Obduskey v. McCarthy & Holthus LLP

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

OBDUSKEY v. MCCARTHY & HOLTHUS LLP

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 17–1307. Argued January 7, 2019—Decided March 20, 2019

Law firm McCarthy & Holthus LLP was hired to carry out a nonjudicial

foreclosure on a Colorado home owned by petitioner Dennis Obdus-

key. McCarthy sent Obduskey correspondence related to the foreclo-

sure. Obduskey responded with a letter invoking a federal Fair Debt

Collection Practices Act (FDCPA or Act) provision, 15 U. S. C.

§1692g(b), which provides that if a consumer disputes the amount of

a debt, a “debt collector” must “cease collection” until it “obtains veri-

fication of the debt” and mails a copy to the debtor. Instead, McCar-

thy initiated a nonjudicial foreclosure action. Obduskey sued, alleg-

ing that McCarthy failed to comply with the FDCPA’s verification

procedure. The District Court dismissed on the ground that McCar-

thy was not a “debt collector” within the meaning of the FDCPA, and

the Tenth Circuit affirmed.

Held: A business engaged in no more than nonjudicial foreclosure pro-

ceedings is not a “debt collector” under the FDCPA, except for the

limited purpose of §1692f(6). Pp. 6–14.

(a) The FDCPA regulates “‘debt collector[s].’” §1692a(6). Relevant

here, the definition of debt collector has two parts. The Act first sets

out the primary definition of the term “debt collector”: a “ ‘debt collec-

tor,’ ” it says, is “any person . . . in any business the principal purpose

of which is the collection of any debts, or who regularly collects or at-

tempts to collect, directly or indirectly, debts.” Ibid. The Act then

sets forth the limited-purpose definition, which states that “[f]or the

purpose of section 1692f(6) . . . [the] term [debt collector] also includes

any person . . . in any business the principal purpose of which is the

enforcement of security interests.” It is undisputed that McCarthy is,

by virtue of its role enforcing security interests, at least subject to the

specific prohibitions contained in §1692f(6). But only if McCarthy

2 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

Syllabus

falls within the primary definition’s scope do the Act’s other provi-

sions, including those at issue here, apply. Pp. 6–7.

(b) Three considerations lead to the conclusion that McCarthy is

not subject to the Act’s main coverage. First, and most decisive, is

the text of the Act itself. The limited purpose definition says that

“[f]or the purpose of section 1692f(6)” a debt collector “also includes” a

business, like McCarthy, “the principal purpose of which is the en-

forcement of security interests.” §1692a(6) (emphasis added). This

phrase, particularly the word “also,” strongly suggests that security-

interest enforcers do not fall within the scope of the primary defini-

tion. If they did, the limited purpose definition would be superfluous.

By contrast, under a reading that gives effect to every word of the

limited-purpose definition, the FDCPA’s debt-collector-related prohi-

bitions (with the exception of §1692f(6)) do not apply to those who,

like McCarthy, are engaged in no more than security-interest en-

forcement. Second, Congress may well have chosen to treat security-

interest enforcement differently from ordinary debt collection in

order to avoid conflicts with state nonjudicial foreclosure schemes.

Third, this Court’s reading is supported by legislative history, which

suggests that the Act’s present language was the product of a com-

promise between competing versions of the bill, one which would

have totally excluded security-interest enforcement from the Act, and

another which would have treated it like ordinary debt collection.

Pp. 7–10.

(c) Obduskey’s counterarguments are unconvincing. First, he sug-

gests that the limited-purpose definition is not superfluous because it

was meant to cover “repo men”—a category of security-interest en-

forcers who he says would not otherwise fall within the primary defi-

nition of “debt collector.” The limited-purpose definition, however,

speaks broadly of “the enforcement of security interests,” §1692a(6),

not “the enforcement of security interests in personal property.” Sec-

ond, Obduskey claims that the Act’s venue provision, §1692i(a),

which covers legal actions brought by “debt collectors” to enforce in-

terests in real property, only makes sense if those who enforce securi-

ty interests in real property are debt collectors subject to all prohibi-

tions and requirements that come with that designation. The venue

provision, however, does nothing to alter the definition of a debt col-

lector. Third, Obduskey argues that McCarthy engaged in more than

security-interest enforcement by sending notices that any ordinary

homeowner would understand as an attempt to collect a debt. Here,

however, the notices sent by McCarthy were antecedent steps re-

quired under state law to enforce a security interest, and the Act’s

(partial) exclusion of “the enforcement of security interests” must also

exclude the legal means required to do so. Finally, Obduskey fears

Cite as: 586 U. S. ____ (2019) 3

Syllabus

that this Court’s decision will permit creditors and their agents to

engage in a host of abusive practices forbidden by the Act. But the

Court must enforce the statute that Congress enacted, and Congress

is free expand the FDCPA’s reach if it wishes. Pp. 10–14.

879 F. 3d 1216, affirmed.

BREYER, J., delivered the opinion for a unanimous Court. SO-

TOMAYOR,J., filed a concurring opinion.

Cite as: 586 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1307

_________________

DENNIS OBDUSKEY, PETITIONER v.

MCCARTHY & HOLTHUS LLP

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[March 20, 2019]

JUSTICE BREYER delivered the opinion of the Court.

The Fair Debt Collection Practices Act regulates “ ‘debt

collector[s].’ ” 15 U. S. C. §1692a(6); see 91 Stat. 874, 15

U. S. C. §1692 et seq. A “ ‘debt collector,’ ” the Act says, is

“any person . . . in any business the principal purpose of

which is the collection of any debts, or who regularly

collects or attempts to collect, directly or indirectly, debts.”

§1692a(6). This definition, however, goes on to say that

“[f]or the purpose of section 1692f(6)” (a separate provision

of the Act), “[the] term [debt collector] also includes any

person . . . in any business the principal purpose of which

is the enforcement of security interests.” Ibid.

The question before us concerns this last sentence. Does

it mean that one principally involved in “the enforcement

of security interests” is not a debt collector (except “[f ]or

the purpose of section 1692f(6)”)? If so, numerous other

provisions of the Act do not apply. Or does it simply rein-

force the fact that those principally involved in the en-

forcement of security interests are subject to §1692f(6) in

addition to the Act’s other provisions?

In our view, the last sentence does (with its §1692f(6)

2 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

Opinion of the Court

exception) place those whose “principal purpose . . . is the

enforcement of security interests” outside the scope of the

primary “debt collector” definition, §1692a(6), where the

business is engaged in no more than the kind of security-

interest enforcement at issue here—nonjudicial foreclo-

sure proceedings.

I

A

When a person buys a home, he or she usually borrows

money from a lending institution, such as a bank. The

resulting debt is backed up by a “mortgage”—a security

interest in the property designed to protect the creditor’s

investment. Restatement (Third) of Property: Mortgages

§1.1 (1996) (Restatement). (In some States, this security

interest is known as a “deed of trust,” though for present

purposes the difference is immaterial. See generally ibid.)

The loan likely requires the homeowner to make monthly

payments. And if the homeowner defaults, the mortgage

entitles the creditor to pursue foreclosure, which is “the

process in which property securing a mortgage is sold to

pay off the loan balance due.” 2 B. Dunaway, Law of

Distressed Real Estate §15:1 (2018) (Dunaway).

Every State provides some form of judicial foreclosure: a

legal action initiated by a creditor in which a court super-

vises sale of the property and distribution of the proceeds.

Id., §16:1. These procedures offer various protections for

homeowners, such as the right to notice and to protest the

amount a creditor says is owed. Id., §§16:17, 16:20; Re-

statement §8.2. And in the event that the foreclosure sale

does not yield the full amount due, a creditor pursuing a

judicial foreclosure may sometimes obtain a deficiency

judgment, that is, a judgment against the homeowner for

the unpaid balance of a debt. National Consumer Law

Center (NCLC), Foreclosures and Mortgage Servicing

§§12.3.1–2 (5th ed. 2014).

Cite as: 586 U. S. ____ (2019) 3

Opinion of the Court

About half the States also provide for what is known as

nonjudicial foreclosure, where notice to the parties and

sale of the property occur outside court supervision. 2

Dunaway §17:1. Under Colorado’s form of nonjudicial

foreclosure, at issue here, a creditor (or more likely its

agent) must first mail the homeowner certain preliminary

information, including the telephone number for the Colo-

rado foreclosure hotline. Colo. Rev. Stat. §38–38–102.5(2)

(2018). Thirty days later, the creditor may file a “notice of

election and demand” with a state official called a “public

trustee.” §38–38–101. The public trustee records this

notice and mails a copy, alongside other materials, to the

homeowner. §§38–38–102, 38–38–103. These materials

give the homeowner information about the balance of the

loan, the homeowner’s right to cure the default, and the

time and place of the foreclosure sale. §§38–38–101(4),

38–38–103. Assuming the debtor does not cure the default

or declare bankruptcy, the creditor may then seek an

order from a state court authorizing the sale. Colo. Rule

Civ. Proc. 120 (2018); see Colo. Rev. Stat. §38–38–105.

(Given this measure of court involvement, Colorado’s

“nonjudicial” foreclosure process is something of a hybrid,

though no party claims these features transform Colora-

do’s nonjudicial scheme into a judicial one.) In court, the

homeowner may contest the creditor’s right to sell the

property, and a hearing will be held to determine whether

the sale should go forward. Colo. Rules Civ. Proc.

120(c), (d).

If the court gives its approval, the public trustee may

then sell the property at a public auction, though a home-

owner may avoid a sale altogether by curing the default up

until noon on the day before. Colo. Rev. Stat. §§38–38–

110, 38–38–104(VI)(b). If the sale goes forward and the

house sells for more than the amount owed, any profits go

first to lienholders and then to the homeowner. §38–38–

111. If the house sells for less than what is owed, the

4 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

Opinion of the Court

creditor cannot hold the homeowner liable for the balance

due unless it files a separate action in court and obtains a

deficiency judgment. See §38–38–106(6); Bank of America

v. Kosovich, 878 P. 2d 65, 66 (Colo. App. 1994). Other

States likewise prevent creditors from obtaining deficiency

judgments in nonjudicial foreclosure proceedings. Re-

statement §8.2. And in some States, pursuing nonjudicial

foreclosure bars or curtails a creditor’s ability to obtain a

deficiency judgment altogether. NCLC, Foreclosures and

Mortgage Servicing §12.3.2.

B

In 2007, petitioner Dennis Obduskey bought a home in

Colorado with a $329,940 loan secured by the property.

About two years later, Obduskey defaulted.

In 2014, Wells Fargo Bank, N. A., hired a law firm,

McCarthy & Holthus LLP, the respondent here, to act as

its agent in carrying out a nonjudicial foreclosure. Accord-

ing to the complaint, McCarthy first mailed Obduskey a

letter that said it had been “instructed to commence fore-

closure” against the property, disclosed the amount out-

standing on the loan, and identified the creditor, Wells

Fargo. App. 37–38; see id., at 23. The letter purported to

provide notice “[p]ursuant to, and in compliance with,”

both the Fair Debt Collection Practices Act (FDCPA) and

Colorado law. Id., at 37. (The parties seem not to dispute

that this and other correspondence from McCarthy was

required under state law. Because that is a question of

Colorado law not briefed by the parties before us nor

passed on by the courts below, we proceed along the same

assumption.) Obduskey responded with a letter invoking

§1692g(b) of the FDCPA, which provides that if a con-

sumer disputes the amount of a debt, a “debt collector” must

“cease collection” until it “obtains verification of the debt”

and mails a copy to the debtor.

Yet, Obduskey alleges, McCarthy neither ceased collect-

Cite as: 586 U. S. ____ (2019) 5

Opinion of the Court

ing on the debt nor provided verification. App. 22–23.

Instead, the firm initiated a nonjudicial foreclosure action

by filing a notice of election and demand with the county

public trustee. Ibid.; see id., at 39–41. The notice stated

the amount due and advised that the public trustee would

“sell [the] property for the purpose of paying the indebted-

ness.” Id., at 40.

Obduskey then filed a lawsuit in federal court alleging

that the firm had violated the FDCPA by, among other

things, failing to comply with the verification procedure.

Id., at 29. The District Court dismissed the suit on the

ground that the law firm was not a “debt collector” within

the meaning of the Act, so the relevant Act requirements

did not apply. Obduskey v. Wells Fargo, 2016 WL

4091174, *3 (D Colo., July 19, 2016).

On appeal, the Court of Appeals for the Tenth Circuit

affirmed the dismissal, concluding that the “mere act of

enforcing a security interest through a non-judicial fore-

closure proceeding does not fall under” the Act. Obduskey

v. Wells Fargo, 879 F. 3d 1216, 1223 (2018).

Obduskey then petitioned for certiorari. In light of

different views among the Circuits about application of the

FDCPA to nonjudicial foreclosure proceedings, we granted

the petition. Compare ibid. and Vien-Phuong Thi Ho v.

ReconTrust Co., NA, 858 F. 3d 568, 573 (CA9 2016) (hold-

ing that an entity whose only role is the enforcement of

security interests is not a debt collector under the Act),

with Kaymark v. Bank of America, N. A., 783 F. 3d 168,

179 (CA3 2015) (holding that such an entity is a debt

collector for the purpose of all the Act’s requirements),

Glazer v. Chase Home Fin. LLC, 704 F. 3d 453, 461 (CA6

2013) (same), and Wilson v. Draper & Goldberg,

P. L. L. C., 443 F. 3d 373, 376 (CA4 2006) (same).

6 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

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II

A

The FDCPA’s definitional section, 15 U. S. C. §1692a,

defines a “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.” §1692a(5) (emphasis

added).

The Act then sets out the definition of the term “debt

collector.” §1692a(6). The first sentence of the relevant

paragraph, which we shall call the primary definition,

says that the term “debt collector”:

“means any person . . . in any business the principal

purpose of which is the collection of any debts, or who

regularly collects or attempts to collect, directly or in-

directly, debts owed or asserted to be owed or due an-

other.” Ibid.

The third sentence, however, provides what we shall call

the limited-purpose definition:

“For the purpose of section 1692f(6) [the] term [debt

collector] also includes any person . . . in any business

the principal purpose of which is the enforcement of

security interests.” Ibid.

The subsection to which the limited-purpose definition

refers, §1692f(6), prohibits a “debt collector” from:

“Taking 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 . . . ;

“(B) there is no present intention to take possession

of the property; or

Cite as: 586 U. S. ____ (2019) 7

Opinion of the Court

“(C) the property is exempt by law from such dis-

possession or disablement.”

The rest of the Act imposes myriad other requirements

on debt collectors. For example, debt collectors may not

use or threaten violence, or make repetitive annoying

phone calls. §1692d. Nor can debt collectors make false,

deceptive, or misleading representations in connection

with a debt, like misstating a debt’s “character, amount, or

legal status.” §1692e. And, as we have mentioned, if a

consumer disputes the amount of a debt, a debt collector

must “cease collection” until it “obtains verification of the

debt” and mails a copy to the debtor. §1692g(b).

No one here disputes that McCarthy is, by virtue of its

role enforcing security interests, at least subject to the

specific prohibitions contained in §1692f(6). The question

is whether other provisions of the Act apply. And they do

if, but only if, McCarthy falls within the scope of the Act’s

primary definition of “debt collector.”

B

Three considerations lead us to conclude that McCarthy

is not subject to the main coverage of the Act.

First, and most decisive, is the text of the Act itself. As

a preliminary matter, we concede that if the FDCPA

contained only the primary definition, a business engaged

in nonjudicial foreclosure proceedings would qualify as a

debt collector for all purposes. We have explained that a

home loan is an obligation to pay money, and the purpose

of a mortgage is to secure that obligation. See supra, at 2.

Foreclosure, in turn, is “the process in which property

securing a mortgage is sold to pay off the loan balance

due.” 2 Dunaway §15:1. In other words, foreclosure is a

means of collecting a debt. And a business pursuing non-

judicial foreclosures would, under the capacious language

of the Act’s primary definition, be one that “regularly

collects or attempts to collect, directly or indirectly, debts.”

8 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

Opinion of the Court

§1692a(6).

It is true that, as McCarthy points out, nonjudicial

foreclosure does not seek “a payment of money from the

debtor” but rather from sale of the property itself. Brief

for Respondent 17 (emphasis added). But nothing in the

primary definition requires that payment on a debt come

“from a debtor.” The statute speaks simply of the “collec-

tion of any debts . . . owed or due.” §1692a(6). Moreover,

the provision sweeps in both “direc[t]” and “indirec[t]” debt

collection. Ibid. So, even if nonjudicial foreclosure were

not a direct attempt to collect a debt, because it aims to

collect on a consumer’s obligation by way of enforcing a

security interest, it would be an indirect attempt to collect

a debt.

The Act does not, however, contain only the primary

definition. And the limited-purpose definition poses a

serious, indeed an insurmountable, obstacle to subjecting

McCarthy to the main coverage of the Act. It says that

“[f]or the purpose of section 1692f(6)” a debt collector “also

includes” a business, like McCarthy, “the principal pur-

pose of which is the enforcement of security interests.”

§1692a(6) (emphasis added). This phrase, particularly the

word “also,” strongly suggests that one who does no more

than enforce security interests does not fall within the

scope of the general definition. Otherwise why add this

sentence at all?

It is logically, but not practically, possible that Congress

simply wanted to emphasize that the definition of “debt

collector” includes those engaged in the enforcement of

security interests. But why then would Congress have

used the word “also”? And if security-interest enforcers

are covered by the primary definition, why would Con-

gress have needed to say anything special about §1692f(6)?

After all, §1692f(6), just like all the provisions applicable

to debt collectors, would have already applied to those who

enforce security interests. The reference to §1692f(6)

Cite as: 586 U. S. ____ (2019) 9

Opinion of the Court

would on this view be superfluous, and we “generally

presum[e] that statutes do not contain surplusage.” Ar-

lington Central School Dist. Bd. of Ed. v. Murphy, 548

U. S. 291, 299, n. 1 (2006). By contrast, giving effect to

every word of the limited-purpose definition narrows the

primary definition, so that the debt-collector-related pro-

hibitions of the FDCPA (with the exception of §1692f(6))

do not apply to those who, like McCarthy, are engaged in

no more than security-interest enforcement.

Second, we think Congress may well have chosen to

treat security-interest enforcement differently from ordi-

nary debt collection in order to avoid conflicts with state

nonjudicial foreclosure schemes. As Colorado’s law makes

clear, supra, at 3–4, state nonjudicial foreclosure laws

provide various protections designed to prevent sharp

collection practices and to protect homeowners, see 2

Dunaway §17:1. And some features of these laws are in

tension with aspects of the Act. For example, the FDCPA

broadly limits debt collectors from communicating with

third parties “in connection with the collection of any

debt.” §1692c(b). If this rule were applied to nonjudicial

foreclosure proceedings, then advertising a foreclosure

sale—an essential element of such schemes—might run

afoul of the FDCPA. Given that a core purpose of publiciz-

ing a sale is to attract bidders, ensure that the sale price is

fair, and thereby protect the borrower from further liabil-

ity, the result would hardly benefit debtors. See 2 Duna-

way §17:4. To be sure, it may be possible to resolve these

conflicts without great harm to either the Act or state

foreclosure schemes. See Heintz v. Jenkins, 514 U. S. 291,

296–297 (1995) (observing that the FDCPA’s protections

may contain certain “implici[t] exception[s]”). But it is

also possible, in light of the language it employed, that

Congress wanted to avoid the risk of such conflicts

altogether.

Third, for those of us who use legislative history to help

10 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

Opinion of the Court

interpret statutes, the history of the FDCPA supports our

reading. When drafting the bill, Congress considered a

version that would have subjected security-interest en-

forcers to the full coverage of the Act. That version de-

fined a debt collector as “any person who engages in any

business the principal purpose of which is the collection of

any debt or enforcement of security interests.” S. 918, 95th

Cong., 1st Sess., §803(f ) (1977) (emphasis added). A dif-

ferent version of the bill, however, would have totally

excluded from the Act’s coverage “any person who enforces

or attempts to enforce a security interest in real or per-

sonal property.” S. 1130, 95th Cong., 1st Sess., §802(8)(E)

(1977). Given these conflicting proposals, the Act’s pre-

sent language has all the earmarks of a compromise: The

prohibitions contained in §1692f(6) will cover security-

interest enforcers, while the other “debt collector” provi-

sions of the Act will not.

These considerations convince us that, but for §1692f(6),

those who engage in only nonjudicial foreclosure proceed-

ings are not debt collectors within the meaning of the Act.

III

Obduskey makes several arguments to the contrary.

But, on balance, we do not find them determinative.

First, Obduskey acknowledges that unless the limited-

purpose definition is superfluous, it must make some kind

of security-interest enforcer a “debt collector” who would

not otherwise fall within the primary definition. Reply

Brief 11–13. But, according to Obduskey, “repo men”—

those who seize automobiles and other personal property

in response to nonpayment—fit the bill. See Black’s Law

Dictionary 1493 (10th ed. 2014) (explaining that “repo” is

short for “repossession,” which means “retaking property;

esp., a seller’s retaking of goods sold on credit when the

buyer has failed to pay for them”). This is so, he says,

because repossession often entails only “limited communi-

Cite as: 586 U. S. ____ (2019) 11

Opinion of the Court

cation” with the debtor, as when the repo man sneaks up

and “tows a car in the middle of the night.” Brief for

Petitioner 25–26, and n. 13. And because, according to

Obduskey, the language of §1692f(6), which forbids

“[t]aking or threatening to take any nonjudicial action to

effect dispossession or disablement of property,” applies

more naturally to the seizure of personal property than to

nonjudicial foreclosure. (Emphasis added.)

But we do not see why that is so. The limited-purpose

provision speaks broadly of “the enforcement of security

interests,” §1692a(6), not “the enforcement of security

interests in personal property”; if Congress meant to cover

only the repo man, it could have said so. Moreover, Ob-

duskey’s theory fails to save the limited-purpose definition

from superfluity. As we have just discussed, supra, at 7–

8, if the Act contained only the primary definition, en-

forcement of a security interest would at least be an indi-

rect collection of a debt. The same may well be true of

repo activity, a form of security-interest enforcement, as

the point of repossessing property that secures a debt is to

collect some or all of the value of the defaulted debt. And

while Obduskey argues that the language of §1692f(6) fits

more comfortably with repossession of personal property

than nonjudicial foreclosure, we think it at least plausible

that “threatening” to foreclose on a consumer’s home

without having legal entitlement to do so is the kind of

“nonjudicial action” without “present right to possession”

prohibited by that section. §1692f(6)(A). (We need not,

however, here decide precisely what conduct runs afoul of

§1692f(6).)

We are also unmoved by Obduskey’s argument that

repossession would not fall under the primary definition

because it generally involves only limited communication

with the debtor. For one thing, while some of the

FDCPA’s substantive protections apply where there has

been a “communicat[ion]” with a consumer, see, e.g.,

12 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

Opinion of the Court

§1692c, the primary definition of debt collector turns on

the “collection of . . . debts,” without express reference to

communication, §1692a(6). For another, while Obduskey

imagines a silent repo man striking in the dead of night,

state law often requires communication with a debtor

during the repossession process, such as notifying a con-

sumer of a sale. NCLC, Repossessions §10.4 (9th ed.

2017).

Second, Obduskey points to the Act’s venue provision,

15 U. S. C. §1692i(a), which states that “[a]ny debt collec-

tor who brings any legal action on a debt against any

consumer shall . . . in the case of an action to enforce an

interest in real property securing the consumer’s obliga-

tion, bring such action only in a judicial district” where the

“property is located.” (Emphasis added.) This provision,

he says, makes clear that a person who judicially enforces

a real-property-related security interest is a debt collector;

hence, a person who nonjudicially enforces such an inter-

est must also be a debt collector. Indeed, he adds, this

subsection “only makes sense” if those who enforce secu-

rity interests in real property are debt collectors subject to

all prohibitions and requirements that come with that

designation. Brief for Petitioner 21.

This argument, however, makes too much of too little.

To begin with, the venue section has no direct application

in this case, for here we consider nonjudicial foreclosure.

And whether those who judicially enforce mortgages fall

within the scope of the primary definition is a question we

can leave for another day. See 879 F. 3d, at 1221–1222

(noting that the availability of a deficiency judgment is a

potentially relevant distinction between judicial and non-

judicial foreclosures).

More to the point, the venue provision does nothing to

alter the definition of a debt collector. Rather, it applies

whenever a “debt collector” brings a “legal action . . . to

enforce an interest in real property.” §1692i(a)(1). In

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Opinion of the Court

other words, the provision anticipates that a debt collector

can bring a judicial action respecting real property, but it

nowhere says that an entity is a debt collector because it

brings such an action. Obduskey suggests that under our

interpretation this provision will capture a null set. We

think not. A business that qualifies as a debt collector

based on other activities (say, because it “regularly collects

or attempts to collect” unsecured credit card debts,

§1692a(6)) would have to comply with the venue provi-

sion if it also filed “an action to enforce an interest in

real property,” §1692i(a)(1). Here, however, the only

basis alleged for concluding that McCarthy is a debt

collector under the Act is its role in nonjudicial foreclosure

proceedings.

Third, Obduskey argues that even if “simply enforcing a

security interest” falls outside the primary definition,

McCarthy engaged in more than security-interest en-

forcement by sending notices that any ordinary homeowner

would understand as an attempt to collect a debt backed

up by the threat of foreclosure. Brief for Petitioner 15–16;

see Reply Brief 13. We do not doubt the gravity of a letter

informing a homeowner that she may lose her home un-

less she pays her outstanding debts. But here we assume

that the notices sent by McCarthy were antecedent steps

required under state law to enforce a security interest.

See supra, at 4. Indeed, every nonjudicial foreclosure

scheme of which we are aware involves notices to the

homeowner. See 2 Dunaway §17:4 (describing state pro-

cedures concerning notice of sale). And because he who

wills the ends must will the necessary means, we think

the Act’s (partial) exclusion of “the enforcement of security

interests” must also exclude the legal means required to

do so. This is not to suggest that pursuing nonjudicial

foreclosure is a license to engage in abusive debt collection

practices like repetitive nighttime phone calls; enforcing a

security interest does not grant an actor blanket immunity

14 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

Opinion of the Court

from the Act. But given that we here confront only steps

required by state law, we need not consider what other

conduct (related to, but not required for, enforcement of a

security interest) might transform a security-interest

enforcer into a debt collector subject to the main coverage

of the Act.

Finally, Obduskey fears that our decision will open a

loophole, permitting creditors and their agents to engage

in a host of abusive practices forbidden by the Act. States,

however, can and do guard against such practices, for

example, by requiring notices, review by state officials

such as the public trustee, and limited court supervision.

See supra, at 3–4, 9. Congress may think these state

protections adequate, or it may choose to expand the reach

of the FDCPA. Regardless, for the reasons we have given,

we believe that the statute exempts entities engaged in no

more than the “enforcement of security interests” from the

lion’s share of its prohibitions. And we must enforce the

statute that Congress enacted.

For these reasons, the judgment of the Court of

Appeals is

Affirmed.

Cite as: 586 U. S. ____ (2019) 1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1307

_________________

DENNIS OBDUSKEY, PETITIONER v.

MCCARTHY & HOLTHUS LLP

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[March 20, 2019]

JUSTICE SOTOMAYOR, concurring.

I join the Court’s opinion, which makes a coherent whole

of a thorny section of statutory text. I write separately to

make two observations: First, this is a close case, and

today’s opinion does not prevent Congress from clarifying

this statute if we have gotten it wrong. Second, as the

Court makes clear, “enforcing a security interest does not

grant an actor blanket immunity from the” mandates of

the Fair Debt Collection Practices Act (FDCPA), 15

U. S. C. §1692 et seq. See ante, at 13–14.

This case turns on two sentences that, put together,

read in relevant part:

“[1] The term ‘debt collector’ means any person . . . in

any business the principal purpose of which is the col-

lection of any debts, or who regularly collects or at-

tempts to collect, directly or indirectly, debts . . . . [2]

For the purpose of section 1692f(6) of this title, such

term also includes any person . . . in any business the

principal purpose of which is the enforcement of secu-

rity interests.” §1692a(6).

As the Court recognizes, if the first sentence were the only

text before us, nonjudicial foreclosure plainly would qual-

ify as debt collection—after all, foreclosure itself “is a

means of collecting a debt,” ante, at 7, whether “directly or

2 OBDUSKEY v. MCCARTHY & HOLTHUS LLP

SOTOMAYOR, J., concurring

indirectly,” §1692a(6). That may be because a house can

be sold—thus satisfying the debt with the proceeds—but it

may also be because the initiation of a foreclosure itself

sends a clear message: “[P]ay up or lose your house.” Brief

for Petitioner 17; see Alaska Trustee, LLC v. Ambridge,

372 P. 3d 207, 217–218 (Alaska 2016); Glazer v. Chase

Home Finance LLC, 704 F. 3d 453, 461 (CA6 2013).

The problem for Obduskey’s reading, as the Court ex-

plains, is the second sentence, which then becomes super-

fluous if all security-interest enforcement is already cov-

ered by sentence one. See ante, at 8–9. To be clear, there

is a reasonable argument that the second sentence covers

security-interest enforcers who are not already covered by

the first sentence: Under this argument, those additional

security-interest enforcers are “people who engage in the

business of repossessing property, whose business does not

primarily involve communicating with debtors in an effort

to secure payment of debts,” Piper v. Portnoff Law Assoc.,

Ltd., 396 F. 3d 227, 236 (CA3 2005); see also Alaska Trus-

tee, 372 P. 3d, at 219–220; Glazer, 704 F. 3d, at 463–464,

such as “the repo man [who] sneaks up and ‘tows a car in

the middle of the night,’ ” ante, at 11. But, as the Court

explains, that reading does not resolve the surplusage

problem, because even such repossession agencies engage

in a means of collecting debts “indirectly”—which means

that they are similarly situated to entities pursuing non-

judicial foreclosures after all. See ante, at 10–12.

All the same, this is too close a case for me to feel cer-

tain that Congress recognized that this complex statute

would be interpreted the way that the Court does today.

While States do regulate nonjudicial foreclosures, see ante,

at 9, the extent and method of those protections can vary

widely, and the FDCPA was enacted not only “to eliminate

abusive debt collection practices” but also “to promote

consistent State action to protect consumers against debt

collection abuses,” §1692(e); see also §1692n (pre-empting

Cite as: 586 U. S. ____ (2019) 3

SOTOMAYOR, J., concurring

inconsistent state laws while exempting state consumer

protections that are “greater than the protection provided

by [the FDCPA]”). Today’s opinion leaves Congress free to

make clear that the FDCPA fully encompasses entities

pursuing nonjudicial foreclosures and regulates security-

interest enforcers like repossession agencies in only the

more limited way addressed in §1692f(6). That too would

be consistent with the FDCPA’s broad, consumer-

protective purposes. See §1692(e).

Separately, I note that the Court’s opinion recognizes

that the question before us involves “no more than the

kind of security interest enforcement at issue here,” ante,

at 2, which means an entity that takes “only steps re-

quired by state law,” ante, at 14. The Court rightly notes,

therefore, that nothing in today’s opinion is “to suggest

that pursuing nonjudicial foreclosure is a license to engage

in abusive debt collection practices like repetitive

nighttime phone calls; enforcing a security interest does

not grant an actor blanket immunity from the Act.” Ante,

at 13–14. Indeed, in addition to the unnecessary and

abusive practices that the Court notes, I would see as a

different case one in which the defendant went around

frightening homeowners with the threat of foreclosure

without showing any meaningful intention of ever actually

following through. There would be a question, in such a

case, whether such an entity was in fact a “business the

principal purpose of which is the enforcement of security

interests,” see §1692a(6), or whether it was simply using

that label as a stalking horse for something else.

Because the Court rightly cabins its holding to the kinds

of good-faith actions presented here and because we are

bound to apply Congress’ statutes as best we can under-

stand them, I concur in the Court’s opinion.