Lead Opinion
Michael O’Rourke had a large outstanding balance on his credit card. Over the years, the unpaid debt was sold to several debt collectors and finally to Palisades Acquisition XVI. It sought but failed to collect on the debt and eventually sued O’Rourke in state court. Attached to the complaint was an exhibit that closely resembled a credit card statement listing the balance he owed and placing Palisades in the place of the issuer. O’Rourke sued in federal court claiming that the attachment violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“the Act”). Unlike most lawsuits under the Act, he claimed that the attachment was actionable because it was meant to mislead the state court judge. The district court granted summary judgment for Palisades and O’Rourke appeals. The Act regulates communications directed at the consumer; since it does not extend to communications that are allegedly meant to mislead the judge in a state court action, we affirm.
I.
In 2001, O’Rourke owed several thousand dollars on his Citibank credit card but, for reasons unknown, he never paid the bill. Over time, he mistakenly assumed that the debt was barred by the statute of limitations. Then one day he received a collection notice from a law firm representing the debt’s new owner, Palisades. He ignored it. Several months later, he received a summons and complaint with some exhibits attached. One of the exhibits was a statement that looked like a credit card bill, complete with a statement closing date several months before the complaint was filed, and it listed Palisades as the issuing. Despite looking authentic, it was not an actual copy of a credit card statement. And Palisades admits that it never sent the statement to O’Rourke before filing the suit.
O’Rourke eventually hired a lawyer, and on the day of trial, Palisades voluntarily dismissed the case. After Palisades dismissed its suit, O’Rourke sued it in federal court claiming that the exhibit violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692. Unlike most cases filed under the Act, O’Rourke doesn’t claim that the statement was materially deceptive to him or to the unsophisticated consumer. Instead, he claims that the statement is materially false, deceptive, and misleading to a state court judge, specifically one who is viewing it in the context of granting a default judgment.
O’Rourke frames his argument around the overburdened court system in Cook County, Illinois, the problems inherent in the debt collection business, and Palisades’s chicanery. He claims that in Cook County — where Palisades filed its complaint — there are over 100,000 contract-claim cases filed every year, where parties sue over bad debts. This massive volume of cases is divided between seven full-time judges, giving each over 14,000 of these cases a year, with most of them being resolved by default judgments. A judgment, of course, changes the nature of the obligation; the debt collector can now create a judgment lien on real estate, and enable other collection methods, including garnishing the debtor’s wages.
In most cases when a defendant fails to appear and answer the allegations in a properly pleaded complaint, those allegations are deemed admitted and default judgment is entered for the plaintiff. But the Illinois Rules of Civil Procedure also provide that even in the event the defendant fails to appear and plead, “the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” 735 ILCS 5/2 — 1301(d). Although it is unclear how often courts exercise their discretion and require proof of the allegations in the complaint, it does happen. E.g., Universal Cas. Co. v. Lopez,
Naturally, with the difficulties outlined above, debt collectors want to avoid having to prove their damages to the court, so they attempt to fully establish all the facts with the complaint and the exhibits. In Illinois, one way that a plaintiff can establish a debt is through the account-stated theory or method. Under that method, when a party receives a bill or account statement and does not object to it within a reasonable time, the bill or statement serves as evidence of both an agreement to pay and the account’s accuracy. Delta Consulting Grp., Inc. v. R. Randle Constr., Inc.,
With this understanding, the statement attached to the complaint in this case takes on an added significance. It explains why the statement would be dated for six months before the complaint was filed and why it was, in fact, never sent to O’Rourke: Palisades apparently wanted to give the judge the impression that O’Rourke had received the statement and never objected. Thus, a judge who examines the complaint and the attached statement trusting it to be authentic would believe that there is no reason to exercise his discretion and require additional proof of the debt.
While this reflects negatively on Palisades’s debt-collection practices, the question is not whether this dubious method is an acceptable means of practicing law. Nor is the question whether the attached
II.
We review de novo the district court’s granting of summary judgment. Ruth v. Triumph P’ships,
On appeal, O’Rourke continues to claim that the exhibit is materially false and would mislead the Cook County judge handling his case; thus, it violates § 1692e. That section is broadly written and prohibits the use of “any false, deceptive, or misleading representation^] or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. It then has a non-exhaustive list of conduct that violates the Act. O’Rourke specifically alleges that the misleading credit card statement violates § 1692e(2)(A) and (10). The first subsection prohibits the false representation of “the character, amount, or legal status of any debt.” The second prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt.” Nothing in those subsections or in § 1692e states that the Act applies to statements made to judges, but at the same time, the Act’s language is not specifically limited to statements directed at consumers.
Yet when read in light of the Act’s purpose and numerous provisions, the prohibitions are clearly limited to communications directed to the consumer and do not apply to state judges. The Act is meant “to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). To accomplish this purpose, § 1692e broadly prohibits a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Id. § 1692e. Many of the specific instances of conduct that violate this Section are protections for consumers. They keep consumers from being intimidated or tricked by debt collectors.
Our cases focus on the consumer, and we have rejected attempts to stretch the Act beyond its text and purpose. See Tinsley v. Integrity Financial Partners, Inc.,
Coming back to the question on appeal of whether the Act covers false statements made to judges, we turn to the Act’s language. Section 1692e states: “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” The text says nothing of to whom the representation has to be made for it to be actionable. Although the section’s language has no specific limits, it cannot be so open-ended as to include, for example, a misleading letter sent to the wrong address. See David v. FMS Services,
The concurrence disagrees. First, it believes we should resolve this case with reference to the unsophisticated consumer standard, because at least in the district court below O’Rourke claimed that Palisades intended to deceive and mislead the court and the debtor; thus, even if the document wasn’t created with him in mind, he was an indirect recipient. Post at 948-49. Second, it believes that communications meant to deceive judges fall under the Act, because § 1692e does not exclude any “class of persons” from the Act’s protection. Id. at 948. The concurrence reasons that state courts are a “medium through which debt collection information is conveyed to consumers,” id. at 949, and since state court judges can play “an extremely consequential role in the debt collection process,” filings meant to deceive the judge should also be covered under the Act. Id. But even under the concurrence’s position there would be classes of persons excluded from the Act’s protections. Instead of focusing on the “consumer,” courts would have to determine whether the person plays an inconsequential, a consequential, or “an extremely consequential role” in the process.
As a general matter, the Act and its protections do not extend to third parties. Although courts have extended the Act’s prohibitions to some statements made to a consumer’s attorney, Evory v. RJM Acquisitions Funding L.L.C.,
By drawing the line at communications directed at consumers — “any natural person obligated or allegedly obligated to pay any debt” — and those who stand in then-shoes, the Act fits its purpose: protecting consumers. This gives consumers the full breadth of protection that the Act permits and keeps us from reading into the Act whatever implausible ends O’Rourke’s lawyers can conjure up. This also avoids the arbitrary “class designation” of whether the third party has “an extremely consequential role in the debt collection process.” And it keeps us safe from the practical difficulty of parsing claims about whether a communication directed at a third party is actionable.
The question then becomes whether judges stand in the shoes of the consumer, such that the Act’s protections should be read to extend to them. Judges do not have a special relationship with consumers. They stand as impartial decision-makers in the discharge of their office. 28 U.S.C. § 453; 705 ILCS 35/2. They are neither a consumer’s advocate nor his adversary; their role is to ensure that the process is followed. They have no special relationship with the consumer; thus, the Act’s protections do not extend to communications that could mislead them.
III.
Because nothing in the Act’s text extends its protections to anyone but consumers and those who have a special relationship with the consumer, we hold that the Fair Debt Collection Practices Act does not extend to communications that would confuse or mislead a state court judge. Accordingly, the judgment of the district court is Affirmed.
Notes
. Nothing in the opinion states or should be read to address whether the Act applies to the entire judicial process. That question was left open in Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC,
. E.g., 15 U.S.C. § 1692e(2); id. § 1692e(4); id. § 1692e(5); id. § 1692e(10) (using "false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer”); id. § 1692e(ll) (prohibiting debt collectors from failing to “disclose in the initial written communication with the consumer ... that the debt collector is attempting to collect a debt”); see also Kropelnicki v. Siegel,
. For example, if we accept O'Rourke's argument, we would stretch an Act that is meant to protect the "unsophisticated consumer” and place its protections on a judge, a judge who has been to law school, who is likely an accomplished attorney before ascending to the bench, and who is presumed knowledgeable of the law due to his position on the bench — in other words, a sophisticated individual. And just as we have crafted standards for the "unsophisticated consumer” and the “competent lawyer,” Evory,
Concurrence Opinion
concurring in the result.
I agree with my colleagues’ ultimate conclusion that summary judgment was properly granted against plaintiff-appellant O’Rourke and in favor of Palisades. I write separately because I believe the holding of the majority opinion — that the “Fair Debt Collection Practices Act does not extend to communications that would confuse or mislead a state court judge,” ante at 944 — paints with a brush broader than necessary to resolve the issues presented here and in doing so potentially creates tension with the text of the Fair Debt Collection Practices Act (FDCPA or “the Act”) and the case law of our sister circuits. If the question before us is “whether the Act covers filings that are meant to deceive a state court judge,” ante at 941 n.l; see also id. at 940-41, 942, 944, I think the answer should be that even assuming it does, O’Rourke’s claim fails.
As the majority explains, O’Rourke built his case on a document that was attached to the complaint in a collection suit filed against him in a Cook County, Illinois, court. O’Rourke argued in the district court below that the document was misleading under the Act both to him as a consumer and to the Cook County judge who would have decided his case if it had not been dismissed. In this court, he confines his argument to the deceptive effect the document could have had on the judge. I mention this narrowing strategy because, in my view, O’Rourke failed to produce evidence that the document was false, misleading or deceptive to either a consumer or a judge. I think we can avoid deciding the more difficult question of whether a false statement made to a judge is proscribed by the Act by affirming the district court’s assessment that O’Rourke’s claim lacks sufficient evidentiary support.
I.
O’Rourke weaves allegations that the document at issue was misleading and deceptive into a broader narrative that it was patently false. His conflation of claims is not analytically problematic; we have rec
In some circumstances, we require FDCPA plaintiffs to produce extrinsic evidence to make this demonstration. As we explained in Ruth, plaintiffs who come forward with a document or statement that is clearly misleading or deceptive on its face are entitled to summary judgment on the basis of the document or statement alone. See Ruth,
O’Rourke has not produced anything showing that he or anyone else was misled, deceived, or otherwise duped by the document at issue. That would not pose an obstacle to his recovery if the document was on its face clearly misleading or deceptive. See id. at 801. But in my view' the document is not. O’Rourke’s theory is that the document is misleading because it appears as though it was sent to him, like a credit card statement, long before the suit against him was initiated, when in fact, it was not. O’Rourke points to the document’s display of his address and a “Statement Closing Date” of July 5, 2007. The address and date might lead an unsophisticated consumer to believe that the document had been sent to him previously, but maybe not. “Statement Closing Date” is not the equivalent of “Statement Sent On,” “Statement Prepared On,” a post office cancellation mark, or a “sent” stamp. “Our past cases indicate that summary judgment may be avoided by showing that the letter, on its face, will ‘confuse a substantial number of recipients.’ ” Williams v. OSI Educ. Servs., Inc.,
Given the document’s potential to cause confusion, it cannot be considered so clearly compliant with the FDCPA on its face that summary judgment for Palisades can be granted on that basis alone. See id. at 800 (discussing cases in which we granted summary judgment for debt collectors because the challenged documents or statements “plainly, on their face, [were] not misleading or deceptive”); see also Wahl,
I am left to conclude that the document at issue falls somewhere in the middle of these extremes: it is not so misleading on its face as to warrant immediate summary judgment for O’Rourke, but it is not so clear (and not misleading) on its face as to warrant immediate summary judgment for Palisades. I acknowledge that this document has a “potential for deception of the unsophisticated,” Evory,
O’Rourke attempted to meet this burden by submitting a purported expert report from an attorney who had experience with debt collection suits in Cook County Circuit Court. After reviewing fifty-eight cases brought by Palisades and thirty-seven collection cases brought by non-party debt collector Midland Funding, LLC, O’Rourke’s proposed expert presented two opinions: “(1) In most cases brought by or on behalf of Debt Buyers, an ex parte default judgment results without a prove-up on damages. (2) Attaching a statement of account to the complaint creates the appearance that the document was sent to the debtor prior to the litigation which was not objected to giving rise to an Account Stated.” The district court concluded that neither of the opinions was predicated on reliable methodology and excluded the report on that basis. See Ammons v. Aramark Uniform Servs., Inc.,
O’Rourke did not bring any other evidence to the table. He therefore was unable to create a genuine issue of material
It is true that we have applied a different standard — that of the “competent lawyer” — when assessing FDCPA claims brought in response to statements made to lawyers rather than consumers. See Evory,
The events here do not require us to even begin down that rabbit hole, however.
II.
As the preceding section demonstrates, this case can be resolved without expand
My colleagues correctly emphasize that the purpose of the FDCPA is to protect consumers. See ante at 941-42. I am not convinced, though, that the Act necessarily should be read to exclude misleading documents submitted to a court from its proscriptions.
By its terms, 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 disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). This language is quite expansive; the Sixth Circuit has characterized the Act as “extraordinarily broad.” Hartman,
While we deferred for another day the “decision whether § 1692e covers the process of litigation” in Beler,
Of course, it does not appear that the parties in Gearing or Veach disputed the applicability of the Act to the allegations in documents filed in state court, so I don’t contend that the majority opinion in our case is in direct conflict with these decisions; they will simply remain as anomalous results. See Hughes v. United Air Lines, Inc.,
I respectfully suggest that the language of the Act may be expansive enough to prohibit misleading submissions to a court, that is, to a court which can impose liability on the debtor. Cf. Wright v. Fin. Serv. of Norwalk, Inc.,
Applying 15 U.S.C. § 1692e in this way should not “stretch” it “beyond its text and purpose.” Ante at 942. While we recently emphasized in Tinsley v. Integrity Fin. Partners, Inc.,
Restricting our understanding of the FDCPA to exclude communications to judges also has the potential to put us at loggerheads with some of our sister circuits. In a case involving a questionable statement virtually identical to the one at issue here, see Hartman,
Answering the question of whether § 1692e covers the papers filed in a state court collection suit is unnecessary here, just as it was in Beler,
. The majority cautions that consideration of whether materials submitted to judges are violative of the FDCPA could require the crafting of a "judge test,” and perhaps others, see ante at 943-44 & n.3, leading a parade of horribles down the road to “practical futility,” id. at 943-44 n.3. At least with respect to judges, I respect fully disagree. Federal courts are well-suited to determine whether statements submitted to judges in collection cases are likely to mislead or deceive them.
. This is not to say I contend, as the majority suggests, ante at 942-43, that the extent of an individual's role in the debt collection process should be used to determine whether the FDCPA's scope is wide enough to encompass statements directed primarily at that individual. My point is that courts, unlike third parties who have contracts with debt collectors that are unrelated to the debt collection process, see Volden v. Innovative Fin. Sys., Inc.,