Osure Brown v. Transworld Systems, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSURE BROWN, No. 22-35244

Plaintiff-Appellant,

v. D.C. No. 2:20-cv-

00669-DGE

TRANSWORLD SYSTEMS, INC.;

PATENAUDE & FELIX APC; US

BANK, N.A.; NATIONAL OPINION

COLLEGIATE STUDENT LOAN

TRUST 2004-1; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2004-2; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2005-1; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2005-2; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2005-3; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2006-1; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2006-2; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2007-1; NATIONAL

COLLEGIATE STUDENT LOAN

TRUST 2007-2,

Defendants-Appellees.

2 BROWN V. TRANSWORLD SYSTEMS, INC.

Appeal from the United States District Court

for the Western District of Washington

David G. Estudillo, District Judge, Presiding

Argued and Submitted February 17, 2023

Seattle, Washington

Filed July 14, 2023

Before: William A. Fletcher, Richard A. Paez, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Paez;

Concurrence by Judge VanDyke

SUMMARY *

Fair Debt Collection Practices Act / Bankruptcy Law

The panel affirmed in part and reversed in part the

district court’s dismissal, for failure to state a claim, of an

action brought by Osure Brown, a student loan borrower

who had received a bankruptcy discharge, alleging that

defendants’ attempts to collect debts that were discharged in

bankruptcy violated the Fair Debt Collection Practices Act

and the Bankruptcy Code.

Affirming the dismissal of Brown’s claims that were

based on a violation of his bankruptcy discharge order, the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. TRANSWORLD SYSTEMS, INC. 3

panel reiterated that Walls v. Wells Fargo Bank, 276 F.3d

502 (9th Cir. 2002), precludes FDCPA claims and other

claims based on violations of Bankruptcy Code § 524.

The panel reversed the district court’s dismissal, as

barred by the one-year statute of limitations, of Brown’s

remaining FDCPA claim based on the theory that defendants

knowingly brought a meritless post-discharge debt

collection lawsuit because they knew they could not prove

ownership of Brown’s debts. Agreeing with other circuits,

the panel held that certain litigation acts, including service

and filing, can constitute distinct violations of the FDCPA

that each trigger the statute of limitations. In determining

which acts constitute independent violations, the court

considers (1) the debt collector’s last opportunity to comply

with the statute and (2) whether the date of the violation is

easily ascertainable. The panel concluded that Brown

sufficiently alleged one post-filing FDCPA violation in the

filing of an affidavit that presented a new basis, not

contained in the complaint, to show that defendants owned

the debts. Disagreeing with the Tenth Circuit, the panel

further held that when service occurs before the filing of a

suit, filing constitutes an independent violation of the

FDCPA.

Concurring in the judgment, Judge VanDyke agreed

with the outcome and much of the reasoning of the majority

opinion, but he wrote that the rule announced in Part III.B of

the majority opinion—that when service occurs before the

filing of a suit, filing constitutes an independent violation of

the FDCPA—was an unnecessary conclusion and failed to

anticipate the intricacies that future cases are bound to raise.

4 BROWN V. TRANSWORLD SYSTEMS, INC.

COUNSEL

Scott C. Borison (argued), Borison Firm LLC, Casper,

Wyoming; Phillip Robinson, Consumer Law Center LLC,

Silver Spring, Maryland; Christina L. Henry, Henry &

DeGraaff PS, Seattle, Washington; for Plaintiff-Appellant.

Albert J. Rota (argued), Jones Day, Dallas, Texas; Justin H.

Homes (argued), Bryan C. Shartle, and Bradley J. St.

Angelo, Sessions Israel & Shartle LLC, Metaire, Louisiana;

Emily J. Harris and Benjamin C. Byers, Coor Cronin LLP,

Seattle, Washington; Marc Rosenberg, Lee Smart PS Inc.,

Seattle, Washington; Thomas N. Abbott, Perkins Coie LLP,

Portland, Oregon; Kristine E. Kruger, Seattle, Washington;

for Defendant-Appellees.

OPINION

PAEZ, Circuit Judge:

In this case, we clarify what actions trigger the statute of

limitations for a Fair Debt Collection Practices Act

(“FDCPA”) claim when the alleged violation of that statute

occurs within the context of a debt collection lawsuit. We

first reiterate that Walls v. Wells Fargo Bank, 276 F.3d 502

(9th Cir. 2002), precludes FDCPA and other claims based on

violations of Bankruptcy Code § 524 (11 U.S.C. § 524). We

then conclude that certain litigation acts—including service

and filing—can constitute distinct violations of the FDCPA

that each trigger the FDCPA’s one-year statute of

limitations. See 15 U.S.C. § 1692k(d). Accordingly, we

affirm in part and reverse in part.

BROWN V. TRANSWORLD SYSTEMS, INC. 5

I.

From 2003 to 2007, Plaintiff Osure Brown (“Brown”)

took out ten student loans to attend college in Washington

state. Defendants National Collegiate Student Loan Trusts

(collectively, “the Trusts”) ultimately purchased Brown’s

loans. The Trusts appointed Defendant U.S. Bank as their

special servicer. The Trusts also hired Defendant

Transworld Systems, Inc. (“Transworld”), to collect the

defaulted loans, and hired Defendant Patenaude & Felix

(“Patenaude”), a law firm specializing in debt collection, to

represent them in debt collection actions. 1

Several years after taking out the loans, Brown filed for

Chapter 13 bankruptcy relief. During his bankruptcy

proceeding, the Trusts filed ten proof of claim forms for the

outstanding student loan balance. As part of his Chapter 13

repayment plan, Brown made payments to his creditors for

thirty-six months, after which any remaining funds were

distributed to certain “non-dischargeable student loan

creditors,” including the Trusts. The bankruptcy court then

issued an order of discharge for all dischargeable debts under

11 U.S.C. § 1328(a). The parties dispute whether the loans

owned by the Trusts were dischargeable, although that fact

is not relevant to our analysis of the district court’s dismissal

under Federal Rule of Civil Procedure 12(b)(6).

After the bankruptcy discharge, Patenaude, on behalf of

Transworld and the Trusts, sent Brown ten letters seeking to

collect the remaining loan balance on each of Brown’s ten

loans. When attempts to settle the debts were not successful,

the Trusts turned to Washington state court to collect the

1

We refer to the Trusts, U.S. Bank, Transworld, and Patenaude

collectively as “Defendants”.

6 BROWN V. TRANSWORLD SYSTEMS, INC.

debts. They served Brown with ten summonses and

complaints on February 16, 2019. The Trusts then filed the

complaints on April 5, 2019, which were later consolidated

into one lawsuit. 2

Along with the complaints, the Trusts filed an affidavit

by Jennifer Audet (“the Audet Affidavit”), a Transworld

employee, purporting to show that the Trusts owned the

underlying student loan debt. After Brown questioned

whether the Audet Affidavit demonstrated that the debts

were properly assigned to the Trusts in his summary

judgment motion, the Trusts filed an affidavit by Bradley

Luke (“the Luke Affidavit”), another Transworld employee,

on October 7, 2019, which also purported to show that the

Trusts owned the debts. The state court ruled that the Luke

Affidavit was inadmissible hearsay and excluded it.

Because the Trusts could not prove that the debts had been

properly assigned to them, the state court granted summary

judgment to Brown, dismissing the debt collection suit. The

Trusts did not appeal the judgment.

On April 6, 2020, Brown filed this putative class action

in Washington state court, alleging violations of the FDCPA

and the bankruptcy court’s discharge order on behalf of

himself and others similarly situated. He alleges two distinct

classes under Federal Rule of Civil Procedure 23(c), a

“FDCPA Class” and a “Bankruptcy Class.” In Count I,

Brown alleges that Transworld and Patenaude violated the

FDCPA under two alternative theories: (1) by violating his

bankruptcy discharge order and (2) by filing a knowingly

meritless debt collection lawsuit. Count II requests

2

We thus refer to the state court “action” or “lawsuit” in singular form.

No party argues that the date of consolidation is relevant to the FDCPA

statute of limitations defense.

BROWN V. TRANSWORLD SYSTEMS, INC. 7

declaratory and injunctive relief on the basis of Count I for

the FDCPA Class against all Defendants. In Count III,

Brown alleges that the Trusts violated Bankruptcy Code

§ 524(a) (11 U.S.C. § 524(a)) by seeking to collect debts that

were discharged in bankruptcy. Count IV requests

declaratory and injunctive relief on the basis of Count III for

the Bankruptcy Class against the Trusts. Defendants

removed the case to federal court and Brown promptly filed

an amended complaint.

Defendants filed a combined five motions to dismiss.

The district court considered all the motions together and

granted them in February 2022. The district court concluded

that most of Brown’s claims were precluded by Walls, which

held that discharged debtors do not have a private right of

action under Bankruptcy Code § 524 and thus cannot bring

FDCPA claims based on a violation of § 524. See 276 F.3d

at 509–11; 11 U.S.C. § 524. 3 The district court then

considered Brown’s remaining FDCPA claim, which was

based on the theory that Defendants knowingly brought a

meritless debt collection lawsuit. The court concluded that

dismissal was warranted under the FDCPA’s one-year

statute of limitations because more than a year had elapsed

between when Defendants served Brown with their debt

collection suit and when Brown filed his FDCPA claim. See

15 U.S.C. § 1692k(d). Brown timely appealed.

3

Section 524 provides that a discharge order “operates as an injunction

against the commencement or continuation of an action, the employment

of process, or an act, to collect, recover or offset any such debt as a

personal liability of the debtor, whether or not discharge of such debt is

waived.” 11 U.S.C. § 524(a)(2).

8 BROWN V. TRANSWORLD SYSTEMS, INC.

II.

We have jurisdiction under 28 U.S.C. § 1291. “A

judgment dismissing a case on the pleadings is reviewed on

appeal de novo.” Turner v. Cook, 362 F.3d 1219, 1225 (9th

Cir. 2004) (citation omitted). On review, we “must accept

all material allegations in the complaint as true and construe

them in the light most favorable to the non-moving party.”

Id. (quoting NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898

(9th Cir. 1986)) (cleaned up). We will affirm dismissal only

if “no relief could be granted under any set of facts that could

be proved consistent with the allegations.” Id. (citations

omitted). We also review de novo the question of whether a

claim is barred by the statute of limitations. See Bliss v.

CoreCivic, Inc., 978 F.3d 1144, 1147 (9th Cir. 2020)

(citations omitted).

III.

We first address Brown’s claims based on a violation of

his bankruptcy discharge order. These claims are precluded

by Walls. We then address Brown’s remaining FDCPA

claim—that Defendants knowingly brought a meritless debt

collection lawsuit—and decide whether Brown has alleged

any violations of the FDCPA that are not barred by the

statute of limitations. We hold that he has.

A.

In Counts I and III, Brown alleges that Defendants

attempted to collect debts that were prohibited from

collection by his bankruptcy discharge order. In Count I,

Brown contends that Transworld and Patenaude violated the

FDCPA by attempting to collect such debts. In Count III,

Brown alleges that the Trusts violated 11 U.S.C. § 524(a) by

attempting to collect debts discharged in bankruptcy. As the

BROWN V. TRANSWORLD SYSTEMS, INC. 9

district court correctly concluded, both claims are squarely

foreclosed by Walls. See 276 F.3d at 509–11. Our decision

in Manikan v. Peters & Freedman, LLP, 981 F.3d 712 (9th

Cir. 2020), does not alter this conclusion.

In Walls, we held that a debtor who alleges a violation of

a bankruptcy court’s discharge order has no private right of

action under 11 U.S.C. § 524. The appropriate remedy is

contempt of court against the offending creditor pursuant to

11 U.S.C. § 105(a). See Walls, 276 F.3d at 506–09. Because

§ 105 allows “an aggrieved debtor to obtain compensatory

damages, attorneys fees, and the offending creditor’s

compliance with the discharge injunction,” “no further

remedy is necessary.” Id. at 507. In so holding, we

explained that

[i]mplying a private remedy . . . could put

enforcement of the discharge injunction in

the hands of a court that did not issue it

(perhaps even in the hands of a jury), which

is inconsistent with the present scheme that

leaves enforcement to the bankruptcy judge

whose discharge order gave rise to the

injunction.

Id. at 509.

We also held that a debtor may not pursue an FDCPA

claim based on a violation of the discharge order. Walls, 276

F.3d at 510–11. The plaintiff in Walls had sought relief

under the FDCPA, claiming that Wells Fargo violated her

discharge order by attempting to collect her debt after it had

been discharged. Id. at 504. We concluded, however, that

“[t]here is no escaping that Walls’s FDCPA claim is based

on an alleged violation of § 524.” Id. at 510. To allow her

10 BROWN V. TRANSWORLD SYSTEMS, INC.

to bring such a claim would allow a private right of action

“through the back door.” Id. at 510. Her claim would

“necessarily entail[] bankruptcy-laden determinations,”

which are best left to the bankruptcy court. See id.

Brown’s Count III claim, entirely based on an alleged

violation of Bankruptcy Code § 524, is squarely precluded

by the first holding in Walls. 4 See 276 F.3d at 507–09. The

Count IV claim, which seeks declaratory and injunctive

relief on the basis of Count III, also fails because these

remedies are not stand-alone claims, and they do not survive

the dismissal of Count III when Brown has pled no facts

suggesting that any of the Defendants are likely to sue him

again. See City of Reno v. Netflix, Inc., 52 F.4th 874, 878–

79 (9th Cir. 2022); Maryland Cas. Co. v. Pacific Coal & Oil

Co., 312 U.S. 270, 273 (1941). Moreover, any declaration

that certain debts have been discharged would need to be

made by the bankruptcy court. 5 See Stout v. Prussel, 691

F.2d 859, 861 (9th Cir. 1982) (“It has long been the rule in

4

The Trusts also argue that Brown was required to assert his claims that

they did not have the right to enforce his loans and that those loans were

discharged as a compulsory counterclaim in the state court litigation.

Because Brown’s claims are precluded by Walls, we do not reach this

issue.

5

Despite Brown’s argument, the Supreme Court’s decision in Taggart

v. Lorenzen, 139 S. Ct. 1795 (2019), does not grant the district court

authority to issue declaratory and injunctive relief relating to bankruptcy

discharges. Taggart concerned the legal standard for holding a creditor

in civil contempt when the creditor attempts to collect a debt in violation

of a discharge order. Id. at 1801. It did not concern a district court’s

jurisdiction to enforce a discharge order. The Court had no reason to

address that question because a bankruptcy court issued the civil

contempt order in Taggart. Id. at 1800.

BROWN V. TRANSWORLD SYSTEMS, INC. 11

this circuit that the right to a discharge in bankruptcy is left

to the sound discretion of the bankruptcy court.”).

To the extent Brown’s FDCPA claim in Count I is based

on the theory that Transworld and Patenaude improperly

sought to collect debts discharged in bankruptcy, the claim

fails under the second holding in Walls. See 276 F.3d at 510.

Brown disputes this conclusion, arguing that our decision in

Manikan narrowed Walls to allow his claim. This argument

is incorrect.

In Manikan, we clarified that Walls does not preclude

claims under the FDCPA when those claims are not based

on a violation of a bankruptcy discharge order. 981 F.3d at

714. There, Manikan fully paid a debt to his homeowner’s

association through his Chapter 13 bankruptcy repayment

plan two years before the bankruptcy court entered a

discharge order. Id. at 714, 717. Nevertheless, after the

entry of the discharge order, a debt collector attempted to

serve Manikan with a Notice of Default. Id. at 714–15.

Manikan sued under the FDCPA because the debt collector

attempted to collect a debt that Manikan no longer owed. Id.

at 714–15. We held that Walls did not preclude his claim

because “whether an unfair debt collection practice occurred

does not depend on issuance or enforcement of the discharge

order.” Id. at 716. Rather, “even if Manikan had never

received a discharge in his bankruptcy case, he could still

assert [that the defendant] acted unlawfully by attempting to

collect a debt that he fully satisfied.” Id. at 717. His FDCPA

claims were “therefore premised on a wholly independent

theory of relief.” Id. Unlike in Walls, the FDCPA claims in

Manikan were not “inextricably intertwined with bankruptcy

issues.” Id.

12 BROWN V. TRANSWORLD SYSTEMS, INC.

Brown cannot make the same argument. His theory is

identical to the one presented in Walls: that the Defendants

violated the discharge order by attempting to collect debts

that were discharged. See Walls, 276 F.3d at 504. Such a

claim necessarily requires a determination of whether the

debt was discharged, which is “within the exclusive

jurisdiction of the bankruptcy court.” Banks v. Gill Dist.

Ctrs., Inc., 263 F.3d 862, 868 (9th Cir. 2001). As in Walls,

Brown’s claim is “premised on a violation of a bankruptcy

discharge order.” Manikan, 981 F.3d at 716. Indeed,

Brown’s definition for his proposed FDCPA class requires

that each class member received a bankruptcy discharge.

Allowing Brown’s FDCPA claims to proceed would

“circumvent the remedial scheme of the [Bankruptcy] Code

under which Congress struck a balance between the interests

of debtors and creditors by permitting (and limiting) debtors’

remedies for violating the discharge injunction to contempt.”

Walls, 276 F.3d at 510. Brown’s Count I claim thus fails on

this theory.

B.

Brown’s Count I claim also alleges an alternative

FDCPA theory, arguing that because Transworld and

Patenaude knew that they could not prove ownership of

Brown’s debts, they violated the FDCPA by bringing a

knowingly meritless debt collection lawsuit. 6 Because this

6

In support of this theory, Brown cites several FDCPA sections,

including: § 1692e(2)(A) (prohibiting debt collectors from making a

“false representation of the . . . legal status of any debt”); § 1692e(5)

(prohibiting debt collectors from “threat[ening] to take any action that

cannot legally be taken or that is not intended to be taken”); § 1692e(10)

(prohibiting debt collectors from using “any false representation or

deceptive means to collect or attempt to collect a debt”); and § 1692f

BROWN V. TRANSWORLD SYSTEMS, INC. 13

theory is not “premised on a violation of a bankruptcy

discharge order,” Manikan, 981 F.3d at 716, it is not

foreclosed by Walls. The district court acknowledged this

distinction but concluded that Count I nevertheless failed

because—to the extent it was based on the meritless lawsuit

theory—the claim was time-barred by the FDCPA’s one-

year statute of limitations, as Brown was required to file the

FDCPA claim one year from the date the state court

complaints were served, rather than one year from the date

the complaints were filed. To so conclude, the district court

looked to Washington law, which provides that a plaintiff

commences a lawsuit when a complaint is served or filed,

whichever comes first. See Wash. Rev. Code § 4.28.020;

Seattle Seahawks v. King County, 913 P.2d 375, 376 (Wash.

1996). Brown challenges this conclusion, arguing that he

has alleged several independent violations of the FDCPA,

including the filing of the complaints on April 5, 2019 and

the filing of the Luke Affidavit on October 7, 2019, each of

which commences a one-year statute of limitations under the

FDCPA and render timely the April 6, 2020 filing of this

lawsuit (April 5, 2020 was a Sunday). See Fed. R. Civ. P.

6(a)(1)(c) (explaining that if the last day to file falls on a

Sunday, the plaintiff may file the next business day); see also

Hart v. United States, 817 F.2d 78, 80 (9th Cir. 1987)

(applying Rule 6(a) to a federal statute).

We hold that Brown correctly asserts that some litigation

acts can constitute independent FDCPA violations and that

each such violation triggers its own one-year statute of

limitations under the FDCPA. See 15 U.S.C. § 1692k(d)

(creating a one-year statute of limitations for each violation

(prohibiting debt collectors from using “unfair or unconscionable means

to collect or attempt to collect any debt”).

14 BROWN V. TRANSWORLD SYSTEMS, INC.

of the FDCPA). After discussing relevant FDCPA

precedent, we address the alleged post-filing violations, and

then address the distinction between service and filing.

Because Brown has alleged discrete violations after the date

of service of the complaints, we reverse.

1.

Congress enacted the FDCPA to “eliminate abusive debt

collection practices by debt collectors” in order to “protect

consumers.” 15 U.S.C. § 1692(e). “The FDCPA pursues

[this purpose] by imposing affirmative requirements on debt

collectors and prohibiting a range of debt-collection

practices.” Rotkiske v. Klemm, 140 S. Ct. 355, 358 (2019)

(citing 15 U.S.C. §§ 1692b–1692j). While Congress’s

“ultimate objective was to protect consumers from

harassment by debt collectors, Congress intended to achieve

this purpose by regulating the conduct of debt collectors.”

Mattson v. U.S. W. Commc’ns, Inc., 967 F.2d 259, 261 (8th

Cir. 1992) (citing 15 U.S.C. § 1692(e)). “Because the statute

is broadly remedial, we liberally construe the FDCPA in

favor of consumers.” McAdory v. M.N.S. & Assocs., LLC,

952 F.3d 1089, 1092 (9th Cir. 2020) (citing Hernandez v.

Williams, Zinman & Parham PC, 829 F.3d 1068, 1078–79

(9th Cir. 2016)).

Although we perhaps have not yet said so explicitly,

every alleged FDCPA violation triggers its own one-year

statute of limitations as provided in §1692k(d). See Bouye

v. Bruce, 61 F.4th 485, 490, 491 n.5 (6th Cir. 2023)

(explaining that at least five circuits “adhere to the view that

every alleged violation of the FDCPA has its own [one-year]

statute of limitations”); Solomon v. HSBC Mortg. Corp., 395

F. App’x 494, 497 (10th Cir. 2010) (collecting cases) (“For

statute-of-limitations purposes, discrete violations of the

BROWN V. TRANSWORLD SYSTEMS, INC. 15

FDCPA should be analyzed on an individual basis.”). This

rule is clear from the text of the statute. Under the FDCPA,

consumers can bring private actions “in any appropriate

United States district court without regard to the amount in

controversy . . . within one year from the date on which the

violation occurs.” 15 U.S.C. § 1692k(d). The Supreme

Court recently clarified that there is no “discovery rule” for

FDCPA claims, so “absent the application of an equitable

doctrine, the statute of limitations in § 1692k(d) begins to

run on the date on which the alleged FDCPA violation

occurs, not the date on which the violation is discovered.”

Rotkiske, 140 S. Ct. at 358. Thus, to determine when the

FDCPA’s statute of limitations begins to run, the key

question is what act constitutes the occurrence of an FDCPA

violation. The Supreme Court has said only that whether

something “occurred” under the FDCPA means whether it

“actually happened.” Id. at 360.

Although the FDCPA clearly “appl[ies] to lawyers

engaged in litigation,” Heintz v. Jenkins, 514 U.S. 291, 294

(1995), it is less clear which litigation acts can constitute

independent FDCPA violations when the underlying

FDCPA violation is a debt collection lawsuit. As the

Supreme Court has explained, “it would be odd if the

[FDCPA] empowered a debt-owing consumer to stop the

‘communications’ inherent in an ordinary lawsuit and

thereby cause an ordinary debt-collecting lawsuit to grind to

a halt.” Id. at 296. While making clear that Congress did

not intend to “create a [] broad[] exception[] for all litigating

attorneys” in the FDCPA, the Court explained that it is not

necessary to read “ordinary court-related document[s]” as

violating the FDCPA. See id. at 296–97. Nevertheless, the

FDCPA “applies to attorneys who ‘regularly’ engage in

consumer-debt-collection activity, even when that activity

16 BROWN V. TRANSWORLD SYSTEMS, INC.

consists of litigation.” Id. at 299. 7 In short, some litigation

acts may constitute independent FDCPA violations;

otherwise, debt collectors could commit unlimited FDCPA

violations after commencing an improper debt collection

action.

We have considered FDCPA claims related to debt

collection lawsuits in two prior cases. In Naas v. Stolman,

130 F.3d 892 (9th Cir. 1997), we noted that we had never

before “determined at which point the statute of limitations

begins to run when the alleged violation of the Act is the

filing of a lawsuit.” Id. at 893. We concluded that an

FDCPA violation occurred when a debt collector filed an

allegedly improper debt collection lawsuit, not when the

lawsuit was decided. Id. To so conclude, we considered that

“[f]iling a complaint is the debt collector’s last opportunity

to comply with the Act, and the filing date is easily

ascertainable.” Id.; see also id. (discussing the Eighth

Circuit’s decision in Mattson, 967 F.2d at 261, which relied

on these considerations to determine that an FDCPA

violation occurred when abusive debt collection letters were

mailed, but not received). The statute of limitations for the

FDCPA claim thus ran from the date the debt collection

lawsuit was filed. We had no reason to consider whether the

date of service affected this analysis.

In McCollough v. Johnson, Rodenburg & Lauinger,

LLC, 637 F.3d 939 (9th Cir. 2011), we held that certain post-

7

This rule does not mean that lawyers can be found liable for any

missteps in the litigation process. Lawyers acting as debt collectors

“may not be held liable if [they] ‘show[] by a preponderance of evidence

that the violation was not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures reasonably adapted to

avoid any such error.’” Heintz, 514 U.S. at 295 (quoting 15 U.S.C.

§ 1692k(c)).

BROWN V. TRANSWORLD SYSTEMS, INC. 17

filing litigation acts can constitute FDCPA violations. Id. at

951–52. In McCollough, the debt collector served requests

for admission that asked the debtor to admit facts that were

not true, even though the debt collector “had information in

its possession that demonstrated the untruthfulness of the

requested admissions.” Id. at 952. The debt collector also

did not explain to the debtor that “the requests would be

deemed admitted after thirty days.” Id. Because we

“consider the debt collector’s conduct from the standpoint of

the least sophisticated debtor,” we held that this conduct

violated the FDCPA as a matter of law. Id. By utilizing

abusive discovery procedures, the debt collector committed

an FDCPA violation through its litigation conduct. That

decision, however, did not directly address the statute of

limitations. 8

To determine whether a litigation act constitutes an

independent violation of the FDCPA and thus has its own

statute of limitations, we now derive the following test from

Naas: When the alleged FDCPA violation is the bringing of

a debt collection lawsuit, we determine which actions

constitute independent FDCPA violations by considering (1)

the debt collector’s last opportunity to comply with the

8

Our sister circuits have also held that mid-litigation acts can constitute

new FDCPA violations, but have done so without addressing statute of

limitations issues. See, e.g., Sayyed v. Wolpoff & Abramson, 485 F.3d

226, 234 (4th Cir. 2007) (holding that debtor properly alleged an FDCPA

violation based on the theory that “the summary judgment motion itself

contained false statements”); Bentrud v. Bowman, Heintz, Boscia &

Vician, P.C., 794 F.3d 871 (7th Cir. 2015) (reviewing whether motion

for summary judgment violated the FDCPA); Miljkovic v. Shafritz &

Dinkin, P.A., 791 F.3d 1291, 1295 (11th Cir. 2015) (“[D]ocuments filed

in court in the course of judicial proceedings to collect on a debt, like [a]

sworn reply, are subject to the FDCPA.”).

18 BROWN V. TRANSWORLD SYSTEMS, INC.

statute and (2) whether the date of the violation is easily

ascertainable. See 130 F.3d at 893.

Under this test, if a debt collector decides to take a

certain action during litigation, courts must assess whether

that act was the debt collector’s “last opportunity to comply”

with the FDCPA. Examples of litigation-related acts that

could independently violate the FDCPA include a debt

collector serving a request for admission of facts it knows

are false or filing an affidavit containing new information it

knows to be false. See, e.g., McCollough, 637 F.3d at 652.

The debtor must, however, allege “specific actions” taken by

the debt-collector that show “more than another attempt to

argue that a violation arising from the filing of a debt-

collection suit continues as long as the suit remains

pending.” Gajewski v. Ocwen Loan Servicing, 650 F. App’x

283, 287 (7th Cir. 2016), reh’g en banc denied; see also

Bouye, 61 F.4th at 491 (quoting Slorp v. Lerner, Sampson &

Rothfuss, 587 F. App’x 249, 259 (6th Cir. 2014)) (“[T]he

violations that occur within the limitations window must be

discrete violations; they cannot be the later effects of an

earlier time-barred violation.”). Put simply, to plausibly

allege that a litigation act is a violation of the FDCPA, the

debtor must aver sufficient facts to show that the debt

collector’s act is a new violation of the FDCPA. Under our

newly formulated test, the focus appropriately remains on

the debt collector’s actions. There is a difference between

litigating a case and committing affirmative FDCPA

violations during that litigation.

With this framework in mind, we turn to Brown’s claims.

2.

We first consider Brown’s argument that several of

Defendants’ post-filing acts constituted independent

BROWN V. TRANSWORLD SYSTEMS, INC. 19

FDCPA violations. These include Patenaude mailing the

filed lawsuits and the affidavit to Brown on April 8, 2019;

Transworld submitting the Luke affidavit to replace the

Audet affidavit in the state court action on October 7, 2019;

and the state court hearing on October 24, 2019, including

statements made by Patenaude lawyers at that hearing.

Two circuits have addressed mid-litigation acts and the

FDCPA’s statute of limitations. Both concluded that when

certain acts constitute independent violations of the FDCPA,

those acts will trigger their own one-year statutes of

limitations under § 1692k(d). In Demarais v. Gurstel

Chargo, P.A., 869 F.3d 685 (8th Cir. 2017), the Eighth

Circuit concluded that the debtor plausibly alleged an

FDCPA violation on the basis of a law firm’s request for a

continuance on the October 5, 2015 trial date. Id. at 695.

The law firm argued that the FDCPA claim was time-barred

because the request was simply a “permissible litigation

tactic” in the underlying debt collection lawsuit, which was

filed in June 2014, and the debtor filed the FDCPA claim

over a year later on February 5, 2016. Id. at 689–90. The

Eighth Circuit noted that not “every continuance request

violates the FDCPA.” Id. at 696. But the law firm had a

pattern of falsely threatening to proceed to trial, showing up

on the trial date with no witnesses or evidence, and—if the

debtor appeared with counsel—requesting a continuance.

See id. at 689–90. Litigation tactics are not insulated from

liability when they violate the FDCPA, id. at 696 (citing

Heintz, 514 U.S. at 296), and in Demarais, the debtor had

plausibly alleged that the law firm had threatened to take

action that it did not intend to take in violation of § 1692e(5),

id. at 695. In so holding, the Eighth Circuit explained that

the district court improperly looked to whether the alleged

violation “relate[d] back” to the complaint. Id. at 694.

20 BROWN V. TRANSWORLD SYSTEMS, INC.

Instead, the district court should have looked at the lawyer’s

actions at The October 5 trial and “determined whether [the

plaintiff] plausibly alleged that [the law firm] violated the

FDCPA on that date.” Id.

The Sixth Circuit also recently decided that a mid-

litigation misrepresentation carried its own statute of

limitations, such that a debtor’s FDCPA claim based on that

act was not time-barred. The facts of that case are similar to

those presented here concerning the filing of the Luke

Affidavit. In Bouye v. Bruce, attorney James Bruce

represented Mariner Finance, LLC, an entity that had bought

debtor Zahra Bouye’s debt from Winner Furniture. 61 F.4th

at 487. After Bouye defaulted on her retail installment

contract (“RIC”), Bruce filed suit in state court on behalf of

Mariner on March 4, 2019. The RIC attached to the

complaint, however, did not establish that Winner had ever

properly transferred the debt to Mariner such that Mariner

had a right to sue on the debt. Id. at 487. On July 2, 2019,

Bruce supplemented the record with a second, updated RIC

that showed a Winner employee had authorized the transfer

of the debt to Mariner. Id. at 487–88. On March 19, 2020,

Bouye sued Bruce in federal court, alleging a violation of the

FDCPA based on the theory that “Bruce, on Mariner’s

behalf, doctored the RIC mid-litigation to make it look like

the debt assignment from Winner to Mariner was proper.”

Id. at 488. Bruce argued that Bouye’s claim was time-

barred, as she brought suit more than a year after the state

court lawsuit was filed.

The Sixth Circuit rejected this argument, explaining that

the alleged filing of a false RIC constituted a new FDCPA

violation. Id. at 491. By filing an updated RIC and moving

for summary judgment on that basis, Bruce made an

“affirmative[] misrepresent[ation] to the [c]ourt.” Id. The

BROWN V. TRANSWORLD SYSTEMS, INC. 21

claim for that misrepresentation “would have started

accruing either [] when Mariner filed the second RIC, or . . .

when Mariner moved for summary judgment based on that

filing.” Id. (finding it unnecessary to decide which date

triggered the statute of limitations). The court explained that

FDCPA violations must be discrete instances, and the

replacement of the RIC was discrete from the initiation of

the lawsuit:

Bouye’s single claim is independent of

Mariner’s initial filing of the lawsuit—not a

continuing effect of it—because it is a

standalone FDCPA violation. This is not a

case where Bruce simply “reaffirmed” the

legitimacy of the state suit throughout the

litigation. Rather, the allegation is that Bruce

introduced an RIC with a false assignment of

debt that occurred after the lawsuit was filed.

If we were to only consider the date Mariner

filed suit . . . without regard to subsequent

FDCPA violations within that lawsuit, we

would create a rule that disregards the fact

that § 1692k(d) creates an independent

statute of limitations for each violation of the

FDCPA.

Id. at 493 (citing Slorp, 587 F. App’x at 259).

We agree that when a debt collector commits an FDCPA

violation that does more than “simply reaffirm[] the

legitimacy of the state suit,” id. (internal quotation marks

omitted), that new violation can constitute a “last

opportunity to comply” with the FDCPA, see Naas, 130 F.3d

at 893. Assuming the date of that action is easily

22 BROWN V. TRANSWORLD SYSTEMS, INC.

ascertainable, id., it may form the basis of a new FDCPA

violation. Whether a lawyer appropriately litigates a case or

engages in conduct that violates the FDCPA is a fact-

intensive inquiry that requires a case-by-case approach. See

Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814, 819

(8th Cir. 2012) (“[T]he diverse situations in which potential

FDCPA claims may arise during the course of litigation, and

the Supreme Court’s caution in Heintz . . . counsel against

anything other than a case-by-case approach.”).

In this case, we conclude that Brown has alleged one

post-filing FDCPA violation: the filing of the Luke

Affidavit. By filing a new affidavit that attempted to show

that the Trusts owned the debts, Defendants did more than

“reaffirm” the original complaint. Rather, they presented a

new basis—not contained in the complaint—to show that the

Trusts owned the debts. When Defendants ceased to rely on

the Audet Affidavit and moved forward with the Luke

Affidavit, this discrete event created a “last opportunity to

comply” with the FDCPA. See Naas, 130 F.3d at 893. The

filing date is also easily ascertainable. See id. While Brown

has thus alleged a violation, we do not address the merits of

his claim.

Brown’s remaining alleged violations, which include the

mailing of the lawsuits and arguments made at the state court

summary judgment hearing, are standard litigation events

that reasonably follow the commencement of a lawsuit.

They do not constitute final opportunities to comply with the

FDCPA and therefore are not independent FDCPA

violations.

3.

Our analysis, however, does not end there. As other

circuits have explained, there is no “continuing violation

BROWN V. TRANSWORLD SYSTEMS, INC. 23

doctrine” in the FDCPA context, which would allow

plaintiffs to “sweep in a series of component acts that

comprise a claim, if one of those acts was within the

limitations period.” Bouye, 61 F.4th at 493. Rather, “the

only kinds of claims a plaintiff can bring are discrete

violations of the FDCPA.” Id. Thus, finding that the Luke

Affidavit is an independent violation does not allow Brown

to include actions before October 7, 2019, the date on which

the Luke Affidavit was filed, in his FDCPA claim. But

Brown also argues that Defendants committed an

independent FDCPA violation on April 5, 2019, when they

filed the complaints, even though they had previously served

him with the complaints. This argument requires us to

consider the distinction between service and filing.

Only the Tenth Circuit appears to have considered this

issue head on. In Johnson v. Riddle, 305 F.3d 1107 (10th

Cir. 2002), the court held that when service occurs after the

filing of a debt collection lawsuit (the reverse of our situation

here), the statute of limitations to bring an FDCPA claim

runs from service, not from filing. 9 Id. at 1113. The Tenth

Circuit held that “the plaintiff does not have a ‘complete and

9

Other circuits have interpreted Naas and Johnson as reaching opposite

conclusions. “Where FDCPA claims are premised upon allegations of

improper pursuit of debt collection litigation, courts are split as to when

the FDCPA’s one-year statute of limitations begins to run: some have

held that such claims accrue upon filing the underlying collection action,

[citing Naas], while others use the date on which the purported debtor

was served with the complaint [citing Johnson].” Schaffhauser v.

Citibank, 340 F. App’x 128, 130–31 (3d Cir. 2009) (finding it

unnecessary to reach the issue); accord Ruth v. Unifund CCR Partners,

604 F.3d 908, 914 (6th Cir. 2010) (same). There is no conflict between

these two cases. We had no reason to consider the difference between

service and filing in Naas, as it made no difference to the overall

timeliness of the plaintiff’s suit.

24 BROWN V. TRANSWORLD SYSTEMS, INC.

present cause of action,’ and thus no violation occurs within

the meaning of § 1692k(d),” until both filing and service

have occurred. Id. at 1113 (quoting Bay Area Laundry &

Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522 U.S.

192, 201 (1997)). The court explained that if a debt collector

files a suit but then “elects to call off the process server and

abandon the collection suit before the plaintiff has been

served,” id. at 113–14, the abandoned lawsuit does not

constitute an “attempt to collect” the debt under the FDCPA,

id. at 114. “[T]he fact that a party that has committed half

an actionable wrong is likely to commit the other half cannot

suffice to create a complete and present cause of action.” Id.

At least as it applies to the facts here, we reject the

Johnson court’s two-halves-make-a-whole approach.

Accord Tyler v. DH Capital Mgmt., 736 F.3d 455, 463–64

(6th Cir. 2013) (rejecting Johnson’s approach and holding

that filing alone may constitute an FDCPA violation). When

service occurs first, Johnson’s reasoning does not make

sense. See 305 F.3d at 113–14. Service alone can be a

violation of the FDCPA, as it is the exact kind of threatening

action Congress intended to prohibit. Indeed, it is clearly

barred by § 1692e(5), which lists as a violation of the

FDCPA “[t]he threat to take any action that cannot legally

be taken or that is not intended to be taken.” If a debt

collector serves a debtor with no intention of filing the

complaint, the debt collector is clearly threatening legal

action in violation of the FDCPA. Because service does not

require the payment of filing fees, it is not hard to imagine a

debt collector engaging in abusive service practices to coerce

alleged debtors into payment. But filing may also constitute

an independent violation of the FDCPA, especially because

it can cause additional harm to the debtor. A pending legal

action “could be a red flag to the debtor’s other creditors and

BROWN V. TRANSWORLD SYSTEMS, INC. 25

anyone who runs a background or credit check, including

landlords and employers.” Tyler, 736 F.3d at 464. The

debtor may thus have additional FDCPA claims under §

1692e and § 1692f once the lawsuit is filed.

Applying our newly derived test here, we hold that when

service occurs before filing, filing constitutes an independent

violation of the FDCPA. Under the first factor of the test,

service is not a debt collector’s “last opportunity to comply”

with many FDCPA prohibitions. See Naas, 130 F.3d at 893.

Because filing requires an additional act that can cause new

harm to the debtor, filing is the debt collector’s last

opportunity to comply. This test correctly places the onus

on debt collectors to analyze their actions to make sure they

comply with the FDCPA. See Mattson, 967 F.2d at 261

(explaining that Congress intended to protect consumers by

“regulating the conduct of debt collectors” (citing 15 U.S.C.

§1692(e)); Tyler, 736 F.3d at 464 (“[T]he focus should be on

the debt collector’s actions.”). Filing is not merely

“doubling down” on the initial act of service; it requires an

affirmative step forward. After serving a complaint, a debt

collector could learn new information about the validity of

the case or decide against filing for any number of reasons.

Thus, while service alone can constitute an FDCPA

violation, the final step of filing presents a “last opportunity”

to comply with the FDCPA when the alleged violation is the

bringing of a knowingly meritless lawsuit. See Naas, 130

F.3d at 893. And as to the second factor, the filing date is

easily ascertainable. See id.

Because we conclude that service and filing are

independent FDCPA violations, each act has its own one-

year statute of limitations under § 1692k(d). Thus, Brown

had one year from the date of filing of the state court action

26 BROWN V. TRANSWORLD SYSTEMS, INC.

to bring his FDCPA claim, and his lawsuit is timely. 10 We

reverse the district court’s dismissal of Count I. Because

Count I survives, we also reverse and remand Brown’s

Count II claim for declaratory and injunctive relief for

consideration consistent with this opinion.

C.

Finally, Brown argues that because the state court found

that the Trusts lacked admissible evidence to demonstrate

ownership of the debt, we must give “full faith and credit”

to that decision by directing judgment for Brown on his

FDCPA claim. This argument fails. The state court found

that Defendants failed to present sufficient evidence to show

that they owned the debts, but did not address the issue in

this case: whether Defendants knowingly brought a meritless

lawsuit in violation of the FDCPA. The Supreme Court has

explicitly said that it does “not see how the fact that a [debt-

collection] lawsuit turns out ultimately to be unsuccessful

could, by itself, make the bringing of it an ‘action that cannot

legally be taken.’” Heintz, 514 U.S. at 295–96 (quoting 15

U.S.C. § 1692e(5)). While the state court’s decision could

possibly be evidence in support of Brown’s FDCPA claim,

this lawsuit does not in any way “relitigate” the issues in the

10

Transworld and Patenaude also argue that certain alleged violations,

such as filing, are not actionable because they were directed at Brown’s

counsel, not Brown. This position is plainly wrong. See, e.g., Sayyed,

485 F.3d at 232 (“A communication to debtor’s counsel, regarding a debt

collection lawsuit in which counsel is representing the debtor, plainly

qualifies as an indirect communication to the debtor.”); Demarais, 869

F.3d at 692 (recognizing that discovery requests could constitute FDCPA

violations even though they were sent “directly” to plaintiff’s counsel);

Miljkovic, 791 F.3d at 1300 (“[W]e find it impossible to conclude, under

the plain language of the FDCPA, that a debt collector’s communications

to an attorney representing a consumer are not covered by the Act.”).

BROWN V. TRANSWORLD SYSTEMS, INC. 27

state court action. See Dodd v. Hood River County, 136 F.3d

1219, 1224 (9th Cir. 1998).

AFFIRMED in part, REVERSED in part and

REMANDED.

The parties shall bear their own costs on appeal.

VANDYKE, Circuit Judge, concurring in the judgment:

I agree with the outcome and much of the reasoning of

the majority opinion, but I write separately because the rule

announced in Part III.B.3 of the majority’s opinion—

“hold[ing] that when service occurs before filing, filing

constitutes an independent violation of the FDCPA”—is an

unnecessary conclusion that carries our circuit into the

unknown without anticipating the intricacies future cases are

bound to raise.

First, the rule is unnecessary. In this case, the limitation

periods began when the trusts filed the affidavits of Jennifer

Audet and Bradley Luke on April 5, 2019, and October 7,

2019, respectively. Those periods ended on April 6, 2020,

and October 7, 2020, respectively. 15 U.S.C. § 1692k(d);

Fed. R. Civ. P. 6(a)(1)(c). Brown timely filed his complaint

on April 6, 2020, alleging that the trusts had knowingly filed

meritless debt collection suits. If those affidavits knowingly

misrepresented that the trusts owned Brown’s loan debt, the

filing of each affidavit constituted a discrete violation of the

FDCPA and marked the last opportunity to not violate the

FDCPA with respect to that affidavit. See Naas v. Stolman,

130 F.3d 892, 893 (9th Cir. 1997). Since I agree with the

majority that the filing of an allegedly false affidavit triggers

the limitations period for the FDCPA, see Bouye v. Bruce,

28 BROWN V. TRANSWORLD SYSTEMS, INC.

61 F.4th 485, 490–91 (6th Cir. 2023), the concurrent filing

of Jennifer Audet’s affidavit with the trusts’ complaints

makes it unnecessary to decide (as the majority nonetheless

does) whether complaints filed after service independently

violate the FDCPA. Since Brown’s claim that the trusts filed

knowingly meritless collection suits was raised within one

year of the underlying affidavits, it is gilding the lily to

decide whether the trusts’ complaints also triggered the

FDCPA’s limitations period.

Second, it’s a much harder question whether the filing of

a complaint after service constitutes an independently

wrongful act under the FDCPA for purposes of calculating a

new limitations period, and I therefore hesitate to set down

new precedent in that regard when it’s unnecessary. A

comparative illustration will underscore the difficulty: In

instances where service of process post-dates the filing of a

complaint, it is hard to discern when an actionable wrong has

occurred because a debtor typically feels threatened at the

moment of service, not the moment of filing. Debtors are

often unaware of a collection suit that has been filed until

service is rendered. In such situations, it is arguable that an

adverse action has not been consummated until the date of

service. Indeed, that’s what the Tenth Circuit decided in

Johnson v. Riddle, 305 F.3d 1107, 1113–14 (10th Cir. 2002).

The Johnson court decided that service rendered after filing

was an indispensable “half” of an “actionable wrong,” and

only with service did the limitations period begin to run on

the whole action. Id. That has some intuitive appeal. After

all, a filed complaint might be abandoned before a debtor is

haled into court. When that happens, the harm arguably

never reaches fruition.

But where, as here, service pre-dates the filing of a

complaint, a debtor receives the threat of legal action first.

BROWN V. TRANSWORLD SYSTEMS, INC. 29

So it is hard to see how filing a complaint after service is

sufficiently distinguishable from other downstream

litigation activities that do not constitute separate adverse

actions. See, e.g., Heintz v. Jenkins, 514 U.S. 291, 296

(1995) (noting it would be odd to interpret the FDCPA as

allowing an “ordinary court-related document” or

communication “inherent in an ordinary lawsuit” to cause

“an ordinary debt-collecting lawsuit to grind to a halt”). The

majority appears to recognize this difficulty and suggests

that “filing may also constitute an independent violation of

the FDCPA” because it “can cause additional harm to the

debtor” and “could be a red flag” for a debtor’s credit score.

(Emphasis added.) But such indeterminate consequences do

not merit the majority’s unconditional holding that, in all

instances “when service occurs before filing, filing

constitutes an independent violation of the FDCPA.” It is

far from certain that the post-service filing of a complaint

constitutes an independently actionable wrong, nor does

Brown assert that the trusts’ complaints harmed his credit.

By contrast, Brown does assert that the affidavits were

knowingly false.

Third, to the extent the majority views the post-service

filing of a complaint as a debt collector’s “last opportunity

to comply with” the FDCPA, that is a strained reading of

Naas, 130 F.3d at 893. See Johnson, 305 F.3d at 1114 n.4

(“[T]he choice between accrual upon filing and accrual upon

service was not before the court in Naas.”). Pre-filing

service of a meritless complaint already constitutes a failure

to comply with the FDCPA. See 15 U.S.C. § 1692e(5). So

the term “last opportunity to comply” can’t really mean the

last opportunity to rectify a previous wrong or to reverse

prior non-compliance. Otherwise, every litigation action

would constitute another “last opportunity to comply,” since

30 BROWN V. TRANSWORLD SYSTEMS, INC.

every such action marks a missed opportunity to turn back

and cease from litigating an improper debt-collection action.

Instead, the phrase obviously meant something more like the

“last clear chance to avoid” the discrete commission of a

different FDCPA violation. Here, that discrete misstep was

clearly the service of process, not the subsequent filing of the

complaint.

It may very well be that some meritless debt collection

complaints filed after service constitute actionable wrongs

under the FDCPA, but because that is a factually contingent

inquiry that should turn on the facts and allegations of each

case, I cannot endorse the majority’s broader rule and

needlessly prejudge such future cases. Here, it is enough that

the filing dates of the affidavits show that the district court

erred in holding that Brown’s claim that the trusts knowingly

filed meritless collection suits was time-barred, and I

therefore respectfully concur in the judgment.