Obduskey v. McCarthy & Holthus LLP

586 U.S. 466, 139 S. Ct. 1029, 203 L. Ed. 2d 390, 2019 U.S. LEXIS 2090
CourtSupreme Court of the United States
DecidedMarch 20, 2019
Docket17-1307
StatusPublished
Cited by217 cases

This text of 586 U.S. 466 (Obduskey v. McCarthy & Holthus LLP) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Obduskey v. McCarthy & Holthus LLP, 586 U.S. 466, 139 S. Ct. 1029, 203 L. Ed. 2d 390, 2019 U.S. LEXIS 2090 (2019).

Opinions

Justice BREYER delivered the opinion of the Court.

The Fair Debt Collection Practices Act regulates " 'debt collector[s].' " 15 U.S.C. § 1692a(6) ; see 91 Stat. 874, 15 U.S.C. § 1692 et seq. A " 'debt collector,' " the Act says, is "any person ... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts." § 1692a(6). This definition, however, goes on to say that "[f]or the purpose of section 1692f(6)" (a separate provision of the Act), "[the] term [debt collector] also includes any person ... in any business the principal purpose of which is the enforcement of security interests." Ibid.

The question before us concerns this last sentence. Does it mean that one principally involved in "the enforcement of security interests" is not a debt collector (except "[f]or the purpose of section 1692f(6)")? If so, numerous other provisions of the Act do not apply. Or does it simply reinforce the fact that those principally involved in the enforcement of security interests are subject to § 1692f(6) in addition to the Act's other provisions?

In our view, the last sentence does (with its § 1692f(6) exception) place those whose "principal purpose ... is the enforcement of security interests" outside the scope of the primary "debt collector" definition, § 1692a(6), where the business is engaged in no more than the kind of security-interest enforcement at issue here-nonjudicial foreclosure proceedings.

I

A

When a person buys a home, he or she usually borrows money from a lending institution, such as a bank. The resulting debt is backed up by a "mortgage"-a security interest in the property designed to protect the creditor's investment. Restatement (Third) of Property: Mortgages § 1.1 (1996) (Restatement). (In some States, this security interest is known as a "deed of trust," though for present purposes the difference is immaterial. See generally ibid. ) The loan likely requires the homeowner to make monthly payments. And if the homeowner defaults, the mortgage entitles the creditor to pursue *1034foreclosure, which is "the process in which property securing a mortgage is sold to pay off the loan balance due." 2 B. Dunaway, Law of Distressed Real Estate § 15:1 (2018) (Dunaway).

Every State provides some form of judicial foreclosure: a legal action initiated by a creditor in which a court supervises sale of the property and distribution of the proceeds. Id. , § 16:1. These procedures offer various protections for homeowners, such as the right to notice and to protest the amount a creditor says is owed. Id. , §§ 16:17, 16:20; Restatement § 8.2. And in the event that the foreclosure sale does not yield the full amount due, a creditor pursuing a judicial foreclosure may sometimes obtain a deficiency judgment, that is, a judgment against the homeowner for the unpaid balance of a debt. National Consumer Law Center (NCLC), Foreclosures and Mortgage Servicing §§ 12.3.1-2 (5th ed. 2014).

About half the States also provide for what is known as nonjudicial foreclosure, where notice to the parties and sale of the property occur outside court supervision. 2 Dunaway § 17:1. Under Colorado's form of nonjudicial foreclosure, at issue here, a creditor (or more likely its agent) must first mail the homeowner certain preliminary information, including the telephone number for the Colorado foreclosure hotline. Colo. Rev. Stat. § 38-38-102.5(2) (2018). Thirty days later, the creditor may file a "notice of election and demand" with a state official called a "public trustee." § 38-38-101. The public trustee records this notice and mails a copy, alongside other materials, to the homeowner. §§ 38-38-102, 38-38-103. These materials give the homeowner information about the balance of the loan, the homeowner's right to cure the default, and the time and place of the foreclosure sale. §§ 38-38-101(4), 38-38-103. Assuming the debtor does not cure the default or declare bankruptcy, the creditor may then seek an order from a state court authorizing the sale. Colo. Rule Civ. Proc. 120 (2018); see Colo. Rev. Stat. § 38-38-105. (Given this measure of court involvement, Colorado's "nonjudicial" foreclosure process is something of a hybrid, though no party claims these features transform Colorado's nonjudicial scheme into a judicial one.) In court, the homeowner may contest the creditor's right to sell the property, and a hearing will be held to determine whether the sale should go forward. Colo. Rules Civ. Proc. 120(c), (d).

If the court gives its approval, the public trustee may then sell the property at a public auction, though a homeowner may avoid a sale altogether by curing the default up until noon on the day before. Colo. Rev. Stat. §§ 38-38-110, 38-38-104(VI)(b). If the sale goes forward and the house sells for more than the amount owed, any profits go first to lienholders and then to the homeowner. § 38-38-111. If the house sells for less than what is owed, the creditor cannot hold the homeowner liable for the balance due unless it files a separate action in court and obtains a deficiency judgment. See § 38-38-106(6); Bank of America v. Kosovich , 878 P.2d 65, 66 (Colo. App. 1994). Other States likewise prevent creditors from obtaining deficiency judgments in nonjudicial foreclosure proceedings. Restatement § 8.2. And in some States, pursuing nonjudicial foreclosure bars or curtails a creditor's ability to obtain a deficiency judgment altogether. NCLC, Foreclosures and Mortgage Servicing § 12.3.2.

B

In 2007, petitioner Dennis Obduskey bought a home in Colorado with a $ 329,940 loan secured by the property. About two years later, Obduskey defaulted.

*1035In 2014, Wells Fargo Bank, N. A., hired a law firm, McCarthy & Holthus LLP, the respondent here, to act as its agent in carrying out a nonjudicial foreclosure.

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Bluebook (online)
586 U.S. 466, 139 S. Ct. 1029, 203 L. Ed. 2d 390, 2019 U.S. LEXIS 2090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obduskey-v-mccarthy-holthus-llp-scotus-2019.