USCA11 Case: 19-13383 Date Filed: 01/27/2021 Page: 1 of 18
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13383 ________________________
D.C. Docket No. 0:18-cv-62440-RAR
MANUEL E. RIVAS,
Plaintiff-Appellant,
versus
MIDLAND FUNDING, LLC,
Defendant-Appellee. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 27, 2021)
Before MARTIN, LUCK, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
The question in this appeal is whether a debt collector, Midland Funding LLC,
can be held liable for the allegedly false representations that another entity, Midland
Credit Management, Inc., made while acting on its behalf. Manuel Rivas appeals USCA11 Case: 19-13383 Date Filed: 01/27/2021 Page: 2 of 18
from the district court’s order granting summary judgment for Funding on two
counts alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§
1692e and 1692e(2)(A), and one count alleging a violation of the Florida Consumer
Collection Practices Act, FLA. STAT. § 559.72(9). Under the circumstances of this
case, we hold that Funding cannot be held liable for Credit Management’s
representations under either Act. Accordingly, we affirm.
I.
Because this is an appeal from an order granting summary judgment, the
following facts are recounted in the light most favorable to Rivas.
Rivas opened, used, and defaulted on three credit card accounts for an
Amazon card, a TJ Maxx card, and a Lowe’s card. The bank possessing the accounts
then sold them to Funding, a company with no employees that acquires delinquent
accounts but neither manages nor collects them. Funding has an agreement with its
affiliate, Credit Management, under which the latter files lawsuits, sends collection
letters, and accepts payments through its website.
After Funding acquired Rivas’s accounts, Credit Management tried to collect
them on Funding’s behalf, filing lawsuits in Florida state court against Rivas. The
lawsuits sought the $4,561.98 that Rivas owed on the Amazon account, $4,300.23
on the TJ Maxx account, and $3,821.19 on the Lowe’s account. The lawsuits were
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filed in Funding’s name, but Credit Management was “responsible for reviewing,
processing, and entering all hearing results.”
Rivas and Funding eventually entered into a settlement agreement, which was
docketed in the Amazon lawsuit. Under the agreement, Rivas would pay $1,100.00
to resolve all three lawsuits by making $50.00 monthly payments “at the following
online address: midlandcreditonline.com.” If Rivas defaulted on the agreement, he
would be liable for the total debt amount on the three accounts less any payments
that he had made up to that point. In return, Funding agreed to dismiss its lawsuits
regarding Rivas’s Lowe’s and TJ Maxx accounts by June 19, 2018.
Rivas made his first payment under the settlement agreement through Credit
Management’s website. When he made that payment, the website displayed his
current balance as $1,100.00. But the next time he made a payment, the website
displayed his current balance as $4,511.98. Each subsequent occasion that Rivas
accessed the website to make a payment, the website displayed a current balance
exceeding $4,000 with open claims for the TJ Maxx and Lowe’s accounts that
Funding had agreed to dismiss. Rivas suffered considerable distress after seeing
these continued errors in his balance.
Rivas sued Funding, alleging multiple violations of the FDCPA and FCCPA,
including two counts for violating the FDCPA’s prohibition on misrepresentations,
a count for violating the FCCPA’s prohibition on enforcing a non-existent legal
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right, and a count for declaratory judgment. Rivas did not sue Credit Management,
but he argued that its website falsely represented the amounts of his alleged debts
and the legal status of the TJ Maxx and Lowe’s accounts.
After discovery, Funding filed a motion for summary judgment, arguing that
it could not be held liable for the erroneous statements on Credit Management’s
website. Funding noted that it neither collects any debts for another party nor
controls the statements on Credit Management’s website. And Funding emphasized
that it was Credit Management who filed the lawsuits against Rivas on Funding’s
behalf, Credit Management who collected all payments through its website without
forwarding any payments to Funding, and Credit Management who controlled the
representations on its own website.
The district court granted Funding’s motion for summary judgment. The court
held that, although Funding does not collect debts for third parties, it is a “debt
collector” under the FDCPA’s “principal purpose” definition. Nonetheless, the
district court held that Funding could not be held liable under the FDCPA or the
FCCPA. The district court reasoned that “Rivas has not presented, and the record
does not contain, any evidence to suggest that [Funding] was aware of, or had any
control over, the amounts being displayed on the website.” Rivas timely appealed.
II.
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Before reaching the merits of this appeal, we must address our own
jurisdiction and that of the district court. Specifically, we must determine whether
Rivas had Article III standing both to bring his claims initially and now to appeal
their dismissal. Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir.
2020) (citing United States v. Hays, 515 U.S. 737, 742 (1995) and Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998)). To establish Article III
standing, a plaintiff must show three elements: (1) that he “suffered an injury in
fact,” (2) caused by the defendant, (3) that a favorable decision would likely redress.
Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Foremost among
these elements is an injury in fact, which consists of “an invasion of a legally
protected interest” that is both “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Id. (first citing Steel Co., 523 U.S. at
103; and then citing Lujan, 504 U.S. at 560)).
In Trichell, we held that “concrete” injuries cannot be merely “intangible” and
that plaintiffs in an FDCPA case must establish “reliance and ensuing damages.” See
id. at 997–1000. There, the plaintiffs alleged that an FDCPA violation “created a
risk that unsophisticated consumers might be misled into making unnecessary or
even harmful payments on time-barred debt.” Id. at 1000. They also claimed an
“informational injury” based on an alleged right under the FDCPA “to receive
truthful communications from debt collectors.” Id. at 1003. We concluded, however,
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that the violation caused no “downstream consequences” or “adverse effects.” Id. at
1004. Neither the risk of injury nor the informational injury in Trichell was sufficient
to confer standing. Id. at 1000.
In contrast to those intangible and consequence-free injuries, Rivas’s injury
here was tangible and his reliance on the information on Credit Management’s
website had damaging consequences, namely loss of sleep and extreme stress. At
first, Rivas was merely “confused” and “really upset” to see the wrong amount due
on the website. This confusion festered to the point that Rivas became so “stressed
and worried” that he “couldn’t sleep.” He was even more concerned when the
website still reflected the same balance “a couple of days later.” The disparity on the
website persisted for nearly six months until the TJ Maxx and Lowe’s lawsuits were
finally dismissed. Rivas testified that “[i]t’s hard to sleep, it’s hard to concentrate
sometimes and it’s just very stressful.” He worried that he might make an error or
pay on the wrong account and so be forced to pay the entire amount of the three
accounts. These injuries are sufficiently tangible—and therefore concrete—to confer
Article III standing.
III.
We now turn to the merits of Rivas’s appeal. “We review a district court’s
grant of summary judgment de novo, viewing the evidence in the light most
favorable to the nonmoving party.” Agrelo v. Affinity Mgmt. Servs., LLC, 841 F.3d
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944, 949–50 (11th Cir. 2016). We will affirm a summary judgment if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a).
Rivas sued Funding under sections of the FDCPA that prevent a “debt
collector” from using “any false, deceptive, or misleading representation or means
in connection with the collection of any debt,” including “[t]he false representation
of the character, amount, or legal status of any debt.” 15 U.S.C. § 1692e &
1692e(2)(A). But the undisputed facts establish that Funding did not make any
representations itself or control Credit Management’s website. The question, then,
is whether Funding can be held indirectly liable for Credit Management’s
representations. Rivas makes four arguments for holding Funding liable under the
FDCPA, but none work under the facts of this case.
First, Rivas cites authorities from our sister circuits that rely on agency
principles and common law ideas about vicarious liability to support indirect liability
for violations of the FDCPA. But, in his reply brief and at oral argument, Rivas
expressly disclaimed any reliance on vicarious liability or agency principles. Instead,
his indirect liability argument is based solely on the text of the statute. Because of
this concession, these out-of-circuit precedents are irrelevant here. See Clark v.
Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1172 (9th Cir. 2006)
(“[G]eneral principles of agency . . . form the basis of vicarious liability under the
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FDCPA . . . .”); Barbato v. Greystone All., LLC, 916 F.3d 260, 269 (3d Cir. 2019)
(“[W]e have relied on traditional agency principles in holding parties vicariously
liable under the FDCPA . . . .”); Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379,
404–05 (3d Cir. 2000) (analyzing agency principles and holding general partner
vicariously liable for FDCPA violations of other members of partnership); Janetos
v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 325 (7th Cir. 2016) (holding debt
collector vicariously liable for actions taken on its behalf by another debt collector).
Second, Rivas argues that the definition of “debt collector” in the FDCPA
supports holding Funding liable for Credit Management’s representations. Under the
FDCPA, a “debt collector” is any person who either (1) “uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is
the collection of any debts,” or (2) “regularly collects or attempts to collect, directly
or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. §
1692a(6). We refer to the first clause of this definition as the “regularly collects”
clause and the second clause as the “principal purposes” clause. Satisfying either
clause of this definition will render the person a “debt collector,” subject to the
substantive provisions of the FDCPA. Davidson v. Capital One Bank (USA), N.A.,
797 F.3d 1309, 1315 (11th Cir. 2015).
Rivas argues that the statute’s use of the word “indirectly” in this definition
suggests that a debt collector is liable for the actions of its agents. But only the
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“regularly collects” clause—not the “principal purposes” clause—includes the word
“indirectly.” Here, the district court held, and the parties concede, that Funding is
not a debt collector under the “regularly collects” clause but is a debt collector, if at
all, under the “principal purposes” clause. Accordingly, even if we were to assume
that a “debt collector” under the “regularly collects” clause might be indirectly liable
for the actions of others acting on its behalf, that clause has no application to this
case. Because Funding is a debt collector, if at all, under only the “principal
purposes” clause of Section 1692a(6), it cannot be held liable based on the use of
“indirectly” in the separate and inapplicable “regularly collects” definition.
Third, Rivas argues that the broad definition of “communication” in Section
1692a(2) supports indirect liability. 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). This argument also fails on the facts
of this case. Even if one could sue over an indirect “communication,” Rivas is not
suing over a “communication.” That word—although broadly defined in the
definition section of the statute—is not used in the substantive sections under which
Rivas has brought his claims.
Again, Funding cannot be held liable based on a definition that does not apply
to its conduct. Rivas alleged that Funding violated Section 1692e, generally, and
1692e(2)(A), specifically. Section 1692e generally prohibits the use of “any false,
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deceptive, or misleading representation or means in connection with the collection
of any debt.” Certain “communications” are listed as examples of “misleading
representation[s] or means.” See 15 U.S.C. § 1692e(8), (9), (11). But Rivas does not
allege that anyone—Funding or Credit Management—made any of those
“communications” or otherwise violated a provision that uses the defined term
“communication.” Instead, the specific subsection that Rivas relies on, Section
1692e(2)(A), prohibits a “false representation of the character, amount, or legal
status of any debt” and that is, in fact, what Rivas alleges—that the website falsely
represented the amount and legal status of his debt.
That Rivas has not sued over a “communication” distinguishes this appeal
from two of our previous decisions analyzing the definition of “communication”
under the FDCPA: Bishop v. Ross & Bonan, P.A., 817 F.3d 1268 (11th Cir. 2016),
and Hart v. Credit Control, LLC, 871 F.3d 1255 (11th Cir. 2017). In Bishop, this
Court analyzed Section 1692g, which imposes certain requirements for a debt
collector’s “initial communication” with a consumer. We held that Section 1692g is
subject to the definition of “communication,” which can “be triggered either by a
direct communication or by an indirect communication.” Bishop, 817 F.3d at 1272
(11th Cir. 2016). And in Hart, the plaintiff alleged that the debt collector had violated
Section 1692e(11), which prohibits “[t]he failure to disclose in the initial written
communication with the consumer . . . that the debt collector is attempting to collect
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a debt and that any information obtained will be used for that purpose, and the failure
to disclose in subsequent communications that the communication is from a debt
collector.” 871 F.3d at 1257. These precedents about the definition of
“communication” have no import here. 1
Fourth, Rivas relies on several out-of-circuit decisions analyzing vicarious
liability under Section 1692i of the FDCPA. These precedents suggest that there
might be indirect liability for a violation of Section 1692i under certain
circumstances. Compare Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108
(6th Cir. 1996) (no vicarious liability for non-debt collector whose counsel, who was
a debt collector, allegedly violated Section 1692i) with Fox v. Citicorp Credit Servs.,
Inc., 15 F.3d 1507, 1513, 1516 (9th Cir. 1994) (vicarious liability existed under
Section 1692i for venue decision made by defendant’s counsel, who was a debt
collector). But, like the definition of “communication” and the “regularly collects”
clause, Section 1692i is simply not relevant here.
1 Our dissenting colleague argues that Bishop “demonstrates that an action under section 1692e can be based on an indirect communication.” But our reasoning in Bishop does not apply in this case. In Bishop we “emphasized the fact-specific nature of this holding.” 817 F.3d at 1277. The facts in Bishop involved a Section 1692e violation based on the violation of another provision that itself included the defined term “communication.” There, we held that the plaintiff had “a claim under § 1692e because” a letter sent to her lawyer “omit[ed] a material term required by § 1692g(a).” Id. After explaining that “a debt-collection letter sent to the consumer’s attorney— rather than directly to the consumer—qualifies as a ‘communication with a consumer’” under Section 1692g, we held that the debt collector’s violation of Section 1692g(a) is actionable as ‘“false, deceptive, or misleading’ behavior in violation of [Section] 1692e.” Id. at 1271. We did not hold that the definition section of the statute has a substantive effect even where the statute does not use a defined word.
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For these reasons, the district court was correct to grant summary judgment
on Rivas’s FDCPA claims. The definition of “communication” in Section 1692a(2)
and the definition of “debt collector” in Section 1692a(6) are irrelevant to Rivas’s
false representation claims under Section 1692e. As are precedents from other courts
that either rely on arguments that Rivas has expressly waived or that analyze the text
of unrelated statutory provisions.
The district court also correctly granted summary judgment on the state-law
FCCPA claim. Apart from his arguments about the FDCPA, Rivas does not argue
that the FCCPA provides an independent basis to hold Funding liable. The FCCPA
defines “communication” in the same way as the FDCPA, FLA. STAT. § 559.55(2),
but Rivas likewise sued Funding for violating a substantive provision of the FCCPA
that does not use that word, FLA. STAT. § 559.72(9). Because the district court was
correct to grant summary judgment on Rivas’s FDCPA claims, it correctly granted
summary judgment on his FCCPA claim as well.
IV.
The district court’s judgment is AFFIRMED.
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MARTIN, Circuit Judge, concurring in part and dissenting in part:
I agree with most of the holdings made by the majority in Mr. Rivas’s case.
I agree he has Article III standing to sue Midland Funding, LLC (“Midland
Funding”) under the Fair Debt Collection Practices Act (“FDCPA”) for his
injuries. See Maj. Op. at 5–6. It is also true, as the majority opinion observes, that
Mr. Rivas does not seek to hold Midland Funding liable for Midland Credit
Management, Inc.’s (“Midland Credit”) misrepresentations based on vicarious
liability or agency principles. See id. at 7–8. And since Mr. Rivas does not make
those arguments, this case does not require us to decide whether to join our sister
circuits who say a debt collector can be vicariously liable under the FDCPA for the
acts of its affiliates. See, e.g., Janetos v. Fulton Friedman & Gullace, LLP, 825
F.3d 317, 325 (7th Cir. 2016). The majority opinion is also correct that this record
does not allow us to decide whether Midland Funding can be indirectly liable for
Midland Credit’s misrepresentations under the “regularly collects” clause of the
“debt collector” definition in the FDCPA. See Maj. Op. at 8–9. And finally, since
the venue provision of the FDCPA, 15 U.S.C. § 1692i, is not at issue in Mr.
Rivas’s case, I agree that vicarious liability cannot be imposed under that
provision. See Maj. Op. at 11–12.
Where I do part ways with the majority opinion, however, is I believe
Midland Funding could be found liable to Mr. Rivas for indirect communications
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made to him through Midland Credit’s website under 15 U.S.C. § 1692e. Mr.
Rivas alleged that Midland Funding violated this provision and I think a reasonable
jury could agree. I therefore respectfully dissent to the majority’s holding on this
point.
Mr. Rivas says the definition of “communication” in the FDCPA allows
liability to be imposed on Midland Funding based on its indirect communications
made through Midland Credit’s website. The settlement agreement Mr. Rivas
entered into with Midland Funding in the debt-collection action said “[p]ayments
are to be made directly to [Midland Funding] at the following on-line address:
midlandcreditonline.com.” In fact, I don’t see that the settlement agreement tells
Mr. Rivas any other way to pay.
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). The majority opinion says Mr. Rivas cannot avail himself of
the “broadly defined” term “communication” because that word is “not used in the
substantive sections under which Rivas has brought his claims.” Maj. Op. at 9–10.
But section 1692e generally makes it unlawful for a debt collector to “use any
false, deceptive, or misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. And I read the “any . . . representation
or means” language in section 1692e to include indirect communications like those
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Mr. Rivas says Midland Funding made through Midland Credit’s website. This
seems to me to be the proper conclusion even though Mr. Rivas’s claims rely on
the general language of 15 U.S.C. § 1692e and the specific language of 15 U.S.C.
§ 1692e(2)(A), which do not use the word “communication.” See 15 U.S.C.
§ 1692e. I come to this conclusion for three reasons.
First, our Court has characterized section 1692e as having a “broad scope”
with “broad prohibitions.” Crawford v. LVNV Funding, LLC, 758 F.3d 1254,
1261 (11th Cir. 2014), overruled on other grounds by Midland Funding, LLC v.
Johnson, 581 U.S. ___, 137 S. Ct. 1407 (2017). Indeed, section 1692e prohibits
the use of “any false, deceptive, or misleading representation or means” in
connection with the collection of any debt. 15 U.S.C. § 1692e (emphasis added).
The “broad scope” of this language is big enough to include false or deceptive
indirect communications.
Second, this Court interprets a general statutory term “in light of the specific
terms that surround it.” Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 934
(11th Cir. 2000) (quotation marks omitted). That means we must interpret the
words “any . . . representation or means” in light of other terms used in section
1692e. As the majority recognizes, see Maj. Op. at 10, other subsections of section
1692e list communications as specific examples of “representation[s] or means.”
See, e.g., 15 U.S.C. § 1692e(8) (stating that it “is a violation of this section” to
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“[c]ommunicat[e] or threaten[] to communicate to any person credit information
which is known or which should be known to be false”). And we know the
FDCPA defines those specific examples of communications to include indirect
communications. See id. § 1692a(2). For this reason as well, I think the better
course is to interpret “any . . . representation or means” to include indirect
communications.
Finally, this Court’s decision in Bishop v. Ross Earle & Bonan, P.A., 817
F.3d 1268 (11th Cir. 2016), demonstrates that an action under section 1692e can be
based on an indirect communication. Connie Bishop’s debt collectors sent a debt-
collection letter to her attorney, and Ms. Bishop sued those debt collectors under
the FDCPA, alleging that the letter violated section 1692g and section 1692e. Id.
at 1269–70. This Court first held that the letter was an indirect communication for
purposes of the section 1692g claim. Id. at 1272. Then it held that, based on the
letter sent to her attorney, Ms. Bishop alleged sufficient facts to state a claim under
section 1692e. Id. at 1274. I say this shows that section 1692e prohibits false or
deceptive indirect communications, like the letter in Bishop and like the statements
posted on Midland Credit’s website about Mr. Rivas’s account. True, Ms. Bishop
also alleged that the letter specifically violated section 1692e(10). Id. at 1270. But
this Court couched its analysis in terms of section 1692e’s general language,
indicating that a false or deceptive indirect communication is prohibited by section
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1692e’s broad limits on false or deceptive “behavior.” Id. at 1274. Beyond that,
even to the extent the Bishop opinion relied on section 1692e(10) itself, that
specific provision also lacks the term “communication.” See 15 U.S.C.
§ 1692e(10). This must mean that a claim brought under section 1692e, with or
without a specific reference to a subsection, can be asserted based on indirect
communications, even if the subsection of the statute does not use the word
“communication.”
The majority attempts to distinguish Bishop because Ms. Bishop also
asserted a claim under 15 U.S.C. § 1692g, which is not at issue here. Maj. Op. at
10–11 & n.1. Specifically, the majority says “our reasoning in Bishop does not
apply” based on its reading that Bishop says the indirect communication was only
“actionable” under section 1692e because the debt-collection letter sent to Ms.
Bishop’s attorney also violated section 1692g, which uses the term
“communication.” Id. at 11 n.1. But our Court’s ruling in Bishop nowhere relied
on section 1692g’s use of the term “communication” in its discussion of the section
1692e claim. Instead, this Court simply held that Ms. Bishop alleged sufficient
facts to state a claim under section 1692e based on the letter to Bishop’s attorney.
See Bishop, 817 F.3d at 1274. The majority does not dispute that the letter was an
indirect communication.
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I read section 1692e’s broad prohibition on “any false, deceptive, or
misleading representation or means in connection with the collection of any debt”
to include indirect communications. I would therefore allow Mr. Rivas to proceed
against Midland Funding under section 1692e for indirect communications. And
viewing the record in the light most favorable to Mr. Rivas, a jury could find that
Midland Funding indirectly communicated with Mr. Rivas through Midland
Credit’s website. Specifically, reasonable jurors could find that Mr. Rivas’s
settlement agreement with Midland Funding required him to use Midland Credit’s
website, such that any representations on the website were indirect
communications from Midland Funding. Of course, Midland Funding tells us that
Mr. Rivas was “not required to make payments online,” since the settlement
agreement says elsewhere that Rivas “may make payments online.” But this
sounds to me like a jury argument over a genuine dispute of material fact.
I would reverse the District Court’s order granting summary judgment in
favor of Midland Funding, and so I respectfully dissent.