             Case: 17-10174   Date Filed: 11/01/2017   Page: 1 of 12


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-10174
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 2:16-cv-14326-DMM


RICHARD LEONARD,

                                                              Plaintiff-Appellant,

                                     versus

ZWICKER & ASSOCIATES, P.C.,

                                                             Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                              (November 1, 2017)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Plaintiff-appellant Richard Leonard appeals from the district court’s

dismissal of his putative class-action lawsuit against Zwicker & Associates, P.C.
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(“Zwicker”), for violating the Fair Debt Collection Practices Act (“FDCPA”), 15

U.S.C. §§ 1692–1692p. Leonard’s claims are based on Zwicker’s alleged failure

in a letter to Leonard about a consumer credit-card debt, to accurately identify the

name of the creditor to whom the debt was owed. The district court dismissed the

complaint for failure to state a claim, reasoning that Zwicker adequately identified

the name of the creditor and that the communication was not misleading. After

careful review, we agree with the district court and therefore affirm the dismissal

of Leonard’s complaint.

                                         I.

      According to Leonard’s amended complaint, the operative filing in this case,

Zwicker, a debt collector, sought to collect a consumer debt from Leonard on an

American Express Gold Card credit-card account issued by American Express

Centurion Bank. On December 9, 2015, Zwicker mailed Leonard a letter seeking

payment of the debt ($14,619.71), which was Zwicker’s initial communication

with Leonard about the debt. The letter identified the creditor as “American

Express” and listed the final five digits of an account number.

      Leonard alleged that Zwicker misnamed the creditor as “American Express,”

when the “actual creditor” was either “American Express Centurion Bank,” which

owned and serviced the credit-card account, or “American Express Receivable

Financing Corporation III LLC,” which owned the credit-card account receivables


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through an agreement with American Express Centurion Bank. He further alleged

that this misidentification was confusing because numerous different entities

identified themselves as “American Express,” including over fifty business entities

in Florida whose names began with “American Express,” and because “American

Express” was a trademark owned by an entity that did not issue credit cards.

      Based on these allegations, Leonard claimed that Zwicker failed to identify

“the name of the creditor to whom the debt is owed,” in violation of 15 U.S.C.

§ 1692g(a)(2), and sent a false, deceptive, or misleading communication to attempt

to collect a debt, in violation of 15 U.S.C. § 1692e(10). Zwicker moved to dismiss

the complaint in its entirety.

      The district court granted Zwicker’s motion to dismiss for failure to state a

claim under Rule 12(b)(6), Fed. R. Civ. P. The court rejected Leonard’s “bright-

line rule that a debt collector must always identify the creditor by its full business

name.” And the court found that Leonard’s claims failed because Zwicker’s use of

“American Express” adequately and accurately identified the creditor and was not

misleading to the least sophisticated consumer. Leonard now appeals.

                                         II.

      We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6), accepting the allegations in the complaint as true and construing

them in favor of the plaintiff. Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291,


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1296–97 (11th Cir. 2015).          We also review de novo the district court’s

interpretation of a statute. Id. at 1296.

                                            III.

      The FDCPA is a consumer-protection statute intended to “‘eliminate abusive

debt collection practices,’ to ensure that ‘debt collectors who refrain from using

abusive debt collection practices are not competitively disadvantaged,’ and ‘to

promote consistent state action in protecting consumers against debt collection

abuses.’” Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1312–13

(11th Cir. 2015) (quoting 15 U.S.C. § 1692(e)). It regulates the conduct of “debt

collectors” in part by granting consumers the right to sue debt collectors for

violating its provisions. Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1258

(11th Cir. 2014).

      Because Congress enacted the statute primarily to protect consumers, we

evaluate the circumstances giving rise to an alleged FDCPA violation from the

perspective of the “least sophisticated consumer.” See id. at 1258–59; Jeter v.

Credit Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir. 1985). The least sophisticated

consumer “possess[es] a rudimentary amount of information about the world and a

willingness to read a collection notice with some care.” LeBlanc v. Unifund CCR

Partners, 601 F.3d 1185, 1193–94 (11th Cir. 2010); see also Jeter, 760 F.2d at

1175 n. 6 (the least sophisticated consumer is “on the low side of reasonable


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capacity”). That standard protects “naïve consumers” and “prevents liability for

bizarre or idiosyncratic interpretations of collections notices by preserving a

quotient of reasonableness.” LeBlanc, 601 F.3d at 1194.

       Two FDCPA provisions are at issue in this case: §§ 1692g and 1692e.

Section 1692g requires a debt collector to provide the consumer with certain

information “in the initial communication” about a debt or within five days of the

initial communication. 15 U.S.C. § 1692g(a). The required information includes

the amount of the debt, “the name of the creditor to whom the debt is owed,” and

other information about the debtor’s right to dispute the validity of the debt and the

consequences of not doing so. Id. § 1692g(a)(1)–(5). Section 1692e prohibits debt

collectors from using any false, deceptive, or misleading representation or means

to collect a debt. See 15 U.S.C. § 1692e(10). 1

A.     Section § 1692g

       Leonard claims that Zwicker violated § 1692g by failing to accurately

identify the name of the creditor to whom the debt was owed in the initial

communication. Leonard maintains that “American Express” was not the actual


       1
         Section 1692e provides the general rule that “[a] debt collector may not use any false,
deceptive, or misleading representation or means in connection with the collection of any debt.”
15 U.S.C. § 1692e. The statute then goes on to list specific conduct that violates § 1692e,
including, as relevant here, “[t]he 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(10). Because the more specific subsection adds little to the general rule in this case, we
use the general rule’s broader formulation of “false, deceptive, or misleading representation or
means.”
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creditor and that a consumer states a plausible claim under § 1692g when he or she

alleges that a debt collector misidentified the creditor by a generic name that is

used by numerous other corporate entities.                In those circumstances, Leonard

argues, the question of whether the least sophisticated consumer would have been

confused by the debt collector’s letter is a question of fact for the jury. 2

       Generally, the question of whether the least sophisticated consumer would

be confused or misled by a debt collector’s communication is one for the jury.

Miljkovic, 791 F.3d at 1307 n.11. However, the question of whether a plaintiff has

alleged sufficient facts to state a claim under § 1692g is a legal question for the

court. Id.

       “To satisfy § 1692g(a), the debt collector’s notice must state the required

information clearly enough that the recipient is likely to understand it.” Janetos v.

Fulton Friedman & Gullace, LLP, 825 F.3d 317, 321 (7th Cir. 2016); Russell v.

Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996) (“It is not enough for a debt

collection agency simply to include the proper debt validation notice in a mailing

to a consumer—Congress intended that such notice be clearly conveyed.”). In

       2
         Both parties assume, and the district court found, that the least-sophisticated-consumer
standard applies to claims under § 1692g. So far, we have applied that standard to claims under
§ 1692e and § 1692f. See Crawford, 758 F.3d at 1258–59. We have not extended that standard
to claims under § 1692g, though other circuits have done so. See, e.g., Wilson v. Quadramed
Corp., 225 F.3d 350, 354 (3d Cir. 2000); Smith v. Comput. Credit, Inc., 167 F.3d 1052, 1054 (6th
Cir. 1999); Swanson v. S. Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988). We
see no reason to disagree with these other circuits, but, regardless, we need not and do not decide
the issue here. Because both parties assume that the standard applies to § 1692g, we make that
assumption as well.
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other words, the notice should be clear enough that a naïve consumer comes away

from the notice understanding the “identity of the creditor.” See Bourff v. Rubin

Lublin, LLC, 674 F.3d 1238, 1241 (11th Cir. 2012).

      At the same time, nothing in the FDCPA expressly requires that debt

collectors use a creditor’s full business name or its name of incorporation when

identifying the “name of the creditor” in a § 1692g notice. The FDCPA does not

state how a creditor must be named in order to comply with § 1692g, much less

define “name” as “full business name” or “name of incorporation.”               And

incorporating such a strict requirement would elevate form over substance. Cf.

Russell, 74 F.3d at 35 (“[P]urported compliance with the form of the statute should

not be given sanction at the expense of the substance of the [FDCPA].”). As the

district court recognized, requiring a debt collector to identify the creditor by its

full business name would not always result in greater clarity to a naïve consumer,

who may be more familiar with a commonly used trade name.

      The Federal Trade Commission (“FTC”) and federal courts have taken a

similar approach when construing other FDCPA provisions requiring the

disclosure of a debt collector’s or creditor’s “name” or “true name” to a consumer.

Under § 1692e(14), for example, the FDCPA prohibits a debt collector from using

any name “other than the true name of the debt collector’s business, company, or

organization.” 15 U.S.C. § 1692e(14). The FTC has issued commentary stating


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that a debt collector does not violate § 1692e(14) if the collector “use[s] its full

business name, the name under which it usually transacts business, or a commonly-

used acronym.”     Federal Trade Commission, Statements of General Policy or

Interpretation, Staff Commentary on the Fair Debt Collection Practices Act, 53

Fed. Reg. 50097 (1988). Because the FTC is the federal agency tasked with

“enforcement and administration of the FDCPA,” that interpretation is “accorded

considerable weight.” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1372

n.2 (11th Cir. 1998).

      Likewise, the Second Circuit has stated that “a creditor need not use its full

business name or its name of incorporation to avoid FDCPA coverage” under

§ 1692a(6). Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.

1998). Section 1692a(6) provides that a creditor collecting its own debts may be

treated as a debt collector if it uses “any name other than [its] own which would

indicate that a third person is collecting or attempting to collect such debts.” 15

U.S.C. § 1692a(6). Relying on the FTC’s commentary, the Second Circuit stated

that the creditor may use, instead of its full business name, “the name under which

it usually transacts business, or a commonly-used acronym.” Maguire, 147 F.3d at

235 (citations and internal quotation marks omitted).

      In light of this persuasive authority, the consumer-protection purposes of the

FDCPA, and the plain terms of § 1692g, we agree with the district court that no


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bright-light rule requires a debt collector to “always identify the creditor by its full

business name” in order to avoid liability under § 1692g. Rather, consistent with

the FTC’s commentary, a debt collector may use the creditor’s full business name,

the name under which the creditor usually transacts business, or a commonly used

acronym.

      Here, the district court properly dismissed Leonard’s § 1692g claim under

Rule 12(b)(6). Zwicker clearly identified “American Express” as the name of the

creditor.   Its use of “American Express,” instead of the full business name

“American Express Centurion Bank” or “American Express Receivables Financing

Corporation III, LLC,” provides accurate information to the consumer about the

creditor’s identity. “American Express” is the name under which the financial-

services company usually transacts business, and the company is commonly

referred to by that name. That identification was not technically “false,” any more

than a commonly used nickname could be considered a “false” identification of a

person. Allowing Leonard’s § 1692g claim to go forward in these circumstances

would be to adopt the hyper-technical construction of the statute that we rejected

above. Accordingly, Leonard failed to state a claim under § 1692g.

B.    Section 1692e

      Section 1692e prohibits debt collectors from using any “false, deceptive, or

misleading” representation to collect a debt. 15 U.S.C. § 1692e(10). “The use of


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‘or’ in § 1692e means that, to violate the FDCPA, a representation by a ‘debt

collector’ must merely be false, or deceptive, or misleading.” Bourff, 674 F.3d at

1241.

        Leonard argues that the least sophisticated consumer would have been

confused or misled by Zwicker’s reference to “American Express” because

numerous other entities incorporate the name “American Express” in their names,

including another American Express entity (American Express, FSB) that issues

credit cards to consumers in Florida. Omitting the “true name” of the creditor,

Leonard argues, would leave the least sophisticated consumer confused as to which

potential “American Express” entity on whose behalf the debt collector was

attempting to collect.

        Here, the district court properly dismissed Leonard’s § 1692e claim for

failure to state a claim under Rule 12(b)(6). As we have explained, Zwicker’s use

of “American Express” to identify the name of the creditor was not technically

false. Nor would the least sophisticated consumer have been confused or misled as

to the identity of the creditor as a result of Zwicker’s letter.

        A debt collector’s failure to provide the information required by § 1692g is

actionable as a violation of § 1692e “if the variance is one that would tend to

mislead the least sophisticated consumer.” Caceres v. McCalla Raymer, LLC, 755

F.3d 1299, 1304 (11th Cir. 2014).            In Caceres, the debt collector’s letter


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incorrectly “substituted ‘creditor’ for ‘debt collector’ when informing the

consumer of who would assume that the debt was valid if the debt was not

contested within thirty days.”     Id.; see 15 U.S.C. § 1692g(a)(3). Assuming

arguendo that the error might have deterred the least sophisticated consumer from

disputing the validity of the debt, we nevertheless concluded that the letter did not

mislead. Caceres, 755 F.3d 1304. We explained that “because the debt collector

is obviously the agent of the creditor, the same implication arises from the notice

required by § 1692g(a)(3) as from [the debt collector’s] erroneous statement.” Id.

“In other words, the least sophisticated consumer would think that if the debt

collector was entitled to assume that the debt is valid, the creditor would have the

same right.” Id. Accordingly, we held that “because the same implication arises”

whether the language of the notice or the language of the statute was used, “the

letter did not mislead.” Id.

      Similar reasoning applies here.         Assuming arguendo that the least

sophisticated consumer would be left confused as to which potential “American

Express” entity on whose behalf the debt collector was attempting to collect, “the

same implication arises” if Zwicker used the creditor’s full business name, as

Leonard suggests § 1692g(a)(2) requires. Cf. id.        A naïve consumer, who is

unfamiliar with the internal corporate structure of the American Express Company

would be no more confused as to the identity of the creditor by the commonly used


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“American Express” than by the full business names “American Express Centurion

Bank” or “American Express Receivable Financing Corporation III LLC.”

Accordingly, we agree with the district court that Zwicker’s use of “American

Express” was not misleading to the least sophisticated consumer.           The court

properly dismissed Leonard’s § 1692e claim for failure to state a claim.

                                         IV.

      For the reasons stated above, we AFFIRM the dismissal of Leonard’s

complaint for failure to state a claim under Rule 12(b)(6).




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