                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                    File Name: 15a0562n.06

                                           No. 14-1543

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


IAN WALKER, On Behalf of Himself and All             )                     FILED
Others Similarly Situated                            )               Aug 10, 2015
                                                     )           DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                          )
                                                     )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
v.                                                   )       THE EASTERN DISTRICT OF
                                                     )       MICHIGAN
                                                     )
SHERMETA, ADAMS, VON ALLMEN, PC;                     )       OPINION
TRICIA N. MCKINNON;                                  )
KYLE J. VON ALLMEN; GRUCA P. TERRI                   )
                                                     )
       Defendants-Appellees.                         )
                                                     )

BEFORE: NORRIS, MOORE, and GIBBONS, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Plaintiff appeals the dismissal of his class action

suit against the law firm of Shermeta, Adams & Von Allmen P.C., its shareholders, and certain

attorneys of the firm. Plaintiff maintains that Defendants’ debt collection letters violate the Fair

Debt Collection Practices Act (“FDCPA”) and Michigan’s analogous state statute. The district

court dismissed Plaintiff’s suit for failure to state a claim upon which relief can be granted under

Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, we affirm the district

court’s judgment on the pleadings in favor of Defendants. However, we remand to the district

court to allow Plaintiff to seek leave to amend his deficient complaint.
                                                        Walker v. Shermeta, Adams, Von Allmen, PC, et al.
                                                                                                14-1543

                                                 I.

       In connection with its representation of National Collegiate Student Loan Trusts

(“NCSLT”), Defendants sent a series of debt collection letters to Plaintiff for allegedly past-due

student loans. Plaintiff attacked the letters on several grounds, but this appeal focuses on his

claim that the collection letters were false, deceptive, and misleading, in violation of the FDCPA

and the analogous Michigan Collection Practices Act.

       The relevant part of the FDCPA provides:

       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
       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.
            ....
            (10) The use of any false representation or deceptive means to collect or
            attempt to collect any debt or to obtain information concerning a consumer.

15 U.S.C. § 1692e.

       The paragraph in Defendants’ letter that is the crux of the dispute states:

       Please be informed that our above referenced client has requested that our firm
       contact you regarding the balance on your past due account. Because of interest
       and other charges that may accrue, the amount you owe may continue to increase
       daily. We request that you contact our office for the purposes of making
       arrangements for payment.

       Plaintiff maintains that because Defendants did not have the legal right or intention to add

interest or other charges, the letters as written were deceptive and threatening in order to create

confusion and cause Plaintiff and other consumers to incorrectly believe they will benefit

financially by immediately sending payment for the full amount demanded.




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       The district court dismissed the claim, holding that “[e]ven if Defendants cannot lawfully

charge interest and other fees on behalf of NCSLT, the statement that interest and other fees may

be charged is not (1) a threat; or (2) false and misleading.”

                                                 II.

       “We review de novo a dismissal of a case for failure to state a claim.” F.H. ex rel. Hall v.

Memphis City Sch., 764 F.3d 638, 642 (6th Cir. 2014) (citing Keys v. Humana, Inc., 684 F.3d

605, 608 (6th Cir. 2012)). “To survive a motion to dismiss, the plaintiff need only plead

sufficient factual matter, which we must accept as true, to ‘state a claim to relief that is plausible

on its face’ meaning that we can draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Currier v. First Resolution Inv. Corp., 762 F.3d 529, 533 (6th Cir. 2014)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

       “Congress passed the FDCPA to address the widespread and serious national problem of

debt collection abuse by unscrupulous debt collectors.” Id. (citations omitted). “It is the purpose

of [the FDCPA] 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. § 1692(e).

       “To determine whether conduct fits within the broad scope of the FDCPA, the conduct is

viewed through the eyes of the least sophisticated consumer. 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.” Currier, 762 F.3d at 533

(citations and quotation marks omitted). “The test is objective, and asks whether there is a



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reasonable likelihood that an unsophisticated consumer who is willing to consider carefully the

contents of a communication might yet be misled by them. Truth is not always a defense under

this test, since sometimes even a true statement can be misleading.” Grden v. Leikin Ingber &

Winters PC, 643 F.3d 169, 172 (6th Cir. 2011) (citations omitted).

       In addition, in applying this standard, we have also held that a statement must be

materially false or misleading to violate Section 1692e. See Miller v. Javitch, Block & Rathbone,

561 F.3d 588, 596-97 (6th Cir. 2009) (applying a materiality standard to a Section 1692e claim).

“The materiality standard simply means that in addition to being technically false, a statement

would tend to mislead or confuse the reasonable unsophisticated consumer.” Wallace v. Wash.

Mut. Bank, F.A., 683 F.3d 323, 326-27 (6th Cir. 2012).

       Each party relies on contradictory persuasive authority that considered collection letter

language similar to that found in Defendants’ letters to support an outcome in its favor. Plaintiff

relies heavily on an unpublished district court opinion, Beauchamp v. Financial Recovery

Services, Inc., No. 10 CIV. 4864 SAS, 2011 WL 891320 (S.D.N.Y. Mar. 14, 2011). In

Beauchamp, the district court denied the defendant’s motion to dismiss, reasoning that because

the letter said additional charges may accrue, and the complaint averred that such charges never

occur, the letter “may mislead the least sophisticated consumer” about the debt collection

process. Id. at *2. The court rejected the defendant’s assertion that the word “may” renders the

statement accurate and therefore not misleading:

               FRS argues that because the Letter provides only that the outstanding
       balance “may” change, it is necessarily accurate, whatever FRS’s ultimate debt
       collection practices. However, the least sophisticated consumer standard is not
       concerned with the literal accuracy of a statement, but rather, with the impression
       that it may reasonably leave upon a consumer. Here, a consumer reading the
       Letter could believe that FRS does, at times, add interest or other charges to the
       amounts it seeks to collect. If FRS never increases the amount owed beyond that
       stated in the Letter, as Beauchamp contends, then the consumer will in fact have

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        been misled. Because it is plausible, based on the Amended Complaint, that
        FRS’s debt collection practices differ from the representations in the Letter,
        Beauchamp’s allegations are sufficient to support her claims at this stage of the
        litigation.

Id. at *3.

        Defendant relies upon a reported Seventh Circuit case, Taylor v. Calvary Investment,

L.L.C., 365 F.3d 572 (7th Cir. 2004). In Taylor, the collection letter stated that “if applicable,

your account may have or will accrue interest at a rate specified in your contractual agreement

with the original creditor.” Id. at 574. Plaintiffs complained that the language was confusing

because the creditor did not in practice add interest, but the court was not at all receptive: “The

plaintiffs have an alternative claim that is downright frivolous—that the statement we quoted

from the dunning letter is false, and so violated 15 U.S.C. § 1692e, because . . . the creditors did

not add interest. The letter didn’t say they would, only that they might.” Id. at 575. In Judge

Posner’s opinion, the challenged language in the letter was a “clear statement of a truism.” Id.

        Analyzing Defendants’ letter, the district court was persuaded by the Taylor reasoning,

stating that even if Defendants cannot lawfully charge interest and other fees, the fact that the

letters say that interest and charges “may” accrue is still accurate, and therefore Plaintiff’s claim

is frivolous.

        The district court’s bright-line application of Taylor and its characterization of Plaintiff’s

claim as frivolous is an oversimplification. Grden makes clear that in this circuit truth is not

always a defense to an FDCPA claim, because even a technically true statement can be

misleading. 643 F.3d at 172. We have repeatedly noted that Congress enacted the FDCPA to

address what it found to be a widespread problem, and as a result the statute is extraordinarily

broad. See, e.g., Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 362 (6th Cir. 2012).




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        The district court stated that, for the motion to dismiss, it accepted as true that

Defendants’ client, NCSLT, cannot lawfully charge interest. However, there was no such

averment in the pleadings, and therefore no reason for the district court to accept that as a fact.

Plaintiff did allege, and for our purposes it is a fact, that Defendants cannot lawfully charge

additional interest. But, as Plaintiff noted in his Amended Complaint, Shermeta acts as a debt

collector and, in that role, it “regularly collects or attempts to collect, directly or indirectly, debts

owed or due or asserted to be owed or due another.” Amend. Compl. ¶ 7 (emphasis added).

Defendants’ letter did not say Defendants would add interest or charges to the balance owed,

only that such charges might accrue.

        We accept, as we must, the allegation that Defendants in the role of debt collector cannot

unilaterally add additional interest or other charges to Plaintiff’s debt. However, Defendants

likely also do not have authority to waive their client’s (or future note holders’) rights, if any, to

add and collect interest or other charges in the future. Depending on the terms of the loan

agreement, a statement that no additional interest or charges would ever accrue on Plaintiff’s

debt may have been improper and misleading. Nor would it have been a good option for

Defendants to remain silent as to potential future interest and charges, because such silence has

exposed debt collectors to liability under the FDCPA. See, e.g., Dragon v. I.C. Sys., Inc., 483 F.

Supp. 2d 198, 202-03 (D. Conn. 2007) (finding FDCPA violation where a collection letter failed

state that “the amount to pay the debt in full could vary . . . to reflect accrued interest and/or

other fees and charges”).

        Contrary to the district court’s statement, Plaintiff does not aver that interest and other

charges could never accrue under the loan agreement, either as originally signed with Bank One

N.A. or in the hands of subsequent transferees, such as Defendants’ client NCSLT. At oral



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argument before the district court, Defendants asserted that interest and charges could accrue

under the note, but the note was never made part of the record.

       Without this missing piece of the puzzle, Plaintiff’s pleadings are deficient and dismissal

under Fed. R. Civ. P. 12(b)(6) was proper. However, ordinarily “if the requisite allegations are

not in the complaint and a motion to dismiss for failure to state a claim upon which relief may be

granted is made under Rule 12(b)(6), the pleader should be given the opportunity to amend the

complaint, if she can, to show the existence of the missing elements.” 5 Charles Alan Wright,

Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 1216 (3d ed. 2015); see

also Hayden v. Paterson, 594 F.3d 150, 169 (2d Cir. 2010) (remanding the case to the district

court to allow plaintiffs to seek leave to amend their deficient complaint); Gee v. Pacheco, 627

F.3d 1178, 1195 (10th Cir. 2010) (remanding a case to the district court when the factual

allegations in the complaint are “missing some important element”).

       If additional charges or interest might one day accrue under Plaintiff’s loan agreement,

whether added by Defendants’ client or subsequent holders of the note, then Defendants’ letter is

not threatening or misleading. Perhaps Defendants’ letter should have provided more detail about

the source of potential future interest and charges, or under what circumstances such charges

might accrue. On balance, however, the letter tracks the FDCPA requirements for debt collection

letters, and, under these facts, stating that additional interest or charges “may” accrue is not

technically false, nor does it render the letter threatening or materially misleading.

       However, if Plaintiff can show that interest or charges could never accrue and therefore

the balance owed is truly fixed, then his claim should be allowed to go forward to determine if,

under those circumstances, Defendants’ letter was threatening or materially misleading.




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       The requirements of a successful claim under the Michigan Collection Practices Act

mirror the FDCPA, and therefore that claim suffers from the same flaws, and possible saving

amendment, described above.

                                               III.

       For the reasons stated above, we affirm the judgment of the district court but remand

with instructions to allow Plaintiff to seek leave to amend his complaint.




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