Ruel Nieto v. Simm Associates, Incorporated ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3350
JESSICA SMITH, on behalf of Plaintiff and a class,
Plaintiff-Appellant,
v.
SIMM ASSOCIATES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-cv-769 — William C. Griesbach, Chief Judge.
____________________
No. 19-1155
RUEL NIETO, on behalf of herself and others similarly situated,
Plaintiff-Appellant,
v.
SIMM ASSOCIATES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 17-cv-6859 — Virginia M. Kendall, Judge.
____________________
2 Nos. 18-3350 & 19-1155
ARGUED MAY 21, 2019 — DECIDED JUNE 6, 2019
____________________
Before FLAUM, KANNE, and SYKES, Circuit Judges.
FLAUM, Circuit Judge. This is the consolidated appeal of
two actions under the Fair Debt Collection Practices Act, 15
U.S.C. § 1601 et seq. In both cases, debt collector Simm Associ-
ates, Inc. sent debtors a form letter stating the name of the
“original creditor”—Comenity Capital Bank—and the “cli-
ent”—PayPal Credit. Debtors sued, alleging the letters violate
§ 1692g(a)(2) because they fail to identify the name of the
creditor to whom the debt is currently owed. The district
courts granted summary judgment for the debt collector. We
affirm.
I. Background
Defendant-appellee Simm Associates, Inc. (“Simm”), a
debt collection agency, sent plaintiff-appellant Jessica Smith a
collection letter dated February 23, 2017. The letter includes
the following information:
CLIENT: PAYPAL CREDIT1 ORIGINAL CREDITOR: Comenity
Capital Bank
BALANCE: $484.28 ORIGINATION DATE: 12/10/2013
The letter also states that, upon the debtor’s request, Simm
will provide “the name and address of the original creditor, if
different from the current creditor.” (emphasis added).
1 “PayPal Credit allows consumers to make online purchases without
using a credit card by offering an open-ended credit plan from [a bank].”
Maximiliano v. Simm Assocs., Inc., 17-cv-80341, 2018 WL 783104, at *1 (S.D.
Fla. Feb. 8, 2018). Here, Comenity Capital Bank owns the debt on debtors’
Nos. 18-3350 & 19-1155 3
Smith filed suit on May 31, 2017 in the Eastern District of
Wisconsin on behalf of herself and a class of similarly situated
individuals against Simm for violating the Fair Debt Collec-
tion Practices Act (“FDCPA”). Specifically, Smith alleged
Simm violated 15 U.S.C. § 1692g(a)(2) by failing to disclose the
current creditor or owner of the debt. She further alleged the
letter violates § 1692e because it is false, deceptive, or mis-
leading. The court granted Smith’s motion to certify a class of
similar persons in Wisconsin who received these same form
letters between May 31, 2016 and June 21, 2017. Both parties
moved for summary judgment; the district court granted
Simm’s motion and denied Smith’s motion. It held the letter
complies with § 1692g(a)(2) because it includes the name of
the current creditor who owns the debt—Comenity Capital
Bank—and provides further clarification for the unsophisti-
cated consumer by also including “PayPal Credit,” so the
debtor recognizes the debt. The court held that because there
is nothing abusive, unfair, or deceptive about Simm’s letter, it
does not violate § 1692e either.
Simm also sent a collection letter to plaintiff-appellant
Ruel Nieto dated March 29, 2017. The letter includes the same
creditor and client information:
CLIENT: PAYPAL CREDIT ORIGINAL CREDITOR: Comenity
Capital Bank
BALANCE: $4,588.42 ORIGINATION DATE: 04/11/2008
It likewise informs Nieto she may request the name and ad-
dress of the original creditor, if different from the current
creditor.
PayPal accounts; it paid merchants on their behalf, then sought repayment
for the extension of credit.
4 Nos. 18-3350 & 19-1155
Nieto, on behalf of a class of similarly situated individuals,
sued Simm in the Northern District of Illinois on September
22, 2017. She claimed Simm violated § 1692g(a)(2) of the
FDCPA by failing to list the current creditor in the letter. Both
parties moved for summary judgment. For the same reasons
as in Smith’s case, the district court granted summary judg-
ment for Simm and denied it for Nieto.
Smith’s and Nieto’s appeals are consolidated before us
now.
II. Discussion
The only question these appeals present is whether the
form letters Simm sent Smith and Nieto identify the creditor
to whom their debt is owed in a manner clear enough for an
unsophisticated consumer to understand. We review a dis-
trict court’s ruling on summary judgment de novo, examining
the record and making all reasonable inferences in the light
most favorable to the nonmoving party. Minerva Dairy, Inc. v.
Harsdorf, 905 F.3d 1047, 1053 (7th Cir. 2018).
Section 1692g(a)(2) of the FDCPA requires a debt collector
to include “the name of the creditor to whom the debt is
owed” in its initial communication to the debtor. 15 U.S.C.
§ 1692g(a)(2). The statute does not specify any necessary ter-
minology the letter must contain when identifying the credi-
tor, but we require the information to be “clear[] enough that
the recipient is likely to understand it.” Janetos v. Fulton Fried-
man & Gullace, LLP, 825 F.3d 317, 321 (7th Cir. 2016) (quoting
Chuway v. Nat’l Action Fin. Servs., Inc., 362 F.3d 944, 948 (7th
Cir. 2004)); see also Leonard v. Zwicker & Assocs., P.C., 713 F.
App’x 879, 883 (11th Cir. 2017) (“[N]o bright-light rule re-
quires a debt collector to always identify the creditor by its
Nos. 18-3350 & 19-1155 5
full business name in order to avoid liability under § 1692g.
Rather, … a debt collector may use the creditor’s full business
name, the name under which the creditor usually transacts
business, or a commonly used acronym.” (internal quotation
marks omitted)). We view potential FDCPA violations
through the objective lens of an unsophisticated consumer
who, while “uninformed, naïve, or trusting,” possesses at
least “reasonable intelligence, and is capable of making basic
logical deductions and inferences.” Pettit v. Retrieval Masters
Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 2000) (cita-
tions and internal quotation marks omitted).
There is no dispute that the debtors had PayPal accounts
and that Comenity Capital Bank is the owner of the debt on
those accounts. Debtors argue that listing Comenity Capital
Bank as the “original creditor” and not “current creditor” is
not clear enough to satisfy Janetos because consumers could
infer the debt is currently owed to a different creditor than the
“original” one. Simm responds that it complied with the lan-
guage of the FDCPA by identifying Comenity Capital Bank as
the creditor and that it further adhered to the spirit of the
FDCPA by also disclosing the commercial name the consumer
would be more likely to recognize—PayPal Credit.
In Janetos, we reviewed a collection letter for compliance
with § 1692g(a)(2). The collection letter included the name of
the creditor but did not identify the entity as a creditor; rather,
it identified the creditor, Asset Acceptance, LLC, as the “as-
signee” of a different company and stated the debtor’s ac-
count had been transferred “from Asset Acceptance, LLC, to
Fulton, Friedman & Gullace, LLP.” Janetos, 825 F.3d at 321.
Despite the debt collector’s argument that it implicitly dis-
closed the legal relationships between the identified parties,
6 Nos. 18-3350 & 19-1155
we observed that none of these statements identified who
owned the debt clearly enough for a consumer to compre-
hend, and they left the recipients “to guess who owned the
debt following the ‘transfer’ of the ‘account.’” Id. The lesson
from Janetos is that even accurate technical terminology—
“transfer” or “assignee”—can be confusing to an unsophisti-
cated consumer and can violate § 1692g(a)(2), which requires
a debt collector to present information about the creditor and
the debt in the manner the unsophisticated consumer can un-
derstand.
That is precisely what Simm did here—the letter identifies
a single “creditor,” as well as the commercial name to which
the debtors had been exposed, allowing the debtors to easily
recognize the nature of the debt. It is true the letter identifies
Comenity Capital Bank as the “original” instead of “current”
creditor. But the FDCPA does not require use of any specific
terminology to identify the creditor. And the letter does not
identify any creditor other than Comenity Capital Bank,
which might have led to consumer confusion. Indeed, by in-
forming debtors they could request the name of the original
creditor if different from the current creditor, the letter alerts
debtors the original and current creditor may be the same.
As Simm explains, Smith’s and Nieto’s “position is that
Simm’s letter, which was designed specifically to dispel con-
fusion of the unsophisticated consumer, violates the FDCPA
because it does not contain a word that is absent from the lan-
guage of [the] statute, and which no court has ever deter-
mined must be contained in a collection letter.” We agree with
Simm. Congress designed the FDCPA to “protect consumers
from abusive and unfair debt collection practices.” Janetos, 835
F.3d at 320. The letter provides a whole picture of the debt for
Nos. 18-3350 & 19-1155 7
the consumer, identifying the creditor to whom the debt is
owed as well as the commercial name the consumer is more
likely to recognize. This provides clarity for consumers; it is
not abusive or unfair and does not violate § 1692g(a)(2).2
III. Conclusion
For the foregoing reasons, we AFFIRM the judgments of the
district courts.
2 In the district court, Smith also claimed the letter is false, deceptive,
or misleading in violation of § 1692e. She does not explicitly reassert that
claim on appeal. We note that, for the same reasons we determined the
letter provides clarity and a whole picture of the debt for the consumer in
satisfaction of § 1692g(a)(2), it is not deceptive or misleading under
§ 1692e.