Case Information
*2 Before: FISHER and GREENBERG, Circuit Judges , and OLIVER, [*] District Judge .
(Filed: September 5, 2012) Joseph Decker
David W. Ross
Babst, Calland, Clements & Zomnir Two Gateway Center, 6th Floor
Pittsburgh, PA 15222
Ralph N. Feldman
Michael P. Malakoff (ARGUED)
Malakoff & Brady
437 Grant Street
200 Frick Building
Pittsburgh, PA 15219
Counsel for Appellant
Jonathan J. Bart (ARGUED)
Wilentz, Goldman & Spitzer
Two Penn Center Plaza, Suite 910 Philadelphia, PA 19102
Counsel for Mark J. Udren and Udren Law Offices, P.C.
*3 Martin C. Bryce
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Elysa M. Dishman
Richard P. Sobiecki
David A. Super
Baker Botts
1299 Pennsylvania Avenue, N.W.
The Warner
Washington, DC 20004
K. Issac deVyver
Reed Smith
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Counsel for Federal Deposit Insurance Corp.
Perry A. Napolitano
James L. Rockney
K. Issac deVyver
Reed Smith
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Counsel for Wells Fargo Home Mortgage
R. Bruce Allensworth
Ryan M. Tosi
K&L Gates
One Lincoln Street
State Street Financial Center
Boston, MA 02111
Thomas E. Birsic
Emily B. Thomas
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
Counsel for Goldman Sachs Mortgage Company
______
OPINION OF THE COURT
______
FISHER, Circuit Judge .
Mаry Glover (―Glover‖) appeals the District Court‘s dismissal of her claims against defendants Mark Udren and Udren Law Offices (―Udren‖ or ―Udren Defendants‖) under the Fair Debt Collection Practices Act (―FDCPA‖) and Pennsylvania‘s Fair Credit Extension Uniformity Act (―FCEUA‖). This appeal requires us to flesh out the notice requirements inherent in Federal Rule of Civil Procedure 15(c), as well as address novel issues of statutory interpretation pertaining to each statute. We will affirm.
I. FACTUAL BACKGROUND [1] In August of 2002, Glover entered into a mortgage loan transaction with Washington Mutual Bank (―WaMu‖). After suffering injuries from an automobile accident in March of 2005, Glover fell behind on her mortgage and requested a ―work-out‖ agreement to reduce her monthly payments. WaMu initially threatened to foreclose on the home, but subsequently agreed to postpone her payments until the request had been evaluated. Eventually, on March 14, 2006, WaMu denied Glover‘s work-out request.
Around this time, Bill Murray, an attorney with Udren Law Offices, called Glover and informed her that she owed WaMu eleven missed mortgage payments, in addition to attorney‘s fees and costs, totaling approximately $3,397.28. On April 10, 2006, WaMu filed a Foreclosure Complaint against Glover in the Court of Common Pleas of Allegheny County, claiming $12,652.36 on the mortgage and threatening foreclosure if Glover did not pay. The aggregate claim included $9,703.57 in principal, $633.71 in interest, $280.00 in anticipated court costs, $1,250.00 in anticipated attorney‘s feеs, and various other fees. Mark Udren of Udren Law Offices was counsel of record on WaMu‘s Foreclosure Complaint. No further action took place following this initial filing.
*6 After various communications between Glover and WaMu‘s assignee, Wells Fargo, [2] Glover entered into a Loan Modification Agreement (―Agreement‖ or ―Modification Agreement‖) with Wells Fargo on January 4, 2008. The Agreement stipulated to unpaid principal in the amount of $12,152.02, increased Glover‘s monthly payment, and extended the repayment period by six years. Although Glover began making payments under the Agreement soon thereafter, the Foreclosure Complaint was not discontinued until November 25, 2009.
II. PROCEDURAL HISTORY On June 9, 2008, Glover filed a putative class-action Complaint in the Court of Common Pleas of Allegheny County against WaMu, Wells Fargo, and the Udren Defendants, alleging, inter alia , violations of the FCEUA, 73 Pa. Cons. Stat. Ann. § 2270.4(a), premised in turn on broadly alleged violations of the FDCPA, 15 U.S.C. § 1692 et seq. The case was removed to the United States District Court for the Western District of Pennsylvania on July 14, 2008, and motions to dismiss were filed by all defendants.
*7 On October 23, 2008, the Federal Deposit Insurance Corporation (―FDIC‖), in its capacity as receiver for WaMu, [3] filed a motion for a ninety-day stay for Glover to submit her claims against WaMu to the FDIC‘s mandatory claims review process. The motion was granted on October 24, 2008. On January 22, 2009, at the conclusion of the stay, the FDIC again moved to stay the proceedings pending completion of its review process. The motion was granted over Glover‘s objections on March 20, 2009, and reaffirmed on June 15, 2009. On September 24, 2009, the FDIC denied Glover‘s claims against WaMu.
Glover filed a First Amended Complaint on October 14, 2009, adding a count against the Udren Defendants for FDCPA violations arising out of the Udren Defendants‘ alleged failure to voluntarily discontinue the Foreclosure Complaint after Glover signed the Modification Agreement. (App. at 143a.) The Udren Defendants filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). On June 3, 2010, the Magistrate Judge issued a Revised Report recommending dismissal of the newly alleged FDCPA claim against the Udrеn Defendants with prejudice.
*8 On June 9, 2010, Glover filed a Second Amended Complaint, adding Goldman Sachs as a defendant and restyling, among other claims, the FDCPA claim against the Udren Defendants. (App. at 290a-294a.) The Magistrate Judge vacated the Revised Report to allow filing of the Second Amended Complaint, but subsequently reinstated the Report. On August 18, 2010, adopting the Revised Report, the District Court entered an order dismissing the First Amended Complaint‘s FDCPA and FCEUA counts against the Udren Defendants without prejudice, thereby rendering the Second Amended Complaint the operative pleading. [4]
On October 22, 2010, the Udren Defendants filed a motion to dismiss the Second Amended Complaint. The District Court granted the motion as to the FDCPA claim, *9 finding that the Amended Complaint was not filed within the FDCPA‘s one-year statute of limitations, 15 U.S.C. § 1692k(d), and did not relate back to the timely filed original Complaint under Federal Rule of Civil Procedure 15(c)(1)(B). The District Court also dismissed Glover‘s FCEUA claims against the Udren Defendants, finding that the Udren Defendants were not ―debt collectors‖ under the FCEUA because Glover‘s mortgage was a purchase money mortgage, and hence excluded from the FCEUA‘s definition of ―debt.‖ See 73 Pa. Cons. Stat. Ann. § 2270.3. Glover timely appealed.
III. JURISDICTION AND STANDARD OF REVIEW The District Court exercised jurisdiction over Glover‘s FDCPA claims under 15 U.S.C. § 1692k(d) and, the matter in controversy exceeding $5 million, over the putative class action under 28 U.S.C. § 1332(d)(2). The District Court exercised supplemental jurisdiction over Glover‘s FCEUA *10 claims under 28 U.S.C. § 1367. We have appellate jurisdiction under 28 U.S.C. § 1291. [5]
We exercise plenary review of a district court‘s
interpretation and application of Rule 15(c),
Lundy v. Adamar
of N.J., Inc.
, 34 F.3d 1173, 1177 (3d Cir. 1994), and the
dismissal of a claim based on the statute of limitations.
Lake
v. Arnold
,
IV. ANALYSIS
Glover appeals the District Court‘s dismissal of her FDCPA and FCEUA claims against the Udren Defendants. We address each claim in turn.
A. F AIR D EBT C OLLECTION P RACTICES A CT The District Court treated the FDCPA claim against the Udren Defendants as accruing on January 4, 2008, the date on which the Modification Agreement was signed. Although the FDCPA imposes a one-year statute of limitations from the date of the alleged violation, Glover filed her First Amended Complaint, in which she first presented this claim, on October 14, 2009. Glover argued that the claim was timely because it related back to her original Complaint under Federal Rule of Civil Procedure 15(c)(1)(B), or, in the alternative, because the statute of limitations was tolled during the FDIC‘s mandatory review of her claims against WaMu. The District Court found that Glover‘s First Amended Comрlaint bore ―absolutely no connection‖ to her original claims against the Udren Defendants, and therefore rejected Glover‘s relation back argument. And after ―generously‖ accounting for the stays issued in response to the FDIC claims review process, the District Court calculated that the statute of limitations expired on October 9, 2009, five days before Glover filed her First Amended Complaint.
On appeal, Glover submits that the District Court erred in finding that her amended FDCPA claim against the Udren Defendants did not relate back to her original Complaint. She also argues that the District Court erred in calculating the *12 statute of limitations by using the incorrect accrual date for her claim and by failing to tоll the statute of limitations for the proper length of time.
1. Relation Back
Glover initially contends that the District Court erred in finding that her amended FDCPA claim against the Udren Defendants did not relate back to her original Complaint. Despite the presence of overlapping facts between the two pleadings, we reach the same result because Glover‘s original pleading failed to give fair notice to the Udren Defendants of her subsequently amended claim.
Under Federal Rule of Civil Procedure 15(c)(1)(B), an
amendment to a pleading relates back to the date of the
original pleading where ―the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the
original pleading.‖ Relation back is structured ―to balance
the interests of the defendant protected by the statute of
limitations with the preference expressed in the Federal Rules
of Civil Procedure in general, and Rule 15 in particular, for
resolving disputes on their merits.‖
Krupski v. Costa
Crociere S.p.A.
, 130 S. Ct. 2485, 2494 (2010). Where an
amendment relates back, Rule 15(c) allows a plaintiff to
sidestep an otherwise-applicable statute of limitations,
thereby permitting resolution of a claim on the merits, as
opposed to a technicality.
See id.
At the same time, Rule
15(c) endeavors to preserve the important policies served by
the statute of limitations – most notably, protection against
the prejudice of having to defend against a stale claim, as well
*13
as society‘s general interest in security and stability – by
requiring ―that the already commenced action sufficiently
embraces the amended claims.‖
Nelson v. Cnty. of Allegheny
,
As we have explained, application of Rule 15(c)(1)(B)
normally entails a ―search for a common core of operative
facts in the two pleadings.‖
Bensel v. Allied Pilots Ass’n
, 387
F.3d 298, 310 (3d Cir. 2004). Importantly, however, Rule
15(c) is not merely an ―identity of transaction test,‖ such as
the rules governing joinder of claims or parties. 6A Charles
Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1497 (2010). Though not expressly
stated, it is well-established that the touchstone for relation
back is fair notice, becаuse Rule 15(c) is premised on the
theory that ―a party who has been notified of litigation
concerning a particular occurrence has been given all the
notice that statutes of limitations were intended to provide.‖
Baldwin Cty. Welcome Ctr. v. Brown
,
In
Bensel
, we approved relation back of amendments
that ―restate the original claim with greater particularity or
amplify the factual circumstances surrounding the pertinent
conduct.‖
We do so now: where the original pleading does not
give a defendant ―fair notice of what the plaintiff‘s [amended]
claim is and the grounds upon which it rests,‖ the purpose of
the statute of limitations has not been satisfied and it is ―not
an original pleading that [can] be rehabilitated by invoking
Rule 15(c).‖
Baldwin
, 466 U.S. at 149 n.3 (internal marks
and citation omitted);
see
6A Wright et al., Federal Practice &
Procedure § 1497 (―Although not expressly mentioned in the
rule, . . . courts also inquire into whether the opposing party
has been put on notice regarding the claim or defense raised
by the amended pleading. Only if the pleading has performed
that function . . . will the amendment be allowed to relate
back . . . .‖). Put another way, the underlying question for a
Rule 15(c) analysis is ―whether the
original
complaint
adequately notified the defendants of the basis for liability the
plaintiffs would later аdvance in the amended complaint.‖
Meijer, Inc. v. Biovail Corp.
, 533 F.3d 857, 866 (D.C. Cir.
2008) (emphasis added);
see Wilson v. Fairchild Republic
Co.
, 143 F.3d 733, 738 (2d Cir. 1998) (―The pertinent
inquiry, in this respect, is whether the original complaint gave
the defendant fair notice of the newly alleged claims.‖ (citing
*15
Baldwin
, 466 U.S. at 149. n.3)),
overruled on other grounds
by Slayton v. Am. Express Co.
,
Here, we cannot agree
that Glover‘s original
Complaint adequately notified the Udren Defendants of the
basis for liability asserted against them in the amended
FDCPA claim because it did not arise from the factual
occurrences which, fairly construed, implicated the Udren
Defendants in her first pleading. Glover‘s
amended
FDCPA
claim specifically averred that the Udren Defendants violated
the FDCPA by ―failing to withdraw the Foreclosure
Complaint against Ms. Glover‖ after Glоver signed the
Modification Agreement, because the Foreclosure Complaint
constituted a ―continuing representation‖ that Glover had
defaulted on and had not yet paid her mortgage debt. (App. at
257a-58a, 290a-93a (Amend. Compl. ¶¶ 57-58, 179-90).)
Glover‘s
original
Complaint, by comparison, alleged no such
conduct by the Udren Defendants. In fact, amongst the
plethora of allegations made in Glover‘s 40-page and 139-
paragraph Complaint, Glover accused the Udren Defendants
only of making a debt-collection phone call and of filing a
Foreclosure Complaint demanding payment of purportedly
unlawful attorney‘s fees. Both of these ―communications‖ or
―representatiоns‖ would constitute violations of the FDCPA
that are factually and legally distinct from each other and
from the amended claim,
see
15 U.S.C. § 1692e (prohibiting
―any false, deceptive or misleading representation or means in
connection with the collection of any debt‖), and could
neither offer ―fair notice of the general fact situation‖ nor of
the ―legal theory‖ upon which Glover ‗s amended FDCPA
*16
claim relied.
Bensel
, 387 F.3d at 310. In other words,
Glover‘s amended FDCPA claim differed in ―time and type‖
from the claims earlier alleged against the Udren Defendants.
See Mayle v. Felix
,
We acknowledge, as we must, that the District Court arguably mischaracterized the relationship between Glover‘s original and amended FDCPA claims as bearing ―absolutely no connection.‖ Buried amidst Glover‘s excruciatingly and often excessively detailed pleading (so much so that it apparently evaded the eyes of the District Court), and presented almost as an afterthought, Paragraph 53 averred that:
―Although the monetary claims in Washington Mutual‘s Foreclosure Complaint have now long been resolved as a result of Wells Fargo‘s and Ms. Glover‘s January 4, 2008 loan modification, neither Washington Mutual nor Wells Fargo have withdrawn that Complаint . Thus, the now existing public record shows that Washington Mutual is pursuing a claim for well over $12,652.36 that, according to Wells Fargo‘s January []4, 2008 agreement is neither due nor owing. This again is a form of ‗double billing.‘‖
(App. at 57a-58a (Compl. ¶ 53)) (emphasis added). As
Glover observes, Paragraph 53 of the original Complaint
referenced the Modification Agreement and the Foreclosure
Complaint, both of which pertain to her amended FDCPA
claim against the Udren Defendants. Yet factual overlap
alone is not enough, because the original complaint must have
given fair notice of the amended claim to qualify for relation
back under Rule 15(c).
See
,
e.g.
,
Mayle
,
Fair notice was lacking here. Just as Rule 8(a) requires
that a complaint ―be presented with clarity sufficient to avoid
requiring a district court or opposing party to forever sift
through its pages in search‖ of the nature of the plaintiff‘s
claim,
Jennings v. Emry
,
Nor did Glover‘s sweeping allegation in Count IV of the original Complaint – that ―Debt collectors that make false representations about the ‗character, amount or legal status of any debt‘ violate the FDCPA, § 1692e(2)(A),‖ (App. at 72a (Compl. ¶ 110)) – provide clarity. The facts alleged in Count IV described only Wells Fargo‘s purportedly deficient notices and letters to Glover, and Glover‘s wholesale incorporation of the previous 106 paragraphs illuminated neither the acts that constituted ―false representations‖ nor the defendants liable for those acts. The absenсe of any limit in the application of Rule 15(c) to such expansive pleadings ―could cause defendants‘ liability to increase geometrically and their defensive strategy to become far more complex long after the statute of limitations had run.‖ Nelson , 60 F.3d at 1015 (quoting Leachman v. Beech Aircraft Corp. , 694 F.2d 1301, 1309 (D.C. Cir. 1982)).
Perhaps, by making several inferential leaps, the Udren
Defendants might have guessed that, hidden between the
factual allegations and the unmoored recitation of the
FDCPA, a claim might be asserted against them for the
conduct attributed to Wells Fargo and WaMu. But the
Federal Rules do not place the onus on the defendant to piece
*19
together the disparate fragments of a disjointed complaint to
distill the essence of a claim. Courts frown on ―pleading by
means of obfuscation,‖
Jennings
,
2. Statute of Limitations
Having rejected Glover‘s relation back argument, we turn to her arguments concerning the District Court‘s calculation of timeliness. A claim under the FDCPA ―may be brought . . . within one year from the date on which the violation occurs.‖ 15 U.S.C. § 1962k(d). Glover first contends that the District Court erred in finding that her claim accrued on the date the Modification Agreement was signed, as opposed to the date that the Udren Defendants learned of the existence of the Modification Agreement. She then argues that the District Court improperly calculated the *20 running of the statute of limitations during the period that her claims against WaMu were being reviewed by the FDIC, pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (―FIRREA‖), Pub. L. No. 101-73, 103 Stat. 183 (incorporated in various United States Code provisions). As did the District Court, we reject Glover‘s arguments.
a. Accrual of the Claim
We are not persuaded that the Udren Defendants‘
alleged violation of the FDCPA occurred only after learning
of the Modification Agreement. The FDCPA is generally
characterized as a ―strict liability‖ statute because ―it imposes
liability without proof of an intentional violation.‖
Allen ex
rel. Martin v. LaSalle Bank, N.A.
, 629 F.3d 364, 368 & n.7
(3d Cir. 2011);
accord Ellis v. Solomon & Solomon, P.C.
, 591
F.3d 130, 135 (2d Cir. 2010) (―To recover damages under the
FDCPA, a consumer does not need to show intentional
conduct on the part of the debt сollector.‖). Section
1692e(2)(A), which makes it unlawful for a debt collector, ―in
connection with the collection of any debt,‖ to make a ―false
representation‖ about the ―character, amount or legal status of
any debt,‖ is no different. The language of this provision
creates a straightforward, objective standard. Nothing
suggests that an allowance is to be made for a defendant‘s
lack of knowledge or intent. And notably, recognizing the
accrual of a claim only upon the intentional violation of the
FDPCA would undermine the ―deterrent effect of strict
liability,‖
Allen
, 629 F.3d at 368, despite our obligation to
construe the statute broadly to effectuate its remedial purpose.
See Brown
,
In this casе, Glover characterized her claim as a ―false representation‖ that she had not paid her debt, when, in fact, the Modification Agreement and her subsequent payments had taken her debt out of default. The representation that Glover had not paid her debt was false, regardless of whether the Udren Defendants knew it to be so. And although Glover suggests that her claim was for a ―continuing representation,‖ as opposed to a one-time communication, at no point does the FDCPA make such a distinction.
Glover relies on the language of the FDCPA‘s ―bona
fide error‖ defense in asserting that the violation must be
intentional, but her argument is misplaced. Under the bona
fide error defensе, ―[a] debt collector may not be held liable
. . . if the debt collector shows . . . that the violation was 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);
see
Beck v. Maximus, Inc.
, 457 F.3d 291, 297-98 (3d Cir. 2006)
(listing elements of bona fide error defense). The text of
§ 1692k(c) cuts against the very interpretation that Glover
offers: by immunizing a debt collector for an unintentional
violation where reasonable error-avoidance procedures have
been employed, § 1692k(c) indicates that a violation of the
FDCPA does not have to be intentional in the first place. An
interpretation of the FDCPA that required an intentional
violation would, of course, render this language pure
surplusage, a path which we decline to take.
See
,
e.g.
,
TRW
Inc. v. Andrews
,
Although, in certain situations, some courts have
determined that the FDCPA‘s statute of limitations begins to
*22
run on the date of ―the debt collector‘s ‗last opportunity to
comply with the Act,‘‖
Naas v. Stolman
, 130 F.3d 892, 893
(9th Cir. 1997) (brackets omitted) (quoting
Mattson v. U.S.
West Commc’ns, Inc.
,
Based on this exhaustion requirement, Glover argues that the District Court lacked jurisdiction over the litigation for the entire period during which the FDIC, as receiver for WaMu, had jurisdiction to review her claims against the bank. In calculating the timeliness of Glover‘s claim, however, the District Court simply added up the days during which the *24 Court was deprived of jurisdiction due to various non- contiguous stays and then added those days to the FDCPA‘s one-year limitations period, effectively extending the limitations period by 200 days. [7] Glover therefore contends that the District Court should also have included a period between the stays (from January 24, 2009 until March 20, 2009) during which the FDIC‘s review process was purportedly in motion.
Although Glover does not frame it as such, we
understand her jurisdictional argument as an attempt to justify
the application of equitable tolling. The doctrine of equitable
tolling ―can rescue a claim otherwise barred as untimely by a
statute of limitations [only] when a plaintiff has been
prevented from filing in a timely manner due to sufficiently
inequitable circumstances.‖
Santos ex rel. Beato v. United
States
,
First, we need not venture into FIRREA‘s intricate statutory web to determine that Glover‘s claim against the Udren Defendants was not subject to a jurisdictional bar. To the extent that it pertains to Glover‘s suit, FIRREA‘s jurisdictional bar governs solely ―(1) claims for payment from the assets of [the failed bank], (2) actions for payment from those assets and (3) actions for a determination of rights with respect to those assets.‖ Rosa v. Resolution Trust Corp. , 938 F.2d 383, 393 (3d Cir. 1991); 12 U.S.C. § 1821(d)(13)(D)(i). Glover‘s claim against the Udren Defendants was not a claim against a failed bank, to obtain payment from bank assets, or for a determination of rights with respect to those assets. She was not obligated to submit the claim to the FDIC, nor obligated to sit on her hands while the FDIC processed her claims against WaMu. We reject this argument accordingly.
Second, even if we were to apply FIRREA‘s jurisdictional bar to these claims, we agree with the First Circuit‘s well-reasoned opinion in Marquis that when a bank fails after a claim is filed in federal court, the jurisdictional bar does not apply. The text of 12 U.S.C. § 1821(d), Marquis held, ―show[s] Congress‘[s] discernible intent to preserve jurisdiction over civil actions filed against failed institutions prior to the FDIC‘s appointment as receiver.‖ 965 F.2d at 1153; see , e.g. , 12 U.S.C. § 1821(d)(5)(F)(ii) (―the filing of a claim with the receiver shall not prejudice any right of the claimant to continue any action which was filed before the *26 appointment of the receiver‖ (emphasis added)). In those circumstances, a district court may stay the proceedings upon request ―so as to permit exhaustion of the mandatory administrative claims review process,‖ but retains jurisdiction over the litigation, to resume if needed at the conclusion of the stay. Marquis , 965 F.2d at 1155; see 12 U.S.C. § 1821(d)(12)(A) (―After the appointment of [a receiver,] the . . . receiver may request a stay . . . .‖). Glover filed her original Complaint in state court on June 9, 2008, and it was removed to the District Court on July 14, 2008. The FDIC was appointed receiver for WaMu on September 25, 2008. Because the FDIC‘s receivership began after the case was removed to the District Court, the essence of the jurisdictional argument rings hollow.
Although there may have been some time periods that Glover was prevented from filing her FDCPA claims against the Udren Defendants because proceedings were stayed, there is no reason why the statute of limitations should be tolled by more than 200 days. Thus, we find no error in the District Court‘s determination that Glover‘s FDCPA claim was not timely.
B. F AIR C REDIT E XTENSION U NIFORMITY A CT The FCEUA, 73 Pa. Cons. Stat. Ann. § 2270.1 et seq. , prohibits ―unfair methods of competition and unfair or deceptive acts or practices with regard to the collection of debts,‖ id. § 2270.2, including any violation of the FDCPA by a ―debt collector.‖ Id. § 2270.4(a). Though premised on the same alleged FDCPA violation, the FCEUA imposes a two- year statute of limitations under which Glover‘s claim would *27 have been timely. Id. § 2270.5(b). Nevertheless, the District Court found that the Udren Defendants were not ―debt collectors,‖ and consequently that Glover failed to state a FCEUA claim against the Udren Defendants.
We will affirm the District Court, though on different
grounds. There can be no dispute that, based on the facts
alleged in the pleadings, the Udren Defendants qualify as
―debt collectors‖ under the FDCPA.
[8]
Whether a defendant is
*28
a ―debt collector‖ under the FCEUA, however, is somewhat
more complicated, because rather than adopting the FDCPA‘s
definition of ―debt collector,‖ the FCEUA provides its own.
Under the FCEUA, a ―debt collector‖ is ―[a] person not a
creditor . . . engaging or aiding directly or indirectly in
collecting a debt . . . .‖
Id.
§ 2270.3. The FCEUA includes
within this definition ―[a]n attorney, whenever such attorney
attempts to collect a debt, as herein defined, except in
connection with the filing or service of pleadings or discovery
or the prosecution of a lawsuit to reduce a debt to judgment.‖
Id.
§ 2270.3(3)(iii). This is narrower than the FDCPA
definition of ―debt collector.‖
See FTC v. Check Investors,
Inc.
,
*29
The Udren Defendants‘ activities were clearly ―in
cоnnection with . . . the prosecution of a lawsuit to reduce a
debt to judgment,‖ and so the Udren Defendants are not ―debt
collectors‖ under the FCEUA.
See Silva v. MidAtlantic
Mgmt. Corp.
,
V. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s dismissal of Glover‘s FDCPA and FCEUA claims against the Udren Defendants.
FCEUA incorporates ―any violation of the FDCPA,‖ the FCEUA states that such a violation must be committed by a ―debt collector,‖ for which it provides a definition that departs from that contained in the FDCPA. We will respect this legislative choice.
Notes
[*] The Honorable Solomon Oliver, Jr., Chief Judge of the United States District Court for the Northern District of Ohio, sitting by designation.
[1] These facts аre derived from Glover‘s original and
amended pleadings, and assumed to be true in our review of a
district court‘s grant of a Rule 12(b)(6) motion to dismiss.
Brown v. Card Serv. Ctr.
,
[2] WaMu assigned Glover‘s mortgage loan to Wells Fargo on November 15, 2006.
[3] The FDIC was appointed receiver for WaMu on September 25, 2008, by the Office of Thrift Supervision following a nine-day run on the bank‘s deposits. See Office of Thrift Supervision, OTS Fact Sheet on Washington Mutual Bank 3 (Sep. 25, 2008).
[4] This was an adroit compromise by the District Court
to allow the case to proceed in an orderly fashion, and bears
some significance on appeal. Notably, the District Court‘s
dismissal of the First Amended Complaint, though on the
merits, was not a final, appealable order because it was
without prejudice.
See Bethel v. McAllister Bros., Inc.
, 81
F.3d 376, 381 (3d Cir. 1996) (observing that ―an order
dismissing a complaint without prejudice is ordinarily not
appealable‖). Moreover, ―an amended complaint, once filed,
normally supersedes the antecedent complaint.‖
Connectu
LLC v. Zuckerberg
, 522 F.3d 82, 91 (1st Cir. 2008). Thus,
although we are free to affirm on any ground supported by the
record,
Hughes v. Long
,
[5] Because this is an appeal from an order dismissing
fewer than all of Glover‘s claims against two of the various
defendants, the parties to this appeal were required to obtain
certification under Federal Rule of Civil Procedure 54(b) that
the District Court‘s order was final and appealablе. To satisfy
Rule 54(b), the District Court was required to make an
express determination that there was ―no just reason for
delay.‖
Elliot v. Archdiocese of N.Y.
,
[6] Thus, it is of no moment that the date that the Udren Defendants purportedly learned of the Modification Agreement, March 3, 2008, was absent from the record when the District Court rendered its decision.
[7] FIRREA permits a receiver to request an initial 90-
day stay under 12 U.S.C. § 1821(d)(12)(A), and requires that
a determination to allow or disallow a claim be made within
the 180-day period after the filing of the claim with the
receiver under 12 U.S.C. § 1821(d)(5)(A)(i).
See Marquis
,
[8] A ―debt collector‖ undеr the FDCPA includes ―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.‖ 15 U.S.C.
§ 1692a(6). Before the filing of the Foreclosure Complaint,
an associate at Udren Law Offices called Glover requesting
immediate payment on her mortgage debt. Furthermore,
attorneys that ―regularly, through litigation, tr[y] to collect
consumer debts‖ are considered debt collectors under that
Act.
Heintz v. Jenkins
, 514 U.S. 291, 292 (1995);
FTC v.
Check Investors, Inc.
,
[9] Glover suggests that we should not read the FCEUA‘s definition of ―debt collector‖ to exclude from liability conduct prohibited by the FDCPA because doing so would contravene the purpose of incorporating the federal statute. However, our obligation is not to redraft statutes as we might think they should be crafted, but to give meaning to each provision as it is presently written. 1 Pa. Cons. Stat. Ann. § 1921(a). In doing so, we adhere to the plain meaning of the text. Id. § 1921(b). Rather than stating that the