45, not the FDCPA.
(continued...)
No. 05-2745 19
statute states explicitly, the listing of eight specific violations
was not intended to limit the applicability of the general
prohibition of “unfair or unconscionable” behavior. See 15
U.S.C. § 1692f.
To determine whether or not any set of facts might allow
relief to be granted, we first must determine the meaning of
“unfair or unconscionable” in the context of the
FDCPA. The legislative history is not helpful in this task. It
simply states that “[a] debt collector is prohibited from
using any unfair or unconscionable means to collect debts.”
S. Rep. 95-382, at 8. The FTC Commentary states that “[a]
debt collector’s act in collecting a debt may be ‘unfair’ if it
causes injury to the consumer that is (1) substantial, (2) not
outweighed by countervailing benefits to consumers or
competition, and (3) not reasonably avoidable by the
consumer.” “FTC Commentary,” 53 Fed. Reg. 50,097, 50,106
(Fed. Trade Comm’n Dec. 13, 1988). The FTC Commentary
does not provide any definition for the term “unconsciona-
ble.”
The FTC Commentary is not binding on the courts
because it is not a formal regulation and did not undergo
full agency consideration. See Bass, 111 F.3d at 1327 n.8.14
13
(...continued)
See Sperry, 405 U.S. at 234. Moreover, Sperry did not adopt such
a test, but rather was merely quoting, in a footnote, the test that
the FTC uses to determine whether a practice that is neither in
violation of the antitrust laws nor deceptive could still be unfair.
See id. at 244 n.5. Because the Sperry Court is interpreting a
different statute, and because it does not set forth such a test,
Sperry is of marginal, if of any, assistance in our present inquiry.
14
See also Christensen v. Harris County, 529 U.S. 576, 587 (2000);
(continued...)
20 No. 05-2745
Indeed, the Commentary itself states that it “is not a formal
trade regulation rule or advisory opinion of the Com-
mission, and thus is not binding on the Commission or the
public.” “FTC Commentary,” 53 Fed. Reg. 50,097, 50,101
(Fed. Trade Comm’n Dec. 13, 1988). A federal court there-
fore can decline to adopt the FTC position. See Scott v. Jones,
964 F.2d 314, 317 (4th Cir. 1992).
In the accomplishment of our present task, we do not find
the FTC commentary particularly helpful. Nor do we find it
persuasive as a comprehensive statement of the meaning of
the statutory terms before us. The test articulated by the FTC
appears to preclude recovery for some of the very conduct
explicitly prohibited as “unfair or unconscionable” by the
statute. For example, § 1692f(8) explicitly bars the use of
symbols on a debt collection letter’s envelope, although it is
difficult to say that such activity necessarily would create a
substantial injury to the debtor. Similarly, the Eighth Circuit
has found a violation of § 1692f(1) when a collection letter
overstated interest calculations by less than two dollars,
which hardly could be characterized as a substantial injury.
See Duffy v. Landberg, 215 F.3d 871, 875 (8th Cir. 2000).
Because we find that the FTC Commentary fails to address
comprehensively the statutory scheme and therefore “falls
outside the range of reasonable interpretation of the
[FDCPA]’s express language,” we cannot give it conclusive
weight. Heintz v. Jenkins, 514 U.S. 291, 298 (1995); see also
Thomas v. Law Firm of Simpson & Cyback, 392 F.3d 914, 920
14
(...continued)
Goswami v. American Collections Enter., Inc., 377 F.3d 488, 493 n.1
(5th Cir. 2004) (stating that the court “consider[s] the FTC staff
commentary . . . only insofar as it is persuasive”); Hawthorne
v. Mac Adjustment, Inc., 140 F.3d 1367, 1372 n.2 (11th Cir. 1998).
No. 05-2745 21
(7th Cir. 2004) (en banc). Indeed, other federal courts, when
determining if conduct is unfair or unconscionable, have not
used the FTC’s test; indeed, they do not mention it.15
We believe that plain language of the general provision,
when read in the context of the entire text of the statutory
provision, including the specific examples of unfair and
unconscionable conduct, might afford a basis for relief for
Ms. McMillan. At this early stage of the litigation, we cannot
say that Ms. McMillan will not be able to produce evidence
to show that an unsophisticated consumer would view the
collection letter, calling into question Ms. McMillan’s
honesty and good intentions, to be unfair or unconscionable.
See Fields v. Wilber Law Firm, P.C., 383 F.3d 562, 565-66 (7th
Cir. 2004) (holding that a plaintiff stated a claim under §
1692e and § 1692f sufficient to survive a Rule 12(b)(6)
motion when the letter at issue “could conceivably mislead
an unsophisticated consumer”). We therefore hold that Ms.
McMillan has stated a § 1692f claim sufficient to withstand
a Rule 12(b)(6) motion.
15
See Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir. 1996)
(holding that a letter did not violate § 1692f because it was
“relatively innocuous, and not ‘unconscionable’ in either a
legal or lay sense”); Adams v. Law Offices of Stuckert & Yates, 926
F. Supp. 521, 528 (E.D. Pa. 1996) (stating that a letter did not
violate § 1692f’s general prohibition because it did not “manifest[
] patent unfairness,” nor did it “reflect an abuse of Defendants’
superior economic position and level of sophistication, the
hallmark of unconscionability”).
22 No. 05-2745
Conclusion
While we express no opinion on the ultimate merits of Ms.
McMillan’s claim, it is quite possible that she will not be
able to obtain survey results that indicate that unsophisti-
cated consumers would find the letter she received to be
false or misleading, disgraceful, or unfair or unconscionable.
Indeed, we have recognized that, simply because a Rule
12(b)(6) dismissal is inappropriate in an FDCPA claim, it is
not inevitable that “litigation need be prolonged.” Walker,
200 F.3d at 504. A district court may treat the motion to
dismiss as a motion for summary judgment and require the
plaintiff to come forward with proof. Id. However, even if
Ms. McMillan’s claims would lack merit in a summary
judgment motion, it does not necessarily mean that she has
not stated a claim upon which relief can be granted. As we
said in Johnson, “a claim may fail on the facts, but assessing
factual support for a suit is not the office of Rule 12(b)(6).”
169 F.3d at 1059.
For the reasons set forth in this opinion, the judgment of
the district court is reversed and the case is remanded for
proceedings consistent with this opinion. Ms. McMillan may
recover her costs in this court.
REVERSED and REMANDED
BAUER, Circuit Judge. I respectfully dissent. I believe that
the district court reached the correct conclusion. Since the
majority opinion cites the district court opinion in suf-
ficient detail, I shall simply state that, in my opinion, she got
it right.
No. 05-2745 23
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-7-06