                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 15-3273

ERICK MARQUEZ, et al.,
                                                Plaintiffs-Appellants,

                                  v.


WEINSTEIN, PINSON & RILEY, P.S.,
et al.,
                                               Defendants-Appellees.

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 1:14-cv-00739 — John J. Tharp, Jr., Judge.


    ARGUED MAY 19, 2016 — DECIDED SEPTEMBER 7, 2016


   Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.

    ROVNER, Circuit Judge. Plaintiffs-appellants Erick Marquez,
Iraida Garriga, and Doris Russel brought an action, individu-
ally and on behalf of a class, against defendants-appellees Evan
L. Moscov, his law firm Weinstein, Pinson & Riley, P.S.
(“Weinstein”), and debt collection agency NCO Financial
2                                                             No. 15-3273

Systems, Inc. (NCO), alleging violations of the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.,
arising out of the defendants’ attempt to collect on student loan
debts allegedly owed by the plaintiffs. The gravamen of the
complaint was that the defendants included a misleading and
deceptive statement in a paragraph of the debt-collection
complaint they filed against the plaintiffs in state court. The
district court granted the initial motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), and after the plaintiffs
filed their second amended complaint, granted a subsequent
motion to dismiss as well, this time with prejudice. The
plaintiffs now appeal that dismissal.
    This case arose from complaints filed in state court by the
defendant Weinstein, on behalf of NCO and signed by Moscov
as their attorney, (the “debt collectors”) seeking repayment of
student loans from the plaintiffs (the “consumers”).1 Those
complaints contained typical language for such cases, reciting
the loan agreement and the outstanding principal amount, and
alleging the breach of that loan agreement and the correspond-
ing damages. However, following those allegations, and
immediately preceding the prayer for relief, the debt collectors
included Paragraph 12 in the complaints, which stated:




1
  The terms “plaintiff” and “defendant” can cause confusion in this case,
because the defendants in the state court collection action are the plaintiffs
here, and vice versa. To avoid such confusion, we will refer to the plaintiffs
and defendants in the state court action as debt collectors and consumers,
and use the terms plaintiff and defendant to refer to the parties in this
FDCPA action.
No. 15-3273                                                            3

    12. Pursuant to 11 U.S.C. § 1692g(a), Defendants are
        informed that the undersigned law firm is acting on
        behalf of Plaintiff to collect the debt and that the
        debt referenced in this suit will be assumed to be
        valid and correct if not disputed in whole or in part
        within thirty (30) days from the date hereof.
    The plaintiffs in the FDCPA action before us assert that
Paragraph 12 violated the FDCPA in that it was misleading
and deceptive as to both the manner and timing of their
response to the state lawsuit. The central issue in this appeal is
whether the district court erred in determining that paragraph
12 of the state law complaint was not misleading or deceptive
as a matter of law, and therefore granting the motion to
dismiss the FDCPA claim. We review de novo a district court’s
decision to grant a motion to dismiss under Rule 12(b)(6),
accepting as true all well-pleaded factual allegations and
drawing all reasonable inferences in favor of the plaintiff.
McMillan v. Collection Professionals, Inc., 455 F.3d 754, 758 (7th
Cir. 2006).
    Before considering whether the district court properly held
that Paragraph 12 was not misleading or deceptive as a matter
of law, we must address a preliminary matter. NCO argues
that we need not address the FDCPA challenge at all because
15 U.S.C. § 1692e does not regulate the content of state court
pleadings. That issue was properly preserved because it was
presented, and rejected, in the district court.2

2
  NCO attempts to raise a number of other issues on appeal that were not
properly presented to the district court, but those arguments are waived
                                                           (continued...)
4                                                              No. 15-3273

    In Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d
470, 473 (7th Cir. 2007) and O’Rourke v. Palisades Acquisition
XVI, LLC, 635 F.3d 938, 941 n.1 (7th Cir. 2011), we postponed
for a future case the question of whether § 1692e of the FDCPA
covers the process of litigation. This is that future case, as the
issue is squarely presented to us and the answer is necessary
to resolution of this appeal. Numerous circuits already have
addressed this issue, and often in nearly identical reasoning,
have concluded that pleadings or filings in court can fall within
the FDCPA. See, e.g., Kaymark v. Bank of Am., N.A., 783 F.3d
168, 176-77 (3d Cir. 2015); Goldman v. Cohen, 445 F.3d 152, 155-
56 (2nd Cir. 2006); Sayyed v. Wolpoff & Abramson, 485 F.3d 226,
231 (4th Cir. 2007); Stratton v. Portfolio Recovery Associates, LLC,
770 F.3d 443, 449-50 (6th Cir. 2014), as amended (Dec. 11, 2014);
Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 573-74 (8th Cir.
2015); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031–32 (9th
Cir. 2010); James v. Wadas, 724 F.3d 1312, 1316 (10th Cir. 2013);
Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297-1300
(11th Cir. 2015). Those circuits almost uniformly base their
conclusion on the Supreme Court’s analysis in Heintz v. Jenkins,
514 U.S. 291 (1995), as well as on the amendment to the FDCPA
following that decision. We agree with the reasoning of those
circuits and for those same reasons conclude that § 1692e of the
FDCPA applies to the statement in Paragraph 12 of the state
court complaint at issue here.



2
  (...continued)
and we do not address them. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th
Cir. 2012).
No. 15-3273                                                    5

    In Heintz, Darlene Jenkins had borrowed money from
Geiner Bank to purchase an automobile. Id. at 293. She de-
faulted on that loan, and the bank’s law firm sued her in state
court to recover the balance owed. In an effort to settle the
case, an attorney for the bank’s law firm, George Heintz, sent
a letter to Jenkins’ lawyer listing the amount that she owed.
Jenkins filed suit alleging that the letter violated the FDCPA in
that it contained a false statement of the amount that she owed
the bank. The district court dismissed the lawsuit holding that
the FDCPA was inapplicable to lawyers, but we reversed and
the Supreme Court agreed with us, holding that the FDCPA
applies to “the litigating activities of lawyers.” Id. at 294.
Heintz had argued that the Court should construe the statute
as containing “an implied exemption for those debt-collecting
activities of lawyers that consist of litigating,” but the Court
rejected that interpretation. Id. at 295. The Court held that the
FDCPA applies to attorneys who “’regularly’ engage in
consumer-debt-collection activity, even when that activity
consists of litigation.” Id. at 299.
     Although the communication at issue in Heintz was a letter
rather than a legal pleading, the Court recognized the applica-
bility of the FDCPA even to attorneys whose debt-collection
activity consisted of litigation, and nothing in that analysis
commands a differentiation between the two. Nothing in the
broad language in Heintz would support an interpretation that
would apply the FDCPA to attorneys whose debt collection
activity consisted of litigation, but limit it to only those
representations made by those attorneys outside of that
litigation. The conclusion that the FDCPA applies to legal
pleadings is supported by a post-Heintz amendment enacted
6                                                     No. 15-3273

by Congress. In the post-Heintz amendment, Congress ex-
empted legal pleadings from a specific provision in the
FDCPA, but did not exempt it from the FDCPA as a whole.
Specifically, 15 U.S.C. § 1692e prohibits a debt collector from
using any false, deceptive or misleading representation in
connection with the collection of any debt. The statute itemizes
sixteen communications that constitute violations of that
provision, including at § 1692e(11), the failure to disclose in the
initial written communication to the consumer that the debt
collector is attempting to collect a debt and that any informa-
tion will be used for that purpose. After Heintz was decided in
1995, however, Congress amended § 1692e(11) to exclude
formal legal pleadings from that requirement, with the
amended version now stating that “this paragraph shall not
apply to a formal pleading made in connection with a legal
action.” By providing that sub-section 1692e(11) did not apply
to a formal pleading made in connection with a legal action,
the implication is that § 1692e as a whole other than § 1692e(11)
applies to formal legal pleadings. Otherwise, the amendment
would be merely superfluous, exempting formal legal plead-
ings from one specific requirement in the act even though legal
pleadings were not subject to any provisions of the act already.
It is “a cardinal principle of statutory construction” that “a
statute ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be superflu-
ous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001); United States v. Michalek, 54 F.3d 325, 335–36 (7th Cir.
1995). A natural interpretation of that provision which gives
meaning to all words is that Congress, post-Heintz, envisioned
§ 1692e of the FDCPA as applying to communications in the
No. 15-3273                                                      7

form of legal pleadings as well as communications in other
forms such as letters, and that it sought to exempt legal
pleadings from only § 1692e(11).
    That interpretation is consistent with the purpose of the
FDCPA, “to eliminate abusive debt collection practices, to
ensure that those debt collectors who abstain from such
practices are not competitively disadvantaged, and to promote
consistent state action to protect consumers.” Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010); 15
U.S.C. § 1692(e). That purpose would be undermined if the
FDCPA was inapplicable to communications that occurred in
the context of litigation, particularly in the debt collection area
in which judgments are overwhelmingly reached through
forfeiture, and thus misleading or deceptive statements are
more likely to influence the response of the defendant without
ever coming to the attention of the court in any meaningful
way. In fact, although we have not previously addressed the
question of whether pleadings fall within § 1692e of the
FDCPA, we have already decided a number of FDCPA cases
alleging FDCPA violations in state court filings (in which this
issue was presumably not raised), thus illustrating that the
dangers addressed in the FDCPA arise in the context of
pleadings just as in other forms of communication. See
O'Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 948
(7th Cir. 2011)(Tinder, J., concurring) and cases cited therein.
Accordingly, we hold that representations may violate § 1692e
of the FDCPA even if made in court filings in litigation. Accord
Kaymark, 783 F.3d at 176-77; Powers, 776 F.3d at 574; Miljkovic,
791 F.3d at 1297; Stratton, 770 F.3d at 450; James, 724 F.3d at
8                                                     No. 15-3273

1316; Donohue, 592 F.3d at 1031–32; Sayyed, 485 F.3d at 231;
Goldman, 445 F.3d at 155-56.
    We turn then to the question of whether the district court
erred in holding that Paragraph 12 was “plainly and clearly not
misleading” as a matter of law and dismissing the case on that
basis. Dist. Ct. Op. at 8. The FDCPA provides that “[a] debt
collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of
any debt,” including, but not limited to the false representation
of “the character, amount, or legal status of any debt.” 15
U.S.C. § 1692e generally and § 1692e(2)(A). In McMillan v.
Collection Professionals Inc., 455 F.3d 754, 759 (7th Cir. 2006), we
noted that a determination of whether a statement is false,
deceptive or misleading, like a determination as to whether a
statement is confusing under the FDCPA, is a fact-bound
determination of how an unsophisticated consumer would
perceive the statement. We cautioned in McMillan that in
determining whether a statement is confusing or misleading,
a district court must “tread carefully” because “district judges
are not good proxies for the ‘unsophisticated consumer’ whose
interest the statute protects.” Id. Accordingly, Rule 12(b)(6)
dismissal on that issue is appropriate only if there is no set of
facts consistent with the pleadings under which the plaintiffs
could obtain relief. Id.
    In its effort to collect the student loan debt, the debt
collectors initially sent each of the consumers a demand letter,
which informed them that they were in default on their loan
payments and demanded payment of the outstanding balance.
Pursuant to § 1692g of the FDCPA, that letter contained a
No. 15-3273                                                    9

statement informing the consumers that they had 30 days after
receipt of the notice to dispute the validity of the debt, and
provided that “[u]nless you dispute this debt, or any portion
of it, within 30 days from receipt of this notice, we will assume
the debt to be valid.” The demand letter instructs the consumer
to dispute the debt by either calling a toll free number or
submitting a dispute in writing to their law offices.
    The debt collectors subsequently filed suit against the
consumers and served the consumers with a summons and
complaint in that state court action. The summons informed
the consumers that they had to file an appearance by a speci-
fied date approximately 30 days after issuance, and an answer
to the complaint before the time period set forth in the applica-
ble subsections of paragraph 3 or 4 on the reverse side of the
summons. Unfortunately, that standard summons form
contained an error, in that paragraphs 3 or 4 contain no
subsections, and the relevant subsections for the consumers
were contained in paragraph 2 on that reverse side of the
summons. Paragraph two provided that for amounts less than
$10,000, the consumer only needs to file an appearance but not
an answer unless otherwise ordered by the court, but that for
amounts over $10,000, an answer must be filed no more than
10 days from the appearance date (return date) set forth on the
summons. In all capitalized letters for emphasis, the summons
also declared that if the consumer failed to do so “A JUDG-
MENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR
THE RELIEF ASKED IN THE COMPLAINT, A COPY OF
WHICH IS HERETO ATTACHED.” Thus, the summons directs
the consumers to the complaint, both in determining the
answer and in the relief that could be imposed. The complaint,
10                                                    No. 15-3273

however, in paragraph 12 declares: “Pursuant to 11 U.S.C.
§ 1692g(a), Defendants [consumers] are informed that the
undersigned law firm is acting on behalf of Plaintiff [debt
collector] to collect the debt and that the debt referenced in this
suit will be assumed to be valid and correct if not disputed in
whole or in part within thirty (30) days from the date hereof.”
The court erred in holding that the paragraph 12 declaration
would not be misleading or deceptive as a matter of law.
    Paragraph 12 is misleading to the unsophisticated con-
sumer both as to the proper timing to respond to the complaint
and as to the manner of response. A plain reading of the
summons and the complaint would cause a consumer to
believe that he had until the date in the summons to file an
answer and contest the claim, but that beyond the 30-day
period in paragraph 12 he could no longer contest the validity
or correctness of the debt. Because the 30-day period would
expire before the date that the answer had to be filed for each
of the litigants, those provisions in conjunction would lead an
unsophisticated consumer to believe that he had that 30-day
period to dispute the debt and beyond that period he could not
dispute that debt in his answer. For each plaintiff in this
FDCPA action, the time period for “disputing the debt” was
shorter than the time period provided by law for the answer.
For instance, for one plaintiff in this FDCPA action, the
complaint provided that the debt must be disputed by Decem-
ber 14 while the answer was not due, according to the sum-
mons, until December 23. Paragraph 12 thus effectively
shortened the time period provided in the summons for the
consumer to answer, because the consumer had been told in
paragraph 12 that he only had the 30-day period to dispute the
No. 15-3273                                                      11

validity or correctness of the debt. That would cause an
unsophisticated consumer to believe that beyond that time
period in Paragraph 12 for disputing the debt, even if filing an
answer, the validity of the debt could no longer be disputed in
that answer.
    The language used in Paragraph 12 is particularly perni-
cious in that regard. The language regarding the 30-day
dispute period was not merely lifted from the demand letter,
which provided that unless the debt was disputed within that
30-day period, “we [the debt collector] will assume the debt to
be valid.” [emphasis added] Nor does that language track
§ 1692g(a)(3), which provides that if consumers do not dispute
the debt within 30 days of the written notice, “the debt will be
assumed to be valid by the debt collector.” The language in
Paragraph 12 differs in a material way from those provisions,
in that it does not contain the limiting language that the debt
will be considered valid by the debt collector, instead stating that
after the 30-day period “the debt will be considered valid.” The
presence of such language in a court complaint, cross-refer-
enced in the summons, would lead an unsophisticated con-
sumer to believe that the debt will be considered valid by the
court if not disputed within that 30 days, because the relevant
language that would have limited the assumption to only the
debt collector is absent from Paragraph 12, whether intention-
ally or otherwise. Whether the consumer is a sophisticated or
unsophisticated consumer, one cannot say—as the district
court did – that reading the summons and paragraph 12 in
relation to each other is to interpret it in a “bizarre or idiosyn-
cratic fashion.” It is in fact a rational reconciliation of the two
provisions.
12                                                   No. 15-3273

    Magnifying the problem, that sentence regarding the 30-
day period to dispute the debt mirrored the earlier demand
letter to the consumers informing them of their rights to
dispute the debt. The inclusion of that sentence in the com-
plaint would lead an unsophisticated consumer to believe that
she must dispute the debt through the procedures outlined in
the earlier letter, rather than in an answer in court, or she
would forfeit her right to contest the debt. That would place
the consumers at risk of losing their rights in court if they
disputed the debt through contact with the debt collectors
rather than in the form of an answer.
    The district court’s reading of the provisions illustrates the
problem with its analysis. The district court characterizes
Paragraph 12 as providing that a consumer could dispute the
“debt” and that the “debt” will be valid if not disputed, not as
providing that the legal claim to collect it will somehow be
resolved. Therefore, according to the district court, the con-
sumer might attempt to dispute the debt directly with the debt-
collection firm but could not view that as a sufficient response
to the lawsuit. The problem with the court’s interpretation is
twofold. First, it asks us to assume that an unsophisticated
consumer will distinguish the “disputing of a debt” from
“disputing a claim to collect that debt.” But an unsophisticated
consumer is unlikely to distinguish those concepts. In fact,
even at oral argument counsel for defendants alternated
between stating that the plaintiffs could dispute the debt by
answering the complaint and that they could dispute it by
contacting the law firm. Given the shortened time frame for
disputing the debt set forth in Paragraph 12, the notion that the
dispute should be in the form of the answer illustrates the
No. 15-3273                                                    13

problem – its 30-day provision would thereby shorten the time
for the answer. Moreover, the court acknowledges that the
consumer may be led to dispute the debt directly with the debt
collector. Yet if a consumer was led to believe that she had to
pursue a dispute directly with the debt collector, as the district
court acknowledges, then that same consumer is also likely to
believe that if she fails to do so within the 30-day period, the
debt is assumed to be valid and correct, and cannot be con-
tested in the court action. This is particularly true because, as
previously discussed, the wording in paragraph 12 has moved
the phrase “by the debt collector” so that it no longer clarifies
who will assume the debt to be valid. Finally, paragraph 12 is
simply improper in its entirety at this stage of the proceedings,
as the failure to dispute the debt will have no impact on the
court case. Its presence in the complaint serves no purpose, as
conceded by counsel for defendant. Its function in the com-
plaint is only to mislead. In Ruth v. Triumph Partnerships, 577
F.3d 790, 800 (7th Cir. 2009), we recognized that suits alleging
deceptive or misleading statements fall within three distinct
categories: (1) “cases involving statements that plainly, on their
face, are not misleading or deceptive;” (2) “cases involving
statements that are not plainly misleading or deceptive but
might possibly mislead or deceive the unsophisticated con-
sumer,” for which plaintiffs must produce extrinsic evidence
to prove that unsophisticated consumers find the statements to
be so; and (3) communications which are plainly deceptive and
misleading to an unsophisticated consumer as a matter of law.
See also Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317,
322–23 (7th Cir. 2016). The district court held that the state-
ments in this case rest within the first category, but they fall
14                                                No. 15-3273

within the third. For the reasons stated above, we hold that
Paragraph 12 is misleading and deceptive as a matter of law,
and that the district court erred in reaching the opposite
conclusion. Accordingly, the district court erred in granting
the motion to dismiss.
   The decision of the district court is REVERSED and the case
REMANDED for further proceedings consistent with this
opinion.
