Troy K. Scheffler v. Gurstel Chargo, P.A.

Scheffler contends that rather than using this standard, “the district court

faulted Mr. Scheffler for his prior debt collecting work” and for his past appeal before

this Court in Scheffler, 791 F.3d 847. We disagree.

Scheffler’s argument is contradicted by the express language of the district

court’s order. Not only did the district court correctly articulate the unsophisticated

consumer standard, it explicitly applied that standard when analyzing both of

Scheffler’s statutory claims. Regarding Scheffler’s § 1692c(c) claim, the district

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court stated that Scheffler’s waiver of his cease letter was “knowing and voluntary,

just as it would be were he an unsophisticated debtor.” Order at 8 (emphasis added).

And in the district court’s analysis regarding Scheffler’s § 1692e claim, the district

court rejected Scheffler’s argument that the cover letter was deceptive by stating that

the letter “certainly was not deceiving to Scheffler, whose experience in debt

collection and FDCPA litigation belies his grievance, but neither would it be

deceiving to an unsophisticated consumer.” Id. at 9 (emphasis added). Considering

these statements, we have no reason to believe the district court failed to apply the

unsophisticated consumer standard.2

B. Section 1692c(c) — Violation of Cease Letter

We next address Scheffler’s argument that the district court erred by

concluding Gurstel was entitled to summary judgment on his claim that Gurstel

violated § 1692c(c) in its communications with him. As to mailing the garnishment



2This Court has not yet applied the unsophisticated consumer standard in the

specific context of a § 1692c(c) claim. The Ninth Circuit has, however, applied a

similar version of the standard (the “least sophisticated debtor” standard) when

analyzing a waiver of rights under § 1692c(c), reasoning that it “will enforce a waiver

of the cease communication directive only where the least sophisticated debtor would

understand that he or she was waiving” such rights. Clark v. Capital Credit &

Collection Servs., Inc., 460 F.3d 1162, 1171 (9th Cir. 2006). Judge O’Scannlain

criticized the majority’s use of the least sophisticated standard to evaluate a

§ 1692c(c) waiver, explaining it was unnecessary because “in any conceivable case,

a debtor who phones a debt collector to request information must be said to have

sufficient awareness of the relevant circumstances and likely consequences of her

action.” Id. at 1180 (O’Scannlain, J., concurring in part and dissenting in part).

Judge O’Scannlain saw “no reason to use any standard other than common sense.”

Id. at 1181 (internal quotation marks omitted). We need not decide whether the

unsophisticated consumer standard applies to a § 1692c(c) waiver because Scheffler’s

acts would constitute a waiver under the unsophisticated consumer standard or one

of common sense. See infra Part II.B.

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notice, we agree with the district court that our prior precedent dictates that providing

a copy of the garnishment summons after receiving the cease letter did not violate the

statute. See Scheffler, 791 F.3d at 848. “A creditor may communicate with a debtor

after receiving a cease letter ‘to notify the consumer that the debt collector or creditor

may invoke specified remedies which are ordinarily invoked by such debt collector

or creditor.’” Id. (quoting § 1692c(c)(2)).

Scheffler maintains, however, that the cover letter’s inclusion of a so-called

“directive” to contact one of Gurstel’s collection representatives, with the explicit

statement that the letter “is an attempt to collect a debt,” transformed the

correspondence into a communication regarding the debt in violation of § 1692c(c).

We disagree. The cover letter was a communication regarding the debt in a general

sense, but it still fits within the remedy exception under § 1692c(c)(2), making the

communication permissible. We see nothing improper with providing a phone

number for Scheffler to contact if he had questions. To the contrary, it would be odd

if the letter did not provide contact information. Therefore, we hold that Gurstel did

not violate § 1692c(c) by including its contact information on the cover letter.

We also reject Scheffler’s argument that Gurstel violated his rights under

§ 1692c(c) by discussing possible resolution of the debt during the September phone

call. Scheffler contends that he called only about the topic of the garnishment

summons and did not wish to talk about the debt. After reviewing the conversation

that took place, however, we agree with the district court’s assessment that “the call

was an unsubtle and ultimately unsuccessful attempt to provoke Salter into

committing an FDCPA violation.” Order at 8.

It is true that Gurstel representative Salter discussed a possible debt resolution

with Scheffler. However, it is important to note that Scheffler called Gurstel and the

brief conversation regarding settling the underlying debt occurred only in response

to Scheffler’s direct question of what he was “gonna do about” the debt. Salter fairly

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answered Scheffler’s question by stating that Gurstel was willing to settle the debt

and asking if Scheffler was interested in doing so. At no point did Salter pressure or

badger Scheffler in any way.

We agree with the Ninth Circuit that § 1692c(c) does not prevent a debt

collector from responding to a debtor’s post-cease letter inquiry regarding a debt. See

Clark, 460 F.3d at 1170. “Indeed, to hold that a debt collector may not respond to a

debtor’s telephone call regarding his or her debt would, in many cases, ‘force honest

debt collectors seeking a peaceful resolution of the debt to file suit in order to resolve

the debt—something that is clearly at odds with the language and purpose of the

FDCPA.’” Id. (quoting Lewis v. ACB Business Servs., 135 F.3d 389, 399 (6th Cir.

1998)).

Even if Salter’s communication can be construed as an effort to collect on the

debt in violation of the cease letter, it occurred after Scheffler called and asked a

question about the underlying debt. An unsophisticated consumer would know that

by behaving like Scheffler, he was waiving his rights under § 1692c(c) so as to allow

the debt collector to answer his question. See id. We hold Scheffler voluntarily and

knowingly waived his cease letter for purposes of allowing Salter to answer his

question, and therefore Gurstel did not violate Scheffler’s rights under § 1692c(c) by

briefly discussing a possible resolution of the debt during the phone call.

C. Section 1692e(10) — Deceptive Debt Collection

We finally consider Scheffler’s contention that the district court was wrong to

grant Gurstel summary judgment on his claim that Gurstel violated § 1692e(10) by

falsely or deceptively communicating through the cover letter that a collection

representative could answer garnishment summons questions.

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Scheffler’s argument fails under the unsophisticated consumer standard. As

an initial matter, we agree with the district court’s assessment that the cover letter

accompanying the garnishment summons was accurate. Contrary to Scheffler’s

contention, “[t]he letter does not state that the number provided will be answered by

an attorney prepared to answer questions solely about garnishment.” Order at 9. The

letter suggested a collection representative could be reached at the listed number and

that proved to be true. As for Scheffler’s belief that the letter accompanying the

garnishment summons was part of some novel deceptive scheme to work around the

cease directive, this is the exact sort of peculiar interpretation against which debt

collectors are protected by the objective element of the unsophisticated consumer

standard. See Strand, 380 F.3d at 318 (explaining that the objective element of the

unsophisticated consumer standard “protect[s] debt collectors from liability for

peculiar interpretations of collection letters”). We therefore hold Gurstel was also

entitled to summary judgment on Scheffler’s § 1692e(10) claim.