Shedd et al v. Barclays Capital Real Estate, Inc. et al

Filing 228

ORDER denying 224 Motion to Amend and Certify Order for Interlocutory Review, or in the Alternative for Entry of Rule 54(b) Final Judgment. Signed by Chief Judge William H. Steele on 8/31/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEORGE P. SHEDD, JR., et al.,
Plaintiffs,
v.
WELLS FARGO BANK, N.A., et al.,
Defendants.

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CIVIL ACTION 14-0275-WS-M

ORDER
This matter comes before the Court on plaintiff Pam Shedd’s Motion to Amend and
Certify for Interlocutory Review, or in the Alternative for Entry of Rule 54(b) Final Judgment
(doc. 224). The Motion has been briefed and is now ripe.
I.

Relevant Background.
This case is a mortgage-loan dispute, presenting a fact pattern not dissimilar from those

in many actions that have been brought in this and other federal courts around the country in
recent years. It has, however, followed a very different trajectory than those myriad other
likeminded cases. Plaintiffs, George and Pamela Shedd, filed a Third Amended Complaint (doc.
152) that spans 128 pages and 16 causes of action asserted against three different defendants,
Wells Fargo Bank, N.A., Barclays Capital Real Estate, Inc., and Monument Street Funding, II,
LLC. In the 26 months it has been pending in this District Court, this action has been litigated
quite aggressively, as there are already more than 225 docket entries. Unfortunately, this legacy
of Sturm und Drang has not been accompanied by considerable tangible progress. Discovery
remains ongoing, and the discovery period will not close until December 2016, with trial set for
May 2017.
In April 2016, defendant Wells Fargo Bank, N.A. filed a Motion for Judgment on the
Pleadings (doc. 176), seeking dismissal of, inter alia, Count Sixteen, a statutory claim for
violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”).
Among its arguments for Rule 12(c) dismissal of that claim, Wells Fargo invoked the exemption

found at 15 U.S.C. § 1692a(6)(A). That section provides that the term “debt collector” does not
include “any officer or employee of a creditor while, in the name of the creditor, collecting debts
for such creditor.” 15 U.S.C. § 1692a(6)(A). In support of its contention that the § 1692a(6)(A)
exemption applies here, Wells Fargo cited several decisions interpreting the statute in that
manner and pointed out that well-pleaded facts in the Shedds’ Third Amended Complaint admit
that Wells Fargo is the owner of the loan. (Doc. 177, at 8-9.) The sum total of plaintiffs’
response to Wells Fargo’s invocation of the § 1692a(6)(A) exemption was to quote the statutory
language, then state as follows: “It is curious how an exemption solely for an officer or employee
of a creditor collecting its own debts could be misconstrued to apply to the creditor itself; the
other exemptions after (6)(A) provide escape routes for the creditor, but not (6)(A).” (Doc. 200,
at 11.) Plaintiffs cited no authority lending support, either specifically or generally, to their
reading of § 1692a(6)(A).1 Nor did the Shedds’ response brief express objection to or
dissatisfaction with Wells Fargo’s interpretation of the well-pleaded allegations of the Third
Amended Complaint casting it as a “creditor” for FDCPA purposes.
Despite the decidedly one-sided briefing on application of the § 1692a(6)(A) exemption,
the undersigned did not simply take Wells Fargo’s word for it; rather, the Court conducted its
own research to examine how other courts have construed that provision. That research yielded
a plethora of district court decisions (including many from this Circuit) interpreting §
1692a(6)(A) as covering creditors themselves, rather than simply their officers or employees.
These authorities appeared unanimous. Thus, the Court was confronted with the following set of
circumstances: (i) Wells Fargo’s contention that the FDCPA claim at Count Sixteen was not
cognizable as a matter of law because of the § 1692a(6)(A) exemption; (ii) repeated, undisputed
assertions in the pleadings that Wells Fargo owns the Shedds’ debt, such that Wells Fargo is a
1

Indeed, the only case identified in this portion of plaintiffs’ opposition brief was a
perfunctory mention of Birster v. American Home Mortg. Servicing, Inc., devoid of even a
citation to the decision itself, much less any verbiage explaining how or why plaintiffs believe
that it supports their position. Notwithstanding these shortcomings, the Court located and
reviewed Birster, which may be found at 481 Fed.Appx. 579 (11th Cir. July 18, 2012). This
unpublished opinion nowhere discusses, interprets or even mentions § 1692a(6)(A); rather,
Birster addresses circumstances under which an entity attempting to enforce a client’s security
interest may be deemed a debt collector for FDCPA purposes. The Shedds never even attempted
to relate Birster to their skeletal § 1692a(6)(A) argument.

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person to whom that debt is owed, rendering it a “creditor” under the FDCPA; (iii) extensive
(and apparently unchallenged) authorities interpreting § 1692a(6)(A) as applying to creditors
collecting debts in their own names; and (iv) a dearth of any supporting authority, reasoning or
other development of plaintiffs’ conclusory argument that § 1692a(6)(A) is limited to employees
and officers of creditors.
Based on this universe of facts, law and argument presented by the parties and uncovered
by the Court’s own research, the undersigned entered an Order (doc. 220) on June 13, 2016 that,
inter alia, granted Wells Fargo’s Motion for Judgment on the Pleadings as to Count Sixteen. In
so doing, the June 13 Order began with the premise that “[b]ased on the repeated, consistent
allegations in both sides’ pleadings that Wells Fargo owns the Shedds’ debt, it cannot reasonably
be disputed for Rule 12(c) purposes that Wells Fargo is a person to whom that debt is owed,
thereby rendering it a ‘creditor’ under the FDCPA.” (Doc. 220, at 14.)2 The June 13 Order then
noted the Shedds’ conclusory argument that the § 1692a(6)(A) exemption is not available to a
creditor entity itself, but rejected that contention because “abundant authority has construed this
exemption as reaching creditors themselves, not just their officers or employees.” (Id. at 14-15.)
The June 13 Order cited no fewer than 11 district court decisions (including eight from this
Circuit) that have interpreted the § 1692a(6)(A) exemption in such a manner. The June 13 Order
explained that “Plaintiffs’ objection, unsupported by any citations to case authorities, that the §
1692a(6)(A) exemption is confined to officers and employees of creditors, and does not cover
creditors, is refuted by this extensive decisional authority.” (Id. at 15.) Based on these
determinations, the June 13 Order concluded that Count Sixteen was properly dismissed and
2

To be sure, the June 13 Order recognized that plaintiffs had insisted in their
Surreply that “Wells Fargo does not own the loan.” (Doc. 208-1, at 8.) In the first place, the
June 13 Order observed, that argument was procedurally improper and therefore due to be
ignored because it was raised for the first time in a Surreply. (Doc. 220, at 13-14 n.14 (“the
argument that Wells Fargo does not own the mortgage is a new argument not properly raised for
the first time in a reply or sur-reply”).) Even if that argument had been properly raised, the June
13 Order continued, it would not benefit the Shedds because “a Rule 12(c) Motion is evaluated
based on the pleadings, ‘accept[ing] as true all material facts alleged in the non-moving party’s
pleading.” (Id. at 14 n.14 (citation omitted).) “The Shedds having unambiguously, repeatedly
pleaded in their Third Amended Complaint that Wells Fargo owns their debt, they cannot
disavow those allegations in opposing the Motion for Judgment on the Pleadings merely because
such well-pleaded facts are now inconvenient.” (Id.)

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granted the Motion for Judgment on the Pleadings as to that issue. The June 13 Order did not
dismiss all claims asserted by the Shedds against Wells Fargo; to the contrary, as they
acknowledge, plaintiffs are still pursuing three federal statutory causes of action – two RESPA
claims and a FCRA claim – against Wells Fargo, not to mention their multiple pending claims
against the other defendants, Monument and Barclays.
On July 10, 2016, plaintiff Pamela Shedd filed a Motion for Interlocutory Review or for
Entry of Rule 54(b) Final Judgment (doc. 224). In that Motion and her supporting memoranda,
Shedd submitted nearly 30 pages of argument attacking the June 13 Order’s application of the §
1692a(6)(A) exemption to this case. The vast majority of those arguments had never been
presented to this Court for consideration while the Rule 12(c) Motion was pending. At any rate,
Shedd proposes two alternative methods of addressing what she calls an error of law, to-wit: (i)
certification of the June 13 Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b); or (ii)
entry of a final judgment under Rule 54(b), Fed.R.Civ.P., to allow her to take an immediate
appeal from the June 13 Order. Either way, she proposes that this action be stayed “insofar as it
involves Wells Fargo and Monument, but … allow her separate claims to proceed against
Barclays, including discovery, as those claims are factually and legally independent of her claims
against Wells Fargo and Monument, and to pursue discovery involving non-party witnesses not
relevant to the FDCPA claim.” (Doc. 224, at 1-2.)
II.

Motion for Interlocutory Appeal.
A.

Legal Standard.

Shedd’s Motion for Interlocutory Appeal is governed by 28 U.S.C. § 1292(b). That
section allows certification of an issue for interlocutory review when the district court is “of the
opinion that such order involves a controlling question of law as to which there is substantial
ground for difference of opinion and that immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
The Eleventh Circuit has explained that Ҥ 1292(b) sets a high threshold for certification
to prevent piecemeal appeals.” OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d
1344, 1359 (11th Cir. 2008). In that regard, “to obtain § 1292(b) certification, the litigant must
show not only that an immediate appeal will advance the termination of the litigation but also
that the appeal involves a controlling question of law as to which there is substantial ground for
difference of opinion.” Id. (citation and internal quotation marks omitted). “Most interlocutory

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orders do not meet this test.” Id.; see also McFarlin v. Conseco Services, LLC, 381 F.3d 1251,
1264 (11th Cir. 2004) (in exercising § 1292(b) discretion, appellate court “should keep in mind
that the great bulk of its review must be conducted after final judgment, with § 1292(b)
interlocutory review being a rare exception”); Camacho v. Puerto Rico Ports Authority, 369 F.3d
570, 573 (1st Cir. 2004) (“Section 1292(b) is meant to be used sparingly, and appeals under it are,
accordingly, hen’s-teeth rare.”). “Because permitting piecemeal appeals is bad policy,
permitting liberal use of § 1292(b) interlocutory appeals is bad policy.” McFarlin, 381 F.3d at
1259. Indeed, “interlocutory appeals are inherently disruptive, time-consuming, and expensive
… and consequently are generally disfavored.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d
1266, 1276 (11th Cir. 2000). As the movant seeking interlocutory appeal, Shedd bears the burden
of showing that all § 1292(b) prerequisites are satisfied and that this is one of the rare exceptions
in which judicial discretion should be exercised to grant this disfavored remedy. See OFS Fitel,
549 F.3d at 1359; McFarlin, 381 F.3d at 1264 (“[t]he burden of persuading us that a question of
law meeting the requirements of § 1292(b) clearly is presented is on the petitioning party”).
B.

The “Substantial Ground for Difference of Opinion” Requirement.

The Court agrees with Shedd that the June 13 Order involves a controlling question of
law, to-wit: whether the FDCPA’s exclusions from the scope of the term “debt collector”
encompass creditors collecting their own debts in their own names.3 However, the mere

3

That said, the Court rejects as inaccurate Shedd’s repeated assertion that, aside
from the § 1692a(6)(A) exemption, the June 13 Order implicitly found that Wells Fargo
otherwise met the FDCPA definition of a “debt collector.” See doc. 224, at 4 (“Had Wells Fargo
not otherwise met the definition of debt collector, the Court would not have resorted to the
exclusion it found in a(6)(A).”), 5 (“The Order found the [sic] Wells Fargo was a debt collector
under a(6)”); doc. 227, at 2-3 (“From the Court’s Order of June 13, 2016, it is obvious that the
Court necessarily determined that Wells Fargo met the threshold definition of ‘debt collector’ in
1692a(6) ….”), 4 (“The Order necessarily determined that Wells Fargo was a debt collector
….”). To be clear, the June 13 Order made neither express nor implicit determination that Wells
Fargo qualified as a FDCPA debt collector but for the § 1692a(6)(A) exemption. Plaintiffs and
Wells Fargo disagreed as to whether Wells Fargo did or did not qualify as a debt collector under
§ 1692a(6). The Court did not need to resolve that disagreement because, even if plaintiffs were
correct that Wells Fargo otherwise met the statutory definition of a debt collector, it was subject
to the § 1692a(6)(A) exemption. In other words, rather than “necessarily determining” that
Wells Fargo was a debt collector (as Shedd characterizes the June 13 Order), the Court merely
assumed – without deciding – that Wells Fargo otherwise met the statutory prerequisites to be
(Continued)
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presence of a controlling question of law is not sufficient to warrant § 1292(b) certification;
rather, the statute requires “substantial ground for difference of opinion” as to that controlling
question of law. Thus, “a court faced with a motion for certification must analyze the strength of
the arguments in opposition to the challenged ruling to decide whether the issue is truly one on
which there is a substantial ground for dispute.” APCC Services, Inc. v. AT & T Corp., 297 F.
Supp.2d 101, 107 (D.D.C. 2003). “The mere absence of binding authority does not constitute a
showing sufficient to satisfy § 1292(b), where numerous federal decisions are adverse to the
movants’ position and movants have failed to cite a single case authority or legal argument” to
the contrary. Williams v. Saxon Mortg. Co., 2007 WL 4105126, *2 (S.D. Ala. Nov. 15, 2007).
Rather, “[t]o demonstrate the existence of a substantial ground for difference of opinion, the
appellant must show that at least two courts interpret the legal principle differently.” Ibrahim v.
FINR III, LLC, 2016 WL 409630, *3 (M.D. Fla. Feb. 3, 2016) (citation and internal quotation
marks omitted).
After careful examination of Shedd’s briefs, the Court concludes that she has not satisfied
her burden of demonstrating a substantial ground for difference of opinion as to whether the
FDCPA covers a creditor collecting its own debt in its own name. In briefing the issue on Wells
Fargo’s Rule 12(c) Motion, Shedd failed to identify a single case interpreting the § 1692a(6)(A)
exemption as not covering creditors. She repeats the omission on her Motion for Interlocutory
Appeal. Despite all her rhetoric spanning dozens of pages, Shedd identifies no decisional
authority from any jurisdiction that construes the § 1692a(6)(A) exemption in the manner she
says it should have been interpreted here.
In an unsuccessful attempt to obscure this fundamental deficiency, Shedd engages in at
least three tactics. First, she criticizes the June 13 Order as being “contrary to recent rulings of
the Eleventh Circuit” (doc. 227, at 1) and says it “runs counter to Eleventh Circuit and Supreme
Court precedent” (doc. 224, at 5); however, none of the cases she cites even mention the §
1692a(6)(A) exemption, much less apply it. In fact, one of the decisions on which Shedd relies

deemed a debt collector for FDCPA purposes. Thus, any construction of that Order as having
“necessarily decided” the question is incorrect.

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cuts sharply and decisively against her position.4 In Davidson v. Capital One Bank (USA), N.A.,
797 F.3d 1309 (11th Cir. 2015), the Eleventh Circuit observed, “Unlike debt collectors, creditors
typically are not subject to the FDCPA.” Id. at 1313 (emphasis added).5 The Davidson court
identified only two circumstances in which a creditor may be subject to the FDCPA, to-wit: (i) a
creditor who “receives an assignment or transfer of a debt in default solely for the purpose of
facilitating collection of such debt for another” is not considered a FDCPA creditor and therefore
may be liable; and (ii) a creditor who “in the process of collecting his own debts, uses any name
other than his own which would indicate that a third person is collecting or attempting to collect
such debts” may have FDCPA liability. Id. at 1313-14. Shedd has not argued – and the
pleadings do not support an inference – that either of these circumstances is present here. Thus,
the June 13 Order is fully consistent with the Davidson ruling that “creditors typically are not

4

Another Eleventh Circuit case on which Shedd relies is inapposite. In Johnson v.
Midland Funding, LLC, 823 F.3d 1334 (11th Cir. 2016), the Eleventh Circuit examined the
relationship between the Bankruptcy Code and the FDCPA as it relates to filing proofs of claim
in a bankruptcy case. Along the way, the Johnson court made certain general pronouncements
such as stating that “the FDCPA does not reach all creditors” and that it “kicks in only when the
creditor is a debt collector” as defined in the FDCPA. Johnson, 823 F.3d at 1339, 1341. The
Johnson court did not purport to examine any of the exemptions to the FDCPA definition of
“debt collector,” much less the particular exemption set forth at § 1692a(6)(A), or to catalog the
scenarios under which a “creditor” under the FDCPA would or would not qualify as a debt
collector. Johnson’s general comments about FDCPA and creditors are not particularly
illuminating here, and Shedd’s reliance in her reply brief on bits and pieces of language extracted
from Johnson (see doc. 337, at 4) out of context does not advance her cause.
5

This aspect of Davidson finds broad support among federal appellate courts. See,
e.g., Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 722 (5th Cir. 2013) (“the FDCPA
generally applies to debt collectors, but not to creditors, except to the extent that [a creditor]
receives an assignment or transfer of a debt in default solely for the purpose of facilitating
collection of such debt for another”) (citation and internal quotation marks omitted); Pollice v.
National Tax Funding, L.P., 225 F.3d 379, 403 (3rd Cir. 2000) (“Creditors – as opposed to ‘debt
collectors’ – generally are not subject to the FDCPA.”); Aubert v. American General Finance,
Inc., 137 F.3d 976, 978 (7th Cir. 1998) (“Creditors who collect in their own name and whose
principal business is not debt collection … are not subject to the Act. … Because creditors are
generally presumed to restrain their abusive collection practices out of a desire to protect their
corporate goodwill, their debt collection activities are not subject to the Act unless they collect
under a name other than their own.”).

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subject to the FDCPA.” Plaintiffs’ reliance on Davidson to satisfy the “substantial ground for
difference of opinion” prong of the § 1292(b) certification standard thus fails.6
As a second means of steering the focus away from the dearth of authority interpreting
the § 1692a(6)(A) exemption in the manner she advocates, Shedd implies that this Court derived
its conclusions in the June 13 Order from thin air, with minimal supporting caselaw. Indeed,
Shedd maintains that the June 13 Order “relies primarily on Kimber v. Federal Financial Corp.,
668 F. Supp. 1480 (M.D. Ala. 1987).” (Doc. 224, at 6.) This statement is inaccurate. The June
13 Order did not rely “primarily” on Kimber; to the contrary, Kimber was one of nearly a dozen
opinions (eight of which originated in this Circuit) cited in the Order that interpreted the §
6

There is a deeper problem with the authorities and arguments presented on pages
5 through 8 of Shedd’s § 1292(b) Motion (doc. 224) in support of the “substantial ground for
difference of opinion” prong. In that section of her analysis, Shedd presents appellate authorities
standing for the proposition that statutes should be construed narrowly and that the Eleventh
Circuit has resisted efforts to engraft additional language onto the terms of the FDCPA. None of
these arguments or authorities were presented by plaintiffs in briefing the Motion for Judgment
on the Pleadings. The entire line of reasoning presented on pages 5 through 8 of the Motion is a
brand-new argument that Shedd is unveiling for the first time in her § 1292(b) Motion. Courts
have declined to certify interlocutory appeals grounded in newly raised arguments. See, e.g.,
Broad v. Hitts, 2011 WL 5546298, *2 (M.D. Ga. Nov. 14, 2011) (“Amerisure cannot now raise
new arguments for summary judgment in a motion for interlocutory appeal”); Lindley v. Life
Investors Ins. Co. of America, 2010 WL 2465515, *4 (N.D. Okla. June 11, 2010) (“the Court will
not consider this new argument as a ground to certify an interlocutory appeal”). It would make
little sense, and would be inefficient to the extreme, to allow a litigant on interlocutory appeal to
present previously available arguments to the appellate court that it never articulated to the
district court. More generally, under settled rules of practice, it is highly unlikely that the
Eleventh Circuit would even consider such newly raised arguments on appeal. See Ramirez v.
Secretary, U.S. Dep’t of Transp., 686 F.3d 1239, 1249 (11th Cir. 2012) (“It is well-settled that we
will generally refuse to consider arguments raised for the first time on appeal.”); Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“[T]oo often our colleagues
on the district courts complain that the appellate cases about which they read were not the cases
argued before them. We cannot allow Plaintiff to argue a different case from the case she
presented to the district court.”) (citation omitted); Hurley v. Moore, 233 F.3d 1295, 1297 (11th
Cir. 2000) (“Arguments raised for the first time on appeal are not properly before this Court.”);
FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993) (“appellate courts generally will
not consider an issue or theory that was not raised in the district court”) (citation omitted).
Obviously, if the legal basis for Shedd’s interlocutory appeal would not properly be before the
appellate court, then she will have an extraordinarily difficult time establishing a “substantial
ground for difference of opinion” to support § 1292(b) certification for the purpose of raising
procedurally improper arguments before the Eleventh Circuit at this time.

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1692a(6)(A) exclusion as reaching creditors themselves, not just their employees and officers. It
is thus incorrect to paint Kimber as an isolated decision that stands alone in FDCPA
jurisprudence, or to portray the June 13 Order as blindly adhering to a singular outlier trial court
case that is out of step with the heartland of authorities.7 As shown by both the June 13 Order

7

Truth be told, the June 13 Order recited only a small subset of the universe of
authorities that have interpreted the FDCPA as excluding most creditors. See, e.g., Nielsen v.
Dickerson, 307 F.3d 623, 634 (7th Cir. 2002) (“creditors who are attempting to collect their own
debts generally are not considered debt collectors under the statute”); McZeal v. Ocwen
Financial Corp., 2001 WL 422375, *1 (5th Cir. Mar. 28, 2001) (“a creditor, such as Ocwen, that
collects its own debt obtained prior to default is not a debt collector under the FDCPA”); Perry v.
Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (“[t]he legislative history of section
1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors”);
McCrimmon v. Mariner Finance North Carolina, Inc., 154 F. Supp.3d 256, 258 (M.D.N.C.
2016) (citing § 1692a(6)(A) in support of conclusion that “Mariner does not qualify as a debt
collector for the purposes of the FDCPA. Instead, Mariner is a creditor because it extended
credit directly to McCrimmon.”); Rajbhandari v. U.S. Bank, 305 F.R.D. 689, 692 (S.D. Fla.
2015) (“[a] debt collector does not include the consumer’s creditors”) (citations omitted); Ware
v. Bank of America Corp., 9 F. Supp.3d 1329, 1337 (N.D. Ga. 2014) (“a consumer’s creditors or
an assignee of a debt are not considered ‘debt collectors’” for FDCPA purposes); Deutsche Bank
Trust Co. Americas v. Garst, 989 F. Supp.2d 1194, 1201 (N.D. Ala. 2013) (“the FDCPA does
not apply to creditors who seek to collect only what is owed them”); Buckentin v. SunTrust
Mortg. Corp., 928 F. Supp.2d 1273, 1294 (N.D. Ala. 2013) (“In general, the FDCPA applies
only to debt collectors and not to creditors ….”) (citation and internal quotation marks omitted);
Jara v. Aurora Loan Services, 852 F. Supp.2d 1204, 1211 (N.D. Cal. 2012) (“[t]he legislative
history of section 1692a(6) indicates conclusively that a debt collector does not include the
consumer’s creditors”) (citation omitted); Kuria v. Palisades Acquisition XVI, LLC, 752 F.
Supp.2d 1293, 1301 (N.D. Ga. 2010) (“The FDCPA is generally inapplicable to a ‘creditor’
unless that entity has used a third-party name to collect its own debt.”); Reese v. JPMorgan
Chase & Co., 686 F. Supp.2d 1291, 1308 (S.D. Fla. 2009) (“[t]he Amended Complaint clearly
establishes that neither Chase, nor Chase Home Finance are ‘debt collectors’ as contemplated by
the [FDCPA] which explicitly excludes a consumer’s creditors”); Williams v. Countrywide Home
Loans, Inc., 504 F. Supp.2d 176, 190 (S.D. Tex. 2007) (citing § 1692a(6)(A) exclusion to
support conclusion that “[m]ortgage companies collecting debts are not ‘debt collectors’” under
the FDCPA); In re Cooper, 253 B.R. 286, 291 (N.D. Fla. 2000) (“Direct collection actions by
creditors on their own debt do not fall within the provisions of the FDCPA.”); Franceschi v.
Mautner-Glick Corp., 22 F. Supp.2d 250, 253 (S.D.N.Y. 1998) (“For the most part, creditors are
not subject to the FDCPA.”); Jonak v. John Hancock Mut. Life Ins. Co., 629 F. Supp. 90, 94 (D.
Neb. 1985) (the FDCPA’s “protections are limited to the activities of ‘debt collectors,’ the
definition of which excludes … creditors seeking to collect their own debts”); Kizer v. Finance
America Credit Corp., 454 F. Supp. 937, 939 (N.D. Miss. 1978) (examining § 1692a(6)(A) and
other FDCPA sections and concluding that “debt collectors” covered by the act “are those who
regularly collect debts for others and not creditors of consumers”); Dinsmore v. Reliable Credit
(Continued)
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and this Order, court after court after court has held that the FDCPA does not apply to creditors
attempting to collect their own debts in their own name. The well-pleaded facts in the Third
Amended Complaint establish that Wells Fargo falls into this category. There can be no
“substantial ground for difference of opinion” here, especially given Shedd’s failure to identify
any authorities holding that a creditor in Wells Fargo’s position can be liable under the FDCPA.
Third, Shedd disguises her lack of supporting authority through use of misleading
rhetoric that “courts are divided as to whether a finding that a party is a creditor under (6)(a)
entitles it to per se exemption as a debt collector.” (Doc. 224, at 9.) The only case that Shedd
appears to cite for the proposition that a “circuit split” exists as to whether creditors collecting
their own debt in their own name may be subject to the FDCPA is a Ninth Circuit decision
captioned Schlegel v. Wells Fargo Bank, N.A., 720 F.3d 1204 (9th Cir. 2013). In Schlegel, the
court indicated in a footnote that it rejected an absolute rule that “a person who meets the
FDCPA definition of ‘creditor’ is per se not a ‘debt collector.’” Schlegel, 720 F.3d at 1208 n.2.
But the cases on which the undersigned relies in this Order and in the June 13 Order do not hold
that creditors can never be FDCPA debt collectors.8 Instead, what they establish – and what the

Ass’n, Inc., 2011 WL 4755198, *3 (D. Or. Sept. 30, 2011) (“a creditor is not subject to the
FDCPA except when seeking to collect debts due to it under an assumed name”); Rispoli v. Bank
of America, 2011 WL 3204725, *3 (W.D. Wash. July 1, 2011) (“as a matter of law a ‘debt
collector’ under the FDCPA cannot be a consumer’s creditor”); Castro v. Revere Collection
Agency, 1991 WL 147529, *2 (E.D. Penn. July 25, 1991) (“the Fair Debt Collection Practices
Act does not apply to creditors except in certain circumstances not present in this case,” namely
where a creditor is collecting a debt owed to someone else, or when a creditor uses an alias in
collecting its own debts); D. Pridgen & R. Alderman, Consumer Credit and the Law § 12:10
(“One of the most significant aspects of the FDCPA definition of debt collector is that it does not
include a creditor attempting to collect his or her own debts.”).
8

Nor did the June 13 Order declare that creditors are automatically, categorically
forbidden from being classified as debt collectors under the FDCPA. To the contrary, the June
13 Order recognized that the FDCPA defines “creditor” in a manner that excludes persons who
receive assignment or transfer of a defaulted debt solely for the purpose of facilitating collection
of such debt for another. (Doc. 220, at 14.) Likewise, the case law cited in that Order observed
the limitation that the creditor exclusion does not apply to creditors who are not collecting their
own debts. (Id. at 15 n.16.) And the June 13 Order certainly did not reject or undermine
statutory language extending FDCPA debt collector status to “any creditor who, in the process of
collecting his own debts, uses any name other than his own which would indicate that a third
person is collecting or attempting to collect such debts.” 15 U.S.C. § 1692a(6). The June 13
(Continued)
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June 13 Order found – is that creditors typically are exempt from the scope of the FDCPA,
except in certain narrow exceptions (i.e., a creditor who receives a debt in default solely for the
purpose of facilitating collection of such debt for another, or a creditor using a name other than
its own in collecting its own debts) not present here. That is what the Eleventh Circuit explained
just last year. See Davidson, 797 F.3d at 1313. And even courts in the Ninth Circuit postSchlegel agree with that proposition.9 There is no circuit split here.
For all of the foregoing reasons, the Court concludes that Shedd has not demonstrated a
substantial ground for difference of opinion that might justify an interlocutory appeal as to the
June 13 Order’s determination that Wells Fargo is exempt from the FDCPA as a creditor
collecting its own debt in its own name.10

Order did not discuss or analyze these exceptions to the general rule that creditors are not subject
to the FDCPA because those exceptions plainly do not apply, based on the well-pleaded factual
allegations of the Third Amended Complaint. Plaintiffs never maintained otherwise. In
requesting certification of an interlocutory appeal, Shedd would seize on certain imprecise
language from the June 13 Order, namely, the statement that “Wells Fargo is a creditor and
therefore exempt from the FDCPA” (doc. 227, at 3 (citing doc. 220, at 16)), to assert that this
Court was adopting a per se rule. For the reasons stated herein, that characterization is incorrect.
The June 13 Order treats the interrelationship between creditors and the FDCPA in the same
manner that the Eleventh Circuit did in Davidson, albeit expressed in slightly different terms.
The general rule is, clearly and unambiguously, that creditors are not subject to the FDCPA. Are
there exceptions to that general rule? Sure. But the Third Amended Complaint does not identify
any facts or circumstances that might support application of any such exceptions here. Shedd
cannot parlay the imprecise language in one sentence of the June 13 Order into a straw man
enabling her to launch an interlocutory appeal that derails the orderly progress of these
proceedings and puts this lawsuit on hold for potentially a year or longer while plaintiffs pursue a
legal issue as to which no substantial ground for difference of opinion actually exists.
9

See, e.g., Patera v. Citibank, N.A., 79 F. Supp.3d 1074, 1090 (N.D. Cal. 2015)
(recognizing that the FDCPA “excludes creditors collecting on their own debts”) (citation
omitted); In re Ganas, 513 B.R. 394, 405-06 (Bankr. E.D. Cal. 2014) (“with the limited
exception of a creditor using an alias to make it appear that a third-party is involved, the FDCPA
defined debt collector is limited to a person attempting to obtain payment on an obligation which
was originally owed to another person”).
10

In her Motion, Shedd posits that a “corollary issue” should also be submitted to
the Eleventh Circuit on interlocutory appeal. In particular, Shedd suggests that the appellate
court might also adjudicate whether Wells Fargo constitutes a “creditor” under the FDCPA even
though Judge Butler previously dismissed its counterclaim. (Doc. 224, at 11.) The June 13
Order addressed this argument in detail, finding it to be both (a) procedurally improper because it
(Continued)
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C.

The “Material Advancement” Requirement.

As noted, a separate criterion for certification of an issue for interlocutory review is that
“immediate appeal from the order may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). “This is not a difficult requirement to understand. It means
that resolution of a controlling legal question would serve to avoid a trial or otherwise
substantially shorten the litigation.” McFarlin, 381 F.3d at 1259. Thus, in order for
interlocutory appeal on a particular question to be appropriate, “the answer to that question must
substantially reduce the amount of litigation left in the case.” Id. “Unless a litigant can show
that an interlocutory order of the district court might have a ‘serious, perhaps irreparable,
consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal, the
general congressional policy against piecemeal review will preclude interlocutory appeal.”
Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981).
Shedd has not come close to meeting this stringent legal standard. In discussing the
“material advancement” requirement, Shedd explains that in the absence of § 1292(b)
certification, she will be “not entitled to depose Wells Fargo witnesses on issues related to her
FDCPA claim,” and that such a denial “will seriously circumscribe the scope of discovery.”
(Doc. 224, at 10.) True enough. The June 13 Order dismissed the FDCPA cause of action
against Wells Fargo; therefore, plaintiffs will not be permitted to undertake extensive, irrelevant
discovery targeted at that now-dismissed claim. But where is the “serious, perhaps irreparable,
consequence”? There is none. Merely arguing that plaintiffs would not be able to take as much

was raised for the first time in plaintiffs’ Surreply, and (b) legally meritless because on a Rule
12(c) motion a court must accept as true all material facts alleged in the complaint, and the
Shedds’ pleading unambiguously alleged that Wells Fargo owned the debt. (See doc. 220, at 1314 n.14.) Insofar as Shedd requests interlocutory review of this “corollary issue” of Wells
Fargo’s status as a creditor vel non, the Court declines to certify that issue and expressly finds
that it meets none of the § 1292(b) criteria for interlocutory appeal. Among other problems, this
issue is not a pure question of law and therefore is ill-suited for § 1292(b) review. See, e.g.,
Mamani v. Berzain, --- F.3d ----, 2016 WL 3349086, *7 (11th Cir. June 16, 2016) (“To be a pure
question of law for purposes of § 1292(b), an issue must be an abstract legal issue that the court
of appeals can decide quickly and cleanly.”) (citation and internal quotation marks omitted).
Also, Shedd has shown no substantial ground for difference of opinion as to the bedrock
principle that Rule 12(c) motions are adjudicated solely on the pleadings, accepting as true all
well-pleaded factual allegations therein.

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discovery now as they might like does nothing to satisfy Shedd’s burden of showing that an
immediate appeal may materially advance the ultimate termination of the litigation. Based on
the record and arguments before it, the Court readily concludes that granting an interlocutory
appeal would not substantially reduce the amount of litigation. All of the Shedds’ remaining
claims that have not been dismissed will still have to be litigated through discovery and trial.
The only difference is that, if interlocutory appeal is granted, the litigation of certain of those
claims will grind to a halt for a potentially protracted period of time because of the partial stay
that would necessarily accompany such interlocutory appeal.11 Thus, interlocutory appeal would
delay, not expedite, the final outcome of these proceedings and would guarantee multiple trials
and discovery periods. That fact renders this case ill-suited for certification under § 1292(b).
See, e.g., Kennett v. Bayada Home Health Care, Inc., 2016 WL 374231, *4 (D. Colo. Feb. 1,
2016) (“When granting an interlocutory appeal will delay, rather than expedite, the ultimate
outcome of the trial, federal courts have routinely declined to exercise their discretion to permit
such appeals.”).12
To understand the deficiencies in Shedd’s position, it may be helpful to compare a “nocertification” scenario to a “certification” scenario. If no interlocutory appeal is allowed, then all
of plaintiffs’ remaining claims against Wells Fargo, Monument and Barclays will move forward
11

Recall that Shedd has asked for all of plaintiffs’ claims against defendants Wells
Fargo and Monument to be stayed for the duration of any interlocutory appeal. Thus, she
envisions a scenario in which plaintiffs’ claims against Wells Fargo and Monument are stayed
indefinitely while an interlocutory appeal happens, with plaintiffs’ claims against defendant
Barclays moving forward to trial in the interim.
12

Nor does Shedd show “material advancement” by arguing that if interlocutory
appeal is granted, and if the Eleventh Circuit reverses the FDCPA portion of the June 13 Order,
it will trigger “more depositions against the same, previously-deposed witnesses … and a new
trial.” (Doc. 224, at 11.) Shedd readily admits that her FDCPA claim against Wells Fargo is
“dependent on specific facts unrelated to her remaining claims.” (Doc. 224, at 10; see also doc.
227, at 8 (“the FDCPA is not intertwined with other claims or parties”).) Plaintiffs are going to
have to depose fact witnesses regarding the other claims and other parties in any event. If an
interlocutory appeal were allowed, many of those depositions would be delayed for a potentially
extended period of time. Far from shortening the litigation, this stratagem would prolong it. A
far more orderly and efficient course of action would be for plaintiffs to move forward with
discovery and trial on all of their (concededly “unrelated”) remaining claims against all
defendants at this time. At the conclusion of those proceedings, a single unified appeal of all
issues, including the FDCPA claim against Wells Fargo, can be taken to the Eleventh Circuit.

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through discovery and trial in accordance with the governing Rule 16(b) Scheduling Order (doc.
206). After trial on those claims concludes, plaintiffs may (if they wish) appeal the FDCPA
issue – along with any other appealable issues that any party decides to pursue – to the Eleventh
Circuit in a single consolidated appeal. If the appellate court were to grant relief on the FDCPA
issue or any other, then the case may be remanded for further proceedings, including potentially
FDCPA-focused discovery and trial. By contrast, if an interlocutory appeal is certified, then all
of plaintiffs’ claims against Wells Fargo and Monument will be stayed, with only their claims
against Barclays proceeding through discovery and trial. At the conclusion of the interlocutory
appeal, if the Eleventh Circuit grants relief, discovery would be reopened as to Wells Fargo and
Monument and there would be a second trial involving plaintiffs’ claims against those
defendants. Such discovery and trial would embrace not only the newly-reactivated FDCPA
claim, but also plaintiffs’ other pending claims that were simply lying fallow in the interim.
Following that second trial, any party wishing to appeal any issue could present a second appeal
(this one as a matter of right) to the Eleventh Circuit, raising the potential of a third round of
discovery or even a third trial if relief were granted on any of those issues. This latter scenario
constitutes piecemeal litigation and piecemeal appeals at their worst.
The point is simple: Certifying interlocutory appeal of the FDCPA claim will not avoid a
trial or otherwise substantially shorten the litigation. To the contrary, it will almost certainly
delay the proceedings and will complicate and impede the orderly flow of this matter by creating
multiple, staggered sets of proceedings with discovery and trial happening in waves as to
different defendants at different times. Particularly given the fact that this case is well over two
years old and has already been delayed far longer than reasonably necessary because of suspect
litigation strategies, the Court has neither inclination nor appetite for exercising its discretion in a
manner that will prolong them further, with no countervailing benefits in efficiency.
For all of these reasons, the Court finds that Shedd has not satisfied her burden of
demonstrating that interlocutory appeal of the FDCPA ruling in the June 13 Order would
materially advance the ultimate termination of the litigation. Thus, § 1292(b) certification is
inappropriate because movant has established neither a substantial ground for difference of
opinion on a controlling issue of law, nor a likelihood that interlocutory review will materially
advance the ultimate termination of these proceedings. The Motion to Certify for Interlocutory
Review is properly denied on both of these independent grounds.

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III.

Motion for Rule 54(b) Final Judgment.
In the alternative, Shedd moves for entry of final judgment on Count Sixteen pursuant to

Rule 54(b), Fed.R.Civ.P.
“Ordinarily, … an order adjudicating fewer than all the claims in a suit, or adjudicating
the rights and liabilities of fewer than all the parties, is not a final judgment from which an
appeal may be taken.” Edwards v. Prime, Inc., 602 F.3d 1276, 1288 (11th Cir. 2010) (citations
omitted). Rule 54(b) creates an exception to this general principle by establishing a mechanism
through which the district court “may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines that there is no just reason
for delay.” Rule 54(b), Fed.R.Civ.P. Shedd invokes that rule here and requests that the Court
make a “no just reason for delay” determination, thereby allowing her to take an immediate
appeal of the portion of the June 13 Order that dismissed her FDCPA claim against Wells Fargo
without awaiting final disposition of plaintiffs’ remaining claims against all three defendants.
“A district court must follow a two-step analysis in determining whether a partial final
judgment may properly be certified under Rule 54(b). First, the court must determine that its
final judgment is, in fact, both ‘final’ and a ‘judgment.’ … Second, … the district court must
then determine that there is no ‘just reason for delay’ in certifying it as final and immediately
appealable.” Lloyd Noland Foundation, Inc. v. Tenet Health Care Corp., 483 F.3d 773, 777 (11th
Cir. 2007) (citations omitted). The second step is of crucial importance here. The Eleventh
Circuit has emphasized that circumstances in which Rule 54(b) certification is appropriate “will
be encountered only rarely.” Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166
(11th Cir. 1997); see also In re Southeast Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995)
(Rule 54(b) certification is warranted only in the “infrequent harsh case”). In that regard, Rule
54(b) must be applied in a manner that “preserves the historic federal policy against piecemeal
appeals,” while also constraining its use to “instances in which immediate appeal would alleviate
some danger of hardship or injustice associated with delay.” Ebrahimi, 114 F.3d at 166
(citations omitted). What this means, then, is that “Rule 54(b) certifications must be reserved for
the unusual case in which the costs and risks of multiplying the number of proceedings and of
overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early
and separate judgment as to some claims or parties.” Id. (citation and internal quotation marks
omitted).

-15-

This is not such an “unusual case.” Here, the dangers of piecemeal appeals and needless
proliferation of proceedings are not offset by “pressing needs of the litigants.” Indeed, there are
no such “pressing needs.” Shedd’s only identified “hardship” is her belief that the June 13 Order
got it wrong and that she does not want to wait to take discovery on her FDCPA claim against
Wells Fargo. (Doc. 224, at 15.) That is not sufficient, as a matter of law. See, e.g., Morgan v.
Bill Vann Co., 2013 WL 5445632, *2 n.2 (S.D. Ala. Sept. 30, 2013) (“Courts may not
accommodate attorneys just because they want to appeal immediately ….”) (citations omitted);
McCann v. Mobile County Personnel Bd., 2006 WL 2355405, *3 (S.D. Ala. Aug. 14, 2006) (to
qualify under Rule 54(b), “[a]ny such hardship must be ‘unusual,’ extending beyond the
inevitable consequence of awaiting resolution of one’s case”) (citation omitted). To be sure,
Shedd complains that “the events in question occurred years ago and she is presently facing a
balloon note in August 2016.” (Id.) But granting a Rule 54(b) certification would neither
change that fact nor alter that hardship. To the contrary, such a certification would introduce
new, extensive and unnecessary delay to 75% of her claims against Wells Fargo to enable her to
pursue an immediate (and in this Court’s view, patently futile) appeal of an adverse ruling as to
the other 25%. (See doc. 224, at 15 (“resolving this threshold issue now … will indeed resolve at
least 25 percent of the case against Wells Fargo”).)
Simply put, the Court is convinced that this is not one of the rare cases in which Rule
54(b) certification is appropriate. There is no indication and no reason to believe that immediate
appeal of the June 13 Order would alleviate some danger of hardship or injustice to Shedd. As
such, her alternative Motion for Entry of Rule 54(b) Final Judgment is properly denied.
IV.

Conclusion.
For all of the foregoing reasons, plaintiff Pam Shedd’s Motion to Amend and Certify

Order for Interlocutory Review, or in the Alternative for Entry of Rule 54(b) Final Judgment
(doc. 224) is denied in its entirety.
DONE and ORDERED this 31st day of August, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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