Janetos v. Fulton Friedman & Gullace, LLP

825 F.3d 317, 2016 U.S. App. LEXIS 6361, 2016 WL 1382174
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 7, 2016
DocketNo. 15-1859
StatusPublished
Cited by100 cases

This text of 825 F.3d 317 (Janetos v. Fulton Friedman & Gullace, LLP) 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
Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 2016 U.S. App. LEXIS 6361, 2016 WL 1382174 (7th Cir. 2016).

Opinion

HAMILTON, Circuit Judge.

Section 1692g(a)(2) of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., requires a debt collector to disclose to a consumer “the name of the creditor to whom the debt is owed,” either in its initial communication with the consumer or in a written notice sent within the next five days. When defendant Fulton Friedman & Gullace, LLP set out to collect debts from the plaintiffs on behalf of creditor Asset Acceptance, LLC, it sent them letters that identified Asset Acceptance as the “assignee” of the original creditors but said that the plaintiffs’ accounts had been “transferred” from Asset Acceptance to Fulton. Nowhere in the letters did Fulton explicitly identify Asset Acceptance as the current creditor.

Plaintiffs brought suit alleging that Fulton had violated §§ 1692e, 1692e(10), and 1692g(a)(2) of the Act by failing to disclose the current creditor’s name and that Asset Acceptance was vicariously liable for Fulton’s violations. The district court granted defendants’ motion for summary judgment. The court held that the letters were ambiguous as to the identity of the current creditor but that plaintiffs needed to present extrinsic evidence of confusion, like a consumer survey, to survive summary judgment. The court also held that even if plaintiffs had presented such evidence, their claims would still fail because the ambiguity about the identity of the current creditor was immaterial, meaning it would neither contribute to nor undermine the Act’s objective of providing “information that helps consumers to choose intelligently.” See Hahn v. Triumph Partnerships LLC, 557 F.3d 755, 757-58 (7th Cir.2009).

We reverse. The district court correctly found that the letters were unclear, but it erred in finding that additional evidence of confusion was necessary to establish a § 1692g(a)(2) violation. Section 1692g(a) requires debt collectors to disclose specific information, including the name of the current creditor, in certain written notices they send to consumers. If a letter fails to disclose the required information clearly, it violates the Act, without further proof of confusion. Section 1692g(a) also does not have an additional materiality requirement, express or implied. Congress instructed debt collectors to disclose this information to consumers, period, so these validation notices violated § 1692g(a). Finally, because Asset Acceptance is itself a debt collector, it is liable for the violations of the Act by its agent. We remand this case to the district court for further proceedings consistent with this opinion.

I. Background

Factually speaking, this case is a simple one. Asset Acceptance is a debt collector that acquired, or claimed to have acquired, consumer debts purportedly owed by the various plaintiffs. Later, pursuant to § 1692g, Fulton sent its initial collection notices to the plaintiffs (or, for those plaintiffs with legal representation, to their attorneys). The letters followed essentially the same template. We quote the letter [320]*320sent to plaintiff Erik King, but there are no meaningful differences among the letters. Before the salutation, each letter had a heading in roughly the following form:

Re: Asset Acceptance, LLC Assignee of AMERISTAR
Original Creditor Acct # : XX0682
Fulton, Friedman & Gullaee, LLP Acct #:
XXXXXX2109
Balance Due: $17479.24

Letters sent to attorneys rather than directly to the consumers had the consumer’s name in the first line followed by the reference to Asset Acceptance as assignee in the second. The letters began: “Please be advised that your above referenced account has been transferred from Asset Acceptance, LLC to Fulton, Friedman & Gul-lace, LLP.” They also said that if the consumer had “already entered into a payment plan or settlement arrangement with Asset Acceptance, LLC,” Fulton was “committed to honoring the same,” and instructed consumers to direct all future contact, including any questions they had, to Fulton’s offices. The letters provided no additional details about the relationship between Asset Acceptance and Fulton. Nowhere did they say who currently owned the debt.1

Lawsuits by plaintiffs Mary T. Janetos, Erik King, Pamela Fujioka, and Ignacio Bernave were eventually combined in one action. They alleged that the letters violated § 1692g(a)(2) of the Fair Debt Collection Practices Act by failing to identify the current creditor or owner of the debt. They also alleged the letters violated § 1692e and e(10), which prohibit the use of false or misleading representations or means in connection with the collection of a consumer debt. In July 2014, the district court certified a plaintiff class consisting of consumers who received the letters personally and a subclass of consumers who had been sent the letters in care of their attorneys.

On cross-motions for summary judgment, the district court ruled in favor of defendants. Addressing first the § 1692e and e(10) claims, the court acknowledged the form letter’s ambiguity on the question of the current owner of the debt, noting that the word “transferred” could mean either conveyance of title or assignment for collection and that, applying the ordinary meaning of “transfer,” the letter did not “suggest any particular form or method of conveyance.” Nevertheless, the court held that the ambiguous letter and plaintiffs’ affidavits attesting to their own confusion failed to create a genuine dispute of material fact for trial under § 1692e and that plaintiffs failed to offer evidence that the omission met the materiality requirement we have found implied for most § 1692e claims. • The district court then rejected the plaintiffs’ § 1692g(a)(2) claim on the same grounds as the § 1692e and e(10) claims, including lack of materiality. Plaintiffs have appealed.

II. Analysis

The Fair Debt Collection Practices Act is designed to protect consumers from abusive and unfair debt collection practices. See 15 U.S.C. § 1692e; Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir.2000). To help accomplish that goal, § 1692g(a) provides that in either the initial communication with a consumer in connection with the collection of a debt or another written [321]*321notice sent within five days of the first, a debt collector must provide specific information to the consumer. The required information includes “the name of the creditor to whom the debt is owed.” 15 U.S.C. § 1692g(a)(2). Plaintiffs argue that the letters they received failed to make that disclosure. Plaintiffs have also claimed that the failure violated the more general requirements of § 1692e and e(10), but at oral argument, plaintiffs’ counsel agreed those claims add nothing here to the § 1692g(a)(2) claim, so we focus our attention on § 1692g(a)(2).

A. The Violations of § 1692g(a) (2)

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825 F.3d 317, 2016 U.S. App. LEXIS 6361, 2016 WL 1382174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janetos-v-fulton-friedman-gullace-llp-ca7-2016.