978-1285770178 Case Printout Case CPC-24-04

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445 F.3d 152

Jeffrey F. COHEN, Defendant-Appellant.

Decided: April 12, 2006.

JOSÉ A. CABRANES, Circuit Judge.

We consider here, as a matter of first impression in our Circuit, whether a consumer debt

collector’s initiation of a lawsuit in state court seeking recovery of unpaid rent is an “initial

(1) the amount of the debt;

of the debt or a copy of the judgment against the consumer and a copy of such verification of

judgment will be mailed to the consumer by the debt collector; and

Accordingly, actions arising out of commercial debts are not covered by the protective

collector will provide the consumer with the name and address of the original creditor, if

violated 15 U.S.C. ß 1692e by misstating the amount of attorneys’ fees owed.

Because the District Court concluded that there was an issue of fact with regard to

whether this fee calculation was false, it denied both Cohen’s motion for summary

judgment and Goldman’s cross-motion for summary judgment on this issue. See

notice at the time of, or within five days of, serving Goldman with *155 the notice of petition

(the ‘initial communication’ in this case), Cohen violated the FDCPA.” Goldman, 2004 WL

2937793 at *7, 2004 U.S. Dist. LEXIS 25517, at *23-*24.

On appeal, Cohen argues that, as a matter of statutory construction, the District Court erred in

the states’ rights to establish the rules governing litigation in their own courts” and create

obstacles to the service of process where creditors are aware that debtors are represented by

an attorney. Id. at 8, 17-18.

We review de novo a district court’s grant of summary judgment, drawing all reasonable

the plain language of the FDCPA broadly defines “[t]he term ‘communication’ [as] the

conveying of information regarding a debt directly or indirectly to any person through any

medium.” 15 U.S.C. ß 1692a(2) (emphasis added). “The plain meaning of legislation should

be conclusive, except in the rare cases in which the literal application of a statute will produce

any construction of the FDCPA that exempted state legal proceedings from the definition of

concluded that “the [FDCPA] applies to attorneys who ‘regularly’ engage in consumer-debt-

collection activity, even when that activity consists of litigation.” Id. at 299, 115 S.Ct. 1489

(emphasis added). Although Congress has since amended another section of the FDCPA to

clarify that certain disclosure requirements (other than those specified in ß 1692g(a)) do not

1996 amendment to ß 1692e(11) “evidences an intent and an awareness that the FDCPA

otherwise encompasses litigation activity”). Accordingly, we hold that the District Court did not

err in concluding that “in those portions of the statute that mention ‘communication’ without

expressly excluding legal pleadings”-such as ß 1692g(a)-“legal pleadings are included.” FN4

information obtained will be used for that purpose, and the failure to disclose in

subsequent communications that the communication is from a debt collector, except

that this paragraph shall not apply to a formal pleading made in connection with a legal

action.

Financial Services Sept. 10, 2003); H.R. 1059, 105th Cong. (1997), 1997 Bill Tracking

H.R. 1059 (referred to the House Banking and Financial Services Committee March 13,

1997).

Third and finally, we recognized in Romea v. Heiberger & Associates, 163 F.3d 111 (2d

116-18. The fact that the letter “also served as a prerequisite to commencement of the Article

7 [of the New York Real Property Actions and Proceedings Law] process” was deemed “wholly

irrelevant to the requirements and applicability of the FDCPA” because the “aim in sending the

letter was at least in part to induce [the tenant] to pay the back rent she allegedly owed.” Id. at

116. In Romea, we considered the FDCPA’s “process server exemption” and concluded that

“[i]f Congress had wanted to exempt any document that was served on the consumer, rather

than just the delivery of such a document, it presumably would have adopted language akin to

that in ß 1692e(11), which exempts ‘a formal pleading made in connection with a legal action’

from certain, but not all, of the FDCPA’s disclosure requirements.” Id. at 117 n. 7 (emphasis

added).

For the foregoing reasons, we hold that the District Court did not err in concluding that Cohen’s

initiation of a lawsuit in state court seeking recovery of back rent and attorneys’ fees was an

“initial communication” within the meaning of ß 1692g(a). In so holding, we join at least one

sister circuit. See Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914 (7th Cir.2004) (en

banc ), rev’g 354 F.3d 696 (7th Cir.2004). In Thomas, the Court of Appeals for the Seventh

Circuit, convened en banc, held that a debt collector’s initiation of a lawsuit constitutes an

within the meaning of the FDCPA, the Eleventh Circuit relied upon a Staff Commentary

of the Federal Trade Commission which had been superseded. Vega, 351 F.3d at 1337

(discussing Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.Reg.

50,097, 50,108 (Fed. Trade Comm’n Dec. 13, 1988)). A Commission advisory opinion

[5][6] In cases where debt collectors send debtors a validation notice either along with a

summons and complaint or shortly thereafter,FN6 we recognize the risk that some debtors will

become confused. To avoid such confusion, it is imperative that a debt collector (1) “make

clear that the advice contained in the ß 1692g validation notice in no way alters the debtor’s

FN6. As the Seventh Circuit observed, “[a] debt collector need not make the summons

and complaint its first communication with the debtor; rather, it can have its initial

communication with the debtor upwards of 30 days before it intends to initiate litigation.”

Thomas, 392 F.3d at 919. One advantage to this approach is that a debtor’s decision