Salewske et al v. Trott & Trott, P.C.

Filing 22

ORDER Overruling 17 Objections, Adopting in Part and Modifying in Part 16 Report and Recommendation, and Denying Defendant's 11 Motion to Dismiss. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DAVID SALEWSKE, et al.,
Plaintiffs,
v.

Case No. 16-cv-13326
Honorable Thomas L. Ludington

TROTT & TROTT P.C.,
Defendant.
__________________________________________/
ORDER OVERRULING OBJECTIONS, ADOPTING IN PART
AND MODIFYING IN PART REPORT AND RECOMMENDATION,
AND DENYING DEFENDANT’S MOTION TO DISMISS
On August 10, 2016, Plaintiffs David and Shari Salewske initiated the above-captioned
action against Defendant Trott & Trott, P.C. (also known as Trott Law, P.C.) by filing their
complaint in the Western District of Michigan.

Plaintiffs allege generally that Defendant

violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692c(b), 1692d(4),
and 1692e in the process of conducting a foreclosure by advertisement sale under Michigan law.
Factually, Plaintiffs allege that Defendant violated the listed provisions of the FDCPA by placing
Notices of Foreclosure Sales (the “Notices”) in newspapers and other public places, which
included the following information: (1) that Defendant was a debt collector attempting to collect
a mortgage secured debt; (2) the mortgager’s name; (3) the amount of the mortgage; (4) the fact
that Plaintiffs were in default, authorizing the exercise of the power of sale in the mortgage; and
(5) a provision notifying Plaintiffs that if they were in active military service they should contact
Defendant. See Compl. ECF No. 1. To the extent Defendant’s Notices complied with Michigan
law, Plaintiffs allege that Michigan Compiled Law § 600.3212 is preempted by the FDCPA’s
preemption clause, 15 U.S.C. § 1692n, and the Supremacy clause of the United States

Constitution. The case was subsequently transferred to the Eastern District of Michigan on
September 14, 2016, pursuant to the parties’ stipulation. See ECF No. 2. Plaintiffs then filed a
17-page amended complaint on September 19, 2016, adding additional legal support for their
claims. See Am. Compl. ECF No. 8.
The matter was referred to Magistrate Judge Patricia T. Morris for pretrial management.
See ECF No. 9. On October 5, 2016, Defendant moved to dismiss Plaintiffs’ amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiffs had failed to state a
claim under the FDCPA. See Mot. Dismiss, ECF No. 11. Rule 12(b)(6) allows a party to move
for dismissal of a complaint on the basis that it “fail[s] to state a claim upon which relief can be
granted.” The moving party bears the burden of showing that the opposing party has failed to
adequately state a claim for relief. DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
Through its motion, Defendant argued that the Notices could not constitute communication in
connection with the collection of a debt because they were required by Michigan law. Id. On
March 16, 2017 the magistrate judge issued her report, recommending that Defendant’s motion
to dismiss be denied. See Rep. & Rec., ECF No. 16. The magistrate judge reasoned that,
interpreting the facts in a light most favorable to Plaintiffs, a reasonable jury could find that the
Notices were published in connection with Defendant’s effort to collect a debt. Thus, the
Notices could be governed by the FDCPA if, as addressed hereafter, Defendant’s conduct in
collecting the debt, the means they employed to collect the debt, or its communications violated
the FDCPA. Defendant timely objected to that report. See ECF No. 17.
I.
Plaintiffs David and Shari Salewske are residents of Cheboygan, Michigan. See Am.
Compl. ¶ 30. After Plaintiffs defaulted on certain mortgage payments, collection efforts were

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referred to Defendant Trott & Trott, which is a foreclosure law firm located in Farmington Hills,
Michigan. Id. at ¶ 31.

Plaintiffs allege that Defendant is in the business of “using the

newspapers, internet, county buildings and mail to communicate the collection of consumer
debts originally owed to others to sell the underlying mortgage debt.” Id.
Defendant’s practice of foreclosing mortgages by advertisement is permitted under
Michigan law.1 Specifically, § 600.3201 provides that “[e]very mortgage of real estate, which
contains a power of sale, upon default being made in any condition of such mortgage, may be
foreclosed by advertisement, in the cases and in the manner specified in this chapter.” Id. The
statute requires that “[n]otice that the mortgage will be foreclosed by a sale of the mortgaged
premises … shall be given by publishing the same for 4 successive weeks at least once in each
week, in a newspaper published in the county where the premises included in the mortgage and
intended to be sold … are situated.” Mich. Comp. Laws § 600.3208. The statute also requires
that, “within 15 days after the first publication of the notice, a true copy shall be posted in a
conspicuous place upon any part of the premises described in the notice.” Id. Such notice must
include the following:
(a) The names of the mortgagor, the original mortgagee, and the foreclosing assignee,
if any.
(b) The date of the mortgage and the date the mortgage was recorded.
(c) The amount claimed to be due on the mortgage on the date of the notice.
(d) A description of the mortgaged premises that substantially conforms with the
description contained in the mortgage.
(e) For a mortgage executed on or after January 1, 1965, the length of the redemption
period as determined under section 3240.1

1

The process of foreclosure by advertisement is not unique to Michigan. The practice is also authorized by statute in
Tennessee, which is within the Sixth Circuit, See Tenn. Code Ann. § 35-5-101, as well as in Minnesota, See Minn.
Stat. Ann. § 580.01.

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(f) A statement that if the property is sold at a foreclosure sale under this chapter,
under section 32782 the borrower will be held responsible to the person who buys
the property at the mortgage foreclosure sale or to the mortgage holder for
damaging the property during the redemption period.
Mich. Comp. Laws § 600.3212.
While Plaintiffs’ complaint is thin on facts, it appears that on July 22, 2016, Defendant
sent Plaintiffs a notice foreclosure sale. See Am. Compl. Ex. 1. The notice first disclaimed that
“THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. ANY
INFORMATION WE OBTAIN WILL BE USED FOR THAT PURPOSE.” Id. The letter then
informed Plaintiffs that they had defaulted on a mortgage to Mortgage Electronic Registration
Systems, Inc., later assigned to Wilmington Trust National Association as successor trustee to
Bear Stearns Alt-A Trust. Id. The mortgage was dated May 25, 2006 and recorded on June 9,
2006. Id. The letter then expressed that “notice is hereby given that said mortgage will be
foreclosed by a sale of the mortgaged premises, or some part of them, at public venue, at the
place of holding circuit court within Cheboygan County, at 11:00 AM, on August 19, 2016.” Id.
The notice contained a legal description of the mortgaged premise, the amount of default, and
informed Plaintiffs that “[t]he redemption period shall be 6 months from the date of such sale,
unless determined abandoned ….” Id. Plaintiffs do not allege that they responded to the initial
notice letter.
In compliance with §§ 600.3208 and 600.3212, Defendants then published Notice of the
foreclosure sale in the local Cheboygan paper and Detroit Legal News, and at Cheboygan county
buildings from July 22 through August 5, 2016. See Am. Compl. ¶ 39. Defendant also published
the Notice at Plaintiff’s residence on July 22, 2016. Id. The published Notice is substantially
similar to the notice letter sent to Plaintiffs. See Am. Compl. Ex. 2. It contains the same initial
disclaimer that “THE FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A
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DEBT. ANY INFORMATION WE OBTAIN WILL BE USED FOR THAT PURPOSE.” The
published Notice named the Salewskes as the mortgagors, stated the identity of the mortgagee,
the amount of the debt, a legal description of the property, and the redemption period. In
response to Defendant’s publications, Plaintiff initiated the present lawsuit on August 10, 2016,
alleging that Defendant’s Notices violated the FDCPA. See ECF No. 1.
II.
By its express terms, the FDCPA was enacted “to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C.A. § 1692(e). The FDCPA
applies to means, conduct, and communications that are “in connection with the collection of any
debt.” See 15 U.S.C. §§ 1692c(b), 1692d(4), & 1692e.
The FDCPA is “an extraordinarily broad statute and must be construed accordingly.”
Stratton v. Portfolio Recovery Assocs., LLC, 770 F.3d 443, 448 (6th Cir. 2014) (quotation and
citation omitted). To determine whether the FDCPA is implicated, the conduct at issue is viewed
through the eyes of the “least sophisticated consumer.” Currier v. First Resolution Inv. Corp.,
762 F.3d 529, 533 (6th Cir. 2014). “This standard recognizes that the FDCPA protects the
gullible and the shrewd alike while simultaneously presuming a basic level of reasonableness
and understanding on the part of the debtor, thus preventing liability for bizarre or idiosyncratic
interpretations of debt collection Notices.” Id. The FCDPA is also a strict liability statute, and
therefore “[a] plaintiff does not need to prove knowledge or intent … and does not have to have
suffered actual damages.” Stratton, 770 F.3d. at 449.

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Plaintiffs’ allegations center around three provision of the FDCPA. See Am. Compl. ¶
62. First, Plaintiffs allege that Defendant violated 15 U.S.C. § 1692e, which prohibit a debt
collector from using any “false, deceptive, or misleading representations or means in connection
with the collection of any debt.” Id. (Emphasis added). Specifically, Plaintiffs allege the
publications violated §1692e(1), prohibiting “[t]he use of any false representation or deceptive
means to collect or attempt to collect any debt or obtain information concerning a consumer,”
and § 1692e(6), prohibiting a debt collector from making any “false representation or implication
that a sale … shall cause the consumer to … lose any claim or defense to payment of the debt; or
… become subject to any practice prohibited by [the Act].” Second, Plaintiffs allege that
Defendant violated § 1692d(4), which prohibits a debt collector from engaging in “conduct the
natural consequence of which is to harass, oppress, or abuse any person in connection with the
collection of a debt, ” including “[t]he advertisement for sale of any debt to coerce payment of
the debt.” Id. (Emphasis added). Third and finally, Plaintiffs allege that Defendant violated §
1692c(b), which provides as follows:
Except as provided in section 1692b of this title, without the prior consent of the
consumer given directly to the debt collector, or the express permission of a court
of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer, his attorney, a
consumer reporting agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt collector.
Id. (Emphasis added). The first provision, § 1692e, prohibits certain means, the second, §
1692d(4), prohibits certain conduct, and the third, § 1692c(b), prohibits certain communications.
All three provisions require some “connection with the collection of any debt” to be actionable
under the FDCPA.
III.

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On October 5, 2016, Defendant moved to dismiss Plaintiffs’ FDCPA claims for failure to
state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). A
pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support
recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). In
considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant’s favor
and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 443, 439
(6th Cir. 2008). The pleader need not have provided “detailed factual allegations” to survive
dismissal, but the “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading
“must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face” and “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678-79 (quotations and
citation omitted).
Importantly, Defendant does not challenge any of the specific FDCPA claims raised by
Plaintiffs in its motion to dismiss, or draw any distinction between the prohibitions against
conduct, means, or communications. Instead, Defendant only broadly argues that its Notices
were not communications in connection with the collection of any debt because the published
Notices were related to a non-judicial foreclosure sale and in compliance with state law.
Defendant contends that the Notices were not animated by the purpose of collecting a debt from
Plaintiffs, but motivated by the necessity of complying with state law in order to enforce
payment of the mortgage debt. See Mot. Dismiss 7, ECF No. 11. Defendant further argues that
the mere fact that its Notices contained the standard FDCPA disclaimer language – noting that

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Defendant was “a debt collector attempting to collect a debt” – did not transform the notice into
debt collection activity because the inclusion of FDCPA notice language is legally irrelevant. See
Goodson v. Bank of Am., N.A., 600 F. App’x 422, 432 (6th Cir. 2015).
In support of these arguments, Defendant cites the Sixth Circuit’s opinion in Grden v.
Leikin Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir. 2011). There, the Sixth Circuit held
that “for a communication to be in connection with the collection of a debt, an animating purpose
of the communication must be to induce payment by the debtor.” Id. (citing Gburek v. Litton
Loan Serv. LP, 614 F.3d 380, 385 (7th Cir. 2010)). In determining the “animating purpose” of a
communication, courts generally apply the following seven factors:
(1) the nature of the relationship of the parties; (2) whether the communication
expressly demanded payment or stated a balance due; (3) whether it was sent in
response to an inquiry or request by the debtor; (4) whether the statements were
part of a strategy to make payment more likely; (5) whether the communication
was from a debt collector; (6) whether it stated that it was an attempt to collect a
debt; and (7) whether it threatened consequences should the debtor fail to pay.
Goodson v. Bank of Am., N.A., 600 F. App’x 422, 431 (6th Cir. 2015) (holding that the FDCPA
was not implicated where a law firm sent a plaintiff letters informing her of a change in her loan
servicer). “The animating purpose of the communication is a question of fact that generally is
committed to the discretion of the jurors, not the court.” Estep v. Manley Deas Kochalski, LLC,
552 F. App’x. 502, 505 (6th Cir. 2014). However, where “a reasonable jury could not find that
an animating purpose of the statements was to induce payment,” summary judgment is
appropriate. Grden, 643 F.3d at 173.
Recently, however, the Sixth Circuit has held that “mortgage foreclosure is debt
collection under the FDCPA.” Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 461 (6th Cir.
2013). Therefore, according to the circuit, “[l]awyers who meet the general definition of a ‘debt
collector’ must comply with the FDCPA when engaged in mortgage foreclosure.” Id. at 464.
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The court reasoned that “every mortgage foreclosure, judicial or otherwise, is undertaken for the
very purpose of obtaining payment on the underlying debt, either by persuasion (i.e., forcing a
settlement) or compulsion (i.e., obtaining a judgment of foreclosure, selling the home at auction,
and applying the proceeds from the sale to pay down the outstanding debt).” Id. at 461. The
court expressly overruled “a majority of district courts” that had found that mortgage foreclosure,
as the enforcement of a security interest, did not constitute debt collection unless a money
judgment was sought against the debtor in connection with that foreclosure, and specifically held
that “foreclosure’s legal nature … does not prevent it from being debt collection.” Id. at 461.2
As a district court within the Sixth Circuit, this Court is bound to apply this law.
The question therefore becomes how the Sixth Circuit’s opinion in Glazer interacts with
prior law governing whether the animating purpose of a statement is to induce payment. A
district court in the western district of Michigan has addressed this question in a case involving
the same Defendant and almost identical facts, and determined that the FDCPA applied to
Defendant’s actions. See Gray v. Trott & Trott, P.C., 16-cv-00237 (W. D. Mi., Nov. 10, 2016)
(Bell, J.). That court reasoned that the Notices were not purely informational, but were instead
issued as part of an effort to obtain payment on the underlying debt, bringing the Notices within
the ambit of the FDCPA under Glazer. The district court distinguished the Sixth Circuit’s

2

The Sixth Circuit’s rationale in Glazer has been rejected by numerous other Circuits, including the Ninth Circuit in
Vien-Phuong Thi Ho v. ReconTrust Co., NA, 858 F.3d 568 (9th Cir. 2016). Noting that “[f]oreclosure is a traditional
area of state concern,” the Ninth Circuit explained that when Congress legislates in a field that states have
traditionally occupied, federal courts must “start with the assumption that the historic police powers of the States
were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id.
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The Ninth Circuit found no such clear and
manifest purpose to supersede state law in the FDCPA. See also Burnett v. Mortgage Electronic Registration
Systems, Inc., 706 F.3d 1231 1239 (10th Cir. 2013) (suggesting that non-judicial foreclosure is not debt collection
for purposes of the FDCPA, but refusing to so hold); Warren v. Countrywide Home Loans, Inc., 342 F. App’x. 458,
461 (11th Cir. 2009) (holding that “foreclosing on a home is not debt collection for purposes” of the FDCPA); and
Brown v. Morris, 243 F. App’x. 31, 35 (5th Cir. 2007) (holding that “foreclosure is not per se FDCPA debt
collection”). But see Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 378–79 (4th Cir. 2006) (holding that
trustees, including attorneys, acting in connection with foreclosure proceedings could be considered debt collectors
acting in connection with the collection of a debt).

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decision in Goodson, in which a law firm sent a plaintiff letters informing her of a change in her
loan servicer. Goodson v. Bank of Am., N.A., 600 F. App’x 422, 431 (6th Cir. 2015). Because
the very purpose of publishing the notices of sale was to obtain payment on the underlying debt
through Michigan’s foreclosure by advertisement sale, the district court found that the plaintiff
had adequately stated a claim for relief. The court also denied defendant’s subsequent motion for
reconsideration. See Gray v. Trott & Trott, P.C., 16-cv-00237 (W. D. Mi., Jan. 19, 2017).
In the report and recommendation issued on March 16, 2017, the magistrate judge largely
agreed with this reasoning. Given the Sixth Circuit’s decision in Glazer, the magistrate judge
found that compliance with Michigan state law alone was not a complete defense to liability
under the FDCPA. In so finding, the magistrate judge rejected Defendant’s reliance on a nonbinding FTC Staff Commentary from 1988, which instructs that the term “communication” does
not include “a notice that is required by law as a prerequisite to enforcing a contractual
obligation between creditor and debtor, by judicial or nonjudicial legal process.” See FCT Staff
Commentary, 53 Fed. Reg. 50097-02, 50106 (Dec. 13, 1988). Finally, the magistrate judge
determined that, for the purpose of the motion to dismiss stage, a reasonable jury could find that
the animating purpose of the Notices was to induce payment of the debt. Defendant responded
by filing three objections.
IV.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review

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requires at least a review of the evidence before the magistrate judge; the Court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
A.
In its first objection, Defendant argues that the magistrate judge erred in concluding that
the FDCPA, if implicated, would preempt Michigan law. Defendant argues that the magistrate
judge’s conclusion in this regard would disturb 200 years of Michigan law. Problematically,
Defendant’s objection raises numerous arguments and cites various cases that were not raised in
their original motion to dismiss. Moreover, Defendant had the opportunity to file a reply to
Plaintiff’s response and chose not to do so. “[W]hile the Magistrate Judge Act, 28 U.S.C. § 631
et seq., permits de novo review by the district court if timely objections are filed, absent
compelling reasons, it does not allow parties to raise at the district court stage new arguments or
issues that were not presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n.1
(6th Cir. 2000) (citing Marshall v. Chater, 75 F.3d 1421 (10th Cir. 1996) (stating that “[i]ssues
raised for the first time in objections to the magistrate judge’s recommendation are deemed
waived”).
Defendant’s motion to dismiss was limited to an argument that its Notices were not
published in connection with the collection of any debt. It did not explicitly raise preemption,
but merely asserted that the Notices could not be considered communication “in connection with
the collection of any debt” because they tracked with the provisions of M.C.L. § 600.3212. The
magistrate judge rejected that argument, finding that compliance with state law was not sufficient

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in itself to shield Defendant from the potential for liability at the 12(b)(6) stage under Glazer.
This determination was not in error.
Contrary to Defendant’s suggestion, the magistrate judge’s report therefore did not
definitively resolve the scope of federal preemption over state law. Instead, the magistrate judge
simply found that the Plaintiff’s claims were sufficient to survive the arguments raised in
Defendant’s motion to dismiss. However, in order to promote docket clarity, the report will be
modified to the extent it appears to resolve the scope of preemption as a matter of law. Through
proper filings before the magistrate judge, the parties are free to litigate the extent Congress
intended specific provisions of the FDCPA (i.e. §§ 1692c(b), 1692d(4), and/or 1692e) to preempt
specific provisions of Michigan state law. Any such filings must account for the Sixth Circuit’s
opinion in Glazer. Defendant’s first objection will be overruled.
B.
Defendant next objects that the magistrate judge failed to meaningfully analyze the
animating purpose of the Notices. Defendant restates its argument that the Notices were not
intended to induce payment by the debtors, but were only intended to comply with Michigan
law. These allegations contradict the allegations in Plaintiffs’ complaint, as Plaintiffs alleged
that Defendant published the notice in an attempt to collect a debt from Plaintiffs. For the
purpose of the motion to dismiss stage, the magistrate judge agreed with Plaintiffs.
At the motion to dismiss stage the question before this Court is only whether, taking all
of Plaintiffs’ factual allegations as true, Plaintiffs have stated plausible claims demonstrating an
entitlement to relief. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555, 570. Through its
motion to dismiss, Defendant does not argue that the Notices in compliance with state law could
not, as a matter of law, be false, deceptive, or misleading under § 1692e. Defendant also does

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not argue that the Notices could not, as a matter of law, be “conduct the natural consequence of
which is to harass, oppress, or abuse” under § 1692d(4). The Court therefore will not reach those
issues on its own initiative. Instead, the only issue raised by Defendant is whether Notices
related to foreclosure proceedings can be considered communications “in connection with the
collection of any debt” under the FDCPA. The Sixth Circuit has held that they can, and that
“foreclosure’s legal nature … does not prevent it from being debt collection.” See Glazer, 704
F.3d at 461. Therefore, compliance with state law is not a complete defense to FDCPA liability
in the context of foreclosure sales. Even if the Notices were intended to comply with Michigan’s
law regarding foreclosure by advertisement, the ultimate utility of the Notices was as a means to
obtain payment on the underlying mortgage debt. As explained by the Glazer Court, “every
mortgage foreclosure, judicial or otherwise, is undertaken for the very purpose of obtaining
payment on the underlying debt, either by persuasion (i.e., forcing a settlement) or compulsion
(i.e., obtaining a judgment of foreclosure, selling the home at auction, and applying the proceeds
from the sale to pay down the outstanding debt).” See Glazer, 704 F.3d at 461 (emphasis in
original). Defendant’s second objection will be overruled.
C.
Third and finally, Defendant objects that the magistrate judge erred in finding a 1988
FTC Commentary unpersuasive. See FTC Staff Commentary, 53 Fed.Reg 50097-02 (Dec. 13,
1988). That commentary holds that “communication” under the FTC does not include “a notice
that is required by law as a prerequisite to enforcing a contractual obligation between creditor
and debtor, by judicial or nonjudicial legal process.” Id. However, as explained in the
introduction, the Staff Commentary “is not a formal trade regulation rule or advisory opinion of
the Commission, and thus is not binding on the Commission or the public.” Id.

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On the other hand, a published Sixth Circuit decision “remains controlling authority
unless an inconsistent decision of the United States Supreme Court requires modification of the
decision or [the Sixth Circuit] sitting en banc overrules the prior decision.” Sykes v. Anderson,
625 F.3d 294, 319 (6th Cir. 2010). In holding that foreclosure actions are debt collections under
the FTCPA, the Sixth Circuit in part relied upon the Act’s use of broad words such as
“communication.” See Glazer, 704 F.3d 453 at 461. The Sixth Circuit then observed that nothing
in the Act cabined the terms’ “applicability to collection efforts not legal in nature.” Id. As a
court within the Sixth Circuit, this Court is bound to apply this precedent, and thus must reject
any non-binding FTC guidance to the contrary. This is particularly true where the commentary
pre-dates the Sixth Circuit’s relevant opinion, and predates later amendments to the FDCPA.
Defendant’s third objection will be overruled.
V.
In conclusion, it is noted that this opinion is relatively narrow in its import. It holds only
that communications may be considered in connection with the collection of a debt even where a
party attempting to collect a debt has complied with Michigan’s foreclosure by advertisement
statute. It does not invalidate Michigan’s foreclosure by advertisement statute, nor does it hold
that any provision of the FTCPA preempts the Michigan foreclosure by advertisement statute.
This opinion does not even hold that Plaintiffs have stated claims upon which relief can be
granted as a matter of law; only that Defendant’s current challenge to Plaintiff’s complaint is
without merit under binding Sixth Circuit precedent.
Accordingly, it is ORDERED that Defendant’s objections, ECF No. 17, are
OVERRULED.

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It is further ORDERED that the Report and Recommendation, ECF No. 16, is
ADOPTED IN PART AND MODIFIED IN PART. The report is MODIFIED only to the
extent that it suggests that the issue of preemption has been resolved.
It is further ORDERED that Defendant’s Motion to Dismiss, ECF No. 11, is DENIED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 7, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 7, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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