On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-08-cv-02240) District Judge: Honorable Anne E. Thompson
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Argued September 14, 2010
Before: SLOVITER, BARRY, and SMITH
This appeal presents the question whether a communication from a debt collector to a consumer‟s attorney is actionable under the Federal Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692f(1).
Factual and Procedural History
In 1976, Dorothy Rhue Allen purchased her home with a 30-year mortgage. After Allen failed to make the last payment due, she was declared in default. On May 7, 2007, Fein, Such, Kahn & Shepard, PC ("FSKS"), a law firm, brought a mortgage foreclosure action against Allen on behalf of LaSalle Bank.*fn1
At the request of Allen‟s attorney, FSKS sent a letter to Allen‟s attorney on June 7, 2007 that set forth a payoff quote for the principal balance remaining on the loan and other charges due to the servicer of Allen‟s loan, Cenlar Federal Savings Bank ("Cenlar"), as well as charges for FSKS‟s attorney fees and costs. The same day, FSKS sent a second letter to Allen‟s attorney itemizing the attorney fees and costs referred to in its previous letter. Less than three weeks later, Allen filed a class action counterclaim and third party complaint in the foreclosure action, asserting that FSKS‟s response violated the FDCPA and state law. LaSalle and FSKS then released the mortgage and moved to dismiss the foreclosure action, after which the New Jersey Superior Court dismissed Allen‟s claims without prejudice.
Some time thereafter, Allen filed a class action against FSKS, LaSalle, and Cenlar in the United States District Court for the District of New Jersey. In the Complaint, Allen alleged that FSKS and LaSalle violated the FDCPA and state law, and that Cenlar also violated state law. For example, Allen alleged that FSKS demanded: $910 in attorney fees when court rule permits only $15.43, $335 for searches when court rule permits only $75, $160 for recording fees when the actual fee was only $60, and $475 for service of process when statute and court rule limit reimbursement to $175. Although she made other specific and general FDCPA allegations in her Complaint, Allen conceded at oral argument that her FDCPA claims were predicated only upon alleged violations of 15 U.S.C. § 1692f(1).
FSKS moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that Allen had failed to state a claim upon which relief could be granted. FSKS asserted that a communication from a debt collector to a consumer‟s attorney is not covered by the FDCPA.*fn2
The District Court noted that the courts of appeals are divided on this issue. The Fourth Circuit has held that a communication with a debtor‟s attorney is to be treated as an indirect communication with the debtor and therefore actionable. Sayyed v. Wolfpoff & Abramson, 485 F.3d 226, 232-33 (4th Cir. 2007). In contrast, the Second Circuit has stated in dicta and the Ninth Circuit has concluded that because an attorney will protect a consumer from a debt collector‟s behavior, statements made only to a consumer‟s attorney are not ...