finding that message left with third party for debtor to call back “Bay Area Credit Service” regarding “an important personal business matter” was not a “communication”
How later courts described this case
- finding that message left with third party for debtor to call back “Bay Area Credit Service” regarding “an important personal business matter” was not a “communication”
Written by the judges who cited it.
The opinion
Case: 20-30471 Document: 00515759016 Page: 1 Date Filed: 02/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 26, 2021
No. 20-30471 Lyle W. Cayce
Clerk
Zachary Fontana,
Plaintiff—Appellant,
versus
H O V G L L C, doing business as Bay Area Credit Service,
L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:20-CV-100
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
After a debt collector spoke with Zachary Fontana’s sister over the
phone, Fontana sued, alleging a violation of the Fair Debt Collection
Practices Act’s prohibition on communicating with third parties about a
consumer’s debt. The district court dismissed Fontana’s claim, and he now
appeals the dismissal. Because the conversation between Fontana’s sister
and the debt collector was not a “communication” as defined by the statute,
we AFFIRM the district court’s judgment.
Case: 20-30471 Document: 00515759016 Page: 2 Date Filed: 02/26/2021
No. 20-30471
I.
HOVG LLC, which does business as Bay Area Credit Service LLC,
operates a debt collection service. In early 2019, a representative of Bay Area
Credit Service attempted to call Fontana regarding a consumer debt he
allegedly owed. Fontana did not answer, and the representative did not leave
a message. Roughly ten minutes later, the representative called Fontana’s
sister’s phone number and had the following conversation:
Fontana’s sister: Hello?
Collector: Hello, good afternoon, my name is Lisa Hayes calling you
on a recording line. Am I talking to Zachary Fontana?
Fontana’s sister: This is not his number.
Collector: Oh—ah, so do you know him?
Fontana’s sister: Who . . . where are you from?
Collector: Ok, I’m calling from Bay Area Credit Service. Actually,
it’s an important personal business matter for him, ok? Can I talk to
the spouse?
Fontana’s sister: I’m not sure I want to give you his number, so what
agency are you with?
Collector: Ok, uh, that is why I’m asking. Can I talk to the spouse so
I can discuss about this?
Fontana’s sister: This is his sister, and this is not his phone number
and I do not live near him, that is why I was going to have him contact
you if it was that important.
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No. 20-30471
Collector: It is an important personal business matter for him, ok. I
will give you my call back number ma’am. You can provide my
number and tell him to call me back.
Fontana’s sister: What agency is this with?
Collector: Bay Area Credit Service.
Fontana’s sister: Ok, I’ll tell him to give you a call.
Collector: Ok, you can see my call back number on your caller ID?
Fontana’s sister: Ok, I’ll tell him to give you a call.
Collector: Please tell him to call me back on this number.
Fontana’s sister: All right.
Fontana’s sister contacted Fontana and told him to call the agency
back that same day. Fontana, “concerned and harassed by [HOVG’s] call to
his sister,” called a lawyer immediately. Later that day, he called HOVG
back, and HOVG attempted to collect Fontana’s medical debt.
In January 2020, Fontana filed a lawsuit in the Western District of
Louisiana. HOVG filed a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). The district court dismissed
Fontana’s claim with prejudice, and Fontana now appeals the dismissal of his
lawsuit.
II.
We review a district court’s grant of a motion to dismiss de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” Anderson v. Valdez, 845 F.3d 580, 589 (5th
Cir. 2016) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th
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No. 20-30471
Cir. 2008)). To succeed on a motion to dismiss, the plaintiff’s complaint
must plead sufficient facts to state a claim for relief if those facts were
accepted as true. Id. A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
The Fair Debt Collection Practices Act provides that debt collectors
“may not communicate, in connection with the collection of any debt, with
any person other than the consumer” or certain other prescribed parties to
the debt “without the prior consent of the consumer.” 15 U.S.C. § 1692c(b).
Section 1692b provides an exception for debt collectors who communicate
with third parties “for the purpose of acquiring location information about
the consumer.” Id. § 1692b. “The term ‘location information’ means a
consumer’s place of abode and his telephone number at such place, or his
place of employment.” Id. § 1692a(7).
Even when obtaining location information, a debt collector must
follow prescribed protocol. Among other things, the debt collector must “(1)
identify himself, state that he is confirming or correcting location information
concerning the consumer, and, only if expressly requested, identify his
employer; (2) not state that such consumer owes any debt; [and] (3) not
communicate with any such person more than once.” Id. § 1692b(1)–(3).
Fontana alleges that HOVG violated § 1692c(b) when it left a message
with his sister and asked her to have Fontana return HOVG’s call. According
to Fontana, HOVG called Fontana’s sister intending to contact Fontana, not
merely to confirm his phone number. Rather than explaining that it was
looking to update Fontana’s contact information, HOVG asked to speak with
him. And instead of obtaining location information, HOVG left a message
with instructions for Fontana to return its call. Fontana contends that this
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No. 20-30471
went beyond the scope of a permissible call for the purposes of obtaining
location information. He insists that HOVG communicated with his sister
“in connection with the collection of [a] debt” in violation of § 1692c(b).
Before addressing whether that alleged conversation was a permissible
call to obtain location information or not, we must first decide a related
threshold issue. Because the Act prohibits debt collectors from
“communicating” with third parties in connection with the collection of a
debt, we need to determine whether the alleged conversation qualifies as a
“communication” as defined by the statute.
The Act states that “[t]he term ‘communication’ means the
conveying of information regarding a debt directly or indirectly to any person
through any medium.” Id. § 1692a(2). Although we have interpreted other
definitions in § 1692a, see, e.g., Hester v. Graham, Bright & Smith, P.C., 289
F. App’x 35, 41 (5th Cir. 2008) (deciding whether a party qualifies as a “debt
collector” under § 1692a(6)), we have not previously addressed the scope of
this definition. However, the text makes it clear that, to be considered a
communication, any message or conversation must convey “information
regarding a debt.” 15 U.S.C. § 1692a(2).
Even taking the pleaded facts in this case in the light most favorable to
Fontana, the conversation between HOVG’s representative and Fontana’s
sister did not convey any information regarding a debt, either directly or
indirectly. HOVG’s representative did not mention Fontana’s debt at all and
did not directly provide any information about it. Instead, HOVG’s
representative mentioned “an important personal business matter.” That
does not even suggest the existence of a debt, much less provide information
about it. The closest HOVG’s representative came to giving information
about a debt was providing the name of the debt collector.
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Stating the debt collector’s name, however, does not even indirectly
convey any information regarding a debt. The smallest piece of information
about a debt that a debt collector could potentially convey to a third party is
the debt’s existence. Therefore, to indirectly convey information regarding
a debt, a conversation or message would need to, at the very least, imply that
a debt existed. Knowing the name of a debt collector does not imply the
existence of a debt. Here, the representative gave the name Bay Area Credit
Service. The average consumer likely would not know that Bay Area Credit
Service is a debt collection agency. Although the company’s name includes
the word “Credit,” “the word ‘credit’ refers to a category of financial
activities far broader than debt collection” and would not necessarily imply
the existence of a debt. Brown v. Van Ru Credit Corp., 804 F.3d 740, 742 (6th
Cir. 2015).
Even if the average consumer recognized the company’s name and
identified it as a debt collector, receiving a phone call from a debt collector
does not suggest any information about an underlying debt. Nor does it imply
that the person the debt collector wants to speak with owes a debt at all. Debt
collectors may call for any number of reasons, including to obtain location
information about another individual as contemplated by § 1692b. Or, as the
HOVG representative stated here, it could be a matter of personal business
that might be separate from the collection of a debt, such as a response to an
employment application. Simply knowing the name of the debt collection
agency does not imply that a debt exists and so does not indirectly convey
information regarding a debt.
Had HOVG provided any additional information beyond its name, the
analysis might be different. Even small bits of information can indirectly
convey information regarding a debt. For example, in Hart v. Credit Control,
LLC, the Eleventh Circuit held that a message stating, “This call is from a
debt collector” qualified as a “communication” because it “indicated that a
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No. 20-30471
debt collector was seeking to speak with [the person] as a part of its efforts to
collect a debt.” Hart v. Credit Control, LLC, 871 F.3d 1255, 1256, 1258 (11th
Cir. 2017). By stating the caller’s purpose, the debt collector in that case had
not directly conveyed any information regarding the underlying debt to be
collected. Yet it had indirectly conveyed the information that such a debt
existed and implied that the call was in connection with that debt.
That did not happen in this case. HOVG’s representative gave only
the agency’s name and no other information regarding its business or the true
reason for its call. The representative told Fontana’s sister that the call was
about an “important personal business matter,” which, even in the light most
favorable to Fontana, does not imply that a debt existed. Without more,
simply knowing the name of a debt collector does not indirectly convey
information regarding the debt.
We find support for our interpretation in the opinions of our sister
circuits that involved similar facts. In one case where a debt collector’s voice
message included only the name of the debt collector but no information
regarding the debt, the Sixth Circuit held that “[t]o convey information
regarding a debt, a communication must at a minimum imply the existence
of a debt. Otherwise, whatever information is conveyed cannot be
understood as ‘regarding a debt.’” Brown, 804 F.3d at 742. The Seventh
and Tenth Circuits have also agreed that “a debt collector’s message must at
least imply the existence of a debt to meet the Act’s definition of
‘communication.’” Lavallee v. Med-1 Sols., LLC, 932 F.3d 1049, 1055 (7th
Cir. 2019) (holding that a message that contained only the name of the debt
collector was not a “communication” under the Act); accord Marx v. Gen.
Revenue Corp., 668 F.3d 1174, 1177 (10th Cir. 2011) (holding that a fax that
contained the name of the debt collector and the debtor’s account number
was not a “communication” because it could not “reasonably be construed
to imply a debt”).
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No. 20-30471
In this case, HOVG’s representative did not convey any information
to Fontana’s sister that would imply a debt existed. The representative
revealed only the name of the debt collector. But conveying information
about a debt collector is not the same as conveying information about a debt.
Because the conversation between HOVG’s representative and Fontana’s
sister did not even imply the existence of a debt, much less convey
information about one, it was not a “communication” as defined by the Act.
Fontana has therefore failed to adequately plead facts that suggest a plausible
violation of the Fair Debt Collection Practices Act. Accordingly, we do not
need to address whether the conversation was made “in connection with the
collection of any debt.” 15 U.S.C. § 1692c(b).
III.
Because Fontana has failed to plead sufficient facts to establish a
violation of the Fair Debt Collection Practices Act, we AFFIRM the district
court’s judgment.
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