                                                  NOT PRECEDENTIAL
                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 16-1952
                                  _____________

                                 ALBERT DAVIS,
                                         Appellant

                                         v.

                      PHELAN HALLINAN & DIAMOND PC;
                               JOHN DOES I-X
                              _______________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                             (D.N.J. No. 1-15-cv-03621)
                    District Judge: Honorable Robert B. Kugler
                                  _______________

                                   ARGUED
                                  March 20, 2017

               Before: AMBRO, JORDAN, and ROTH, Circuit Judges.

                               (Filed: April 24, 2017)
                                 _______________

Adam Deutsch [ARGUED]
Northeast Law Group LLC
P.O. Box 60717
Longmeadow, MA 01106
      Counsel for Appellant

Kenneth S. Goodkind [ARGUED]
Flaster Greenberg
1810 Chapel Avenue West
Cherry Hill, NJ 08002
Scott C. Oberlander
Flaster Greenberg
1835 Market Street
Philadelphia, PA 19103
      Counsel for Appellee
                                     _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Albert Davis argues that a law firm, Phelan Hallinan & Diamond PC (“Phelan”),

violated two separate provisions of the Fair Debt Collection Practices Act (“FDCPA”)

when it mailed letters relating to a debt owed by Davis to addresses that he claims have

nothing to do with him. According to Davis, those letters violated the FDCPA in two

ways: first, they were communications with third parties, and, second, the natural

consequence of the letters was to harass, abuse, or oppress him. Phelan moved to dismiss

the claims, or, in the alternative, for summary judgment. The District Court converted

the motion into one for summary judgment and granted it as to both claims. We agree,

and, for the reasons that follow, will affirm.

I.     Factual Background

       Davis owns real property located at 14 Rionda Court, Alpine, New Jersey, which

is his primary residence. In December 2006, he executed a promissory note with Wells

Fargo Bank in the amount of $769,000 secured by a mortgage on the property. Davis’s

wife, Barbara Davis, was likewise a signatory on that mortgage. Davis defaulted on the

       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                                 2
loan. The promissory note and mortgage were subsequently transferred to Bank of

America in 2010. Then, years later, Bank of America retained Phelan to pursue a debt

foreclosure action against Davis.

       Phelan filed the foreclosure action in New Jersey state court, and it is still being

litigated. During the course of discovery in that action, Phelan mistakenly turned over

two “Notice of Intention to Foreclose” (NOI) letters that had been sent to Davis at

addresses other than the address that was the subject of the mortgage. More specifically,

those letters were sent by both certified and regular mail to Albert E. Davis at 15 Linda

Ave., Brockton, Massachusetts (“the Brockton address”), and 14 Carlson Court, Closter,

New Jersey (“the Closter address”). The NOI letters state that they are an attempt to

collect a debt against him, that he had been in default on his mortgage since January 1,

2010, that he owed a total of $267,798.26, and that, if he did not pay within thirty days,

foreclosure proceedings would be initiated.

       Davis then filed this suit against Phelan for violations of the FDCPA based on the

NOIs sent to the Brockton and Closter addresses. Phelan moved to dismiss the

Complaint and attached multiple documents, including a declaration by a partner at the

law firm. That declaration explains the process Phelan used to ascertain the addresses to

which NOIs should be sent under New Jersey law. Phelan hired an investigation agency,

Full Spectrum Services, Inc. (“Full Spectrum”), to determine the addresses of potential

foreclosure defendants who were entitled to receive notice under New Jersey procedural

rules and the state’s Fair Foreclosure Act. With Full Spectrum’s assistance, Phelan

searched for addresses for both Davis and his wife. That search uncovered the Closter

                                              3
and Brockton addresses. Full Spectrum then consulted multiple databases before it

conducted a Freedom of Information Act request to confirm the Closter and Brockton

addresses it had found.

       The United States Postal Service responded to the confirmation request, and that

response is attached to a declaration of one of Phelan’s attorneys. It shows that the

Closter address is valid for a “Barbara Davis” but that an “Albert Davis” had “moved,

[and] left no forwarding address.” (App. at 50a.) For the Brockton address, the response

showed that there actually was “no such address.” (App. at 49a.) Nevertheless,

according to Phelan, “to better assure that the NOI would reach Mr. Davis, [Phelan] sent

[NOI letters] addressed to Albert Davis to several addresses, including the Property

address in Alpine NJ and the addresses in Closter NJ and Brockton MA.” (App. at 46a.)

The certified mail was returned unclaimed from the Closter address and returned as

undeliverable from the Brockton address. There is no allegation that the NOIs sent by

regular mail were ever received or opened by any third party.

II.    Procedural Background

       Davis alleged in his Complaint two separate violations of the FDCPA: first, that

Phelan violated 15 U.S.C. § 1692c(b), which prohibits “Communication with Third

Parties,” and, second, that Phelan violated 15 U.S.C. § 1692d, which prohibits “any

conduct the natural consequence of which is to harass, oppress, or abuse any person in

connection with the collection of a debt.” As already noted, Phelan moved to dismiss

and, in doing, attached exhibits to its motion. It requested that, if the exhibits were

necessary to the District Court’s resolution, “the Court convert th[e] Motion to a Motion

                                              4
for Summary Judgment” as authorized by Federal Rule of Civil Procedure 12(d). (Davis

v. Phelan Hallinan & Diamond PC, 15-cv-03621, D.I. 5, pg. 8.) Davis opposed the

motion on the merits. In his brief in opposition, he included an argument heading stating,

in part, that “THE COURT MUST USE THE SUMMARY JUDGMENT STANDARD

IN LIGHT OF DEFENDANT’S EXPANDING RECORD.” (Id. at D.I. 7, pg. 7.) He

reiterated the point by saying that “[t]he submission by Phelan [of additional documents]

may require the motion before the Court to be converted to a Summary Judgment

motion.” (Id. at D.I. 7, pg. 9.) Ultimately, the District Court did convert Phelan’s motion

into one for summary judgment. After recognizing that Davis himself had argued that the

Court must use the summary judgment standard, the Court concluded that “Plaintiff had

notice that the Court may treat Defendant’s motion as one for summary judgment.”

(App. at 6a.) It then granted the motion “pursuant to Federal Rule of Civil Procedure 56”

as to both of Davis’s FDCPA claims. (App. at 3a.)

       This timely appeal followed.

III.   Discussion1

       A.     Conversion

       We must first decide whether the District Court erred in converting Phelan’s

motion to dismiss into one for summary judgment. “When reviewing a District Court’s

decision to convert a motion to dismiss into a motion for summary judgment, we

typically examine three issues: first, whether the materials submitted require conversion;

       1
         The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.

                                             5
second, whether the parties had adequate notice of the district court’s intention to

convert; and third, if the parties did not have notice, whether the court’s failure to provide

notice was harmless error.” In re Rockefeller Ctr. Props., Inc. Secs. Litig., 184 F.3d 280,

287 (3d Cir. 1999). Only the second factor is in any real dispute here. As to that factor,

we do not necessarily require that district courts themselves give notice of conversion,

although that is preferable. What is required is that the parties have adequate notice. Id.

at 287-88. Because Davis demonstrated that he knew materials beyond the pleadings

were before the Court and he indeed urged the District Court to treat the motion to

dismiss as one for summary judgment, it is clear that he had the requisite notice of the

conversion. Moreover, Davis did not present any objection to conversion or request

discovery. It was thus appropriate under the circumstances for the District Court to treat

the motion to dismiss as a motion for summary judgment. Hilfirty v. Shipman, 91 F.3d

573, 579 (3d Cir. 1996) overruled on other grounds Merkle v. Upper Dublin Sch. Dist.,

211 F.3d 782, 791 (3d Cir. 2000). Consequently, we will review the District Court’s

grant of summary judgment de novo and apply the same standard that it applied. Blunt v.

Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). In doing so, “we view the

underlying facts and all reasonable inferences therefrom in the light most favorable to

[Plaintiff].” Id. (quotation omitted).

       B.     Communication with a Third Party

       Davis argues that the District Court erred in granting summary judgment against

him on his claim brought under 15 U.S.C. § 1692c(b) because the NOIs sent to the

Closter and Brockton addresses were in fact communications with third parties. Section

                                              6
1692b(c) prohibits “communication with third parties.” 15 U.S.C. § 1692c(b). Here, two

letters were sent by regular mail2 addressed specifically to Albert E. Davis but they were

sent to addresses with which he claims no association. There is no allegation, however,

that any third party ever received or opened those letters.3 The question, then, is whether

a letter addressed specifically to the debtor but sent to an address other than the debtor’s

is, on those facts alone, a communication with a third party in violation of the statute.

       Section 1692c(b) states that “a debt collector may not communicate, in connection

with the collection of any debt, with any person other than the consumer … .” Id.

Importantly, the prohibition is only against communication “with third parties.” Id.

(emphasis added). A communication must occur with a person other than the consumer

in order to be prohibited by the language of the statute. In addition to the statutory

language requiring that the communication be “with third parties,” the statutory definition

of “communication” further supports that requirement. A “communication” is defined as

“the conveying of information regarding a debt directly or indirectly to any person

through any medium.” 15 U.S.C. § 1692a(2). That definition explicitly requires that

information about a debt be conveyed “to any person.” Id. Thus, the language of the

statutory prohibition and the definition of “communication” both indicate that, without a

third party with which to communicate, there is no statutory violation under § 1692c(b).


       2
           The letters sent by certified mail were returned and therefore are not at issue.
       3
         Davis also argued that the Court should presume that the mailings were received
based on a New Jersey Rule of Court 1:5-4(b), which provides that “service by mail …
shall be complete upon mailing of the ordinary mail.” Because that state rule of
procedure is relevant only to service of process, it does not affect our analysis here.
                                                7
       District courts across the country have held that letters addressed specifically to a

debtor but mailed to the address of a third party do not violate the FDCPA’s prohibition

on communications with third parties.4 That includes district courts within our Circuit.

See, Strouse v. Enhanced Recovery Co., LLC, 956 F. Supp. 2d 627, 635 (E.D. Pa. 2013)

(dismissing claim under § 1692c(b) where letters were sent to debtor’s parents’ house but

addressed only to debtor or her counsel); cf. Moore v. Fein, Such, Kahn & Shepard, P.C.,

12-cv-1157, 2012 WL 3945539, at *3 (D.N.J. June 13, 2012) (noting one basis for

dismissal was because a letter sent to debtor’s father’s house but addressed only to debtor

did not give any indication it concerned a debt).5 We agree; a letter addressed

specifically to the debtor does not communicate with a third party, even if it is mailed to

the address of a third party. That is because a letter in an envelope addressed only to the

debtor does not convey information “to any person” other than the debtor. 15 U.S.C.

       4
         See, e.g., Wisdom v. Wakefield & Assocs., Inc., 2:16-cv-00303-DB, 2016 WL
3747586, at *3 (D. Utah July 11, 2016) (dismissing claim where debt collector sent letter
to debtor at father’s address and father opened debtor’s mail because no allegation debt
collector addressed letter to father or that the two shared the same name); Darden v.
Trans Union, LLC, 6:12-cv-297, 2013 WL 12125739, at *3 (E.D. Tex. Oct. 28, 2013)
(granting summary judgment because “though sent to an incorrect location, the letter was
specifically addressed to [plaintiff] and should not have been opened by anyone else”);
Segal v. Nat’l Action Fin. Servs., Inc., 8:04-cv-2388, 2006 WL 449176, at *7 (M.D. Fla.
Feb. 22, 2006) (“The act of sending one letter addressed to a consumer but sent to the
wrong address does not alone appear to indicate a violation by Defendant of § 692c(b).”).
       5
          Most recently, the Southern District of New York relied on the opinions from our
district courts to conclude that a letter addressed to the debtor, but sent to the address of a
third party, generally will not violate the FDCPA. Duran v. Midland Credit Mgmt., Inc.,
15-cv-5940, 2016 WL 3661538, at *3 (S.D.N.Y. June 30, 2016). In so concluding, that
court reasoned that calling such a letter a communication with a third party would be the
equivalent of claiming “that the Nazis ‘communicated with’ the Allies when the Allies
cracked the Enigma code” or “that John Gotti ‘communicated with’ the law enforcement
agents who were listening to his phone calls via wiretap[.]” Id.
                                              8
§ 1692a(2). It is simply not a “communication with a third party” as required by the

statute. Id. at § 1692c(b) (emphasis added). Therefore, Davis’s claim under § 1692c(b)

cannot stand.

       C.       Natural Consequence to Harass, Oppress, Abuse

       Davis also argues that the District Court erred in granting summary judgment

against him on his claim brought under 15 U.S.C. § 1692d. That section of the statute

prohibits a debt collector from “engag[ing] in any conduct the natural consequence of

which is to harass, oppress, or abuse any person in connection with the collection of a

debt.” 15 U.S.C. § 1692d. The statute then provides a non-exclusive list of the types of

conduct that violate the statute, including:

       (1) The use or threat of use of violence or other criminal means to harm the
       physical person, reputation, or property of any person.
       (2) The use of obscene or profane language or language the natural
       consequence of which is to abuse the hearer or reader.
       (3) The publication of a list of consumers who allegedly refuse to pay
       debts, except to a consumer reporting agency or to persons meeting the
       requirements of section 1681a(f) or 1681b(3) of this title.
       (4) The advertisement for sale of any debt to coerce payment of the debt.
       (5) Causing a telephone to ring or engaging any person in telephone
       conversation repeatedly or continuously with intent to annoy, abuse, or
       harass any person at the called number.
       (6) Except as provided in section 1692b of this title, the placement of
       telephone calls without meaningful disclosure of the caller’s identity.

Id. Although that list does not strictly limit the general application of the prohibition, it

illustrates the level of culpability required to violate § 1692d.

       Davis contends that sending NOIs by certified and regular mail to two addresses

that are not affiliated with him is conduct so extreme that the natural consequence of it is

to abuse, harass, or oppress. He attempts to liken the mailings to the publication of a list

                                               9
of consumers who allegedly refuse to pay debts. But that analogy is plainly without

merit. Unlike a published list of debtors for all the public to see, here, a sealed envelope

addressed only to Davis was sent to only two addresses. Furthermore, the NOIs were

sent in an effort to comply with the requirement of the New Jersey Fair Foreclosure Act

that such notices be sent to “the debtor’s last known address, and, if different, to the

address of the property which is the subject of the residential mortgage.” N.J.S.A.

2A:50-56(b). There is no guarantee that a debtor’s last known address will always be his

or her current address. Thus, to hold that mailing an NOI to an address that is no longer

associated with the debtor, even when addressed only to the debtor, violates the FDCPA

could create unnecessary difficulties for debt collectors attempting to provide notice to

debtors. And, in any event, the natural consequence of mailing sealed envelopes

addressed to a debtor at two addresses that are not his own is not to abuse, harass, or

oppress that debtor. Accordingly, Phelan’s actions did not violate § 1692d.

IV.    Conclusion

       For the foregoing reasons, we will affirm.




                                             10
