| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Trustee, LLC v. Ambridge (3/4/2016) sp-7084
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA TRUSTEE, LLC and )
STEPHEN ROUTH, ) Supreme Court No. S-14915
)
Appellant,
) Superior Court No. 3AN-10-06356 CI
)
v.
) O P I N I O N
)
BRETT AMBRIDGE and
) No. 7084 - March 4, 2016
JOSEPHINE AMBRIDGE, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Richard Ullstrom, RCO Legal-Alaska, Inc.,
Anchorage, for Appellants. James J. Davis, Jr. and Daniel C.
Coons, Alaska Legal Services Corporation, Anchorage, and
Deepak Gupta and Jonathan E. Taylor, Gupta Beck PLLC,
Washington, D.C., for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.
I. INTRODUCTION
Brett and Josephine Ambridge defaulted on their home loan. Alaska
Trustee, LLC, in the business of pursuing nonjudicial foreclosures, sent the Ambridges
----------------------- Page 2-----------------------
a notice of default that failed to state the full amount due as required by the federal Fair
Debt Collection Practices Act (FDCPA). The Ambridges filed suit against Alaska
Trustee and its owner, Stephen Routh, seeking damages under the FDCPA and the
Alaska Unfair Trade Practices and Consumer Protection Act (UTPA), as well as
injunctive and declaratory relief. The superior court held that both Alaska Trustee and
Routh were "debt collectors" subject to liability under the FDCPA, awarded damages
under that Act, and awarded injunctive relief under the UTPA. Alaska Trustee and
Routh appeal, arguing that neither of them is a debt collector as defined by federal law
and that injunctive relief was improperly awarded.
We conclude that the superior court's decision that Alaska Trustee was a
debt collector and liable for the violation of the FDCPA accords with the more
persuasive authority, and we therefore affirm it. But while we agree with the superior
court's decision that Routh was a debt collector as well, we conclude that the evidence
did not support finding him liable for the violation, and we reverse the superior court's
decision on this issue. Finally, we affirm the superior court's award of injunctive relief
under the UTPA.
II. FACTS AND PROCEEDINGS
A. Alaska Trustee's Notices Of Default To The Ambridges
The Ambridges bought their first home in 2006. They took out a home loan
from Alaska Housing Finance Corporation, secured by a deed of trust against the
property; the loan was serviced by Wells Fargo Bank, N.A. The Ambridges fell behind
on their payments in late 2007 and received a letter from Alaska Trustee, LLC, notifying
them that they were in default and that a foreclosure sale would take place in January
2008.
-2- 7084
----------------------- Page 3-----------------------
The Ambridges were able to cure the default. But they fell behind again
1
and received another notice of default from Alaska Trustee in August 2009.
This time
they were unable to cure the default, and their property was sold at auction in December
2009.
The 2009 notices of default are at the center of this appeal. The first one
described the deed of trust and the property, and it stated that "[t]he amount of the
obligation secured is $196,712.28, plus interest, late charges, costs and any future
advances." It also had a statement at the top that read: "The purpose of this letter is to
collect a debt. Any information obtained will be used for that purpose." At the bottom,
the notice had a lengthy paragraph entitled "Fair Debt Collection Practices Act
2
Statement."
The amended notice, sent later, contained the same provisions and attached
1 As before, the Ambridges first received a letter from Wells Fargo in April
2009 informing them of the default, stating the total delinquency, and offering them
another chance to reinstate the loan.
2 The statement provided information required by 15 U.S.C. § 1692g(a)
(2012). It read:
The principal balance of the debt is $196,712.28, plus
interest, late charges, attorney fees and costs and other
advances. The creditor to whom the debt is owed is Alaska
Housing Finance Corporation. Unless within 30 days after
receipt of this notice you dispute the debt or any portion of it,
we will assume the debt to be valid. If you notify us within
30 days after receipt of this notice that you dispute the debt
or any part of it and do so in writing, we will obtain
verification of the debt and mail it to you. If you request it in
writing within 30 days after receipt of this notice, we will
provide you with the name and address of the original
creditor, if different from the current creditor. Address
requests to Alaska Trustee, LLC . . . .
-3- 7084
----------------------- Page 4-----------------------
an additional page that stated at the bottom: "THE PURPOSE OF THIS
COMMUNICATION IS TO COLLECT THE DEBT. ANY INFORMATION
OBTAINED WILL BE USED FOR THAT PURPOSE." It also provided this
information for the recipient: "Your rights will clearly be affected by the foreclosure and
you may wish to seek legal advice. If you have been discharged of this debt in
Bankruptcy, you are not to regard this message as a demand for payment or an assertion
of personal liability."
Federal law requires, among other things, that a consumer be informed of
"the amount of the debt" in the initial communication about the debt or within five days
3 Alaska Trustee's notices to the Ambridges each stated the principal amount
thereafter.
due, but neither stated the full amount due, as they failed to specify what was owed for
"interest, late charges, costs and any future advances." Alaska Trustee conceded in the
superior court that, if it is subject to the FDCPA, its notices violated that law by failing
to state the full amounts due.
B. Alaska Trustee
Alaska Trustee is a limited liability company, formed in 2005 by Routh, an
attorney, who continues to be the company's owner and managing member. Alaska
Trustee's activities consist of "processing non-judicial foreclosures of deeds of trust on
real property." This includes "ordering the title report, recording the Notice of Default
in the real property records, providing notice of the foreclosure as required by statute,
responding to requests from the borrower . . . for reinstatement or payoff quotes," and
handling formalities before and after foreclosure sales. If a borrower asks for
information about reinstating a loan in order to avoid foreclosure, Alaska Trustee sends
a reinstatement letter that gives the reinstatement amount and allows payment to the
3 15 U.S.C. § 1692g(a).
-4- 7084
----------------------- Page 5-----------------------
mortgage servicer or sometimes to Alaska Trustee itself. Alaska Trustee does not bring
suit to recover on an underlying note, nor does it write demand letters.
The details of Routh's involvement with Alaska Trustee are also important
to the resolution of this appeal; they are discussed below in section IV.B.
C. Proceedings In The Superior Court
TheAmbridges filed acomplaint againstAlaskaTrusteeandRouth alleging
violations of the federal Fair Debt Collection Practices Act (FDCPA) and Alaska's
Unfair Trade Practices and Consumer ProtectionAct(UTPA). They asked for injunctive
and declaratory relief, requiring the defendants to include the actual amount of the debt
owed in their first communications with consumers; they also requested damages, costs,
and full attorney's fees. The superior court ruled on a number of dispositive motions.
As relevant to this appeal, the superior court held that both Alaska Trustee and Routh
were "debt collectors" subject to 15 U.S.C. § 1692g(a). It held that a violation of the
FDCPA translates into an "unfair or deceptive" act or practice prohibited by the UTPA.
It also held that the Ambridges were entitled to a private injunction under
AS 45.50.535(a), requiring Alaska Trustee to include in its notices of default the
information required by federal law. However, it dismissed the claim for damages under
the UTPA, on grounds that the Ambridges failed to demonstrate any ascertainable loss.
The court also dismissed the UTPA injunction claims against Routh on grounds that he
was never provided with pre-suit notice of his potential violations as required by
AS 45.50.535.
The superior court entered a final judgment awarding the Ambridges
$4,000 in damages under the FDCPA. Alaska Trustee and Routh appeal the superior
court's adverse decisions, arguing that (1) Alaska Trustee is not a "debt collector"
subject to the FDCPA; (2) Routh is not a "debt collector" subject to the FDCPA; and (3)
the Ambridges were not entitled to injunctive relief under the UTPA.
-5- 7084
----------------------- Page 6-----------------------
III. STANDARDS OF REVIEW
"We review a grant of summary judgment 'de novo, affirming if the record
presents no genuine issue of material fact and if the movant is entitled to judgment as a
4
matter of law.' " We "view the facts in the light most favorable to the non-moving
5 6
part[ies],"
drawing "all reasonable [] inferences" in their favor. We review questions
of law de novo, "apply[ing] our independent judgment . . . , 'adopting the rule of law
7
most persuasive in light of precedent, reason, and policy.' " Similarly, "[w]e apply our
8
independent judgment in matters of statutory interpretation," interpreting "the statute
in question by looking to the meaning of the statute's language, its legislative history,
9
and its purpose."
IV. DISCUSSION
A. The Superior Court Did Not Err In Determining That Alaska Trustee
Is A "Debt Collector" Under § 1692a(6) Of The FDCPA.
The FDCPA was enacted in 1977 "to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively disadvantaged, and to promote
4 Olson v. City of Hooper Bay , 251 P.3d 1024, 1030 (Alaska 2011) (quoting
Beegan v. State, Dep't of Transp. & Pub. Facilities , 195 P.3d 134, 138 (Alaska 2008)).
5 Id. (quoting McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011 (Alaska
2002)).
6 Id. (quoting McCormick, 46 P.3d at 1013).
7 Id. (first alteration in original) (quoting Jacob v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008)).
8 McLeod v. Parnell, 286 P.3d 509, 512 (Alaska 2012) (citing Hageland
Aviation Servs., Inc. v. Harms , 210 P.3d 444, 448 (Alaska 2009)).
9 Id. (quoting State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v.
Progressive Cas. Ins. Co., 165 P.3d 624, 628 (Alaska 2007)).
-6- 7084
----------------------- Page 7-----------------------
10
consistent State action to protect consumers against debt collection abuses." The
FDCPA defines a "debt" as a consumer obligation to pay money, arising out of a
transaction the subject of which is "primarily for personal, family, or household
11
purposes." "Debt collector" is defined, in relevant part, as "any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly collects or attempts to collect,
12
directly or indirectly, debts owed or due or asserted to be owed or due another." The
definition has one other sentence relevant here: "For the purpose of section 1692f(6) of
this title, ['debt collector'] also includes any person who uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is the
13 Section 1692f(6), in turn, describes violations of
enforcement of security interests."
the FDCPA to include
[t]aking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if . . . (A) there is no
present right to possession of the property claimed as
collateral through an enforceable security interest; (B) there
is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or
disablement.
The superior court noted a split in the way courts apply these sections:
10 15 U.S.C. § 1692(e) (2012); see also 15 U.S.C. § 1692(a) ("There is
abundant evidence of the use of abusive, deceptive, and unfair debt collection practices
by many debt collectors. Abusive debt collection practices contribute to the number of
personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of
individual privacy.").
11 15 U.S.C. § 1692a(5).
12 15 U.S.C. § 1692a(6).
13 Id. The statute also lists six categories that Congress explicitly excluded
from the definition of "debt collector," none of which applies to Alaska Trustee.
15 U.S.C. § 1692a(6)(A)-(F).
-7- 7084
----------------------- Page 8-----------------------
some hold that enforcers of security interests are debt collectors as long as they meet the
14
general definition of § 1692a(6),
while others hold that enforcers of security interests
15 Recognizing that the FDCPA, as
are debt collectors only for purposes of § 1692f(6).
a remedial statute, should be liberally construed, the superior court followed the first line
of authority, determining that an entity pursuing nonjudicial foreclosure is a debt
collector subject to the FDCPA.
14 Supporting this position are cases from four federal circuit courts of appeal
and one state supreme court: Kaymark v. Bank of Am., N.A. , 783 F.3d 168, 179 (3d Cir.
2015); Glazer v. Chase Home Fin. LLC , 704 F.3d 453, 463-64 (6th Cir. 2013); Reese v.
Ellis, Painter, Ratterree & Adams, LLP , 678 F.3d 1211, 1218-19 (11th Cir. 2012);
Wilson v. Draper & Goldberg, P.L.L.C. , 443 F.3d 373, 378 (4th Cir. 2006); Shapiro &
Meinhold v. Zartman , 823 P.2d 120, 123-24 (Colo. 1992). See also Kabir v. Freedman
Anselmo Lindberg LLC , No. 14 C 1131, 2015 WL 4730053, at *2-3 (E.D. Ill. Aug. 10,
2015) (noting that "[t]he Seventh Circuit has not determined whether mortgage
foreclosure actions qualify as debt collection activities under the FDCPA, but those
courts of appeals to consider the issue have all held that communications related to
mortgage foreclosures are covered by the FDCPA," and following that authority);
Paulsen v. Blommer Peterman, S.C. , No. 14-cv-106-wmc, 2015 WL 1486546, at *2-4
(W.D. Wis. Mar. 31, 2015) (same); Muldrow v. EMC Mortg. Corp. , 657 F. Supp. 2d
171, 175-76 (D.D.C. 2009) (noting that "this Circuit has not determined whether
§ 1692a(6) of the FDCPA excludes substitute trustees from liability under the general
provisions of the FDCPA" and following Wilson); Porada v. Monroe , No. A13-1615,
2014 WL 3700820, at *4 (Minn. App. July 28, 2014) (unpublished) (noting that "the
weight of persuasive authority lies heavily in favor of the conclusion that a lien
foreclosure constitutes a debt collection under the FDCPA").
15 A number of federal district courts have reached this conclusion, including
many within the Ninth Circuit. See, e.g., Doughty v. Holder, Nos. 2:13-cv-00295-LRS,
2:13-cv-00296-LRS, 2:13-cv-00297-LRS, 2014 WL 220832, at *3-5 (E.D. Wash.
Jan. 21, 2014); Natividad v. Wells Fargo Bank, N.A., 3:12-cv-03646 JSC, 2013 WL
2299601, at *5-8, *5 n.4 (N.D. Cal. May 24, 2013) (collecting cases); Hulse v. Ocwen
Fed. Bank, FSB, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002); see also Boyd v. J.E. Robert
Co., No. 05-CV-2455 (KAM)(RER), 2013 WL 5436969, at *8-12 (E.D.N.Y. Sept. 27,
2013); Derisme v. Hunt Leibert Jacobson P.C., 880 F. Supp. 2d 311, 323-25 (D. Conn.
2012); Gray v. Four Oak Court Ass'n, 580 F. Supp. 2d 883, 887-88 (D. Minn. 2008);
Rosado v. Taylor, 324 F. Supp. 2d 917, 924 & n.3 (N.D. Ind. 2004).
-8- 7084
----------------------- Page 9-----------------------
Alaska Trustee disputes this conclusion. It argues first that recovering
collateral is a fundamentally different activity than seeking the payment of money, and
that the FDCPA is concerned only with the latter. It highlights the distinction between
judicial foreclosures - which may result in a deficiency judgment for the payment of
16 It
money - and nonjudicial foreclosures, which result only in loss of the property.
cites cases holding that the processing of nonjudicial foreclosures does not constitute
debt collection for purposes of the FDCPA.17 And it contends that its position is
supported by the FDCPA's definition of "debt collector," which it interprets to mean that
an entity that enforces security interests can only be a debt collector for purposes of
§ 1692f(6) - which prohibits conduct "[t]aking or threatening to take any nonjudicial
action to effect dispossession . . . of property" when there is no present right or intention
to do so - a category that does not include Alaska Trustee.
1. The FDCPA does not exclude nonjudicial foreclosure from the
debt-collection activities it addresses.
Interpreting the FDCPA liberally to effectuate its remedial purposes, as the
16 See Stamper v. Wilson & Assocs., P.L.L.C. , No. 3:09-CV-270, 2010 WL
1408585, at *7 (E.D. Tenn. Mar. 31, 2010) ("In contrast to judicial foreclosures, non-
judicialforeclosures do not involvepersonal ('deficiency') judgments againstthedebtor.
This is important to recognize because the FDCPA defines 'debt' as an 'obligation to pay
money,' and there is no enforcement of that obligation in non-judicial foreclosures.");
see also Derisme , 880 F. Supp. 2d at 326 ("[C]ourts have drawn a distinction between
non judicial foreclosures which are intended to only enforce the mortgagee's security
interest and judicial foreclosure which also seeks a personal judgment against the debtor
for a deficiency which would amount to a debt collection.").
17 See, e.g., Brown v. Morris, 243 F. App'x 31, 35 (5th Cir. 2007) (holding
that defendant'sinvolvement "primarily in non-judicial foreclosures"doesnotmakehim
a per se FDCPA debt collector); Santoro v. CTC Foreclosure Serv., 12 F. App'x 476,
480 (9th Cir. 2001) ("[Defendant's] foreclosure sale notice also did not seek to collect
the debt, the conduct forbidden under the [FDCPA]."); Hulse, 195 F. Supp. 2d at 1204
("[T]he activity of foreclosing on the property pursuant to a deed of trust is not the
collection of a debt within the meaning of the FDCPA.").
-9- 7084
----------------------- Page 10-----------------------
18
superior court did, we join those courts holding that mortgage foreclosure, whether
judicial or nonjudicial, is debt collection covered by the Act. Our holding relies first on
19 plainly encompasses a home
the Act's broad language. The definition of "debt"
mortgage, which is usually the most significant of a consumer's debts, and the definition
does not differentiate between consumer debts that are secured and those that are not.
The Act's definition of "debt collector" is similarly broad, covering regular collection
efforts that are either direct or indirect.20 As to the first question raised by this case -
whether the nonjudicial foreclosure of a security interest is a method of "collect[ing] or
attempt[ing] to collect, directly or indirectly," a "debt," that is, a consumer's "obligation
. . . to pay money" - we agree with the Sixth Circuit's common-sense answer: "In fact,
every mortgage foreclosure, judicial or otherwise, is undertaken for the very purpose of
obtaining payment on the underlying debt, either by persuasion (i.e., forcing a
settlement) or compulsion (i.e., obtaining a judgment of foreclosure, selling the home at
18 See Tourgeman v. Collins Fin. Servs., Inc. , 755 F.3d 1109, 1118 (9th Cir.
2014) ("[B]ecause the FDCPA . . . is a remedial statute, it should be construed liberally
in favor of the consumer." (quoting Clark v. Capital Credit &Collection Servs., Inc ., 460
F.3d 1162, 1176 (9th Cir. 2006) (alteration in original))); see also Johnson v. Riddle , 305
F.3d 1107, 1117 (10th Cir. 2002).
19 15 U.S.C. § 1692a(5) (2012) (defining "debt" as "any obligation or alleged
obligation of a consumer to pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the transaction are primarily for
personal, family, or household purposes, whether or not such obligation has been
reduced to judgment" (emphasis added)).
20 15 U.S.C. § 1692a(6) (defining "debt collector" as "any person who uses
any instrumentality of interstate commerce or the mails 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 owed or due or asserted to be owed or due another"
(emphasis added)).
-10- 7084
----------------------- Page 11-----------------------
auction, and applying the proceeds from the sale to pay down the outstanding debt)." 21
That Congress intended the FDCPA to apply to home mortgages is evident
not just from the Act's broad language but also from its legislative history. The Senate
Report on the bill observed, for example, that "[t]he collection of debts, such as
mortgages and student loans, by persons who originated such loans" is not debt
collection, implying that the collection of mortgages by persons who did not originate
22 The Senate Report further stated that the activities of
such loans is debt collection.
"mortgage service companies" are not covered by the law "so long as the debts were not
in default when taken for servicing," implying, again, that the activities of mortgage
service companies are covered if they otherwise meet the statutory definition.23 And as
originally enacted in 15 U.S.C. § 1692l, the FDCPA's "Administrative enforcement"
section assigned enforcement of the FDCPA not only to the Federal Trade Commission,
but also to the Federal Home Loan Bank Board under "section 5(d) of the Home Owners
Loan Act of 1933, section 407 of the National Housing Act, and sections 6(i) and 17 of
the Federal Home Loan Bank Act, . . . in the case of any institution subject to any of
those provisions."24 The Federal Home Loan Bank Board was created by the Federal
Home Loan Bank Act of 1932 to oversee Federal Home Loan Banks, which in turn were
21 Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 461 (6th Cir. 2013).
22 See Eric M. Marshall, Note, The Protective Scope of the Fair Debt
Collection Practices Act: Providing Mortgagors The Protection They Deserve From
Abusive Foreclosure Practices, 94 MINN. L. REV. 1269, 1291 (2010) (emphasis added)
(quoting S. REP. NO. 95-382, at 3 (1977)).
23 S. REP. NO. 95-382, at 3-4 (1977).
24 Fair Debt Collections Practices Act, Pub. L. No. 95-109, 91 Stat. 874, 882
(1977). In the 1976 United States Code, "section 5(d) of the Home Owners Loan Act
of 1933" was codified as 12 U.S.C. § 464; "section 407 of the National Housing Act"
was codified as 12 U.S.C. § 1730; and "sections 6(i) and 17 of the Federal Home Loan
Bank Act" were codified as 12 U.S.C. §§ 1426 and 1427.
-11- 7084
----------------------- Page 12-----------------------
25
created to ensure that local lenders had funds available to finance home mortgages.
Although none of the cited laws are concerned exclusively with home mortgages, that is
26
their primary focus; their specific mention in the FDCPA shows at least Congress's
awareness that unfair debt collection practices occurred in the same regulated arena.
The FDCPA's list of enforcement agencies was most recently modified and
simplified under the Dodd-Frank Act; it now charges "the appropriate Federal banking
agency" with enforcement with respect to FDIC-insured banks and "State savings
associations," and it charges the newly-created Consumer Financial Protection Bureau
27
(the Bureau) with enforcement "with respect to any person subject to this subchapter."
It is the Bureau's statutory duty to "regulate the offering and provision of consumer
25 The Federal Home Loan Bank Board was superceded in 1989 by the
Federal Housing Finance Board, which in turn was superceded in 2008 by the Federal
Housing Finance Agency. See Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Pub. L. No. 101-73, secs. 401(a)(2), 702-703, 12 U.S.C.
§§ 1422a, 1437(a), 103 Stat. 183, 354, 413, 415; Housing and Economic Recovery Act
of 2008, Pub. L. No. 110-289, secs. 1101, 1311, 12 U.S.C. §§ 4511, 4512, 122 Stat.
2654, 2661.
26 The primary purpose of the Home Owners' Loan Act of 1933 is "[t]o
provideemergency reliefwithrespect to homemortgageindebtedness, to refinancehome
mortgages, [and] to extend relief to the owners of homes occupied by them and who are
unable to amortize their debt elsewhere." Home Owners' Loan Act of 1933, ch. 63, § 1,
48 Stat. 128. The National Housing Act's full title is "An Act: To encourage
improvement in housing standards and conditions, to provide a system of mutual
mortgage insurance, and for other purposes." National Housing Act, ch. 847, 48 Stat.
1246 (1934). The Home Loan Bank Act, as its name implies, focused on increasing the
nationwide availability of loans secured by home mortgages. See Home Loan Bank Act,
ch. 522, § 10(a), 47 Stat. 725, 731 (1932) ("Each Federal Home Loan Bank is authorized
to make advances to members and nonmember borrowers, upon the security of home
mortgages.").
27 See Dodd-Frank Wall Street Reform and Consumer Protection Act,
Pub. L. No. 111-203, sec. 1089, § 1692l, 124 Stat. 1376, 2092-93 (2010) (amending the
FDCPA).
-12- 7084
----------------------- Page 13-----------------------
28
financial products or services under the Federal consumer protection laws," and Dodd-
Frank requires that courts defer to the Bureau's interpretation of federal consumer
financial laws "as if the Bureau were the only agency authorized to apply, enforce,
29 And as is described further below, the Bureau is
interpret, or administer" such laws.
adamant in its view that home mortgage foreclosures are subject to the FDCPA.
In Glazer v.Chase Home Finance, the Sixth Circuit found further support
for this interpretation of the Act in § 1692i.30 That provision requires that a debt
collector who is bringing "an action to enforce an interest in real property securing the
consumer's obligation" shall "bring such action only in a judicial district . . . in which
such real property is located."31 As the court noted in Glazer, § 1692i, limited to "debt
collectors," "suggests that filing any type of mortgage foreclosure action, even one not
32
seeking a money judgment on the unpaid debt, is debt collection under the Act."
2. We are persuaded by the rationale of those courts holding that
the FDCPA applies to mortgage foreclosures.
The Sixth Circuit in Glazer found persuasive the decision of the Fourth
33
Circuit in Wilson v. Draper & Goldberg, P.L.L.C.,
as do we. Wilson has a factual
background similar to that presented here. The defendant law firm was retained by a
28 12 U.S.C. § 5491(a) (2012) (a Dodd-Frank provision).
29 12 U.S.C. § 5512(b)(4)(B).
30 704 F.3d 453, 461-62 (6th Cir. 2013).
31 15 U.S.C. § 1692i(a)(1) (2012); see also S. REP. NO. 95-382, at 5 (1977)
(noting that to prevent "forum abuse," "[w]hen an action is against real property, it must
be brought where such property is located").
32 704 F.3d at 462 (emphasis in original).
33 Id. at 462-63 (citing Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373,
376, 378 (4th Cir. 2006)).
-13- 7084
----------------------- Page 14-----------------------
34
bank to foreclose on the plaintiff's mortgage. It sent a letter advising the plaintiff of her
default and its plan to commence foreclosure proceedings in the near future; the letter
further advised that it was "written pursuant to the provisions of the [FDCPA]" and was
35 In a
"an attempt to collect a debt" but that the law firm was not a "debt collector[]."
follow-up letter, the law firm responded to the plaintiff's request for the amount
necessary to reinstate the loan and explained how a reinstatement payment should be
made.36
The plaintiff sued for violations of the FDCPA: specifically, "failing to
verify the debt, . . . continuing collection efforts after [the plaintiff] had contested the
debt, and . . . communicating directly with her when they knew she was represented by
counsel."37 The district court granted summary judgment to the defendants, concluding
that "[t]rustees foreclosing on a property pursuant to a deed of trust are not 'debt
collectors' under the [Act]."38
But the Fourth Circuit reversed. It first rejected the defendants' argument
that they had not acted in connection with a "debt":
Defendants notified [the plaintiff] that she was in "default in
[her] Deed of Trust Note payable to the Lender . . . [and] that
the Lender [had] accelerated the debt." Defendants informed
[the plaintiff] that her failure to make mortgage payments
entitled Chase to immediate payment of the balance of her
loan, as well as fees, penalties, and interest due. These
amounts are all "debts" under the Act, because they were
"obligation[s] . . . to pay money arising out of a transaction in
34 Wilson, 443 F.3d at 374.
35 Id. at 374-75.
36 Id. at 375.
37 Id.
38 Id. (alterations in original).
-14- 7084
----------------------- Page 15-----------------------
which the . . . property . . . which [is] the subject of the
transaction [is] primarily for personal, family, or household
purposes."[39]
The court next rejected the defendants' argument that the " 'debt' ceased
to be a 'debt' once foreclosure proceedings began."40 It held that the debt remained a
debt, and that the defendants' "actions surrounding the foreclosure proceeding were
attempts to collect that debt."41 It observed that accepting the defendants' contrary
argument "would create an enormous loophole in the Act immunizing any debt from
coverage if the debt happened to be secured by a real property interest and foreclosure
proceedings were used to collect the debt," and it saw "no reason to make an exception
to the Act when the debt collector uses foreclosure instead of other methods."42 Finally,
the court noted the law firm's provision of a reinstatement amount, payable to the law
firm directly by cashier's check, as additional evidence that the law firm was a debt
collector attempting to collect a debt.43
The Colorado Supreme Court reached the same conclusion in Shapiro &
Meinhold v. Zartman.44 Liberally construing the FDCPA's definition of "debt collector"
in light of the Act's remedial purposes, the court held that the defendants in that case -
attorneys pursuing judicial foreclosure proceedings -were"not exempt [fromcoverage
under the Act] merely because their collection activities [were] primarily limited to
39 Wilson, 443 F.3d. at 376 (alterations in original) (citation omitted) (quoting
15 U.S.C. § 1692a(5)).
40 Id.
41 Id. (citing Romea v. Heiberger & Assocs. , 163 F.3d 111, 116 (3d Cir.
1998); Shapiro & Meinhold v. Zartman, 823 P.2d 120, 124 (Colo. 1992)).
42 Id.
43 Id. at 376-77.
44 823 P.2d at 124.
-15- 7084
----------------------- Page 16-----------------------
45
foreclosures." Noting that the FDCPA's definition of "debt collector includes one who
'directly or indirectly' engages in debt collection activities on behalf of others," the court
concluded: "Since a foreclosure is a method of collecting a debt by acquiring and selling
secured property to satisfy a debt, those who engage in such foreclosures are included
46
within the definition of debt collectors if they otherwise fit the statutory definition."
We agree that foreclosing on property, selling it, and applying the proceeds
to the underlying indebtedness constitute one way of collecting a debt - if not directly
at least indirectly. The language of the Amended Notice of Default at issue here supports
this conclusion. Besides its express declaration that "[t]he purpose of this letter is to
collect a debt" and its inclusion of a "Fair Debt Collection Practices Act Statement,"47
the Notice states "[t]he amount of the obligation secured" ("$196,712.28, plus interest,
late charges, costs and any future advances") and gives notice that the trustee has elected
to sell the property "and apply the proceeds to the indebtedness." It asserts that "[i]f you
have been discharged of this debt in Bankruptcy, you are not to regard this message as
a demand for payment" (emphasis added), strongly implying that absent a discharge in
45 Id.
46 Id.
47 We recognize the potential unfairness of relying on such language alone,
given that entities that may or may not be subject to the FDCPA will understandably err
on the side of caution and include it. See Newman v. Trott & Trott, P.C., 889 F. Supp. 2d
948, 959-61 (E.D. Mich. 2012) (holding, pre-Glazer, that law firm that was a "debt
collector" only for the limited purposes of 15 U.S.C. §1692f(6) was not made subject to
the entire FDCPA because of the "debt collector" warnings on its letters). On the other
hand, especially under the "least sophisticated consumer" standard applied by the federal
courts, it is difficult to conclude that a debtor reading the disclosure language would not
believe what it says - that Alaska Trustee is attempting to collect a debt. See, e.g.,
Currier v. First Resolution Inv. Corp., 762 F.3d 529, 535-36 (6th Cir. 2014) (discussing
nature of creditor's assertion of lien in light of how it would be perceived by the "least
sophisticated consumer").
-16- 7084
----------------------- Page 17-----------------------
bankruptcy the letter is a demand for payment. And as in Wilson, the follow-up letter
states the amount of money necessary to reinstate the loan and gives payment
48 Whether through reinstatement or less directly through
instructions for reinstatement.
foreclosure sale and recovery of the proceeds, "[t]here can be no serious doubt that the
ultimate purpose of [this] foreclosure is the payment of money."49
3. The arguments against holding that the FDCPA applies to
mortgage foreclosures are not persuasive.
For its different interpretation of the FDCPA, Alaska Trustee relies in part
on the reasoning of the federal district court in Hulse v. Ocwen Federal Bank, FSB,
which concluded that "[t]he FDCPA is intended to curtail objectionable acts occurring
in the process of collecting funds from a debtor," whereas "foreclosing on a trust deed
50
is an entirely different path."
According to the court in Hulse, "[p]ayment of funds is not the object of the
51
foreclosure action. Rather, the lender is foreclosing its interest in the property."
Alaska Trustee reasons further that the FDCPA is not meant to protect the possessor of
secured property in the same way it protects other debtors: while it may be futile to
harass a debtor for the repayment of funds the debtor does not have, the possessor of
secured property can avoid harassment by simply returning the property (and therefore
48 See Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 375 (4th Cir.
2006). Here, the reinstatement letter states, "Reinstatement funds must be in the form
of a cashier's check made payable to" and provides boxes to be checked beside two
choices: "Alaska Trustee, LLC" and "Our client: Wells Fargo Bank, N.A." Only the
"Our client" box is checked, but the letter also makes it clear that in order for the loan
to be reinstated the check must be received by Alaska Trustee ("in our office") by a time
certain.
49 Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 463 (6th Cir. 2013).
50 195 F. Supp. 2d 1188, 1204 (D. Or. 2002).
51 Id.
-17- 7084
----------------------- Page 18-----------------------
52
needs less protection from harassment).
We do not find this rationale persuasive. As the Ambridges point out, a
home mortgage is, for most individuals, their largest and most long-term debt and the
most likely to be affected at some point by unforeseen financial difficulties. The lender's
foreclosure on its security - the home - is likely to be a devastating prospect for the
homeowner, who may therefore be particularly susceptible to abusive collection
53 If Congress had intended to exclude such a substantial segment of consumer
practices.
debt from the reach of the FDCPA, it could easily have said so explicitly.54 Indeed, the
Act's definition of "debt collector" lists six specific exclusions from the definition, none
of which encompasses the enforcers of mortgages or other security interests.55 Had
Congress intended to exclude such a significant category from the Act's coverage, the
list of exclusions would have been the obvious place for it to do so.
The dissent finds determinative the distinction between a consumer's
obligation to pay money and a deed of trust, which is not itself an obligation to pay
money but rather a mechanism by which property is transferred in the event the money
52 See Jordan v. Kent Recovery Servs., Inc. , 731 F. Supp. 652, 658 (D. Del.
1990) ("[T]he evil sought to be regulated by the FDCPA, i.e., harassing attempts to
collect money which the debtor does not have due to misfortune, is not implicated by the
actions of an enforcer of a security interest with a 'present right' to the secured
property.").
53 See Marshall, supra note 22, at 1287 ("The detrimental effect of losing
one's home makes mortgagors particularly susceptible to coercive settlement practice."
(footnote omitted)).
54 See Shapiro & Meinhold v. Zartman, 823 P.2d 120, 124 (Colo. 1992) ("If
Congress had intended to exempt from the FDCPA one whose principal business is the
enforcement of security interests, it would have provided an exception in plain
language.").
55 15 U.S.C. § 1692a(6)(A)-(F) (2012).
-18- 7084
----------------------- Page 19-----------------------
56
is not paid. But in the past we have taken a more functional approach. In Dworkin v.
57
First National Bank of Fairbanks
we considered whether an action to foreclose a
mortgage was governed by a ten-year statute of limitations for actions to enforce real
property liens or instead by the six-year statute of limitations for actions to collect the
underlying debt. We recognized two schools of thought on the issue but concluded that
"[i]n our view the sounder result is reached by those authorities which hold that in the
absence of a controlling statute the foreclosure action is subject to the same period of
58 We relied on language the Washington Supreme
limitations as the underlying debt."
Court had quoted with approval from a Colorado case:
In Colorado, whether the form of security be a mortgage or
a deed of trust, the debt is the principal thing. The security is
a mere incident. . . . An action to foreclose a mortgage or
deed of trust is simply, in effect, an action to collect the debt,
to secure the payment of which was the sole purpose of its
execution; and, when the statute after the lapse of a certain
time bars an action upon the debt for its collection, we
believe it includes all actions seeking to effectuate that
[59]
purpose.
This description continues to reflect the real nature of a home mortgage foreclosure:
"simply, in effect, an action to collect the debt."
We also disagree with the dissent's position that Alaska Trustee cannot be
held liable under the FDCPA for sending the notice that commences a non-judicial
56 Dissent at 1-5.
57 444 P.2d 777, 780-82 (Alaska 1968).
58
Id. at 782 (citing 3 R. POWELL, THE LAW OF REAL PROPERTY ¶ 461, at 682-
83 (1967)); see also id. at 782 n.24 (noting the "undesirability of the results" in states
that allow foreclosure after the statute of limitations has run on collection of the
underlying debt).
59 Id. (emphasis added) (quoting Pratt v. Pratt, 209 P. 535, 536 (Wash. 1922)
(quoting McGovney v. Gwillim, 65 P. 346, 347 (Colo. App. 1901))).
-19- 7084
----------------------- Page 20-----------------------
foreclosure under Alaska law because the notice "did not attempt to collect money" and
60
because it is statutorily required.
As explained above, we conclude that a reasonable
consumer would read the notice as a demand for payment; the debtor can avoid the
threatened action only by paying the debt. And that a notice is required in order to
advance a state foreclosure proceeding does not mean it cannot at the same time be an
attempt to collect a debt and thus subject to the FDCPA. In Romea v. Heiberger &
Associates , for example, a landlord's law firm pursuing evictions was required by New
York law to give a three-day notice of the amount of past-due rent as the first step in a
61 The law firm argued
"summary proceeding to recover possession of real property."
that the purpose of the repossession process was "not debt collection, but rather 'a means
of quickly adjudicating disputes over rights of possession of real property,' " to which
62 The court rejected these
the amount owed by the tenant was merely "incidental."
arguments in language equally relevant here: "Although [the law firm] is correct that the
notice required by [the summary eviction law] is a statutory condition precedent to
commencing a summary eviction proceeding that is possessory in nature, this does not
mean that the notice is mutually exclusive with debt collection."63 The Consumer
Financial Protection Bureau takes the same position.64
60 Dissent at 13-16.
61 163 F.3d 111, 116 (2d Cir. 1998).
62 Id.
63 Id.
64 Brief of Amicus Curiae Consumer Financial Protection Bureau in Support
of Appellant and Reversal at 13, Ho v. ReconTrust Co., No. 10-56884 (Aug. 7, 2015),
http://files.consumerfinance.gov/f/201508_cfpb_ amicus-brief_ho-v-reconstruct-n.pdf.
("That such a misrepresentation might have occurred in the context of a state-mandated
notice does not somehow immunize Appellees from abiding by § 1692e in the course of
providing such notices.").
-20- 7084
----------------------- Page 21-----------------------
Finally, we disagree with the dissent's warning that "making deed of trust
trustees . . . 'debt collectors' will wreak havoc" on the non-judicial foreclosure process
because the FDCPA allows consumers to ask debt collectors to cease contact and to
validate disputed debts, steps the dissent predicts "will grind non-judicial deed of trust
65 But the FDCPA specifically allows continued communication
foreclosures to a halt."
with a consumer "where applicable, to notify the consumer that the debt collector or
creditor intends to invoke a specified remedy,"66 an exception that applies to the types
of notice provided during nonjudicial foreclosure proceedings.67 And the debt validation
procedure contemplated by the FDCPA can be as simple as mailing the consumer a copy
of "verification of the debt or a copy of a judgment, or the name and address of the
65 Dissent at 7-8 (citing 15 U.S.C. §§ 1692c(c) and 1692g(b) (2012)).
66 15 U.S.C. § 1692c(c)(3).
67 See Graveling v. Castle Mortg. Co., ___ F. App'x ___, No. 14-15198, 2015
WL 6847947 at *7 (11th Cir. Nov. 9, 2015) ("[E]ven if the [debtors'] request that the
defendants cease communications was distinct from their request for debt validation, the
acceleration notice was still a permissible communication because it notified the
[debtors] of [the debt collector's] intent to invoke the specific remedy of acceleration and
foreclosure."); Cohen v. Beachside Two-I Homeowners' Ass'n , No. 05-706 ADM/JS,
2006 WL 1795140 at *14 (D. Minn. 2006) (holding that attorney's letter "falls within
the third statutory exception to 15 U.S.C. § 1692c(c) because [the attorney] was further
notifying [the debtor] of [the creditor's] intent to invoke a specified remedy, namely,
foreclosure" (specifically "foreclosure by advertisement," a nonjudicial foreclosure
remedy provided by state law)); see also Vitullo v. Mancini, 684 F. Supp. 2d 747, 758
(E.D. Va. 2010) (dismissing a claim that notice of a nonjudicial foreclosure notice
violated 15 U.S.C. § 1692c(a)(2) because "the FDCPA does not prohibit debt collectors
from foreclosing on debtors' properties pursuant to state law, and nothing in the FDCPA
authorizes debt collectors to violate or fail to comply with state foreclosure laws"); Lewis
v. ACB Bus. Servs., Inc., 911 F. Supp. 290, 293 (S.D. Ohio 1996) aff'd, 135 F.3d 389
(6th Cir. 1998) (dismissing a claim that a debt collector with "notice not to make further
contact" violated 15 U.S.C. § 1692c(c) because the letter offered payment plans that
were covered under § 1692c(c)(2) as a "standard remedy 'ordinarily invoked by such
debt collector' ").
-21- 7084
----------------------- Page 22-----------------------
68 69
original creditor," a step we doubt a trustee would have difficulty taking if asked.
4. Mortgage foreclosure is not governed by section 1692f(6) alone.
Finally, wenecessarily rejectAlaskaTrustee's otherdefinitional argument,
70
: that under § 1692a(6), entities enforcing security
also advanced by the dissent
interests are "debt collectors" only for purposes of § 1692f(6), i.e., if they are "[t]aking
or threatening to take any nonjudicial action to effect dispossession . . . of property"
when there is no present right or intention to do so. We note again the structure of the
definitional section, which defines "debt collector" to include a person in a business "the
principal purpose of which is the collection of any debts" and a person who "regularly
71
collects or attempts to collect" debts due another. This general definition is explicitly
expanded, not qualified, by the phrase, "For the purpose of section 1692f(6) of this title,
such term also includes any person who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of which is the enforcement of security
68 15 U.S.C. § 1692g(b) (emphasis added).
69 The Ninth Circuit has followed other federal courts to hold that
"verification of a debt [for purposes of § 1692g(b)] involves nothing more than the debt
collector confirming in writing that the amount being demanded is what the creditor is
claiming is owed." Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162,
1173-74 (9th Cir. 2006) (quoting Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.
1999)); see also Maynard v. Cannon, 401 F. App'x 389, 396 (10th Cir. 2010) ("This
provision is not intended to give a debtor a detailed accounting of debt to be collected.
Instead, '[c]onsistent with the legislative history, verification is only intended to
eliminate the problem of debt collectors dunning the wrong person or attempting to
collect debts which the consumer has already paid.' " (quoting Chaudhry, 174 F.3d at
406)).
70 Dissent at 3-5.
71 15 U.S.C. § 1692a(6).
-22- 7084
----------------------- Page 23-----------------------
72
interests." The phrase "also includes" cannot reasonably be read to eliminate persons
who would otherwise be included in the Act's broad definition.
We do agree with the dissent's observation that, structurally, the definition
differentiates between businesses the principal purpose of which is "the collection of any
debts" and those the principal purpose of which is "the enforcement of security
interests." We agree that a business cannot be both. But a business whose principal
purpose is not "the collection of any debts" may still be a debt collector under the general
definition because, though its "principal purpose"is something else, it "regularly collects
or attempts to collect" debts due another. Such a business may have as its principal
purpose the enforcement of security interests. On the other hand, a business may enforce
security interests as its principal purpose but not regularly collect debts; such a business
does not satisfy the general definition and is a "debt collector" for purposes of section
1692f(6) only.
To say that mortgage foreclosures are debt collection is not to say, as the
dissent would have it, that all enforcement of security interests is debt collection, thus
73 The FDCPA defines
making the definition's reference to security interests redundant.
"debt" as a consumer's "obligation . . . to pay money."74 The documents at the heart of
this case, though they certainly serve notice purposes in the foreclosure process, also
plainly reflect attempts to collect a debt. They are replete with references to "the debt,"
"the indebtedness," and "the obligation." No reasonable consumer could read the Notice
of Default and not understand that, as the Notice plainly states, "The purpose of this
letter is to collect a debt." But the enforcement of security interests will not always entail
these obvious debt-collection measures. A repossession agency, for example, may take
72 Id. (emphasis added).
73 Dissent at 4-5, 12.
74 15 U.S.C. § 1692a(6).
-23- 7084
----------------------- Page 24-----------------------
automobiles off the street and have no regular practice of communicating with debtors
in a way that a reasonable consumer would interpret as prompting the payment of money
75 Such businesses
- indeed, such businesses may not communicate with debtors at all.
are brought into the "debt collector" definition for the narrow prohibitive purposes of
§ 1692f(6) only. But unlike such entities, Alaska Trustee not only enforces security
interests; it also attempts to collect debts under the ordinary meaning of those words.
This was the conclusion of the Sixth Circuit in Glazer: the third sentence
of § 1692a(6) is a statement of inclusion, not exclusion. That is, it does not operate to
exclude an entire category of persons and entities who would otherwise be included in
the definition, but rather "simply 'make[s] clear that some persons who would be without
the scope of the general definition are to be included where § 1692f(6) is concerned.' "76
The Sixth Circuit in Glazer concluded that the sentence probably brought into the "debt
collector" definition only "repossession agencies and their agents," noting that "we can
think of no others whose only role in the collection process is the enforcement of security
77 But even the limited expansion of the definition to "repossession agencies
interests."
and their agents" serves a real purpose. A company in the business of repossessing
vehicles may well have no regular practice of communicating with debtors that would
subject the company to the myriad provisions of the Act governing the allowable content
75 Generally speaking, repossession agencies are "businesses which are
employed by the owner of collateral to dispossess the debtor of the collateral and return
it to the owner." Ghartey v. Chrysler Credit Corp. , 1992 WL 373479, at *4 (E.D.N.Y.
Nov. 23, 1992).
76 Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 463 (6th Cir. 2013)
(quoting Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 236 (3d Cir. 2005)); see also
Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 378 (4th Cir. 2006).
77 Glazer, 704 F.3d at 463-64.
-24- 7084
----------------------- Page 25-----------------------
78
of such communications; but the definitional section clarifies that even such an entity
is prohibited by the Act from repossessing or threatening to repossess the property if
there is "no present right" or "present intention" to take it or if the property is exempt
79
from repossession.
We recognize the split in authority regarding the effect of § 1692f(6) on the
"debt collector" definition. Alaska Trustee relies on Derisme v. Hunt Leibert Jacobson
P.C., which adopted the conclusion of two federal courts of appeal and the Federal Trade
Commission (FTC) that "the purposeful inclusion of enforcers of security interests for
one section of the FDCPA [§ 1692f(6)] implies that the term debt collector does not
include an enforcer of security interests for any other sections of the FDCPA."80 But
both of the cited federal circuits - the Sixth and the Eleventh - have more recently
decided the issue the other way, holding that an enforcer of security interests may also
be a debt collector subject to the broader provisions of the FDCPA so long as it meets
78 See 15 U.S.C. §§ 1692b ("Acquisition of location information"), 1692c
("Communication in connection with debt collection"), 1692d ("Harassment or
abuse"),1692e ("False or misleading representations"), 1692f(1)-(5), (7)-(8) ("Unfair
practices"), 1692g ("Validation of debts"), 1692h ("Multiple debts"), 1692i ("Legal
actions by debt collectors"), 1692j ("furnishing certain deceptive forms").
79 15 U.S.C. §§1692a(6), 1692f(6).
80 880 F. Supp. 2d 311, 324 (D. Conn. 2012). The court in Derisme also
relied on the FTC "Commentary on the Fair Debt Collection Practices Act," as cited in
Jordan v. Kent Recovery Servs., Inc., 731 F. Supp. 652, 658 (D. Del. 1990), and Warren
v. Countrywide Home Loans, Inc., 342 F. App'x 458, 460 (11th Cir. 2009) (referencing
the principle of expressio unius est exclusio alterius and concluding that "the statute
specifically says that a person in the business of enforcing security interests is a 'debt
collector' for the purposes of §1692f(6), which reasonably suggests that such a person
is not a debt collector for purposes of the other sections of the Act"). See Derisme, 880
F. Supp. 2d at 323-35.
-25- 7084
----------------------- Page 26-----------------------
81 82
the general definition. And Derisme 's reliance on the FTC commentary appears to
have been misplaced. The commentary provides, "Because the FDCPA's definition of
'debt collection' includes parties whose principal business is enforcing security interests
only for . . . [§ 1692f(6)] purposes, such parties ( if they do not otherwise fall within the
83
definition) are subject only to this provision and not to the rest of the FDCPA."
As noted above, the Dodd-Frank Act gave primary authority for
enforcement of the FDCPA to the Consumer Financial Protection Bureau, which has
been forceful about the need to ensure that mortgage foreclosure proceedings are not
81 See Glazer , 704 F.3d at 463 (explicitly rejecting Montgomery, 346 F.3d
693, 699-701 (6th Cir. 2003) and stating that "the ['debt collector'] definition does not
except fromdebt collection theenforcement ofsecurity interests; it simply 'make[s] clear
that some persons who would be without the scope of the general definition are to be
included where § 1692f(6) is concerned.' "(second alterationinoriginal) (quoting Piper,
396 F.3d at 236)); see also Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d
1211, 1216-18 (11th Cir. 2012) (holding that an enforcer of security interests could have
"dual purposes," whereby it could act to enforce security interests and also attempt to
collect on underlying debts); Birster v. Am. Home Mortg. Servicing, Inc. , 481 F. App'x
579, 582-83 (11th Cir. 2012) (following Reese 's reasoning and explicitly rejecting that
of Warren).
Both parties to this appeal cite Dunavant v. Sirote & Permutt, P.C. , 603
F. App'x 737 (11th Cir. 2015), as supporting their positions. The court in Dunavant
affirmed a lower court's ruling that a defendant that only published foreclosure notices
in the newspaper was an enforcer of security interests and not a debt collector, but in so
doing it reaffirmed that an entity could be both, and that it could be liable under the
FDCPA if its activities constituted the collection of a debt. Id. at 740. The newspaper
notices at issue in Dunavant, unlike those in this case, were not attempts to collect a debt:
they "were not addressed to the debtors, and included no information relating to the
collection of payments from them." Id.
82 880 F. Supp. 2d at 324 (stating that "the FTC expressed its view that
enforcers of security interests only fall within the ambit of § 1692f(6)").
83 Jordan, 731 F. Supp. at 658 (alteration in original) (emphasis added)
(quoting Statements of General Policy or Interpretation Staff Commentary On the Fair
Debt Collection Practices Act, 53 Fed. Reg. 50,097, 50,108 (Dec. 13, 1988)).
-26- 7084
----------------------- Page 27-----------------------
exempted from the FDCPA's protections. In its statutorily mandated annual report to
Congress on the Fair Debt Collections Act in 2013, the Bureau explained why it had filed
an amicus brief in support of the consumers in Birster v. American Home Mortgage
84
Servicing, Inc., a case recently decided by the Eleventh Circuit:
Some courts have unduly restricted the FDCPA's protections
by rejecting challenges to harmful practices occurring in the
context of foreclosure proceedings. In particular, courts have
concluded that businesses involved in enforcing security
interests are not "debt collectors" subject to most of the Act's
requirements, and that activity surrounding foreclosure or
other enforcement of security interests is not debt collection
covered by the Act. These decisions have left consumers
vulnerable to harmful collection tactics as they fight to save
their homes from foreclosure.[85]
The court in Birster held that a loan servicer that advised the debtors it would foreclose
on their home unless they cured their default by paying a certain sum within 30 days
"may be liable under the FDCPA beyond § 1692f(6) even though it was also enforcing
86 The Bureau's amicus brief in Birster was followed by another in
a security interest."
84 481 F. App'x 579 (11th Cir. 2012); see Brief of The Consumer Financial
Protection Bureau as Amicus Curiae in Support of Plaintiffs-Appellants and Reversal at
16, Birster v. American Home Mortg. Servicing, Inc., 481 F. App'x 579 (11th Cir. 2012)
(No. 11-13574-G), http://files.consumerfinance.gov/f/201112_CFPB_ Brister-amicus-
brief.pdf ("The plain language, purposes, and prior administrative interpretations of the
[FDCPA] all make clear - and the great weight of authority confirms - that an entity
meeting the general definition of 'debt collector' qualifies as a 'debt collector' for
purposes of the entire Act, even if its principal purpose is enforcing security interests and
even if it is enforcing a security interest in the particular case.").
85 Consumer Fin. Protection Bureau, FAIR DEBT COLLECTION PRACTICES ACT
ANN . REP., 27 (2013).
86 Birster, 481 F. App'x at 583. The dissent questions our reliance on
Eleventh Circuit law, stating that "Eleventh Circuit district courts continue to answer this
question ['whether a party enforcing a security interest without demanding payment on
(continued...)
-27- 7084
----------------------- Page 28-----------------------
Ho v. ReconTrust Co., in which the Bureau again advanced the same interpretations of
87
the Act.
Ultimately, while the provisions of the FDCPA could certainly be clearer
on the question presented in this case, we conclude that the meaning we find in them is
most consistent with their language, liberally interpreted in light of the Act's remedial
purposes. The superior court was correct in ruling that Alaska Trustee, through its
processing of nonjudicial foreclosures, is a "person who uses . . . the mails in any
business the principal purpose of which is the collection of any debts," is therefore a
"debt collector" as defined by § 1692a(6), and is subject to the broader provisions of the
FDCPA.88
86(...continued)
the underlying debt is attempting to collect a debt'] in the negative". Dissent at 15 and
n.52 (citing Beepot v. J.P. Morgan Chase Nat'l Corp.Servs., 57 F. Supp. 3d 1358, 1376
(M.D. Fla. 2014) (relying on Warren v. Countrywide Home Loans, Inc., 342 F. App'x
458, 460-61 (11th Cir. 2009), and Freire v. Aldridge Connors, LLP, 994 F. Supp. 2d
1284, 1287-88 (S.D. Fla. 2014). Another district court within the Eleventh Circuit has
concluded that "the Warren rule has been undermined, if not overturned, by two
subsequent Eleventh Circuit opinions," Reese and Birster, and "[i]f nothing else, it is
now clear that 'the enforcer of a security interest [can] be held liable under the FDCPA
beyond § 1692f(6)' because, in one fell swoop, 'an entity can both enforce a security
interest and collect a debt.' " Deutsche Bank Trust Co. Americas v. Garst, 989
F. Supp. 2d 1194, 1200 (N.D. Ala. 2013) (emphasis omitted). As for Freire, while it
perhaps interpreted Reese too narrowly in light of Birster, the court nonetheless reached
a result consistent with it, holding that a foreclosure complaint that attached a notice of
the amounts due could have a "dual purpose" of both enforcing a security interest and
collecting a debt. Freire, 994 F. Supp. 2d at 1288-89.
87 Brief of Amicus Curiae Consumer Financial Protection Bureau in Support
of Appellant and Reversal at 6-20, Ho v. ReconTrust Co., No. 10-56884 (Aug. 7, 2015),
http://files.consumerfinance.gov/f/201508_cfpb_amicus-brief_ho-v-recontrust-n.pdf .
88 We used broad language in Barber v. National Bank of Alaska, 815 P.2d
857, 860-61 (Alaska 1991), to conclude that the FDCPA was not intended to encompass
(continued...)
-28- 7084
----------------------- Page 29-----------------------
B. The Superior Court Did Not Err In Determining That Routh Is A
"Debt Collector" Under The FDCPA, But The Evidence Did Not
Support Its Conclusion That Routh Was Liable For The Violation At
Issue.
We also affirm the superior court's decision that Steven Routh, Alaska
Trustee's sole owner and shareholder, was a "debt collector" subject to liability under
the FDCPA, but we disagree with the superior court's conclusion that Routh was
therefore necessarily liable for the violation at issue.
Alaska Trustee argues that Routh cannot be held liable under the FDCPA
unless he personally participated in a specific violation of the Act. Alaska Trustee
focuses on the statutory section Routh is alleged to have violated, which states in relevant
part: "Within five days after the initial communication with a consumer in connection
with the collection of any debt, a debt collector shall, unless the following information
is contained in the initial communication . . . , send the consumer a written notice
containing . . . the amount of the debt . . . ." 89
According to Alaska Trustee, "[t]he statute
clearly places the burden of providing the amount of the debt on the debt collector who
sent the initial communication to the debtor[,] . . . the Alaska Trustee employee who
mailed the Notice of Default, and Alaska Trustee itself." Holding Routh liable for the
88(...continued)
mortgages or mortgage service companies. But the issue before us in Barber, and the
authority on which we relied, were limited to "mortgage service companies servicing
debts which were not in default when service commenced," a category clearly excluded
from the Act's definition of "debt collector." Id. at 860; 15 U.S.C. § 1692a(6)(F)
(defining "debt collector" as not including a person engaged in collection activity that
"concerns a debt which was not in default at the time it was obtained by such person.");
Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (observing that
legislative history "indicates conclusively that a debt collector does not include the
consumer's creditors, a mortgage servicing company, or an assignee of a debt, as long
as the debt was not in default at the time it was assigned.").
89 15 U.S.C. § 1692g(a)(1).
-29- 7084
----------------------- Page 30-----------------------
business's debt-collection practices, Alaska Trustee argues, is an assertion of vicarious
liability, contravening state law intended to insulate members of limited liability
90
companies from individual liability for corporate acts.
Alaska Trustee urges that we instead apply the Ninth Circuit's analysis in
Cruz v. International Collection Corp., in which the court considered the FDCPA
91 The court
liability of the sole owner, officer, and director of a debt collecting company.
observed in Cruz that merely because an individual meets the definition of "debt
collector" does not mean he has violated the FDCPA: "[T]he FDCPA does not prohibit
merely qualifying as a debt collector but instead prohibits debt collectors from taking
certain specific actions."92 Determining individual liability under the FDCPA is
therefore a two-step analysis, in which courts ask "1) whether the individual qualifies as
a debt collector, and 2) whether that individual has taken an action that violates the
FDCPA."93 We agree that this two-step analysis is appropriate.
Again, "debt collector" is relevantly defined as "any person who uses . . .
the mails 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 owed . . . or
due another."94 We agree that a person with a mere ownership interest in a debt
90 See AS 10.50.265 ("A person who is a member of a limited liability
company . . . is not liable, solely by reason of being a member, . . . for a liability of the
company to a third party . . . for the acts or omissions of another member . . . or
employee of the company to a third party.").
91 673 F.3d 991 (9th Cir. 2012).
92 Id. at 999-1000.
93 Id. at 1000.
94 15 U.S.C. § 1692a(6).
-30- 7084
----------------------- Page 31-----------------------
collection business is unlikely to fall within this definition. 95 But the facts of this case
go beyond mere ownership.
The evidence showed that Routh was Alaska Trustee's sole owner and
managing member and had been since the company's creation in 2005. He was
ultimately in charge of the company's operations, though he attested that in recent years
his management was "at the enterprise level of client relations, staffing decisions,
strategic planning and the like" and that he often spent "only a few hours a week, if any,"
at Alaska Trustee's offices. The day-to-day manager, Athena Vaughn, reported to him
and in turn supervised the other managerial employee, Rose Santiago. Routh testified
that Vaughn and Santiago were "the operational piece" of the company's management,
but they did not have access to the business's financial information. As the managing
member he was in "[f]requent contact with [Vaughn], both [by] phone and in person,"
and "[i]ssues that [were] important [got] elevated [to him] very quickly." He had the
final say on the language of forms and correspondence, though he was likely to get
involved only when "made aware that there are issues that go beyond just the mere
formalities or issues that need counsel involved." But given what Routh perceived as the
high-risk legal environment - in which "we need to be very careful on what is said and
parse things very closely" in order to avoid litigation - he testified that "most changes
[to collection forms] would either be touched on by me and reviewed by me or . . . more
typically, I think, counsel."
In sum, Routh's involvement in the business, though usually distant, was
that of a high-level manager with real decisional authority, not an absentee owner or
95 See, e.g. , Schwarm v. Craighead , 552 F. Supp. 2d 1056, 1073 (E.D. Cal.
2008) ("[B]ecause the FDCPA imposes personal, not derivative, liability, serving as a
shareholder, officer, or director of a debt collecting corporation is not, in itself, sufficient
to hold an individual liable as a 'debt collector.' "); Moritz v. Daniel N. Gordon, P.C. ,
895 F. Supp. 2d 1097, 1109 (W.D. Wash. 2012) (following Schwarm).
-31- 7084
----------------------- Page 32-----------------------
shareholder whose only interest was financial. These undisputed facts are sufficient to
establish that Routh is a person who "regularly collects or attempts to collect, directly or
96 and is therefore a "debt collector" for
indirectly, debts owed . . . or due another"
purposes of the FDCPA.97
This does not answer the second question identified in Cruz - whether
Routh, as a debt collector, "has taken an action that violates the FDCPA."98 The court
in Cruz did not need to answer this question at length, since the individual under
96 15 U.S.C. § 1692a(6).
97 We acknowledge that there is again a range of views on when individual
owners, officers, or employees are "debt collectors" for purposes of the FDCPA.
Compare Pettit v. Retrieval Masters Credit Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir.
2000) ("Because [officers and shareholders] do not become 'debt collectors' simply by
working for or owning stock in debt collection companies, we held [in White v.
Goodman, 200 F.3d 1016, 1019 (7th Cir. 2000),] that the Act does not contemplate
personal liability for shareholders or employees of debt collection companies who act on
behalf of those companies, except perhaps in limited instances where the corporate veil
is pierced."), with Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433,
437-38 (6th Cir. 2008) (holding "that subjecting the sole member of an LLC to
individual liability for violations of the FDCPA will require proof that the individual is
a 'debt collector,' but does not require piercing of the corporate veil"); see also Brink v.
First Credit Res., 57 F. Supp. 2d 848, 862 (D. Ariz. 1999) (holding that officers who
"materially participated in the activities of [the company] alleged to be collection
activities" may be "debt collectors under the statute"); Ditty v. CheckRite, Ltd ., Inc., 973
F. Supp. 1320, 1336-37 (D. Utah 1997) ("[A]s the firm's sole attorney, developer of the
'covenant not to sue' practice, author of the generic letters utilized by the firm, and
supervisor of all of the firm's collection activities, Mr. DeLoney was regularly engaged,
directly and indirectly, in the collection of debts."). We agree with the view that an
individual is or is not a "debt collector" under the Act based on his own level of
involvement and his own activities, not those of the entity he owns or manages; the
liability is not vicarious, nor does it depend on whether the corporate veil can be pierced.
98 Cruz, 673 F.3d at 1000.
-32- 7084
----------------------- Page 33-----------------------
99
discussion "himself was personally involved in at least one violation of the FDCPA."
Here, the parties and the superior court did not address Routh's liability in terms of
Cruz's two-step analysis: their apparent assumption was that if Routh was a "debt
collector" as defined in the Act, he was liable for the alleged violation. Many courts
seem to follow a similar analysis. The superior court in this case cited Del Campo v.
American Corrective Counseling Service, Inc. , which noted three measures other courts
have used to determine whether individuals should be held liable: they "(1) materially
participated in collecting a debt, (2) exercise[d] control over the affairs of [a debt
collection] business, or (3) were regularly engaged, directly and indirectly, in the
100 The second and third of these tests seem to conflate the two
collection of debts."
questions of (1) whether the individual is a "debt collector" and, (2) if so, whether he
violated the FDCPA. We therefore find it most helpful to frame the issue - whether the
individual has "taken an action that violates the FDCPA" - in terms of whether the
101
individual "materially participated" in the specific violation alleged.
The violation at issue here is the debt collector's failure to include the full
99 Id.
100 Del Campo v. Am. CorrectiveCounseling Serv., Inc. , 718 F. Supp. 2d 1116,
1127 (N.D. Cal. 2010) (alterations in original) (footnotes omitted); see also Moritz v.
Daniel N. Gordon, P.C. , 895 F. Supp. 2d 1097, 1109 (W.D. Wash. 2012) ("[C]ourts have
found an individual personally liable if 'the individual 1) materially participated in
collecting the debt at issue; 2) exercised control over the affairs of the business; 3) was
personally involved in the collection of the debt at issue; or 4) was regularly engaged,
directly or indirectly, in the collection of debts.' " (quoting Schwarm, 552 F. Supp. 2d
at 1073)).
101 See Del Campo v. Mealing, No. C 01-21151 SI, 2013 WL 4764975, at *10-
11 (N.D. Cal. Sept. 5, 2013) ("The Court concludes that under Cruz, plaintiffs must
demonstrate that [the individual debt collector] materially participated not only in debt
collection but also in the specific FDCPA violations alleged by plaintiffs.").
-33- 7084
----------------------- Page 34-----------------------
amount due in the initial communication to the debtor or within five days of it. 102 The
103
Act provides that it is the "debt collector" who "shall" provide this information.
It is
undisputed that this information was not provided.
But the undisputed facts show that Routh did not "materially participate"
in creating the notices of default that the Ambridges allege were in violation of the
FDCPA. The superior court concluded, on Routh's undisputed testimony, that Routh
104
"did not draft, review, approve or sign the Notice of Default" sent to the Ambridges.
Routh testified that while "[t]he creation of forms and so forth might have my
involvement," most foreclosure documents were drafted without it, including the form
at issue here. He testified that the notices of default could be changed without his
approval unless he was made aware that there were issues that "go beyond just the mere
formalities or [were] issues that need counsel involved." Routh testified that Alaska
Trustee did change its forms in response to the superior court's rulings on the violation
alleged in this case; he testified further that while he was "aware of" the changes made,
he did not make them himself, and that he later approved them based on the
102 15 U.S.C. § 1692g(a)(1) (2012) ("Within five days after the initial
communication with a consumer in connection with the collection of any debt, a debt
collector shall,unless thefollowing information is contained in theinitialcommunication
or the consumer has paid the debt, send the consumer a written notice containing . . . the
amount of the debt . . . ."); see Miller v. McCalla , 214 F.3d 872, 875-76 (7th Cir. 2000)
("What [the defendants] certainly could do was to state the total amount due - interest
and other charges as well as principal - on the date the dunning letter was sent. We
think the statute required this.").
103 15 U.S.C. § 1692g(a)(1).
104 See Mealing, 2013 WL 4764975, at *11 (stating that to establish liability
for specific FDCPA violations, plaintiffs were required to show evidence that defendant
"materially participated"ineach violation, "suchas, for example, that [defendant]played
a material role in developing, approving or ratifying the contents and format of the
communications in use . . . that plaintiffs allege violate the FDCPA" (citing Musso v.
Seiders, 194 F.R.D. 43, 47 (D. Conn. 1999))).
-34- 7084
----------------------- Page 35-----------------------
recommendation of counsel. Routh also testified that any potential problem with the
notices of default that Alaska Trustee served on the Ambridges never "crossed [his]
105
radar" before the superior court's rulings.
We conclude that these facts are insufficient to show that Routh materially
participated in the specific violation of the FDCPA that the Ambridges are pursuing.
Under the two-step inquiry of Cruz, Routh is a "debt collector" but is not individually
liable for the violation. We therefore affirm in part, and reverse in part, the superior
court's decision of this issue.
C. The Superior Court Did Not Err In Awarding Injunctive Relief Under
The UTPA.
The superior court held that the Ambridges were entitled to an injunction
under the Unfair Trade Practices and Consumer Protection Act (UTPA), requiring that
Alaska Trustee conform its notices of default to the requirements of
106
15 U.S.C. § 1692g(a)(1). The court concluded that injunctive relief was authorized by
AS 45.50.535(a), which provides that "any person who was the victim of [an] unlawful
act, whether or not the person suffered actual damages, may bring an action to obtain an
injunction prohibiting a seller or lessor from continuing to engage in an act or practice
declared unlawful under AS 45.50.471." We affirm the superior court's decision of this
issue.
105 Cf. Musso , 194 F.R.D. at 47 (denying motion to dismiss claims against "a
stockholder and top executive" of a collection company where the plaintiff alleged "that
he is personally liable as a debt collector because he knew of the allegedly unlawful
procedures being used but nevertheless approved or ratified them").
106 Alaska Trustee had already changed its challenged practices before the
superior court ruled on the Ambridges' request for an injunction. But "[v]oluntary
cessation does not moot a case or controversy unless 'subsequent events ma[ke] it
absolutely clear that the allegedly wrongful behavior could not reasonably be expected
to recur.' " Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719
(2007) (citations omitted).
-35- 7084
----------------------- Page 36-----------------------
Alaska Trustee challenges the propriety of injunctive relief on three
grounds. First, it argues that an FDCPA violation is not necessarily a violation of the
UTPA, because Alaska law would not consider unfair or deceptive every conceivable
violation of the federal law. Alaska Trustee contends that the Ambridges were not
harmed or misled in any way by what in this case was at most a technical violation of the
FDCPA, because the Ambridges knew that the notice of default included only the
principal amount due (it was explicitly described as such) and they could not have paid
it anyway.
We reject this argument. Alaska Statute 45.50.471(a) declares unlawful all
"[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct
of trade or commerce." The legislature has directed that in interpreting these words we
give "due consideration and great weight" to "the interpretations of 15 U.S.C. § 45(a)(1)
107 The words of Alaska's statute therefore "have
[the Federal Trade Commission Act]."
a fixed meaning . . . which has emerged from agency and judicial interpretation of the
108
identical words of the federal statute."
Weappliedtheseprinciples in Statev. O'Neill Investigations, Inc., in which
we held that the activities of independent debt collectors fall within the scope of the
UTPA.109 We defined "unfairness" by reference to F.T.C. v. Sperry & Hutchinson Co.,
in which the United States Supreme Court set out these factors for consideration:
(1) whether the practice . . . offends public policy as it has
been established by statutes . . . , in other words, it is within
at least the penumbra of some common-law, statutory, or
107 AS 45.50.545.
108
ASRC Energy Servs. Power & Commc'ns, LLC v. Golden Valley Elec.
Ass'n , 267 P.3d 1151, 1158 (Alaska 2011) (quoting State v. O'Neill Investigations, 609
P.2d 520, 532 (Alaska 1980)).
109 609 P.2d at 528.
-36- 7084
----------------------- Page 37-----------------------
other established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; (3) whether
it causes substantial injury to consumers (or competitors or
other businessmen). [110]
To simplify matters here, the FDCPA expressly states that a violation of it "shall be
deemed an unfair or deceptive act or practice in violation of [the Federal Trade
Commission Act],"111 the Act the legislature requires us to consider in interpreting
AS 45.50.471.112 Clearly, a violation of the FDCPA falls "within at least the penumbra
of some . . . statutory . . . concept of unfairness," thus satisfying the first Sperry factor.113
Under O'Neill, a violation of the FDCPA is inescapably an "unfair or deceptive act[] or
practice[]" under AS 45.50.471(a).
Alaska Trustee's second argument is that holding the UTPA applicable to
violations of the FDCPA that involve real property foreclosures conflicts with our line
of cases holding that "goods or services" for purposes of the UTPA do not include real
114 We addressed this issue most recently in Alaska Trustee, LLC v.
estate transactions.
Bachmeier, in which we affirmed that "[f]or the past thirty years we have consistently
110 Id. at 535 (quoting F.T.C. v. Sperry & Hutchinson Co. , 405 U.S. 233, 244
n.5 (1972)).
111 15 U.S.C. § 1692l(a) (2012).
112 AS 45.50.545.
113 All three Sperry factors are not necessary to a finding of unfairness. "A
practice may be unfair because of the degree to which it meets one of the criteria or
because to a lesser degree it meets all three." Robinson v. Toyota Motor Credit Corp.,
775 N.E.2d 951, 961 (Ill. 2002) (quoting Disclosure Requirements and Prohibitions
Concerning Franchising & Business Opportunity Ventures, 43 Fed. Reg. 59,614, 59,635
(1978)).
114 See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1061
(Alaska 2011); Barber v. Nat'l Bank of Alaska, 815 P.2d 857, 861 (Alaska 1991); State
v. First Nat'l Bank of Anchorage, 660 P.2d 406, 412-14 (Alaska 1982).
-37- 7084
----------------------- Page 38-----------------------
115
held that 'the sale of real property is not within the regulatory scope of the [UTPA].' "
At issue in Bachmeier were two statutory amendments, the most recent of which
expanded the UTPA's definition of "goods or services" to include "goods or services
provided in connection with . . . a transaction involving an indebtedness secured by the
116 We concluded that the amendment "elaborated what types of
borrower's residence."
goods and services are covered by the Act, but did not change the longstanding definition
of goods and services itself - a definition that has never encompassed real property
transactions."117
118
There was no FDCPA claim before us in Bachmeier. The plaintiff's sole
argument for coverage under the UTPA was based on the amendments to the definition
119 The argument here is different: not
of "goods or services," an argument we rejected.
that nonjudicial foreclosures are covered "goods or services," but that violations of the
FDCPA in the course of nonjudicial foreclosures are "unfair or deceptive acts or
practices" that are brought within the UTPA by O'Neill and the statutory command that
we align our interpretation of the UTPA with federal interpretations of the Federal Trade
Commission Act. There are different avenues to coverage under the UTPA, and a
violation of the FDCPA is one of them.
115 332 P.3d 1, 5 (Alaska 2014) (quoting First Nat'l Bank , 660 P.2d at 414).
116
Id. at 6-7 (quoting AS 45.50.561(a)(9)); see also ch. 55, § 9, SLA 2004.
117
Id. at 7 (emphasis in original).
118
Bachmeier arose out of a similar lawsuit against Alaska Trustee. See id. at
2-4. Although the plaintiff in Bachmeier alleged an FDCPA violation in the superior
court, it was not at issue on appeal. Id . at 3-4 & 3 n.6.
119 Id. at 6-7.
-38- 7084
----------------------- Page 39-----------------------
Finally, we turn to Alaska Trustee's argument that the UTPA's injunctive
120
relief provision does not apply to it because it is not "a seller or lessor."
In support of
this argument, Alaska Trustee contends that "[a] non-judicial foreclosure is
unquestionably a service related to real property and is not a consumer service, as the
person 'purchasing' the service is not a consumer, but generally a financial institution,
mortgage servicer, or an individual who provided owner financing and for whom the
foreclosure must be regarded as a business transaction." We have already explained that
application of the UTPA in this case follows from the claimed violations of the FDCPA
and does not depend on whether the service is related to real property. Nor did the
legislature intend to limit the UTPA to "consumer" services, as our prior cases have
121 And the UTPA injunction provision does not require that the
repeatedly observed.
person seeking the remedy be a "consumer" of the service; it allows a claim by "any
person who was the victim of the unlawful act."122
For these reasons, we conclude that the superior court did not err when it
awarded injunctive relief to the Ambridges under AS 45.50.535(a).
V. CONCLUSION
We REVERSE the decision of the superior court holding Routh liable for
the violation at issue. We otherwise AFFIRM the decisions of the superior court.
120 AS 45.50.535(a) provides, in relevant part, that a person "may bring an
action to obtain an injunction prohibiting a seller or lessor from continuing to engage in
an act or practice declared unlawful under AS 45.50.471" (emphasis added).
121 See Donahue v. Ledgends, Inc., 331 P.3d 342, 353 (Alaska 2014) (noting
that the UTPA was designed to protect both consumers and "honest businessmen from
thedepredations ofthosepersons employingunfairordeceptivetradepractices"(quoting
W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1052 (Alaska 2004))).
122 AS 45.50.535(a).
-39- 7084
----------------------- Page 40-----------------------
WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.
The primary issue in this appeal is whether a business that regularly - but
only - acts as a trustee conducting non-judicial deed of trust foreclosures falls for all
purposes under the Fair Debt Collection Practices Act's (FDCPA) "debt collector"
1
definition. Because the court collapses the FDCPA's disparate usage of the terms
2
"security interest" and "debt"; because one who merely enforces a security interest
should not be subject to the entire FDCPA but only to its illegal dispossession
3
subsection; and because the Ambridges brought suit under a FDCPA section requiring
4
an "initial communication . . . in connection with the collection of any debt" before
liability attaches, but a statutorily required notice of default under Alaska law is not such
a communication, I dissent.
I. A Deed Of Trust Is A Security Instrument, Not A Debt.
A deed of trust is interdependent yet distinct from the debt it secures.5
1 15 U.S.C. §§ 1692-1692p (2012).
2 See id. § 1692a(6) (defining the term "debt collector").
3 See id. § 1692f(6).
4 Id. § 1692g(a).
5 See Espeland v. OneWest Bank, FSB, 323 P.3d 2, 9-10 (Alaska 2014)
(stating that trustors "signed a Promissory Note creating the obligation to repay their loan
and a Deed of Trust giving the lender, through the trustee, the right to sell the property
if they failed to repay the loan"); accord Jackson v. Mortg. Elec. Registration Sys., Inc.,
770 N.W.2d 487, 493-94 (Minn. 2009) ("Historically, promissory notes and security
instruments have been treated as two distinct documents that are legally intertwined. A
real property mortgage has 'two things, the personal obligation and the interest in the
realty securing that obligation.' " (citation omitted) (quoting 4 GEORGE E. OSBORNE,
AMERICAN LAW OF PROPERTY § 16.107 (1952))); GRANT S. NELSON ET AL., REAL
ESTATE TRANSFER, FINANCE, DEVELOPMENT 100 (8th ed. 2009) ("A mortgage
AND
involves a transfer by a debtor-mortgagor to a creditor-mortgagee of a real estate interest,
to be held as security for the performance of an obligation, normally the payment of a
(continued...)
-40- 7084
----------------------- Page 41-----------------------
The mortgage was created by the early English court as a
transfer of title from the mortgagor to the mortgagee,
generally as security for a loan by the mortgagee to the
mortgagor. Once the mortgagor repaid the loan proceeds,
title to the property would return to him. If, however, the
mortgagor failed to pay the mortgage by the due date, called
[ ]
the law day, he would forfeit all interest in the property. 6
Because of injustices surrounding law day forfeitures, a common law right of equitable
redemption developed allowing a mortgagor to repay the loan after law day and thus
regain title to property.7 But the right of equitable redemption made title uncertain, and
therefore the remedy of strict foreclosure arose: "If the mortgagor failed to redeem
within [a certain time], the redemption right was forever barred and both legal and
equitable title to the real estate vested in the mortgagee."8
From this emerged the concept that a mortgage - or as is commonly used
in Alaska, a deed of trust9 - should not be treated as a transfer of title but rather "as
merely a security interest in the property" that " 'confers no right to possession of that
10 In short,
real estate on the mortgagee' . . . . 'until there has been a valid foreclosure.' "
5(...continued)
debt evidenced by a promissory note.").
6 Young v. Embley, 143 P.3d 936, 940 (Alaska 2006) (footnote omitted)
(citing 1 GRANT S. NELSON & DALE A. WHITMAN, REAL ESTATE FINANCE LAW § 1.2, at
6-7 (4th ed. 2002)).
7 See id.
8 RESTATEMENT (THIRD) OF PROP.: MORTGS. § 3.1 cmt. a (1997).
9 For the most part Alaska law does not differentiate between deeds of trust
and mortgages because both " 'accomplish[] the same purpose[] [of] creating a security
interest in land.' " Young, 143 P.3d at 941-42 (quoting Brand v. First Fed. Sav. & Loan
Ass'n of Fairbanks, 478 P.2d 829, 831 (Alaska 1970)).
10 Id. at 940 (quoting RESTATEMENT (THIRD) OF PROP.: MORTGS. § 4.1(a)
(continued...)
-41- 7084
----------------------- Page 42-----------------------
non-judicial foreclosure - the process through which a security interest in property is
11
enforced
- does not in and of itself collect a debt, but rather " 'calls for the vesting and
12
divesting of title to real property' " according to the parties' prior agreement.
Against this historical backdrop the FDCPA defines the term "debt
collector" differently depending on whether a debt or a security interest is at issue.
Relevant here, a "debt collector" is:
[A]ny person who uses any instrumentality of interstate
commerce or the mails 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
owed or due or asserted to be owed or due another. . . . For
[13] such term also
the purpose of section 1692f(6) of this title,
includes any person who uses any instrumentality of
interstate commerce or the mails in any business the principal
10(...continued)
ELSON & W HITMAN, supra note 6, § 1.5, at 10).
(1997); N
11 See generally AS 34.20.070.
12 See Derisme v. Hunt Leibert Jacobson P.C., 880 F. Supp. 2d 311, 321 (D.
Conn. 2012) (quoting City of New Haven v. God's Corner Church, Inc., 948 A.2d 1035,
1040 (Conn. App. 2008)); see also AS 34.20.070(a) (permitting non-judicial foreclosure
sale if deed of trust "provides that in the case of default . . . trustee may sell the property
for condition broken"); AS 34.20.090(a) (stating non-judicial foreclosure sale "transfers
all title and interest that the party executing the deed of trust had in the property").
13 Under 15 U.S.C. § 1692f(6) a security interest enforcer incurs liability only
by:
Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if . . . there is no
present right to possession of the property claimed as
collateral through an enforceable security interest; . . . there
is no present intention to take possession of the property; or
. . . the property is exempt by law from such dispossession or
disablement.
-42- 7084
----------------------- Page 43-----------------------
purpose of which is the enforcement of security interests .[14]
The FDCPA defines "debt" in terms of money and does not mention
15 The
security interests; a "debt" is "any obligation . . . of a consumer to pay money."
court states that this definition "plainly encompasses a home mortgage." But a security
instrument is itself not an obligation to pay money; rather the obligation to pay money
is created by the underlying loan agreement. A mortgage secures payment of a
mortgagor's separate debt - without a separate debt or other obligation to secure, a
mortgage has little effect - and a non-judicial foreclosure operates only to shift title
from the mortgagor to the foreclosure sale purchaser.16 And nothing in the FDCPA's
definition suggests that a mortgage is somehow converted into a debt through the non-
judicial foreclosure process.
In construing the term "debt collector," courts have recognized that "if the
enforcement of a security interest was synonymous with debt collection," then the
definitional sentence referencing security interests "would be surplusage because any
business with a principal purpose of enforcing security interests would also have the
principal purpose of collecting debts."17 This result is avoided if security interest
14 Id. § 1692a(6) (emphases added).
15 See id. § 1692a(5) (emphasis added).
16 See supra note 12 and accompanying text; see also AS 34.20.100
(prohibiting an "action[,] . . . proceeding[,] . . . [or] judgment . . . on the obligation
secured by the deed of trust" after a non-judicial foreclosure sale).
17 E.g., Gray v. Four Oak Court Ass'n , 580 F. Supp. 2d 883, 888 (D. Minn.
2008); Natividad v. Wells Fargo Bank, N.A., No. 3:12-cv-03646 JSC, 2013 WL
2299601, at *6 (N.D. Cal. May 24, 2013); see also Warren v. Countrywide Home Loans,
Inc., 342 F. App'x 458, 460-61 (11th Cir. 2009) (per curiam) ("[T]he statute specifically
says that a person in the business of enforcing security interests is a 'debt collector' for
the purposes of § 1692f(6), which reasonably suggests that such a person is not a debt
collector for purposes of the other sections of the Act."); Dunavant v. Sirote & Permutt,
(continued...)
-43- 7084
----------------------- Page 44-----------------------
enforcers are not subject to liability under the entire FDCPA but instead held liable only
for violations of the illegal dispossession subsection, § 1692f(6).
II. Congress Did Not Intend The FDCPA To Impose Liability On Entities
Only Pursuing Non-Judicial Deed Of Trust Foreclosures.
Congress passed the FDCPA in 1977 in response to "the use of abusive,
18
deceptive, and unfair debt collection practices"
such as: "threats of violence; obscene
language; the publishing of 'shame lists[';] harassing or anonymous telephone calls;
impersonating a government official or attorney; misrepresenting the consumer's legal
rights; simulating court process; obtaining information under false pretenses; collecting
19
more than is legally owing; and misusing postdated checks." Given the FDCPA's
legislativehistory,it ismorethan questionablewhether "[p]rosecutingastateforeclosure
action is . . . the type of abusive collecti[on] practice[] that the FDCPA is aimed at
eliminating."20
Indeed, "the purposes of the FDCPA would [not] be furthered by applying
[it] to state foreclosure proceedings considering the panoply of protections and
17(...continued)
P.C., 603 F. App'x 737, 739-40 & n.2 (11th Cir. 2015) (per curiam) (clarifying that
Warren remains good law).
18 15 U.S.C. § 1692(a); Fair Debt Collection Practices Act, Pub. L. No. 95-
109, 91 Stat. 874 (1977).
19 S. R EP. N O. 95-382, at 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695,
1698; see also 15 U.S.C. § 1692d ("A debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress, or abuse any person in connection
with the collection of a debt."); 15 U.S.C. § 1692f ("A debt collector may not use unfair
or unconscionable means to collect or attempt to collect any debt.").
20 Derisme v. Hunt Leibert Jacobson P.C., 880 F. Supp. 2d 311, 328 (D.
Conn. 2012).
-44- 7084
----------------------- Page 45-----------------------
21
safeguards available to parties of a foreclosure action under [state] law." In Alaska a
trustor may invoke the personal defenses of fraud and misrepresentation to invalidate a
22 a foreclosure sale contract may be modified based on mutual
foreclosure sale;
23 procedural or substantive inequities surrounding the foreclosure process may
mistake;
invalidate the sale;24 a trustee may not act inimically to a trustor's interests;25 a trustor by
statute can "bring an action . . . to enjoin a foreclosure";26 and a trustor can twice prevent
a foreclosure sale by paying the arrearages before the trustee "may elect to refuse
payment and continue the sale."27
As one district court reasoned:
[The] statutes require the trustee to record a notice of default
as the first step in a non-judicial foreclosure proceeding. The
notice must contain a statement that a breach of an obligation
has occurred and set forth the nature of the breach. The
intent behind the FDCPA was to prohibit abusive collections
practices, not to outlaw foreclosures when there is an express
21 Id. at 327.
22
See Bauman v. Day, 892 P.2d 817, 823-24 (Alaska 1995) ("We see no
reason why the personal defenses of an owner cannot result in invalidating a non-judicial
sale just as they can result in invalidating the obligation on which the sale was based.").
23 See Fireman's Fund Mortg. Corp. v. Allstate Ins. Co., 838 P.2d 790, 797
(Alaska 1992).
24 See Cook Schuhmann & Groseclose, Inc. v. Brown & Root, Inc., 116 P.3d
592, 596 (Alaska2005) (noting that procedurally "unfairand unreasonable" non-judicial
foreclosure sales may be set aside); Baskurt v. Beal, 101 P.3d 1041, 1044, 1046 (Alaska
2004).
25 See Baskurt, 101 P.3d at 1046 (noting that the trustee has "the duty to take
reasonableandappropriatesteps to avoid sacrificeofthedebtor'sproperty and interest").
26 AS 34.20.070(l)(1).
27 AS 34.20.070(b).
-45- 7084
----------------------- Page 46-----------------------
security agreement and breach of an obligation. [28]
Theevils the FDCPA was meant to remedy are not implicated during anon-
judicial deed of trust foreclosure sale that fully complies with Alaska law. On the other
hand, overlaying the FDCPA on a state's statutory non-judicial deed of trust foreclosure
system by making deed of trust trustees - such as title companies - "debt collectors"
will wreak havoc. For example, the FDCPA bars a debt collector from contacting a
29 and
consumer with respect to a debt if the consumer has asked the debt collector to stop
bars a debt collector from continuing collection of a disputed debt until the debt is
verified.30 This will grind non-judicial deed of trust foreclosures to a halt, lead to missed
statutory deadlines, missed statutory notices to debtors and third-parties, and necessitate
re-starts of the process.31
III. TheAssertionThat Non-JudicialDeedOfTrust Foreclosures AreDebt
Collection Under The FDCPA Is Unpersuasive.
32
The court's reliance on Glazer v. Chase Home Finance LLC
is misplaced.
The court notes that Glazer held that all real estate foreclosure activities constitute debt
collection, in part because the FDCPA requires all debt collectors to "bring[] any legal
28 Maynard v. Cannon, 650 F. Supp. 2d 1138, 1143-44 (D. Utah 2008)
(citations omitted), aff'd, 401 F. App'x 389 (10th Cir. 2010); see also Burnett v. Mortg.
Elec. Registration Sys., Inc. , 706 F.3d 1231, 1239 (10th Cir. 2013) (" '[W]hen a debt has
yet to be reduced to a personal judgment against a mortgagor, a non-judicial foreclosure
does not result in a mortgagor's obligation to pay money - it merely results in the sale
of property subject to a deed of trust.' " (emphasis in original) (quoting Maynard, 401
F. App'x at 394)).
29 15 U.S.C. § 1692c(c).
30 Id. § 1692g(b).
31 Cf. AS 34.20.070-.080 (providing state procedures for notification of
default and conducting sale for non-judicial deed of trust foreclosures).
32 704 F.3d 453 (6th Cir. 2013).
-46- 7084
----------------------- Page 47-----------------------
action . . . to enforce an interest in real property . . . in a judicial district . . . in which such
real property is located."33
But in Alaska - and in other states with similar laws - a
judicial foreclosure proceeding is required for a mortgagee to seek a deficiency
34 The FDCPA clearly regulates a debt collector seeking to collect money
judgment.
under a judicial foreclosure deficiency judgment,35 but a non-judicial deed of trust
foreclosure in Alaska - and in other states with similar laws - cannot result in a
deficiency judgment.36
33 15 U.S.C. § 1692i(a)(1); see Glazer , 704 F.3d at 461-62.
34 See AS 09.45.170; AS 09.45.180; AS 34.20.100; Kuretich v. Alaska Tr.,
LLC, 287 P.3d 87, 91 (Alaska 2012) (explaining that after judicial foreclosure sale, "the
lender can obtain a deficiency judgment against the borrower for amounts still owed");
see also, e.g., Wash. Fed. v. Harvey, 340 P.3d 846, 847 n.1 (Wash. 2015) (explaining
that in non-judicial foreclosures borrowers surrender their rights to redemption "in
exchange for protection from deficiency judgments" available in judicial foreclosures);
Garretson v. Post, 68 Cal. Rptr. 3d 230, 235 (Cal. App. 2007) (explaining deficiency
judgments are available in judicial foreclosures but not in non-judicial foreclosures).
The court's reliance on Dworkin v. First National Bank of Fairbanks, 444
P.2d 777 (Alaska 1968), is equally misplaced. That case involved a judicial action to
enforce an alleged equitable mortgage when no legal mortgage existed and the specific
question whether, for a judicial action, a security interest could survive beyond the
statute of limitations for the underlying debt. Id. at 780-82.
35 See Doughty v. Holder, Nos. 2:13-cv-00295-LRSto 00297-LRS, 2014 WL
220832, at *5 (E.D. Wash. Jan. 21, 2014) ("[A] deficiency judgment . . . is not for the
purpose of enforcing the security interest, but for seeking payment of funds to make up
a shortfall between the proceeds obtained from the foreclosure sale and the amount of
the foreclosure judgment. It is an action to collect a debt.").
36 See AS 34.20.100 (prohibiting a deficiency "action[,] . . . proceeding[,] . . .
[or] judgment . . . on the obligation secured by the deed of trust" after a non-judicial
foreclosure sale); see also, e.g., CAL. C IV. P ROC. C ODE § 580d (West 2015); W ASH. R EV.
ODE ANN . § 61.24.100 (West 2015); see also 15 U.S.C. § 1692a(5) (defining "debt" as
C
"any obligation . . . to pay money").
-47- 7084
----------------------- Page 48-----------------------
And in Alaska and many other jurisdictions permitting non-judicial deed
of trust foreclosures, no legal action of any kind is required; rather, the trustee must only
37 Therefore a deed of trust
notify interested parties, including the trustor, of the default.
trustee, like Alaska Trustee, conducting only non-judicial deed of trust foreclosures not
permitting deficiency judgments, cannot be brought within the FDCPA's general debt
collector definition simply because one provision restricts where judicial foreclosure
actions permitting deficiency judgments may be brought. Only the illegal dispossession
subsection explicitly regulating "nonjudicial action"38 should apply to Alaska Trustee.
After conflating the FDCPA's distinction between a debt and a security
interest, the Glazer court had to explain to whom the illegal dispossession subsection39
was intended to apply, and it concluded that because "repossession agencies and their
agents" only enforce security interests, this subsection was meant to apply exclusively
to them.40 But this logic hinges on the faulty premise that non-judicially enforcing a
security interest in personal property is meaningfully different from non-judicially
enforcing a security interest in real property. It is not. As with non-judicial deed of trust
foreclosures, UniformCommercialCoderepossessions underArticleNineallowsecured
37 See AS 34.20.070; 2 BAXTER DUNAWAY, THE LAW OF DISTRESSED REAL
ESTATE § 17.4 (2015) ("State [non-judicial foreclosure] statutes specify notice
requirements, such as recording, posting on the property, mailing of notice to the
borrower and other specified parties, and advertisement in newspapers."); 1 id. app. 13A
(listing 29 states where non-judicial foreclosure with varying notice requirements is
"normal" foreclosure method); REAL ESTATE TRANSFER, FINANCE, AND DEVELOPMENT,
supra note 5, at 641-43 (quoting GRANT S. NELSON ET AL., REAL ESTATE FINANCE LAW
633-36 (5th ed. 2007)) (explaining that roughly 60% of jurisdictions allow power of sale
or non-judicial foreclosures "[a]fter varying types and degrees of notice").
38 15 U.S.C. § 1692f(6).
39 Id.
40 704 F.3d 453, 463-64 (6th Cir. 2013).
-48- 7084
----------------------- Page 49-----------------------
41
parties to offset their losses on underlying debt by retaining or selling pledged
42
collateral.
Without otherwise collecting or even attempting to collect a single cent from
the debtor, both lenders holding a deed of trust and lenders holding a security interest in
personal property may, upon default, divest the debtor of title to the collateral property
43 Enforcing a security interest without
simply by virtue of their security interests.
otherwise collecting on the underlying debt does not transform the enforcer of the
security interest - whether in personal property or real property - into a debt collector
subject to the prohibitions of the entire FDCPA; rather, the security interest enforcer
incurs liability only by violating the illegal dispossession subsection.
The Glazer court posited that the illegal dispossession subsection was
intended to apply to personal property repossession agencies, and the court adopts
Glazer's logic, agreeing that such entities "may well have no regular practice of
41 See U.C.C. § 9-102(a)(73) (2010); accord AS 45.29.102(a)(91)(A)
(defining "secured party" in part as "a person in whose favor a security interest is created
or provided for under a security agreement").
42 See U.C.C. §§ 9-609, 9-610; accord AS 45.29.609(a)(1) ("After default, a
secured party . . . may take possession of the collateral . . . ."); AS 45.29.610(a) ("After
default, a secured party may sell, lease, license, or otherwise dispose of any or all of the
collateral . . . .").
43 See AS 34.20.080(b) (permitting "beneficiary" - the entity with "the
ultimate right to be repaid on the loan," Espeland v. OneWest Bank, FSB, 323 P.3d 2, 5
n.4 (Alaska 2014) - to bid at a non-judicial foreclosure sale); U.C.C. § 9-610(c); see
also AS 45.29.610(c) (permitting secured party to bid on collateral at post-default sale);
U.C.C. § 9-620(a)-(c) & cmt. 3; U.C.C. § 9-609(b)(2); AS 45.29.620(a)-(c) (permitting
secured party to accept collateral in full satisfaction of debt upon notice to other parties
with interest in collateral and if debtor consents, either explicitly or by failing to timely
respond to a proposal to accept collateral, but requiring that consumer goods not be "in
the possession of the debtor when the debtor consents to the acceptance");
AS 45.29.609(b)(2) (permitting secured party tonon-judicially repossess collateral upon
default "if it proceeds without breach of the peace").
-49- 7084
----------------------- Page 50-----------------------
44
communicating with debtors" of the type the FDCPA prohibits. But in two cases the
Glazer court cited to support this proposition, the debtor was contacted, sometimes
45
repeatedly. And the illegal dispossession subsection prohibits not only "[t]aking" but
46
which presumably entails some form
also "threatening to take any nonjudicial action,"
of communication. Assumed levels of communication between debtors and security
interest enforcers are therefore not a reliable justification for applying the illegal
dispossession subsection to personal property repossession agencies but not to non-
judicial deed of trust foreclosure companies like Alaska Trustee.
In short, Glazer's logic does not support treating every security interest
enforcer as a debt collector. If Congress meant for "any business the principal purpose
of which is the collection of any debts" to mean exactly the same thing as "any business
47
then it would
the principal purpose of which is the enforcement of security interests,"
not have used these two different phrases in defining "debt collector" while also creating
48
The court's
the illegal dispossession subsection only for security interest enforcers.
44 See also 704 F.3d at 463-64.
45 In Jordan v. Kent Recovery Services, Inc. the repossession agent visited the
debtor's home and communicated with her no less than five times in an attempt to locate
the car. 731 F. Supp. 652, 654-55 (D. Del. 1990), cited by Glazer, 704 F.3d at 464. And
in James v. Ford Motor Credit Co. "Ford Credit notified the Jameses of their default and
told them that they planned to repossess the Escort. Ms. James told Ford Credit that she
did not want her car repossessed and that Ford Credit could not take it." 47 F.3d 961,
962 (8th Cir. 1995), cited by Glazer, 704 F.3d at 464.
46 15 U.S.C. § 1692f(6) (emphasis added).
47 Id. § 1692a(6) (emphases added).
48 See id. (stating that "[f]or the purpose of" the illegal dispossession
subsection, the term debt collector "also includes" security interest enforcers); see also
Jordan, 731 F. Supp. at 657-58 (concluding that security interest enforcers incur liability
only under the illegal dispossession subsection because " 'where Congress includes
(continued...)
-50- 7084
----------------------- Page 51-----------------------
reliance on Glazer is therefore misplaced.
Finally, the court asserts that recent case law from the Eleventh Circuit
Court of Appeals supports imposing FDCPA liability on Alaska Trustee. But in Reese
v. Ellis, Painter, Ratterree &Adams, LLP the Eleventh Circuit imposed FDCPA liability
on a law firm initiating a non-judicial foreclosure sale when, although Georgia law
required that a notice of foreclosure be sent to the mortgagor but did "not require a
49 That is not
demand for payment of the debt[,] . . . the law firm included one anyway."
the case here. The Reese court explicitly refused to decide the question that this case
presents: "whether a party enforcing a security interest without demanding payment on
the underlying debt is attempting to collect a debt" under the FDCPA,50 and Eleventh
Circuit district courts continue to answer this question in the negative.51
48(...continued)
particular language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.' " (quoting Russello v. United States, 464 U.S. 16, 23
(1983))).
49 678 F.3d 1211, 1217 (11th Cir. 2012).
50 Id. at 1218 n.3. The Consumer Financial Protection Bureau brief on which
the court also relies similarly states: "The Court need not decide in this case whether
foreclosure by itself constitutes debt collection activity covered by the Act." Brief of the
Consumer Financial Protection Bureau as Amicus Curiae in Support of Plaintiffs-
Appellants and Reversal at 32, Birster v. Am. Home Mortg. Servicing, Inc., 481 F. App'x
579 (11th Cir. 2012) (No. 11-13574) (emphasis added), available at
http://consumerfinance.gov/f/201112_CFPB_ Birster-amicus-brief.pdf.
51 See, e.g., Beepot v. J.P. Morgan Chase Nat'l Corporate Servs., 57 F. Supp.
3d 1358, 1376 (M.D. Fla. 2014) (dismissing FDCPA claim "[b]ecause foreclosing on a
security interest is not debt collection activity under the provisions of the FDCPA"
(citing Warren v. Countrywide Home Loans, Inc., 342 F. App'x 458, 460-61 (11th Cir.
2009))); Freire v. Aldridge Connors, LLP, 994 F. Supp. 2d 1284, 1287-88 (S.D. Fla.
2014) ("[I]n the Eleventh Circuit, the filing of a mortgage foreclosure action will
(continued...)
-51- 7084
----------------------- Page 52-----------------------
IV. The Notice Of Default Required By Alaska Statute Is Not A
"Communication" Under The FDCPA .
The only FDCPA provision under which the Ambridges brought suit,
15 U.S.C. § 1692g(a), requires in relevant part that a debt collector's initial
communication with the debtor state "the amount of the debt" or that the debt collector
inform the debtor of this amount "[w]ithin five days after the initial communication."
Under the Alaska law relevant here, trustees must send notices of default to trustors
before holding non-judicial foreclosure sales, and the notices must state: "that a breach
of the obligation for which the deed of trust is security has occurred"; "the nature of the
breach"; "the sum owing on the obligation"; and that the trustee has elected "to sell the
52 In August 2009 Alaska Trustee sent the Ambridges
property to satisfy the obligation."
such a notice, and a few weeks later Alaska Trustee sent them an amended notice
containing the same information. Aside from these two statutorily required notices of
default that did not attempt to collect money, Alaska Trustee did not further
communicate with the Ambridges about the foreclosure, and it never sent them a
reinstatement letter requesting money to bring their loan current and prevent foreclosure.
On these facts, had Alaska Trustee instead initiated a judicial foreclosure
and served the Ambridges with a complaint, its non-liability under the FDCPA would
not be debatable: "A communication in the form of a formal pleading in a civil action
shall not be treated as an initial communication for purposes of [§ 1692g(a)]."53
It is no
51(...continued)
constitute debt collection activity only when the complaint seeks also to collect on the
note . . . ." (citing Reese, 678 F.3d at 1217)).
52 Former AS 34.20.070(b)(4)-(7), (c) (2003).
53 15 U.S.C. § 1692g(d); see Wood v. Lerner Sampson & Rothfuss, No.
1:13CV1669, 2014 WL 4249785, at *6 (N.D. Ohio Aug. 27, 2014) ("Plaintiff's citation
to Glazer . . . for the proposition that 'mortgage foreclosure is debt collection under the
(continued...)
-52- 7084
----------------------- Page 53-----------------------
different in the non-judicial foreclosure process - according to the Federal Trade
Commission (FTC) the term communication "does not include a notice that is required
by law as a prerequisite to enforcing a contractual obligation between creditor and
54 It is an unfair debt collection practice
debtor, by judicial or nonjudicial legal process."
to represent or imply "that nonpayment of any debt will result in the . . . sale of any
property . . . of any person unless such action is lawful and the debt collector . . . intends
to take such action,"55 but in Alaska non-judicial deed of trust foreclosure sales are
53(...continued)
Act[,]' is unavailing for purposes of the § 1692g(a) claim. . . . [Section 1692g(d)] is
perfectly clear that a legal pleading[, such as a foreclosure complaint,] is not an 'initial
communication.' " (first alteration and emphasis in original) (citation omitted) (quoting
Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 455 (6th Cir. 2013))).
54 See Statements of General Policy or Interpretation Staff Commentary On
the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097-02, 50,101 (Dec. 13, 1988)
[hereinafter FTC Staff Commentary] (emphasis added); see also Montgomery v.
Huntington Bank, 346 F.3d 693, 699 (6th Cir. 2003) (noting that the FTC's
interpretations of the FDCPA can help "shed light on the statute's meaning"); Dietz v.
Quality Loan Serv. Corp. of Wash., No. C13-5948 RJB, 2014 WL 5343774, at *2 (W.D.
Wash. Oct. 20, 2014) ("The Notice of Default and Notice of Sale(s) are statutorily
required notices under [state law]. They are not 'debt collection' activities separate from
the non judicial process."); Fouché v. Shapiro & Massey L.L.P., 575 F. Supp. 2d 776,
787-88 (S.D. Miss. 2008) (stating notice that is "necessary to foreclose under the deed
of trust" with purpose of "satisfy[ing] conditions precedent to a foreclosure on the
mortgage" subjected law firm to liability only under illegal dispossession subsection).
The court relies on the Consumer Finance Protection Bureau's recent
amicus position to the contrary in a pending Ninth Circuit Court of Appeals case. The
Bureau came into existence in 2010, after all of the events in this case took place. It
apparently supplants the FTC as the "official" FDCPA agency, but has not yet
promulgated any formal interpretations. It remains to be seen how the Bureau's amicus
position will be treated by the Ninth Circuit panel.
55 15 U.S.C. § 1692e(4) (emphasis added).
-53- 7084
----------------------- Page 54-----------------------
56
lawful. It also is an unfair debt collection practice to advertise "for sale any debt to
57
coerce payment of the debt,"
but the FTC commentary states that this provision is not
violated "by providing public notices that are required by law as a prerequisite to
58
enforcement of a security interest in connection with a debt."
Although the FDCPA was intended "to eliminate abusive debt collection
practices," it also was intended "to insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively disadvantaged."59 Alaska
Trustee complied with Alaska non-judicial foreclosure law,60 but the court nonetheless
wrongfully penalizes Alaska Trustee by affirming the superior court's FDCPA damages
award to the Ambridges.
V. Conclusion
Other courts repeatedly have refused to conflate the FDCPA's distinction
between security interest enforcers - to whom only the illegal dispossession subsection
56 See AS 34.20.070.
57 15 U.S.C. § 1692d(4).
58 FTC Staff Commentary, 53 Fed. Reg. at 50,105; see also AS 34.20.070(b)
(requiring that notices of default be recorded); AS 34.20.080(a)(2) (requiring public
notice before non-judicial foreclosure sale).
59 15 U.S.C. § 1692(e); see also id. § 1692n ("This subchapter does not annul,
alter, or affect, or exempt any person subject to [its] provisions . . . from complying with
the laws of any State with respect to debt collection practices, except to the extent that
those laws are inconsistent with any provision of this subchapter, and then only to the
extent of the inconsistency.").
60 As the court recognizes, it would be unfair to penalize Alaska Trustee for
including FDCPA disclaimer language in its notices of default; the law in this area is far
from clear, and Alaska Trustee asserted it was simply acting "out of an abundance of
caution." See Golliday v. Chase Home Fin., LLC, 761 F. Supp. 2d 629, 636 (W.D. Mich.
2011) (noting security interest enforcers are debt collectors "for the narrow purposes of
[the illegal dispossession subsection]" and therefore should not be faulted for including
FDCPA disclaimer language in letters to mortgagors).
-54- 7084
----------------------- Page 55-----------------------
61 62
applies - and debt collectors, to whom the prohibitions of the entire FDCPA apply.
In respecting this distinction, these courts have not hesitated to subject security interest
enforcers to liability under the entire FDCPA if they attempt to collect money in addition
63 In my view this is the correct FDCPA analysis, and
to foreclosing on security interests.
applying it here can lead only to the conclusion that under the facts of this case, Alaska
61 15 U.S.C. § 1692f(6).
62 See, e.g., Boyd v. J.E. Robert Co., No. 05-CV-2455(KAM)(RER), 2013 WL
5436969, at *9-12 (E.D.N.Y. Sept. 27, 2013), (declining to follow Glazer because it
"overlooks [a] basic statutory distinction" "between the 'collection of any debts' and 'the
enforcement of security interests' " (quoting 15 U.S.C. § 1692a(6))); Derisme v. Hunt
Leibert Jacobson P.C., 880 F. Supp. 2d 311, 323-26 (D. Conn. 2012); Gray v. Four Oak
Court Ass'n , 580 F. Supp. 2d 883, 887-88 (D. Minn. 2008).
63 See, e.g., Goodinv. Bank ofAm., N.A., No. 3:13-cv-102-J-32JRK, 2015 WL
3866872, at *7 (M.D. Fla. June 23, 2015) ("As the foreclosure complaint sought to
collect on the note and the security interest, it constituted debt collection activity and a
violation of the FDCPA."); Doughty v.Holder, Nos. 2:13-cv-00295-LRS to 00297-LRS,
2014 WL 220832, at *3, 6 (E.D. Wash. Jan. 21, 2014) (holding that "[s]o long as the
foreclosure proceedings, be they non-judicial or judicial, involve no more than mere
enforcement of security interests," only the illegal dispossession subsection applies).
Natividad v. Wells Fargo Bank, N.A., No. 3:12-cv-03646 JSC, 2013 WL 2299601, at *8
(N.D. Cal. May 24, 2013) ("[P]ersons who regularly or principally engage in
communications with debtors concerning their default that go beyond the statutorily
mandated communications required for [non-judicial] foreclosure may be considered
debt collectors."); Calvert v. Alessi &Koenig, LLC,Nos. 2:11-CV-00333, 00411, 00442,
& 01004-LRH-PAL, 2013 WL 592906, at *4 (D. Nev. Feb. 12, 2013) (holding letters
sent to debtor that were not part of Nevada's statutory "lien enforcement process" were
"part of the debt collection process subject to the full battery of FDCPA provisions,"
whereas other letter required by statute was "subject to the lighter regulation of FDCPA
section 1692f(6)"); Beadle v. Haughey, No. Civ.04-272-SM, 2005 WL 300060, at *3-4
(D.N.H. Feb. 9, 2005) ("Because defendants were executing a non-judicial foreclosure
proceeding rather than collecting a debt, their activities are . . . subject [only to the illegal
dispossession subsection].").
-55- 7084
----------------------- Page 56-----------------------
64
Trustee is not a debt collector subject to the entire FDCPA. I therefore dissent.
64 Accordingly, I do not address Stephen Routh's personal liability under the
FDCPA or the superior court's injunction under the UTPA.
-56- 7084
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
