Case: 14-13715 Date Filed: 06/30/2015 Page: 1 of 36 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-13715 ________________________ D.C. Docket No. 8:14-cv-00635-VMC-TBM NEDZAD MILJKOVIC, Plaintiff - Appellant, versus SHAFRITZ AND DINKIN, P.A., MITCHELL A. DINKIN. Defendants - Appellees. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (June 30, 2015) ∗ Before WILSON and ANDERSON, Circuit Judges, and VOORHEES, District Judge. ∗ Honorable Richard L. Voorhees, United States District Judge for the Western District of North Carolina, sitting by designation. Case: 14-13715 Date Filed: 06/30/2015 Page: 2 of 36 WILSON, Circuit Judge: Plaintiff-appellant Nedzad Miljkovic (Appellant) appeals from the district court’s dismissal with prejudice of his complaint against defendants-appellees Shafritz and Dinkin, P.A. and Mitchell A. Dinkin (collectively, Appellees), debt- collection attorneys for non-party Publix Employees Federal Credit Union (Publix), for failure to state a claim under the Fair Debt Collection Practices Act (FDCPA), see 15 U.S.C. §§ 1692–1692p. On appeal, we are tasked with determining the extent to which the conduct-regulating provisions of the FDCPA apply to actions taken by debt-collector attorneys in collecting on a debt. This matter has its roots in state court. After Appellant failed to repay an automobile loan, resulting in a final debt judgment in favor of Publix, Appellees sought and obtained a continuing writ of garnishment against Appellant’s wages to recover the unpaid balance. In response, Appellant filed a claim of exemption from the garnishment; Appellees, in turn, filed a sworn reply disputing Appellant’s right to an exemption. Shortly thereafter, but prior to a hearing on Appellant’s exemption claim, the writ was dissolved on Appellees’ motion. Appellant then commenced this action in federal court, alleging that Appellees’ sworn reply was an abusive, misleading, and unfair means of collecting on Appellant’s debt and, as such, violated multiple provisions of the FDCPA. See id. §§ 1692d–1692f. Appellees moved to dismiss for failure to state a claim, 2 Case: 14-13715 Date Filed: 06/30/2015 Page: 3 of 36 asserting the FDCPA was not intended to regulate representations made by debt- collecting attorneys in procedural court filings. Appellees further argued that, because the sworn reply was directed to the state court and to Appellant’s attorney, as opposed to Appellant, it was not an actionable communication under the FDCPA. The district court agreed and dismissed Appellant’s complaint on the grounds that the FDCPA did not apply to Appellees’ conduct before the state court and, even if it did, Appellant had failed to state a claim under the Act. This appeal followed, presenting us with an issue of first impression in the Eleventh Circuit: whether representations made by an attorney in court filings during the course of debt-collection litigation are actionable under the FDCPA. Contrary to the district court’s analysis, we find that the plain language of the FDCPA, other persuasive decisions interpreting that language, and the purpose underlying the Act mandate a finding that the FDCPA applies to attorneys, like Appellees, who regularly engage in debt collection activity, even when that activity includes litigation and even when the attorneys’ conduct is directed at someone other than the consumer.1 Absent a statutory exception, then, documents filed in court in the course of judicial proceedings to collect on a debt, like Appellees’ 1 The FDCPA defines a “consumer” as “any natural person obligated or allegedly obligated to pay any debt.” See 15 U.S.C. § 1692a(3). As such, courts often use “consumer” and “debtor” interchangeably. Except, however, in the context of 15 U.S.C. § 1692c, which provides a broader, section-specific definition of “consumer.” See id. § 1692c(d) (“For the purpose of this section, the term ‘consumer’ includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.”). Section 1692c is not at issue in this appeal. 3 Case: 14-13715 Date Filed: 06/30/2015 Page: 4 of 36 sworn reply, are subject to the FDCPA. However, because we agree with the district court’s finding that Appellant failed to state a claim under the FDCPA, we affirm the dismissal of his complaint. I. In December 2013, Appellees, on behalf of Publix, filed a motion in Florida state court seeking a continuing writ of garnishment against Appellant’s wages in order to collect on a previously-obtained final debt judgment. The writ was approved on or about January 2, 2014. After the writ was served on Appellant’s then-employer, twenty-five percent of Appellant’s wages were withheld according to the terms of the writ. Appellant filed a claim of exemption from garnishment, asserting that, because his wages were the primary source of income for his household, he qualified as a “head of family” under Florida law and his wages were thus exempt from garnishment.2 In a sworn affidavit, Appellant explained that his household included his wife and him; that his wife was disabled, unable to work, and received Social Security benefits; and that his wages, which typically did not exceed $750 2 See Fla. Stat. § 222.11(1)(c) (defining the “head of family” as “any natural person who is providing more than one-half of the support for a child or other dependent”). 4 Case: 14-13715 Date Filed: 06/30/2015 Page: 5 of 36 per week, provided more than one-half of his wife’s support.3 The affidavit did not state the amount of Appellant’s wife’s Social Security benefits. Appellees filed a sworn reply in opposition to Appellant’s claim of exemption, which stated, in pertinent part: 3. On behalf of [Publix], the undersigned disputes that [Appellant] is a head of household/family within the meaning of Florida Statutes. 4. The facts supporting [Appellant’s] Claim of Exemption are in dispute and, therefore, this garnishment action should be set for trial to determine these factual issues and [Publix’s] right to garnishment of the wages/salary at issue. Appellees then issued discovery to Appellant. In an initial, partial response to Appellees’ discovery requests, Appellant provided three months of bank statements to demonstrate his household’s income and monthly budget. The parties discussed possible dates for the impending evidentiary hearing on Appellant’s claim of exemption. In the course of such conversations, Appellees offered to settle Appellant’s debt for less than the amount due and owing in lieu of moving forward with the hearing, but Appellant refused. An evidentiary hearing was scheduled for March 31, 2014. Appellees reiterated their settlement offer to no avail, and discovery continued. 3 See id. § 222.11(2)(a) (exempting from garnishment “[a]ll of the disposable earnings of a head of family whose disposable earnings are less than or equal to $750 a week”); see also id. § 77.041. 5 Case: 14-13715 Date Filed: 06/30/2015 Page: 6 of 36 Appellant noticed the deposition of Appellee Mitchell A. Dinkin for March 10, 2014, for the stated purpose of questioning Mr. Dinkin regarding the factual basis for the sworn reply, which Mr. Dinkin had signed on behalf of Appellees. Appellant also returned his outstanding discovery responses to Appellees. Soon after receiving all of Appellant’s discovery responses and accompanying documents, Appellees filed a motion to dissolve the writ of garnishment, and the writ was dissolved by court order on March 6, 2014. Appellant then initiated the instant action against Appellees for violations of the FDCPA. The complaint alleged that, in filing the sworn reply, Appellees employed conduct the natural consequence of which was to harass, oppress, and abuse Appellant; used false, misleading, and deceptive means in connection with the collection of Appellant’s debt; and engaged in unfair and unconscionable means to collect Appellant’s debt. See 15 U.S.C. §§ 1692d–1692f. Appellant claimed that his sworn affidavit provided Appellees with “actual knowledge” of the fact that his wages were exempt from garnishment, and thus, Appellees had “no factual basis” for opposing Appellant’s claim of exemption. The sworn reply, Appellant alleged, was a calculated effort to force a settlement of his debt. Appellees moved to dismiss Appellant’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellees argued that Florida’s garnishment statute requires debt-collecting plaintiffs to file a sworn written statement in opposition to 6 Case: 14-13715 Date Filed: 06/30/2015 Page: 7 of 36 an individual’s claim of exemption before an evidentiary hearing will be set. See Fla. Stat. § 77.041(3). The sworn reply, Appellees averred, was a mere procedural filing directed first to the state court and then to Appellant’s counsel. Appellees asserted that the sworn reply was not the type of conduct from which Congress sought to protect consumers in enacting the FDCPA. The district court agreed with Appellees. Skeptical of the idea that Congress intended to create FDCPA liability for “formulaic procedural filings,” the district court concluded that, to the extent the sworn reply was a procedural filing rather than “a formal pleading making factual allegations,” the FDCPA was inapplicable. The district court further determined that communications directed to someone other than the consumer are not actionable under the FDCPA. Thus, because the sworn reply was filed with and directed to the state court rather than to Appellant himself, the FDCPA did not apply to Appellees’ conduct. Finally, the district court found that, even if the FDCPA applied, Appellant nonetheless failed to state a claim under the Act. Appellant’s complaint was dismissed with prejudice, and this appeal followed. II. We review de novo a district court’s interpretation of a statute. See Bankston v. Then, 615 F.3d 1364, 1367 (11th Cir. 2010) (per curiam). We also review de novo the grant of a motion to dismiss under Rule 12(b)(6), “accepting 7 Case: 14-13715 Date Filed: 06/30/2015 Page: 8 of 36 the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam). However, “conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face,” meaning it must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”4 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). III. Our review is in two parts. We must first determine whether the FDCPA applies where, as here, the representations alleged to have violated the Act were made in court filings in the course of debt-collection proceedings. If the FDCPA does not apply to such representations, then the district court’s dismissal could be affirmed without further discussion. However, because we find that a debt- collector attorney’s representations in court filings and his conduct toward a consumer’s attorney are all covered by the FDCPA in the absence of any express exemption therefor, we must also decide whether the district court erred in 4 Appellant attached multiple exhibits to his complaint, including a copy of his affidavit and of the sworn reply, and we treat those documents as part of the complaint for Rule 12(b)(6) purposes. See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam); see also Fed. R. Civ. P. 10(c). 8 Case: 14-13715 Date Filed: 06/30/2015 Page: 9 of 36 dismissing Appellant’s complaint under Rule 12(b)(6). Finding that Appellant has failed to state a claim under the FDCPA, we affirm on those grounds. A. The threshold issue is the extent to which the FDCPA applies to the activities of debt-collector attorneys. The district court concluded and Appellees argue on appeal that the FDCPA does not apply to representations made in “formulaic procedural filings” or to communications directed only to the consumer’s attorney, rather than to the consumer himself. We disagree. The statutory text is entirely clear: the FDCPA applies to lawyers and law firms who regularly engage in debt-collection activity, even when that activity involves litigation, and categorically prohibits abusive conduct in the name of debt collection, even when the audience for such conduct is someone other than the consumer. The plain language of the FDCPA is conclusive here, and so we must do no more than enforce the Act according to its terms. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 1030 (1989). We therefore decline to read into the Act those exceptions urged by Appellees and find that Appellees’ conduct before the state court is actionable under the FDCPA. 1. The FDCPA regulates what debt collectors can do in collecting debts. See 15 U.S.C. §§ 1692–1692p. A “debt collector” includes “any person who . . . 9 Case: 14-13715 Date Filed: 06/30/2015 Page: 10 of 36 regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Id. § 1692a(6). As a lawyer and a law firm who regularly practice in the field of consumer debt collection, Appellees do not dispute that they qualify as “debt collectors” within the meaning of the Act. However, they do challenge the extent to which the FDCPA applies to the conduct of debt collectors engaged in litigation; specifically, Appellees aver that court filings that are “purely procedural” do not fall within the ambit of the Act. Appellees’ argument is foreclosed by both Supreme Court precedent and the plain text of the FDCPA. In Heintz v. Jenkins, the Supreme Court expressly held that the FDCPA “applies to the litigating activities of [debt-collector] lawyers.” 514 U.S. 291, 294, 115 S. Ct. 1489, 1490 (1995). In Heintz, a bank’s law firm brought a collections action against a consumer, Darlene Jenkins, to recover on an automobile loan. Id. at 293, 115 S. Ct. at 1490. A lawyer for the bank, George Heintz, sent Jenkins’s lawyer a letter in an attempt to settle the suit. Id. Jenkins claimed the letter included a false statement of the amount she owed to the bank. Id. She sued Heintz and his law firm under the FDCPA. Id. The district court dismissed Jenkins’s action for failure to state a claim on the grounds that the FDCPA did not apply to “lawyers engaging in litigation.” Id. at 294, 115 S. Ct. at 1490. The 10