In Benzemann v. Citibank N.A., 2015 WL 7145772, at *4-5 (C.A.2,2015), the Court of Appeals for the Second Circuit found that an FDCPA violation “occurs” for the purposes of the FDCPA’s statute-of-limitations provision when a bank freezes a debtor’s bank account, not when a debt collector sends a restraining notice to the bank.
We recognize that, in the context of FDCPA claims premised on the sending of unlawful debt collection notices, two of our sister circuits have held that the FDCPA violation “occurs” when the notice is mailed, not when it is received. See Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir.2095); Mattson v. U.S. W. Commc’ns, Inc., 967 F.2d 259, 261(8th Cir.2092). But the concerns that animated the Maloy and Mattson decisions are not present in this case. Those courts reasoned that tying the statute of limitations to the date of mailing was necessary because (1) mailing is the debt collector’s last opportunity to comply with the FDCPA and (2) the date of the mailing is easy to determine and ascertainable by each party, yielding a rule that is easy to apply. Maloy, 64 F.3d at 608; Mattson, 967 F.2d at 261. But in the context of a bank account freeze, the mailing of the restraining notice is not the “last opportunity” for a debt collector to comply with the FDCPA. Houslanger had a last opportunity to comply with the FDCPA after he sent the restraining notice by contacting Citibank and requesting that it not freeze Benzemann’s account. See Johnson, 305 F.3d at 1114 n. 4 (noting that filing suit is not “last opportunity” to comply with FDCPA because creditor could contact an intermediary—the process server—and request that it not serve the debtor); Serna, 732 F.3d at 448 n. 16 (same). Moreover, it is no easier to ascertain the date of the mailing of the restraining notice than the date of the freeze itself, which one can ascertain by simply looking at bank records. Thus, the reasoning that the Maloy and Mattson courts applied in the context of debt collection notices is simply inapplicable here. We thus conclude that the district court erred in finding that the FDCPA violation “occurred” when Houslanger sent the restraining notice. We hold instead that where a debt collector sends an allegedly unlawful restraining notice to a bank, the FDCPA violation does not “occur” for purposes of Section 1692k(d) until the bank freezes the debtor’s account. Here, the record is unclear as to when the freeze actually took place. The complaint alleges that Citibank froze Benzemann’s account “on or about December 14, 2011,” which would render Benzemann’s suit timely. But at oral argument before the district court, Benzemann’s counsel indicated that the freeze may have actually been imposed on December 13, 2011. Because of the uncertainty surrounding the date of the freeze, we remand the case to the district court for whatever further proceedings are necessary to resolve this issue