Hutsler et al v. Shapiro & Weisman LLC

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's motion to dismiss (Doc. 10 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' First Amended Complaint (Doc. 8 ) is DISMISSED, with prejudice. A separate Order of Dismissal will accompany this Memorandum. Signed by Magistrate Judge Shirley P. Mensah on 6/2/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PHILIP G. HUTSLER, et al.,
Plaintiffs,
vs.
SHAPIRO & KREISMAN, LLC,
Defendant.

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Case No. 4:13-CV-2159-SPM

MEMORANDUM AND ORDER
This matter is before the court on Defendant Shapiro & Kreisman, LLC’s motion to
dismiss Plaintiffs’ First Amended Complaint for Failure to State a Claim (Doc. 10). The parties
have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c)(1). (Doc. 12). For the reasons stated below, the court will grant Defendant’s
motion.
FACTUAL AND PROCEDURAL BACKGROUND1
On October 11, 2012, Plaintiffs Philip G. Hutsler and Susan M. Hutsler (“Plaintiffs”)
learned that their home, located at 15408 Fort de France Lane in St. Louis County, Missouri
(“the property” or “the premises”), had been scheduled for a foreclosure sale on October 22,
2012. Plaintiffs also learned that Defendant Shapiro & Kreisman, LLC (“Defendant”) was
handling the foreclosure. Plaintiffs retained their own attorney. On October 21, 2012, Plaintiffs’
attorney faxed to Defendant a copy of a Verified Petition, an Application for Temporary
Restraining Order, and a Motion for Preliminary Injunction Plaintiffs intended to file in state
1

These facts are taken from Plaintiffs’ First Amended Complaint (Doc. 8) and the attachments
thereto.
1

court against Wells Fargo Home Mortgage, Inc.; these were directed toward stopping the sale of
Plaintiffs’ property.

On October 22, 2012, the foreclosure sale occurred.

Later that day,

Plaintiffs filed the aforementioned pleadings with the Circuit Court of St. Louis County, State of
Missouri. On October 23, 2012, the state court held a hearing on Plaintiffs’ application for a
Temporary Restraining Order (“TRO”), with a representative of Defendant appearing by
telephone. The court issued a TRO stating that it “Orders Defendant, Wells Fargo Home
Mortgage, Inc., not to sell or otherwise dispose of the property . . . until such further Orders are
made by the Court.” The order also stated that Wells Fargo Home Mortgage, Inc., was ordered
to appear before the Court on November 7, 2012, to show cause why Plaintiffs’ Motion for
Preliminary Injunction should not be granted.
On October 30, 2012, a hearing was held before the state court on Plaintiffs’ motion to
reduce bond, and a representative of Defendant attended the hearing. On November 7, 2012, the
state court continued the hearing on Plaintiffs’ motion for preliminary injunction to
November 21, 2012. Also on November 7, Defendant sent a letter directly to Plaintiffs advising
them that their property had been sold at a foreclosure sale on October 22 and that Well Fargo
Bank, NA was the new owner of the property. The letter stated, “Unless you agree with Wells
Fargo Bank, NA to a rental or lease agreement for the premises, Wells Fargo Bank, NA, on or
after ten (10) business days following the date of this notice, may seek a court order or judgment
to have you removed from the premises. Remaining on the premises after the date of this notice
does not make you a tenant of the new owner.” On November 16, 2012, Defendant sent
Plaintiffs another letter, stating, “This 2nd Demand is being made for you to vacate the property.
This letter is to inform you that eviction proceedings have been instituted against this property.”
(Doc. 1-7). Each of these letters included a notice at the bottom stating, “PURSUANT TO THE

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FEDERAL FAIR DEBT COLLECTION PRACTICES ACT, YOU ARE ADVISED THAT
THIS OFFICE IS DEEMED TO BE A DEBT COLLECTOR ATTEMPTING TO COLLECT
DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.”
On November 21, 2012, Plaintiffs’ state-court lawsuit against Wells Fargo Home
Mortgage, Inc., was removed to the United States District Court for the Eastern District of
Missouri, where it is currently pending. (E.D. Mo. Case No. 4:12-cv-2184). On November 26,
2012, Defendant filed an Unlawful Detainer Petition against Plaintiffs, wherein Defendant
sought possession of the premises, plus double the sum of monthly rent as damages.2
Plaintiffs filed the present suit alleging that Defendant’s actions violated the Fair Debt
Collection Practices Act (“FDCPA”). Specifically, Plaintiffs allege (1) that “Defendant violated
15 U.S.C. § 1692e(5) by threatening to take action that could not legally be taken, in that
Defendant had no right to evict Plaintiffs while a valid TRO was in place”; and (2) “Defendant
violated 15 U.S.C. § 1692c(a)(2) by communicating directly with Plaintiffs with knowledge that
[Plaintiffs]3 were represented by an attorney.” Defendant moved to dismiss Plaintiffs’ claims
under Federal Rule of Civil Procedure 12(b)(6).
LEGAL STANDARD
When ruling on a Rule 12(b)(6) motion to dismiss, the court must accept as true all of the
factual allegations in the complaint, though it need not accept the legal conclusions. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the
2

Plaintiffs assert that a copy of this Petition is attached to the First Amended Complaint, but it is
not.
3
The First Amended Complaint actually reads, “Defendants were represented by an attorney”;
this was presumably a typographical error.
3

plausibility standard “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where the
allegations show on the face of the complaint there is some insuperable bar to relief, dismissal
under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir.
2008).
A written instrument attached to a complaint is considered a part of the complaint and
may be considered in ruling on a motion to dismiss. Fed. R. Civ. P. 10(c); Quinn v. Ocwen Fed.
Bank FSB, 470 F.3d 1240, 1244 (8th Cir. 2006).
DISCUSSION
“The purpose of the FDCPA is to ‘eliminate abusive debt collection practices by debt
collectors,’ . . . and debt collectors are liable for failure to comply with ‘any provision’ of the
Act.” Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006) (quoting 15 U.S.C. §§ 1692(e)
and 1692k(a)). In order to establish an FDCPA violation, “Plaintiff[s] must prove that [they are]
consumer[s]; Defendant is a debt collector; there was an attempt to collect a debt; and Defendant
violated, by act or omission, a provision of the FDCPA.” Campbell v. Credit Protection Ass’n,
No. 4:12CV00289AGF, 2013 WL 1282348, at *4 (E.D. Mo. Mar. 27, 2013) (citing Pace v.
Portfolio Recovery Assocs., 872 F. Supp. 2d 861, 864 (W.D. Mo. 2012)). Plaintiffs allege that
by sending the letters demanding that they vacate the property and by filing the unlawful detainer
action against them, Defendant violated two provisions of the FDCPA: 15 U.S.C. § 1692e(5) and
15 U.S.C. § 1692c(a)(2).
Section 1692e(5) provides, in relevant part:
A debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt. Without limiting the general

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application of the foregoing, the following conduct is a violation of this
section: . . . .
(5) The threat to take any action that cannot legally be taken or that is not
intended to be taken.
Plaintiffs allege Defendant violated § 1692e(5) “by threatening to take action that could not
legally be taken, in that Defendant had no right to evict Plaintiffs while a valid TRO was in
place.” 1st Am. Compl. ¶ 19(b).
Section 1692c(a) provides, in relevant part:
Without the prior consent of the consumer given directly to the debt collector or
the express permission of a court of competent jurisdiction, a debt collector may
not communicate with a consumer in connection with the collection of any debt—
...
(2) if the debt collector knows the consumer is represented by an attorney with
respect to such debt and has knowledge of, or can readily ascertain, such
attorney’s name and address, unless the attorney fails to respond within a
reasonable period of time to a communication from the debt collector or unless
the attorney consents to direct communication with the consumer.
Plaintiffs allege that Defendant violated § 1692(a)(2) “by communicating directly with Plaintiffs
with knowledge that [Plaintiffs] were represented by an attorney.” 1st Am. Compl. ¶ 19(b).
Defendant argues that Plaintiffs fail to state a claim under either of these provisions. It
advances several arguments in support of its position: (1) as an enforcer of a security interest,
Defendant is not a “debt collector” for purposes of sections 1692c and 1692e of the FDCPA;
(2) Defendant was not engaged in the collection of a debt for purposes of sections 1692c and
1692e of the FDCPA; (3) for purposes of the § 1692e(5) claim, Plaintiffs have failed to allege
facts showing that Defendant threatened to take any action that could not legally be taken,
because nothing in the TRO prevented Defendant from filing the unlawful detainer suit; and (4)
for purposes of the § 1692c(a)(2) claim, Plaintiffs cannot state a claim based on the sending of
letters directly to them because Missouri law required Defendant to send notices to Plaintiffs
before the unlawful detainer action could be initiated.
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1. Whether Defendant is a “debt collector” for purposes of § 1692c and § 1692e of
the FDCPA
Defendant argues that because it is an enforcer of security interests, it is not a “debt
collector” under the FDCPA, except for purposes of 15 U.S.C. § 1692f(6).4 The FDCPA defines
a “debt collector” as follows:
any person who uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another. . . For the purpose of section 1692f(6) of
this title, such term also includes any person who uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is
the enforcement of security interests. . . .
Id. § 1692a(6). The FDCPA defines “debt” as “any obligation or alleged obligation of a
consumer to pay money arising out of a transaction in which the money, property, insurance, or
services which are the subject of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to judgment.” Id. § 1692a(5).
Some courts have held because the definition of “debt collector” specifies that an
enforcer of security interests is a debt collector for purposes of section 1692f(6), it is reasonable
to conclude that someone whose only business is the enforcement of security interests is not a
debt collector for the remaining provisions of the statute. See, e.g., Fouche v. Shapiro & Massey
L.L.P., 575 F. Supp. 2d 776, 784-88 (S.D. Miss. 2008) (holding on summary judgment that the
defendant was not a “debt collector” where it provided an affidavit stating that its law practice
4

Section 1692f(6) prohibits “[t]aking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if—(A) there is no present right to possession of the
property claimed as collateral through an enforceable security interest; (B) there is no present
intention to take possession of the property; or (C) the property is exempt by law from such
dispossession or disablement.” Plaintiffs do not allege or argue that Defendant violated this
provision. To the contrary, they explicitly state, “Plaintiffs have only alleged two FDCPA
violations by Defendant: the first under § 1692e(5) for threatening to take action it had no legal
right to take, and second under § 1692c(a)(2) for communicating with Plaintiffs knowing they
were represented by counsel. Pl.’s Mem. Opp’n., Doc. 18, at p. 7.
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was “exclusively centered upon the representation of mortgage lenders or servicers in enforcing
security interests securing real estate loans”).
The parties do not address whether, in determining whether Defendant is a “debt
collector,” the court should consider the specific activities alleged to violate the FDCPA in this
case or the allegations in the Complaint regarding Defendant’s general activities. However, at
least one court has held that the question of whether a person is a “debt collector” is dependent
on the person’s general activities rather than on the specific allegations in the case.

See

Kaltenbach v. Richards, 464 F.3d 524, 529 (5th Cir. 2006) (stating, “[A] party’s general, not
specific, debt collection activities are determinative of whether they meet the statutory definition
of a debt collector . . . Whether a debt collector’s specific action qualifies as the collection of a
debt . . . is a separate inquiry from whether the party meets the general statutory definition of a
debt collector.”).

This position appears consistent with the statutory definition of “debt

collector,” which is “one who regularly collects or attempts to collect . . . debts owed or due or
asserted to be owed or due another.” 15 U.S.C. § 1692a(6) (emphasis added).
Here, although the specific activities alleged to violate the FDCPA in this case relate to
the enforcement of a security interest, Plaintiffs also allege generally that Defendant “regularly
attempts to collect consumer debts asserted to be due another.” 1st Am. Compl. ¶ 5. For
purposes of the 12(b)(6) motion, this allegation is sufficient to plausibly suggest that Defendant
satisfies the general statutory definition of “debt collector.” See Kaltenbach, 464 F.3d at 527
(holding that a plaintiff sufficiently alleged a defendant satisfied the general definition of a “debt
collector” by alleging that the defendant was “a debt collector, engaged in debt collection
activities”; analyzing separately whether the specific activities underlying the plaintiff’s FDCPA

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claim constituted debt collection activity). Thus, Plaintiffs’ claims will not be dismissed on this
ground.
2. Whether the notice to vacate letters and unlawful detainer action were debt
collection for purposes of § 1692c and § 1692e of the FDCPA
Defendant also argues that because the challenged activities in this case were related to
the enforcement of a security interest, the activities did not constitute debt collection activity and
thus are not subject to sections 1692c and 1692e of the FDCPA.
As both parties recognize, there is a split of authority concerning whether an entity
enforcing a security interest is engaging in debt collection, such that the entire FDCPA applies
(rather than § 1692f(6) only). Most of these cases have occurred in the context of mortgage
foreclosures and related pre-foreclosure activity. Several courts have held that foreclosing on a
mortgage does not constitute debt collection under the FDCPA generally, and that therefore
FDCPA claims may not be based on foreclosure-related activities.

See, e.g., Warren v.

Countrywide Home Loans, Inc., 342 F. App’x 458, 460 (11th Cir. 2009) (holding that the
plaintiff could not state a claim based on the defendant’s foreclosure sale of the plaintiff’s home;
reasoning that because the statute’s definition of “debt collector” does not appear to include
persons whose principal business purpose is the enforcement of security interests, enforcement
of a security interest is not debt collection); Dillon v. Chase Home Fin., LLC, No. 4:12CV817
HEA, 2014 WL 466212, at *3 (E.D. Mo. Feb. 5, 2014) (“‘The plain language of the FDCPA
supports the . . . conclusion that foreclosing on a security interest is not debt collection activity
for purposes of § 1692g.’”) (quoting Warren, 342 F. App’x at 460); Beadle v. Haughey, No. Civ.
04-272-SM, 2005 WL 300060, at *3 (D.N.H. Feb. 9, 2005) (holding that foreclosing on a
mortgage was not debt collection activity covered by the FDCPA; reasoning that unlike a person
receiving debt collection letters who lacks the money to pay them, one asked to comply with a
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security interest enforcement request can simply return the property); Hulse v. Ocwen Federal
Bank, FSB, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002) (holding that foreclosing on a property
pursuant to a deed of trust is not debt collection; reasoning that the FDCPA is directed toward
objectionable acts occurring in the process of collecting funds, and the object of a foreclosure
action is not obtaining payment of funds).
In contrast, several courts have recently rejected this approach and found that mortgage
foreclosure activity is debt collection to which the FDCPA applies. See, e.g., Glazer v. Chase
Home Fin. LLC, 704 F.3d 453, 462-62 (6th Cir. 2013) (holding that mortgage foreclosure is debt
collection under the Act; reasoning in part 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)”); Wilson v. Draper & Goldberg, P.L.C.C., 443 F.3d 373, 376 (4th Cir. 2006) (rejecting the
argument that foreclosure proceedings are not debt collection and stating that such a rule “would
create an enormous loophole in the Act immunizing any debt from coverage if that debt
happened to be secured by a real property interest and foreclosure proceedings were used to
collect the debt”); Reese v. Ellis, Painter, Ratteree & Adams, LLP, 678 F.3d 1211, 1217-18 (11th
Cir. 2012) (“In every case involving a secured debt, the proposed rule [exempting from § 1692e
any communication that attempts to enforce a security interest] would allow the party demanding
payment on the underlying debt to dodge the dictates of § 1692e by giving notice of foreclosure
on the secured interest. The practical result would be that the Act would apply only to efforts to
collect unsecured debts.”).

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The parties devote much of their briefing to discussing which of these lines of authority
the court should follow. However, these cases are largely inapposite, because the activities
alleged to violate the FDCPA in this case did not involve a mortgage foreclosure, but letters sent
and an unlawful detainer action filed after the foreclosure was complete and the property had
been sold. Courts have nearly always found such activities are not debt collection activity
covered by the FDCPA, even in jurisdictions adopting the rule that mortgage foreclosures
constitute debt collection.
Bobo v. Trott & Trott, P.C., No. 13-14696, 2014 WL 555201 (E.D. Mich. Feb. 12, 2014),
is instructive. In Bobo, the plaintiff’s property went into foreclosure and was sold at a Sheriff’s
sale. Id. at *1. The purchaser at the sale hired the defendant, a law firm, to commence eviction
proceedings. Id. The defendant sent the plaintiff a “notice to vacate” demanding that the
plaintiff vacate the property, and it later initiated an eviction action in state court. Id. The
plaintiff filed suit under the FDCPA, contending that the notice to vacate letter violated the
FDCPA. The court acknowledged that under the Sixth Circuit’s precedent in Glazer, a mortgage
foreclosure is a means of collecting debt and is therefore debt collection under the FDCPA. Id.
However, it found that the same reasoning did not apply to post-foreclosure attempts to obtain
possession:
[A]]t the time of Defendant’s involvement, the mortgage foreclosure process was
complete: a Sheriff’s sale was held and the redemption period had expired.
Defendant’s role was to send the notice to vacate and commence eviction
proceedings. Defendant was not seeking a deficiency judgment or the payment of
money; rather, Defendant demanded that Plaintiff vacate the premises. Under
these circumstances, Defendant was not attempting to collect a debt.
Id. at *2 (internal citation omitted). The court granted the defendant’s motion to dismiss. Id.
Other courts have come to similar conclusions. See Call v. Routh Crabtree Olsen, P.S., No. 135241 RJB, 2013 WL 3805651, at *5 (W.D. Wash. July 18, 2013) (dismissing an FDCPA claim
10

based on actions taken by a law firm that instituted an unlawful detainer action on behalf of the
buyer of property in a foreclosure sale; emphasizing that the unlawful detainer action was
instituted to gain possession of the property and not to collect a debt); Hidalgo v. Aurora Loan
Services LLC, No. 13-CV-1341-H (JMA), 2013 WL 4647550, at *4 (S.D. Cal. Aug. 29, 2013)
(“[A]n unlawful detainer action regarding holdover occupants after foreclosure does not qualify
as the collection of a debt within the meaning of the FDCPA.”); Calkins v. Shapiro & Anderson,
L.L.P., No. 05-0815-PHX-ROS, 2005 WL 3434718, at *6 (D. Ariz. Dec. 13, 2005) (holding that
contact by a law firm that came only after a foreclosure sale and was connected with removing
the plaintiffs from the property was not the collection of debt within the meaning of the
FDCPA).
Here, as in these cases, by the time of the challenged notice to vacate letters and unlawful
detainer action, the foreclosure was complete and the property had been sold. Nothing in
Plaintiffs’ First Amended Complaint or the attachments thereto suggests in any way that
Defendant was attempting to collect the underlying debt when it sent the notice to vacate letters
or when it filed the unlawful detainer action. The notice to vacate letters do not mention the
underlying debt, nor do any of Plaintiffs’ allegations regarding the unlawful detainer action
suggest that Defendant sought to collect on the underlying debt in that action. Instead, the notice
to vacate letters and the unlawful detainer action were simply the process by which the buyer of
the property attempted to gain possession of it. See Wells Fargo v. Smith, 392 S.W.3d 446, 457
(Mo. 2013) (“‘[T]he sole issue in any unlawful detainer action is the right of possession.’”)
(quoting McNeill v. McNeill, 456 S.W.2d 800, 807 (Mo. Ct. App. 1970)).

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Under these

circumstances, Defendant was not collecting a debt when it sent the notice to vacate letters or
when it filed the unlawful detainer action.5
Plaintiffs argue that even if an unlawful detainer action seeking possession only is not
necessarily debt collection activity, here Defendant was attempting to collect a “debt” from
Plaintiffs because the prayer for relief in the unlawful detainer petition included a request for
“double the sum of monthly rent as damages.” Defendant argues that this amount was not a
“debt” within the meaning of the FDCPA, but rather a penalty for unlawful detainer mandated by
Missouri’s unlawful detainer statute. That statute provides, in relevant part, as follows:
If the verdict of the jury or the finding of the judge is for the complainant, the
judge shall record the verdict or finding, and the judgment shall be that the
complainant have restitution of the premises found to have been forcibly or
unlawfully detained, and recover from the defendant the sum of .......... dollars,
double the sum assessed by the jury, or found for his damages; and also at the rate
of .......... dollars, double the sum found per month, for rents and profits, from the
.......... day of .........., 20..., the day of judgment, until restitution be made, together
with costs.
Mo. Rev. Stat. § 534.330.1. This statute entitles a successful plaintiff in an unlawful detainer
action to “double the sum assessed for damages, and also for monthly rents and profits up to the
time of restitution.” Gordon v. Williams, 986 S.W.2d 470, 474 (Mo. App. E.D. 1998). The
“entry of judgment for double the amount of damages . . . is mandatory.” Massey v. Goforth,
305 S.W.2d 894, 897 (Mo. App. 1957).
As discussed above, the FDCPA defines “debt” as “any obligation or alleged obligation
of a consumer to pay money arising out of a transaction in which the money, property, insurance,
or services which are the subject of the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C.

5

The court does not reach the question of whether pre-foreclosure communications and
foreclosure proceedings themselves constitute debt collection that is covered by the FDCPA.
12

§ 1692a(5). It is well-established that “not all obligations to pay are considered debts subject to
the FDCPA.” Hicken v. Arnold, Anderson & Dove, P.L.L.P., 137 F. Supp. 2d 1141, 1143 (D.
Minn. 2001). Instead, “the FDCPA may be triggered only when an obligation to pay arises out
of a consumer transaction.” Id. “At a minimum, the transaction must involve some kind of
business dealing or other consensual consumer obligation.” Id.
The parties have not cited, and the court has not found, any cases addressing whether a
statutory provision providing for damages in an unlawful detainer action can constitute a “debt”
within the meaning of the FDCPA. However, other courts have held that obligations to pay that
arise based on a statute providing for civil damages, rather than a consumer transaction, are not
“debts” within the meaning of the FDCPA. See DirecTV, Inc. v. Karpinsky, 269 F. Supp. 2d
918, 927 (E.D. Mich. 2003) (demand for civil damages pursuant to federal statute based on
alleged illegal interception of satellite television signals was not debt under the FDCPA), order
vacated in part on other grounds, 2003 WL 21782351 (E.D. Mich. July 31, 2003); Shorts v.
Palmer, 155 F.R.D. 172, 175-76 (S.D. Ohio 1994) (demand for civil damages pursuant to Ohio
statute based on alleged theft of personal property did not involve a “debt contracted by a
consumer” and was not covered by the FDCPA). Similarly, in Cook v. Hamrick, 278 F. Supp. 2d
1202, 1203-05 (D. Colo. 2003), the court considered whether a demand for attorney’s fees
included in a complaint for unlawful detainer constituted an unlawful attempt to collect a “debt”
under the FDCPA. The court stated:
[Courts] are in agreement that a “debt” is created only when a transaction creates
an obligation to pay. Bass [v. Stolper, Koritzinsky, Brewer & Neider, S.C., 111
F.3d 1322, 1325 (7th Cir. 1997)]. Accord Brown v. Budget Rent-A-Car Sys., Inc.,
119 F.3d 922, 924 (11th Cir. 1997). When an obligation to pay is created by
something other than a consumer transaction, the obligation is not a “debt” as
defined by the FDCPA. See Hicken v. Arnold, Anderson & Dove, P.L.L.P., 137
F.Supp.2d 1141, 1143 (D. Minn. 2001) (obligation to pay created by divorce
13

decree is not a “debt” because is does not arise out of consumer transaction);
Mabe [v. G.C. Servs. Ltd. P’ship, 32 F.3d 86, 88 (4th Cir. 1994)] (child support
obligation is not “debt” because it arises out of a court order and not a consumer
transaction). Because the prayer for attorney fees at issue in this case, as well as
any right of [the defendant law firm’s client] to collect those fees, would have
arisen out of the legal proceedings in the action for unlawful detainer and not out
of any consumer transaction with Cook, it does not constitute a “debt” or a
communication regarding a “debt” and the FDCPA does not apply.
Id. at 1205.
Here, as in the above cases, there is nothing to suggest that Plaintiffs ever entered into an
agreement or transaction obligating them to pay double the amount of the reasonable rental value
of the property (or, indeed, any rent at all).6 Rather, their obligation to pay double rent arose by
statute when they unlawfully retained possession of the property. The court finds this situation
analogous to the statutory civil damages that arose due to the wrongful actions in Shorts and
DirecTV and the attorney’s fees in Cook. Because the statutory damages Defendant sought in the
unlawful detainer action here did not arise from a business dealing or consensual consumer
obligation, they were not a debt, and Defendant’s attempt to collect them is not covered by the
FDCPA.
The court’s conclusion is not changed by the fact that the letters sent to Plaintiffs
contained statements advising Plaintiffs that Defendant was a “debt collector attempting to
collect debt” under the FDCPA. Courts have found that the inclusion of such language in
6

Some courts have found that in the landlord/tenant situation, back rent is “debt” under the
FDCPA. See, e.g., Romea v. Heiberger & Assocs., 163 F.3d 111, 115 (2nd Cir. 1998) (reasoning
that back rent is a debt because it “by its nature is an obligation that arises only from the tenant’s
failure to pay the amounts due under the contractual lease transaction”). Here, however, there
are no allegations that Plaintiffs ever agreed to pay rent as part of a lease transaction. Indeed, the
first letter Defendant sent to Plaintiffs expressly states, “Remaining on the premises after the date
of this notice does not make you a tenant of the new owner.” (Doc. 1-6).

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communications does not estop a defendant from denying that the FDCPA applies, at least where
the plaintiff fails to show that he or she detrimentally relied on the language. See Chomilo v.
Shapiro, Normeyer & Zielke, LLP, No. 06-3103 (RHK/AJB), 2007 WL 2695795, at *6 (D. Minn.
Sept. 12, 2007) (holding that the defendant’s inclusion of similar FDCPA warnings in its
foreclosure communications did not estop it from denying that the FDCPA applied to such
communications; reasoning that the defendant had included the notices out of an abundance of
caution and that the plaintiff had not demonstrated that she had relied on the warnings to her
detriment); Alexander v. Omega Mgmt., Inc., 67 F. Supp. 2d 1052, 1056 (D. Minn. 1999)
(holding that the defendant was not estopped from asserting that it was not a debt collector
despite its practices of sending out FDCPA notices; noting that the plaintiff had not shown that
she had justifiably relied on the notices). Here, Plaintiffs have not alleged that they relied to
their detriment on this language. Moreover, given the relatively unsettled nature of the law in
this area, it was reasonable for Defendant to err on the side of caution and include the FDCPA
disclaimers in its communications.
In sum, because the court finds that Plaintiffs have failed to allege facts plausibly
suggesting that Defendant was engaged in the collection of a debt for purposes of § 1692e(5) or
§ 1692(a)(2) of the FDCPA, the court need not reach Defendant’s remaining arguments.
Plaintiffs have failed to state a claim, and their claims must be dismissed.

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CONCLUSION
For the above reasons, Plaintiffs have failed to state a claim under the FDCPA, and their
claims will be dismissed.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss (Doc. 10) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ First Amended Complaint (Doc. 8) is
DISMISSED, with prejudice.

A separate Order of Dismissal will accompany this

Memorandum.

Dated this 2nd day of June, 2014.
/s/ Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

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