Frank Thomas v. Law Firm of Simpson & Cybak

354 F.3d 696, 2004 U.S. App. LEXIS 354, 2004 WL 51733
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 13, 2004
Docket02-1113
StatusPublished
Cited by9 cases

This text of 354 F.3d 696 (Frank Thomas v. Law Firm of Simpson & Cybak) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank Thomas v. Law Firm of Simpson & Cybak, 354 F.3d 696, 2004 U.S. App. LEXIS 354, 2004 WL 51733 (7th Cir. 2004).

Opinions

WILLIAMS, Circuit Judge.

Frank Thomas appeals from the district court’s dismissal of his suit which alleged that General Motors Acceptance Corporation (“GMAC”), the law firm Simpson & Cybak (“Simpson”), and their employees failed to send him a debt validation notice advising him of his rights as a debtor within five days of their initial communication with him, as is required by the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692-1692o. Two principal questions are raised in this appeal: whether a creditor’s letter to a debtor or a debt collector’s initiation of a lawsuit in state court constitute “initial communications” within the meaning of the FDCPA. In dismissing Thomas’s case for failure to state a claim, the district court determined that the creditor’s letter to the debtor constituted an “initial communication,” while the debt collector’s initiation of the lawsuit did not. We disagree with both conclusions. Accordingly, we reverse the district court’s decision to dismiss Thomas’s claim against Simpson, and we remand for further proceedings.

[698]*698I. BACKGROUND

In January 1998, Frank Thomas purchased a Chevrolet Blazer from Apple Chevrolet under an installment contract immediately assigned to GMAC. Around January 20, 2000, shortly after Thomas lost his job with GMAC, he received a default letter from GMAC operations manager Kay Candiano on GMAC letterhead informing him that his payment on the vehicle was past due.

On March 27, 2000, GMAC, through its attorneys, Simpson & Cybak, sued Thomas in Illinois state court to recover the vehicle. Kathleen Haggerty, a Simpson lawyer, signed the complaint. The complaint included a statement that, “[pjursuant to the [FDCPA], you are advised that this law firm is a debt collector attempting to collect a debt, and any information obtained will be used for that purpose.” The summons included similar language.

Thomas filed suit against GMAC and Simpson under the FDCPA, claiming that neither party sent him a debt validation notice advising him of his rights as a debt- or. See 15 U.S.C. § 1692g(a). The district court granted both defendants’ motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Thomas now appeals.

II. ANALYSIS

We review de novo the district court’s dismissal of Thomas’s complaint for failure to state a claim, accepting as true the well-pleaded allegations in Thomas’s complaint and drawing all reasonable inferences in his favor. Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir.1996).

The FDCPA requires that “within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector” must send the debtor a written validation notice containing certain information. 15 U.S.C. § 1692g(a). The notice must inform the debtor of the amount of the debt, the name of the creditor, and that the debt will be assumed valid if the debtor does not dispute its validity within 30 days of the receipt of the notice. Id § 1692g(a)(l)-(3). Furthermore, the notice must include a statement that, if the debtor disputes the debt within 30 days of the notice, the debt collector will obtain and send the debtor verification of the debt and, upon written request, send the debtor the name and address of the current creditor, if different from the original creditor. Id. § 1692g(a)(4)-(5).

Thomas argues that neither GMAC nor Simpson notified him of these debt validation rights. Thomas primarily contends that the summons and complaint Simpson filed initiating state court litigation against him constituted an “initial communication” under the FDCPA, and Simpson was therefore required to notify him of his validation rights within five days of that communication.

As an initial matter, we need to decide whether GMAC’s January 20, 2000 default letter to Thomas constitutes an “initial communication” for purposes of the FDCPA. Despite the district court’s finding to the contrary, all parties to this appeal now concede that the letter does not constitute an “initial communication” regarding a debt under the FDCPA.

The FDCPA defines a “communication” broadly: “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). But, because the Act regulates debt collectors rather than creditors, Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir.2003), GMAC’s letter to Thomas — a letter from a credi[699]*699tor1 — does not qualify as an “initial communication” under the Act. Because the FDCPA makes debt collectors, but not creditors, responsible for notifying debtors of their validation rights, see 15 U.S.C. § 1692g(a), a contrary position could create significant unintended obligations for debt collectors. Debt collectors would be responsible for notifying debtors of their debt validation rights within five days of an “initial communication” that the debt collector did not send or for one communicated before the creditor retained the debt collector. Nothing in the FDCPA suggests that Congress intended creditors’ unilateral actions to obligate debt collectors to inform debtors of their rights; rather, the Act is intended to deter debt collectors from employing their own abusive tactics. Because we decide that GMAC’s letter to Thomas does not constitute an initial communication for FDCPA purposes, no obligation to inform Thomas of his validation rights arose upon the sending of the letter.

The principal question remains, whether Simpson’s filing of the summons and complaint, in state court, was an “initial communication” within the meaning of the FDCPA, such that the filing triggered an obligation to notify Thomas of his validation rights within five days. No appellate court has addressed this issue, and district courts are divided in their analy-ses. See, e.g., McKnight v. Benitez, 176 F.Supp.2d 1301, 1306-08 (M.D.Fla.2001) (holding that a summons and complaint do not constitute “initial communications” triggering the debt validation notice requirements of § 1692g); but see, e.g., Sprouse v. City Credits Co., 126 F.Supp.2d 1083, 1089 n. 8 (S.D.Ohio 2000) (finding that a summons and complaint served in a state court action constitute “initial communications” under the FDCPA).

By its terms, as stated above, the FDCPA’s broad definition of a “communication” encompasses the filing of a summons and complaint. When Simpson filed the summons and complaint, it conveyed information regarding Thomas’s debt.2

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Frank Thomas v. Law Firm of Simpson & Cybak
354 F.3d 696 (Seventh Circuit, 2004)

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Bluebook (online)
354 F.3d 696, 2004 U.S. App. LEXIS 354, 2004 WL 51733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-thomas-v-law-firm-of-simpson-cybak-ca7-2004.