9th Cir. Says Debt Collector Collecting on Time-Barred Debt Did Not Violate the FDCPA Where Debt Collector Advised that It Would Not Sue

In Stimpson v. Midland Credit Mgmt., No. 18-35833, 2019 U.S. App. LEXIS 37470, at *8 (9th Cir. Dec. 18, 2019), the Court of Appeals for the Ninth Circuit held that a debt collector did not violate the FDCPA in its dunning letter collecting on a stale debt.

Stimpson first identifies the letter’s statute-of-limitations disclosure as a primary example of misleading or deceptive representations. This disclosure states: “The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau.” According to Stimpson, this language is deceptive or misleading because the letter does not clarify that his debt is time-barred as a matter of law; rather, it states Midland “will not” sue, which could mean that Midland has simply decided not to sue.  We disagree. A person who is unsophisticated regarding financial matters, but is still “capable of making basic logical deductions and inferences,” Wahl, 556 F.3d at 645 (citation omitted), would not be deceived or misled [*9]  by this language. The phrase “[d]ue to the age of this debt, we will not sue you,” follows immediately after the sentence explaining that “[t]he law limits how long you can be sued on a debt.” The first sentence “draws a connection between the legal unenforceability of debts in general and [Midland’s] promise not to sue.” Stimpson, 347 F. Supp. 3d at 551 (cleaned up) (quoting Trichell v. Midland Credit Mgmt., Inc., No. 4:18-cv-00132-ACA, 2018 U.S. Dist. LEXIS 148700, 2018 WL 4184570, at *3 (N.D. Ala. Aug. 31, 2018)). The natural conclusion is that the debt is time barred. Nothing in the letter falsely implies that Midland could bring a legal action against Stimpson to collect the debt. For instance, the letter does not offer him a “settlement offer,” which could “falsely impl[y] that the underlying debt is enforceable in court.” Buchanan v. Northland Grp., Inc., 776 F.3d 393, 399 (6th Cir. 2015); see also Tatis v. Allied Interstate, LLC, 882 F.3d 422, 429 (3d Cir. 2018). Accordingly, we conclude that the least sophisticated debtor would understand the letter’s disclosure to mean that Midland cannot take a legal action to collect the debt. Our conclusion that Midland’s disclosure would not mislead or deceive the least sophisticated debtor is supported by the fact that federal and state authorities have found substantially similar language to be appropriate (or necessary) to alert consumers about the effect of the statute of limitations. The Consumer Financial Protection Bureau (CFPB), the agency tasked with administering the FDCPA, see § 1692l(d), and whose mission is to protect consumers, required Midland to use this exact language in its debt-collection communications to avoid implying that it could legally enforce the debtor’s duty to pay the debt. Moreover, three states (California, Connecticut, and Texas) enacted legislation requiring a materially similar disclosure when a debt collector attempts to collect a time-barred debt. Finally, the Sixth Circuit concluded that a debt collector could correct “any possible misimpression by unsophisticated consumers” regarding the applicable statute of limitations by adding a substantially similar disclosure: “The law limits how long you can be sued on a debt. Because of the age of your debt, [debt collector] will not sue you for it, and [debt collector] will not report it to any credit reporting agency.” Buchanan, 776 F.3d at 400. Given the consensus that language substantially similar to that used by Midland provides appropriate notice to consumers, we conclude that the least sophisticated debtor would not be confused by Midland’s disclosure. Accordingly, we reject Stimpson’s argument that the letter’s statute-of-limitations disclosure would mislead the least sophisticated debtor into thinking that Midland could use legal means to collect the debt.

The Court of Appeals also held that the debt collector did not have to tell the debtor that a payment might start a new statute of limitations on the discharged debt.

Second, Stimpson argues that Midland’s letter is deceptive or misleading because it does not warn debtors regarding the potential dangers of making a payment on a time-barred debt. In some states, the statute of limitations on a debt can be revived or restarted after it has expired. That is, an acknowledgment of a debt “from which a promise to pay may be implied, removes the bar created by the statute of limitations and revives the debt.” Potterton v. Ryland Grp., Inc., 289 Md. 371, 424 A.2d 761, 763 (Md. 1981). In states that follow this approach, such as Idaho, a partial payment on a debt restarts [*12]  the statute of limitations and thus re-establishes the creditor’s right to enforce the debt in court. See Idaho Code § 5-238 (“[A]ny payment of principal or interest is equivalent to a new promise in writing, duly signed, to pay the residue of the debt.”); Modern Mills, Inc. v. W.W. Havens, 112 Idaho 1101, 739 P.2d 400, 403 (Idaho Ct. App. 1987); see also Renault v. L. N. Renault & Sons, Inc., 188 F.2d 317, 320 (3d Cir. 1951) (stating that New Jersey law “implies from partial payment a promise to pay the entire obligation.”). In other states, such as Nevada, a partial payment on a time-barred debt does not revive the statute of limitations. See Riff v. Kowal, 76 Nev. 271, 352 P.2d 819, 820 (Nev. 1960).  Stimpson makes a two-step argument as to why Midland’s letter was misleading for failing to warn him about the risk of revival. First, he argues that Idaho law applies to the debt in this case, notwithstanding the provision in his credit agreement stating that Nevada law applies. If Idaho law applies, Stimpson claims, the statute of limitations on a debt, see Idaho Code §§ 5-201, 5-216, can be revived by a partial payment on the debt, see Idaho Code § 5-238; Modern Mills, 739 P.2d at 403. Second, Stimpson argues that even if Nevada law applies to his debt, had he made a partial payment on the debt, he would have been in a worse legal position because he would be forced to argue with Midland about whether Idaho or Nevada law applied. Therefore, Stimpson argues, whether Idaho or Nevada law [*13]  applies to his debt, Midland’s failure to warn him of the risk of revival violated the FDCPA.  These arguments fail. Although Congress expressly required debt collectors to provide specific statements to debtors on certain issues, nothing in the FDCPA requires debt collectors to make disclosures that partial payments on debts may revive the statute of limitations in certain states. “Generally, the inclusion of certain terms in a statute implies the exclusion of others.” In re Cybernetic Servs., Inc., 252 F.3d 1039, 1053 (9th Cir. 2001); see also Lamie v. United States Tr.., 540 U.S. 526, 538, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004) (“There is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted.” (citation omitted)). Stimpson does not point to any language in the FDCPA that can reasonably be interpreted as requiring debt collectors to provide legal advice on revival statutes. Nor is the failure to provide such specific legal advice misleading. Accordingly, we conclude that Midland’s letter was not deceptive or misleading for not warning about the potential for revival of the statute of limitations.