3rd Cir.’s Popeye Game is Strong; Says Debt Buyer is Still a “Debt Collector” under the FDCPA after Henson

Many would gladly pay Tuesday for a hamburger today. Of course, not all of those who fall into debt make payments timely, and debt collection has become a professional trade. The Fair Debt Collection Practices Act (the “FDCPA” or “Act”), 15 U.S.C. § 1692, et seq., regulates their efforts. Under it, debt collectors are prohibited from engaging in deceptive, abusive, or otherwise unfair practices to collect debts. When these practices occur, the Act gives debtors a private right of action to seek recourse, with the possibility of receiving statutory damages.

The Act does not apply, however, to all entities who collect debts; only those whose principal purpose is the collection of any debts, and those who regularly collect debts owed another are subject to its proscriptions. Those entities whose principal business is to collect the defaulted debts they purchase seek to avoid the Act’s reach. We believe such an entity is what it is—a debt collector. If so, the Act applies.

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We take our cue from the Court to begin by carefully examining the statute’s text. Henson, 137 S.Ct. at 1721. Both Amos and the Teppers contend the plain text of the statute supports their desired outcome—Amos arguing that it fits the definition of “creditor” and therefore it is not a “debt collector” because the terms are mutually exclusive, and the Teppers arguing it fits the “principal purpose” definition of “debt collector.”   We do not overlook Amos’s omission of the “principal purpose” definition from its argument. Its admitted sole business is collecting debts it has purchased. It uses the mails and wires for its business. It can be no plainer that Amos “uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts.” § 1692a(6). “Any debts” does not distinguish to whom the debt is owed. And it stands in contrast to “debts owed or due … another,” which limits only the “regularly collects” definition. See Henson, 137 S.Ct. at 1723 (“[W]hen we’re engaged in the business of interpreting statutes we presume differences in language … convey differences in meaning.”). Asking if Amos is a debt collector is thus akin to asking if Popeye is a sailor. He’s no cowboy.   Amos claims that because it also meets the definition of creditor—it is the entity “to whom [the] debt is owed,” § 1692a(4)—it is not a debt collector. In Check Investors we noted an entity may satisfy the statutory definition of “creditor” and yet be a “debt collector.” 502 F.3d at 173. Our conclusion today does not require us to sort out what Check Investors intended by its statement that those terms are mutually exclusive. Suffice it to say that, following Henson, an entity that satisfies both is within the Act’s reach.  Amos argues as its fallback position that if we do not find it is a creditor (to the exclusion of being a debt collector), we should hold that it is not a debt collector under the definition’s exclusion for “officer[s] [and] employee[s] of a creditor [who], in the name of the creditor, [are] collecting debts for [the] creditor.” § 1692a(6)(A). This exception clearly does not fit; for even if Amos is a nominal creditor, the Teppers sued Amos, a limited liability company, and not any of its officers or employees.