15-3105-cv
Carlin v. Davidson Fink LLP




  1                                    In the
  2                  United States Court of Appeals
  3                           for the Second Circuit
  4                                    ________
  5
  6                               August Term, 2015
  7
  8                                 No. 15-3105-cv
  9
 10              ANDREW CARLIN, individually and on behalf of a class,
 11
 12                               Plaintiff-Appellant,
 13
 14                                       v.
 15
 16                              DAVIDSON FINK LLP,
 17
 18                               Defendant-Appellee.
 19                                    ________
 20
 21                              Argued: April 5, 2016
 22                            Decided: March 29, 2017
 23                                   ________
 24             Before: POOLER, PARKER, and LIVINGSTON, Circuit Judges.
 25                                   ________
 26
 27            This appeal considers whether a letter to a consumer debtor
 28     providing a “Total Amount Due” and stating that the amount may
 29     include estimated fees, costs, additional payments, or escrow
 30     disbursements that are not yet due is sufficient to state the “amount
 31     of the debt” as required by the Fair Debt Collection Practices Act. 15
 32     U.S.C. § 1692g. We hold that, in the circumstances here, it is not. As
 33     a threshold matter, we also clarify that mortgage foreclosure
 34     complaints are not “initial communications” within the meaning of
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Carlin v. Davidson Fink LLP




  1     the Fair Debt Collection Practices Act. Because Carlin has stated
  2     facts that, if true, give rise to liability under the Fair Debt Collection
  3     Practices Act, we vacate the judgment of the district court and
  4     remand for further proceedings.

  5                                     ________

  6                           DANIEL A. EDELMAN (Tiffany N. Hardy, on the
  7                           brief), Edelman, Combs, Latturner & Goodwin,
  8                           LLC, Chicago, IL, for Plaintiff-Appellant.

  9                           ANDREW M. BURNS, Davidson Fink LLP,
 10                           Rochester, NY, Matthew J. Bizzaro, L’Abbate,
 11                           Balkan, Colavita & Contini, LLP, Garden City,
 12                           NY, on the brief, for Defendant-Appellee.

 13                                     ________

 14     BARRINGTON D. PARKER, Circuit Judge

 15             ________

 16           Plaintiff-Appellant Andrew Carlin, individually and on behalf
 17     of others similarly situated, alleges that Defendant-Appellee
 18     Davidson Fink LLP violated the Fair Debt Collection Practices Act,
 19     15 U.S.C. § 1692 et seq. (the “FDCPA”), when it failed to provide the
 20     “amount of the debt” within five days after an initial communication
 21     with a consumer in connection with the collection of a debt, as
 22     required by § 1692g. The complaint alleges that Davidson Fink
 23     made three attempts to collect on a debt and that each time, it failed
 24     to provide adequate notice to Carlin of the amount of the debt.
 25          Carlin urges us to hold that Davidson Fink’s first
 26     communication, a mortgage foreclosure complaint (the “Foreclosure
 27     Complaint”), was an initial communication with a consumer in
 28     connection with the collection of a debt, and that Davidson Fink was


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  1     therefore required to provide the “amount of the debt” within five
  2     days of filing the Foreclosure Complaint. But we decline to so hold
  3     because the plain language of the statute excludes from § 1692g
  4     pleadings in a civil action. Instead, we conclude that Davidson
  5     Fink’s follow-up letter, an unambiguous attempt to collect on a debt,
  6     triggered the disclosure requirements of § 1692g, and that Carlin has
  7     adequately alleged that this second communication by Davidson
  8     Fink did not satisfy those requirements. We therefore vacate the
  9     order and judgment of the district court and remand for further
 10     proceedings consistent with this opinion.

 11                              BACKGROUND

 12           Because this appeal comes before us on a motion to dismiss,
 13     we accept as true all plausible allegations in the complaint.
 14            Davidson Fink is a law firm whose practice areas include debt
 15     collection and foreclosure. Davidson Fink provides a “wide-range of
 16     debt collection services,” and offers “immediate and inexpensive
 17     options to recover unpaid funds with a comprehensive collection
 18     process.” App. at 3. As part of its practice, Davidson Fink regularly
 19     collects consumer debts, including residential mortgage debts.
 20     There is no dispute that Davidson Fink is a debt collector within the
 21     meaning of the FDCPA.

 22             On June 24, 2013, Davidson Fink filed the Foreclosure
 23     Complaint against Carlin, seeking to collect on a 2005 mortgage
 24     allegedly defaulted on by Carlin. The summons indicated that “[t]he
 25     relief sought in the within action is a final judgment directing the
 26     sale of the premises described above to satisfy the debt secured by
 27     the Mortgage described above.” App. at 12. The Foreclosure
 28     Complaint stated that “this action may be deemed to be an attempt
 29     to collect a debt.” App. at 17. The Foreclosure Complaint also
 30     included a paragraph requesting:




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  1                     That if the proceeds of said sale of the
  2                     mortgage premises aforesaid be insufficient
  3                     to pay the amount found due to the plaintiff
  4                     with interest and costs, the officer making the
  5                     sale be required to specify the amount of
  6                     such deficiency in his report of sale so that
  7                     plaintiff may thereafter be able to make
  8                     application to this Court, pursuant to Section
  9                     1371 of the Real Property Actions and
 10                     Proceedings Law, for a judgment against the
 11                     defendant(s) referred to in paragraph
 12                     FOURTH of this Complaint for any
 13                     deficiency which may remain after applying
 14                     all of such moneys so applicable thereto,
 15                     except that this shall not apply to any
 16                     defendant who has been discharged in
 17                     bankruptcy from the subject debt[.]

 18     App. at 18. Section 1371 of the New York Real Property Actions and
 19     Proceedings Law provides that “[s]imultaneously with the making
 20     of a motion for an order confirming the sale, . . . the party to whom
 21     such residue shall be owing may make a motion in the action for
 22     leave to enter a deficiency judgment . . . .” N.Y. REAL PROP. ACTS.
 23     LAW § 1371(2) (2016).

 24           Davidson Fink attached to the Foreclosure Complaint a
 25     “Notice Required by the Fair Debt Collection Practices Act,” which
 26     stated that “the amount of the debt is stated in the complaint hereto
 27     attached,” and also that “the debt . . . will be assumed to be valid . . .
 28     unless the debtor, within thirty (30) days after receipt of this notice,
 29     disputes the validity of the debt.” App. at 21. Contrary to the
 30     assurance made in the attached notice, the Foreclosure Complaint
 31     did not state the amount of the debt.




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15-3105-cv
Carlin v. Davidson Fink LLP




  1            Apparently prompted by the Foreclosure Complaint’s
  2     warnings, Carlin sent Davidson Fink a letter on July 12, 2013 (the
  3     “July Letter”), disputing the validity of the debt and requesting a
  4     verification of the dollar amount of the purported debt. Davidson
  5     Fink obliged, and on August 9, 2013, sent a letter (the “August
  6     Letter”) to Carlin containing, among other things, a Payoff
  7     Statement. The Payoff Statement was dated July 31, 2013, and
  8     indicated that it was valid through August 14, 2013. The Payoff
  9     Statement included a “Total Amount Due” of $205,261.79. Below the
 10     amount due, however, the statement added, in small print:

 11                     To provide you with the convenience of an
 12                     extended “Statement Void After” date, the
 13                     Total Amount Due may include estimated
 14                     fees, costs, additional payments and/or
 15                     escrow disbursements that will become due
 16                     prior to the “Statement Void After” date, but
 17                     which are not yet due as of the date this
 18                     Payoff Statement is issued. You will receive
 19                     a refund if you pay the Total Amount Due
 20                     and those anticipated fees, expenses, or
 21                     payments have not been incurred.

 22     App. at 55. The Payoff Statement did not indicate what those
 23     estimated fees, costs, or additional payments were or how they were
 24     calculated.

 25            Carlin brought this action alleging that Davidson Fink
 26     violated the FDCPA, which provides:

 27                     Within five days after the initial
 28                     communication with a consumer in
 29                     connection with the collection of any debt, a
 30                     debt collector shall, unless the following
 31                     information is contained in the initial
 32                     communication or the consumer has paid the

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Carlin v. Davidson Fink LLP




  1                     debt, send the consumer a written notice
  2                     containing—

  3                           (1) the amount of the debt . . . .
  4     15 U.S.C. § 1692g(a). Carlin alleges that the filing of the Foreclosure
  5     Complaint was an “initial communication . . . in connection with the
  6     collection of any debt,” and because Davidson Fink failed to specify
  7     the amount of the debt within five days of filing the complaint, it is
  8     liable for damages under the FDCPA. See id. § 1692k. Alternatively,
  9     Carlin alleges that Davidson Fink was required to respond with the
 10     amount of the debt within five days of receiving the July Letter.
 11     Finally, Carlin alleges that if neither the Foreclosure Complaint nor
 12     the July Letter was an initial communication, then the August Letter
 13     was an initial communication made in connection with the collection
 14     of a debt and the Payoff Statement did not satisfy § 1692g(a) because
 15     the amount due included unaccrued and unspecified fees and costs.
 16           Davidson Fink moved to dismiss for failure to state a claim. In
 17     September 2014, the district court (Seybert, J.) denied the motion,
 18     saying that Carlin had plausibly alleged that Davidson Fink was
 19     acting as a debt collector, that it engaged in an initial communication
 20     with Carlin, and that it failed to comply with § 1692g(a). Davidson
 21     Fink moved for reconsideration, and in September 2015, the district
 22     court granted the motion and dismissed the complaint, holding that
 23     because the Foreclosure Complaint was not an effort to collect on a
 24     debt within the meaning of § 1692g(a), the complaint failed to
 25     plausibly state a claim. Carlin appeals.
 26                                    DISCUSSION

 27             We review a district court’s grant of a defendant’s motion to
 28     dismiss de novo. Hart v. FCI Lender Servs., Inc., 797 F.3d 219, 223 (2d
 29     Cir. 2015). To survive a motion to dismiss, “a complaint must
 30     contain sufficient factual matter, accepted as true, to ‘state a claim to
 31     relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678


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  1     (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
  2     We must “accept as true all of the allegations contained in a
  3     complaint,” though “[t]hreadbare recitals of the elements of a cause
  4     of action, supported by mere conclusory statements, do not suffice.”
  5     Id. Though we are confined “to the allegations contained within the
  6     four corners of [the] complaint,” Pani v. Empire Blue Cross Blue Shield,
  7     152 F.3d 67, 71 (2d Cir. 1998), we may also consider any “documents
  8     attached to the complaint as an exhibit or incorporated in it by
  9     reference,” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
 10     2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.
 11     1993)).
 12           In assessing Carlin’s claim, § 1692g(a) calls upon us to make
 13     three determinations: (1) whether any of the communications
 14     between the parties were “initial communications” within the
 15     meaning of § 1692g, (2) whether any of the communications between
 16     the parties were “in connection with the collection of any debt,” and
 17     (3) whether Davidson Fink provided the amount of the debt within
 18     five days of such a communication. We agree with Davidson Fink
 19     that neither the Foreclosure Complaint nor the July Letter are initial
 20     communications giving rise to the requirements of § 1692g(a). We
 21     hold, however, that the August Letter was an initial communication
 22     in connection with the collection of a debt, and that the Payoff
 23     Statement attached to the August Letter did not adequately state the
 24     amount of the debt.
 25             A.      Initial Communication

 26            The FDCPA does not offer a definition of “initial
 27     communication.” In Goldman v. Cohen, we held that a “debt
 28     collector’s initiation of a lawsuit in state court seeking recovery of
 29     unpaid consumer debts is an ‘initial communication’ within the
 30     meaning of the FDCPA.” 445 F.3d 152, 155 (2d Cir. 2006). After
 31     Goldman, however, Congress amended the FDCPA in 2006 to clarify
 32     that “[a] communication in the form of a formal pleading in a civil


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  1     action shall not be treated as an initial communication for purposes
  2     of subsection (a) of this section.” 15 U.S.C. § 1692g(d) (added by the
  3     Financial Services Regulatory Relief Act of 2006, Pub. L. No. 109-351,
  4     § 802(a), 120 Stat. 1966, 2006–07 (2006)). We have recognized that
  5     this amendment supersedes our determination in Goldman. See Ellis
  6     v. Solomon & Solomon, P.C., 591 F.3d 130, 136 (2d Cir. 2010).

  7            Despite the plain language of the statute, Carlin insists that the
  8     Foreclosure Complaint is an initial communication. Carlin argues
  9     that our holding in Hart, 797 F.3d at 224, makes clear that a § 1692g
 10     notice is an initial communication. Here, Davidson Fink attached
 11     such a notice to the Foreclosure Complaint, although it was not
 12     required to do so, and Carlin argues that because the notice was not
 13     part of the “formal pleading,” it does not fall within the exception
 14     for formal civil pleadings provided in the statute.

 15             Carlin’s argument finds no refuge in the text of the statute.
 16     Section 1692g(d) states that a “communication in the form of a
 17     formal pleading in a civil action” is not an initial communication.
 18     We have recognized that “courts should avoid statutory
 19     interpretations that render provisions superfluous.” State St. Bank &
 20     Tr. Co. v. Salovaara, 326 F.3d 130, 139 (2d Cir. 2003). Were we to
 21     adopt Carlin’s reading that the exclusion applies only to the formal
 22     documents that make up a standard pleading, we would be ignoring
 23     the plain language instructing that all communications in the form of
 24     a civil pleading are excluded from the definition of initial
 25     communication. Congress could have drawn the exclusion more
 26     narrowly, but it did not. Instead, it adopted a broad exclusion that,
 27     on its face, applies to any communication forming any part of a
 28     pleading. Such an exclusion naturally extends to exhibits attached to
 29     a complaint, and accordingly includes the § 1692g notice attached to
 30     the Foreclosure Complaint. Thus, we hold that even documents that




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     1   are superfluously attached to a formal pleading are not initial
     2   communications within the meaning of the FDCPA.1

     3          Carlin protests that the § 1692g notice is misleading because it
     4   erroneously instructed him that he had 30 days to dispute the debt,
     5   which, according to the position now taken by Davidson Fink, was
     6   false. But Carlin has not alleged in his complaint that the notice was
     7   misleading, only that it failed to state the amount of the debt.
     8   Should Carlin wish to amend his complaint to state such a claim,
     9   that issue must be decided by the district court in the first instance,
    10   and we express no view on the merits of such a claim.
    11          Carlin next alleges that the July Letter, sent from him to
    12   Davidson Fink in response to the Foreclosure Complaint, is an initial
    13   communication. Numerous district courts have rejected the notion
    14   that a communication initiated by a debtor to a debt collector may
    15   qualify as an initial communication. See, e.g., Derisme v. Hunt Leibert
    16   Jacobson P.C., 880 F. Supp. 2d 339, 367–68 (D. Conn. 2012); Lane v.
    17   Fein, Such & Crane, LLP, 767 F. Supp. 2d 382, 387 (E.D.N.Y. 2011);
    18   Gorham-Dimaggio v. Countrywide Home Loans, Inc., No. 1:05-cv-0583,
    19   2005 WL 2098068, at *2 (N.D.N.Y. Aug. 30, 2005). Like those courts,
    20   we conclude that, read in the context of the entire statute, initial
    21   communications do not include communications initiated by the
    22   debtor.
    23          “When construing a statute, we begin with its language and
    24   proceed under the assumption that the statutory language, unless
    25   otherwise defined, carries its plain meaning . . . .” Chen v. Major
    26   League Baseball Props., Inc., 798 F.3d 72, 76 (2d Cir. 2015). The statute
    27   specifies that the communication must be “with” a consumer. We


1
 Because we conclude that the erroneously attached notice was not an initial communication, we need
not confront the parties’ extensive arguments regarding whether the initiation of a foreclosure action is
done “in connection with the collection of any debt.” Nor do we need to consider the district court’s
interpretation of the Eleventh Circuit’s ruling in Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d
1211 (11th Cir. 2012), as that case offers little guidance on the issues we confront here.

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15-3105-cv
Carlin v. Davidson Fink LLP




  1     cannot discern from this alone whether the statute should be read to
  2     exclude communications initiated by the consumer. Where statutory
  3     language is ambiguous, we may consider legislative history, but in
  4     doing so, we must “construct an interpretation that comports with
  5     [the statute’s] primary purpose and does not lead to anomalous or
  6     unreasonable results.” Puello v. Bureau of Citizenship & Immigration
  7     Servs., 511 F.3d 324, 327 (2d Cir. 2007) (alteration in original) (internal
  8     quotation marks omitted) (quoting Connecticut ex rel. Blumenthal v.
  9     United States Dep’t of the Interior, 228 F.3d 82, 89 (2d Cir. 2000)); see
 10     also Romea v. Heiberger & Assocs., 163 F.3d 111, 118 (2d Cir. 1998)
 11     (noting that the court should avoid interpreting the FDCPA to
 12     “contravene[] the purpose of the statute”).

 13            The FDCPA states that its purpose is to “eliminate abusive
 14     debt collection practices by debt collectors.” 15 U.S.C. § 1692(e)
 15     (emphasis added). We have similarly recognized that the “FDCPA
 16     was passed to protect consumers from deceptive or harassing
 17     actions taken by debt collectors.” Kropelnicki v. Siegel, 290 F.3d 118, 127
 18     (2d Cir. 2002) (emphasis added). And the legislative history makes
 19     clear that the debt collector’s obligation to provide the amount of the
 20     debt arises only “[a]fter initially contacting a consumer.” S. Rep. No.
 21     95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699. The
 22     legislative history and stated purpose of the statute thus indicate that
 23     the statute’s primary purpose, particularly where § 1692g is
 24     implicated, is to regulate communications from the debt collector to
 25     the debtor. Thus, imposing liability under § 1692g when a debtor
 26     initiates the communication would run counter to the statute’s
 27     primary purpose and would impose liability in circumstances not
 28     contemplated by either the statute or the legislature. Accordingly,
 29     the July Letter is not an initial communication under the FDCPA.
 30            We have little difficulty concluding, however, that the August
 31     Letter was an initial communication. Davidson Fink argues that the
 32     protections of the FDCPA are not implicated where the debtor is
 33     protected by the procedures of the court system. Davidson Fink’s

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  1     argument fails because the August Letter was not sent in the context
  2     of a litigation, nor was it even sent to Carlin’s attorney. The cases
  3     cited by Davidson Fink are inapposite—those cases, which concern
  4     only misrepresentations under § 1692e, all involve representations
  5     made to an attorney representing the debtor, usually in the context
  6     of a formal proceeding. See, e.g., Gabriele v. Am. Home Mortg.
  7     Servicing, Inc., 503 F. App’x 89, 92 (2d Cir. 2012) (alleged
  8     misstatements made in state foreclosure action); Simmons v. Roundup
  9     Funding, LLC, 622 F.3d 93, 95 (2d Cir. 2010) (alleged misstatements
 10     made in bankruptcy filing); Kropelnicki, 290 F.3d at 123 (alleged
 11     misstatement made over the phone to attorney during settlement
 12     discussions). Here, by contrast, the August Letter was not sent in
 13     connection with the foreclosure proceeding, and in fact makes no
 14     mention of the proceeding. Furthermore, the letter was not sent to
 15     Carlin’s attorney, who had already appeared on behalf of Carlin in
 16     the foreclosure proceeding, but to Carlin himself. Davidson Fink is
 17     thus incorrect that Carlin was amply protected by the procedures of
 18     the court system.
 19             Nor can we say that the August Letter was merely a response
 20     to an unsolicited request for information. The August Letter was
 21     sent in response to the July Letter, which was only sent in the first
 22     place because Carlin was under the mistaken impression that he was
 23     required to dispute the debt within thirty days. In light of such
 24     circumstances, there is little dispute that the August Letter was an
 25     initial communication within the meaning of the FDCPA.

 26             B.      In Connection With the Collection of Any Debt

 27           Having determined that only the August Letter is an initial
 28     communication, we must assess whether the letter was sent “in
 29     connection with the collection of any debt.” 15 U.S.C. § 1692g(a). In
 30     addressing this question at the motion to dismiss stage, our role is to
 31     determine merely whether, when viewed objectively, the plaintiff
 32     “has plausibly alleged that a consumer receiving the communication


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  1     could reasonably interpret it as being sent ‘in connection with the
  2     collection of [a] debt,’ rather than inquiring into the sender’s
  3     subjective purpose.” Hart, 797 F.3d at 225 (alteration in original). In
  4     Hart, we determined that the letter in question was unambiguously
  5     sent in connection with the collection of a debt because: (1) the letter
  6     directed the recipient to mail payments to a specified address, (2) the
  7     letter referred to the FDCPA by name, (3) the letter informed the
  8     recipient that he had to dispute the debt’s validity within thirty days,
  9     and (4) most importantly, the letter “emphatically announce[d] itself
 10     as an attempt at debt collection: ‘THIS IS AN ATTEMPT TO
 11     COLLECT UPON A DEBT, AND ANY INFORMATION OBTAINED
 12     WILL BE USED FOR THAT PURPOSE.’” Id. at 226. We had “no
 13     difficulty in concluding” that the communication in question was an
 14     attempt to collect on a debt within the meaning of the FDCPA. Id.

 15            Here, too, the August Letter is unambiguous. The Payoff
 16     Statement provides addresses to which Carlin was instructed to mail
 17     or wire his payments, the cover letter mentions the FDCPA by name,
 18     and, most notably, the letter states: “ PLEASE BE ADVISED THAT
 19     DAVIDSON FINK LLP IS A LAW FIRM ACTING AS A DEBT
 20     COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT.
 21     ANY INFORMATION OBTAINED FROM YOU WILL BE USED
 22     FOR THAT PURPOSE.” App. at 54. These factors, dispositive in
 23     Hart, are similarly instructive here and demonstrate that Carlin has
 24     adequately pleaded that the August Letter was sent in connection
 25     with the collection of a debt.
 26             C.      Amount of the Debt

 27           The remaining inquiry is whether Davidson Fink adequately
 28     stated the amount of the debt in the August Letter, as required by
 29     § 1692g. We conclude that it did not.

 30           The Payoff Statement included a “Total Amount Due,” but
 31     that amount may have included unspecified “fees, costs, additional
 32     payments, and/or escrow disbursements” that were not yet due at

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     1   the time the statement was issued. The Payoff Statement indicated
     2   that any such fees would accrue by August 14, 2013 (the date on
     3   which the Payoff Statement became void), and that if payment of the
     4   “Total Amount Due” was made prior to August 14, Carlin would
     5   receive a refund in the amount of the unaccrued fees.
     6          When determining whether a debt collector has violated
     7   § 1692g’s notice requirements, we consider how the “least
     8   sophisticated consumer” would interpret the notice. See Russell v.
     9   Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996) (citing Clomon v. Jackson,
    10   988 F.2d 1314, 1318 (2d Cir. 1993)). We ask whether “the notice fails
    11   to convey the required information ‘clearly and effectively and
    12   thereby makes the least sophisticated consumer uncertain’ as to the
    13   meaning of the message.” DeSantis v. Computer Credit, Inc., 269 F.3d
    14   159, 161 (2d Cir. 2001) (quoting Savino v. Computer Credit, Inc., 164
    15   F.3d 81, 85 (2d Cir. 1998)). Thus, even if a debt collector accurately
    16   conveys the required information, a consumer may state a claim if
    17   she successfully alleges that the least sophisticated consumer would
    18   inaccurately interpret the message.

    19          It is unclear whether Davidson Fink’s notice accurately
    20   conveys the required information. The FDCPA defines “debt” as
    21   “any obligation or alleged obligation of a consumer to pay money
    22   arising out of a transaction . . . , whether or not such obligation has
    23   been reduced to judgment.” 15 U.S.C. § 1692a(5). The Seventh
    24   Circuit has expressed doubt that “debt” includes unaccrued court
    25   costs or attorney fees. See Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir.
    26   2003). But the Payoff Statement does not specify what the
    27   “estimated fees, costs, [and] additional payments” are, and thus we
    28   cannot say whether those amounts are properly part of the amount
    29   of the debt.2 If Davidson Fink improperly included fees and costs


2
  The only additional fee beyond principal and interest referenced in the underlying note is a 2% “Late
Charge for Overdue Payments.” [JA155] The Payoff Statement does not indicate whether the late charge
is part of the “fees, costs, [and] additional payments” included in the Total Amount Due.

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  1     that it was not entitled to under the note (absent a judgment), the
  2     Payoff Statement would plainly be insufficient under § 1692g.

  3            The least sophisticated consumer standard we use to interpret
  4     the legal effect of FDCPA notices supports this conclusion. Absent
  5     fuller disclosure, an unsophisticated consumer may not understand
  6     how these fees are calculated, whether they may be disputed, or
  7     what provision of the note gives rise to them. Because the statement
  8     gives no indication as to what the unaccrued fees are or how they
  9     are calculated, she cannot deduce that information from the
 10     statement.
 11           We do not hold that a debt collector may never satisfy its
 12     obligations under § 1692g by providing a payoff statement that
 13     provides an amount due, including expected fees and costs. But a
 14     statement is incomplete where, as here, it omits information
 15     allowing the least sophisticated consumer to determine the
 16     minimum amount she owes at the time of the notice, what she will
 17     need to pay to resolve the debt at any given moment in the future,
 18     and an explanation of any fees and interest that will cause the
 19     balance to increase.

 20           We are not ignorant of the safe-harbor statement we
 21     formulated in Avila v. Riexinger & Assocs., LLC, 817 F.3d 72 (2d Cir.
 22     2016). There, we held:

 23                     [A] debt collector will not be subject to
 24                     liability under Section 1692e for failing to
 25                     disclose that the consumer’s balance may
 26                     increase due to interest and fees if the
 27                     collection notice either accurately informs the
 28                     consumer that the amount of the debt stated
 29                     in the letter will increase over time, or clearly
 30                     states that the holder of the debt will accept
 31                     payment of the amount set forth in full


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     1                  satisfaction of the debt if payment is made by
     2                  a specified date.

     3   817 F.3d at 77. However, the Payoff Statement only expresses that
     4   the Total Amount Due may include estimated fees and costs. There is
     5   no clarity as to whether new fees and costs are accruing or as to the
     6   basis for those fees and costs.3
     7          Notices such as the Payoff Statement here may very well be
     8   commonplace in the debt collection industry. But the FDCPA does
     9   not insulate a debt collector from liability merely because others in
    10   the industry engage in the same practice. It is no great chore for
    11   Davidson Fink and other debt collectors to revise their standard
    12   payoff statements to clarify the actual amount due, the basis of the
    13   fees, or simply some information that would allow the least
    14   sophisticated consumer to deduce the amount she actually owes.

    15                                     CONCLUSION

    16          Because Carlin has adequately alleged that the August Letter
    17   is an initial communication sent by a debt collector in connection
    18   with the collection of a debt and that it does not clearly state the
    19   amount of the debt, we vacate the order and judgment of the district
    20   court and remand for proceedings consistent with this opinion.




3
 As we explained in Avila, though not required by the text of the statute, a notice would also satisfy §
1692g if it used language such as : “As of today, [date], you owe $___. This amount consists of a principal
of $___, accrued interest of $___, and fees of $___. This balance will continue to accrue interest after
[date] at a rate of $___per [date/week/month/year].” 817 F.3d at 77 n. 2 (citing Jones v. Midland Funding,
LLC., 755 F.Supp.2d 393, 397 n. 7).

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