Lead Opinion
ROGERS, J., delivered the opinion of the court in which ROSE, D.J., joined. DONALD, J. (pp. 745-47), delivered a separate dissenting opinion.
OPINION
Plaintiff Brown owed student loan debt, which he alleges Van Ru Credit Corporation was retained to collect. A Van Ru employee left a voicemail at Brown’s business that stated the caller’s and Van Ru’s names, a return number, and a reference number. The caller asked that someone from the business’s payroll department return her call. Brown sued Van Ru for violations of the Fair Debt Collection Practices Act, alleging in part that the voice-mail was a communication “in connection with the collection of any debt” with a third party in violation of 15 U.S.C. § 1692c(b). The district court granted Van Ru’s motion for judgment on the pleadings. Brown appeals, arguing that he sufficiently pled a violation of § 1692c(b). The district court properly granted Van Ru’s motion. The voicemail left at Brown’s business was not a “communication” as that term is defined in the Fair Debt Collection Practices Act. A communication must “convey[ ] ... information regarding a debt directly or indirectly to any person through any medium,” 15 U.S.C. § 1692a(2), and the voicemail message did not convey such information. As a result, there was no violation of § 1692c(b).
The following are the facts as alleged in Brown’s complaint. At all times relevant to this suit, Brown owed debt on a student loan. Van Ru Credit Corporation, a debt collection agency, twice contacted the business that Brown owns. First, in late March or early April 2014, Van Ru mailed a letter to Brown’s business seeking Brown’s payroll information. Brown does not allege that this letter in any way violated the Fair Debt Collection Practices Act (FDCPA) or any other law. Second, on April 14, 2014, a Van Ru employee called Brown’s business and left the following voicemail in the business’s “general mail box”:
Good morning, my name is Kay and I’m calling from Van Ru Credit Corporation. If someone from the payroll department can please return my phone call my phone number is (877) 419-5627 and the reference number is * * * * *488; again my telephone number is (877) 419-5627 and reference number is * * * * *488.
Brandon Harris, an employee at the business, heard the message and was aware that Van Ru is a debt collector. Brown’s proposed amended complaint additionally alleges that Harris “is ... aware that any personal calls received at [BrownJ’s business are intended solely for [Brown].” Brown received no further c'ommunications from Van Ru, and he does not allege any further communication to Brown’s business either.
Brown filed suit in federal court, alleging that Van Ru’s voicemail violated two provisions of the FDCPA. First, Brown alleged that Van Ru violated 15 U.S.C. § 1692c(b) by communicating with a third party regarding Brown’s debt. Second, Brown alleged that Van Ru violated 15 U.S.C. § 1692g(a) by failing to provide required written notices after an “initial communication with a consumer.” Brown also alleged claims under the Michigan Occupational Code, MCL § 339.915, and the Michigan Collection Practices Act,
On appeal, Brown argues that he stated a claim under 15 U.S.C. § 1692e(b), the FDCPA’s prohibition on certain communications with third parties.
The district court properly granted Van Ru’s motion for judgment on the pleadings, because Brown failed to plead a communication by Van Ru under the FDCPA. In order to state a claim under 15 U.S.C. § 1692c(b), a plaintiff must plausibly allege, in part, that the defendant “communicate[d], in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.” 15 U.S.C. § 1692c(b). The FDCPA defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). To convey information regarding a debt, a communication must at a minimum imply the existence of a debt. Otherwise, whatever information is conveyed cannot be understood as “regarding a debt.” Van Ru’s voicemail message'— which does little more than ask someone from Brown’s business’s payroll department to call back — does not do so.
Under the circumstances alleged in Brown’s complaint, Van Ru’s voicemail does not convey information regarding Brown’s debt. An employee of Brown’s business who hears this message would understand it to concern Brown’s debt only in the most exceptional of circumstances. Nothing in the message even suggests that any kind of debt exists. Brown argues that the presence of the word “Credit” in “Van Ru Credit Corporation” clearly refers to debt collection. But the word “credit” refers to a category of financial activities far broader than debt collection. The other pieces of information in the voicemail — the reference number and the toll-free number to call back — only give the impression that Van Ru has some kind of business relationship with Brown’s business or someone employed by Brown’s business, or perhaps that Van Ru seeks to create some kind of business relationship. Finally, the fact that the voicemail asks for someone from payroll to call back suggests only that Van Ru is seeking some sort of payroll information, whether about an individual employee or the business as a
What information a message conveys depends partly on context, but Brown does not plead circumstances in which Van Ru’s message would mean more than what the words say. A message that would seem cryptic to a third party may have a clearer import when directed to the debtor, and a message that is part of a series of communications may mean more because of what has already been said. But here, Van Ru’s voicemail, which was not directed to Brown, was preceded only by a single letter that, so far as Brown pleads, did no more than inquire after Brown’s payroll information. Brown does not plead that Harris or anyone else saw the letter, so it may not be appropriate to treat it as part of the context for the voicemail. Regardless, the letter only indicates that the payroll information the voicemail seeks is likely to be Brown’s payroll information. It still does not create a context in which the voicemail suggests anything about Brown’s debt. Therefore, the voicemail does not convey information about a debt and is not a “communication” under the FDCPA.
This application of the definition of “communication” under the FDCPA is consistent with the FDCPA’s purposes, the Fair Trade Commission’s commentary, and the decision of the Tenth Circuit in Marx v. General Revenue Corp.,
The non-binding commentary of the Federal Trade Commission lends further support to this approach. In rejecting an interpretation that would categorically exclude from the definition of “communiea
Finally, this approach is consistent with that adopted by the Tenth Circuit, the only other circuit to consider the definition of “communication” in § 1692a(2) as applied to a third-party communication. Marx,
The Marx court reasoned that the fax was not a communication: “This fax cannot be construed as ‘conveying’ information ‘regarding a debt.’ Nowhere does it expressly reference debt; it speaks only of ‘verifying] [employment.’ Nor could it reasonably be construed to imply a debt.” Id. at 1177. The requirement that, at the very least, a communication imply a debt arises from the statutory language:
[The] requirement is implicit in the word “convey.” To convey is to impart, to make known. If one drafts a letter full of unlawful collection threats, but never mails it, nothing is conveyed. So, too, if the “communication” is in Sanskrit. The fax here never used the words “debt,” “collector,” “money,” “obligation,” or “payment.”
Id. at 1182. This reasoning is directly applicable here. Van Ru’s voicemail provided less information that could relate to a debt, as it did not even mention Brown by name, and the name “Van Ru Credit Corporation” is hardly more likely to imply the existence of a debt than “General Revenue Corporation.”
While Marx was unable to show at summary judgment that the fax had actually informed any third party of her debt, this fact provides little basis for distinguishing Marx.
Finally, requiring that a communication at a minimum imply or refer to the existence of a debt is consistent with the text of the FDCPA as a whole. Some district courts and the dissent in Marx — though, curiously, not Brown — have argued that a narrow interpretation of the “communica-tion” definition in § 1692a(2) would make § 1692b, or at least § 1692b(5), redundant. See Marx,
The Marx majority’s response to this concern is compelling. The court reasoned that the definition of “communication” in § 1692a(2) was unambiguous, and so it was better to assume that in § 1692b Congress in an abundance of caution had “repealed] language in order to emphasize it.” Marx,
The judgment of the district court is affirmed.
Notes
. Brown also argues that the district court improperly considered allegations in and exhibits to Van Ru's answer. But we review the district court’s decision de novo. Tucker v. Middleburg-Legacy Place,
. The Marx opinion was joined by Judge Gil-man of our Circuit, sitting by designation.
. Brown also attempts to distinguish Maix on the ground that that case involved a communication that was “reasonably necessary to effectuate a postjudgment judicial remedy’’ and was thus permissible under § 1692c(b). But nothing in the opinion supports this proposition.
Dissenting Opinion
dissenting.
DISSENT
The majority’s opinion analyzes whether the voicemail message was a communica
The Fair Debt Collection Practices Act (“FDCPA”) defines a communication as a term that means the “conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C.A. § 1692a(2). The term “regarding” is not defined by the FDCPA. Therefore, I consult the dictionary to ascertain its definition. See Appoloni v. United States,
Van Ru’s representative conveyed four pieces of information in the voicemail message: (1) her name, (2) the name of the company for which she worked, Van Ru Credit Corporation, (3) her work telephone number, and (4) a reference number. The only piece of information that could relate to Brown’s loan is the reference number. See Brody v. Genpact Servs., LLC,
Whether the reference number related to Brown’s loan depends on the nature of the reference number. For example, if the reference number was Brown’s loan identification number issued to him by the company that supplied his loan, then Van Ru’s representative would have undoubtedly conveyed information regarding Brown’s loan. The district court dismissed this case before discovery had begun. Consequently, Brown did not have the opportunity to unearth the true identity of the reference number. Until the true identity of the reference number is known, I cannot agree with the majority’s determination that the voicemail did not convey “any information” regarding Brown’s loan.
The majority’s opinion suggests that courts should consider the knowledge of the receiver of the message when deciding whether or not it constitutes a communication under 15 U.S.C. § 1692a. Thus, what could be a communication if received by one person may not be a communication if heard by another. For example, the majority opinion proposes that the voicemail message would constitute a “communication” if heard by Brown, but not a “communication” when heard by another individual who had no reason to know of Brown’s loan. Consequently, using the majority’s reasoning, a different outcome would result if Brown’s brother, who knew about his loan, overheard the voicemail message, but not if his sister overheard it but did not know about his loan.
In my view, either the Van Ru representative conveyed information regarding Brown’s loan or she did not. Conducting that inquiry has nothing to do with evaluating what Brown’s employee knew or did
For the foregoing reasons, I respectfully dissent.