Case Information
*2 Before W OOD , Chief Judge , F LAUM S YKES , Circuit Judges .
W OOD Chief Judge
underlying question presented these two appeals, which we consolidated purposes opinion, relates circumstances which dunning time barred could mislead unsophisticated consumer believe enforceable court, thereby violate Fair Debt Collection Practices Act (FDCPA), U.S.C. § et seq. After oral argument these cases, we held efforts collect barred debts can violate statute. See Phillips Asset Acceptance, LLC, F.3d (7th Cir. 2013). In Delgado, face variant on issue; concerns effect letter. McMahon raises question possible mootness wake defendants’ effort buy out putative named plaintiff. We conclude McMahon moot, thus district court’s dismissal action must reversed. Delgado, before interlocutory appeal based U.S.C. § 1292(b), denied defendants’ dismiss. affirm decision. &
I. Facts A. McMahon 1997, Scott McMahon received bill from utility
company, Nicor Gas. Apparently McMahon did pay bill. Fourteen years later, September defendant LVNV Funding, LLC, purchased debt, then for $584.98. LVNV retained collection agency, Tate Kirlin (Tate), pursue payment. (Although there are several defendants, refer them as LVNV for ease exposi tion.) Tate sent sparked this lawsuit McMahon December At top letter, formation about immediate creditor (LVNV), previ ous creditor (Nicor Gas), total due ($584.98) ap peared. text read follows:
This account has listed our office collection. This communication from debt collector. This attempt collect any information obtained will used purpose. An Opportunity: are pleased extend you settle your account $233.99. This represents savings 60% off your balance.
Unless you notify this office within days af ter receiving this notice you dispute validity this or any portion thereof, this office will assume this valid. If you noti fy this office writing within days re ceiving this notice you dispute validity portion thereof, this office ‐ ‐ will obtain verification of the or obtain a copy of judgment and mail you copy of such judgment or verification. If you request this office [ sic ] writing within days after receiving this notice this office will provide you with name and address original creditor, different from current creditor. At bottom page there was tear off payment cou pon, recipient was instructed detach return with his payment. said nothing about when was incurred, contained no hint four year statute limitations applicable Illinois had long since expired. See ILCS 5/2
On receiving letter, McMahon responded Tate request verification, stating “we can settle quickly” once verified. In January 2012, one LVNV’s affiliates (defendant Resurgent) replied McMah on. It gave him some details, including fact LVNV now owned debt, LVNV had acquired Nicor September 23, 2011, amount $584.98. Resurgent kept mum, however, about advanced age debt—a detail alerted either McMahon his lawyer fact he had iron clad defense under statute limitations. next month, McMahon filed suit Fair
Debt Collection Practices Act (FDCPA), U.S.C. §§ 1692e, 1692f, behalf himself class. On July 5, 2012, issued order dismissing McMahon’s wide allegations, but denying LVNV’s motion dismiss his individual claims. McMahon promptly filed re consider. order dated August denied motion to reconsider “our earlier dismissal of his class wide claims,” but it granted him leave amend his class complaint. Hours later, LVNV’s attorney sent fax McMahon’s attorney offering settle case. In exchange for McMahon’s dropping his class claims, LVNV offered pay McMahon (1) statutory damages amount of $1,000 satisfy his remaining individual claim under FDCPA, (2) costs incurred his individual claim, (3) reasonable attorney’s fee, (4) “any other reasonable relief” event court concluded more necessary. McMah did respond offer. Instead, two days later, he filed amended class complaint along with amended motion for class certification. LVNV responded same settlement offer, but McMahon again ignored it.
At point, LVNV moved dismissal entire case under Federal Rule Civil Procedure 12(b)(1). LVNV took position its settlement offer rendered McMah on’s individual claim moot, made McMahon inadequate representative proposed class. found August fax offered McMahon com plete recovery his individual claim, made pri class certification, thus had effect de priving McMahon personal stake litigation. With no controversy meeting requirements Article III before it, granted LVNV’s dismiss want jurisdiction. his appeal, McMahon contests both find ing LVNV’s mooted original dismissal claims FDCPA.
B. Delgado
On February defendant Capital Management Services LP (CMS) sent collection plaintiff Juanita Delgado, another resident of Illinois. stat ed, relevant part:
Dear Juanita Delgado,
This company has engaged RESURGENT CAPITAL SERVICES, LP, servicer of account, resolve your delin quent debt of $2404.13. Please submit your payment make your check or money order payable Capital Management Services, LP, above address. Unless you notify this office within days after receiving this notice you dispute validity of this or any portion thereof, this office will assume this valid. If you noti fy this office writing within days re ceiving this notice you dispute validity this or portion thereof, this office will obtain verification or obtain copy judgment mail you copy such verification judgment. If you request this office writing within days after re ceiving notice this office will provide you name address original cred itor, different than current creditor.
Capital Management Services, LP author ized accept less than balance due above account. settlement amount $721.24, represents 30% amount presently owed, due our office no later than forty five (45) days after receiving ‐ & ‐ this notice. are obligated renew this offer.
For your convenience, may be made online at: www.cms ‐ trans.com. For other payment options, please contact Capital Management Services … This attempt collect debt; any ‐ formation obtained will used pur pose. This communication from col lector. letter did say CMS was time ‐ barred en
forcing under Illinois’s statute limitations, nor did disclose when was incurred. In fact, Delgado’s let ter about eight year old debt, meant collection action would barred by Illinois’s statute limitations, if debtor were savvy enough raise point. also instructed recipient “detach return [the] top portion payment.”
Using same lawyer McMahon, Delgado filed complaint FDCPA charging CMS violated statute sending barred including “settlement” which, accepted, fact make debtor worse off. CMS filed dismiss failure state claim. considering mo tion, decided appropriate give Skidmore deference views Federal Trade Com mission, Consumer Financial Protection Bureau, Fed eral Deposit Insurance Corporation, Federal Reserve Board, Office Comptroller Currency. See Skidmore Swift Co., U.S. (1944). As those agencies ‐ 13 ‐ 2030 had argued other cases, the court held that when “collect ‐ ing on a time barred debt a debt collector must inform the consumer (1) collector cannot sue collect debt (2) providing a partial payment revive collec tor’s ability sue collect balance.” also found reference Delgado’s letter of a possible “settle ment” debt deceptive, because implied a legally enforceable obligation pay debt existed. CMS filed a U.S.C. § 1292(b) immediate ap peal, given importance issues. This accepted appeal on May 8, Delgado’s request certifi cation is still before district court, has suspended proceedings pending outcome appeal.
II. District Court Decisions reaching their respective conclusions, both district courts noted least Third Eighth Circuits found sending letters time ‐ barred debts does violate FDCPA unless accompanied threat litigation. See Huertas v. Galaxy Asset Mgmt. , F.3d (3d Cir. 2011) (plaintiff’s FDCPA claim regard ing attempt collect time barred “hinges whether [the dunning] threatened litigation”); Frey ermuth Credit Bureau Servs., Inc. F.3d (8th Cir. 2001) (“[I]n absence threat litigation actual liti gation, no violation FDCPA has occurred when collector attempts collect potentially time barred otherwise valid.”). courts acknowledged several federal agencies do agree Third Eighth Circuits. For example, FTC has found nondisclosure fact barred might deceive consumer ‐ ‐ least two ways: first, because most consumers do not know or understand their legal rights with respect to the col ‐ lection time ‐ barred debt, attempts collect on such debt may create a misleading impression that consumer has no defense a lawsuit; and second, consumers often do know that many states making a partial payment on a stale actually revives entire even if it was otherwise time ‐ barred. Given potential for confusion, and avoid creating a misleading impression, FTC rec ‐ ommended collector knows or should know it collecting on ‐ barred debt, must inform consum er (1) collector cannot sue collect debt, (2) providing partial payment revive collector’s abil ity sue collect remaining balance. F ED T RADE C OMM ’ N , T HE S TRUCTURE AND P RACTICE OF THE D EBT B UYING I NDUSTRY (2013) (FTC Report 2013). Both district courts were also aware FTC had secured consent decree Asset Acceptance, LLC. See United States Asset Ac ceptance, LLC, No. 8:12 cv T ‐ 27EAJ (M.D. Fla. 2012). That decree requires company disclose consumers whether knows believes incurred out side limitations period, using language: “The law limits how long you can sued debt. Because age your debt, will sue you for it.” Delgado found FTC’s position persuasive thus denied CMS’s dismiss. It held that, debts aged beyond period limita tions, contains no disclosure about when incurred, implications date its enforceability, consequences making pay ment it, may mislead deceive unsophisticated con sumers. As specific Delgado received, included an offer to “settle,” district court found it plau sible unsophisticated consumer could deceived into believing offer implies a legally enforceable obligation to pay debt. McMahon district court took different turn. After
providing its views merits interim order dis missing McMahon’s class allegations, refusing dismiss his individual claim, and giving him leave replead, court dismissed entire action want jurisdiction. As we noted earlier, hours after district denied reconsideration its order dismissing claims, LVNV sent fax McMahon with settle his indi vidual claim. That offer, LVNV argued, rendered McMahon’s individual claim moot, same made him inadequate representative class. The district agreed with analysis so dismissed case want proper Article III case controversy.
Although court’s order Delgado inter locutory, properly before us under U.S.C. § 1292(b). The judgment McMahon final judgment, so our jurisdiction over secure U.S.C. § On May we invited FTC file brief amicus curiae Delgado FTC accepted our invitation filed brief jointly Consumer Financial Protection Bureau (CFPB). appreciate their willingness assist court.
III. Mootness Even though possible mootness haunts only McMahon, think best discuss point before turning sues common two appeals. pertinent cases *11 11 12 3504 13 2030 this court include Scott v. Westlake Servs. LLC 740 F.3d 1124 (7th Cir. 2014), Espenscheid v. Directsat USA, LLC, 688 F.3d 872 (7th Cir. 2012), Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), Rand v. Monsanto Co., F.2d 596 (7th Cir. 1991). Ultimately, however, governing principles come Supreme Court’s decisions Genesis Healthcare Corp. v. Symczyk, S. Ct. (2013), U.S. Parole Comm’n v. Geraghty, U.S. (1980), Deposit Guar. Nat’l Bank, Jackson, Miss. Roper, U.S. (1980).
Symczyk was case brought individual plaintiff Fair Labor Standards Act. She asserted her employer had not counted her work hours properly, this had led violation Act’s overtime provi sions. She sought bring as collective action un der FLSA, provides specialized opt type aggregate litigation. At when no other employee company had joined case, employer presented offer statutory damages amount $7500, plus “such reasonable attorneys’ fees, costs ex penses as Court may determine.” The offer said withdrawn was accepted within ten days.
Plaintiff did accept offer, but district concluded her claim was moot nevertheless, because employer had offered her everything she could possibly re ceive individual. Third Circuit reversed, but Supreme Court held had correct. A number considerations led conclusion. First, Court stressed all agreed employer’s complete. S. Ct. at 1528. addition, everyone proceeded assumption Symczyk’s individual claim moot. Id. Court held that, absence *12 12 12 3504 & 13 2030 cross appeal, plaintiff had waived chance revisit pivotal question. Furthermore, Court rejected Symczyk’s effort rely on precedents from Federal Rule Civil Pro cedure which described “fundamentally different from collective actions FLSA.” Id.
The Symczyk Court distinguished Geraghty , which had held Rule class has status separate named plaintiff, live controversy sometimes continues exist even after named plaintiff’s claim comes moot (as there), even class certification has denied. Court attached importance fact named plaintiff’s claim remained live at dis trict court denied class certification. See Symczyk, S. Ct. at (discussing Geraghty, U.S. at n.11). grounds Symczyk Court distinguished Roper are even more pertinent our case. Roper, puta tive class representatives’ claims became moot after dis trict denied class certification. As here, defendant had offered judgment “the maximum recoverable amount damages, addition interest costs.” Symczyk, S. Ct. at 1531–32 (discussing Roper, U.S. at 329–30). Nonetheless, “under particular circumstances case, named plaintiffs possessed ongoing, per sonal economic stake substantive controversy— namely, shift portion attorney’s fees expenses successful class litigants.” Id at Against backdrop, Roper “observe[d] allowing defendants pick off party plaintiffs before affirmative ruling achieved frustrate objectives actions.” Id. (quoting Roper U.S. 339) (internal quotation marks omitted). Thus, Roper turned plaintiffs’ continuing personal economic stake in the litigation even after the offer of judgment, the unique significance of certification decisions in Rule class actions.
Although Symczyk lay future at this court decided Rand Monsanto, supra, our decision anticipated lines Court was later draw. Rand, after district court denied class certification, defendant offered full settlement Rand (his full alleged damages plus costs suit). F.2d at 597. We recognized rendered Rand’s individual claim moot, but Roper “the dis pute about class certification survives.” Id. at 598. dis trict court had thought Rand inadequate representa tive for class not because settlement, but because Rand had expressed willingness bear costs litigation. That, we said, demanded too much Rand, so we remanded district take another look at Rand’s suitability act as class repre sentative.
Espenscheid FLSA ultimately denied class certification (for some supplemental state claims) defendants then settled named plaintiffs. Later, plaintiffs appealed denial class certification, defendant fired back appeal had be dismissed because plaintiffs no longer had live interest case. We rejected argument, however, cause provision agreement stated plaintiffs were seeking incentive award their services class representatives. F.3d at 874. pointed out also representative assumes risk liability defendants’ costs even, some instances, attorneys’ fees. Id. Finally, saw no reason extend these *14 14 12 ‐ 3504 13 ‐ 2030 holdings to FLSA collective action part of case. We therefore denied motion dismiss appeal for want jurisdiction. Damasco, clarified important point about timing class certification motions efforts pick off a putative class representative. Damasco reconfirmed our cir cuit’s rule under which defendant can render moot a pos sible class action offering settle for full amount plaintiff’s demands before plaintiff files for class certification. 662 F.3d at 896; see Holstein v. City Chi cago, F.3d 1145, 1147 (7th Cir. 1994). (Other circuits use more flexible rule, which representative need only file class certification without undue delay af ter receiving settle. See Pitts v. Terrible Herbst, Inc., F.3d 1081, 1091–92 (9th Cir. 2011); Lucero v. Bureau Col lection Recovery, Inc., F.3d 1239, 1250–51 (10th Cir. 2011); Sandoz v. Cingular Wireless LLC, F.3d 920–21 (5th Cir. 2008); Weiss Regal Collections, F.3d (3d Cir. 2004). We do need resolve difference opinion present case.) noted Damasco there simple solution putative class representative who wishes avoid mootness buy off: move certify at same complaint filed. F.3d 896.
These threads came together recently Scott, case plaintiff filed suit behalf herself others similarly situated over alleged violations Telephone Consumer Protection Act, U.S.C. § Before Scott moved certify plaintiff class, defendant offered pay her statutory damages calls violated statute. She declined offer, but held had become moot, so dismissed, just district court did in McMahon’s case. noted (consist ‐ ently with Symczyk ) Damasco holds unaccepted settlement offer “can render plaintiff’s case moot it gives plaintiff everything she requested.” WL at *2 (emphasis added). The problem with offer Scott was it did not meet condition language we italicized. The defendant there, rather than offering to satisfy Scott’s entire demand, reserved right to challenge unwanted telephone calls gave rise to penalties. The district was engaged odd form post judgment discov ery determine how many qualifying calls existed. That was not enough, held, constitute full fer, and thus Scott’s individual case was moot.
Applying these principles McMahon’s straight forward. McMahon’s original complaint asserted both indi vidual class claims. court’s order July 5, 2012, dismissed class claims Federal Rule Civil Procedure 12(b)(6), because problem with McMahon’s ability represent class, but substantive reasons. Indeed, McMahon’s individual claims survived ruling. McMahon sought reconsideration class ruling, but August 2012, denied motion; same time, it expressly granted McMahon permission amend allege narrower class claims. Two hours later August LVNV tried pick off McMahon’s individual claim offer settlement. offer, however, no more resolution matter than Scott Espenscheid It required McMahon accept $1,000 all damages individual claims against all defend ants; it offered costs attorneys’ fees related his indi vidual claims; insisted he dismiss claims without prejudice; demanded he refrain appeal ing denial class certification; and, most importantly, it promised only to give any other “reasonable” relief court thought necessary. (This indicates LVNV was re serving right to object to any additional relief deemed unreasonable.) McMahon did accept offer. Instead, he filed amended complaint amended motion class certification (in accordance with Damasco ) August district took position offer set tlement squeaked in wire, just before McMahon moved class certification. But motion August was amended motion. McMahon already had brought his class claims before court, had stated in so many words litigation was still ongoing when gave him permission amend. McMahon diligent pursuing his class claims: he filed his amended complaint his new certify class just two days after gave him leave do so. Had McMahon tried appeal original denial class certification, even assuming LVNV’s offer comprehensive enough moot his case, he exactly same posi tion as Roper plaintiff. conclude, therefore, McMahon’s decision reject LVNV’s did moot his interest purposes his ability serve representative.
IV. FDCPA Issues
Turning merits, must consider how FDCPA applies letters both McMahon Del gado received. Act prohibits use “any false, de ceptive, misleading representation or means connection collection debt.” U.S.C. § 1692e. Section *17 17 12 3504 & 13 2030 1692e furnishes a nonexclusive list of prohibited practices, including following: false representation character, amount, or legal status any debt, § 1692e(2)(A); threat take any action cannot legally be taken, § 1692e(5); use any false representation or deceptive means collect or attempt collect any debt, § 1692e(10). Section 1692f pro ‐ hibits collectors from using “unfair or unconscionable means collect attempt collect debt.” “[I]n decid ing whether … a representation made a dunning letter is misleading asks whether a person modest edu cation limited commercial savvy would be likely be deceived.” Evory v. RJM Acquisitions Funding L.L.C. , 505 F.3d 769, 774 (7th Cir. 2007). views letter through perspective “unsophisticated consumer.” Lox v. CDA, Ltd. , 689 F.3d 818, 822 (7th Cir. 2012). This standard applies claims both § 1692e § 1692f. Turner v. J.V.D.B. & Assoc., Inc. , F.3d 991, 997 (7th Cir. 2003).
Whether letter is confusing is question fact. Evory , F.3d Dismissal is appropriate only when “it ‘apparent reading even significant fraction population be misled it.’” Zemeckis v. Global Credit Collection Corp. , F.3d 632, (7th Cir. 2012) (quoting Taylor v. Cavalry Inv., L.L.C. , F.3d (7th Cir. 2004)). “[A] may confuse even though internally contradictory. Unsophisticat ed readers may require more explanation than do federal judges; what seems pellucid judge, legally sophisticat ed reader, may opaque someone whose formal educa tion ended after sixth grade.” Johnson Revenue Mgmt. Corp. F.3d (7th Cir. 1999). Recognizing distinc tion between what may confuse federal judge un sophisticated consumer important because intended ‐ ‐ recipients dunning letters span entire range abili ‐ ties. We therefore cautioned against reliance “on our intuitions.” Evory F.3d at
Given this standard well reasoned position put forth FTC CFPB, we find that in Delgado correct in denying defendants’ dis ‐ miss. McMahon will need take fresh look at class allegations in case, even if it concludes that McMahon himself (apart his interest as class repre ‐ sentative) cannot go forward. do hold it is auto ‐ matically improper debt collector seek repayment time barred debts; some people might consider debt re ‐ payment moral obligation, even though legal remedy debt has extinguished. But, held Phil ‐ lips, supra, debt collector uses language its letter would mislead unsophisticated consumer into believing debt is legally enforceable, regardless whether actually threatens litigation (the require ment Third Eighth Circuits added mix), collector has violated FDCPA. Because it is plausible unsophisticated consumer believe fers “settle” implies is legally enforce able, correct Delgado decline dismiss action stage, incorrect dismiss allegations McMahon proposition collector violates FDCPA
when misleads unsophisticated consumer believe barred legally enforceable, regardless wheth er litigation threatened, straightforward stat ute. Section 1692e(2)(A) specifically prohibits false repre sentation character legal status debt. Wheth *19 19 3504 13 2030 er a debt legally enforceable is a central fact about character legal status of that debt. A misrepresentation about that fact thus violates FDCPA. Matters may be even worse if collector adds a threat litigation, see U.S.C. § 1692e(5), but such a threat not a necessary element claim. recognize that this interpretation conflicts that Eighth Third Circuits. See Huertas v. Galaxy Asset
Mgmt. , F.3d (3d Cir. 2011); Freyermuth Credit Bu reau Servs., Inc. F.3d (8th Cir. 2001). With re spect, however, we have concluded that statute cannot bear reading those courts have given it. their view, time barred states collector could sue but promised to, would not violate FDCPA, since no litigation was actually threat ened (and indeed expressly rejected). On its face, may seem reasonable, but closer examination reveals why it not. plain language FDCPA prohibits only threatening take actions collector cannot take, but also use any false, deceptive, or misleading represen tation, including those about character legal status debt. If collector stated could sue barred but promising forbear, statement false representation about legal status debt.
In event, before us is nowhere near that line. Neither LVNV nor CMS gave a hint that debts that they were trying collect were vulnerable ironclad limita tions defense. An unsophisticated consumer who read letter Delgado McMahon received could have led believe that her legally enforceable. other words, letters misrepresented legal status debts, in violation FDCPA. The courts in Huertas and Freyermuth do not explain why such a misrepresentation about legal status debt, wholly apart a threat litigation, does not violate Act. fact that both Del gado McMahon’s letters contained makes things worse, not better, since a gullible consumer who made a partial payment would inadvertently reset limitations period made herself vulnerable suit amount. That is why those offers only reinforced misleading impression legally enforce able.
Relying part opinion in Rice v. Midland Credit Mgmt., Inc., F. Supp. 2d (N.D. Ill. 2013), defendants argue there is nothing misleading about use word “settle” context. there wrote “[b]ecause unsophisticated consumer is not ‘dimwit’ is capable making ‘basic logical infer ences,’ not misleading truthfully state owed paying would settle debtor ʹ s ac count. That is, after all, true. If debtor who receives such jumps conclusion he may sued he does pay, inference attributable letter.” Id. At 1048; see also Crawford Vision Fin. Corp. WL *3 (N.D. Ill. Nov. 2012) (opining “an unsophisticat ed debtor likely interpret term ‘settle’ ‐ collection to mean only ‘settlement’ a debt, not settlement a lawsuit”). Neither FTC nor CFPB take such a sanguine view abilities typical recip ient dunning letters. They have found to contrary most consumers do not understand their legal rights with respect to barred debts. F ED T RADE C OMM ’ N , R EPAIRING A B ROKEN S YSTEM : P ROTECTING C ONSUMERS IN D EBT C OLLECTION L ITIGATION AND A RBITRATION 26–27 (2010). are inclined defer to agencies’ empirical re search expertise. If a consumer received “offer for settlement” searched Google see what is meant by “settlement,” she might find Wikipedia entry “set tlement offer.” Settlement offer W IKIPEDIA , (Mar. at 4:06 pm), http://en.wikipedia.org/wiki/Settlement_offer. There she would learn term “offer settle” “used a civil lawsuit describe a communication one par ty other suggesting settlement—an agreement end lawsuit before judgment rendered.”
Our reasoning Evory supports understanding. There considered whether settlement contained per se unlawful § 1692f. con cern unsophisticated consumers receiving letters language like “Act now receive 25% off your current balance!” would believe if they did pay deadline, they would have later chance settle less than amount. Such belief often ill founded, because “debt collectors, who natu rally are averse instituting actual collection proceedings typically modest sums involved consumer collection business, frequently renew their offers con sumer fails accept initial offer.” Evory, F.3d 3504 13 2030 The recipients the letters, however, would believe that if they did not immediately accept the offer, they would face legal proceedings where the amount would be demand ‐ ed. risk here is similar: settlement offer on time ‐ barred debt implies that the creditor could successfully sue on the debt. If unsophisticated consumers believe either that the is their chance avoid proceed ings where they would be defenseless, they believe that the debt is legally enforceable at all, they misled, debt collector has violated FDCPA.
Our decision today does require debt collectors conduct additional research. If debt collector does know whether debt submitted for collection is time barred, it be easy include general language about possibility. That said, we find it unlikely debt own ers lack knowledge about age debts they are at tempting collect. If debt collector is original credi tor, it will know relevant dates. If collector is third party collecting on behalf original creditor, should easily be able get information at time file assigned original creditor on whose behalf acting. If collector has purchased debt from original creditor, know FTC such buyers pay differ ent amounts for debts depending age debt number previous attempts collect it, whether barred should known. See FTC Report FTC’s study found “debt buyers paid average 3.1 cents per dollar for debts were years old 2.2 cents per dollar debts were years old compared 7.9 cents per dollar debts less than years old. Finally, buyers paid effectively nothing accounts were older than fifteen years.” Id. 23–24. Finally, collector third party acting behalf buyer, should be able get relevant information party whose behalf acting.
V. Conclusion In summary, we conclude unsophisticated con sumer could misled barred debt, especially uses term “settle” “settle ment.” thus AFFIRM court’s denial defend ant’s dismiss Delgado McMahon, REVERSE REMAND further proceedings consistent opinion.
[1] Because opinion creates conflict circuits adopting position responsible agencies, circulated Circuit Rule 40(e). No judge regular active service wishes hear en banc