District Court (Ill.) Says “Doorhanger” Employed by Debt Collector “Might” Be Subject to the FDCPA If It Did More Than Deliver and Hang Door Hanger to Debtor’s Door

The FDCPA “is not aimed…“at companies that perform ministerial duties for debt collectors, such as stuffing and printing the debt collector’s letters.” White v. Goodman, 200 F.3d 1016, 1019 (7th Cir. 2000) (citing Laubach v. Arrow Serv. Bureau, Inc., 987 F. Supp. 625, 629–31 (N.D. Ill. 1997)) (other citations omitted); see also Randle v. GC Servs. L.P., 48 F. Supp. 2d 835, 839–42 (N.D. Ill. 1999). Courts have held that, in appropriate circumstances, engaging in activities going “beyond mere information gathering or message delivery,” can make a defendant a debt collector, as where Western Union gave consumers’ telephone numbers to creditors. Romine v. Diversified Collection Servs., Inc., 155 F.3d 1142, 1149 (9th Cir. 1998), cited in Simpson I, 2013 WL 2642143, at *2. This court cited another case holding that the defendant qualified as a debt collector based on a complaint’s allegations. The complaint included allegations that the defendant sent representatives to deliver notices to creditors and that “representatives are instructed to urge alleged debtors, in person, to call the creditor while they watched. They were to gather contact information from the debtors directly, to speak with their neighbors, and to conduct a visual assessment of their properties.” Siwulec v. J.M. Adjustment Servs., LLC, 465 F. App’x 200, 204 (3d Cir. 2012). Here, the disputed evidence and the reasonable inferences that could be drawn from it, depending on whether one takes Simpson or Safeguard’s perspective, requires the denial of summary judgment.  First, there is a genuine dispute over the material issue of whether Safeguard was actively or passively involved in the design of the door hangers. Courts have found the degree to which the defendant participated in the design of a communication like a letter, as contrasted with being a passive conduit, to be an important factor when deciding whether a particular defendant is a debt collector. See Siwulec, 465 F. App’x at 204; Randle, 48 F. Supp. 2d at 838–39 (citing Laubach, 987 F. Supp. at 630–31). Safeguard points to the “SPI” identifiers in the cards’ lower right-hand corner, e.g., Compl. Ex. A at 1, and the fact that a generic card appears on page fifty-four of the manual used to train inspectors, compare id., with Pl.’s Ex. E at 54. Safeguard counters that this evidence is insufficient to support the reasonable inference that it designed the cards. As it is reasonable to infer that Safeguard would not include a customer’s intellectual property in its training manual, this dispute is genuine.  The second material dispute concerns the “principal purpose” of Safeguard’s CAI business. § 1692a(6). Safeguard urges the court to look at the “principal purpose” of its business as the entirety of its property preservation services. See generally Schweihs v. Chase Home Fin., LLC, 77 N.E.3d 50, 54 (Ill. 2016) (generally describing services provided by Safeguard in tort case). Safeguard cannot avoid debt collector status merely because it conducts some business that is not debt collection. See Romine, 155 F.3d at 1148 (holding Western Union service fell within definition of “debt collector” in part because requiring a phone number “appear[ed] to be unique to the [particular] service”); Hernandez v. Midland Credit Mgmt., Inc., No. 04 C 7844, 2006 WL 695451, at *6 (N.D. Ill. Mar. 14, 2006) (recognizing that the defendant was “a debt collector for the purpose of applying the FDCPA to its actions”).  Safeguard’s failure to discriminate among the services it provides makes the small mountain of Rule 12(b)(6) cases it cites inapposite here because they involved Safeguard’s winterization services without any effort at solicitation rather than the CAI service. See, e.g., Alqaq v. CitiMortgage, Inc., No. 13 C 5130, 2014 WL 1689685, at *3–4 (N.D. Ill. Apr. 29, 2014) (breaking into home to winterize it not debt collection); Gordon v. Bank of N.Y. Mellon Corp., 964 F. Supp. 2d 937, 948–49 (N.D. Ind. 2013) (holding complaint failed to state claim that Safeguard was a debt collector because it alleged Safeguard employees broke into a home but did not say that any defendant mentioned a debt).  Nonetheless, Safeguard has marshalled nontrivial evidence that it is not a debt collector. Safeguard’s clients, including Midland, never tell it a loan’s status or how much the client thinks is owed. Pl.’s Resp. to Def.’s SOF ¶ 14, ECF No. 164. And except arguably indirectly via the door hangers, Safeguard does not give debtors information about how to make payments. See id. ¶¶ 14, 18.  The undisputed purpose of a contact attempt inspection “is to determine the occupancy states [sic] of the property.” Def.’s Resp. to Pl.’s SOF ¶ 18, ECF No. 162. Safeguard also points to a letter sent to mortgagees by the federal Department of Housing and Urban Development (“HUD”) requiring mortgage servicers to inspect properties once a mortgage loan has been delinquent for more than forty-five days and to reinspect the property every thirty days to make sure it is still occupied. Def.’s Mem. Supp. Mot. Summ. J. 9–10, ECF No. 156; see also HUD Mortgagee Letter 2010-18 (“Guidelines”), ECF No. 163-1 App. B. Though the guidelines mention the need to exhaust efforts at reaching the resident by phone or correspondence, Guidelines 7, Safeguard points to nothing in the HUD guidelines requiring it to take the step of leaving a door hanger to determine whether the property is occupied, see id. So although HUD’s guidelines might give a mortgagee’s representative a reason to inspect the property, they do not require leaving the particular form of correspondence selected: door hangers.  Safeguard cites Midland’s Federal Rule of Civil Procedure 30(b)(6) representative’s deposition to suggest two other reasons for the hangers. Midland’s representative testified that one purpose of the door hangers was letting the occupant know who had been there. Def.’s Resp. to Pl.’s SOF ¶ 29. He also stated that door hangers were an alternative method of verifying occupancy. See Pruden Dep. 53:1–18.  Other evidence in the record creates a genuine dispute. The door hangers themselves can be reasonably viewed as contradicting this evidence of the CAI service’s purpose. The hangers do not mention Midland, Safeguard, or the name of the person who left the hanger; nor do they have a blank for that information. See Compl. Exs. A–E. They invite the recipient to call a phone number and have an unspecified account number ready. See id. A jury could find that the cryptic reference to an account number only makes sense to request if Midland is trying reach the debtor because another occupant (and determining occupancy is one of the stated reasons for the door hanger) would not have the account number. See id. And Safeguard markets its services to mortgage servicers holding delinquent debts, Def.’s Resp. to Pl.’s SOF ¶ 5, and its marketed services include contacting customers, id. ¶ 6.  What is more, Midland only requests a contact attempt inspection when it has not heard from the debtor in thirty days. Def.’s Resp. to Pl.’s SOF ¶ 31. Safeguard offers other services to its clients that do not involve customer contact. Def.’s Resp. to Pl.’s SOF ¶ 34, ECF No. 162. Moreover, the only evidence in the record shows that Simpson received notices between October 2012 and January 2013, but Midland sent her a notice of default ten months earlier in January 2012. See Def.’s Resp. to Pl.’s SOF ¶¶ 15, 17. A jury could reasonably see that as evidence of selective enforcement supporting the conclusion that Safeguard “is dispatched to the homes of particularly delinquent debtors as part of [Midland]’s debt collection efforts.” Fielding v. FCC Fin., LLC, No. 3:12-cv-00194, 2015 WL 12532741, at *4 (M.D. Tenn. Jan. 22, 2015) (denying summary judgment in part based on evidence showing a service was sent to homes for this reason). Furthermore, a Safeguard inspector must leave the door hanger when he or she talks with someone at the property. Def.’s Resp. to Pl.’s SOF ¶ 9. As inspectors only leave door hangers at homes believed to be occupied, id. ¶ 35, a reasonable jury could conclude that the door hanger is superfluous in that situation because the inspector has had an opportunity to identify why he or she was there.  These facts, seen favorably to Simpson, take this record out of the run of cases Safeguard cites analogizing its role to that of a letter carrier or bicycle messenger. A delivery service will generally take anyone’s package to an address, whether it is a birthday card, an invitation, or collection letter. In contrast, a reasonable jury here could find that Safeguard has marketed its CAI services and runs those services principally for the benefit of mortgage servicers trying to collect delinquent debts. See, e.g., Randle, 48 F. Supp. 2d at 839–40; Aquino v. Credit Control Servs., 4 F. Supp. 2d 927, 929 (N.D. Cal. 1998) (holding bicycle messenger was not debt collector). The court notes here that Safeguard can be reasonably viewed as providing meaningful follow up. Cf. Randle, 48 F. Supp. 2d at 839–40 (finding significant that company had created letters but did provide not follow-up). The fact that Simpson received five door hangers itself supports the inference, favorable to Simpson, that they were intended as follow up. See Def.’s Resp. to Pl.’s SOF ¶ 17. . . .Weighed as a whole, the summary judgment evidence could support a jury decision for either side on whether Safeguard is a “debt collector” when it performs its contact attempt inspections. If inclined to see things Simpson’s way, the contact attempt inspections, a jury could decide, have a principal purpose of encouraging a debtor, with all the subtext of a visible reminder of an in-person visit and a handwritten note (five in Simpson’s case), to call Midland, so it can attempt to obtain payment for debt. See Def.’s Resp. to Pl.’s SOF ¶ 17 (“We are expecting your call today.”) The contrary conclusion, consistent with Midland’s Rule 30(b)(6) depositions and the undisputed fact that Safeguard receives limited information from Midland, would also be reasonable with the benefit of inferences favorable to Safeguard.