Fair Debt Collection Practice Act

FAIR DEBT COLLECTION PRACTICES ACT
VOLUME 1
C ONTEMPORARY D ECISIONS
***
A LandMark Publication
Litigator Series
Fair Debt Collection Practices Act
Volume 1
Contemporary Decisions
Copyright © 2019
by LandMark Publications. All rights reserved.
Published in the United States of America

by LandMark Publications.
www.landmark-publications.com
Publication Date: September 2019;

Subject Heading: Consumer Protection Law;
Audience: Law Professionals.
Character Set: ISO 8859-1 (Latin-1);

Language Code: EN;
Interior Type: Text; Monochrome.
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ISBN: 978-1089938965
SUMMARY OF CONTENTS
FOREWORD ...................................................................................................................... 1
TABLE OF CASES
DC CIRCUIT DECISIONS ..................................................................................................5

Baylor v. Mitchell Rubenstein & Associates, PC, 857 F. 3d 939 (DC Cir. 2017) ...7
Bank of NY Mellon Trust Co. NA v. Henderson, 862 F. 3d 29 (DC Cir. 2017) 29
Chiang v. Verizon New England Inc., 595 F. 3d 26 (1st Cir. 2010)...................... 35
FIRST CIRCUIT DECISIONS ........................................................................................... 51

Pollard v. Law Office of Mandy L. Spaulding, 766 F. 3d 98 (1st Cir. 2014) ........ 53
McDermott v. Marcus, Errico, Emmer & Brooks, PC, 775 F. 3d 109 (1st Cir. 2014)
............................................................................................................................................ 65
LeBlanc v. Unifund CCR Partners, 601 F. 3d 1185 (11th Cir. 2010) .................... 83
Ruth v. Unifund CCR Partners, 604 F. 3d 908 (6th Cir. 2010)............................ 101
SECOND CIRCUIT DECISIONS .................................................................................... 109

Benzemann v. Houslanger & Associates, PLLC, 924 F. 3d 73 (2nd Cir. 2019) 111
FTC v. Moses, 913 F. 3d 297 (2nd Cir. 2019) ........................................................ 121
Kolbasyuk v. Capital Management Services, LP, 918 F. 3d 236 (2nd Cir. 2019)
.......................................................................................................................................... 133
Huebner v. Midland Credit Management, Inc., 897 F. 3d 42 (2nd Cir. 2018) ... 141
Cohen v. Rosicki, Rosicki & Associates, PC, 897 F. 3d 75 (2nd Cir. 2018) ....... 155
Vangorden v. Second Round, Ltd. Partnership, 897 F. 3d 433 (2nd Cir. 2018) 167
Taylor v. Financial Recovery Services, Inc., 886 F. 3d 212 (2nd Cir. 2018) ....... 177
Carlin v. Davidson Fink LLP, 852 F. 3d 207 (2nd Cir. 2017) .............................. 181
Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP, 875 F. 3d 128 (2nd Cir. 2017)
.......................................................................................................................................... 191
Gallego v. Northland Group Inc., 814 F. 3d 123 (2nd Cir. 2016) ....................... 203
Garfield v. Ocwen Loan Servicing, LLC, 811 F. 3d 86 (2nd Cir. 2016) ............. 211
Madden v. Midland Funding, LLC, 786 F. 3d 246 (2nd Cir. 2015) ..................... 219
Altman v. JC Christensen & Associates, Inc., 786 F. 3d 191 (2nd Cir. 2015).... 229
THIRD CIRCUIT DECISIONS........................................................................................ 233

Barbato v. Greystone Alliance, LLC, 916 F. 3d 260 (3rd Cir. 2019) ................... 235
Panico v. Portfolio Recovery Associates, LLC, 879 F. 3d 56 (3rd Cir. 2018) .... 245
Rotkiske v. Klemm, 890 F. 3d 422 (3rd Cir. 2018) ................................................ 251
iv Fair Debt Collection Practices Act
Tatis v. Allied Interstate, LLC, 882 F. 3d 422 (3rd Cir. 2018).............................. 259
Tepper v. Amos Financial, LLC, 898 F. 3d 364 (3rd Cir. 2018) .......................... 267
Levins v. Healthcare Revenue Recovery Group LLC, 902 F. 3d 274 (3rd Cir. 2018)
.......................................................................................................................................... 275
Schultz v. Midland Credit Management, Inc., 905 F. 3d 159 (3rd Cir. 2018)..... 285
St. Pierre v. Retrieval-Masters Creditors Bureau, 898 F. 3d 351 (3rd Cir. 2018) 293
Daubert v. NRA Group, LLC, 861 F. 3d 382 (3rd Cir. 2017) ............................. 305
Evankavitch v. Green Tree Servicing, LLC, 793 F. 3d 355 (3rd Cir. 2015) ....... 315
Jensen v. Pressler & Pressler, 791 F. 3d 413 (3rd Cir. 2015) ................................ 327
Kaymark v. Bank of America, NA, 783 F. 3d 168 (3rd Cir. 2015) ...................... 337
Glover v. FDIC, 698 F. 3d 139 (3rd Cir. 2012)...................................................... 351
Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F. 3d 993 (3rd Cir. 2011) .. 365
Allen v. LaSalle Bank, NA, 629 F. 3d 364 (3rd Cir. 2011) .................................... 379
Huertas v. Galaxy Asset Management, 641 F. 3d 28 (3rd Cir. 2011) .................. 385
FOURTH CIRCUIT DECISIONS .................................................................................... 393

In re Dubois, 834 F. 3d 522 (4th Cir. 2016) ........................................................... 395
McCray v. Federal Home Loan Mortg. Corp., 839 F. 3d 354 (4th Cir. 2016) ... 409
Henson v. Santander Consumer USA, Inc., 817 F. 3d 131 (4th Cir. 2016)........ 419
Askew v. HRFC, LLC, 810 F. 3d 263 (4th Cir. 2016) ........................................... 429
Covert v. LVNV Funding, LLC, 779 F. 3d 242 (4th Cir. 2015) .......................... 439
Elyazidi v. SunTrust Bank, 780 F. 3d 227 (4th Cir. 2015) .................................... 447
Powell v. Palisades Acquisition XVI, LLC, 782 F. 3d 119 (4th Cir. 2014) ......... 457
Russell v. Absolute Collection Services, Inc., 763 F. 3d 385 (4th Cir. 2014) ..... 467
Clark v. Absolute Collection Service, Inc., 741 F. 3d 487 (4th Cir. 2014) .......... 479
FIFTH CIRCUIT DECISIONS ......................................................................................... 485

Davis v. Credit Bureau of the South, 908 F. 3d 972 (5th Cir. 2018) ................... 487
Mahmoud v. De Moss Owners Association, Inc., 865 F. 3d 322 (5th Cir. 2017)
.......................................................................................................................................... 497
Sayles v. Advanced Recovery Systems, Inc., 865 F. 3d 246 (5th Cir. 2017) ....... 513
Daugherty v. Convergent Outsourcing, Inc., 836 F. 3d 507 (5th Cir. 2016) ...... 517
LSR Consulting, LLC v. Wells Fargo Bank, NA, 835 F. 3d 530 (5th Cir. 2016)523
Payne v. Progressive Financial Services, Inc., 748 F. 3d 605 (5th Cir. 2014) ..... 529
SUMMARY OF CONTENTS
FOREWORD ...................................................................................................................... 1
TABLE OF CASES
DC CIRCUIT DECISIONS ..................................................................................................5

Baylor v. Mitchell Rubenstein & Associates, PC, 857 F. 3d 939 (DC Cir. 2017) ...7
Chiang v. Verizon New England Inc., 595 F. 3d 26 (1st Cir. 2010)...................... 35
FIRST CIRCUIT DECISIONS ........................................................................................... 51

Pollard v. Law Office of Mandy L. Spaulding, 766 F. 3d 98 (1st Cir. 2014) ........ 53
McDermott v. Marcus, Errico, Emmer & Brooks, PC, 775 F. 3d 109 (1st Cir. 2014)
............................................................................................................................................ 65
LeBlanc v. Unifund CCR Partners, 601 F. 3d 1185 (11th Cir. 2010) .................... 83
Ruth v. Unifund CCR Partners, 604 F. 3d 908 (6th Cir. 2010)............................ 101
SECOND CIRCUIT DECISIONS .................................................................................... 109

Benzemann v. Houslanger & Associates, PLLC, 924 F. 3d 73 (2nd Cir. 2019) 111
FTC v. Moses, 913 F. 3d 297 (2nd Cir. 2019) ........................................................ 121
Kolbasyuk v. Capital Management Services, LP, 918 F. 3d 236 (2nd Cir. 2019)
.......................................................................................................................................... 133
Huebner v. Midland Credit Management, Inc., 897 F. 3d 42 (2nd Cir. 2018) ... 141
Cohen v. Rosicki, Rosicki & Associates, PC, 897 F. 3d 75 (2nd Cir. 2018) ....... 155
Vangorden v. Second Round, Ltd. Partnership, 897 F. 3d 433 (2nd Cir. 2018) 167
Taylor v. Financial Recovery Services, Inc., 886 F. 3d 212 (2nd Cir. 2018) ....... 177
Carlin v. Davidson Fink LLP, 852 F. 3d 207 (2nd Cir. 2017) .............................. 181
Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP, 875 F. 3d 128 (2nd Cir. 2017)
.......................................................................................................................................... 191
Gallego v. Northland Group Inc., 814 F. 3d 123 (2nd Cir. 2016) ....................... 203
Garfield v. Ocwen Loan Servicing, LLC, 811 F. 3d 86 (2nd Cir. 2016) ............. 211
Madden v. Midland Funding, LLC, 786 F. 3d 246 (2nd Cir. 2015) ..................... 219
Altman v. JC Christensen & Associates, Inc., 786 F. 3d 191 (2nd Cir. 2015).... 229
THIRD CIRCUIT DECISIONS........................................................................................ 233

Barbato v. Greystone Alliance, LLC, 916 F. 3d 260 (3rd Cir. 2019) ................... 235
Panico v. Portfolio Recovery Associates, LLC, 879 F. 3d 56 (3rd Cir. 2018) .... 245
Rotkiske v. Klemm, 890 F. 3d 422 (3rd Cir. 2018) ................................................ 251
iv Fair Debt Collection Practices Act
Tatis v. Allied Interstate, LLC, 882 F. 3d 422 (3rd Cir. 2018).............................. 259
Tepper v. Amos Financial, LLC, 898 F. 3d 364 (3rd Cir. 2018) .......................... 267
Levins v. Healthcare Revenue Recovery Group LLC, 902 F. 3d 274 (3rd Cir. 2018)
.......................................................................................................................................... 275
Schultz v. Midland Credit Management, Inc., 905 F. 3d 159 (3rd Cir. 2018)..... 285
St. Pierre v. Retrieval-Masters Creditors Bureau, 898 F. 3d 351 (3rd Cir. 2018) 293
Daubert v. NRA Group, LLC, 861 F. 3d 382 (3rd Cir. 2017) ............................. 305
Evankavitch v. Green Tree Servicing, LLC, 793 F. 3d 355 (3rd Cir. 2015) ....... 315
Jensen v. Pressler & Pressler, 791 F. 3d 413 (3rd Cir. 2015) ................................ 327
Kaymark v. Bank of America, NA, 783 F. 3d 168 (3rd Cir. 2015) ...................... 337
Glover v. FDIC, 698 F. 3d 139 (3rd Cir. 2012)...................................................... 351
Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F. 3d 993 (3rd Cir. 2011) .. 365
Allen v. LaSalle Bank, NA, 629 F. 3d 364 (3rd Cir. 2011) .................................... 379
Huertas v. Galaxy Asset Management, 641 F. 3d 28 (3rd Cir. 2011) .................. 385
FOURTH CIRCUIT DECISIONS .................................................................................... 393

In re Dubois, 834 F. 3d 522 (4th Cir. 2016) ........................................................... 395
McCray v. Federal Home Loan Mortg. Corp., 839 F. 3d 354 (4th Cir. 2016) ... 409
Henson v. Santander Consumer USA, Inc., 817 F. 3d 131 (4th Cir. 2016)........ 419
Askew v. HRFC, LLC, 810 F. 3d 263 (4th Cir. 2016) ........................................... 429
Covert v. LVNV Funding, LLC, 779 F. 3d 242 (4th Cir. 2015) .......................... 439
Elyazidi v. SunTrust Bank, 780 F. 3d 227 (4th Cir. 2015) .................................... 447
Powell v. Palisades Acquisition XVI, LLC, 782 F. 3d 119 (4th Cir. 2014) ......... 457
Russell v. Absolute Collection Services, Inc., 763 F. 3d 385 (4th Cir. 2014) ..... 467
Clark v. Absolute Collection Service, Inc., 741 F. 3d 487 (4th Cir. 2014) .......... 479
FIFTH CIRCUIT DECISIONS ......................................................................................... 485

Davis v. Credit Bureau of the South, 908 F. 3d 972 (5th Cir. 2018) ................... 487
Mahmoud v. De Moss Owners Association, Inc., 865 F. 3d 322 (5th Cir. 2017)
.......................................................................................................................................... 497
Sayles v. Advanced Recovery Systems, Inc., 865 F. 3d 246 (5th Cir. 2017) ....... 513
Daugherty v. Convergent Outsourcing, Inc., 836 F. 3d 507 (5th Cir. 2016) ...... 517
LSR Consulting, LLC v. Wells Fargo Bank, NA, 835 F. 3d 530 (5th Cir. 2016)523
Payne v. Progressive Financial Services, Inc., 748 F. 3d 605 (5th Cir. 2014) ..... 529
PROLOGUE
Congress enacted the FDCPA in 1977 "to eliminate abusive debt collection
practices by debt collectors" and "to insure that those debt collectors who refrain
from using abusive debt collection practices are not competitively disadvantaged."
15 U.S.C. § 1692(e). It provides a private right of action against debt collectors who
violate its provisions. 15 U.S.C. § 1692k; see also Brown v. Card Serv. Ctr., 464 F.3d 450,
453 (3d Cir. 2006). "As remedial legislation, the FDCPA must be broadly construed
in order to give full effect to these purposes." Caprio v. Healthcare Revenue Recovery Grp.,
LLC, 709 F.3d 142, 148 (3d Cir. 2013).
"To prevail on an FDCPA claim, a plaintiff must prove that (1) she is a consumer,
(2) the defendant is a debt collector, (3) the defendant's challenged practice involves
an attempt to collect a 'debt' as the [FDCPA] defines it, and (4) the defendant has
violated a provision of the FDCPA in attempting to collect the debt." St. Pierre v.
Retrieval-Masters Creditors Bureau, Inc., 898 F.3d 351, 358 (3d Cir. 2018) (quoting
Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)). [. . .]
[T]he statute defines "debt collector" as any person (1) "who uses any
instrumentality of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts" (the "principal purpose" definition),
or (2) "who regularly collects or attempts to collect, directly or indirectly, debts owed
or due or asserted to be owed or due another" (the "regularly collects" definition).
15 U.S.C. § 1692a(6). The statute thus provides two separate paths to establishing an
entity's status as a "debt collector." See Henson, 137 S.Ct. at 1721.
Barbato v. Greystone Alliance, LLC, 916 F. 3d 260 (3rd Cir. 2019)

2 Fair Debt Collection Practices Act
15 U.S.C. § 1692g(a). CMS's letter stated: "As of the date of this letter, you owe
$5918.69." Joint App'x 22. Nevertheless, Kolbasyuk argues that CMS's letter did not
include the required "amount of the debt" because it failed to inform him, inter alia,
"what portion of the amount listed is principal," "what 'other charges' might apply,"
"if there is 'interest,'" "when such interest will be applied," and "what the interest rate
is." Joint App'x 17. Absent these detailed disclosures, Kolbasyuk contends, an
"otherwise accurate statement" of his debt violates Section 1692g. Id. at 16.
The text of Section 1692g clearly forecloses Kolbasyuk's argument. That provision
required CMS to inform Kolbasyuk of the "amount of the debt" in question. 15
U.S.C. § 1692g(a). The word "amount" signifies a total, present quantity. See Amount,
OXFORD ENGLISH DICTIONARY (2d ed. 1989) (defining "amount" as "the
sum total to which anything mounts up or reaches . . . in quantity"). The word "debt,"
as defined in the FDCPA, signifies an obligation to pay money. See 15 U.S.C. §
1692a(5) (defining "debt" as "any obligation or alleged obligation of a consumer to
pay money arising out of a transaction"). The "amount of the debt," then, signifies
the total, present quantity of money that the consumer is obligated to pay. And that
is exactly the figure that CMS provided: the total, present quantity of money that
Kolbasyuk was obligated to pay Barclays as of the date of CMS's letter. Nothing in
Section 1692g required CMS to inform Kolbasyuk of the constituent components of
that debt or the precise rates by which it might later increase.
Rather than relying on the text of Section 1692g, Kolbasyuk places great weight
on our recent opinion in Carlin v. Davidson Fink LLP, 852 F.3d 207 (2d Cir. 2017).
But Carlin does not control this case. The debt collection letter at issue in Carlin
included a "Payoff Statement" that allowed Carlin to retire his debt by paying the
"Total Amount Due" stated in the letter through some future date. Id. at 211. That
"Total Amount Due," however, was merely an estimate. Davidson Fink's letter noted
that "the Total Amount Due may include estimated fees, costs, additional payments,
and/or escrow disbursements that will become due prior to the 'Statement Void
After' date, but which are not yet due as of the date this Payoff Statement is issued,"
and that Carlin would receive a refund in the amount of any overpayment. Id. The
letter violated Section 1692g because Davidson Fink had only provided Carlin with
an estimated, future amount that Carlin might owe, rather than the total, present
amount that Carlin did owe. Carlin thus presented an altogether different question
than CMS's letter to Kolbasyuk, which clearly states the total, present quantity of
Kolbasyuk's debt as of the letter's date.
Kolbasyuk repeatedly quotes our statement in Carlin that a debt collection letter
"is incomplete where, as here, it omits information allowing the least sophisticated
consumer to determine the minimum amount she owes at the time of the notice,
what she will need to pay to resolve the debt at any given moment in the future, and
an explanation of any fees and interest that will cause the balance to increase." Id. at
216. For the reasons stated above, however, Kolbasyuk has taken that language out
of context. Carlin establishes that an estimated, forward-looking "Payoff Statement"
may need to inform the consumer of "what she will need to pay to resolve the debt
at any given moment in the future" or provide "an explanation of any fees and
interest that will cause the balance to increase." Id. But where, as here, the debt
collector has already informed the consumer of the "minimum amount she owes at
the time of the notice," id., Carlin simply lacks relevance. We therefore create no
Foreword 3
inconsistency with our precedent in holding that a debt collection letter that informs
the consumer of the total, present quantity of his or her debt satisfies Section 1692g,
notwithstanding its failure to inform the consumer of the debt's constituent
components or the precise rates by which it might later increase.
II. Section 1692e
Kolbasyuk also claims that CMS's letter violated Section 1692e. That section
provides that "[a] debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt." Id. Section
1692e provides a non-exhaustive list of sixteen potential violations of its terms, but
Kolbasyuk invokes none of them here. Instead, he contends that CMS violated
Section 1692e because "[t]he least sophisticated consumer could reasonably believe
that the debt could be satisfied by remitting the listed amount as of the date of the
letter, at any time after receipt of the letter." Joint App'x 18. With that argument,
Kolbasyuk apparently seeks to capitalize on Avila v. Riexinger & Associates, LLC, 817
F.3d 72 (2d Cir. 2016), in which we held that a debt collector's failure to disclose that
a consumer's balance might increase due to interest and fees violated Section 1692e,
id. at 76. We stated in Avila that "[a] reasonable consumer could read the notice and
be misled into believing that she could pay her debt in full by paying the amount
listed on the notice." Id.
But Kolbasyuk overlooks a major difference between his case and Avila's. Here,
CMS did disclose—quite explicitly—that Kolbasyuk's balance might increase.
Specifically, CMS's letter stated the following:
As of the date of this letter, you owe $ 5918.69. Because of interest, late charges,
and other charges that may vary from day to day, the amount due on the day you pay
may be greater. Hence, if you pay the amount shown above, an adjustment may
be necessary after we receive your check, in which event we will inform you
before depositing the check for collection. For more information, write the
undersigned or call 1-877-335-6949.
Joint App'x 22 (emphasis added). CMS's unambiguous disclosure of the potential
that Kolbasyuk's debt might increase vitiates Kolbasyuk's attempted analogy to Avila.
Not even the least sophisticated consumer could conclude that his debt "could be
satisfied by remitting the listed amount. . . at any time after receipt of the letter," Joint
App'x 18, in the face of an explicit warning to the contrary.
Moreover, the above-quoted language from CMS's letter (excepting the numerical
substitutions) identically tracks the "safe harbor" language adopted by the Seventh
Circuit in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d
872 (7th Cir. 2000). In Avila, we imported the Miller "safe harbor" language into
Second Circuit law, holding that a debt collector who uses it "will not be subject to
liability under Section 1692e for failing to disclose that the consumer's balance may
increase due to interest and fees." Avila, 817 F.3d at 77; see also id. ("Using the
language set forth in Miller will qualify for safe-harbor treatment. . . ."). To be sure,
this "safe harbor" language might not immunize debt collectors from all liability for
"false, deceptive, or misleading representation[s] or means in connection with the
collection of any debt," 15 U.S.C. § 1692e. But we nonetheless reaffirm today what
we said previously in Avila: use of the Miller "safe harbor" language immunizes a debt
collector from a Section 1692e claim predicated upon an alleged "fail[ure] to disclose
that the consumer's balance may increase due to interest and fees." Avila, 817 F.3d
at 77.
Finally, to the extent that Kolbasyuk attempts to state a claim under Section 1692e
based on CMS's failure to provide him with a precise breakdown of his debt or to
inform him of the precise interest he might incur going forward, we reject that claim
too. CMS has provided Kolbasyuk with the total, present quantity of his debt and
informed him that this amount might increase due to additional fees and interest. A
failure to provide the additional detailed disclosures that Kolbasyuk seeks does not
transform CMS's otherwise-straightforward letter into a "false, deceptive, or
misleading" one.
***
Foreword 3
inconsistency with our precedent in holding that a debt collection letter that informs
the consumer of the total, present quantity of his or her debt satisfies Section 1692g,
notwithstanding its failure to inform the consumer of the debt's constituent
components or the precise rates by which it might later increase.
II. Section 1692e
Kolbasyuk also claims that CMS's letter violated Section 1692e. That section
provides that "[a] debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt." Id. Section
1692e provides a non-exhaustive list of sixteen potential violations of its terms, but
Kolbasyuk invokes none of them here. Instead, he contends that CMS violated
Section 1692e because "[t]he least sophisticated consumer could reasonably believe
that the debt could be satisfied by remitting the listed amount as of the date of the
letter, at any time after receipt of the letter." Joint App'x 18. With that argument,
Kolbasyuk apparently seeks to capitalize on Avila v. Riexinger & Associates, LLC, 817
F.3d 72 (2d Cir. 2016), in which we held that a debt collector's failure to disclose that
a consumer's balance might increase due to interest and fees violated Section 1692e,
id. at 76. We stated in Avila that "[a] reasonable consumer could read the notice and
be misled into believing that she could pay her debt in full by paying the amount
listed on the notice." Id.
But Kolbasyuk overlooks a major difference between his case and Avila's. Here,
CMS did disclose—quite explicitly—that Kolbasyuk's balance might increase.
Specifically, CMS's letter stated the following:
As of the date of this letter, you owe $ 5918.69. Because of interest, late charges,
and other charges that may vary from day to day, the amount due on the day you pay
may be greater. Hence, if you pay the amount shown above, an adjustment may
be necessary after we receive your check, in which event we will inform you
before depositing the check for collection. For more information, write the
undersigned or call 1-877-335-6949.
Joint App'x 22 (emphasis added). CMS's unambiguous disclosure of the potential
that Kolbasyuk's debt might increase vitiates Kolbasyuk's attempted analogy to Avila.
Not even the least sophisticated consumer could conclude that his debt "could be
satisfied by remitting the listed amount. . . at any time after receipt of the letter," Joint
App'x 18, in the face of an explicit warning to the contrary.
Moreover, the above-quoted language from CMS's letter (excepting the numerical
substitutions) identically tracks the "safe harbor" language adopted by the Seventh
Circuit in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d
872 (7th Cir. 2000). In Avila, we imported the Miller "safe harbor" language into
Second Circuit law, holding that a debt collector who uses it "will not be subject to
liability under Section 1692e for failing to disclose that the consumer's balance may
increase due to interest and fees." Avila, 817 F.3d at 77; see also id. ("Using the
language set forth in Miller will qualify for safe-harbor treatment. . . ."). To be sure,
this "safe harbor" language might not immunize debt collectors from all liability for
"false, deceptive, or misleading representation[s] or means in connection with the
collection of any debt," 15 U.S.C. § 1692e. But we nonetheless reaffirm today what
we said previously in Avila: use of the Miller "safe harbor" language immunizes a debt
Baylor v. Mitchell Rubenstein & Associates, PC, 857 F. 3d 939 (DC Cir. 2017) 7
857 F.3d 939 (2017)

Demetra BAYLOR, Appellant
v.
MITCHELL RUBENSTEIN & ASSOCIATES, P.C., Appellee.
No. 16-7070 Consolidated with 16-7071.
United States Court of Appeals, District of Columbia Circuit.
Argued February 7, 2017.
Decided May 30, 2017.
Baylor v. Mitchell Rubenstein & Associates, PC, 857 F. 3d 939 (DC Cir. 2017)
Appeal from the United States District Court for the District of Columbia, (No.
1:14-cv-02220)
Radi Dennis argued the cause and filed the briefs for appellant/cross-appellee.
Ronald S. Canter, Rockville, MD, argued the cause and filed the briefs for
appellee/cross-appellant.
Before: HENDERSON, Circuit Judge, and EDWARDS and SENTELLE, Senior
Circuit Judges.
Concurring opinion filed by Circuit Judge HENDERSON.
p.942 EDWARDS, Senior Circuit Judge:
In order to pursue a Master's degree in Computer Graphics, Demetra Baylor
("Appellant") took out six student loans. Several years after her graduation, Mitchell
Rubenstein & Associates, P.C. ("Appellee") came calling to collect. At the heart of
this case are a number of inconsistencies in letters that Appellee sent Appellant over
the course of several months regarding her loans and the amounts that she owed on
them, as well as Appellee's failure to direct all of its communications to Appellant's
attorney after she retained counsel. In response, Appellant filed suit on December
17, 2013, alleging that Appellee had violated the Fair Debt Collection Practices Act
("FDCPA"), the District of Columbia Consumer Protections Procedures Act
("CPPA"), and the District of Columbia Debt Collection Law ("DCDCL"), statutes
which target abusive debt collection and improper trade practices. See 15 U.S.C. §
1692(e); D.C. CODE §§ 28-3904, -3814.
Over the course of the next few years, the parties engaged in what the District
Court termed a "particularly striking expenditure of effort and resources," generating
"excessive, repetitive, and unnecessarily sharp pleadings." Order, Dkt. No. 41, at 2.
Nonetheless, all of Appellant's statutory claims were eventually resolved. Appellant
accepted Appellee's offer of judgment regarding her FDCPA claim and the District
Court, with the aid of a Magistrate Judge, determined the attorney's fees to which
she was entitled for this success. Appellee, meanwhile, prevailed in its Motion to
Dismiss all of Appellant's CPPA claims and some of her DCDCL claims, the
remainder of which were rejected when the District Court subsequently granted
Appellee's Motion for Summary Judgment.
A number of orders from this "clutter[ed]... docket" are challenged on appeal. Id.
First, the parties dispute the District Court's decision to adopt a Magistrate Judge's
recommendation that Appellant receive approximately twenty percent of the

attorney's fees that she requested. Second, Appellant asserts that the District Court
erred in finding that Appellee's conduct does not fall within the aegis of the CPPA.
Third, Appellant also contends that the District Court abused its discretion in failing
to credit her objections to a different Magistrate Judge's denial of her Motion to
Compel the disclosure of communications between Appellee and an agent of
Appellant's creditor on the grounds that these documents were protected by
attorney-client privilege. Appellant additionally disputes the District Court's refusal
to award her attorney's fees for her efforts in litigating this issue. Finally, Appellant
argues that the District Court improperly granted Appellee's Motion for Summary
Judgment on her DCDCL claims. On this last point, Appellant contends that the
District Court failed to appropriately account for evidence demonstrating that
Appellee had "willfully violated" the DCDCL and was therefore subject to liability
under the statute.
We do not reach the question of whether the District Court abused its discretion
in awarding Appellant only a percentage of p.943 the attorney's fees she sought in
connection with her FDCPA claim. In addressing this issue, the District Court relied
on the standard set forth in Local Civil Rule 72.2 in finding that the Magistrate
Judge's proposed disposition was not "clearly erroneous or contrary to law." This
was error. Federal Rules of Civil Procedure 54(d)(2)(D) and 72(b)(3) foreclose the
District Court from using a "clearly erroneous or contrary to law" standard when
evaluating a Magistrate Judge's proposed disposition of a fee request. The correct
standard of review is de novo. We therefore reverse and remand to allow the trial judge
to reconsider this matter in the first instance applying de novo review to assess the
Magistrate Judge's recommendation. We affirm all of the remaining Orders
challenged on appeal.
I. BACKGROUND
On February 21, 2013, Appellee, a law firm whose primary focus is the recovery
of consumer debts, sent the first of several letters to Appellant notifying her that her
account, which had been assigned file number R80465, "ha[d] been referred to [its]
office for collection." Complaint, Dkt. No. 1, Ex. E; see Answer, Dkt. No. 28, at 2.
It listed the creditor for her debt as Arrowood Indemnity Company and stated that
she currently owed $26,471.07, though cautioned that, "[b]ecause of interest, late
charges and other charges that may vary from day to day, the amount due on the day
you pay may be greater." Complaint, Dkt. No. 1, Ex. E. Following a request for more
information regarding both the ownership and amount of this debt from Appellant,
Appellee sent a second letter. It provided a new total for the amount that Appellant
owed, $31,268, a slight reformulation of the name of Appellant's creditor, Arrowood
Indemnity Company/Tuition Guard, and identified her original creditor as Citibank
(South Dakota) N.A. Complaint, Dkt. No. 1, Ex. D; Baylor v. Mitchell Rubenstein &
Assocs., P.C., 55 F.Supp.3d 43, 46 (D.D.C. 2014).
Appellant retained counsel, who contacted Appellee regarding the provenance of
this debt and advised that any "future communication regarding this matter should
be directed to [her] firm" rather than to Appellant. Complaint, Dkt. No. 1, Ex. B.
The parties then entered into settlement negotiations, during which Appellant
after determining that it was not, adopted it in its entirety. Baylor, 77 F.Supp.3d at
124.
In July 2014, the District Court granted Appellee's Motion to Dismiss all of
Appellant's claims under the CPPA and some of her DCDCL claims. Following a
contentious discovery process, in which the District Court affirmed a Magistrate
Judge's Memorandum Opinion granting in part and denying in part Appellant's
Motion to Compel production of certain communications between Appellee and an
agent of its client, Appellant's creditor, Appellee filed a Motion for Summary
Judgment and Appellant filed a cross-Motion for Partial Summary Judgment. The
District Court granted the former and denied the latter.
II. ANALYSIS
A. Standard of Review
This court reviews de novo the District Court's decision to grant a motion to dismiss
or motion for summary judgment and the "legal question" of whether it "improperly
applied [a local rule] in place of the standards prescribed by [the Federal Rules of
Civil Procedure]." Winston & Strawn, LLP v. McLean, 843 F.3d 503, 506 (D.C. Cir.
2016); see Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1128 (D.C. Cir. 1997). We will,
however, generally review discovery orders only for abuse of discretion, unless the
District Court applied the wrong legal standard. United States v. Deloitte LLP, 610 F.3d
129, 134 (D.C. Cir. 2010).
p.945 B. Appellant's Fee Request
Local Civil Rule 72.2(a) permits the District Court to refer "any pretrial motion or
matter," with the exception of certain motions and petitions set forth in Local Civil
Rule 72.3, to a Magistrate Judge. If any party files written objections to a Magistrate
Judge's ruling on such a matter, the District Court "may modify or set aside any
portion of [the] order ... found to be clearly erroneous or contrary to law." Local Civil
Rule 72.2(c). Because Local Civil Rule 72.3 makes no specific mention of motions
for attorney's fees, the District Court assumed that a Magistrate Judge's
recommendation on a fee award could be reviewed according to the deferential
"clearly erroneous or contrary to law" standard. This was error.
Federal Rule of Civil Procedure 54(d)(2)(D) states that a court "may refer a motion
for attorney's fees to a magistrate judge under Rule 72(b) as if it were a dispositive
pretrial matter," a process which requires that a district judge "determine de novo
any part of the magistrate judge's disposition that has been properly objected to,"
FED. R. CIV. P. 72(b)(3). The permissive language of Rule 54(d)(2)(D), specifically
its use of the word "may," appears to have led the District Court to believe that
referral via Local Civil Rule 72.2, with its attendant "clearly erroneous or contrary to
law" standard of review, provided a legitimate alternative to the de novo review
standard set forth in Federal Rules of Civil Procedure 54(d)(2)(D) and 72(b)(3). See
Baylor, 77 F.Supp.3d at 117 & n.2. This was not an unreasonable mistake, but it was
a mistake.
recommendation that Appellant receive approximately twenty percent of the

attorney's fees that she requested. Second, Appellant asserts that the District Court
erred in finding that Appellee's conduct does not fall within the aegis of the CPPA.
Third, Appellant also contends that the District Court abused its discretion in failing
to credit her objections to a different Magistrate Judge's denial of her Motion to
Compel the disclosure of communications between Appellee and an agent of
Appellant's creditor on the grounds that these documents were protected by
attorney-client privilege. Appellant additionally disputes the District Court's refusal
to award her attorney's fees for her efforts in litigating this issue. Finally, Appellant
argues that the District Court improperly granted Appellee's Motion for Summary
Judgment on her DCDCL claims. On this last point, Appellant contends that the
District Court failed to appropriately account for evidence demonstrating that
Appellee had "willfully violated" the DCDCL and was therefore subject to liability
under the statute.
We do not reach the question of whether the District Court abused its discretion
in awarding Appellant only a percentage of p.943 the attorney's fees she sought in
connection with her FDCPA claim. In addressing this issue, the District Court relied
on the standard set forth in Local Civil Rule 72.2 in finding that the Magistrate
Judge's proposed disposition was not "clearly erroneous or contrary to law." This
was error. Federal Rules of Civil Procedure 54(d)(2)(D) and 72(b)(3) foreclose the
District Court from using a "clearly erroneous or contrary to law" standard when
evaluating a Magistrate Judge's proposed disposition of a fee request. The correct
standard of review is de novo. We therefore reverse and remand to allow the trial judge
to reconsider this matter in the first instance applying de novo review to assess the
Magistrate Judge's recommendation. We affirm all of the remaining Orders
challenged on appeal.
I. BACKGROUND
On February 21, 2013, Appellee, a law firm whose primary focus is the recovery
of consumer debts, sent the first of several letters to Appellant notifying her that her
account, which had been assigned file number R80465, "ha[d] been referred to [its]
office for collection." Complaint, Dkt. No. 1, Ex. E; see Answer, Dkt. No. 28, at 2.
It listed the creditor for her debt as Arrowood Indemnity Company and stated that
she currently owed $26,471.07, though cautioned that, "[b]ecause of interest, late
charges and other charges that may vary from day to day, the amount due on the day
you pay may be greater." Complaint, Dkt. No. 1, Ex. E. Following a request for more
information regarding both the ownership and amount of this debt from Appellant,
Appellee sent a second letter. It provided a new total for the amount that Appellant
owed, $31,268, a slight reformulation of the name of Appellant's creditor, Arrowood
Indemnity Company/Tuition Guard, and identified her original creditor as Citibank
(South Dakota) N.A. Complaint, Dkt. No. 1, Ex. D; Baylor v. Mitchell Rubenstein &
Assocs., P.C., 55 F.Supp.3d 43, 46 (D.D.C. 2014).
Appellant retained counsel, who contacted Appellee regarding the provenance of
this debt and advised that any "future communication regarding this matter should
be directed to [her] firm" rather than to Appellant. Complaint, Dkt. No. 1, Ex. B.
The parties then entered into settlement negotiations, during which Appellant
Prior to the promulgation of Rule 54(d)(2)(D), therefore, courts lacked any specific
guidance regarding whether Magistrate Judges had the authority to provide a
determination regarding a request for attorney's fees as if it was a nondispositive
motion or were instead permitted only to provide a recommendation regarding the
disposition of such matters. Faced with this uncertainty, three circuits held that
motions for attorney's fees should be treated as dispositive motions and thus subject
to de novo review by a district court judge if properly objected to. See Massey, 7 F.3d at
509-10; Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 659 (9th Cir. 1993); Ins.
Co. of N. Am. v. Bath, 968 F.2d 20, at *2 (10th Cir. 1992) (Order and Judgment). Two
of these courts also held that Magistrate Judges lacked the authority to "determine[]"
a fee request because it was a "post-dismissal motion[]" and Rule 72, by its terms,
applies only to "pretrial matters." Massey, 7 F.3d at 510 (quoting Bennett v. Gen. Caster
Serv. of N. Gordon Co., 976 F.2d 995, 998 n.5 (6th Cir. 1992)); see Estate of Conners by
Meredith, 6 F.3d at 659 n.2.
Rule 54(d)(2)(D) thus took effect at a time when it was by no means certain what,
if any, authority Magistrate Judges could wield when evaluating motions for
attorney's fees and the degree of oversight district courts were required to provide
over such matters. Its purpose, as described by the accompanying Advisory
Committee Note, was to "eliminate[] any controversy" regarding a court's ability to
treat "motions for attorneys' fees ... as the equivalent of a dispositive pretrial matter
that can be referred to a magistrate judge." Advisory Comm. Notes 1993 Amend.
The statutory and legal backdrop against which this amendment took place make
clear that this Rule was not intended to permit courts to rely upon the standards and
procedures associated with dispositive motions in addition to those for nondispositive
motions. Indeed, providing district courts with the ability to alternate between these
different standards would be anathema to the constitutional concerns that underlie
the structure of § 636(b)(1) and Rule 72. Rather, Rule 54(d)(2)(D) provided that if a
district court wished to refer a motion for attorney's fees to a Magistrate Judge it
could do so pursuant to the procedures laid out in Rule 72(b), p.947 which include a
requirement that the district court review a Magistrate Judge's recommendation
regarding a fee award de novo if properly objected to. Thus, in context, it is clear that
Rule 54(d)(2)(D)'s use of the permissive verb "may" refers to the permissive nature
of the district judge's authority to refer the case to a magistrate, with no effect on the
standard of review to be applied if the reference is made.
It is no response that Local Civil Rule 72.2 provides an "alternative[]" to Rule 54(d).
Baylor, 77 F.Supp.3d at 117 n.2. While Rule 54(d)(2)(D) permits courts to establish
by local rule "special procedures to resolve fee-related issues without extensive
evidentiary hearings," there is no indication this language was intended to loosen the
standard that should be applied to a Magistrate Judge's recommendation after such
hearings have been conducted. Therefore, because district courts may not
"circumvent the Federal Rules of Civil Procedure by implementing local rules or
'procedures' which do not afford parties rights that they are afforded under the
Federal Rules," we join a number of our sister circuits in requiring that motions for
attorney's fees be reviewed de novo if referred to a Magistrate Judge and properly
objected to. Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,
151 n.4 (D.C. Cir. 1996) (quoting Brown v. Crawford Cty., 960 F.2d 1002, 1008 (11th
Cir. 1992)); see McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005); ClearOne
Commc'ns, Inc. v. Bowers, 509 Fed.Appx. 798, 804-05 (10th Cir. 2013); McConnell v.
ABC-Amega, Inc., 338 Fed.Appx. 24, 26 (2d Cir. 2009); cf. Rajaratnam v. Moyer, 47 F.3d
922, 924 & nn.5, 8 (7th Cir. 1995) (finding that motion for attorney's fees referred
via 28 U.S.C. § 636(b)(3) required de novo review). To the extent that Local Civil Rule
72.2 can be understood to suggest anything to the contrary, it is overruled.
Because we find that the District Court applied the wrong standard when
reviewing the Magistrate Judge's Report and Recommendation, we will not reach the
parties' claims that the District Court erred in adopting the Magistrate Judge's
proposal to award Appellant approximately twenty percent of her requested
attorney's fees. Instead, we remand this matter to the District Court so that it can
review the Magistrate Judge's Report and Recommendation anew, and de novo.
C. Appellant's CPPA Claims
Appellant contends that the District Court erred in dismissing her claim that
Appellee's conduct violated the CPPA, which creates an "enforceable right to
truthful information from merchants about consumer goods and services that are or
would be purchased, leased, or received in the District of Columbia." D.C. CODE §
28-3901(c). We disagree. "In answering questions involving the proper interpretation
of D.C. statutes, [we rely] on the construction of these laws by the D.C. Court of
Appeals." Poole v. Kelly, 954 F.2d 760, 761 (D.C. Cir. 1992) (per curiam). The D.C.
Court of Appeals' precedents and the text of the CPPA itself support the District
Court's determination that Appellee's conduct does not fall within the aegis of this
law.
One of the principal goals of the CPPA is to "assure that a just mechanism exists
to remedy all improper trade practices." D.C. CODE § 28-3901(b)(1). To that end,
it embraces both an expansive understanding of the conduct which constitutes a
"trade practice" — "any act which does or would create, alter, ... make available,
provide information about, or, directly or indirectly, solicit or offer for or effectuate,
a sale... or transfer, of consumer goods or services", which are "any and all parts of
the economic output of society, at any stage or p.948 related or necessary point in the
economic process, and includes consumer credit ... and consumer services of all
types" — and provides an extensive list of unlawful trade practices. D.C. CODE §
28-3901(a)(6)-(7); see id. § 28-3904; Howard v. Riggs Nat'l Bank, 432 A.2d 701, 708
(D.C. 1981). These prohibited practices can only be committed by a merchant, an
individual who "sell[s]... or transfer[s], either directly or indirectly, consumer goods
or services" or who, in the ordinary course of business, "suppl[ies] the goods or
services which are or would be the subject matter of a trade practice." D.C. CODE
§ 28-3901(a)(3); see DeBerry v. First Gov't Mortg. & Inv'rs Corp., 743 A.2d 699, 701 (D.C.
1999).
There is little question, as Appellant notes, that a merchant who provides a
consumer with credit, such as the loans at issue in this case, would fall comfortably
within the scope of the CPPA. See DeBerry, 743 A.2d at 701; cf. Jones v. Dufek, 830 F.3d
523, 527-28 (D.C. Cir. 2016). Yet, that is not this case. Instead, we are confronted
with a situation in which a debt collector, attempting to recoup funds on behalf of a
creditor who did not itself provide Appellant with any credit, can be found liable
under the CPPA. We tread carefully in analyzing this issue, as the D.C. Court of
Appeals has explicitly refrained from addressing a related matter. See Logan v. LaSalle
Bank Nat'l Ass'n, 80 A.3d 1014, 1026-27 (D.C. 2013) (abstaining from determining
whether "the CPPA applies to the trade practices of a mortgage loan servicer").
However, our interpretation of that court's precedents suggests that Appellee's
conduct does not fall within the bounds of this statute.
The CPPA applies only to consumer-merchant relationships. See Snowder v. District
of Columbia, 949 A.2d 590, 598-600 (D.C. 2008). However, decisions from the D.C.
Court of Appeals indicate that a merchant need only be connected with the "supply
side" of a consumer transaction for liability to attach. See Save Immaculata/Dunblane,
Inc. v. Immaculata Preparatory Sch., Inc., 514 A.2d 1152, 1159 (D.C. 1986) (quoting
Howard, 432 A.2d at 709). In this case, it appears that there are two ways in which
the interactions between Appellant and Appellee might be viewed to come within
the compass of this statute.
First, Appellant suggests that Appellee is connected to the supply side of the
transaction in which Appellant first acquired her student loans. See Reply Br. for
Appellant at 13. In our view, this argument is based on a strained construction of the
statute. It is hard to see Appellee as a culpable party on the supply side of the
transaction when we know that there was a merchant who initially provided the
consumer credit and then subsequently transferred ownership of this debt after it
was in default to a new creditor who, without providing Appellant with any "goods
or services" to speak of, retained Appellee to collect on these loans. In this situation,
it seems implausible to characterize Appellee as someone who sold or transferred
consumer goods or services or who supplied the goods or services which are or
would be the subject matter of a trade practice. See Osinubepi-Alao v. Plainview Fin.
Servs., Ltd., 44 F.Supp.3d 84, 92-93 (D.D.C. 2014) (refusing to apply CPPA to "a
licensed attorney [attempting] to collect the debt through litigation" where the
attorney was not engaged in the practice of extending credit or selling debt); Busby v.
Capital One, N.A., 772 F.Supp.2d 268, 279-80 (D.D.C. 2011) (refusing to apply CPPA
to parties that did not sell or give goods or services to plaintiff).
Second, it might be argued that Appellee is a merchant in its own right. Yet, it seems
perverse to suggest that the "consumer" of the services it provides — debt collection
— is the individual from whom it p.949 is attempting to collect rather than the
creditor who retained it. The provisions of the CPPA cited in Appellant's Complaint,
D.C. CODE § 28-3904(e) and (f), appear to apply only when a consumer is, or could
be, misled by a merchant's actions. See id. ("It shall be a violation of this chapter,
whether or not any consumer is in fact misled [or] deceived ... for any person to...
misrepresent as to a material fact which has a tendency to mislead" or "fail to state a
material fact if such failure tends to mislead."). The situation here does not fit within
the statutory proscription.
In light of the terms of the statute, we are constrained to hold that Appellee's
conduct falls outside the scope of the CPPA. Appellant's arguments to the contrary
are unpersuasive. Because we find that Appellee's actions did not take place within
the context of a consumer-merchant relationship, as required by the CPPA, we need
not address Appellant's claim that debt collection is a "trade practice" as defined by
this statute.
It is also unnecessary for us to address Appellant's claim that the CPPA permits
certain individuals or entities to seek remedies for "the use of a trade practice in
violation of a law of the District," including the DCDCL. D.C. CODE § 28-
3905(k)(1)(A); see id. § 28-3909; Br. for Appellant at 55. It is true that "[a]lthough §
28-3904 makes a host of consumer trade practices unlawful ... [t]he remainder of the
statute ... contemplates that procedures and sanctions provided by the [CPPA] will
be used to enforce trade practices made unlawful by other statutes." Atwater v. D.C.
Dep't of Consumer & Regulatory Affairs, 566 A.2d 462, 466 (D.C. 1989). However, Count
III of Appellant's Complaint asserts only that Appellee's actions ran counter to two
specific provisions of the CPPA itself, D.C. CODE § 28-3904(e)-(f). Complaint, JA
31-33. It makes no mention of Appellee's alleged violations of any other laws as
grounds for recovery under this statute.
For the foregoing reasons, we affirm the District Court's decision to dismiss
Appellant's CPPA claims.
D. Appellee's Claim of Attorney-Client Privilege
After the District Court granted in part Appellee's Motion to Dismiss, the parties
embarked on an "extremely long and contentious discovery process." Baylor, 174
F.Supp.3d at 151. Further problems arose when Appellant filed a Motion to Compel
production of certain communications between Appellee and Sunrise Credit
Services, Inc. ("Sunrise"), the organization which retained Appellee to collect
Appellant's debt on her creditor's behalf. Appellee refused to produce these
documents, claiming that they were protected by attorney-client privilege. See Baylor
v. Mitchell Rubenstein & Assocs., P.C., 130 F.Supp.3d 326, 328 (D.D.C. 2015). The
District Court referred this matter to a Magistrate Judge who found that, because
Appellant's creditor, Arrowood Indemnity Company ("Arrowood"), had retained
"Sunrise for the limited purpose of finding an attorney to help Arrowood collect
[Appellant's] debt," Sunrise had "acted as Arrowood's agent for obtaining legal
services." Baylor v. Mitchell Rubenstein & Assocs., P.C., 2015 WL 4624090, at *4 (D.D.C.
July 31, 2015). The Magistrate Judge, after reviewing the matter, concluded in turn
that attorney-client privilege attached to some of the communications that Appellee
wished to withhold.
In finding that attorney-client privilege attached to communications between
Sunrise and Appellee, the Magistrate Judge looked to both Maryland and D.C. law,
and held that both states recognize that attorney-client privilege extends to
communications between a client's agent and his attorney. p.950 See id. at *1-2; Baylor,
130 F.Supp.3d at 330 n.2 (explaining that the court need not resolve a dispute
regarding which state's law applied because there were no substantive differences
between the two jurisdictions (citing Cruz v. Am. Airlines, 356 F.3d 320, 332 (D.C.
Cir. 2004))); see also In re Sealed Case (Medical Records), 381 F.3d 1205, 1212 (D.C. Cir.
2004) (noting that when an individual asserts "state claims," such as the DCDCL
claims at issue here, "state privilege law applies"). We need not address this
determination because Appellant does not contest it on appeal.
The arguments advanced by Appellant before this court speak only to the
questions of: (1) whether Appellee provided "record evidence" in support of its
claims regarding the nature of the relationships between Appellee, Sunrise and
Arrowood, Br. for Appellant at 65; and (2) whether two cases, E.I. du Pont de Nemours
& Co. v. Forma-Pack, Inc., 351 Md. 396, 718 A.2d 1129 (1998) and J.H. Marshall &
Associates., Inc. v. Burleson, 313 A.2d 587 (D.C. 1973), preclude this court from holding
that attorney-client privilege could attach to the communications at issue. We find
that the District Court did not abuse its discretion in resolving these issues. We are
also unpersuaded by Appellant's claim that the District Court abused its discretion
in refusing to award her attorney's fees for her efforts in relation to this matter.
The District Court properly found that Appellee had "proffered adequate
evidence" to support its assertion that Sunrise served as Arrowood's agent and an
attorney-client relationship existed between Appellee and Arrowood. See Baylor, 130
F.Supp.3d at 331; id. at 330 (noting that "[a]t bottom, most of [Appellant's] objections
boil down to her claim that [Appellee] failed to offer evidence sufficient to show an
agency relationship between Arrowood and Sunrise"). Appellee offered an affidavit
describing the relationship between Arrowood and Sunrise and two "authorizations
by Arrowood for Sunrise to retain counsel." See id. at 331; Appellee's Opposition to
Appellant's Motion to Compel, Dkt. No. 72-2, Ex. 4, at 41-42; Dkt. No. 72-3, Ex. 4,
at 64-65; Dkt. No. 73-4, Ex. 5, at ¶¶ 4-5. Although the affidavit is spare, we cannot
say that the District Court abused its discretion in holding that the Magistrate Judge's
determination that this evidence sufficed to support a finding of attorney-client
privilege was not clearly erroneous or contrary to law.
Appellant raises two additional arguments to suggest that attorney-client privilege
cannot attach to the disputed communications. First, she contends that attorneys
engaged in the business of debt collection cannot invoke this privilege. Br. for
Appellant at 64 (citing E.I. du Pont, 718 A.2d 1129). The precedent she cites in
support of this claim, E.I. du Pont, is distinguishable from the instant case. In E.I. du
Pont, the court held that the privilege did not apply to communications between a
corporation and a "non-lawyer collection agency" where the corporation had hired
this agency only "for the typical business purpose of collecting a debt" even though
the agency had subsequently hired an attorney to "litigate the debt collection matter
after [the agency's] efforts [to collect on the debt] proved unsuccessful." 718 A.2d at
1141-42. It justified this decision by noting that the agency "may certainly have been
[the corporation's] agent for the business purpose of collecting [a] debt" but it was
"not hired as an agent for purposes of litigation." Id. at 1142. Here, however, the
Magistrate Judge specifically found that Sunrise was hired only for "the limited
purpose of finding an attorney to help Arrowood collect [Appellant's] debt" and
never itself attempted to undertake "direct collection p.951 actions" against
Appellant. Baylor, 2015 WL 4624090, at *3-4. We find that the District Court properly
held that the Magistrate Judge was not clearly erroneous in determining that this
precedent did not preclude Appellee from claiming that certain of its
communications with Sunrise were covered by attorney-client privilege. See Baylor,
130 F.Supp.3d at 334-35.
Second, Appellant asserts that Sunrise's actions constitute the unauthorized practice
of law and, as such, attorney-client privilege cannot attach to its communications. In
support of this claim, Appellant draws upon J.H. Marshall, in which the D.C. Court
of Appeals held that a collection agency that filed suit to collect on a debt assigned
to it by a creditor had engaged in the unauthorized practice of law. 313 A.2d at 590-
91. Central to the D.C. Court of Appeals' reasoning in that case was its belief that a
collection agency could not "interpose itself between a creditor and an attorney
seeking to collect the creditor's claim," id. at 595, and a concern that the collection
The Federal Magistrates Act permits district courts to draw upon the assistance of
Magistrate Judges to resolve "any pretrial matter pending before the court." 28 U.S.C.
§ 636(b)(1)(A). The power vested in Magistrate Judges to dispose of issues referred
to them under this provision depends upon the type of motion at issue. 28 U.S.C. §
636(b)(1)(A) lists eight pretrial motions, including motions for summary judgement
and injunctive relief, for which Magistrate Judges may only provide "proposed
findings of fact and recommendations for the disposition [of the matter]." Id. §
636(b)(1)(B). These recommendations must be reviewed de novo by a district court
judge if properly objected to by one of the parties. See id. § 636(b)(1)(C). For all other
pretrial motions, Magistrate Judges are permitted to "hear and determine" the matter,
and a district court will only set aside their order where it has been shown that it is
"clearly erroneous or contrary to law." Id. § 636(b)(1)(A); see Phinney v. Wentworth
Douglas Hosp., 199 F.3d 1, 5-6 (1st Cir. 1999).
This differentiation between the degree of authority a Magistrate Judge is
permitted to wield over certain motions, and the standard of review which must be
applied to the judge's proposed resolution of such matters, is rooted in
"[c]onstitutional concerns," specifically the "possible ... objection that only an article
III judge may ultimately determine the litigation." 12 CHARLES ALAN WRIGHT
ET AL., FEDERAL PRACTICE AND PROCEDURE § 3068.2, p. 367 (3d ed.
2014); see PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 13 (1st Cir. 2010).
When Rule 72 was promulgated to "implement the legislative mandate of Section
636(b)(1)," it retained § 631(b)(1)'s basic structure — dividing pretrial motions
between issues that a Magistrate Judge could determine and those for which the judge
could simply provide recommendations for consideration by the district court. 12
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3068, p. 351 (3d ed. 2014). It adopted a slightly different organizing
principle, however. Rather than relying on § 636(b)(1)(A)'s list of eight motions to
identify the pretrial p.946 matters that a Magistrate Judge could not "determine," Rule
72 distinguished between motions that were "not dispositive of a party's claim or
defense" and those that were. FED. R. CIV. P. 72(a)-(b); see 12 CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3068.2, p. 366
(3d ed. 2014). Nondispositive matters would be referred to a Magistrate Judge
pursuant to Rule 72(a) and a district court would be required to "consider timely
objections and modify or set aside any part of [an order issued following such a
referral] that [was] clearly erroneous or [was] contrary to law." Dispositive motions,
meanwhile, would be referred to a Magistrate Judge via Rule 72(b) and the district
court would be required to "determine de novo any part of [a] magistrate judge's
[recommendation] that ha[d] been properly objected to." FED. R. CIV. P. 72(b)(3).
In spite of the legal significance of the distinction between dispositive and
nondispositive motions it is not immediately apparent from the text of Rule 72 how,
precisely, to determine whether a particular type of motion should be deemed to be
"dispositive of a party's claim." While most courts agree that the eight motions set
forth in § 636(b)(1)(A) are "dispositive," this list has largely been deemed to be
illustrative of the matters that could fall within the scope of Rule 72(b), rather than
exhaustive. See Phinney, 199 F.3d at 5-6; Massey v. City of Ferndale, 7 F.3d 506, 508 (6th
Cir. 1993).
proceeding below, including her claim that this standard is satisfied if Appellee
"knowingly and intentionally committed an act in conscious disregard for the rights
of others" or violates the statute "voluntarily with either an intentional disregard of,
or plain indifference to, the Act's requirements"); Br. for Appellee at 15 (adopting
District Court's interpretation of willfulness).
In reviewing Appellant's contention that the District Court erred in granting
Appellee's Motion for Summary Judgment and denying her Partial Motion for
Summary Judgment, this court must determine whether a genuine dispute as to any
material fact exists when "viewing the evidence in the light most favorable to the
non-movant." Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016).
We are cognizant that where, as here, we consider cross-motions for summary
judgment, we must accord both parties the solicitude owed non-movants.
Nevertheless, in this case, in order to resolve the parties' disputes over the DCDCL
claims, it will suffice for us to address Appellant's claims in order and assess the
evidence in the light most favorable to her. As we explain below, even on these terms,
Appellant's claims fail.
1. D.C. CODE § 28-3814(g)(5): Appellee's Contact With Appellant After She

Retained Counsel
Section 28-3814(g)(5) of the DCDCL bars "debt collector[s] ... [from using] unfair
or unconscionable means to collect or attempt to collect on any claim... [by
communicating] with a consumer whenever it appears that the consumer has notified
the creditor that he is represented by an attorney and the attorney's name and address
are known." Neither party disputes the fact that Appellant received a letter from
Appellee after her counsel had informed it to cease contacting Appellant directly.
Appellee, however, notes that this letter was addressed to Appellant's counsel, and
attributes its appearance at Appellant's doorstep to a "computer error." Declaration
of Mitchell Rubenstein, JA 508. In an affidavit attached to Appellee's Motion for
Summary Judgment, its president explained that Appellee's computer system had
merely "failed to update the address on the letter to reflect [Appellant's counsel's]
mailing address." Id.
Appellant, meanwhile, argues that Appellee lacked "procedures reasonably
calculated to avoid [this] error" and claims that Appellant's explanation for its failure
to direct all of its communications to Appellant's counsel in its Motion for Summary
Judgment differs from that proffered in its Motion to Dismiss. Appellant's
Opposition to Appellee's Motion for Summary Judgment, Dkt. No. 90, at 5; see Br.
for Appellant at 58. Yet, the record contains evidence that Appellee did, in fact, have
procedures which explicitly barred its staff from "contact[ing] or respond[ing] to a
consumer if the consumer is represented p.953 by counsel." Baylor, 174 F.Supp.3d at
159. Furthermore, as the District Court noted, there is no reason why Appellee
cannot offer "an alternative explanation for its conduct" at summary judgment. See
id. at 158-59 n.9. Because Appellee's assertion that the letter was mistakenly sent to
Appellant's home due to a computer error is not controverted by anything in the
record, we find that, even assessing the evidence in the light most favorable to
Appellant, she has failed to raise a genuine question of material fact as to whether
Appellee violated § 28-3814(g)(5) of the DCDCL. See Johnson v. Perez, 823 F.3d 701,
705 (D.C. Cir. 2016) (noting that a court "may not ... believe one witness over another
... [but] if one party presents relevant evidence that another party does not call into
question factually, the court must accept the uncontroverted fact").
2. D.C. CODE § 28-3814(f)(5): Appellee's Misrepresentations Regarding the

Amount that Appellant Owed
D.C. CODE § 28-3814(f)(5) provides that a debt collector may not "use any
fraudulent, deceptive, or misleading representation or means to collect or attempt to
collect claims ... [via] any false representation or implication of the character, extent,
or amount of a claim against a consumer." There is no question that Appellee
provided different figures for the amount that Appellant owed on her first and
second set of loans in its various letters to her. However, Appellee's president avers
that these errors were due to its reliance on Sunrise's representation of the "amount
forwarded" for collection from Arrowood. Declaration of Mitchell Rubenstein, JA
506. He stated that during Appellee's fifteen year "relationship with Sunrise.... [he
had] found that the 'amount referred' listed in [its] referral form to be [an] accurate
statement as to the present balance owed on [an individual's] debt" and that Appellee
had not "knowingly failed to include accrued interest" in its February 21 and August
22, 2013 letters "or otherwise misstate the amount" Appellant owed. Id. at 506-508.
In response, Appellant puts forth a slew of claims regarding the training Appellee's
employees received and the roles which non-attorneys perform in attempting to
collect on various debts. See Memorandum in Support of Appellant's Motion for
Partial Summary Judgment, Dkt. No. 91-1, at 2-6; Opposition to Appellee's Motion
for Summary Judgment, Dkt. No. 90, at 5-7; Reply to Opposition to Motion for
Partial Summary Judgment, Dkt. No. 103, at 4-16. Only two appear to be relevant to
the specific question of whether Appellee willfully misrepresented the amount that
Appellant owed: (1) Appellant's claim that Appellee failed to "maintain or implement
any practices or procedures to prevent its employees and managing partner from
demanding inaccurate amounts in its demand letters" and lacks "any procedures
relating to the DCDCL," Dkt. No. 103, at 4; see Br. for Appellant at 56; and (2) her
argument that a conversation between Appellee and Sunrise, in which Appellee asked
if it was possible to "make things simple" by applying an interest rate of 3.75% from
the date of Appellant's last payment to her debt after Sunrise had informed Appellee
the loans had been "accruing interest at 4% since placement," demonstrated that
Appellee permitted its employees to falsify the amount of debt owed by the
individuals it sent collection letters to. Collection Notes, JA 489-90; Br. for Appellant
at 58-59.
The first of these arguments is easily set aside. As the District Court noted,
Appellee maintains policies and procedures which state that "[p]rior to the issuance
and mailing of any demand letter, a firm attorney must review the file to ensure p.954
that ... [t]he claim amount matches the amount the creditor claims is owed." Baylor,
174 F.Supp.3d at 157. Nothing in the record indicates that an attorney did not review
the demand letters sent to Appellant, or that more specific policies are required to
ensure that the firm's policies are in step with the requirements of the DCDCL.
Appellant's claim that the conversation between Appellee and Sunrise regarding
the correct interest rate to be applied surely does not suffice to demonstrate that
Appellee willfully misrepresented the amount that Appellant owed. Even assessing this
evidence in the light most favorable to Appellant, what she offers by way of argument
is not enough to show a willful violation of the law. Indeed, if anything, the
interaction appears to demonstrate that Appellee was attempting to bring the interest
rate it would relay to Appellant in line with the information it had been provided
regarding this debt, rather than conjure an interest rate "on a whim," as Appellant
claims. See Dkt. No. 84-4, Ex. 3, at 13 (noting that the "interest amount" had been
calculated through "8-12-11," that the interest rate was 3.75%, and that the last date
Appellant had paid was 10-21-11); Appellee's Opposition to Motion to Compel, Dkt.
No. 71, at 4 (describing this document as the "account referral and suit authorization
from" Sunrise to Appellee). In other words, the uncontested facts hardly support an
inference that Appellee acted to willfully violate the law.
In light of the record before us, and after having reviewed the claims de novo, we
affirm the District Court's decision to grant Appellee's Motion for Summary
Judgment on Appellant's DCDCL claims.
III. CONCLUSION
For the reasons set forth above, we remand the District Court's Order awarding
Appellant attorney's fees in relation to her FDCPA claim so that it may review the
Magistrate Judge's Report and Recommendation on this matter de novo. We affirm all
of the other Orders challenged in this appeal.
KAREN LeCRAFT HENDERSON, Circuit Judge, concurring:

It is a time-honored bargaining tactic: make an unreasonable opening offer in an
effort to "anchor" the ensuing give-and-take to an artificially high (or low) range of
prices. Russell Korobkin, Aspirations and Settlement, 88 CORNELL L. REV. 1, 32
(2002). Even if the offer has no basis in reality and is rejected out of hand, it may for
psychological reasons yield an artificially high (or low) final price. Id. at 32 & nn.151-
53 (citing evidence that people "often begin [a negotiation] with a reference value ...
and then adjust from that point to arrive at their final determination," even if starting
point does "not bear a rational relationship to the item subject to valuation"). That
may be fine for selling a car or conducting a business negotiation. But a request for
attorney's fees is not a negotiation.
Federal fee-shifting statutes typically authorize the recovery of a reasonable
attorney's fee. If a party seeks more than that — making an excessive demand in
hopes that the award, although short of the demand, will be artificially high — a
district court can impose a sanction to deter future violations and to protect the
integrity of its proceedings. In particular, the court has discretion to deny an award
altogether or "impose a lesser sanction, such as awarding a fee below what a
'reasonable' fee would have been." Envtl. Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258
(D.C. Cir. 1993).
I say all this because Radi Dennis, counsel for plaintiff Demetra Baylor, made what
I consider a grossly excessive fee request. In Baylor's name, Dennis sought p.955 a
total of $221,155 for her work on Baylor's $1,001 settlement and on the fee request
itself.[1] The $221,155 demand was more than five times the $41,990 that a magistrate
Appeals has explicitly refrained from addressing a related matter. See Logan v. LaSalle
Bank Nat'l Ass'n, 80 A.3d 1014, 1026-27 (D.C. 2013) (abstaining from determining
whether "the CPPA applies to the trade practices of a mortgage loan servicer").
However, our interpretation of that court's precedents suggests that Appellee's
conduct does not fall within the bounds of this statute.
The CPPA applies only to consumer-merchant relationships. See Snowder v. District
of Columbia, 949 A.2d 590, 598-600 (D.C. 2008). However, decisions from the D.C.
Court of Appeals indicate that a merchant need only be connected with the "supply
side" of a consumer transaction for liability to attach. See Save Immaculata/Dunblane,
Inc. v. Immaculata Preparatory Sch., Inc., 514 A.2d 1152, 1159 (D.C. 1986) (quoting
Howard, 432 A.2d at 709). In this case, it appears that there are two ways in which
the interactions between Appellant and Appellee might be viewed to come within
the compass of this statute.
First, Appellant suggests that Appellee is connected to the supply side of the
transaction in which Appellant first acquired her student loans. See Reply Br. for
Appellant at 13. In our view, this argument is based on a strained construction of the
statute. It is hard to see Appellee as a culpable party on the supply side of the
transaction when we know that there was a merchant who initially provided the
consumer credit and then subsequently transferred ownership of this debt after it
was in default to a new creditor who, without providing Appellant with any "goods
or services" to speak of, retained Appellee to collect on these loans. In this situation,
it seems implausible to characterize Appellee as someone who sold or transferred
consumer goods or services or who supplied the goods or services which are or
would be the subject matter of a trade practice. See Osinubepi-Alao v. Plainview Fin.
Servs., Ltd., 44 F.Supp.3d 84, 92-93 (D.D.C. 2014) (refusing to apply CPPA to "a
licensed attorney [attempting] to collect the debt through litigation" where the
attorney was not engaged in the practice of extending credit or selling debt); Busby v.
Capital One, N.A., 772 F.Supp.2d 268, 279-80 (D.D.C. 2011) (refusing to apply CPPA
to parties that did not sell or give goods or services to plaintiff).
Second, it might be argued that Appellee is a merchant in its own right. Yet, it seems
perverse to suggest that the "consumer" of the services it provides — debt collection
— is the individual from whom it p.949 is attempting to collect rather than the
creditor who retained it. The provisions of the CPPA cited in Appellant's Complaint,
D.C. CODE § 28-3904(e) and (f), appear to apply only when a consumer is, or could
be, misled by a merchant's actions. See id. ("It shall be a violation of this chapter,
whether or not any consumer is in fact misled [or] deceived ... for any person to...
misrepresent as to a material fact which has a tendency to mislead" or "fail to state a
material fact if such failure tends to mislead."). The situation here does not fit within
the statutory proscription.
In light of the terms of the statute, we are constrained to hold that Appellee's
conduct falls outside the scope of the CPPA. Appellant's arguments to the contrary
are unpersuasive. Because we find that Appellee's actions did not take place within
the context of a consumer-merchant relationship, as required by the CPPA, we need
not address Appellant's claim that debt collection is a "trade practice" as defined by
this statute.
It is also unnecessary for us to address Appellant's claim that the CPPA permits
certain individuals or entities to seek remedies for "the use of a trade practice in
In the meantime, on January 14, 2014, MRA moved to dismiss all counts of the
complaint. Between January 18 and January 27 — a ten-day period during which she
should have known that MRA had offered to settle the FDCPA claim — Dennis
wasted more than 87 hours researching and drafting Baylor's opposition to the
motion to dismiss. She filed the opposition on January 27.
Dennis finally retrieved the offer of judgment on January 29, 2014. In the two
weeks that followed, she spent about 34 hours researching Rule 68. Baylor accepted
MRA's offer on February 28. The judgment was for $1,001 "plus costs and expenses
together with reasonable attorney fees for all claims under the Fair Debt Collection
Practices Act." J. on Offer and Acceptance (Feb. 28, 2014). The reference to
"reasonable attorney fees" accorded with the FDCPA's fee-shifting provision, which
states in relevant part that, "in the case of any successful [FDCPA] action," a debt
collector who has violated the FDCPA "is liable" to the plaintiff for "the costs of the
action, together with a reasonable attorney's fee as determined by the court." 15
U.S.C. § 1692k(a)(3).
In Baylor's name, Dennis sought a "lodestar"[4] fee award of $155,700 for her work
on the FDCPA claim and on the fee request itself.[5] She based the amount on two
assertions: (1) she had spent a total of 346 hours litigating the FDCPA claim and fee
motion, including at least 85 hours on the latter; and (2) her rate under the "Laffey
Matrix"[6] is $450 per hour. She subsequently sought another $40,075 for drafting
Baylor's reply to MRA's opposition to the fee motion,[7] bringing the tally to
$195,775. And then she sought another $25,380 for 56 hours she allegedly spent
responding (and seeking fees on the response) to MRA's five-page motion for
sanctions and relief from judgment — a motion the district court denied in a three-
page order. In all, then, Dennis sought $221,155 in fees.[8]
p.957 MRA opposed the fee request, urging the district court to deny it in toto
because it was grossly exaggerated.
B. THE DISTRICT COURT'S FEE ORDER
The district court referred the fee request to a magistrate judge, who recommended
awarding a fee but reducing the total to a reasonable amount: $41,990. Reviewing for
clear error, the district court overruled both parties' objections to the magistrate's
report and recommendation. 77 F.Supp.3d 113, 117-23 (D.D.C. 2015). The court
adopted the report and recommendation and thus awarded $41,990, which it
considered "quite generous." Id. at 121; see id. at 115, 124.
In rejecting Baylor's claim for a larger award, the district court deferred to the
magistrate judge's view that a "reasonable attorney" in Dennis's shoes would have
spent about 93 hours on the FDCPA claim and the fee request. 77 F.Supp.3d at 121.
The court saw no clear error in the magistrate's conclusion that Dennis's time beyond
93 hours was (1) attributable to Baylor's D.C. claims, id. at 121-22 & n.6, and (2)
"wasteful" and "unnecessary" because (inter alia) Dennis failed to timely retrieve
MRA's offer of judgment, id. at 121-23 & n.5.
In rejecting MRA's entreaty to award nothing, the district court acknowledged
cases permitting it to "reject[] an award outright" because of an "outrageous" request.
77 F.Supp.3d at 118. Elsewhere the court remarked on the fact that Dennis "sought
more than $220,000 in fees for a successful FDCPA claim worth only $1,001.00 to
her client." Id. at 122. But the court discerned no clear error in the magistrate judge's
recommendation against a sanction. Id. at 118-19. Because a fee award under the
FDCPA "is mandatory in all but the most unusual circumstances," the court was
reluctant to deny the fee request in its entirety. Id. at 119 (quoting Carroll v. Wolpoff
& Abramson, 53 F.3d 626, 628 (4th Cir. 1995)). And in light of the already "significant
reduction" to $41,990 — a reduction the magistrate judge deemed necessary to make
the award reasonable — the court was unpersuaded that any punitive reduction was
necessary. Id.
Both sides appealed. Baylor claims the award is too low and MRA claims it is too
high.
II. ANALYSIS
We and other courts of appeals have held, in several different statutory contexts,
that a court may punish an intolerably excessive fee request by denying any award at
all. See, e.g., Envtl. Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258 (D.C. Cir. 1993)
(Resource Conservation and Recovery Act, 42 U.S.C. § 6972(e)); Jordan v. Dep't of
Justice, 691 F.2d 514, 518 & n.37 (D.C. Cir. 1982) (Freedom of Information Act, 5
U.S.C. § 552(a)(4)(E)); see also, e.g., Scham v. District Courts Trying Criminal Cases, 148
F.3d 554, 556-59 (5th Cir. 1998) (Civil Rights Attorney's Fees Awards Act, 42 U.S.C.
§ 1988(b)), abrogated on other grounds as noted in Bailey v. Mississippi, 407 F.3d 684, 686-
87 (5th Cir. 2005); Fair Hous. Council v. Landow, 999 F.2d 92, 96-98 (4th Cir. 1993)
(same); Lewis v. Kendrick, 944 F.2d 949, 958 (1st Cir. 1991) (same); Brown v. Stackler,
612 F.2d 1057, 1059 (7th Cir. 1980) (same). We have also recognized the authority
to "impose a lesser sanction, such as awarding a fee below what a 'reasonable' fee
would have been in order to discourage fee petitioners from submitting an excessive
request." Reilly, 1 F.3d at 1258.
The district court was hesitant to deny Baylor's fee request in toto because the
FDCPA provides for mandatory fee shifting. 77 F.Supp.3d at 119. The concern is
understandable but goes only so far. True, the cases listed above involved statutes
p.958 under which a court "may" award a fee, 5 U.S.C. § 552(a)(4)(E); 42 U.S.C. §§
1988(b), 6972(e), whereas the FDCPA provides that a defendant "is liable" for a fee,
15 U.S.C. § 1692k(a). But at least two courts of appeals have suggested the FDCPA
permits outright denial in "unusual circumstances." Carroll, 53 F.3d at 628 (4th Cir.);
Graziano v. Harrison, 950 F.2d 107, 114 & n.13 (3d Cir. 1991). And even assuming
arguendo that some "reasonable" fee is always required, 15 U.S.C. § 1692k(a)(3), the
statutory text does not preclude a court from deciding — consistent with its inherent
authority to protect the integrity of its proceedings, Chambers v. NASCO, Inc., 501
U.S. 32, 42-51, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) — that a "reasonable" fee in
response to an exorbitant request is a nominal amount approaching zero.
I do not dispute that, if one leaves aside the magnitude of the fee request, $41,990
is reasonable — or at least represents a non-reversible determination of
reasonableness within the district court's broad discretion. See Morgan v. District of
Columbia, 824 F.2d 1049, 1066 (D.C. Cir. 1987) ("[W]e are ill-positioned to second
guess the [district] court's [fee] determination."). Nor do I contend that the court
must exercise its discretion to reduce the award for punitive reasons. But in deciding
whether or not to do so, the court must start with the correct legal baseline. See Koon
v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ("A district
court by definition abuses its discretion when it makes an error of law."). I am not
sure the court started with the correct baseline here.
The district court suggested that, in light of the already "significant reduction" to
$41,990, it did not need to reduce the award further as a sanction. 77 F.Supp.3d at
119. But the question is not whether an award of $41,990 is grossly excessive; it is
whether a request of $221,155 is grossly excessive given that a reasonable fee is $41,990.
After all, the point is to deter unreasonable requests:
If ... the Court were required to award a reasonable fee when an outrageously
unreasonable one has been asked for, claimants would be encouraged to make
unreasonable demands, knowing that the only unfavorable consequence of such
misconduct would be reduction of their fee to what they should have asked for
in the first place. To discourage such greed a severer reaction is needful, and
the District Court responded appropriately in [denying an award entirely].
Brown, 612 F.2d at 1059; see Reilly, 1 F.3d at 1258 (approving Brown's rationale in
our Circuit); Landow, 999 F.2d at 98 (forbidding "gamesmanship" of filing excessive
request "in the hope that the district court [will] at least award some, preferably high,
percentage of the requested fees"); Lewis, 944 F.2d at 958 (emphasizing that fee
request is "not an opening gambit in negotiations to reach an ultimate result").
None of this is to say that denial or reduction of fees is routine punishment. As
the Court explained in Jordan:
Total denial of requested fees as a purely prophylactic measure ... is a stringent
sanction, to be reserved for only the most severe of situations, and appropriately
invoked only in very limited circumstances. Outright denial may be justified
when the party seeking fees declines to proffer any substantiation in the form
of affidavits, timesheets or the like, or when the application is grossly and
intolerably exaggerated, or manifestly filed in bad faith.
691 F.2d at 518 (footnotes omitted). Still, the sanction is not as rare as hen's teeth.
In several of the cases cited above, a fee was denied or reduced as punishment for a
grossly excessive request. Reilly, 1 F.3d at p.959 1258-60; Scham, 148 F.3d at 556-59;
Landow, 999 F.2d at 96-98; Lewis, 944 F.2d at 954-58; Brown, 612 F.2d at 1059. In
Reilly, for example, this Court reduced a fee request for "outrageously excessive time
entries," noting especially that the attorney had tried to claim hours that were "about
three times what the work should have required." 1 F.3d at 1259-60. Likewise in
Landow, the Fourth Circuit reversed a fee award in its entirety because the request on
which it was based was "outrageously excessive" insofar as it did not carve out hours
spent on unsuccessful claims. 999 F.2d at 97-98. And in Lewis the First Circuit
reversed an award because the lawyers' fee request was intolerably out of sync with
the "degree of success [they] obtained" for their client. 944 F.2d at 956, 958 (internal
quotation omitted).
The sanction may be "strong medicine," Lewis, 944 F.2d at 958; see Jordan, 691 F.2d
at 518, but an equally strong case can be made for it here. The record suggests that
Dennis, desiring an artificially large award, impermissibly treated the $221,155 fee
request as an opening bid. Compare Reilly, 1 F.3d at 1258; Landow, 999 F.2d at 97-98;
Lewis, 944 F.2d at 958; Brown, 612 F.2d at 1059; see also Korobkin, Aspirations and
Settlement, 88 CORNELL L. REV. at 32-33. The hours she reported are difficult to
agency in J.H. Marshall was "sell[ing] the services of a lawyer, whom it controls and
directs, thereby destroying the privity between attorney and client," id. at 597.
However here the Magistrate Judge specifically held that Sunrise served only to find
"an attorney to help Arrowood collect [Appellant's] debt." Baylor, 2015 WL 4624090,
at *4. The Magistrate Judge made no findings that Sunrise ever attempted to collect
on Appellant's debt on its own or otherwise serve as anything other than an
"intermediary between Arrowood and [Appellee]." Id. at *3. In the absence of
additional findings suggesting that Sunrise controlled and directed Appellee's
conduct, we hold that the District Court did not abuse its discretion in affirming the
Magistrate Judge's determination that Sunrise did not engage in the unauthorized
practice of law.
Finally, Appellant claims that the District Court abused its discretion in refusing
to award her attorney's fees relating to her Motion to Compel production of
communications between Appellee and Sunrise. However, this motion was only
partially successful, and Federal Rule of Civil Procedure 37(a)(5)(C) vests the District
Court with discretion to "apportion... reasonable expenses," if such a motion is
"granted in part and denied in part," as it was here. See Order, JA 185. We see no
abuse of discretion in the District Court's determination that Appellant's limited
success and "unduly contentious and overly lengthy pleadings" did not entitle her to
attorney's fees and costs. Baylor, 130 F.Supp.3d at 337.
E. Appellant's DCDCL Claims
In her Complaint, Appellant asserted that Appellee's conduct had violated a variety
of provisions of the DCDCL, a statute which prohibits creditors and debt collectors
from engaging in certain activities such as "collect[ing] any money ... by means of
threat [or] coercion." D.C. CODE § 28-3814(c); see Complaint, JA 29-31. Only two
of these claims survived Appellee's Motion to Dismiss: (1) Appellant's contention
that Appellee misrepresented the amount that she owed in its various letters to her,
and (2) her argument that Appellee improperly contacted her after she retained
counsel. See Baylor, 55 F.Supp.3d at 49-53. Following a protracted discovery process,
the District Court granted Appellee's Motion for Summary Judgment and denied
Appellant's Motion for Partial Summary Judgment regarding these claims. We affirm
this decision.
A creditor or debt collector is subject to liability under the DCDCL only when a
claimant offers substantial evidence to prove a "willful violation" of the law. See D.C.
CODE § 28-3814(j)(1). We note, as the p.952 District Court did in the proceeding
below, that neither this court nor the D.C. Court of Appeals appears to have set forth
the standard for determining what constitutes "willful" conduct. While we can find
no fault in the District Court's decision to treat this term as embracing "not only
knowing violations of [the DCDCL], but reckless ones as well," we refrain, out of
deference to the D.C. Court of Appeals, from specifically adopting this standard
when interpreting this statute. Baylor, 174 F.Supp.3d at 153 (quoting Safeco Ins. Co. of
Am. v. Burr, 551 U.S. 47, 57, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007)). Instead, we
note simply that no definition of willfulness advanced by any party in this litigation
suggests that Appellee's conduct can be viewed as a "willful" violation of this law. See
id. at 153 n.5 (summarizing definitions of "willfulness" advanced by Appellant in the
satellite fee litigation, which is "one of the least socially productive types of litigation
imaginable" (internal quotation omitted)). For fee-shifting to work properly, a court
must be able to depend on counsel for a measured accounting from the outset.
Dennis's accounting was nowise measured.
In the event the district court concludes on remand that the fee request was grossly
excessive, such that the award needs to be further reduced, the following
considerations may aid its calculation. First, for reasons already explained, I think the
court should award $325 per hour instead of $450. Second, I think the court may
deny Dennis any credit for fee-related pleadings. See Trichilo v. Sec'y of HHS, 823 F.2d
702, 708 (2d Cir. 1987) ("If counsel makes inflated or outrageous fee demands, the
court could readily deny compensation for time spent in pressing them, since that
time would not have been reasonably spent." (internal quotation omitted)). Indeed,
I do not think it would be an abuse of discretion to award Dennis the same amount
she won for Baylor: $1,001. Steep overbilling ought to come at a steep price.
[1] For simplicity, I round all monetary figures to the nearest dollar and all
increments of time to the nearest hour.
[2] I also agree that the district court correctly disposed of Baylor's claims under
District of Columbia law. Maj. Op. 947-54. Accordingly, I join the Court's opinion
in full.
[3] It did not have the intended effect. See generally Maj. Op. 942-54; 174 F.Supp.3d
146 (D.D.C. 2016); 130 F.Supp.3d 326 (D.D.C. 2015); 77 F.Supp.3d 113 (D.D.C.
2015); 55 F.Supp.3d 43 (D.D.C. 2014).
[4] The "lodestar" method of calculating a fee award "looks to the prevailing
market rates in the relevant community." Perdue v. Kenny A., 559 U.S. 542, 551, 130
S.Ct. 1662, 176 L.Ed.2d 494 (2010) (internal quotation omitted). It is meant to
"produce[] an award that roughly approximates the fee that the prevailing attorney
would have received if he or she had been representing a paying client who was billed
by the hour in a comparable case." Id. (emphasis omitted).
[5] Because Baylor did not succeed on her D.C. claims, she could not seek a fee
award on them. See Brandywine Apartments, LLC v. McCaster, 964 A.2d 162, 169 (D.C.
2009) ("successful" claim required).
[6] The Laffey Matrix provides a "schedule of prevailing rates" for attorneys who
litigate in the D.C. area. Eley v. District of Columbia, 793 F.3d 97, 100-01 (D.C. Cir.
2015).
[7] Dennis said she had spent more than 110 hours on the reply but was willing to
give MRA a "discount." Supplemental Decl. of Radi Dennis ¶ 6(f) (Apr. 1, 2014).
[8] The $221,155 does not include an additional $48,195 that Dennis sought for
preparing objections to the magistrate judge's report and recommendation on the fee
award. The district court concluded that the additional $48,195 was too attenuated
from the FDCPA claim to be reimbursable. Baylor does not appeal that ruling and
MRA does not argue that the additional $48,195 is relevant to whether the earlier
request was outrageously excessive. I therefore use $221,155 as an extremely
conservative figure for the total fee request.
[9] It is one thing to make a mistake. It is quite another to bill it to someone else,
especially when it costs $39,150 (87 × $450).
[10] Lest it be forgotten, I repeat here that Dennis believes $41,990 is unreasonably
low. Br. of Appellant 22-48. I have my doubts but acknowledge that the matter is for
the district court. Morgan, 824 F.2d at 1066. The court may conclude on de novo
review of the magistrate judge's report and recommendation that a reasonable fee is
higher or lower than $41,990. If it does so, the new number will become the baseline
from which the court must decide whether Dennis's request of $221,155 was grossly
excessive.
Appellee willfully misrepresented the amount that Appellant owed. Even assessing this
evidence in the light most favorable to Appellant, what she offers by way of argument
is not enough to show a willful violation of the law. Indeed, if anything, the
interaction appears to demonstrate that Appellee was attempting to bring the interest
rate it would relay to Appellant in line with the information it had been provided
regarding this debt, rather than conjure an interest rate "on a whim," as Appellant
claims. See Dkt. No. 84-4, Ex. 3, at 13 (noting that the "interest amount" had been
calculated through "8-12-11," that the interest rate was 3.75%, and that the last date
Appellant had paid was 10-21-11); Appellee's Opposition to Motion to Compel, Dkt.
No. 71, at 4 (describing this document as the "account referral and suit authorization
from" Sunrise to Appellee). In other words, the uncontested facts hardly support an
inference that Appellee acted to willfully violate the law.
In light of the record before us, and after having reviewed the claims de novo, we
affirm the District Court's decision to grant Appellee's Motion for Summary
Judgment on Appellant's DCDCL claims.
III. CONCLUSION
For the reasons set forth above, we remand the District Court's Order awarding
Appellant attorney's fees in relation to her FDCPA claim so that it may review the
Magistrate Judge's Report and Recommendation on this matter de novo. We affirm all
of the other Orders challenged in this appeal.
KAREN LeCRAFT HENDERSON, Circuit Judge, concurring:

It is a time-honored bargaining tactic: make an unreasonable opening offer in an
effort to "anchor" the ensuing give-and-take to an artificially high (or low) range of
prices. Russell Korobkin, Aspirations and Settlement, 88 CORNELL L. REV. 1, 32
(2002). Even if the offer has no basis in reality and is rejected out of hand, it may for
psychological reasons yield an artificially high (or low) final price. Id. at 32 & nn.151-
53 (citing evidence that people "often begin [a negotiation] with a reference value ...
and then adjust from that point to arrive at their final determination," even if starting
point does "not bear a rational relationship to the item subject to valuation"). That
may be fine for selling a car or conducting a business negotiation. But a request for
attorney's fees is not a negotiation.
Federal fee-shifting statutes typically authorize the recovery of a reasonable
attorney's fee. If a party seeks more than that — making an excessive demand in
hopes that the award, although short of the demand, will be artificially high — a
district court can impose a sanction to deter future violations and to protect the
integrity of its proceedings. In particular, the court has discretion to deny an award
altogether or "impose a lesser sanction, such as awarding a fee below what a
'reasonable' fee would have been." Envtl. Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258
(D.C. Cir. 1993).
I say all this because Radi Dennis, counsel for plaintiff Demetra Baylor, made what
I consider a grossly excessive fee request. In Baylor's name, Dennis sought p.955 a
total of $221,155 for her work on Baylor's $1,001 settlement and on the fee request
itself.[1] The $221,155 demand was more than five times the $41,990 that a magistrate
Revenue Service. The district court granted the Bank's motion for summary
judgment on the ground that it was entitled to judicial foreclosure. The court also
dismissed Henderson's counterclaims for (1) "declaratory and injunctive relief based
on plaintiff's failure to follow the proper procedures to foreclose a deed of trust in
the District of Columbia," (2) "violations of the Fair Debt Collection Practices Act,"
(3) quiet title, (4) "violations of the Fair Credit Reporting Act," and (5) civil
conspiracy. Id. at 43-44. Henderson appeals the district court's grant of summary
judgment to the Bank and the dismissal of his counterclaims. This court appointed
Paul F. Enzinna as amicus curiae to present arguments in support of Henderson's
position and we are grateful for his able, though unavailing, efforts.
II. Analysis
This case presents two questions: (1) whether the grant of summary judgment was
proper given the dispute about the validity of the assignment to the Bank and (2)
whether Henderson's counterclaims were properly dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(6). We affirm both the district court's grant of
summary judgment and its dismissal of Henderson's counterclaims.
A. Summary Judgment
We review a grant of summary judgment de novo. Aref v. Lynch, 833 F.3d 242, 250
(D.C. Cir. 2016). Summary judgment is appropriate when, "viewing the evidence and
the inferences which may be drawn therefrom in the light most favorable to the
adverse party," Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342, 1345 (D.C. Cir.
2007), "there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law," FED. R. CIV. P. 56(a).
Henderson does not deny that he is in default on the Note, nor does he contest
the validity of the Note or the Deed. The Bank attached a copy of the Note as Exhibit
B of its verified complaint and further asserted that it is the rightful owner of the
Note and the successor in interest to the original trustee listed in the allonge to the
Note. Because Henderson provided no evidence to indicate the Bank is not the
rightful holder of the Note, there is no genuine dispute of material fact that the Bank
holds the Note. See Neal v. Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992) (verified
complaint may be treated as the "functional equivalent of an affidavit" for purposes
of summary judgment (internal quotation marks omitted)). Because D.C. law allows
the holder of a note to enforce the deed of p.33 trust by judicial foreclosure, see Szego
v. Kingsley Anyanwutaku, 651 A.2d 315, 317 (D.C. 1994), the district court properly
entered summary judgment for judicial foreclosure.
B. Henderson's Counterclaims
The district court dismissed Henderson's counterclaims under Rule 12(b)(6),

which decision we review de novo. Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173
(D.C. Cir. 2006). "In determining whether a complaint states a claim, the court may
consider the facts alleged in the complaint, documents attached thereto or
incorporated therein, and matters of which it may take judicial notice." Id. Here,
however, the district court relied upon facts outside the pleadings (and not within
the scope of judicial notice). For example, in dismissing Henderson's claim for
injunctive and declaratory relief, the district court relied upon Exhibit E of the Bank's
complaint as disproving Henderson's allegation that the Bank failed to provide notice
of foreclosure counseling. 107 F.Supp.3d at 46. Similarly, in dismissing Henderson's
claim to quiet title, the district court relied upon Exhibit C of the Bank's complaint
(the Deed of Trust). Id. at 47. Although the district court did not characterize the
motion to dismiss as a motion for summary judgment under Rule 56, FED. R. CIV.
P. 12(d), it effectively treated the motion as such, see Ctr. for Auto Safety v. Nat'l Highway
Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). Because "both sides had a
reasonable opportunity to present evidence and there are no genuine issues of
material fact," Wiley v. Glassman, 511 F.3d 151, 160-61 (D.C. Cir. 2007), we, too, shall
treat the motion as one for summary judgment.
1. Federal and District of Columbia foreclosure procedures
Henderson counterclaimed for declaratory and injunctive relief, arguing the Bank
did not fulfill the requirements of federal and D.C. law to foreclose on a house. 107
F.Supp.3d at 46.
He argues the Bank was required by the National Housing Act, 12 U.S.C. §
1701x(c)(5), to provide him notice of the "availability of homeownership counseling"
and, under D.C. Code §§ 42-815 & 42-815.02, to provide him notice of his right to
"foreclosure mediation." The Bank's law firm did, however, send Henderson a letter
dated May 17, 2013 advising him of his default and of a telephone number to call for
homeownership counseling. 107 F.Supp.3d at 46. Henderson does not explain why
this was insufficient notice. Insofar as Henderson maintains that D.C. law requires
mediation prior to judicial foreclosure, he is, as the district court noted, clearly
mistaken. Id. (citing Rogers v. Advance Bank, 111 A.3d 25, 29 (D.C. 2015)).
Like the district court, we do not address Henderson's threadbare allegation that
the Bank violated certain "Pooling and Servicing" and "trust" agreements. Id. at 46
n.7. "A pro se complaint ... must be held to less stringent standards than formal
pleadings drafted by lawyers. But even a pro se complainant must plead factual matter
that permits the court to infer more than the mere possibility of misconduct."
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (citations and
internal quotation marks omitted).
2. Fair Debt Collection Practices Act
Henderson alleges the Bank violated the FDCPA, 15 U.S.C. § 1692 et seq., in several
ways. That statute, however, applies only to a "debt collector" as it defines the term.
The district court held the Bank was a not a "debt collector," 107 F.Supp.3d at 47,
and we agree.
p.34 The FDCPA creates two "mutually exclusive" categories, debt collectors and
creditors, but only debt collectors are regulated by the statute. McKinney v. Cadleway
Properties, Inc., 548 F.3d 496, 498 (7th Cir. 2008). Under the FDCPA, a debt collector
is one
who uses any instrumentality of interstate commerce or the mails in any
business [1] the principal purpose of which is the collection of any debts, or [2]
who regularly collects or attempts to collect, directly or indirectly, debts owed
or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). The Bank is neither type of debt collector. There is no
evidence to indicate the Bank's "principal" business is debt collection. Nor is the debt
the Bank is seeking to collect "due another"; on the contrary, the debt is due to the
Bank as the current holder of the Note and Deed of Trust. That the debt was already
in default when the Bank purchased it did not make the Bank a debt collector. See
Henson v. Santander Consumer USA Inc., ___ U.S. ___, 137 S.Ct. 1718, 1723-24, 198
L.Ed.2d 177 (2017) (an entity collecting a debt for its own account is not a "debt
collector" under the FDCPA even if it purchased the debt when it was in default).
Therefore, Henderson's counterclaim under the FDCPA must fail.
3. Quiet Title
Henderson seeks to quiet title and asserts in his counterclaim that the Bank has no
right to the property, of which he is the owner in fee simple. As the Bank and district
court pointed out, however, this assertion is contradicted by the Deed of Trust signed
by Henderson. 107 F.Supp.3d at 47.
The Bank has carried its burden of showing there is no genuine dispute of material
fact with respect to this counterclaim. Therefore, summary judgment for the Bank is
proper.
4. Fair Credit Reporting Act
The district court dismissed Henderson's counterclaim under the FCRA on the
ground that "there is no private cause of action for the alleged violations." 107
F.Supp.3d at 47. We need not pass upon that proposition because Henderson does
not challenge it in his brief on appeal and therefore has forfeited this claim. See Fed.
Election Comm'n v. Craig for U.S. Senate, 816 F.3d 829, 845 (D.C. Cir. 2016).
5. Civil Conspiracy
The district court also dismissed Henderson's civil conspiracy claim for failure to
state "with particularity the circumstances constituting fraud," as required by Federal
Rule of Civil Procedure 9(b), and to provide evidence "to support an inference of an
agreement among the alleged conspirators," to wit, the Bank, "unknown new
investors," and the Bank's counsel. 107 F.Supp.3d at 48. Henderson reiterates his
claim for civil conspiracy in his brief on appeal, but still refers us to no facts to
indicate the Bank entered into any agreement with anyone to defraud him. Because
Henderson has failed to meet the heightened pleading requirements for fraud, we
affirm the dismissal of this counterclaim.
more than $220,000 in fees for a successful FDCPA claim worth only $1,001.00 to
her client." Id. at 122. But the court discerned no clear error in the magistrate judge's
recommendation against a sanction. Id. at 118-19. Because a fee award under the
FDCPA "is mandatory in all but the most unusual circumstances," the court was
reluctant to deny the fee request in its entirety. Id. at 119 (quoting Carroll v. Wolpoff
& Abramson, 53 F.3d 626, 628 (4th Cir. 1995)). And in light of the already "significant
reduction" to $41,990 — a reduction the magistrate judge deemed necessary to make
the award reasonable — the court was unpersuaded that any punitive reduction was
necessary. Id.
Both sides appealed. Baylor claims the award is too low and MRA claims it is too
high.
II. ANALYSIS
We and other courts of appeals have held, in several different statutory contexts,
that a court may punish an intolerably excessive fee request by denying any award at
all. See, e.g., Envtl. Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258 (D.C. Cir. 1993)
(Resource Conservation and Recovery Act, 42 U.S.C. § 6972(e)); Jordan v. Dep't of
Justice, 691 F.2d 514, 518 & n.37 (D.C. Cir. 1982) (Freedom of Information Act, 5
U.S.C. § 552(a)(4)(E)); see also, e.g., Scham v. District Courts Trying Criminal Cases, 148
F.3d 554, 556-59 (5th Cir. 1998) (Civil Rights Attorney's Fees Awards Act, 42 U.S.C.
§ 1988(b)), abrogated on other grounds as noted in Bailey v. Mississippi, 407 F.3d 684, 686-
87 (5th Cir. 2005); Fair Hous. Council v. Landow, 999 F.2d 92, 96-98 (4th Cir. 1993)
(same); Lewis v. Kendrick, 944 F.2d 949, 958 (1st Cir. 1991) (same); Brown v. Stackler,
612 F.2d 1057, 1059 (7th Cir. 1980) (same). We have also recognized the authority
to "impose a lesser sanction, such as awarding a fee below what a 'reasonable' fee
would have been in order to discourage fee petitioners from submitting an excessive
request." Reilly, 1 F.3d at 1258.
The district court was hesitant to deny Baylor's fee request in toto because the
FDCPA provides for mandatory fee shifting. 77 F.Supp.3d at 119. The concern is
understandable but goes only so far. True, the cases listed above involved statutes
p.958 under which a court "may" award a fee, 5 U.S.C. § 552(a)(4)(E); 42 U.S.C. §§
1988(b), 6972(e), whereas the FDCPA provides that a defendant "is liable" for a fee,
15 U.S.C. § 1692k(a). But at least two courts of appeals have suggested the FDCPA
permits outright denial in "unusual circumstances." Carroll, 53 F.3d at 628 (4th Cir.);
Graziano v. Harrison, 950 F.2d 107, 114 & n.13 (3d Cir. 1991). And even assuming
arguendo that some "reasonable" fee is always required, 15 U.S.C. § 1692k(a)(3), the
statutory text does not preclude a court from deciding — consistent with its inherent
authority to protect the integrity of its proceedings, Chambers v. NASCO, Inc., 501
U.S. 32, 42-51, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) — that a "reasonable" fee in
response to an exorbitant request is a nominal amount approaching zero.
I do not dispute that, if one leaves aside the magnitude of the fee request, $41,990
is reasonable — or at least represents a non-reversible determination of
reasonableness within the district court's broad discretion. See Morgan v. District of
Columbia, 824 F.2d 1049, 1066 (D.C. Cir. 1987) ("[W]e are ill-positioned to second
guess the [district] court's [fee] determination."). Nor do I contend that the court
must exercise its discretion to reduce the award for punitive reasons. But in deciding
Chiang v. Verizon New England Inc., 595 F. 3d 26 (1st Cir. 2010) 35
595 F.3d 26 (2010)

Wen Y. CHIANG, Plaintiff, Appellant,
v.
VERIZON NEW ENGLAND INC., Defendant, Appellee.
No. 09-1214.
United States Court of Appeals, First Circuit.
Heard December 9, 2009.
Decided February 9, 2010.
Chiang v. Verizon New England Inc., 595 F. 3d 26 (1st Cir. 2010)
p.29 Dean Carnahan with whom Law Offices of Dean Carnahan were on brief for
appellant.
Joshua A. Lewin with whom William A. Worth and Prince, Lobel, Glovsky & Tye
LLP were on brief for appellee.
Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
LYNCH, Chief Judge.
In July 2006, plaintiff Wen Y. Chiang sued his telecommunications company,
Verizon New England Inc. (Verizon NE), in state court, alleging in part that the
company had billed his account for telephone service he had not ordered. Chiang
filed a second state court suit against Verizon NE in February 2007 over a billing
dispute triggered by Chiang's conceded failure to pay telephone bills on two
accounts, totaling approximately $200. Chiang's substantive billing disputes with
Verizon NE were resolved in these state court lawsuits and are not at issue here.
In November 2006, Chiang brought this suit against Verizon NE in Massachusetts
federal court, seeking more than $1 million for claimed violations of his rights under
§ 1681s-2(b) of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and
under the Fair Debt Collection Practices Act (FDCPA), id. § 1692 et seq., as to
Verizon NE's handling of the disputes resolved in state court. The district court
granted summary judgment for Verizon NE on all of Chiang's claims in January 2009.
Chiang v. Verizon New England, Inc., No. 06-cv-12144-DPW, 2009 WL 102707
(D.Mass. Jan. 13, 2009). Chiang appeals from the grant of summary judgment.
In particular, Chiang asserts that Verizon NE, as a furnisher of information, failed
to adequately investigate disputes about the furnished information reported to it by
consumer reporting agencies (CRAs), as required under the FCRA. 15 U.S.C. §
1681s-2(b). He also alleges that Verizon NE was a debt collector and its practices
were abusive, in violation of the FDCPA. Id. § 1692a. Creditors are generally not
liable under the FDCPA when collecting on their own accounts, but Chiang asserts
that Verizon NE falls within a limited exception for creditors who collect their own
debts under a name that suggests a third party is collecting the account. Id. § 1692a(6).
His claims raise several issues of first impression for our court. They include
whether § 1681s-2(b) of the FCRA provides for a private right of action and the
standards for asserting a claim under that section. We join other circuits in
recognizing that under § 1681s-2(b) there is a private cause of action, that the
investigation must be reasonable, that this test is objective, and that plaintiff bears
the burden of proof. We further hold that a p.30 § 1681s-2(b) claim requires plaintiff
to show actual inaccuracies that a furnisher's objectively reasonable investigation
would have been able to discover. However, we reject the defendant's argument that
the restriction in an earlier section of the statute, id. § 1681s-2(a)(1)(D), which
precludes reliance on a plaintiff's allegations for the purposes of that subsection,
applies to a plaintiff's own assertions in support of his claim under § 1681s-2(b).
We affirm summary judgment for Verizon NE on the FCRA § 1681s-2(b) claims,
because Chiang fails to raise a genuine issue of material fact on two issues on which
he bears the burden: (1) that Verizon NE's investigation as a furnisher to CRAs was
unreasonable and (2) that there were actual inaccuracies that Verizon NE could have
detected in a reasonable investigation. We also affirm entry of summary judgment
on Chiang's FDCPA claim because there is no material dispute of fact that Verizon
NE is not a debt collector.
I.
When reviewing a grant of summary judgment, we draw all reasonable inferences

in favor of the nonmoving party "while ignoring conclusory allegations, improbable
inferences, and unsupported speculation." Sutliffe v. Epping Sch. Dist., 584 F.3d 314,
325 (1st Cir.2009) (internal quotation marks omitted). Chiang's argument is that the
court drew the wrong legal conclusions from the undisputed facts. Accordingly,
"[w]e take the facts largely as described by the district court and from the record of
the district court proceedings." Boston & Me. Corp. v. Mass. Bay Transp. Auth., 587 F.3d
89, 92 (1st Cir.2009).
A. Background: Chiang's Disputes with Verizon NE over His Telephone

Service and the State Court Litigation
The merits of Chiang's disagreements with Verizon NE are not at issue in this case
and have already been resolved in state court litigation. However, we outline these
disputes to clarify the events that triggered the debt collection and credit reporting
practices at issue in this federal case.
Chiang is the president of a residential construction and painting company in
Massachusetts, which, Chiang says, also engages in international trade. At various
points between 2005 and 2007, Chiang obtained telephone service on two lines from
Verizon NE, a telecommunications company that conducts business in
Massachusetts. During this period, Chiang had several disputes with Verizon NE
over his service on both accounts. How Verizon NE handled these disputes is the
subject of Chiang's federal litigation.
The first disagreement involved Chiang's assertion that Verizon NE charged him
from July to November 2005 for long distance service on one line that he says he
had not ordered. Chiang alleged in his affidavit, but provided no documentation, that
he discussed these charges with a Verizon NE representative in November 2005 but
that the company did not follow through on its promise to correct his bill.
satellite fee litigation, which is "one of the least socially productive types of litigation
imaginable" (internal quotation omitted)). For fee-shifting to work properly, a court
must be able to depend on counsel for a measured accounting from the outset.
Dennis's accounting was nowise measured.
In the event the district court concludes on remand that the fee request was grossly
excessive, such that the award needs to be further reduced, the following
considerations may aid its calculation. First, for reasons already explained, I think the
court should award $325 per hour instead of $450. Second, I think the court may
deny Dennis any credit for fee-related pleadings. See Trichilo v. Sec'y of HHS, 823 F.2d
702, 708 (2d Cir. 1987) ("If counsel makes inflated or outrageous fee demands, the
court could readily deny compensation for time spent in pressing them, since that
time would not have been reasonably spent." (internal quotation omitted)). Indeed,
I do not think it would be an abuse of discretion to award Dennis the same amount
she won for Baylor: $1,001. Steep overbilling ought to come at a steep price.
[1] For simplicity, I round all monetary figures to the nearest dollar and all
increments of time to the nearest hour.
[2] I also agree that the district court correctly disposed of Baylor's claims under
District of Columbia law. Maj. Op. 947-54. Accordingly, I join the Court's opinion
in full.
[3] It did not have the intended effect. See generally Maj. Op. 942-54; 174 F.Supp.3d
146 (D.D.C. 2016); 130 F.Supp.3d 326 (D.D.C. 2015); 77 F.Supp.3d 113 (D.D.C.
2015); 55 F.Supp.3d 43 (D.D.C. 2014).
[4] The "lodestar" method of calculating a fee award "looks to the prevailing
market rates in the relevant community." Perdue v. Kenny A., 559 U.S. 542, 551, 130
S.Ct. 1662, 176 L.Ed.2d 494 (2010) (internal quotation omitted). It is meant to
"produce[] an award that roughly approximates the fee that the prevailing attorney
would have received if he or she had been representing a paying client who was billed
by the hour in a comparable case." Id. (emphasis omitted).
[5] Because Baylor did not succeed on her D.C. claims, she could not seek a fee
award on them. See Brandywine Apartments, LLC v. McCaster, 964 A.2d 162, 169 (D.C.
2009) ("successful" claim required).
[6] The Laffey Matrix provides a "schedule of prevailing rates" for attorneys who
litigate in the D.C. area. Eley v. District of Columbia, 793 F.3d 97, 100-01 (D.C. Cir.
2015).
[7] Dennis said she had spent more than 110 hours on the reply but was willing to
give MRA a "discount." Supplemental Decl. of Radi Dennis ¶ 6(f) (Apr. 1, 2014).
[8] The $221,155 does not include an additional $48,195 that Dennis sought for
preparing objections to the magistrate judge's report and recommendation on the fee
award. The district court concluded that the additional $48,195 was too attenuated
from the FDCPA claim to be reimbursable. Baylor does not appeal that ruling and
MRA does not argue that the additional $48,195 is relevant to whether the earlier
request was outrageously excessive. I therefore use $221,155 as an extremely
conservative figure for the total fee request.
p.32 Chiang says that at least one of the collection agencies used profane, abusive
language and called repeatedly, despite his request that he not be contacted by
telephone.
The collection letters identified Chiang's creditor by a variety of names, including
"Verizon-North," "Verizon North NE (MASS R)," and "Verizon New England Inc."
Chiang also claims to have received notice from a collection agency and his "credit
alert company" that "Verizon Massachusetts, Inc.," based in Columbus, Ohio, was
seeking payment on his delinquent account. At the time, he believed that "Verizon
Massachusetts, Inc." was an independent corporation that collected debts for
Verizon NE.
2. FCRA Claim
Turning to facts pertinent to Chiang's FCRA claim, in addition to letters from debt
collection agencies, Chiang received communications from CRAs, including Equifax
and TransUnion, reflecting his delinquent Verizon NE accounts. Chiang responded
to these credit reports with demand letters to the CRAs, in which he requested that
the CRAs remove this information from his account or list it as disputed. Eight of
Chiang's demand letters to the CRAs were in evidence before the district court.[4]
While those letters provide background, the FCRA claim against Verizon NE is not
and cannot be based on what Chiang told the CRAs. The claim is instead based on
the communications from the CRAs to Verizon NE and Verizon NE's response.
The evidence about the CRAs' communication with Verizon NE about Chiang's
assertions and Verizon NE's response did not come from Chiang, but from Verizon
NE. Verizon NE's undisputed evidence is that its corporate affiliate, Verizon
Services Corp. (Verizon), contracts with the Columbus, Ohio-based company Credit
Bureau Collection Services, Inc. (CBCS) for all consumer-reporting related activities.
Verizon NE has conceded that, under agency law, Verizon NE is liable if CBCS
violates the FCRA while acting within the scope of its contractual duties. So we
review both the actions of CBCS and of Verizon NE.
CBCS, Verizon NE's agent, is responsible for initially transmitting consumer credit
information to the CRAs. Verizon sends CBCS information about delinquent
accounts every month. CBCS separates out accounts whose balances exceed $50 and
have not been paid after sixty days and converts data for these accounts into the
digital format used by CRAs. It then transmits this information to the CRAs.
The CRAs also notify CBCS, through an online reporting system, when a
consumer disputes his credit information. These reports of disputes trigger the
protections of 15 U.S.C. § 1681s-2(b), the statute at issue here. CBCS then
investigates consumer disputes by going electronically into Verizon NE's account
and billing records (to which Verizon has given CBCS access), in order to determine
the accuracy of information provided to CRAs. CBCS contacts Verizon employees
when CBCS is unable to verify the accuracy or completeness of a particular
consumer's credit information based on the available records alone. Verizon
designates at least one employee to monitor CBCS's credit reporting activities.
The evidence, provided by Verizon NE, is that CBCS received twelve inquiries
p.33 from CRAs, over about six months between late 2006 and 2007, about the
accuracy of Chiang's reported credit information through its online reporting system.
The record contains twelve summary reports, recovered from the CBCS system, that
relate to CRA inquiries about Chiang's account.[5] These one-page reports indicate
that Chiang's disputes were described by the CRAs variously as "[c]laims inaccurate
information," "[c]laims paid the original creditor before collection status or paid
before charge-off," "consumer disputes the balance of this account and states
account is in [state and federal lawsuits]," "claims that this account was never paid
late," and "[a]ccount involved in litigation." Chiang does not dispute these are the
CRA inquiries at issue, although none of them had been made when he first filed his
federal lawsuit. Verizon has no record of its personnel having been contacted by
CBCS with any additional inquiries regarding Chiang's disputes. After completing its
investigation of Chiang's reported complaints, CBCS notified the CRAs in each
instance that the information reported on Chiang's account was accurate.
C. District Court Proceedings
On November 29, 2006, Chiang filed suit in the federal district court of
Massachusetts, alleging, inter alia, violations of the FCRA and FDCPA and seeking
damages.[6] We describe specific claims below. On January 13, 2009, the district court
granted Verizon NE's motion for summary judgment. Chiang, 2009 WL 102707, at
*12.
In the course of its reasoning on the FCRA claim, the court held that Chiang had
the burden to "identify affirmatively information that a furnisher of credit
information could have uncovered through a reasonable investigation." Id. at *9-10.
The court noted that this circuit has recently announced a similar rule in the context
of CRAs' duty under the FCRA to reinvestigate information disputed by consumers.
Id. at *10 (citing DeAndrade v. Trans Union LLC, 523 F.3d 61, 67 (1st Cir.2008)). The
district court also ruled that, "absent any corroborating evidence," a plaintiff's
allegations of inaccuracies were insufficient to demonstrate information that might
have been uncovered. Id. at *10. For this reason, it said, it declined to consider
Chiang's deposition testimony, affidavits, or demand letters when deciding whether
he had demonstrated actual inaccuracies that Verizon NE could have discovered. Id.
at *11.
This appeal followed.
p.34 II.
Chiang's claims under the FCRA and the FDCPA present several pure questions
of law, including issues of statutory interpretation. The district court resolved the
case on summary judgment. Both because these are issues of law and because the
case is before us on summary judgment, our review is de novo. See Bristol W. Ins. Co.
v. Wawanesa Mut. Ins. Co., 570 F.3d 461, 463 (1st Cir.2009). We may affirm the district
court on any basis apparent in the record. Sutliffe, 584 F.3d at 325.
Although it is true that "the standards for summary judgment are highly favorable
to the nonmoving party, the nonmovant ... still has a burden to produce evidence
sufficient for a reasonable juror to find in his favor." Hinchey v. NYNEX Corp., 144
F.3d 134, 146 (1st Cir.1998); see also 10A Charles A. Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 2727, at 490 (2d ed.1998) (noting that
although "[t]he burden on the nonmoving party is not a heavy one," the party is
"required to show specific facts ... that present a genuine issue worthy of trial"). To
defeat a summary judgment motion, a party "must do more than simply show that
there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Similarly, our "indulg[ence of] all reasonable inferences" in the nonmoving party's
favor is bounded by that party's obligation to support the alleged factual controversy
with evidence that is neither "conjectural [n]or problematic." Nat'l Amusements, Inc. v.
Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995) (internal quotation marks omitted).
A. The FCRA Claim
1. There Is a Private Cause of Action against Furnishers under the FCRA, 15

U.S.C. §§ 1681n-o, 1681s-2(b), and the Alleged Breach of the Duty to
Investigate Is Evaluated under an Objective Reasonableness Standard
As a preliminary matter, we dispose quickly of the question of whether there is a

private cause of action under 15 U.S.C. § 1681s-2(b), as the question is related to our
jurisdiction. See, e.g., United States v. Hilario, 218 F.3d 19, 22 (1st Cir.2000)
("Jurisdictional issues have primacy of place in appellate review...."). We also address
the meaning of the term "investigation" in that section, a more recent addition to the
FCRA.
Congress, recognizing abuses in the burgeoning credit reporting industry,
originally "enacted FCRA in 1970 to ensure fair and accurate credit reporting,
promote efficiency in the banking system, and protect consumer privacy." Safeco Ins.
Co. of Am. v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007); see also 7
Kenneth M. Lapine et al., Banking Law § 153.02, at 153-5 to -7(2009 ed.). The FCRA
imposes obligations on CRAs and users of consumer information and provides for
enforcement by various federal agencies. See, e.g., 15 U.S.C. § 1681s. The act also
expressly creates a private cause of action, enabling consumer suits for willful or
negligent noncompliance with its requirements. Id. § 1681n-o. See generally Lapine et
al., supra § 153.03, at 153-11 to -12; id. § 153.09, at 153-128. Plaintiffs may recover
actual damages for negligent violations, 15 U.S.C. § 1681o(a)(1), and actual or
statutory and punitive damages for willful ones, id. § 1681n(a)(1)-(2); Safeco, 551 U.S.
at 53, 127 S.Ct. 2201. There is no basis for any p.35 claim of willful violations on this
record, so only actual damages are at issue.
In 1996, Congress substantially amended the FCRA, and those amendments are
involved here. See, e.g., H.R.Rep. No. 108-396, at 1753-54 (2003) (Conf. Rep.).
Among the changes adopted was a new section governing the responsibilities of so-
called "furnishers"[7] of information to CRAs. Consumer Credit Reporting Reform
Act of 1996, Pub.L. No. 104-208, ch. 1, sec. 2413, § 623, 110 Stat. 3009-426, 3009-
447 to -449 (codified as amended at 15 U.S.C. § 1681s-2). This addition was intended
to close an identified "gap in the FCRA's coverage," whereby even dutiful
investigations of consumer disputes by CRAs could be frustrated by furnishers'
irresponsible verification of inaccurate information, without legal consequence to the
furnishers. S.Rep. No. 103-209, at 6 (1993). Verizon NE is sued here as a furnisher

of information under that section.
Under § 1681s-2, furnishers may not provide inaccurate information to consumer
reporting agencies, 15 U.S.C. § 1681s-2(a)(1), and also have specific duties in the
event of a dispute over furnished information, id. § 1681s-2(b). Only the second of
these duties is subject to a private cause of action. Chiang's appeal concerns the latter
obligation — Verizon NE's investigation into disputed information. To understand
his argument, we outline both provisions of the statute.
Section 1681s-2(a) prohibits any person from "furnish[ing] any information
relating to a consumer to any consumer reporting agency if the person knows or has
reasonable cause to believe that the information is inaccurate." Id. § 1681s-2(a)(1)(A).
Congress expressly limited furnishers' liability under § 1681s-2(a) by prohibiting
private suits for violations of that portion of the statute. Id. § 1681s-2(c)(1).
Section 1681s-2(b), the provision at issue in this case, outlines a furnisher's duties
when a consumer disputes the completeness or accuracy of information in their
credit report. Under the FCRA, consumers generally notify CRAs of such disputes.
See id. § 1681i(a)(1). Although a consumer may dispute credit information directly to
a furnisher, as Chiang has done, the consumer has no private right of action if the
furnisher does not reasonably investigate the consumer's claim after direct
notification.[8]
When a customer disputes credit information to a CRA, the CRA must advise the
furnisher of that data that a dispute exists and provide the furnisher with "all relevant
information regarding the dispute that the agency has received from the consumer."
Id. § 1681i(a)(2)(A). Once notified by a CRA, a furnisher must
p.36 (A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer reporting
agency....;
(C) report the results of the investigation to the consumer reporting agency;
(D) if the investigation finds that the information is incomplete or inaccurate,
report those results to all other consumer reporting agencies to which the
person furnished the information and that compile and maintain files on
consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be inaccurate
or incomplete or cannot be verified after any reinvestigation ..., for purposes of
reporting to a consumer reporting agency only, as appropriate, based on the
results of the reinvestigation promptly — (i) modify that item of information;
(ii) delete that item of information; or (iii) permanently block the reporting of
that item of information.
Id. § 1681s-2(b)(1); see also Lapine et al., supra § 153.06, at 153-96 to -97. Although
a furnisher may choose to contact a consumer directly about a dispute reported to
the furnisher by a CRA, "requiring a furnisher to automatically contact every
consumer who disputes a debt would be terribly inefficient and such action is not
mandated by the FCRA." Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th
Cir.2005).
The question before us is whether the act as amended creates a private cause of
action for violations of § 1681s-2(b). The issue, given the exclusion of a private right
of action in subsection 2(a), is whether to read a similar exclusion into § 1681s-2(b),

despite the fact that the original statute created a private cause of action in consumers
generally. 15 U.S.C. § 1681n-o. The statute, in our view, creates a private right of
action in § 1681s-2(b).
In contrast to the express limitations on private causes of action under § 1681s-
2(a), Congress included no such restriction on violations of § 1681s-2(b). Moreover,
when it amended the FCRA to include responsibilities for furnishers, Congress
expanded the statute's private cause of action from allowing suits against CRAs and
users of consumer information to creating a cause of action against "any person"
who violated the statute. See Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057,
1060 (9th Cir.2002) ("[W]ho else except furnishers could Congress have had in mind
when it introduced 'any person' into the statute?"). Furnishers are persons who could
violate § 1681s-2(b).
We join the vast majority of courts to have considered this issue in holding that a
plain reading of the FCRA's text indicates that a private cause of action exists for
individuals seeking remedies for furnishers' violations of § 1681s-2(b). See, e.g.,
Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 149 (4th Cir.2008); Westra,
409 F.3d at 826-27; Nelson, 282 F.3d at 1060; Gordon v. Greenpoint Credit, 266 F.Supp.2d
1007, 1010-11 (S.D.Iowa 2003) (collecting cases); see also Lapine et al., supra § 153.06,
at 153-98 & n. 23 (collecting cases). But see Carney v. Experian Info. Solutions, Inc., 57
F.Supp.2d 496, 502 (W.D.Tenn.1999).
This leaves the question of the extent of a furnisher's investigation obligation
under § 1681s-2(b). The statute does not define the term "investigation" and is
apparently intended to give the furnisher some flexibility. We know that the
investigation is meant to determine if the disputed information is "incomplete or
inaccurate." Mere incompleteness, however, is not enough; the incompleteness must
be such as to make the furnished information p.37 misleading in a material sense. See
Saunders, 526 F.3d at 148 (holding that a furnisher may be held liable under § 1681s-
2(b) for failure to report information as disputed when the omission is "misleading
in such a way and to such an extent that it can be expected to [have an] adverse[]
effect") (alteration in original) (internal quotation marks omitted).[9] We agree
generally with the Fourth Circuit's observation that "[i]t would make little sense to
conclude that, in creating a system intended to give consumers a means to dispute
— and ultimately, correct — inaccurate information on their credit reports, Congress
used the term 'investigation' to include superficial, un reasonable [sic] inquiries by
creditors." Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 430-31 (4th Cir.2004)
(citing cases interpreting CRAs' analogous duty to investigate as requiring reasonable
investigations); see also Gorman, 584 F.3d at 1156-57.
We also hold that the reasonableness of the investigation is to be determined by
an objective standard. See Gorman, 584 F.3d at 1156-57. The burden of showing the
investigation was unreasonable is on the plaintiff. See Gorman, 584 F.3d at 1157;
Westra, 409 F.3d at 827; Johnson, 357 F.3d at 429-31.
There is more to a plaintiff's burden of proof. We recently considered what a
plaintiff must show in order to carry his burden in a related context under the FCRA.
In DeAndrade, we addressed a plaintiff's suit against a CRA, not a furnisher, for the
CRA's alleged failure, upon being notified of a consumer dispute, to "conduct a
reasonable re investigation to determine whether the disputed information [wa]s
incorporated therein, and matters of which it may take judicial notice." Id. Here,
however, the district court relied upon facts outside the pleadings (and not within
the scope of judicial notice). For example, in dismissing Henderson's claim for
injunctive and declaratory relief, the district court relied upon Exhibit E of the Bank's
complaint as disproving Henderson's allegation that the Bank failed to provide notice
of foreclosure counseling. 107 F.Supp.3d at 46. Similarly, in dismissing Henderson's
claim to quiet title, the district court relied upon Exhibit C of the Bank's complaint
(the Deed of Trust). Id. at 47. Although the district court did not characterize the
motion to dismiss as a motion for summary judgment under Rule 56, FED. R. CIV.
P. 12(d), it effectively treated the motion as such, see Ctr. for Auto Safety v. Nat'l Highway
Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). Because "both sides had a
reasonable opportunity to present evidence and there are no genuine issues of
material fact," Wiley v. Glassman, 511 F.3d 151, 160-61 (D.C. Cir. 2007), we, too, shall
treat the motion as one for summary judgment.
1. Federal and District of Columbia foreclosure procedures
Henderson counterclaimed for declaratory and injunctive relief, arguing the Bank
did not fulfill the requirements of federal and D.C. law to foreclose on a house. 107
F.Supp.3d at 46.
He argues the Bank was required by the National Housing Act, 12 U.S.C. §
1701x(c)(5), to provide him notice of the "availability of homeownership counseling"
and, under D.C. Code §§ 42-815 & 42-815.02, to provide him notice of his right to
"foreclosure mediation." The Bank's law firm did, however, send Henderson a letter
dated May 17, 2013 advising him of his default and of a telephone number to call for
homeownership counseling. 107 F.Supp.3d at 46. Henderson does not explain why
this was insufficient notice. Insofar as Henderson maintains that D.C. law requires
mediation prior to judicial foreclosure, he is, as the district court noted, clearly
mistaken. Id. (citing Rogers v. Advance Bank, 111 A.3d 25, 29 (D.C. 2015)).
Like the district court, we do not address Henderson's threadbare allegation that
the Bank violated certain "Pooling and Servicing" and "trust" agreements. Id. at 46
n.7. "A pro se complaint ... must be held to less stringent standards than formal
pleadings drafted by lawyers. But even a pro se complainant must plead factual matter
that permits the court to infer more than the mere possibility of misconduct."
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (citations and
internal quotation marks omitted).
2. Fair Debt Collection Practices Act
Henderson alleges the Bank violated the FDCPA, 15 U.S.C. § 1692 et seq., in several
ways. That statute, however, applies only to a "debt collector" as it defines the term.
The district court held the Bank was a not a "debt collector," 107 F.Supp.3d at 47,
and we agree.
p.34 The FDCPA creates two "mutually exclusive" categories, debt collectors and
creditors, but only debt collectors are regulated by the statute. McKinney v. Cadleway
If a CRA fails to provide "all relevant information" to a furnisher, then the

consumer has a private cause of action against the CRA, 15 U.S.C. §§ 1681i(a)(2)(A),
1681n-o, but not against the furnisher.
We measure this case against these standards.
2. Summary Judgment Was Appropriate on Chiang's FCRA Claim for Two

Independently Sufficient Reasons
Against this backdrop, we hold that summary judgment was appropriate on

Chiang's FCRA claim, since Chiang failed to raise a genuine issue of material fact
that the investigation was unreasonable and also, independently, because he failed to
show any actual inaccuracies that Verizon NE could have found through a
reasonable investigation. Chiang has presented no evidence that the procedures
employed by Verizon NE to investigate the reported disputes were unreasonable.
Indeed, Chiang neither sought discovery on nor produced any evidence whatsoever
about the procedures Verizon NE, through its agent CBCS, used. The only evidence
on this point consists of a Verizon employee's uncontested affidavit detailing the
procedures followed by Verizon NE's agent, CBCS, procedures which are, on their
face, not unreasonable.[10] Chiang's failure to demonstrate actual inaccuracies in the
furnished information that a reasonable investigation could have discovered is p.39 a
separate, sufficient basis for summary judgment.
As an initial matter, we reject Verizon NE's argument that we should categorically
exclude Chiang's affidavit, testimony, and letters from consideration when deciding
whether his claim should survive summary judgment. Verizon NE relies on language
in § 1681s-2(a)(1), which prohibits furnishers from knowingly reporting inaccurate
information to CRAs in the first instance. That language, "[f]or purposes of
subparagraph (A) [of § 1681s-2(a)(1)]," defined a furnisher's "reasonable cause to
believe that [furnished] information is inaccurate" as "having specific knowledge,
other than solely allegations by the consumer." 15 U.S.C. § 1681s-2(a)(1)(D) (emphasis
added).
To start, the statute's plain language restricts this provision to subparagraph (A) of
§ 1681s-2(a)(1), which reads in part: "A person shall not furnish any information
relating to a consumer to any consumer reporting agency if the person knows or has
reasonable cause to believe that the information is inaccurate." Id. § 1681s-2(a)(1)(A).
It does not refer to the section of the FCRA of concern to us. Even more, the section
of concern to us, § 1681s-2(b), does not mention a furnisher's "reasonable cause to
believe," nor did Congress otherwise add language about a special evidentiary rule to
subsection (b).
Absent such clear direction from the statutory text, we see no reason to adopt a
per se rule excluding a plaintiff's affidavits, testimony, or letters when considering
summary judgment on a claim under § 1681s-2(b). See Fed.R.Civ.P. 56(c)(2)
(specifying that summary judgment is appropriate only when "the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact") (emphasis added).[11] As the Supreme Court
recently noted in a different context, it is not "necessary or desirable for courts to
create special burden-of-proof rules, or other special procedural or evidentiary rules."
Metro. Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343, 2351, 171 L.Ed.2d 299
(2008).
To say that plaintiffs' own allegations are not per se excluded does not excuse them
from having to meet the normal evidentiary requirements that they be relevant and
competent. The assertions made in Chiang's affidavit and letters are largely irrelevant
to the FCRA claim at issue. And even accepting these materials at face value, Chiang's
unsupported allegations and unlikely inference raise no genuine issues of material
fact. See, e.g., Hoyos v. Telecorp Commc'n, Inc., 488 F.3d 1, 9 (1st Cir.2007).
We go back to the relevant evidence. Chiang relies solely on his own statements
that Verizon NE was inaccurate in reporting he had not paid bills due and owing and
his assertions that he had discussed his disputes with Verizon NE representatives,
and he urges us to infer that, as a result, a reasonable investigation would have
revealed Verizon NE's purported awareness of inaccuracies in his account. In
particular, Chiang cites his affidavit, in which he details alleged overcharges to his
account and conversations with Verizon NE representatives regarding these charges
that he says took place in November 2005 and August 2006. Chiang also p.40 relies
on several letters he sent to Verizon NE. Two of these letters are chapter 93A
demand letters, dated May 16, 2006 — before Chiang's first state court lawsuit —
threatening litigation if alleged errors in billing on his two accounts were not
corrected. The third, dated September 15, 2006, was sent to Verizon NE's attorney
in the midst of Chiang's first state court suit and also threatened legal action if
Verizon NE did not correct alleged overcharges.
At most, Chiang's proffered evidence would have shown that Verizon NE was
aware he disputed the claimed amount and that, as of July 2006, the dispute was in
state court. Chiang's allegations are consistent with Verizon NE having reviewed his
account and billing history and confirmed that the factual information, while
disputed, was nonetheless accurate. Cf. Gorman, 584 F.3d at 1159-60. Despite ample
opportunity over two years of pretrial proceedings, Chiang neither requested nor
produced any evidence inconsistent with this information being accurate.
Also significant is that CBCS received only cursory notices from the CRAs, which
were generalized and vague about the nature of Chiang's disputes. The summary
reports in CBCS's online filing system indicate that the information reported largely
consisted of broad, non-specific statements. We take them in turn.
Two reports said that Chiang "claims that this account was never paid late."
However, Chiang has conceded that, beginning in August 2006, he did not pay any
part of at least some of his disputed bills — so that cannot be the basis for an
inaccuracy. Nor, for the same reason, can two other reports, which indicated that
Chiang claimed to have "paid the original creditor before collection status or paid
before charge-off."
Five reports said that Chiang "[c]laims inaccurate information," which was not in
the least bit specific as to what information was disputed. Finally, several reports
essentially said that the consumer disputed the account and the account was involved
in litigation, which was true, was not challenged by Verizon NE, and again, provided
no guidance as to either the specific information that was disputed or the basis for
the dispute.
None of these reports alerted CBCS to which of the allegedly erroneous charges
underlying Chiang's dispute was inaccurate. Nor did they evidence that a more
searching inquiry may have been necessary. See Westra, 409 F.3d at 827 (holding that
a furnisher was entitled to summary judgment on § 1681s-2(b) claim because merely
verifying that account information was accurate as reported was reasonable, given
"scant information" received from the CRA); see also Gorman, 584 F.3d at 1157-58.
We repeat that an investigation under § 1681s-2(b) is geared to the information
provided by the CRA to the furnisher; if the CRA fails in its obligation to provide
"all relevant information regarding the dispute," 15 U.S.C. § 1681i(a)(2)(A), then
there is a claim against the CRA but not the furnisher.
Plaintiff's behavior in refusing to engage in discovery or provide any information
about the reasonableness of Verizon NE's investigation procedures cannot be a
shortcut to trial on the merits. The fact that Chiang put on evidence that he told
Verizon NE he disputed various bills does not itself raise a reasonable inference that
Verizon NE, through CBCS, conducted an unreasonable investigation or that the
furnished information was not accurate. That evidence is not enough. See, e.g., Nat'l
Amusements, Inc., 43 F.3d at 735.[12]
p.41 Independently, we agree with the district court's application of our holding in
DeAndrade to conclude that Chiang was required to present evidence of actual
inaccuracies in his account that an alternative investigation might have uncovered.
He has not done so.
Chiang's affidavit and letters show that he had several disagreements with Verizon
NE over his billing, which extended into state court litigation; Verizon NE does not
dispute this. Chiang has not, however, demonstrated that any of his substantive
disputes with Verizon NE involved actual, factual inaccuracies in his billing that a
reasonable investigation could have detected. To the extent that his argument
reduces to the claim that any investigation that did not accept his allegations as
accurate was by definition unreasonable, it fails. For this reason, too, summary
judgment was appropriate on Chiang's FCRA claim.
B. Summary Judgment Was Appropriate on Chiang's FDCPA Claim
Summary judgment was also appropriate on Chiang's FDCPA claim. We agree

with the district court's determination that Verizon NE does not qualify as a "debt
collector" under the statute. Chiang's assertions to the contrary are either wholly
unsupported by the record or waived.
The FDCPA was enacted to protect debtors from abusive debt collection
practices. 15 U.S.C. § 1692(e); see also Lapine et al., supra § 155.02, at 155-6. To that
end, it regulates debt collectors' tactics and, inter alia, creates a private cause of action
for victims of "oppressive or offensive collection agency behavior." Lapine et al.,
supra § 155.02, at 155-6. The statute defines "debt collector" as any individual in a
business whose "principal purpose ... is the collection of any debts, or who regularly
collects or attempts to collect ... debts owed or due or asserted to be owed or due to
another." 15 U.S.C. § 1692a(6).
Creditors collecting on their own accounts are generally excluded from the statute's
reach. Id. § 1692a(6)(F)(ii); cf. Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 22 n. 4 (1st
had expressed its willingness to compensate Chiang for days when he was without
service under these tariffs, the court entered summary judgment in Chiang's favor
"on th[e] limited issue" of his "entitlement to the proportion of service charges he
paid during the days he was without service."
[3] Although the precise amount owed varied in the collection letters, the majority
of the letters requested payment on Chiang's two accounts, which were delinquent
in the amounts of $119.20 and $100, respectively.
[4] Of these eight demand letters, three were addressed to Equifax, dated
November 24, 2006, April 25, 2007, and May 15, 2007; three were addressed to
TransUnion, dated November 30, 2006, December 4, 2006, and December 16, 2006;
and two were addressed to Experian, dated November 30, 2006, and December 4,
2006. Only one of these letters had been mailed when Chiang initiated his federal
lawsuit on November 29, 2006.
[5] Each of the twelve summary reports contains information about a particular
dispute reported to CBCS by a CRA. Information presented in each report includes:
the name and address of the CRA that reported the dispute at issue; the dates on
which the notification was received and CBCS's response was sent; the disputed
account's balance and payment information; a brief description of "FCRA Relevant
Information," that is, the basis for Chiang's complaint; and the response sent to the
CRA. All twelve reports indicate that CBCS responded to the various CRAs,
"Account information accurate as of date reported." The earliest report is dated
December 6, 2006 — more than a week after Chiang filed his federal lawsuit — and
the last is dated May 25, 2007. Five reports are from December 2006, three from
March 2007, and the remaining four from May 2007.
[6] Chiang claims that the negative credit information related to his Verizon NE
accounts prevented him from securing a $500,000 loan. Although Chiang has never
earned more than $59,000 in a year, he alleges that his failure to secure this loan
prevented him from participating in an international business deal with a total
contract value of more than $200 million. Chiang has variously estimated his lost
profits from this missed opportunity at $500,000, $8 million, $27.5 million, and $80
million.
[7] Any person with relevant data about a consumer's financial activity may
voluntarily provide it to a CRA, but "[t]he most common ... furnishers of information
are credit card issuers, auto dealers, department and grocery stores, lenders, utilities,
insurers, collection agencies, and government agencies." H.R. Rep. 108-263, at 24
(2003).
[8] The FCRA was recently amended to allow consumers to notify furnishers of
disputes directly. See § 1681s-2(a)(8); Lapine et al., supra § 153.06, at 153-95. However,
there is no private cause of action for failure to properly investigate such a dispute,
15 U.S.C. § 1681s-2(c)(1), and Chiang has not asserted that he complied with the
procedures for direct notification. A notice of disputed information provided directly
by the consumer to a furnisher does not trigger a furnisher's duties under § 1681s-
2(b). See, e.g., Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir.2009).
On the facts of this case, we need not address how, if at all, a consumer's direct
notification to a furnisher would impact a furnisher's later investigation triggered by
CRA notification under § 1681s-2(b).
[9] Here, any claim of incompleteness would be unavailing. On this record,

Verizon NE's failure to report Chiang's disputes would not have been "misleading
in a material sense." See Saunders, 526 F.3d at 148.
[10] The parties do not dispute that CBCS followed its standard procedures when
investigating Chiang's claims.
[11] There are, of course, limits on what may be asserted in an affidavit at the
summary judgment stage. See, e.g., Nieves-Luciano v. Hernández Torres, 397 F.3d 1, 5 (1st
Cir.2005) ("For purposes of summary judgment, an allegation in an affidavit must be
based on personal knowledge and show affirmatively that the affiant is competent to
testify to the matters stated therein.").
[12] The district court cited the Fourth Circuit's decision in Johnson in support of
its determination that a reasonable jury might conclude that Verizon's procedures
were unreasonable. Chiang, 2009 WL 102707, at *9. But several distinguishing factors
suggest that Johnson cannot support the weight the district court placed upon it. First,
in Johnson, the court noted that the furnisher's limited investigation could be deemed
unreasonable in part because the furnisher's inquiry occurred after it had been
notified by the CRA "of the specific nature of Johnson's dispute." Johnson, 357 F.3d
at 431. Verizon NE had no such notice.
It is true the court emphasized that the defendant furnisher's investigation
generally extended no further than its own computerized Customer Information
System (CIS), but unlike CBCS's procedures, it apparently never provided for more
searching review. Id. That was pertinent because the furnisher artificially restricted
the review of its own computerized records. Investigators needed only to confirm
"two out of four pieces of information contained in the CIS — name, address, social
security number, and date of birth — in order to verify [a consumer's] identity." Id.
at 431 n. 3. This truncated inquiry was how the furnisher confirmed to CRAs that
their information was accurate. Id. at 431. As there is no evidence of similarly
restricted investigation here, or anything else that might raise a genuine issue of
material fact as to the reasonableness of Verizon NE's investigation, summary
judgment was appropriate.

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Fair Debt Collection Practice Act

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FAIR DEBT COLLECTION PRACTICES ACT

Published in the United States of America

Publication Date: September 2019;

Character Set: ISO 8859-1 (Latin-1);

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DC CIRCUIT DECISIONS ..................................................................................................5

FIRST CIRCUIT DECISIONS ........................................................................................... 51

SECOND CIRCUIT DECISIONS .................................................................................... 109

THIRD CIRCUIT DECISIONS........................................................................................ 233

FOURTH CIRCUIT DECISIONS .................................................................................... 393

FIFTH CIRCUIT DECISIONS ......................................................................................... 485

DC CIRCUIT DECISIONS ..................................................................................................5

FIRST CIRCUIT DECISIONS ........................................................................................... 51

SECOND CIRCUIT DECISIONS .................................................................................... 109

THIRD CIRCUIT DECISIONS........................................................................................ 233

FOURTH CIRCUIT DECISIONS .................................................................................... 393

FIFTH CIRCUIT DECISIONS ......................................................................................... 485

Barbato v. Greystone Alliance, LLC, 916 F. 3d 260 (3rd Cir. 2019)

II. Section 1692e

II. Section 1692e

857 F.3d 939 (2017)

recommendation that Appellant receive approximately twenty percent of the

p.945 B. Appellant's Fee Request

recommendation that Appellant receive approximately twenty percent of the

C. Appellant's CPPA Claims

D. Appellee's Claim of Attorney-Client Privilege

1. D.C. CODE § 28-3814(g)(5): Appellee's Contact With Appellant After She

2. D.C. CODE § 28-3814(f)(5): Appellee's Misrepresentations Regarding the

KAREN LeCRAFT HENDERSON, Circuit Judge, concurring:

B. THE DISTRICT COURT'S FEE ORDER

E. Appellant's DCDCL Claims

KAREN LeCRAFT HENDERSON, Circuit Judge, concurring:

The district court dismissed Henderson's counterclaims under Rule 12(b)(6),

1. Federal and District of Columbia foreclosure procedures

2. Fair Debt Collection Practices Act

4. Fair Credit Reporting Act

595 F.3d 26 (2010)

Chiang v. Verizon New England Inc., 595 F. 3d 26 (1st Cir. 2010)

When reviewing a grant of summary judgment, we draw all reasonable inferences

A. Background: Chiang's Disputes with Verizon NE over His Telephone

C. District Court Proceedings

A. The FCRA Claim

1. There Is a Private Cause of Action against Furnishers under the FCRA, 15

As a preliminary matter, we dispose quickly of the question of whether there is a

furnishers. S.Rep. No. 103-209, at 6 (1993). Verizon NE is sued here as a furnisher

of action in subsection 2(a), is whether to read a similar exclusion into § 1681s-2(b),

1. Federal and District of Columbia foreclosure procedures

2. Fair Debt Collection Practices Act

If a CRA fails to provide "all relevant information" to a furnisher, then the

2. Summary Judgment Was Appropriate on Chiang's FCRA Claim for Two

Against this backdrop, we hold that summary judgment was appropriate on

B. Summary Judgment Was Appropriate on Chiang's FDCPA Claim

Summary judgment was also appropriate on Chiang's FDCPA claim. We agree

[9] Here, any claim of incompleteness would be unavailing. On this record,

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