*1 (4) Conclusion IV. the determina- judgment; final to the was essential the issue tion of reasons, judg- foregoing For judgment. subject appeal to this ments affirmed. Inc. v. Media Power Co. Latin Am. Music Cir.2013) (1st 34, 42 Inc., 705 F.3d Grp., v. Barb Enters. Mercado-Salinas
(quoting (1st
Int'l, Ltd., 21-22 Cir. 671 F.3d
2011)). attacks on launches three
Daniels (1) facts here cannot that the
judgment: revocation, because support a fraud-based Gutierrez, VINCENT, Ruth Ann Lori Jo information immaterial only he omitted Garrido, Garrido, John Linda U. (2) schedules, that a debtor from his and all others behalf of themselves he discharge where should not be denied situated, Plaintiffs-Appel similarly preparing the advice of counsel relied on lants, (3) schedules, that col- bankruptcy his apply “as the estoppel lateral does Plaintiff, Mazzei, Joseph Bankrupt- here is not identical issue v. cy prior holding.” Court’s STORE, Mortgage, THE MONEY TMS easy to objections are His first two HomeEq Servicing Incorporated, Cor already explained, have dispatch; we Stawiarski, Moss, Codilis, poration, above, mis why Daniels’s omissions and Morris, Prior, LLP, Def Schneider & why his claim are material and statements endants-Appellees.* fails.23 Nor can of reliance on counsel action to force the revocation Daniels use Docket No. 11-4525-cv. alleged mis additional evidence Cohen’s Appeals, United States Court “Although into the record. feasance Second Circuit. judgment to a changes in facts essential estoppel inapplicable render collateral will 8, 2012. Argued: Nov. raising action the same subsequent in a Nov. 2013. Decided: issues, circumvent the doc party cannot merely by present preclusive trine’s effect that was available
ing additional evidence action.” Latin
to it at the time of first (citations Co., 705 at 42
Am. Music omitted). marks quotation
and internal has waived his third
Finally, Daniels failing suggest how the
argument by proceedings in the two differed.
two issues Zannino,
See United States Cir.1990) (1st claims are (perfunctory 28(a)(9).
waived); R.App. P. Fed. * Court is directed to amend help him as The Clerk of the cited cases do not Daniels’s they caption consider the issue of collateral set forth above. do not of this case as estoppel. *2 (Edward T.
Daniel A. Pollack McDer- brief), mott, Kobelt, on the W. Hans LLP, York, English, & New McCarter N.Y., Mon- Defendants-Appellees Store, Inc., Mortgage, HomeEq ey TMS *3 Servicing Corp. Chizewer, Kohn, Goldberg,
David J. Moritz, Ltd., Bell, Black, Rosenbloom & IL, Chicago, Defendant-Appellee for Moss, Codilis, Stawiarski, Morris, Schneid- Prior, & LLP. er KATZMANN, Judge, Before: Chief LIVINGSTON, LOHIER, Circuit Judges.
KATZMANN, Judge: Chief if requires This us to determine case protections the Fair Debt consumer (“FDCPA”), Practices Act Collection seq., 1692 et Truth in and the (“TILA”), 1601 et Lending Act 15 U.S.C. seq., apply mortgage to a lender that has initially payable to purchased mortgages and, after the homeowners other lenders hired a law mortgages, defaulted on their allegedly deceptive firm to debt col- send lection letters on its behalf. Plaintiffs- Vincent, Ruth Ann Appellants Lori Jo Gu- tierrez, Garrido, Linda and John Garrido (collectively, from a “plaintiffs”) appeal District judgment of United States for the Southern District of New Court (Koeltl, J.), granted York which defen- summary judgment dants’ motion for plaintiffs’ plain- TILA claims and denied of the dis- tiffs’ motion for reconsideration J.) (Sprizzo, trict court’s earlier dismissal against of their claims Defen- FDCPA Store, dants-Appellees Money TMS Inc., HomeEq Servicing Mortgage, Store”). Corp. (collectively, “The respect plaintiffs’ With (Neal claims, generally DeYoung, although Shar- creditors Paul S. Grobman brief), subject LLP, considered debt collectors DeYoung ma on the New not & FDCPA, York, N.Y., excep- the statute contains an Plaintiffs-Appellants. immunity party tion to creditor where the credi- express for the purpose repre- tor, process collecting “in the own senting [its] to its debtors that the party third debts, uses name other than own [its] collecting debts, the creditor’s and the person which would indicate a third party third engages no bona efforts fide collecting attempting to collect such debts, to collect those the false name ex- 1692a(6). debts.” 15 U.S.C. Plaintiffs ception exposes the creditor to FDCPA that The contend Store used the liability. respect claims, With to the TILA Moss, Codilis, name of the law Staw- however, .firm we conclude that the district iarski, Morris, Prior, Schneider & LLP correctly that, court determined because (“Moss Codilis”) by hiring the law firm to plaintiffs’ mortgage documents did not send out falsely collection letters that indi- name The person as the cated that Moss Codilis had retained been whom the debt was initially payable, The *4 Money to collect the debts The Store was Store is Money not “creditor” under in fact collecting. The district court re- TILA and is subject therefore not to liabil- jected argument, finding that The ity. Accordingly, we affirm the judgment Money Store had not used a name other court, of the in part, in part, vacate distinct own, than its and therefore not could and remand the case for proceed- further found for violating liable the FDCPA consistent, ings this Opinion. with through exception. the so-called false name Similarly, respect plaintiffs’ with to BACKGROUND claims, TILA the district court found that I. Background Factual The Money Store could not be held liable under TILA for charging plaintiffs unau- The following facts are drawn from the thorized fees on their failing accounts and record before the district court and are to resulting refund the credit balances. undisputed unless otherwise noted: only “creditor,” TILA applies to a which is Plaintiffs-Appellants are homeowners defined in the person statute as the who defaulted on their mortgages. The whom the debt initially payable. Store, Money lender, a mortgage serviced § 1602(g).1 U.S.C. Money Because The the on loans which defaulted. assignee plaintiffs’ Store was an notes, and person therefore not the A. Plaintiffs’Mortgages initially whom the payable, debts were district court Plaintiff Lori Jo Vincent took Money determined that The out a mortgage Carrollton, qualify Store did not as a creditor loan on her home in under February TILA. Texas on 1998. She execut- promissory ed a note and a deed of trust For the reasons set forth below' and lender, Mortgáge with her Accubanc Cor- resolving all factual disputes plaintiffs’ poration. In promissory note Vincent favor, respectfully we first hold agreed: district court erred in concluding that The Money received, In Store was not a “debt return for a loan that I collector” have (this promise $67,600.00 under the false name I exception pay U.S. liability. creditor, Where a process “principal”), plus amount is called inter- debts, collecting est, its own hires a third to the order of the Lender. The 1. The (g). district court's to 15 decision refers has been recodified at subsection 1602(f). then, (f) Since subsection Stockton, execut- Gutierrez California. MORTGAGE is ACCUBANC
Lender identifying of trust I understand ed a note and deed CORPORATION. Funding Group this Note. Financial may transfer lender as First the Lender the loan language very similar to using addition, the deed J. 851. App’x above for Vincent’s documents described trust states: Again, neither of these docu- mortgage. [Accu- owes Lender [Vincent] Borrower At the ments mentions The Store. of SIXTY-SEV- sum principal banc] execut- time First Financial and Gutierrez SIX HUNDRED THOUSAND EN loan, gave Financial also Gu- ed the First (U.S. $67,600.00). NO/lOO—Dollars state- TILA-required disclosure tierrez by Borrower’s evidenced This debt is 7, 1997, later, days April ment. on Two date as this Securi- the same note dated assigned endorsed the First Financial (“Note”), provides which ty Instrument note and deed of trust full with the monthly payments, payment first loan was Store. Gutierrez’s earlier, payable debt, due and paid if not that Gutier- May meaning on due Security Instru- This March Vincent’s, payment, first unlike rez’s (a) Lender [Accubanc]: ment secures to as- due until after the loan had been evidenced repayment signed to The Store. renewals, interest, Note, and all modifications of extensions and *5 22, 1996, Linda and May plaintiffs On Note.... $100,000 took out a mort- John Garrido promissory note App’x J. 857. Neither Huntington gage loan on their home Money The trust mentions nor the deed of Station, promissory York. The note New Store. they again executed on that date used on time of the loan’s execution At the applicable to the notes language similar 1998, 16, gave Accubanc Vincent February transactions, the other loan and listed by required statement the disclosure Corporation FHB as their lender. Funding TILA, Immediately § 1631.2 15 U.S.C. additionally signed The a mort- Garridoses Accubanc executing mortgage, after gage that referenced the note and identi- to Equi- interest the loan transferred its Funding fied FHB as the “Lender” of America endors- Corporation Credit as the “Borrower.” Once the Garridoses EquiCredit. note to ing promissory mortgage again, neither the note nor later, April on Two-and-a-half months Money mentions The Store. Like Vincent assigned and endorsed EquiCredit Gutierrez, re- the Garridoses also Money The of trust to the note and deed TILA-required disclosure state- ceived the Store, note reflected on the whichds Funding they at the time ment from FHB Pay Recourse stamp that reads “Without later, weeks on executed the loan. Three Mortgage Inc.” of TMS Vin- Order 13, 1996, Funding assigned FHB June payment April loan was due on cent’s first mortgage endorsed the note and to The 1, 1998, assigned the note had been before Money The first loan Store. Garridoses’ Money to The Store. ie., 1, 1996, July two payment was due assigned to 5, 1997, weeks after the loan had been plaintiff Ruth Gutier- April On Money mortgage loan on her home The Store. rez took out a 1632; clearly charge. see also 15 See 15 U.S.C. requires 2. TILA creditors to disclose 1604; mortgage, including, §§ inter certain terms of a 12 C.F.R. 226.17-20. alia, percentage rate and finance the annual After the loans had been assigned to Moss Codilis promoted the Program to Store, Money lenders eventually The all as means of leveraging its status as a law firm to They encourage repayment on their mortgages. defaulted sub- loans from borrowers in default. pro- The sequently received letters from Moss Codi- motional materials state: informing lis them of their default.
addition, program This The allows the allegedly Store client to send breach attorney letters on charged letterhead at plaintiffs improper fees on their a reasonable cost. Most of accounts, these costs including, inter alia: fees for through recovered the reinstatement multiple property inspections that did not of the loans which is a higher level as occur; vague and unwarranted fees for a result of the impression which the reviews,” “file “senior lien monitoring,” attorney breach letter makes.... It is Fees”; and “Outsource Management ex- ... an excellent collection tool. fees; surcharges cessive late for breach App’x J. letters; 682. At least one attorneys’ executive at fees that were never The deposi- confirmed at his out paid attorneys; costs for purported tion that purpose of the Breach Letter motions in the bankruptcy court that were Program was “to hopefully gain the atten- filed; never and fees for other bankruptcy borrower, tion of the since it coming services that were in excess of what was (de- from the law App’x J. firm[ ].” 271-72 contractually allowed. position of Dunnery, John President). Store Vice B. The Program Breach Letter ' letters, printed which were on Moss By agreement dated April letterhead, state that “this law Money Store contracted with Moss Codilis firm” has been “retained” in order to “col- prepare and mail breach notices to bor- client,” lect a debt for our and that who, rowers plaintiffs, like had firm defaulted “this has been authorized [The *6 on Money their loans. Such notices inform you” home- to contact “pro- Store] and that they you vide[] owners are in default notice that are in and are default” on generally mortgage. prerequisite App’x before J. 652-56. The let- mortgage ters further state that if like the default is not Money lenders The Store can fore- within days, resolved then close on a property. borrower’s Labeled the “Breach Letter Program” Moss Codilis our client shall accelerate the entire sum (30) “generate® thirty day principal of both breach and interest immediate- ly payable, due any letters based on and and invoke provided [by information and all provided remedies for in the Money The within ... Note spread- Store] [a] Instrument, (Letter Security and including App’x sheet.” but Agree- J. ment). limited to the foreclosure sale of the return, In Moss Codilis received property. (later dollars) fifty thirty-five dollars generated.
each breach letter Outside of App’x J. Finally, 652. the letters state the Breach Program, Letter the firm per- that, with exceptions, limited commu- “[a]ll formed no role in Money The Store’s col- nication about this matter must be made lection of its debts. through Money [The App’x Store].”3 J. Specifically, 3. explain the breach letters that verification of the debt and mail it to the (1) debtor; debtors could contact (2) Moss Codilis to: request the contact information dispute writing, point debt in at which creditor; (3) original request for the in represented Moss Codilis that it would obtain debtors, right no to initiate contact with through Moss up From 1997 to set- plans, right no negotiate payment Money- 88,937 on The letters sent than what tle for amount approxi- received behalf, thus and Store’s default, and no Money said was Store million in fees. and mately $4.5 between $3 If action. bring any legal right to Money for The work Moss Codilis’s by out Moss Codilis letters breach sent by Nash supervised Christina Store Money it was payment, to elicit failed Bromley, and, July Valerie after would Codilis—who Store —not Moss sending breach Ms. Nash
who assisted the matter then determine Ac- Money behalf. The Store’s on their network out to be referred should Codilis, part- one of its Moss cording to of foreclosure counsel.... Stawiarski,' re- ners, primary bore Leo (citations quotation marks and internal Id. legal aspects of the for the sponsibility omitted). Moreover, point Store, Money and for The firm’s work testimony where she deposition Nash’s legal aspects, in all Ms. Nash supervised her if a contacted with that debtor stated her work. The breach non-legal, of legal matter” she “escalated” regard to “a by Nash “jointly drafted” letters were Money The referring matter to it department. Money legal The Store’s it handling herself. instead Store markedly as to the disagree parties The Money foregoing, The In contrast to the per- that Moss Codilis nature of the tasks did more contends that Moss Codilis Store Each mar- Money The Store. formed for mail letters. In print and simply than respective supporting shals evidence reviewing role addition to Moss Codilis’s itself Although characterizing position. compliance for their the breach letters firm, Codilis describes the a law FDCPA, Money Store notes with an “exercise in Program as Breach Letter deposition at her that that Nash testified little to no processing” mass that involved drafter of breach primary was the she judgment. independent legal or otherwise letters, attorneys for The with represented Moss Codilis particular, “review[ing] letters] [the Store limited only element of court “the the district Further, for format.” required Program Breach Letter testimony deposition points Nash’s drafting language legal analysis was the an independent conducted re- Moss Codilis templates for the letter ensure breach delinquent borrowers of the data view applica- they compliance were Store, that “if to it sent *7 laws.” Vincent v. ble state and federal data, those loans questionable there was (Vincent II), No. 03 Civ. Money Store Money to The pulled and back were sent 4501325, at 2876(JGK), 2011 *3 WL (testifying App’x 80-81 that Store.” J. 2011) (S.D.N.Y. 29, (summarizing Sept. things like questionable data includes “in- position). Moss Codilis’s information or incom- complete borrower assert that part, plaintiffs For their information,” as well as data address plete pro- in the default “Moss role Codilis[’s] not that borrower was actu- suggesting ... ended with mass began cess and his or her loan obli- ally in default on Appel- generation letters.” breach Stressing Moss Codilis’s inde- gations). note: Br. 12. further lants’ Plaintiffs Money Store asserts that The pendence, disagreed with The letters them- when Moss Apart from the breach to send breach Money Store’s selves, authority request no Moss Codilis had tacting the debtor. writing refrain from con- that Moss Codilis letter, Moss Codilis not did send out the tiffs brought a number of against claims Money letter. The Store and Moss Codilis under Colorado and California state law. Money *8 required by TILA. Neither the FDCPA quently moved for summary judgment on claims nor the TILA claims were plaintiffs’ claims, asserted TILA arguing that it against Separately, Moss Codilis. plain- not a “creditor” as defined the 12(d); 4. Based on the parties submission both of See Fed.R.Civ.P. Chambers v. Time case, discovery Warner, materials the 147, from the Inc., (2d Mazzei 282 F.3d 152-54 Cir. district court converted defendants’ motion to 2002). into a summary judgment. dismiss motion for 96 as to a 29, genuine dispute there is September dated By Order
statute. ambiguities fact, all we resolve dis- material and 2011, agreed court district the non- in favor of all inferences Noting that and draw claims. TILA missed Greenburgh Donnelly v. moving person party. “the “creditor” as defines TILA No. 691 F.3d Dist. initially payable on Cent. Sch. a debt is to whom (2d Cir.2012). indebtedness,” 15 U.S.C. face that found court 1602(g), § the district Liability I. FDCPA not fit within did Store The
97
any
nection with the collection of
Citicorp
debt.”
Retail
Maguire,
Services.
In
Jackson,
v.
See Clomon
988 F.2d
creditor, Citicorp, used the name “Debtor
(2d Cir.1993).6 Nonetheless,
1318
we must
letters,
Assistance” in its collection
which
plaintiffs may
decide whether the
press was the name of its in-house collection
,
against
Money
They
this claim
Store.
unit.
that,
We have
addressed the
address
situation we are
scope
con-
of the FDCPA’s so-called false name ex-
fronted with here: whether the false name
ception only
before, Maguire
once
exception can be invoked when the credi-
determining
language
In
"meaningful
whether
in a col-
attorney
involvement”
avoid
"false, misleading,
letter is
decep-
1692e,
lection
violating
section
which
not satisfied
1692e,
tive” under section
we have held that
attorney merely
by
where
told
client that
courts must
look to whether a reasonable
owed).
debt is
sophisticated
"least
consumer”
be mis-
would
addition, although
plain-
not asserted
Clomon,
Here,
led
it.
98
elements, in
latter two
actual,
Turning to the
non-affiliat-
of an
name
the
tor uses
ways that
three
we described
Maguire
its debts.
collect
third-party
ed
(1) the
be satisfied:
these elements could
statuto
question of
this
resolve
To
falsely implies
that
a name
creditor uses
statu
begin with the
we
ry interpretation,
collecting
in
involved
party
that a third
is
Servs.,
FBL Fin.
v.
See Gross
text.
tory
(2)
to be
debts;
pretends
creditor
the
its
2343,
175,
167,
129
174
Inc.,
S.Ct.
557 U.S.
(3)
else;
uses a
the creditor
or
someone
(2009) (“Statutory construc
119
L.Ed.2d
147 F.3d
Maguire,
alias.
pseudonym or
language em
with the
begin
must
tion
a
the situation where
By separating
assumption
the
by Congress and
ployed
of
the involvement
falsely implies
creditor
language
that
meaning of
ordinary
that the
a
the situation where
party from
a third
legislative pur
the
accurately expresses
Maguire
pseudonym,
uses a
omitted)).
(internal
marks
quotation
pose.”
mere fact that
clear
makes
that
in na
“remedial
FDCPA is
Because
by the
name is used
third-party whose
in liberal
ture,
must be construed
terms
its
entity not affiliated with
a real
creditor is
underlying Congressional
if
fashion
See White
dispositive.
is
the creditor
effectuated.” N.C. Freed
is to be
purpose
(7th
1016,
Goodman,
Cir.
1018
v.
Resewe
Fed.
v. Bd.
Governors
Co.
of
of
2000)
excep
name
(“Conceivably
[the
(2d
1210,
Cir.1973);
1214
Sys., 473 F.2d
reach
narrowly as to
could be read so
tion]
Riddle,
F.3d
v.
305
accord Johnson
using
the creditor is
only the case which
Cir.2002)
(10th
cases);
(collecting
see
1117
as the
reading,
pseudonym;
but
Lockport,
v. Credit Bureau
Pipiles
also
of
1692a(6) make
section
interpreting
cases
Cir.1989) (“Con
(2d
Inc.,
27
clear,
statute dis
is too
[T]he
narrow....
in the
a broad brush
gress painted with
pseudonyms
the use of
tinguishes between
from abu
protect
consumers
that a third
representation
... and a false
prac
deceptive
debt
sive
exist)
(which
participating
may
is
party
1692a(6)
tices.”).
of the FDCPA
Section
”
omitted)).
(citations
collection....
any credi
part,
in relevant
provides,
that a
allegation
presented with
When
“who,
tor,
collecting
his
process
third
falsely implied
creditor has
debts,
than
other
his
uses
name
own
debts, we
collecting the creditor’s
party is
per
that a third
which would
own
indicate
cred
the actions
must examine both
.of
attempting to collect
collecting or
son is
i.e.,
itor,
the creditor has “used”
debts,”
a “debt collec
will be
such
deemed
i.e.,
party,
name,
of the third
and the role
subject
liability under
tor”
“collecting or
party is
whether the third
1692a(6).
The text
15 U.S.C.
FDCPA.
debts.
the creditor’s
attempt
collect”
ele
thus
forth three
exception
sets
nor
Because neither “use”
“collect”
deem
that must
satisfied before
ments
statute,
see 15 U.S.C.
is defined
pursuant to
a creditor a debt collector
ing
(1)
ordi
1692a,
these terms their
give
we
the creditor
exception:
the false name
(2)
Pac.
meaning. Taniguchi
Kan
debts;
nary
the creditor
collecting
is
its own
—Ltd.,
-,
-,
(3)
own;
U.S.
Saipan,
a name
than
“uses”
(2012).
L.Ed.2d 903
falsely indi S.Ct.
use of
the creditor’s
“use,”
define
dictionaries
“collecting
Starting with
is
person
that a third
cates
(some
alia,
as,
“To make use of
“use”
inter
the debts that the
attempting the collect”
instru-
as a means or
element,
thing)
immaterial
The first
collecting.
creditor is
ment;
pur-
for a certain end or
employ
collecting its own
the creditor
Ox-
Compact
2 The
Edition
pose.”
debts,
here.
undisputedly
satisfied
*11
(1971);
English Dictionary
ford
3574
lawyer
see
to use his letterhead on its collec
Heritage Dictionary
also The American
tion- letters. The Court of Appeals ex
English Language
New College Edi- plained that
practice
a
such
violates sec
(1976) (“To
tion 1410
... employ for some
tion 1692e
lawyer
because “the
is allowing
purpose”); Webster’s Third
Interna-
New
agency
collection
to impersonate him.
(1976) (“[T]o
Dictionary
tional
carry
2524
significance
The
of such impersonation is
of’).7
by
out a
or action
purpose
means
that a
who
debtor
receives a ...
letter
By requiring the creditor to “use” or “em-
signed by lawyer
a
will"think that a lawyer
ploy
some purpose”
for
a name other than
reviewed the claim and determined that it
own,
its
the text of the statute is
clear
has at least colorable merit.”
Id.
644
there must be some active involvement in
added).
(emphasis
Although Boyd ad
misrepresentation
by the creditor be- dressed
liability
section 1692e
against
as
a
triggering liability
fore
under
the false
collector,
we see no
why
reason
exception.
name
exception
The
does not
“impersonation” would
apply
equally to
create backdoor vicarious
for
liability
cred-
a creditor’s “use” of a name under section
simply
itors
because the collection agen-
1692a(6)’s
exception.
false name
Tay
See
they
cies
hire to collect their
engage
debts
Perrin,
lor v.
Landry, deLaunay & Du
deceptive
practices.
v. Citi-
Williams
rand,
(5th
Cir.1997)
1235
bank, N.A.,
F.Supp.2d 523,
565
529
(holding that
may be held
creditor
liable
(S.D.N.Y.2008).8
under false name exception for
a
sending
form “attorney demand letter” that had
Here, the relevant affirmative ac
been pre-prepared “by
attorney]
[an
for
tion
by
Store was retaining
[the
to use in collecting
creditor]
or at
express
Moss Codilis for the
purpose of
tempting to
from
collect
the debtor” and
breach
sending
appeared
letters that
to be
which “bore the letterhead of the [attor
attorney collection
debtors.
its
ney’s] law firm and the facsimile of [the
Although we did not address what consti
attorney’s] signature”). When a creditor
tutes
sufficient affirmative action
is collecting its own debts
hires
in Maguire,
case
analogous
party
third
purpose
for the
of sending
Circuit,
from
Boyd Wexler,
the Seventh
represent
letters that
party
that the third
clear why
alleged-
makes
misrepresen
debts,
is collecting the
that is sufficient to
tation of Moss Codilis’s role here can be
show the
of a
“use”
the creditor
attributed
“use” of
Store’s
White,
other than
own. See also
its
200
Codilis’s name in the breach letters.
(7th Cir.2001).
F.3d at 1018
Boyd,
(describing
the creditor
as
Seventh Circuit addressed the
the “primary
issue of a
violator” in a flat-rating
case).
agency’s liability
paying
for
7. We are aware that Webster’s
argues
Third New 8. The
holding today
dissent
that our
prove vexing”
Dictionary
“will
garnered
International
over time because a cred-
has not
hypothetically
itor could
be held liable
greatest
under
respect
majority
from a
the Jus-
"merely
hiring
the FDCPA
for
a debt collector
Court,
Supreme
tices
Tanigu-
see e.g.,
practices
whose
inadequate
are deemed
chi,
2003;
132 S.Ct. at
Corp.
MCI Telecomm.
respect.”
some
Dissent at 118. This fear is
Co.,
v. AT & T
512 U.S.
228 n.
ignores entirely
unwarranted.
It
our discus-
(1994),
S.Ct.
The “use”
(contribu-
gather
of debts is
actively engaged
“[t]o
context
has
the creditor
whether
due,
taxes,
money, money
identity
tions of
in some
misrepresenting
etc.)
1 The
people.”
from a number of
contrast,
“collecting or at
way; by
English
of the Oxford
Compact Edition
element focuses on
to collect”
tempting
465;
The American
Dictionary
in fact
see also
role is
party’s
third
Lan-
Dictionary
English
*12
Heritage
that
(noting
id.
See
being misrepresented.
(“To call
College Edition 261
guage
in
New
the debt
party
participating
is
if a “third
of’); Webster’s
deception”).
payment
for and obtain
collection,
is no
...
there
(“[T]o
Dictionary 444
International
Moss Third
Money
“use[d]”
Store
Even if The
debts,
receive,
from a number of
gather, or exact
collecting its own
name in
Codilis’s
sources”). This defini-
persons
if
or other
apply
does not
exception
name
the false
tion,
ulti-
inquiry,
useful to the
is
collecting or at
while
was
in fact Moss Codilis
applied to the facts
Money
mately ambiguous as
The
Store’s
tempting to collect
It
not define
misrepresen
any particular
of
case.
does
was no
that there
debts such
Id.;
must be be-
v. how involved a debt collector
Greco
tation to the consumer.9
cf.
L.L.P.,
mon-
fairly say
gathering
412 fore
can
it is
Trauner,
Thomas
we
&
Cohen
(2d Cir.2005)
Money
of the creditor.10 The
(holding
ey
no
on behalf
364-65
was in-
argues
lia
that Moss Codilis
and thus no 1692e
misrepresentation,
firm,
process by
in
law
volved
the debt
the debt collector
bility against
sending
letters and
generating
the credi
the breach
the law firm retained
where
Codilis, howev-
them to the debtors. Moss
the letter that the
clearly disclosed-in
tor
er,
Program
Letter
acting
attorney).
an
described its Breach
firm was not
as
law
(2d
exception inappli
215 F.3d
Dauray,
finding
name
the false
United States
Cir.2000).
here,
part
legislative history
relied in
on
But the
the district court
cable
trigger
unhelpful here. None of the rele-
"[t]he
FDCPA is
Maguire
our statement
hearings
depend
congressional, reports or
ad-
ing
does not
on
vant
of the FDCPA
wheth
scope
applicability
of the false
party
in fact involved in the
dressed the
or
er a third
is
debt,
S.Rep.
No.
exception.
a
but rather whether a least
name
generally
collection of
See
(1977);
(1977); H.R.Rep.
sophisticated consumer would have the false
95-382
No. 95-131
(1976);
parly
collecting
H.R.Rep.
impression
a third
No. 94-1202
Fair Debt Col-
656, 918,
Mazzei,
F.Supp.2d
at 659-60
Hearings
the debt.”
lection
Act:
on S.
Practices
236)..
This
(quoting Maguire, 147 F.3d
the Subcomm. on
1130 and H.R. 5294 Before
Comm,
however,
a
Banking,
language,
does not mean that
Consumer
the S.
on
Affairs of
Cong.
ignore
question
95th
Affairs,
court should
the factual
Housing
Urban
and
(1977);
collecting
third-party
who exists is
Act: Hear-
whether
Debt Collection Practices
debts.
attempting
to collect
creditor's
ings
the Subcomm. on Con-
on H.R. 29 Before
Comm,
Rather,
Banking,
portion of
was intended
Maguire
this
the H.
on
sumer Affairs of
Cong.
argument
because the credi
95th
Currency,
Affairs,
to rebut the
and Urban
tor,
(1977);
misleadingly
Hearings
Citigroup,
titled
Be-
and
Consumer
Information:
Assistance,
"third-party,”
were in fact
Debtor
the Subcomm. on Consumer
Affairs of
fore
Comm,
affiliated,
Finance,
had not
Banking,
"use[d] a[]
the creditor
and Urban
H.
on
(1977);
Cong.
Affairs,
name other than its own.”
95th
Maguire,
Debt Collection
excep
name
at 236. The focus of
Hearings
H.R. 11969
Practices Act:
on
Before
tion,
case,
whether the creditor
on
the H.
the Subcomm. on Consumer Affairs of
Comm,
disguise
to the consumer
has used name
Banking, Cmrency,
Housing,
on
(1976);
actually collecting
the debt. See id.
Cong.
who is
Oversight
94th
on Consumer
Banking Agen-
Federal
Protection Activities of
Comm,
ambiguous,
Hearings
Bank-
the statute is
cies:
S.
10. Where the text of
Before
Cong.
history
94th
Housing
Affairs,
frequently
legislative
ing,
and Urban
we
resort to
(1976).
interpreting
provision.
assist us
See
processing.”
exercise
“mass
Ac-
change
the letter misleads
cording
Codilis,
and Moss
oth-
consumers, which
explained
we have
is the
printing
er than
and mailing the letters
statutory touchstone for all aspects of the
dealing
with some follow-up limited to FDCPA, including the false
excep-
directing
phone
substantive
calls from tion. Maguire,
236;
147 F.3d at
see also
Money Store, meaning-
debtors to The
all
Clomon,
Money Store Dickerson, sec- violated attorney, the onto information debtor’s the added quent, (10)], source letterhead, 1692e(S) the actual & tions Codilis Moss with letter form House- It was per- Nash obvious. letter is While of the letters. mailed the and the debtor in- selected of the that creditor] [the reviews minimal hold formed was could re- to her and letter Dickerson’s to whom provided debtors formation “questionable pro- for a that was Household loan documents sent. It quest to be that suggest Dickerson account,” statements that her the information vided purely ministerial of the identity was limited regarding review needed Money Store The ensuring that her like tasks of his amount debtor address complete her with provided had letter. complete the in order delinquency that Indeed, indicated Nash information. Dickerson on which It Household was Co- sent Moss typically Money Store The determination for the relied information of borrower batches dilis there- delinquent was indeed debtor borrowers,” and “usually exceeded the let- recipient of appropriate fore all to mail Codilis Moss required that reserved It was Household ter. day. by the next Letters Breach letters. issuance right approve involvement, han- ultimately Household its limited Notwithstanding It was letter. plaintiffs letters to to Dickerson’s responses out all sent Codilis dled Moss “re- firm” has been what law that decided “this stating that it was Household And action) for our (including legal to “collect in order tained” action further this false- find that Dicker- jury The could wake of client.” taken would attempt- was Moss Codilis ly implied that letter. son’s debts and Money Store’s The ing to collect Nielsen, at 639. debtors against legal action institute would if debt- jury Store could that a of The conclude on behalf therefore We delinquency. collecting resolve ors did not Codilis was Moss find that Moss Co- argue that Thereafter, acted instead debts and Money Store’s The role virtually no process performed collection dilis for a “conduit” as mere process Fed. actual debt controlled. that The —besides verifying tasks of essentially ministerial 50,107. And if the breach Reg. at Store, informing the debt indicated falsely creditor, identity of their debtors attempting to collect” “collecting or had a debtor’s debts verifying can debts, Money Store Money Store’s *16 bankruptcy. discharged been pursuant the FDCPA held liable under be 15 U.S.C. exception. the false to here, light taken in Indeed, facts district 1692a(6).17 Accordingly, § nearly plaintiffs, are favorable most Money Store granting court erred Nielsen, the Seventh where identical plaintiffs’ summary judgment found: Circuit sending out a case individual before debtor's argument that plaintiffs' reach We do 17. 634; Nielsen, also see ap- 307 F.3d at letter. See Circuit’s adopt the Seventh we should Miller, de- (requiring "some exception for the F.3d at 301 321 proach false name is held party third debt col- when specific attorney where involvement” gree situation of attorney. Under holding by attorneys as an by out are sent lection asks Circuit approach, Seventh attorneys avoid out as retained themselves independent his third-party exercised has liability). 1692e section reviewing each attorney in judgment as an
105 claims, and we vacate its services, dismissal of their otherwise, or consumer credit claims and remand for proceed- further which is payable by agreement in more ings.18 than four installments or for which the payment of a charge finance is or may II. Liability TILA be required, (2) and person We next to plaintiffs’ turn claims that whom the arising from the consum- Store violated the Truth in er credit transaction is initially payable Lending Act. Plaintiffs contend that The on the face of the evidence of indebted- Money Store violated section 1666d of or, ness if there is no such evidence of TILA by failing to refund credit balances indebtedness, by agreement. owed to them on their accounts. See 15 15 § U.S.C. 1602(g). This definition “is (‘Whenever U.S.C. 1666d a credit bal- restrictive precise, only referring to a ance in excess of is created $1 in connec- person who satisfies requirements” both of tion with a consumer credit transaction provision. Cetto v. LaSalle Bank Nat’l ... the creditor shall ... any refund part Ass’n, (4th 518 Cir.2008). of the amount of the remaining credit bal- ance, upon request consumer.”); see In addition to this statutory definition of also 12 C.F.R. 226.21 (implementing a “creditor,” the Federal Reserve Board’s regulation). Specifically, plaintiffs argue “Regulation Z” interprets the second that The Money Store charged their ac- prong of TILA’s definition of creditor as counts unauthorized fees expenses in applying only person “[a] ... to whom of excess that permitted under law, state obligation is initially payable, either on resulting in credit balances defendant the face of the note contract, or or failed to refund. agreement when there is no note or con- TILA seeks to “protect ... consumers] tract.” § 226.2(a)(17)(i); C.F.R. cf. against inaccurate and unfair credit billing Gambardella Co., v. G. &Fox and credit practices” card promote (2d Cir.1983) (describing Regula- “the informed of use credit” “assuring] tion Z as among the “regulations promul- a meaningful disclosure” of credit terms. gated by the [Federal Reserve Board]” to 1601(a). 15 U.S.C. It imposes general TILA). “implement[ ]” The Supreme liability only on and greatly creditors cir- Court has indicated that Regulation Z is cumscribes the liability assignees. See entitled to Chevron deference where the 1641(e). §§ 1640(a); TILA de- Federal Reserve has reasonably interpret- fines a “creditor” as a person who both: ed an -ambiguous term of TILA. Household
(1) regularly extends, whether Servs., con- Credit Inc. v. Pfennig, 541 U.S. loans, nection with sales of property or 239-44, 124 S.Ct. 158 L.Ed.2d argues The dissent that we are conflating person any who uses instrumentality of inter- deception "the aof creditor who uses a third state or any commerce the mails in business party's name deception with the of a third- principal purpose which is the collection party debt falsely collector who debts, claims to who regularly collects or at- acting as an attorney.” *17 collect, Dissent at 111. We tempts to directly indirectly, or debts Quite are not. contrary, the it is the dissent owed or due or asserted to be owed or due 1692a(6)’s that conflates section false name 1692a(6) another.” 15 U.S.C. (emphasis exception, can which added). Thus, invoked where the person can be a debt collec- falsely creditor "indicate[s] that a per- third tor regularly collecting being debts or in- son is collecting attempting or to collect [its volved in a debt collection business even debts,” specific ] general with the definition though of person that does not collect the debt collector,” "debt which defined “any is at given issue in a case. 106 to assignments the “because Money Store for appeals of (reversing court (2004)
450 be- occurred Defendants Money Store The Reserve defer). Federal to failing of] to [some were disbursed funds Reg- fore the Commentary to Staff Official Board’s plaintiffs [those] and before an the “[i]f that provides further Z ulation Vincent payments.” first loan made their per- to one payable initially is obligation 2876(JGK), Store, Civ. 03No. the v. if creditor even is son, person that (S.D.N.Y. 29, 4501325, Sept. *4at WL simultaneously 2011 terms is by its obligation 2011). straightfor- TILA establishes 12 C.F.R. person.” another to assigned determining the ward, objective inquiry for (2000); Riviere see I at 300 226, supp. pt. person it is “the to 457, identity of the creditor: Chevrolet, Inc., 184 v. Banner from the consumer arising debt whom Cir.1999) a car deal- (holding that (5th 461 on initially payable is transaction initially credit was obligation loan er to whom of indebtedness.” of evidence the face though even the sole payable Here, the initial 1602(g). 15 U.S.C. a financ- to immediately assigned loan was entities the loans were on lenders Cap- v. Elec. Gen. Mayfield company); ing See, App’x J. e.g., Money Store. 2786, than The 1999 WL Civ. No. 97 Corp., ital “In return 1999) (Vincent stating that Note 851 (S.D.N.Y. Mar. 182586, at *3 received, promise I I that have a loan for Staff Commen- the Official (interpreting order $67,600 ... to the pay to U.S. Z to mean Regulation tary to is ACCUBANC The Lender Lender. initially pay- debt is whom the to person I under- CORPORATION. MORTGAGE when the “even only creditor is the able transfer this may the Lender stand that as- the immediate provides contract Note.”). Offi- obligation”). “[T]he signment of by the Commentary promulgated cial Staff eventually as- were
107 Otherwise, ulation Z. the Commentary’s Legislative history suggests that this guidance that assignments simultaneous do gap may be an unintended consequence of not identity alter the of the “creditor” congressional reform to TILA. See Union under sense; TILA would make no the Carbide & Corp. Comm’r, Subsidiaries v. assignee of a simultaneous assignment will (2d 697 Cir.2012) F.3d 109 (“Agencies presumably always be the “person” first to charged with implementing legislation whom an payment initial loan is made. that is often unclear product and the of an TILA does not define “creditor” as the often messy legislative process. Trying to person to whom the first loan payment is make sense of the statute with the aid of made; rather, it asks to whom the loan is legislative reliable history is rational and “initially payable on the face of (internal the evi- prudent.” quotation marks omit- dence of ted)). indebtedness.” With respect to Congress amended TILA each of plaintiffs’ loans, that person is limit assignees’ to exposure to liability, entity than The Money Store. allowing the imposition of liability on an assignee “only if the violation for which Although we conclude that the district such action or proceeding is brought is court correctly determined that The Mon- apparent on the face of the disclosure ey Store not a TILA, “creditor” under statement.” Taylor v. Quality Hyundai, we plaintiffs note that have identified an Inc., (7th 150 Cir.1998) apparent oversight in the Specifi- statute. (quoting 1641(a)). “Prior to cally, the provision of TILA claim amendment, the statutory provisions The Money violated, Store has section that assured transfer of the forms contain- 1666d, requires a “creditor” to “credit the ing the TILA assignee disclosures amount of [any] credit balance [over $1] also made it possible for the debtor to the consumer’s account” “refund claim that assignee had ‘knowledge’ of part of the amount of the remaining credit the violation.” Id. at 693. Accordingly, balance, upon request of the consumer.” based on the recommendation of Fed- 1666d(A)-(B). 15 U.S.C. agree We Board, eral Reserve Congress “simplifie[d] plaintiffs that restricting the application of the definition of ‘creditor’ ... [to] elimi- section 1666d the initial lender does nate confusion under the current act as to make much sense. Unlike most of TILA’s responsibilities of assignees.” S.Rep. provisions, which require creditors 96-368, No. (1979), make certain disclosures at the debtors U.S.C.C.Á.N. time of a execution, see, loan’s e.g., id. In its Report initial accompanying §§ 1604, 1631-51, section imposes 1666d TILA, amendments to the Senate Banking, obligations throughout on creditors the life Housing, and Urban Affairs Committee ex- Indeed, the loan. can we think of no plained as follows: reason Congress why would require a credit balance in a consumer’s account be This [amendment] eliminates two uncer- refunded only if the balance was main- tainties present under law as to an as- tained original creditor and not a signee’s liability for an original creditor’s subsequent assignee. Moreover, plain- violation of the act. present law, Under note, given tiffs the widespread prevalence an assignee is generally only liable mortgage originators loan selling such where a violation is “apparent on the securitization, loans for this definition ren- face” of the disclosure statement. What ders section 1666d inapplicable to a types sub- of violations are covered un- stantial number of mortgage loans. clear. provides This section that viola- *19 recommends The Board transaction. a dis- face on the of apparent
tions are statement be disclosure only one that disclosures when statement closure to dis- obligation that the and required on the based incomplete inaccurate upon the placed close be involved, documents or other statement payable on is made obligation whom uti- terminology is incorrect and where simpl[e] me- provides a its This face. lized. to follow and rule for creditors chanical ambi- addition, eliminates this section get the that consumers insure should liability assignee of question on the guity disclosures. required that a stating explicitly rescission for Evans, (statement Nat’l of Robert at 96 Id. is effec- right of this exercise consumer’s Ass’n) testimony (quoting Fin. Consumer such Without assignee. an against tive Jack- Board Reserve Governor of Federal consumer, right of for protection son). or no ef- little provide would rescission rea- appears foregoing, it on Based remedy. fective Congress that to conclude when sonable (1979), 96-73, at 18 S.Rep. No. TILA, concern was primary amended 280, 296. U.S.C.C.A.N. initial liability for an assignee limiting pre- held on the hearings During of TILA’s disclosure creditor’s violations Lend- bill, Truth In cursor reform Indeed, same requirements. Act, the Reform and ing Simplification Banking Committee breath, the Senate assign- of the issue related testimony con- could that consumers Report clarified exclusively on liability focused almost ee right to rescission their to exercise tinue example, For requirements. disclosure of which in the absence assignees, against amendment, support of testifying little or no effec- provide right “would noted Bankers Association the American 18; 96-73, at S.Rep. No. remedy.” tive ap- courts by federal that decisions (debtor 1635(a) has also 15 U.S.C. see where complicated situations peals had credit transaction to rescind right loans, financed multiple parties debtor’s interest in the security creates of creditor definition limiting the business dwelling within three principal only one “clarifies] initial creditor Hearings days); Consumer Information: Truth disclosures.” make creditor must on Consumer the Subcomm. Affairs Before Lending Simplification Comm, Finance, Reform Banking, on the H. S. S. 108 Hearing on Act: Before Cong. 95th 152-53 Affairs, Urban Housing, and Ur- Banking, Comm. On White, (statement (1977) S. of Christian (1979) Cong. 84-85 95th Affairs, ban Statutes, Special for Director Assistant added) (statement of David S. (emphasis FTC) to TILA amendments (requesting the Am. Bankers Smith, behalf be en- can provisions rescission ensure see, Ass’n); e.g., Meyers Clearview chang- But assignees). against forced (5th Inc., Sales, F.2d 511 Dodge to exclude of “creditor” ing the definition Cir.1976). Reserve recom- The Federal explicit creating an also assignees without Report in the Senate cited mendation ongoing right a consumer’s carveout noted: bill the final accompanying balance, consumers credit refunded a remedy to force rely on TILA as litiga- cannot spawned extensive One issue balance, as to refund credit assignee if the disclosures must make tion is who case in the is the here.19 one creditor more than there is inappropriate here be- mary judgment was sum- argue alternative that in the 19. Plaintiffs *20 say We cannot Congress was unaware of charges the debtor and collects unautho- consequences the of changing the defini- fees, rized where the original creditor tion of creditor as it debated amend- the would required otherwise be to refund the ments to TILA. At the above-referenced debtor promptly. But such result is not hearing, Senate the statement of Robert J. “absurd.” willWe not rewrite the text of Hobbs, a attorney staff at the National statute, the nor will we refuse to defer to Center, Consumer Law explicitly ad- the Federal Reserve’s consideration of the dressed the issue we are faced with here. liability assignees of in Regulation Z. We Mr. explained: Hobbs note this discrepancy, however, for the
Section 21. of Return Customer Credit of Congress benefit and the Federal Re- A Balances. series of FTC actions serve. See generally. Katzmann, Robert A. against large creditors who were holding Statutes, 87 L. N.Y.U. REV. 685-93 millions of dollars of their customer’s (2012) (suggesting judiciary should inform unpaid refunds focused attention on the Congress of opinions its interpreting fed- problems by addressed section 21. This statutes). eral For the reasons stated section adds present law the re- above, Money Store is not a “creditor” sponsibilities of paying such balances af- under TILA and the district court correct- ter six months taking and of reasonable ly dismissed plaintiffs’ the TILA claims. steps to trace the present consumer’s address if it changed. has This section CONCLUSION expands also obligations. to all these. Accordingly, the district judg- court’s although ‘creditors’ that term consid- ment is AFFIRMED in part, erably VACATED by circumscribed Section 2 of part, REMANDED for pro- 2802. The further obligations §165 TILA ceedings consistent with Opinion. should also run to assignees. Truth in Lending Simplification and Re- KATZMANN, Judge, Chief concurring: Act: Hearing on S. 108 the S.
form
Before
Comm,
Banking,
Housing, and Urban
Unsurprisingly, I concur in the Court’s
Affairs,
(1979)
Cong.
96th
43-44
(emphasis
judgment
agree
with its reasoning.
I
added).
separately
write
argument
address the
“It is well established that when regarding the false
exception
the
language
statute’s
plain,
the sole
liability
creditor
under the FDCPA that
function
courts—at least where the
majority
opinion declined to address as
disposition required by the text is not ab
unnecessary. See supra, at 104
n.
surd —is to enforce it according to its Specifically, agree
I
with the Seventh Cir-
terms.”
Trustee,
Lamie v. U.S.
540 U.S.
cuit that
where
creditor uses the name of
526, 534,
124 S.Ct.
presents
that where
to hold
(7th
thus far
followed
have
Dickerson,
634-39
sen v.
attorney
an
name of
uses
Cir.2002).
debts,
evaluate
we should
collect
notes, where the
opinion
majority
As the
misleadingly
that name
the use of
creditor as
out
is held
third party
in his
attorney acted
indicates
the credi
to collect
attorney retained
Nielsen, 307
See
capacity.
professional
*21
asks
debts,
Seventh Circuit
the
tor’s
both
accords with
Nielsen
at 634.
F.3d
his
has exercised
third-party
the
whether
prece-
prior
and our
statute
text of the
attorney
an
in
judgment
independent
dent.
case be
individual
debtor’s
reviewing each
approach
an
object that such
may
Our
id.
One
a letter. See
sending out
fore
liability where
creditor
expose
a
may
standard
an identical
applied
has
Circuit
to col-
collector
a debt
has en
hired
the creditor
attorney debt-collector
an
imper-
debts,
collector
debt
but the
in violation
lect its
practices
deceptive
in
gaged
accord.
on his own
attorney
an
whether to
question of
sonated
to the
1692e
section
explains,
opinion
the Court’s
immunity
section
As
under
Not so.
creditor
pierce
engaged
[the]
“actively
Compare
must
1692a(6)’s
exception.
be
name
false
Abramson,
name of
to “use”
Wolpoff
misrepresent[ation]”
id.,
v.
&
Miller
with
(2d
liable under
292, 301,
Cir.
and be held
L.L.P.,
another
306-07
321 F.3d
If the
at 99-100.
Supra,
approval).
exception.
Al
2003)
name
(citing Nielsen with
misrepresenting
not
not
here does
creditor is
involved
majority opinion
though
attorney, then
an
dispute
collector as
there is
the debt
the issue because
reach
Ac-
apply.
not
exception does
acted as even
false name
as to whether
itself, I
presents
collector,
ex
if such a case
I write to
cordingly,
ordinary debt
an
Nielsen.
should follow
adopt Nielsen
we should
believe we
why I think
plain
wholesale.
LIVINGSTON, Circuit
ANN
DEBRA
previ-
have
simple. We
reasoning is
My
dissenting in
concurring
part
Judge,
false name
focus of the
ously
that the
held
part:
the focus of
entire
exception indeed,
—
the use
evidence
Finding “abundant
sophisticat-
the “least
on what
FDCPA —is
col
abusive,
unfair debt
deceptive, based on
to be true
believes
ed consumer”
collectors,”
many debt
practices
col-
lection
debt
made
representations
added),
1692(a) (emphasis
15
Citicorp.
U.S.C.
Maguire v.
letter. See
lection
Debt Collection
(2d
Fair
enacted the
232,
Congress
Servs., Inc.,
236
147 F.3d
Retail
seq.,
Act,
et
15
1692
Trauner,
U.S.C.
Practices
v.
Co-
Cir.1998); see also Greco
“Act”),
(“FDCPA”
[such]
eliminate
“to
360,
L.L.P.,
Thomas,
412
363
F.3d
hen &
that debt collectors
to ensure
practices,
(2d Cir.2005).
collector
debt
Where
are not
practices
from such
as an who abstain
to the consumer
himself out
holds
pro
disadvantaged, and
debt,
competitively
we
to collect the
attorney retained
con
protect
action to
mote consistent state
mean-
attorney
be
must
have held
McNellie,
Carlisle,
v.
Jerman
i.e.,
sumers.”
some de-
exercise
ingfully involved—
573,
U.S.
Rini,
559
& Ulrich
Kramer
as not
judgment
LPA
professional
gree of
—so
1608,
519
1605,
176 L.Ed.2d
130 S.Ct.
consumer.
role to the
his
misrepresent
end,
imposes
(2010).
To
301, 306-07; Clomon v.
Miller, 321 F.3d at
prohibited
Cir.1993).
liability for
(2d
civil
1314,
Jackson,
1321
988
who
collectors—those
on debt
practices
entirely consistent
Therefore, it
would
111
“regularly
attempt[
colleet[ ] or
] to collect
take the
step
unremarkable
of hiring a
...
owed or
debts
due or asserted to be debt collector to collect their debts —so
owed
long
or due
another.”
as that
is,
debt collector
in majori-
1692a(6).
view,
not,
ty’s
The Act
does
insufficiently
involved in “bona
”
terms,
impose liability on
collection efforts.
Maj.
creditors. See
See
atOp.
fide
Maguire
Today,
v.
Citicorp
Servs., Inc.,
the majority’s
Retail
approach
(2d
conflates
147 F.3d
Cir.1998);
deception
of a creditor
see also
who
uses a-third
Alliance,
party’s
Schmitt
FMA
the decep-
398 F.3d
(8th
tion of a
Cir.2005)
third-party debt
collector
(noting
who
the distinction
falsely claims to be acting as an attorney.
between creditors and debt collectors “is
”
More fundamentally, its “bona
test
FDCPA,
fundamental
which does
fide
over
will
time
ambiguity
sow
into an other-
regulate
activities”)
creditors’
(quoting
wise'straightforward statutory scheme, au-
IMBS, Inc.,
Randolph v.
guring both difficult line-drawing
(7th Cir.2004)) (internal
*22
exercises
quotation marks
for future courts and uncertain liability for
omitted).
creditors who contract with debt collectors
There is one
exception
narrow
to this
to collect those creditors’ debts.
I there-
rule:
the Act treats
aas
debt collector
fore respectfully dissent from
majori-
who,
“any creditor
process
in the
of col-
ty’s determination that the district court
lecting
debts,
his own
any
uses
name other
erred in granting summary judgment on
than his own which would indicate that a
Plaintiffs-Appellants’ FDCPA claim.
I
person
third
is collecting or attempting to
concur in
judgment
that The Money
collect
1692a(6).
such debts.”
§
15 U.S.C.
is not
Store
a “creditor” under the Truth
This
exception
“false name”
thus limits
Act,
in Lending
§
15 U.S.C.
1601 et seq.
creditor liability to those creditors who
collect their own debts while operating
L
under a pseudonym or name of another— The FDCPA defines “debt collector” as
perhaps on the theory
creditors,
that such
“any person who uses any instrumentality
by freeing
any
themselves of
motivation to of interstate commerce or the
any
mails in
protect
names,
their own
have become suf- business the principal purpose of which is
ficiently like debt collectors as to merit
any debts,
collection of
or
regular-
who
FDCPA regulation. See Harrison v. NBD ly collects
collect,
or attempts
directly
to
Inc.,
Or at least not today. until majori- is attorney or that any communication ty now interprets the FDCPA as imposing 1692e(3). from an attorney.” is Id. liability just on those creditors who deceptively employ false names contrast, to collect creditors, defined rele- debts, their own but also on those who part vant as persons “who offer[ ] or ex- class ac- putative a brought Garrido John a debt or whom creating credit tend[ ] on behalf 1692a(4), regu- against are not owed,” tion id. debt subject similarly are not situat- all others FDCPA by the lated themselves own Act for their under liability alleging violations ed excep- only practices. purportedly amounts “attempting to collect using debts collect creditors when tion is equity home loans.” residential owed another, then classifies which name of of evi- is devoid The record 33-34. J.A. collectors: as debt Act them under however, Money Store dence, that The ... includes collector” “debt The term any of the communicated itself ever col- who, process of any creditor de- their loan regarding named debts, any name uses his own lecting attempted it col- faults, less that much would indicate own his which other than any name “using money from them lect at- collecting or person third own.” than [its] debts. collect such tempting 1692a(6). Instead, re- plaintiff each 1692a(6). §Id. Codilis, Moss, Stawiar- a letter ceived from “flat- provides that further The FDCPA Prior, Morris, LLP ski, & Schneider credi who assist a persons raters” —third Codilis”). informed (“Moss These by “providing using a false name tor default, noting her his or debtor of each impression creates form which “re- had been variously that Moss agency) (usually a collection that someone “authorized,” “designated” tained,” *23 ‘participating’ is creditor the actual besides of the status regarding the debtor contact Goodman, debt,” White collecting in FDCPA, by the required account.1 As (7th Cir.2000) 1016, 1018 —are letters fur- 1692g(a)(4), 15 U.S.C. see liable: also they if dis- advised the debtors ther (a) compile, and design, to unlawful It is days of writing in within the debt puted knowing such any form furnish provide verifi- would receipt, Moss Codilis to create the used be form would required Also as of debt. cation other person that a in a consumer belief FDCPA, let- 1692g(a)(5), see id. such consumer creditor of than the would in- Moss Codilis advised that ters in an in the collection participating and address of the name the debtors form consumer a debt such to collect attempt timely written upon creditor, original in of when owes such allegedly con- provided letters participating. so The breach person is not notice. fact such and Codilis for both Moss (b) violates this section information who tact Any person Store, to recipients Money referring to the same extent liable The shall a debt manner collector connection above- the same Codilis in with Moss title 1692k of this section notifications, among under liable referenced comply provision with to for failure to referring debtors generally things, and subchapter. of ad- purpose for the Money Store The 1692j. dressing payment. 15 U.S.C.
II. these sent prepared and Codilis Moss agree- April to an pursuant letters here, Lori Jo Vin- As relevant Money The Store. it and between Gutierrez, and ment and Linda cent, Ann Ruth commencing any mortgages ac- to acknowledges, notices residential majority such 1. As Maj. Op. at rights. lien See to enforce tion in the debt collection generally step a first virtually all prerequisite in process are a the Letter of Agreement, Moss Codilis 5.Obtain training for current staff. principally agreed to prepare and- send Neither party disputes that Moss Codi- notification breach on monthly lis, with Money The assistance, Store’s basis borrowers who had defaulted on drafted template breach letters to comply mortgage their loans. The firm further applicable state laws; and federal agreed to provide “systems person or that Moss Codilis generated thereafter persons” facilitate the transfer of data 88,000 over breach letters from 1997 Money from The Store to Moss Codilis for through using information regarding use generating the breach letters and to defaulted loans provided by The Money designate a contact person (“Operations Store; and that the firm had numerous Manager”) to “questions, address sugges- follow-up communications with debtors and tions, or areas of concern” and to assist lawyers, their both orally and in writing2 The Store in developing periodic It is further undisputed that Moss Codilis The, training courses for Money Store’s at all relevant times conducted business own staff. Moss agreed also Codilis. separately from Money Store, had its indemnify Store connection own employees, acted name, under its own with the breach letter program “for represented many other clients in con- losses incurred resulting from the violation nection with debt collection services. The of an existing federal or state statute reflects, record additionally moreover, that regulations.” and/or when its breach letters on behalf of The Money Store, turn, committed in Money proved ineffective at prompt- the Letter Agreement provide ing debtors to pay owed, monies lawyers books, “with access records, da- affiliated with Moss Codilis often became tabases, guidelines, investor and files nec- involved in subsequent legal proceedings essary for the completion of contract on The Money Store’s behalf.
duties.” The Store reserved the right to “initially and from time to time *24 III. approve review and sample forms of the Neither party disputes that Moss Codilis breach letters ... based on the format of drafted, printed, and mailed letters inform- the breach only.” letter Agreement ing plaintiffs the that they money owed the Money memorializes objectives Store’s Money Store and that they should in connection with its arrangement with promptly pay that money back. Nor does Moss Codilis: party either dispute that these pro- 1. federal, Meet all state, agency and vided Moss Codilis’s contact information investor requirements; and that Moss Codilis had follow-up com- 2. Reduce [The Store’s] costs of munications some with of the recip- letters’ handling loans; defaulted despite ients. Yet facts, undisputed these 3. Develop process improvements; majority the holds that a reasonable fact 4. Reduce losses on loans; defaulted finder could conclude that Moss Codilis Among things, Store, 2. other Moss Codilis provided also that testified she communicated debt verification upon information to debtors with bankruptcy debtors’ counsel and with request, as well as regarding information the attorneys at The concerning creditors, identity original of as it committed bankruptcy both proceedings and the dis- to do in the breach As majority letters. charge bankruptcy. of debts in Maj.Op. See Nash, acknowledges, super- Christina who at 93. vised Moss Codilis's work for The Nor, as the a debt. to collect” tempting to collect attempting collecting or
was not easily observes, the term does majority is the result This counterintuitive a debt. 1692a(6), See definition. precise § to a of itself lend a conflation of product delin- as collec- need not defining debt at 100-01. We Maj. Op. provision FDCPA false a employ “collecting or of who boundaries those creditors outer tors eate the party however, that third debt, debtors to deceive to collect” attempting name 1692e(3), debt, collecting ex- their name is the false to conclude order debt collectors those liable renders which For this case. apply does not ception collec- about debtors who deceive de- precisely not may the FDCPA while Only the attorney. anas involvement tor’s not constitute or does what does fine to the is deception relevant type former our collection,” not affect that does “debt simply it is exception, name record what is on this to determine ability case.3 in this present potentially is misleading potentially —what 1692a(6)’s majority, According to Codilis’s use of Moss “false”—about “(1) applies when: exception false name plaintiffs. sent in the letters name (2) debts; its own collecting is the creditor that, very structure And than its a name ‘uses’ the creditor establishes, not en- simply does FDCPA of that (3) the creditor’s use own; and was “col- Codilis whether Moss compass person third falsely indicates name plaintiffs’ collect” attempting to lecting or to collect’ attempting ‘collecting or is debts. collecting.” Maj. is the creditor debts notes, potential- what is majority test, theAs no with I take issue Op. the letters sent about ly deceptive text of what the accurately reflects which Moss implication that is their 1692a(6) My disagreement requires. as at- retained majority’s attorneys reformulation had been with the rather its third when regarding debts plaintiffs’ it, particular torneys to collect party’s the third use of little than that the more reality Codilis did element: par- third that the “falsely indicates” a mass- into information input plaintiffs’ attempting to collect’ or ‘collecting at 96- ty Maj. Op. “is See form letter. processed collecting.” the creditor debts may violate the n. 6. This 97 & from collectors prohibiting debt provision term, use Despite its misleading “false, deceptive, using what activities specifies FDCPA never in connection or means representation “collecting or at- constitute sufficient *25 collecting its own debts deceptively conflating liable for am I majority asserts that 3. The of Moss virtue general defini- exception using with the Moss Codilis’s name name collector, Maj. at 105 Op. major- n. see of debt efforts—as tion debt collection Codilis’s ais debt Moss Codilis I not. but am the most departing from ity holds—without gen- purpose of the FDCPA’s for collector false name meaning of the FDCPA’s obvious definition, that a (again) provides which eral exception a creditor holds exception. That any uses "any person is who collector debt collecting process of only "in the when liable or the instrumentality of interstate commerce any debts,” falsely "uses the creditor his own purpose of any principal business mails which indi- would his own other than name debts, any or who the collection which is collecting or at- person is cate that third collect, di- attempts to regularly or collects 15 U.S.C. debts.” tempting to collect such due or or indirectly, owed rectly debts or 1692a(6). provide does not § It 15 due another.” or to be owed asserted who de- hiring a debt collector liability for 1692a(6). problem here not as an its involvement about ceives debtors a debt collector. The Codilis is Moss attorney. cannot problem is
115 collection of debt.” 15 U.S.C. could conclude that the use of Moss Codi- 1692e; Jackson, see Clomon v. 988 F.2d lis’s name falsely indicated that it was (2d Cir.1993). And decep- collecting or attempting to collect a debt as (if occurred) tion it attributable, at least the third element of the false name excep- part, presence of Moss Codilis’s requires. tion clearly that of a law firm—on the name — That the use Moss Codilis’s name on letters. the letters falsely did not indicate anything But a debt collector’s misrepresentation other than its involvement as a law firm is of its involvement in collecting a proven ’through a simple hypothetical an attorney is different from a creditor’s question: if Moss Codilis’s name did not misrepresentation of its in col- involvement suggest that it firm, was a law what would lecting a debt as a debt collector. Section have deceptive been or misleading about much, 1692e suggests as as it requires presence in the letters? Put different- to be defendants “debt collectors” under ly, what would Moss Codilis’s name have the Act they before can be liable for mis- indicated about its involvement in collect- representing their involvement as an attor- ing plaintiffs’ debt that was not true? ney in the place. first See 15 U.S.C. That Moss Codilis drafted the letter? It 1692e, e(3). Even if Moss Codilis’s That did. Moss Codilis mailed out the may breach falsely letters have suggested letter? It did too. That Moss Codilis that it collecting was or to col- attempting was independent entity, distinct from plaintiffs’ lect debts as an attorney, such The Money Store? It was. suggestion equates in way no at all with proposition different Codilis Moss Recognizing this difference between in- also falsely claimed that it was collecting volvement as an attorney and involvement or attempting to plaintiffs’ collect debt. “collecting a debt” also reveals the flaw For as made evident very structure in the majority’s analysis. majority, FDCPA, question whether Moss in determining whether Moss Codilis “col- collecting attempting col- lected or attempted to debt, collect” a does lect plaintiffs’ separate debt is apart attempt to define that term’s exact from the question whether it was involved meaning Rather, under the FDCPA. it in that legal collection in a capacity. notes that under this Circuit’s holding in Maguire established, Services,
Once v. Citicorp this is Inc., it also Retail becomes (2d Cir.1998), clear that Moss Codilis’s breach if a letters third party did not in fact falsely sells its indicate that letterhead to a creditor who Moss Codi- then lis was collecting or mails the attempting letters to its is, to collect debtors —that plaintiffs’ flat-rating debts. For while the third presence party has not en- —the gaged Moss Codilis’s on the may debt collection. Maj. See atOp. have indicated a (citing number of things, Maguire, 235). It record establishes that it could then determines have that “[mjerely changing false- ly only thing: indicated one the return Codilis’s address” from the creditor’s to *26 in involvement the collection as a party’s law firm. the third “does alter not the force above, And as explained collecting Maguire or at- of because it change does not tempting to collect a in a legal capaci- the letter consumers, misleads ty is not the same as or at- “collecting which we explained have is statutory the tempting to collect debt” generally. a touchstone all aspects FDCPA, for of the Consequently, no reasonable fact finder including the exception.” false name Maj. the as “hyper-technical,” appear does not 147 F.3d at Maguire, (citing Op. at wholly logical.5 argues, but majority
286).
be-
a distinction
supporting
Further
that
the
ignores is
analysis
What
that the
Maguire is
this case and
tween
in this
the
and
letters
Maguire
letter
same distinction
exact
the
FDCPA draws
reasons.
different
deceptive
are
case
That
flat-rating provision.
1692j,
§
the
suggested
falsely
the letters
Maguire,
In
that
clearly anticipates
language
section’s
other than
someone
was
sender
that their
not itself communicate
does
a flat-rater
falsely
may
here,
creditor;
the letters
the
1692j
contrary,
the
To
with debtors.
Codilis,
sender,
was
that the
suggest
com-
“design[s],
flat-rater
that a
states
attorney. an
as
in collection
involved
forms
deceptive
and
pile[s],
fumish[es]”
”
Maguire,
this case and
between
difference
cre-
be used
they “[will]
knowing that
“merely changing
therefore,
than
more
is
other
that someone
false belief
ate the
changing the
it is
address”:
in the
the return
participating
is
than the
(em-
name on
the
changing
1692j(a)
address
Id.
return
aof
debt.
As
added).
law
does
Notably,
a flat-rater
that
the
phases
letterhead
firm.
debtor,
name
nor is
above, if Moss Codilis’s
to the
the forms
“send”
mentioned
not
firm,
actually “uses”
then
a law
the
that it was
the
one
suggest
flat-rater
did not
This is
the debtor.
letters
deceive
in the breach
the forms to
its name
the use of
course,
1692j’s ad-
addition,
§to
all in
anything
falsely indicate
would
—Moss
is on the
name
monition
whoever’s
mail the
all,
did,
draft and
after
participat-
not also be
form must
deceptive
meanwhile, even
Maguire,
letters.
Id.
in the debt collection.
ing
sug-
did not
name
party’s
third
though the
firm,
presence on
law
it was a
gest that
either our
support
lack
the
Given
par-
third
still
text of the
suggested
letters
own decisions
here,
it
not—thus
had
it
ma-
them —which
reaches
ty had sent
for the conclusion
inherently deceptive.4
to the case law
understandably looks
jority
rendering the letters
cites, how-
The cases it
Codilis’s
circuits.
issue of Moss
of other
told,
All
once
unpersua-
out,
ever,
inapposite or
either
separated
attorney
an
role as
opinion
Circuit’s
the Seventh
sive.6 While
Maguire
this case
between
distinction
might sug-
describes,
party's letterhead
a third
ence of
majority
as the
Specifically,
4.
the letter as
party drafted
gest
the third
and bore
Maguire were sent
the letters
it,
might
exception
Assistance,”
well
sent
the false
as
which
of "Debtor
the letterhead
however,
Since,
it
apply in such situation.
department for the
was
in-house collection
did draft the
undisputed that Moss Codilis
creditor,
at
Maguire, 147 F.3d
Citigroup.
need not ad-
plaintiffs, we
sent
excep-
false name
that the
We held
234-35.
because,
dress this issue.
though Debtor As-
even
applied
tion
letters,
sophisticated
a least
sent
sistance
majority's
of Federal
citation
is the
6.Nor
Assistance
that Debtor
could think
consumer
("FTC”)
guid-
interpretive
Trade Commission
Citigroup. Id.
entity separate from
was an
matter, the lan-
helpful.
an initial
As
ance
Thus,
name "Debtor
use
237-38.
interpret-
cites is not
majority
guage that the
sug-
it
deceptive
insofar
Assistance”
1692e(14),
1692a(6),
which
rather
ing §
but
party
a third
gested
came from
that the letter
acknowledged debt collectors from
prohibits
Citigroup. Id.
unrelated
business, company, or
or-
use of
“[t]he
than
true name of
ganization name
hypothetical
provides
majority
also
business, company, or or-
collector’s
the debt
the letters in
Money Store sent
that "The
FTC,
of General
Statements
ganization.” See
sealed,
envelopes to Moss Codilis
stamped
"
Commentary on
Interpretation Staff
Policy or
Maj. Op. at 101
'please mail.'
with the note
Act, 53
Practices
that,
Fair Debt Collection
pres-
because
I would
n. 11.
concede
*27
Dickerson,
(7th
in Nielsen v.
creditors why It is not evident also
to a third party. interpreting
courts, guise of in the dis- effect exception, should false name LIGON, individually be and on Jaenean less be courage creditors —assumed J.G., Jacqueline son, her minor half of prac- debt collection prone to abusive individually behalf of Yates, and on op- in the remaining involved tices—from situated, similarly agencies others collection of all the debt class erations of themselves hire, they be deemed Plaintiffs-Appellees, lest they al., et subject collectors to be debt FDCPA. YORK, al., et OF NEW CITY today will announced approach Defendants-Appellants, courts fear, as future I vexing,
prove credi- determining whether a struggle Captain’s Association Endowment tor, exempt from FDCPA supposedly York, As Detectives Endowment New name, in its own always acting despite and City Department, sociation, Police merely it subject is nevertheless Inc, Benevo- York, Lieutenants New practices collector whose hiring a debt requires "that mailing use element its printing and asserts jurisdictions, applicable in the letters, be active involvement must some responding to there misrepresentation breach notification the creditor” infor- requesting debt verification debtor calls by The Mon- action” "relevant affirmative the ey original identity of creditors. or the mation "retaining Codilis for mailing we practice of mass This sending letters that express purpose of breach neces- past an "economic deemed have in the attorney appeared to collection be industry." Clo- sity ... the debt collection words, Maj. Op. In other at 99. debtors.” its mon, respect, the With of this element majority its discussion obfuscating meaning majority deception of a creditor again conflates flat-rating for future courts. pseu- using a debts own while collects its who is unwarrant- the different donym claims this fear of another with majority 8. The or name third-party debt collector who deception a failure to of a out of consider ed and arises attorney. acting an exception’s falsely claims to of what discussion only into sow confusion approach can Maj. Op. at 99 n. 8. requires. This element "use” provision. straightforward majority otherwise so. The respect, I don't think With The Store notes also By 7, Order dated 2005, breach invited debtors contact December J.) district they (Sprizzo, Moss Codilis if court verify granted wished to sum mary judgment identity Money or the to The of their creditors. plain Store claims, tiffs’ invitation, to that relying Pursuant Nash prior testified decision in the separate, directly corresponded she related case with The Store, Mazzei v. Money Money 349 F.Supp.2d Store’s debtors their attorneys (S.D.N.Y.2004). around one hundred Vincent Mon times. Nash testified (“Vincent ey ”), Store I F.Supp.2d that on occasion she corresponded with a (S.D.N.Y.2005).4 Mazzei, 502-03 bankruptcy attorneys debtor’s counsel and district court found that plaintiffs could not Money at The regard Store with to a rely on the false name exception because bankruptcy proceedings, debtor’s as well Money The Store had not “used” Moss as whether the in question debts had been Codilis’s name. The district court reached discharged in bankruptcy. legal When ac- this conclusion on the grounds that Moss against tion necessary, debtor was The Codilis, Money Store, not The sent out the Money Store lawyers claims that “affiliat- letters, breach Money The Store did with” ed Moss Codilis handled legal pretend not Codilis, to be Moss and that proceedings through practices. their own Money Store did thoroughly not so II. Procedural History control Moss Codilis as to render Moss Mazzei, ego.” Codilis its “alter 24, 2003, April On plaintiffs filed the F.Supp.2d at Maguire 661 (citing v. Citi instant action in the district court alleging Servs., corp Retail 234-36 Money that The Store had provi- violated (2d Cir.1998)). Accordingly, the district sions of the FDCPA and TILA. Plaintiffs court concluded that Money Store was argued that the breach letters were unlaw- subject liability to FDCPA pursuant to ful under they FDCPA because the false name exception. Id. The court impression “creat[ed] that a third plaintiffs’ claims, declined to dismiss TILA party had been hired to collect the debt” however, concluding had ad “falsely implied] that a firm law had equately alleged that retained the Money been Store to col- had violated TILA charging unautho lect the debt and was authorized com- rized expenses fees and and failing to re legal against mence action the borrower.” the resulting fund credit balances on their respect claims, to their plain- With TILA accounts. Id. at 662-63. tiffs claimed that The Store had charged their accounts for fees and ex- Following Judge Sprizzo’s death this which it penses right collect, had no reassigned Judge case was Koeltl on had failed to refund overcharges January 2009. The Store subse-
Notes
Notes of “[e]ach definition because claims plaintiffs’ FDCPA with We start entity other than an identifies en- Congress Money Store. against The lender original as Defendants Store abusive “to eliminate the FDCPA acted assignment an collectors, indicates by debt practices debt collection also de- The court Defendants.” debt collectors who those to insure jurisdic- supplemental exercise clined to using abusive debt collection from refrain law remaining state plaintiffs’ over tion disadvan- competitively are not practices claims, motion plaintiffs’ denied ac- consistent promote State taged, and de- Judge Sprizzo’s of reconsideration col- against protect tion to consumers judg- summary 1692(e). defendants grant cision To 15 U.S.C. lection abuses.” claims, con- plaintiffs’ ment ends, “estab- the FDCPA further these subsequent declaration that the cluding whose rights for consumers certain lishes where by plaintiffs, introduced Nash Ms. profes- in the hands of placed debts she and Moss Co- that both explained she collection.” De- collectors for sional debt Let- role in Breach had a limited Credit, Inc., dilis 269 F.3d Computer v. Santis altered not have Program, ter would (2d Cir.2001). As is relevant decision. Judge Sprizzo’s pro- here, of the FDCPA 1692e section may debt collector generally “[a] vides timely appealed the dismissal Plaintiffs false, misleading or any deceptive, not use against TILA and FDCPA claims of their or means connection representation Money Store.5 15 U.S.C. any debt.” the collection “[wjithout addition, limiting In 1692e. DISCUSSION foregoing,” application of the general grant court’s review district “We specific proscribes section 1692e sixteen novo,” de Lombard summary judgment including practices, “[t]he debt collection Hamilton, Inc., v. & Booz-Allen any implication or representation (2d Cir.2002), “the same apply any com- attorney or individual is court,” by the district applied standards Id. attorney.” is from an munication Opera Entergy Nuclear Tepperwien 1692e(3). (2d Cir.2011). tions, Inc., 556, 567 prior precedent, only Under our may granted “Summary judgment Codilis’s claim that Moss any have a dispute as to triable genuine if is no ‘there pro- 1692e’s violated section breach letters is entitled fact and movant material ” false, deceptive, the “use of (quot hibition on a matter of Id. as law.’ judgment ... in con- 56(a)). misleading representation^] determining ing Fed.R.Civ.P. has dissolved argument that Moss Codilis initially the dis- oral Although plaintiffs appealed business, rendering doing longer against and is no of their state law missal claims Codilis, pointless. claims prosecution of such those plaintiffs have since abandoned claims, Arg. Tr. at 19. represented at Oral plaintiffs' counsel
all Notes While interpreta- as an Board Reserve] [Federal Store, the Federal signed to defer- may Z warrant Regulation tion Commen- Staff Official Board’s Reserve Bank matter.” Chase general as a ence provides “[i]f Z tary Regulation — -, 131 U.S. McCoy, USA, N.A. per- one initially payable is obligation (2011); L.Ed.2d S.Ct. creditor, if the even son, is person Milhollin, Co. v. Credit Motor Ford accord simultaneously is by its terms obligation 790, 63 555, 565, 100 S.Ct. 444 U.S. 12 C.F.R. person.” another assigned to (“Unless demonstrably (1980) L.Ed.2d (2000). The Notes I, supp. at pt. Board staff irrational, Reserve Federal simulta- not even here were question [Regulation construing [TILA] opinions Money Store. neously assigned dispositive....”). should be Z] place took assignments Each endorsement, com- separate means of court the district agree with We fully been the Notes had after menced person “the Money Store that The executed. consumer arising from the whom the that, least with at are correct Plaintiffs initially payable [was] credit transaction and Garrido Gutierrez to the indebtedness,” respect of the evidence the face before Notes, occurred assignments these anot 1602(g), therefore 15 the loan— was due on payment first respect under TILA “creditor” sense, pay- “initial so, in a literal Specifically, here. transactions issue Money Store. to The made ment” was plain correctly rejected court the district the Fed- however, under This, is irrelevant loans in argument tiffs’ central Commentary Reg- Board’s eral Reserve to The “initially payable” question were