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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
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
