No. 17-1307

In the Supreme Court of the United States
DENNIS OBDUSKEY, PETITIONER
v.
MCCARTHY & HOLTHUS LLP, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

MARY MCLEOD
General Counsel
JOHN R. COLEMAN
Deputy General Counsel
STEVEN Y. BRESSLER
Assistant General Counsel
NANDAN M. JOSHI
KRISTIN BATEMAN
Counsel
Bureau of Consumer
Financial Protection
Washington, D.C. 20552

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JEFFREY B. WALL
Deputy Solicitor General
JONATHAN C. BOND
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

The Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. 1692 et seq., imposes various requirements
on “a debt collector * * * in connection with the collection of any debt.” 15 U.S.C. 1692c(a); see 15 U.S.C.
1692c-1692g. The FDCPA generally defines “debt collector” (with various exceptions) as “any person who
uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” 15 U.S.C.
1692a(6). Debt collectors who fall within that general
definition are subject to all of the FDCPA’s requirements for debt collectors. The Act also contains a
limited-purpose definition of “debt collector,” which
provides that, “[f ]or the purpose of section 1692f(6) of
this title, [the] term also includes any person who uses
any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the
enforcement of security interests.” Ibid. The question
presented is as follows:
Whether enforcement of a security interest in property through a state-law nonjudicial-foreclosure process constitutes debt collection for all purposes under
the FDCPA.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statutory provisions involved ...................................................... 1
Statement ...................................................................................... 2
Summary of argument ............................................................... 10
Argument:
Enforcement of a security interest through a
nonjudicial foreclosure generally is not debt
collection under the FDCPA ............................................. 12
A. Enforcement of a security interest, without more,
generally is not debt collection under the FDCPA ..... 13
B. Initiating a nonjudicial-foreclosure proceeding
constitutes enforcement of a security interest and
so generally is not debt collection under the
FDCPA ............................................................................. 19
C. Petitioner’s contrary arguments lack merit ................. 26
Conclusion ................................................................................... 33
Appendix — Statutory provisions ........................................... 1a
TABLE OF AUTHORITIES

Cases:
BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) ........... 5
Bank of Am. v. Kosovich,
878 P.2d 65 (Colo. App. 1994) ........................................... 8
Butner v. United States, 440 U.S. 48 (1979) ......................... 4
Clark v. Rameker, 134 S. Ct. 2242 (2014) ......................... 15
Cohen v. Rosicki, Rosicki & Assocs., P.C.,
897 F.3d 75 (2d Cir. 2018) .................................................. 25
Encino Motorcars, LLC v. Navarro,
138 S. Ct. 1134 (2018) ......................................................... 19
Heintz v. Jenkins, 514 U.S. 291 (1995) .................... 11, 18, 19
Kaltenbach v. Richard, 464 F.3d 524 (5th Cir. 2006) ......... 32
(III)

 IV
Cases—Continued:

Page

McNair v. Maxwell & Morgan PC,
893 F.3d 680 (9th Cir. 2018) ............................................... 25
Mount Lemmon Fire Dist. v. Guido,
No. 17-587 (Nov. 6, 2018) ................................................... 14
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998) ............................................................ 29
Piper v. Portnoff Law Assocs., Ltd.,
396 F.3d 227 (3d Cir. 2005) ................................................ 25
Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211 (11th Cir. 2012) ........................................... 25
Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012) ...... 15
Russello v. United States, 464 U.S. 16 (1983) .................. 29
TRW Inc. v. Andrews, 534 U.S. 19 (2001) ..................... 28, 29
Vien-Phuong Thi Ho v. ReconTrust Co.,
858 F.3d 568 (9th Cir.),
cert. denied, 138 S. Ct. 504 (2017) ................... 22, 23, 25, 32
Statutes and rules:
Fair Debt Collection Practices Act, Pub. L. No.
95-109, 91 Stat. 874 (15 U.S.C. 1692 et seq.) .......................... 1
§ 802(a), 91 Stat. 874 (15 U.S.C. 1692(a)) ...... 2, 16, 30, 1a
15 U.S.C. 1692(b) ............................................... 2, 3, 16, 1a
15 U.S.C. 1692(c) ................................................... 2, 16, 1a
15 U.S.C. 1692(e) ................................................... 2, 16, 1a
15 U.S.C. 1692a(5) .....................................................3, 2a
15 U.S.C. 1692a(6) .............................................passim, 2a
15 U.S.C. 1692a(6)(A)-(F) ................................................. 3
15 U.S.C. 1692c-1692g ................................................... 2
15 U.S.C. 1692c-1692h .................................................... 12
15 U.S.C. 1692c(a) ................................................. 2, 12, 6a
15 U.S.C. 1692c(a)(2) .............................................. 23, 6a
15 U.S.C. 1692c(b) ................................................... 23, 6a

 V
Statutes and rules—Continued:

Page

15 U.S.C. 1692c(c) .....................................................8, 7a
15 U.S.C. 1692d............................................................ 2, 8a
15 U.S.C. 1692e ............................................................ 2, 9a
15 U.S.C. 1692f .................................................... 2, 14, 11a
15 U.S.C. 1692f(6) ............................................passim, 12a
15 U.S.C. 1692f(6)(A) .......................................... 3, 17, 12a
15 U.S.C. 1692f(6)(B) ...................................................... 17
15 U.S.C. 1692f(6)(C) .............................................. 17, 12a
15 U.S.C. 1692g(a) ..................................................... 2, 13a
15 U.S.C. 1692g(b) ..................................................... 2, 14a
15 U.S.C. 1692i .......................................................10, 12, 16a
15 U.S.C. 1692i(a)(1)................................................ 31, 16a
15 U.S.C. 1692l(a)-(c) ........................................................ 1
15 U.S.C. 1692l(d) ...................................................... 1, 22a
15 U.S.C. 1692n........................................................ 23, 23a
7 U.S.C. 1631(c)(7) ................................................................. 20
11 U.S.C. 101(51) ................................................................... 20
11 U.S.C. 1110(d)(2) ............................................................... 20
11 U.S.C. 1168(d)(2) ............................................................... 20
26 U.S.C. 6323(h)(1) ............................................................... 20
49 U.S.C. 14301(a)(3) ............................................................. 20
Colo. Rev. Stat. (2017):
§ 38-37-101.......................................................................... 7
§ 38-38-100.3(19) ................................................................ 7
§ 38-37-102.......................................................................... 7
§ 38-38-101.......................................................................... 7
§ 38-38-101(14) ................................................................... 7
§ 38-38-102.......................................................................... 7
§ 38-38-102.5....................................................................... 7
§ 38-38-103.......................................................................... 7
§ 38-38-103(5) ..................................................................... 7

 VI
Statutes and rules—Continued:

Page

§ 38-38-104.......................................................................... 7
§ 38-38-105(b) ..................................................................... 7
§ 38-38-106(6) ..................................................................... 8
§ 38-38-109(s) ..................................................................... 7
§ 38-38-110.......................................................................... 7
§ 38-38-111.......................................................................... 8
Colo. R. Civ. P.:
Rule 105(a) ......................................................................... 6
Rule 120(a).................................................................7, 23
Rule 120(b) ................................................................7, 23
Rule 120(c) ...................................................................... 7
Rule 120(d) ..................................................................... 7
Rule 120(g) ..................................................................... 8
Miscellaneous:
Black’s Law Dictionary:
(4th ed. 1951) .................................................................... 20
(5th ed. 1979) ................................................................ 4, 20
(10th ed. 2014) .............................................................. 4, 20
Michael Corkery & Jessica Silver-Greenberg,
Miss a Payment? Good Luck Moving That Car,
N.Y. Times, Sept. 24, 2014 ................................................. 27
2 Baxter Dunaway, Law of Distressed Real Estate
(May 2018 update) ..................................................... passim
53 Fed. Reg. 50,097 (Dec. 13, 1988) ..................................... 15
William H. Henning & Fred H. Miller,
66 No. 4 U.C.C. Bulletin 1, Report on the UCC:
2008—Part 1 (Jan. 2009) .................................................. 4
13 Debra Knapp, Colorado Practice Series, Civil
Procedure Forms and Commentary (2d ed. 2005) ........... 6
National Consumer Law Center, Foreclosures and
Mortgage Servicing (5th ed. 2014) .................................. 5, 6

 VII
Miscellaneous—Continued:

Page

Office of the Secretary, FTC, Staff Opinion Letter,
1992 WL 12622329 (Oct. 8, 1992) ....................................... 22
S. 918, 95th Cong., 1st Sess. (1977 )...................................... 16
S. 1130, 95th Cong., 1st Sess. (1977 ).................................... 16
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ......................... 29
Restatement (Third) of Property (Mortgages)
(1997) ........................................................................ 4, 5, 6, 21
U.C.C. Art. 9 (2017) ............................................................. 4
§ 9-607(a) .......................................................................... 21
§ 9-609 ............................................................................... 21
§ 9-614 ............................................................................... 27
§ 9-623 ............................................................................... 27
William F. Walsh, Treatise on Mortgages (1934) ............ 21
Webster’s New International Dictionary
(2d ed. 1958) ..................................................................... 20

 In the Supreme Court of the United States
No. 17-1307
DENNIS OBDUSKEY, PETITIONER
v.
MCCARTHY & HOLTHUS LLP, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES

The Fair Debt Collection Practices Act (FDCPA or
Act), 15 U.S.C. 1692 et seq., authorizes the Bureau of
Consumer Financial Protection (Bureau) to “prescribe
rules with respect to the collection of debts by debt collectors, as defined in [the FDCPA].” 15 U.S.C. 1692l(d).
The Bureau, the Federal Trade Commission (FTC), and
other federal agencies are responsible for enforcing the
Act through administrative proceedings and civil litigation. 15 U.S.C. 1692l(a)-(c). The United States therefore has a substantial interest in the Court’s resolution
of the question presented.
STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reprinted in the
appendix to this brief. App., infra, 1a-28a.

(1)

 2
STATEMENT

1. a. Congress enacted the FDCPA to address “the
use of abusive, deceptive, and unfair debt collection
practices by many debt collectors.” Pub. L. No. 95-109,
§ 802(a), 91 Stat. 874 (15 U.S.C. 1692(a)). Congress concluded that “[m]eans other than misrepresentation or
other abusive debt collection practices [we]re available
for the effective collection of debts,” and “[e]xisting
laws and procedures * * * [we]re inadequate to protect
consumers.” 15 U.S.C. 1692(b) and (c). The Act’s “purpose[s]” include “eliminat[ing] abusive debt collection
practices by debt collectors” and “insur[ing] that those
debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.”
15 U.S.C. 1692(e).
The FDCPA pursues those purposes primarily by
imposing various requirements on the activities of “debt
collector[s]” “in connection with the collection of [a] debt.”
15 U.S.C. 1692c(a); see 15 U.S.C. 1692c-1692h. Among
other things, the Act restricts debt collectors’ communications with consumers and third parties “in connection
with the collection of any debt,” 15 U.S.C. 1692c(a) and
(b); prohibits them from “harass[ing], oppress[ing], or
abus[ing] any person,” or from making “false, deceptive, or misleading representation[s],” “in connection
with the collection of any debt,” 15 U.S.C. 1692d, 1692e;
and bans their use of “unfair or unconscionable means
to collect or attempt to collect any debt,” 15 U.S.C. 1692f.
It also requires a debt collector seeking to collect a debt
promptly to provide the consumer certain information
about the debt, 15 U.S.C. 1692g(a), and to “cease collection of the debt” if the consumer “dispute[s]” the debt,
until the debt collector provides verification of the debt.
15 U.S.C. 1692g(b).

 3
b. Consistent with its focus on protecting “consumer[s]” from certain abuses, 15 U.S.C. 1692(b), the
FDCPA does not apply to all “debts” or “debt collectors”
in a colloquial sense. It defines “debt” to include only
“an[ ] obligation or alleged obligation of a consumer to
pay money arising out of a transaction in which the
money, property, insurance, or services which are the
subject of the transaction are primarily for personal,
family, or household purposes.” 15 U.S.C. 1692a(5).
Commercial debts thus are not covered.
Similarly, the FDCPA’s provisions do not apply to
every person who might colloquially be described as collecting a debt. The Act does not define “collection,” but
it contains two definitions of “debt collector,” 15 U.S.C.
1692a(6), both subject to an array of exclusions, see
15 U.S.C. 1692a(6)(A)-(F). First, Section 1692a(6) states
that “ ‘debt collector’ means any person who uses any
instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts
to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” 15 U.S.C. 1692a(6).
Second, Section 1692a(6) further states that, “[f ]or the
purpose of section 1692f(6) of this title, [the] term also
includes any person who uses any instrumentality of
interstate commerce or the mails in any business the
principal purpose of which is the enforcement of security
interests.” Ibid. Section 1692f(6) prohibits debt collectors from “[t]aking or threatening to take any nonjudicial
action to effect dispossession or disablement of property” if the debt collector lacks a “present right to possession * * * through an enforceable security interest,”
if it does not actually “inten[d]” to take possession, or if
the property is “exempt.” 15 U.S.C. 1692f(6)(A).

 4
Taken together, these two definitions establish that
a person engaged in a business whose principal purpose
is enforcing security interests generally falls outside
the Act, except that the person is deemed to be a debt
collector for purposes of Section 1692f(6). The FDCPA
permits such a person to take collateral pursuant to a
security interest, so long as applicable law permits
doing so and the person does not make false threats.
c. The FDCPA does not define “security interest[ ].”
In ordinary usage, the term refers to a property interest
given to a creditor to secure a debt—typically a right to
take or compel the sale of property that the consumer
has pledged as collateral if the consumer does not pay
the debt. See, e.g., Black’s Law Dictionary 1217 (5th ed.
1979) (Black’s Fifth) (“A form of interest in property
which provides that the property may be sold on default
in order to satisfy the obligation for which the security
interest is given.”); Black’s Law Dictionary 1562 (10th
ed. 2014) (Black’s Tenth) (similar).
Security interests are generally governed by state law.
See, e.g., Butner v. United States, 440 U.S. 48, 55-57 (1979).
Security interests in personal property are addressed by
Article 9 of the Uniform Commercial Code (U.C.C.),
which every State has adopted in some form. See William
H. Henning & Fred H. Miller, 66 No. 4 U.C.C. Bulletin 1,
Report on the UCC: 2008—Part 1 (Jan. 2009). Security
interests in real property are known as mortgages. See
Black’s Fifth 1217; 2 Baxter Dunaway, Law of Distressed
Real Estate § 15:1 (May 2018 update) (Dunaway).
If a debtor defaults on a mortgage debt, the ordinary
method of enforcing the security interest is “[f ]oreclosure,” i.e., “the process in which property securing a
mortgage is sold to pay off the loan balance due.”
2 Dunaway § 15:1; see Restatement (Third) of Property

 5
(Mortgages) § 8.2 (1997) (Restatement). State foreclosure laws vary, but two general types exist. 2 Dunaway
§ 16:1; see BFP v. Resolution Trust Corp., 511 U.S. 531,
541-542 (1994). First, every State permits “judicial”
foreclosure, which requires a creditor to initiate a court
action and obtain a court order to foreclose on the
secured property. See 2 Dunaway § 16:1. The debtor
and other interested parties are typically named as
defendants. Id. § 16:3. Following a sale, most States permit the creditor to obtain a deficiency judgment against
the debtor for any remaining balance. See National Consumer Law Center, Foreclosures and Mortgage Servicing § 12.3.2 (5th ed. 2014) (NCLC).
Second, most States additionally permit “nonjudicial
foreclosure,” also called “power of sale foreclosure,”
“foreclosure by advertisement,” or a “trustee’s sale.”
2 Dunaway § 17:1; see id. App. 17A (listing States). Nonjudicial foreclosures typically enable a creditor to initiate
“a public sale of the property” without “utiliz[ing] court
proceedings to conduct the foreclosure sale unless the
lender wants to obtain a deficiency judgment” for any
shortfall that remains after the property has been sold.
Id. §§ 16:1, 17:1. Where nonjudicial foreclosure is available, “it is normally the preferred method of foreclosure
because, in most instances, the process is less costly and
time-consuming than judicial foreclosure.” Id. § 16:1. In
many States, however, creditors who elect nonjudicial
foreclosure waive or limit their ability to obtain a deficiency judgment against the debtor for any shortfall.
See ibid.; see also NCLC § 12.3.2.
“State non-judicial foreclosure statutes typically set
out both substantive and procedural requirements for
conduct of a foreclosure sale,” and “[c]ompliance with
these requirements is necessary to complete a valid sale”

 6
and “to extinguish the borrower’s interest in the property.” NCLC § 7.5.1; see 2 Dunaway § 17:2. These
requirements limit who may initiate nonjudicial foreclosure and typically include procedural protections that
govern “serving and recording pre-sale notices, placing
advertisements, serving and recording notices of sale,
and conducting the sale.” NCLC § 7.5.1; see 2 Dunaway
§ 17:1. A creditor ordinarily may pursue nonjudicial foreclosure only if the mortgage instrument contains a “power
of sale clause” granting it the authority to initiate such a
sale. 2 Dunaway § 17:2. A common practice is to vest the
security interest in a third-party trustee; when trustees
are used, the instrument granting the power of sale is
called a “deed of trust.” Restatement § 8.2 cmt. a.
2. This case involves a real-property security interest
under Colorado law, which generally permits a creditor
who holds a deed of trust to “foreclose on [a] lien either
through a judicial or a non-judicial foreclosure.”
13 Debra Knapp, Colorado Practice Series, Civil Procedure Forms and Commentary § 120.1 (2d ed. 2005). In
a judicial foreclosure, such a creditor may “obtain[ ] a
complete adjudication of the rights of all parties thereto,
with respect to any real property and for damages, if any,
for the withholding of possession,” and “[t]he court in its
decree shall grant full and adequate relief so as to completely determine the controversy and enforce the rights
of the parties.” Colo. R. Civ. P. 105(a).
Colorado’s “nonjudicial” foreclosure process is a misnomer because a court order is required to conduct the
foreclosure sale. But it does not entail a full-blown, trialtype proceeding that adjudicates all of the parties’ claims
(as in judicial foreclosures). And the creditor cannot
obtain a deficiency judgment in the foreclosure proceeding for any debt remaining after the sale. Pet. App. 8a-9a.

 7
For residential mortgages, Colorado’s nonjudicialforeclosure process typically begins when the creditor or
its agent sends the debtor certain statutorily required
contact information for Colorado’s foreclosure hotline
and the creditor’s loss-mitigation department. Colo.
Rev. Stat. § 38-38-102.5 (2017). Thirty days thereafter,
the creditor may initiate foreclosure proceedings by filing a “notice of election and demand” with the public
trustee for the county where the property is located. Id.
§ 38-38-101. The public trustee is a state official
appointed by the governor. Id. §§ 38-37-101, 38-37-102.
The public trustee is responsible for recording the notice
of election and demand and mailing notices to the debtor
providing information about the debtor’s rights to cure
the default and the foreclosure sale’s date and location.
Id. §§ 38-38-101(14), 38-38-102, 38-38-103. Notices are
also mailed to interested parties and must be published
in a local newspaper. Id. §§ 38-38-100.3(19), 38-38-103(5).
If the debtor does not cure the default or declare
bankruptcy, a creditor holding a deed of trust may file a
verified motion in court for an order authorizing sale of
the property. Colo. Rev. Stat. §§ 38-38-104, 38-38-105(b),
38-38-109(s) (2017); Colo. R. Civ. P. 120(a). The creditor
must serve the debtor and other interested parties with
notice of the motion and the hearing date, and any interested person who disputes the grounds for the motion
may file a response. Colo. R. Civ. P. 120(b) and (c). The
court will then hold a hearing to determine whether to
order the sale. Colo. R. Civ. P. 120(d).
If the court authorizes the sale, the public trustee or
sheriff may sell the property at a public auction. Colo.
Rev. Stat. § 38-38-110 (2017). The court “shall require a
return of sale” to be filed and “shall enter an order
approving the sale” if it was “conducted in conformity with

 8
the [court’s] order.” Colo. R. Civ. P. 120(g). Once the proceeds are distributed to lienholders, “any remaining overbid” is “paid to the owner.” Colo. Rev. Stat. § 38-38-111
(2017). If the sale proceeds are insufficient to pay off the
debt, the creditor cannot recover the balance due in the
same proceeding, but must file a separate suit against
the debtor. See id. § 38-38-106(6); Bank of Am. v. Kosovich, 878 P.2d 65, 66 (Colo. App. 1994).
3. In 2007, petitioner borrowed $329,940 to buy a
home in Colorado, which served as security for the loan.
Pet. App. 2a; see J.A. 37. Wells Fargo Bank, N.A., serviced the loan. Pet. App. 2a. In 2009, petitioner
defaulted. Ibid.
In 2014, Wells Fargo hired respondent McCarthy &
Holthus LLP (McCarthy), a law firm, to foreclose on the
property. Pet. App. 2a. McCarthy sent petitioner an
undated letter stating that it had been “instructed to
commence foreclosure.” J.A. 37. The letter further
stated that McCarthy “may be considered a debt collector attempting to collect a debt” and would “assume this
debt to be valid unless [petitioner] dispute[d]” it within
30 days, in which case McCarthy would send verification
of the debt to petitioner. J.A. 37-38 (capitalization omitted). In a separate undated letter, McCarthy provided
petitioner the required contact information for Colorado’s
foreclosure hotline and McCarthy’s loss-mitigation representatives. See J.A. 42-43. In August 2014, petitioner
wrote to McCarthy disputing the debt and requesting
verification, directing McCarthy to “cease all unauthorized contact” about the debt pursuant to 15 U.S.C.
1692c(c), and stating that he was represented by counsel.
C.A. Supp. App. 124-125.

 9
McCarthy did not provide petitioner verification of
the debt. See Pet. App. 2a. Instead, in May 2015, it commenced a nonjudicial-foreclosure proceeding under Colorado law by filing with the public trustee a “notice of
election and demand for sale.” J.A. 39 (capitalization and
emphasis omitted). The notice stated that Wells Fargo
had “elected to accelerate the entire indebtedness”
secured by the deed of trust and directed the trustee to
“sell [the] property for the purpose of paying the indebtedness thereby secured.” J.A. 39-40. It also stated that
McCarthy “may be considered a debt collector attempting to collect a debt.” J.A. 40 (capitalization omitted).
4. a. Petitioner filed this action against McCarthy
and Wells Fargo, asserting claims in part under the
FDCPA. Pet. App. 2a-3a, 16a. The district court dismissed the suit, concluding that “the FDCPA does not
apply to non-judicial foreclosures” because “foreclosure
proceedings are not a collection of a debt” within the
meaning of the FDCPA. Id. at 20a-21a.
b. The court of appeals affirmed. Pet. App. 1a-13a.
As relevant here, the court concluded that, although
petitioner had “sufficiently pled that McCarthy failed to
verify [petitioner’s] debt after it was disputed, in violation of [15 U.S.C.] 1692g,” McCarthy “[wa]s not a debt
collector for purposes of the FDCPA” when it initiated
the nonjudicial-foreclosure proceeding because “McCarthy’s mere act of enforcing a security interest through
a non-judicial foreclosure proceeding does not fall
under the FDCPA.” Id. at 5a, 12a. The court reasoned
that “enforcing a security interest is not an attempt to
collect money from the debtor, and the consumer has no
obligation . . . to pay money.” Id. at 7a (citation and
internal quotation marks omitted). It observed that

 10
nonjudicial foreclosures differ in an “obvious and critical” respect from judicial foreclosures: they “do[ ] not
preserve to the trustee the right to collect any deficiency in the loan amount personally against the mortgagor.” Id. at 8a (citations omitted). The court also
expressed concern that, “[i]f the FDCPA applied to
non-judicial foreclosure proceedings in Colorado, it
would conflict with Colorado mortgage foreclosure
law.” Id. at 10a. It rejected the argument that a contrary reading is compelled by 15 U.S.C. 1692i, “a venue
provision” for “ ‘any legal action on a debt’ ” by a debt
collector “ ‘against any consumer.’ ” Pet. App. 9a (citation omitted). The court reserved judgment on whether
“more aggressive collection efforts leveraging the
threat of foreclosure into the payment of money” would
“constitute ‘debt collection’ ” under the Act. Id. at 11a.
SUMMARY OF ARGUMENT

Initiating a nonjudicial-foreclosure proceeding generally does not constitute debt collection under the FDCPA.
A. The FDCPA’s text and structure make clear that
enforcement of a security interest, without more, is not
debt collection except for purposes of one of the Act’s provisions. The Act creates a two-tiered framework that
defines two types of “debt collector” and imposes different obligations on each type. 15 U.S.C. 1692a(6). The
Act’s general definition of “debt collector” includes businesses whose “principal purpose” is the “collection of any
debts.” Ibid. Persons who meet the general definition
(and are not otherwise excluded) are subject to all of the
Act’s requirements. A separate definition covers businesses whose principal purpose is the “enforcement of
security interests,” but only “[f ]or the purpose of ” Section
1692f(6). Ibid. It follows that enforcing a security interest, by itself, is not debt collection, except for purposes of

 11
Section 1692f(6). Otherwise, the additional, limitedpurpose definition of debt collector would be superfluous.
That reading comports with the FDCPA’s purposes.
The Act’s express objective is to protect consumers from
certain types of abusive practices. Congress reasonably
determined that enforcing security interests in accordance with applicable law does not present the same risks
as demanding payment from debtors directly. The
enforcement of security interests has long been subject
to an extensive body of state law that provides substantial safeguards. Section 1692f(6) itself reflects that Congress did not view enforcing security interests in general
as posing a concern. Respecting the distinction Congress drew between collecting debts and enforcing security interests is also consistent with Heintz v. Jenkins,
514 U.S. 291 (1995). Heintz did not address whether
enforcing a security interest is debt collection. It held
only that the Act does not exempt lawyers engaged in litigation if their acts otherwise constitute debt collection.
B. McCarthy did not engage in debt collection by
initiating a nonjudicial-foreclosure proceeding under Colorado law. Actions that are legally required to enforce a
security interest are not debt collection under the
FDCPA—except for purposes of 15 U.S.C. 1692f(6),
which is not at issue here. Nonjudicial foreclosure is “the
enforcement of [a] security interest[ ],” 15 U.S.C. 1692a(6),
and filing a notice with a public trustee is undisputedly a
necessary step in that process in Colorado. Deeming such
activities debt collection could bring the FDCPA into conflict with state law and effectively preclude compliance
with state foreclosure procedures. No sound basis exists
to assume Congress intended that result.
C. Petitioner’s contrary arguments lack merit. His
principal contention that foreclosure also constitutes a

 12
direct and indirect attempt to collect a debt proves far
too much. On that view, all security-interest enforcement would likewise appear to be debt collection, rendering the additional definition of “debt collector” superfluous. Petitioner errs in contending (Br. 25) that the additional definition can be saved from superfluity by reading
it to reach only “classic ‘repo’ activity.” That ad hoc
interpretation has no grounding in the statute and does
not avoid surplusage in any event. Nor does the
FDCPA’s venue provision, 15 U.S.C. 1692i, classify all
foreclosure as debt collection. And the fact that the
FDCPA does not categorically exclude foreclosure
reflects that persons who undertake nonjudicial foreclosure or other methods of security-interest enforcement
are debt collectors for purposes of Section 1692f(6).
ARGUMENT
ENFORCEMENT OF A SECURITY INTEREST THROUGH A
NONJUDICIAL FORECLOSURE GENERALLY IS NOT
DEBT COLLECTION UNDER THE FDCPA

The FDCPA’s requirements generally apply only to a
“debt collector” engaged in activities “in connection with
the collection of any debt.” 15 U.S.C. 1692c(a); see
15 U.S.C. 1692c-1692g. The question here is whether
McCarthy engaged in debt collection triggering the
FDCPA provisions at issue when it initiated a nonjudicial
foreclosure against petitioner’s property. It did not. The
FDCPA draws a critical distinction between collecting
debts and enforcing security interests. The statute’s
text and structure make clear that enforcement of a
security interest, without more, is not debt collection
except for purposes of 15 U.S.C. 1692f(6), which is not
at issue in this case. Initiating a nonjudicial-foreclosure
proceeding in accordance with state law undisputedly
constitutes enforcement of a security interest. The

 13
court of appeals therefore correctly concluded that initiating nonjudicial foreclosure is not debt collection for
purposes of the FDCPA provisions at issue.
A. Enforcement Of A Security Interest, Without More,
Generally Is Not Debt Collection Under The FDCPA

The FDCPA does not define the “collection” of a debt.
Its text and structure make clear, however, that enforcement of a security interest by itself generally is not debt
collection. That conclusion comports with the Act’s purposes and this Court’s precedent.
1. The FDCPA’s text establishes a two-tiered framework by defining two types of “debt collector” and
imposing different statutory requirements on each.
First, Section 1692a(6)’s opening sentence establishes a
general definition stating that “ ‘debt collector’ means
any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due
another.” 15 U.S.C. 1692a(6). A person who meets that
general definition (and is not otherwise excluded) is subject to all of the FDCPA’s provisions.
Second, Section 1692a(6)’s third sentence sets forth
an additional definition of “debt collector” that applies
only for purposes of one FDCPA provision. 1 It states
that, “[f ]or the purpose of section 1692f(6) of this title,

The second, intervening sentence clarifies that, “[n]otwithstanding” the exclusion in paragraph (F), “debt collector” does “include[ ]
any creditor who, in the process of collecting his own debts, uses any
name other than his own which would indicate that a third person is
collecting or attempting to collect such debts.” 15 U.S.C. 1692a(6).
1

 14
such term also includes any person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the enforcement of security interests.” 15 U.S.C. 1692a(6). Section
1692f prohibits “debt collector[s]” from “us[ing] unfair
or unconscionable means to collect or attempt to collect
any debt.” 15 U.S.C. 1692f. Subsection (6) makes it “a
violation” of that prohibition to “[t]ak[e] or threaten[ ]
to take nonjudicial action to effect dispossession or disablement of property” if the debt collector lacks a “present right to possession of the property claimed as collateral through an enforceable security interest,” if
“there is no present intention to take possession of the
property,” or if “the property is exempt by law from
such dispossession or disablement.” 15 U.S.C. 1692f(6).
A person who meets Section 1692a(6)’s additional definition, but not the general definition, is a debt collector
only for purposes of Section 1692f(6) and is subject only
to that provision’s requirements.
It follows from those two definitions that enforcement of a security interest, standing alone, generally is
not debt collection under the FDCPA. It is debt collection only for the limited purpose of Section 1692f(6).
Section 1692a(6)’s third sentence, which states that the
term “debt collector” “also includes” businesses whose
principal purpose is “the enforcement of security interests,” establishes an additional definition. See Mount
Lemmon Fire Dist. v. Guido, No. 17-587 (Nov. 6, 2018),
slip op. 4 (“ ‘also’ ” in statutory definition “is a term of
enhancement; it means ‘in addition; besides’ and ‘likewise; too’ ” (citation omitted)). That additional definition
expands the term’s meaning beyond what the first sentence’s general definition covers.

 15
A contrary reading would “flout[ ] the rule that ‘a statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous.’ ” Clark v. Rameker, 134 S. Ct. 2242, 2248 (2014)
(citation omitted). If “enforcement of security interests” were a form of debt collection, there would have
been no reason for Congress to have enacted that additional definition: every person who met the additional
definition would necessarily also satisfy the general
definition, rendering the additional definition superfluous. Courts are loath to read a statute to render a definition “unnecessary.” Roberts v. Sea-Land Servs., Inc.,
566 U.S. 93, 110 (2012). Congress’s inclusion of both definitions shows that it viewed enforcement of security
interests and debt collection to be distinct.
The FDCPA’s structure powerfully confirms that
conclusion. Congress limited the additional definition
of “debt collector” to one FDCPA provision, Section
1692f(6). As the FTC’s staff explained in commentary
thirty years ago, because the FDCPA’s definition of
debt collector “includes parties whose principal business is enforcing security interests only for [Section
1692f(6)] purposes, such parties (if they do not otherwise fall within the definition) are subject only to this provision and not to the rest of the FDCPA.” 53 Fed. Reg.
50,097, 50,108 (Dec. 13, 1988). Construing “enforcement
of security interests” to be a form of debt collection,
however, would nullify Congress’s decision to impose on
security-interest enforcers only that one requirement,
instead making them subject to the entire Act. See Roberts, 566 U.S. at 111 (rejecting interpretation that

 16
would render superfluous a “carefully limited” statutory definition that applied only “[f ]or the purpose of ”
a particular subsection (citation omitted)). 2
2. Construing the FDCPA generally not to regulate
security-interest enforcement as debt collection comports
with the Act’s purposes. Congress made clear that it did
not intend categorically to bar lawful methods of enforcing consumers’ debts. It found that “[m]eans other than
misrepresentation or other abusive debt collection practices are available for the effective collection of debts” and
sought to “insure that those debt collectors who refrain
from using abusive debt collection practices are not competitively disadvantaged.” 15 U.S.C. 1692(c) and (e). Congress was focused on “abusive, deceptive, and unfair debt
collection practices” that “[e]xisting laws and procedures”
were “inadequate” to address. 15 U.S.C. 1692(a) and (b).
Enforcement of security interests in accordance with
applicable law does not implicate those concerns. Permitting security-interest holders to take or sell pledged
collateral provides creditors an alternative remedy that
does not depend on whether consumers agree or are
able to make payments. It therefore poses significantly
less risk than demanding payment from a consumer,
where the creditor or its agent may resort to abusive
tactics to persuade a consumer to pay.
Any risk of abuse is further reduced because enforcement of security interests is governed by an extensive,
The FDCPA’s legislative history indicates that this structure
was a considered compromise. Resp. Br. 25-27. An earlier bill
treated those engaged in “enforcement of security interests” as debt
collectors for all purposes, S. 918, 95th Cong., 1st Sess., § 803(f )
(1977 ), while another excluded them entirely, S. 1130, 95th Cong.,
1st Sess., § 802(8)(E) (1977 ). The enacted law struck a balance,
including such persons only for purposes of Section 1692f(6).
2

 17
well-established body of state law, which prescribes
orderly procedures to enforce such interests and provides
substantial safeguards to consumers. See pp. 4-6, supra;
Resp. Br. 42-45. Creditors and their agents must “strictly
adhere to” state-law requirements, or else the foreclosure
will likely be void. 2 Dunaway § 17:2. There is no basis to
assume that Congress deemed those state-law mechanisms inadequate or intended to federalize this traditional area of property law.
To the contrary, the FDCPA’s text and structure
reflect that Congress did not perceive the mere enforcement of security interests in accordance with applicable
law as posing the same risk of consumer harms as the
debt-collection activity to which the Act applies. Section
1692f(6) specifically addresses taking “property claimed
as collateral through an enforceable security interest,”
15 U.S.C. 1692f(6)(A), and it permits a debt collector to
do so as long as the debt collector complies with applicable law and does not threaten to take collateral it does
not actually intend to take. Section 1692f(6) forbids a
debt collector to take “nonjudicial action” to “dispossess[ ]” or “disable[  ]” collateral only if (1) the debt collector is not legally entitled to do so, either because it
lacks a “right to possession” under a security interest
or the collateral is otherwise “exempt,” 15 U.S.C.
1692f(6)(A) and (C); or (2) the debt collector has no
“present intention” to take the property, 15 U.S.C.
1692f(6)(B). And Section 1692f(6) is the only FDCPA provision that applies to persons who are debt collectors
under the additional definition because they enforce
security interests. See 15 U.S.C. 1692a(6). Congress
thus determined that laws governing security-interest
enforcement (supplemented by a prohibition on false
threats) provide adequate protection for consumers.

 18
Even petitioner accepts that Congress did not intend
to subject “typical * * * repossession agents (i.e., the
classic ‘repo men’)” to the Act’s other provisions. Pet. Br.
5; see id. at 25-26. That particular, self-help method of
security-interest enforcement often involves no direct state
supervision. If repossession does not implicate the Act’s
core concerns, then a fortiori neither do more formalized
state-law processes for enforcing security interests. 3
3. Heintz v. Jenkins, 514 U.S. 291 (1995), on which
petitioner relies (Br. 19), is not to the contrary. The
“issue before [the Court]” in Heintz “[wa]s whether the
term ‘debt collector’ in the [FDCPA] applies to a lawyer
who ‘regularly,’ through litigation, tries to collect consumer debts.” 514 U.S. at 292 (citation omitted). The
Court held that it does. See id. at 294-299.
Heintz had no occasion to address whether enforcing
a security interest constitutes debt collection, because
the case involved a direct effort to obtain repayment.
The creditor in Heintz sued a consumer to recover the
balance due on a defaulted loan, and the creditor’s lawyer
wrote to the consumer’s lawyer “[a]s part of an effort to
settle the suit,” listing the amount due. 514 U.S. at 293.
The dispute was not whether that communication otherwise constituted debt collection, but whether it was nonetheless exempt from the FDCPA on the ground that the
Act does not “apply to lawyers engaged in litigation.” Id.
at 294. The Court rejected that argument, reasoning
that “a lawyer who regularly tries to obtain payment of
consumer debts through legal proceedings is a lawyer
who regularly ‘attempts’ to ‘collect’ those consumer
debts,” and Congress had enacted but since repealed an
As discussed below, see pp. 29-31, infra, petitioner’s contention
that the additional definition of “debt collector” is confined to repossession agents is incorrect on its own terms.
3

 19
exception for lawyers collecting debts on clients’ behalf.
Ibid. (citation omitted). Heintz thus stands only for the
proposition that a lawyer who engages in conduct that
constitutes debt collection in the course of litigation is
not exempt from the Act on that basis. It does not speak
to whether enforcing a security interest is debt collection.
B. Initiating A Nonjudicial-Foreclosure Proceeding
Constitutes Enforcement Of A Security Interest And So
Generally Is Not Debt Collection Under The FDCPA

Because enforcement of a security interest by itself is
not debt collection under the FDCPA (apart from Section
1692f(6)), a person cannot violate the Act by taking actions
that are legally required to enforce a security interest.
That is dispositive here because the initiation of a Colorado nonjudicial-foreclosure proceeding undisputedly was
a required step in enforcing a security interest. 4
1. The FDCPA does not define “security interests” or
“enforcement,” so the terms should be given their “ordinary meaning.” Encino Motorcars, LLC v. Navarro,
138 S. Ct. 1134, 1140 (2018) (citation omitted); see
Heintz, 514 U.S. at 294. “Security interest” is a legal
Although not implicated here, actions that are clearly incidental
to the enforcement of a security interest also would not constitute
debt collection (unless they involve an effort to obtain repayment of
the debt) regardless of whether state law strictly requires them. For
example, state law might not require a repossession agent to send a
consumer a notice of the specific time the agent will repossess property, but the agent might do so as a courtesy to the consumer. There
is no basis to conclude that Congress intended to regulate that type
of purely informational communication as debt collection. This case
does not present that question because, as explained below, state law
undisputedly required McCarthy to file the notice with the public
trustee to initiate a nonjudicial foreclosure.
4

 20
term, and in ordinary legal usage, it generally refers to
a property interest given to a creditor to secure a debt,
granting the creditor the right to take or sell the property if the debtor does not pay. Black’s Law Dictionary
did not separately define “security interest” when the
FDCPA was enacted, but it explained that the term
“security” “is usually applied to an obligation, pledge,
mortgage, deposit, lien, etc., given by a debtor in order
to make sure the payment or performance of his debt, by
furnishing the creditor with a resource to be used in case
of failure in the principal obligation.” Black’s Law
Dictionary 1522 (4th ed. 1951). Contemporaneous nonlegal dictionaries mirrored that meaning of “security.”
See, e.g., Webster’s New International Dictionary 2263
(2d ed. 1958) (Webster’s Second ) (“Law. a. Something
given, deposited, or pledged, to make secure, or certain,
the fulfillment of an obligation, the payment of debt, etc.;
property given or serving to render secure the enjoyment or enforcement of a right.”). When “security interest” was added to Black’s Law Dictionary two years
after the Act’s enactment, it was defined as (inter alia)
“[a] form of interest in property which provides that the
property may be sold on default in order to satisfy the
obligation for which the security interest is given.”
Black’s Fifth 1217. The term carries a substantially similar meaning today. See Black’s Tenth 1562. 5
“Enforce” means (inter alia) “[t]o put in force,” to
“cause to take effect,” or “to give effect to.” Webster’s
Second 847; see Black’s Fifth 474; Black’s Tenth 645.
“[E]nforcement of security interests,” 15 U.S.C. 1692a(6),
therefore means giving force or effect to a creditor’s
Other federal statutes adopt similar definitions, tailored to their
particular contexts. See 7 U.S.C. 1631(c)(7); 11 U.S.C. 101(51),
1110(d)(2), 1168(d)(2); 26 U.S.C. 6323(h)(1); 49 U.S.C. 14301(a)(3).
5

 21
right to take or compel the sale of pledged property
in accordance with applicable law. When Congress
referred to “enforcement of security interests,” it presumably had in mind the methods of giving effect to
such rights then available under state law. For example, in the case of personal property, if a consumer
defaults on the debt, the holder of the security interest
often may take possession of or disable the property in
certain circumstances. U.C.C. § 9-609 (2017); see id.
§ 9-607(a) (describing other actions secured party may
take following a default).
Enforcement of a security interest in real property
has long taken the form of foreclosing on a mortgage—
typically through a proceeding to compel the sale of mortgaged property. See, e.g., William F. Walsh, Treatise on
Mortgages § 67, at 278 (1934). Foreclosure is critically
distinct from an action to recover on a consumer’s
personal liability to repay a debt—including to recover
any amount that remains unpaid after the property has
been sold. See Restatement § 8.2 & cmt. a. As respondent
observes (Br. 4, 21), at common law, actions to foreclose
on a mortgage were distinct from actions to recover a debt
from the mortgagor personally. Today, a State may permit a creditor to do both in one proceeding—i.e., to foreclose on a mortgage, and then to obtain a judgment
against the consumer for any deficiency, or vice versa—
but the two remedies remain distinct. See Restatement
§ 8.2. When foreclosure is divorced from any effort to
recover a remaining deficiency from the consumer, it constitutes enforcement of a security interest and so generally is not debt collection under the FDCPA.
2. Commencing a Colorado nonjudicial-foreclosure
proceeding, as McCarthy did here, is the enforcement of
a security interest. Colorado’s process allows a creditor

 22
with a security interest in real property to request that
the public trustee sell the property to enforce that interest. If the sale is approved, the trustee sells the property
and distributes the proceeds—first to lienholders, then
the remainder if any to the owner. Although Colorado’s
procedure involves a court, the creditor cannot obtain a
deficiency judgment in the same proceeding, but must
file a separate suit. See pp. 7-8, supra.
Because Colorado’s nonjudicial-foreclosure process is
a method for enforcing a security interest, action that is
legally required to invoke or prosecute a nonjudicialforeclosure proceeding is not debt collection under the
FDCPA (except for 15 U.S.C. 1692f(6)). In this case,
petitioner has not disputed that filing of the notice of election and demand with a public trustee is a required step
in pursuing nonjudicial foreclosure. McCarthy therefore
did not engage in debt collection triggering the FDCPA
provisions at issue here. 6
That conclusion also avoids potentially substantial but
likely unintended interference by federal law with statelaw processes that do not implicate the problems the
Consistent with this understanding, in a 1992 opinion letter, FTC
staff stated their view that the FDCPA does not apply to “a notice
sent by an attorney collector in connection with a non-judicial foreclosure” that was required “by statute as a condition precedent to the
enforcement of a contractual obligation between a creditor and a
debtor, whether by judicial or non-judicial process.” Office of the Secretary, FTC, Staff Opinion Letter, 1992 WL 12622329, at *3 (Oct. 8,
1992). In Vien-Phuong Thi Ho v. ReconTrust Co., 858 F.3d 568 (9th
Cir.), cert. denied, 138 S. Ct. 504 (2017), the Bureau filed an amicus
brief, at the court of appeals’ invitation, arguing that notices
required by state law to be sent to consumers to effectuate a nonjudicial foreclosure did constitute debt collection under the Act. See Gov’t
Br. at 6-20, Ho, supra (No. 10-56884). The Bureau has reconsidered
that position and now endorses the position set forth in this brief.
6

 23
FDCPA states Congress sought to address. For example,
as the court of appeals observed, Pet. App. 10a-11a, the
FDCPA prohibits a debt collector, in connection with a
debt, from communicating with third parties, 15 U.S.C.
1692c(b), or directly with a consumer whom a debt collector knows is represented by an attorney, 15 U.S.C.
1692c(a)(2). But state law—in Colorado and elsewhere—
often requires a party pursuing nonjudicial foreclosure to
do both, by advertising the foreclosure sale and sending
certain notices to the debtor. See Colo. R. Civ. P. 120(a)
and (b); Pet. App. 10a-11a; see also Vien-Phuong Thi Ho
v. ReconTrust Co., 858 F.3d 568, 575 (9th Cir.) (describing
California law), cert. denied, 138 S. Ct. 504 (2017).
It is highly unlikely that Congress intended to preclude creditors from supplying notices to the public and to
consumers that States require. Indeed, in 15 U.S.C.
1692n, Congress disclaimed any intention to “annul, alter,
or affect, or exempt any person subject to the provisions
of [the Act] from complying with the laws of any State
with respect to debt collection practices” unless they are
“inconsistent with” the FDCPA. Ibid. Given that state
law typically requires strict compliance with foreclosure
procedures, see pp. 5-6, supra, construing the FDCPA to
preclude compliance with those procedures could impede
state foreclosures. It is especially improbable that Congress intended the FDCPA to outlaw notices to the consumer and the public required by state law, because such
notices can benefit consumers in multiple ways—for
example, keeping consumers apprised of the proceedings
and their rights, and encouraging competitive bidding on
property to be sold. See Resp. Br. 43-45.
3. Although taking steps legally required to effectuate a nonjudicial foreclosure does not constitute debt

 24
collection for most FDCPA provisions, entities that pursue such foreclosures remain subject to important constraints. First, such entities must comply with applicable state law; otherwise, the foreclosure sale will likely
be invalid. See 2 Dunaway § 17:2. Second, entities that
meet the additional definition of “debt collector”
because their principal purpose is enforcing security
interests are subject to the requirements of 15 U.S.C.
1692f(6). Such entities therefore may take or threaten
nonjudicial action to dispossess or disable property only
if they have an enforceable security interest, have the
present intention to do so, and doing so is not otherwise
barred by law. Ibid. 7
Third, a person who engages in security-interest
enforcement but who goes further and undertakes other
In a footnote, the court of appeals stated that those who engage
in nonjudicial foreclosures are not subject to Section 1692f(6). Pet.
App. 7a-8a n.4. The court observed that “[Section] 1692f(6) prohibits
‘dispossession or disablement of property’ when the security
enforcer has no ‘present right to possession of the property,’ or
when the enforcer has no ‘present intention to take possession of the
property.’ ” Id. at 8a n.4. It stated that “[a] non-judicial foreclosure
proceeding does not fit this bill” because the security-interest
enforcer “has no present right to possession of the property,” and
instead “[i]t is the public trustee who holds the deed of trust and sells
the property.” Ibid. That statement was not necessary to the court’s
judgment, but it is incorrect. A person does not violate Section
1692f(6) by taking steps to carry out a nonjudicial foreclosure in
accordance with state law simply because a trustee, rather than the
person commencing foreclosure, formally holds the present right to
possession. In any event, the court appears to have conflated whether
a person carrying out a nonjudicial foreclosure is subject to Section
1692f(6) with whether the person’s conduct violates that provision.
Under the Act’s plain terms, all debt collectors—including enforcers
of security interests, who are covered only under Section 1692a(6)’s
additional definition—are subject to, and must comply with, Section
1692f(6).
7

 25
acts that themselves constitute debt collection may be
subject to the FDCPA like anyone else. For example, a
firm hired to pursue nonjudicial foreclosure that sends
the required pre-sale notices to a consumer—but also
sends letters demanding payment or using the threat of
foreclosure to pressure the consumer to pay—engages
in debt collection, even though the foreclosure itself is
not debt collection. Similarly, if an entity that seeks
foreclosure also pursues a deficiency judgment, the latter conduct would be debt collection. See, e.g., McNair
v. Maxwell & Morgan PC, 893 F.3d 680, 683 (9th Cir.
2018); Cohen v. Rosicki, Rosicki & Assocs., P.C.,
897 F.3d 75, 81 n.7 (2d Cir. 2018). The FDCPA does not
immunize persons who enforce security interests from
its requirements when they regularly engage in additional conduct that constitutes debt collection under the
Act.
Petitioner contends that “it is difficult to draw an administrable line” between enforcement of security interests and “ ‘more aggressive collection efforts.’ ” Pet. Br.
18 (quoting Pet. App. 12a). But drawing that line has not
proven too hard for federal courts in practice. 8 Most
States define precisely when the nonjudicial-foreclosure
process begins—typically, when a notice of default or
See, e.g., Ho, 858 F.3d at 574 (communications that were “limited to the foreclosure process,” “didn’t request payment,” and
“merely informed” consumer about foreclosure process were not
debt collection); Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211, 1218 (11th Cir. 2012) (defendant was engaged in debt
collection because, rather than strictly adhering to state notice
requirements, it made a demand for payment that was not required
to effectuate nonjudicial foreclosure); Piper v. Portnoff Law
Assocs., Ltd., 396 F.3d 227, 233-234 (3d Cir. 2005) (letters that
“demanded the personal payment of money” were debt collection
even though debt collector purportedly sought to “enforce a lien”).
8

 26
similar document is served or recorded. 2 Dunaway
§ 17:1. If communications occur before the process may
commence, they likely are not enforcement of a security
interest.
C. Petitioner’s Contrary Arguments Lack Merit

1. a. Petitioner principally contends (Br. 14-20,
24-26) that, regardless of whether nonjudicial foreclosure constitutes enforcement of a security interest, it is
also debt collection and thus falls under the FDCPA. In
his view (Br. 25), the Act applies to persons who collect
debts by means of enforcing a security interest, and
nonjudicial foreclosure constitutes both a “ ‘direct[ ]
[and] indirect[ ]’ method of collecting a debt.” Id. at 14
(quoting 15 U.S.C. 1692a(6)). That is incorrect.
Petitioner first argues (Br. 14-15) that “[n]on-judicial
foreclosure is a ‘direct’ attempt to collect a debt”
because state law generally requires a party seeking
foreclosure to send notices to the consumer that send a
“message” equivalent to a demand for repayment. That
is mistaken. The FDCPA’s text makes the person’s
actual conduct, not an implicit “message” a consumer
might perceive from it, the touchstone in identifying
who is a debt collector. See 15 U.S.C. 1692a(6). In any
event, although those required notices advise debtors of
their right to avoid foreclosure by paying the debt,
advising consumers of that state-law right is not tantamount to a demand for repayment. Such a notice
apprises the consumer that the creditor intends to pursue foreclosure instead of seeking repayment from the
consumer directly of part or all of the debt and that the
consumer has the option of repaying.
Moreover, other methods of enforcing security interests exist that similarly require sending notices to con-

 27
sumers and that even petitioner does not contend constitute debt collection. For example, petitioner holds
out “classic ‘repo’ activity,” such as repossession of a
vehicle, as the paradigmatic means of enforcing security
interests that is not debt collection. Pet. Br. 25. But in
the case of vehicle repossession, the model U.C.C.
requires that notice be provided to consumers after the
collateral is taken but before it is disposed of, which
informs the consumer of his rights to redeem the collateral by paying the balance owed. U.C.C. § 9-614 (2017);
see id. § 9-623 (redemption rights). Petitioner’s theory
cannot explain why those notices are not debt collection
but notices initiating nonjudicial foreclosure are.
Petitioner’s argument also proves far too much. If
he were correct that nonjudicial foreclosure constitutes
debt collection because it has the intent or effect of persuading the consumer to repay the debt, the same would
appear to be true of any other form of enforcing security
interests. For example, petitioner acknowledges (Br.
25-26) that “changing locks” is the enforcement of a
security interest and is not “debt collection” under the
Act. But physically disabling a consumer’s property
(e.g., a vehicle) is at least equally likely to have the
intent and effect of inducing the consumer to pay, and it
provides a much more powerful inducement to pay than
a “classic dunning letter[ ].” Pet. Br. 16; see generally
Michael Corkery & Jessica Silver-Greenberg, Miss a
Payment? Good Luck Moving That Car, N.Y. Times,
Sept. 24, 2014 (addressing modern electronic-disabling
technology). Even if formal notices are not required, a
tow truck removing a consumer’s vehicle from his driveway sends at least as strong a “message” to an “ordinary
consumer” (Pet. Br. 15) as a notice initiating a nonjudicialforeclosure proceeding.

 28
Petitioner also contends that “non-judicial foreclosure
is an ‘indirect’ attempt to collect a debt” because a “foreclosure sells the house to pay the debt” and thereby “liquidat[es] the borrower’s debt.” Pet. Br. 19-20 (emphasis
omitted). 9 That argument likewise proves too much.
Every enforcement of a security interest—whether by
repossession or by power of sale—necessarily entails
“payment or liquidation” of a debt in the same sense as
foreclosure. The purpose of a security interest is to
secure the consumer’s obligation to repay by giving the
creditor recourse against particular property if the consumer defaults. See pp. 4-6, 19-21, supra. And the
intended result of repossessing property is that either
the security-interest holder will recoup some or all the
value of the defaulted debt (e.g., by selling the repossessed property) or the consumer will pay the debt.
Either way, repossession (if successful) results in satisfying part or all of the outstanding debt. The fact that
the repossession agent itself may not sell the property
is equally immaterial. Once a consumer’s property has
been taken from him, whether the creditor keeps or
sells the property—and if it is sold, who conducts the
sale—has no bearing on whether the debt has been liquidated.
Petitioner’s direct and indirect debt-collection arguments thus would appear to apply to all security-interest
enforcement. The FDCPA should not be construed to
render Section 1692a(6)’s additional definition of “debt
collector” “superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews, 534 U.S. 19, 29
The general definition of “debt collector” refers to “indirect[ ]”
efforts to collect debts only with respect to persons who “regularly
collect[ ]” debts, not with respect to persons engaged in a business the
“principal purpose” of which is to collect debts. 15 U.S.C. 1692a(6).
9

 29
(2001); see id. at 31 (rejecting interpretation under
which an “express exception would be rendered ‘insignificant, if not wholly superfluous’ ” (citation omitted)).
b. Petitioner argues (Br. 25) that his position would
not render Section 1692a(6)’s additional definition of
“debt collector” superfluous if that definition is construed
to cover only “classic ‘repo’ activity.” That arbitrarily narrow reading of the additional definition lacks any basis in
text or logic, and does not even save the additional definition from superfluity under petitioner’s theory.
Petitioner’s argument requires reading “the enforcement of security interests” in Section 1692a(6) as a
cryptic euphemism for one specific form of self-help.
But “enforcement” and “security interests” are general
terms whose ordinary meanings sweep far beyond
repossession of the type petitioner describes. See
pp. 19-21, supra. “Without some indication to the contrary, general words * * * are to be accorded their full
and fair scope” and thus “must be given general effect,”
and not “arbitrarily limited.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal
Texts 101 (2012); see id. at 101-106; see, e.g., Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80
(1998). In addition, Congress referred specifically to
“dispossession” and “disablement” elsewhere in the
same statute, 15 U.S.C. 1692f(6), and petitioner reads
those words (Br. 25-26) to apply only to “classic ‘repo’
activity.” The “presum[ption] that Congress acts intentionally and purposely” in “includ[ing] particular language in one section of [the] statute but omit[ting] it in
another section of the same Act,” Russello v. United
States, 464 U.S. 16, 23 (1983) (citation omitted), counsels
strongly against reading the different, broader phrase
“enforcement of security interests” in Section 1692a(6)

 30
narrowly to encompass only “classic ‘repo’ activity.” Pet.
Br. 25.
Moreover, construing Section 1692a(6)’s definition to
encompass only “classic ‘repo’ activity,” Pet. Br. 25, and
thus to exempt only that activity from nearly all of the
FDCPA’s provisions, would turn the Act upside-down.
A repossession agency that physically removes pledged
collateral from a consumer’s residence is if anything
more naturally described as “collect[ing]” from the consumer than a creditor’s agent hired to file foreclosure
papers. 15 U.S.C. 1692a(6). And the abusive practices
and other problems that concerned Congress, see
15 U.S.C. 1692(a), seem more likely to arise if a repossession agency interacts with consumers in person. It
would be incongruous to impose fewer or no restrictions
on repossession that may involve face-to-face confrontations with consumers than on filing papers with a
state official to commence a proceeding to sell collateral
in an orderly manner—which may involve no personal
interaction with the consumer at all.
Petitioner’s interpretation would also likely leave a significant and unexplained gap in the Act’s coverage.
Properly construed, the FDCPA applies to persons who
demand repayment of a debt in kind (rather than in cash),
or who take a consumer’s unsecured property to satisfy
such a debt, because neither of those constitutes enforcing
a security interest. But on petitioner’s reading, such persons would appear to be exempt: in petitioner’s view,
repossessing property is not debt collection—so long as
the repossession agent does not communicate with the
consumer and does not itself sell the property—and
repossessing unsecured property is not enforcement of
a security interest. It is implausible that Congress left
a loophole in the statute for debt collectors who do not

 31
deal in cash and intended to leave consumers unprotected from efforts to reclaim unsecured property, yet
intended to subject foreclosure pursuant to state law to
all of the FDCPA’s requirements.
In any event, petitioner’s atextual reading of
“enforcement of security interests” to mean only “classic ‘repo’ activity” (Br. 25) does not even save the additional definition of “debt collector” from becoming surplusage on his theory. Petitioner’s arguments that nonjudicial foreclosure constitutes a direct and indirect
method of debt collection apply with full force to repossession. See pp. 27-29, supra. Repossession has the intent and effect of inducing repayment to at least the
same extent as nonjudicial foreclosure, and its intended
result is that either the debtor will repay the debt or the
collateral will be sold to satisfy part or all of the debt.
If the collateral is sold, the FDCPA’s application cannot
sensibly turn on whether the repossession agent itself
sells the collateral or turns it over to the creditor to sell.
Petitioner’s ad hoc interpretation of the additional,
limited-purpose definition of debt collector leaves it a
dead letter.
2. Petitioner also incorrectly contends (Br. 21) that
the venue requirement in 15 U.S.C. 1692i(a)(1) supports
his view that “foreclosure constitutes ‘debt collection.’ ”
Section 1692i(a)(1) provides that “[a]ny debt collector
who brings any legal action on a debt against any consumer shall[,] * * * in the case of an action to enforce
an interest in real property securing the consumer’s
obligation, bring such action only in a judicial district or
similar legal entity in which such real property is
located.” Ibid. That text does not classify an “action to
enforce an interest in real property securing the consumer’s obligation” as “debt collection.” It simply

 32
requires persons who are otherwise “debt collectors” to
bring actions to enforce security interests in real property in specified venues. See Kaltenbach v. Richard,
464 F.3d 524, 529 (5th Cir. 2006).
That reading does not leave Section 1692i with “no
realistic application.” Pet. Br. 21. Many entities that satisfy the general definition of “debt collector” engage in the
type of legal actions that Section 1692i governs. In particular, the provision often would apply to entities whose
principal purpose is carrying out judicial foreclosures—
which in some States is the exclusive means of foreclosing on residential mortgages. Moreover, Section 1692i
does not speak to nonjudicial foreclosures at all, which do
not involve bringing a “legal action on a debt against [a]
consumer.” Pet. App. 9a (citation omitted); see 2 Dunaway § 16:1; Ho, 858 F.3d at 570-571.
3. Finally, petitioner contends (Br. 21) that Congress
“excluded certain groups, but not entities pursuing foreclosures, from the FDCPA’s scope,” and infers that nonjudicial foreclosure therefore must be covered. But the
absence of such an exclusion reflects that persons who
engage in nonjudicial foreclosure (and other enforcement of security interests) are debt collectors for purposes of one FDCPA provision, Section 1692f(6). Petitioner’s assertion (Br. 23-24) that the Act’s history shows
Congress did not intend to exempt mortgages fails for
the same reason: mortgage debt is not categorically
exempt from the Act, and debt collection in connection
with a mortgage may trigger the FDCPA. Congress
simply made clear that it did not consider the enforcement of security interests by itself to be debt collection.

 33
CONCLUSION

The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
MARY MCLEOD
General Counsel
JOHN R. COLEMAN
Deputy General Counsel
STEVEN Y. BRESSLER
Assistant General Counsel
NANDAN M. JOSHI
KRISTIN BATEMAN
Counsel
Bureau of Consumer
Financial Protection

NOVEMBER 2018

NOEL J. FRANCISCO
Solicitor General
JEFFREY B. WALL
Deputy Solicitor General
JONATHAN C. BOND
Assistant to the Solicitor
General

 APPENDIX

1.

15 U.S.C. 1692 provides:

Congressional findings and declaration of purpose
(a)

Abusive practices

There is abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many
debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of
individual privacy.
(b)

Inadequacy of laws

Existing laws and procedures for redressing these
injuries are inadequate to protect consumers.
(c)

Available non-abusive collection methods

Means other than misrepresentation or other abusive debt collection practices are available for the
effective collection of debts.
(d)

Interstate commerce

Abusive debt collection practices are carried on to a
substantial extent in interstate commerce and through
means and instrumentalities of such commerce. Even
where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect
interstate commerce.
(e)

Purposes

It is the purpose of this subchapter to eliminate
abusive debt collection practices by debt collectors, to
insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively
(1a)

 2a
disadvantaged, and to promote consistent State action
to protect consumers against debt collection abuses.
2.

15 U.S.C. 1692a provides:

Definitions

As used in this subchapter—
(1) The term “Bureau” means the Bureau of
Consumer Financial Protection.
(2) The term “communication” means the conveying of information regarding a debt directly or
indirectly to any person through any medium.
(3) The term “consumer” means any natural
person obligated or allegedly obligated to pay any
debt.
(4) The term “creditor” means any person who
offers or extends credit creating a debt or to whom a
debt is owed, but such term does not include any
person to the extent that he receives an assignment
or transfer of a debt in default solely for the purpose
of facilitating collection of such debt for another.
(5) The term “debt” means any obligation or
alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of
the transaction are primarily for personal, family, or
household purposes, whether or not such obligation
has been reduced to judgment.
(6) The term “debt collector” means any person
who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of

 3a
which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due
another. Notwithstanding the exclusion provided
by clause (F) of the last sentence of this paragraph,
the term includes any creditor who, in the process of
collecting his own debts, uses any name other than
his own which would indicate that a third person is
collecting or attempting to collect such debts. For
the purpose of section 1692f(6) of this title, such
term also includes any person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the enforcement of security interests. The term does not
include—
(A) any officer or employee of a creditor while,
in the name of the creditor, collecting debts for
such creditor;
(B) any person while acting as a debt collector for another person, both of whom are related
by common ownership or affiliated by corporate
control, if the person acting as a debt collector
does so only for persons to whom it is so related
or affiliated and if the principal business of such
person is not the collection of debts;
(C) any officer or employee of the United
States or any State to the extent that collecting
or attempting to collect any debt is in the performance of his official duties;
(D) any person while serving or attempting to
serve legal process on any other person in connection with the judicial enforcement of any debt;

 4a
(E) any nonprofit organization which, at the
request of consumers, performs bona fide consumer credit counseling and assists consumers in
the liquidation of their debts by receiving payments from such consumers and distributing such
amounts to creditors; and
(F) any person collecting or attempting to
collect any debt owed or due or asserted to be
owed or due another to the extent such activity (i)
is incidental to a bona fide fiduciary obligation or
a bona fide escrow arrangement; (ii) concerns a
debt which was originated by such person; (iii)
concerns a debt which was not in default at the
time it was obtained by such person; or (iv) concerns a debt obtained by such person as a
secured party in a commercial credit transaction
involving the creditor.
(7) The term “location information” means a
consumer’s place of abode and his telephone number at such place, or his place of employment.
(8) The term “State” means any State, territory, or possession of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, or
any political subdivision of any of the foregoing.

 5a
3.

15 U.S.C. 1692b provides:

Acquisition of location information

Any debt collector communicating with any person
other than the consumer for the purpose of acquiring
location information about the consumer shall—
(1) identify himself, state that he is confirming
or correcting location information concerning the
consumer, and, only if expressly requested, identify
his employer;
(2)

not state that such consumer owes any debt;

(3) not communicate with any such person more
than once unless requested to do so by such person
or unless the debt collector reasonably believes that
the earlier response of such person is erroneous or
incomplete and that such person now has correct or
complete location information;
(4)

not communicate by post card;

(5) not use any language or symbol on any envelope or in the contents of any communication effected
by the mails or telegram that indicates that the debt
collector is in the debt collection business or that the
communication relates to the collection of a debt;
and
(6) after the debt collector knows the consumer
is represented by an attorney with regard to the
subject debt and has knowledge of, or can readily
ascertain, such attorney’s name and address, not
communicate with any person other than that
attorney, unless the attorney fails to respond within
a reasonable period of time to communication from
the debt collector.

 6a
4.

15 U.S.C. 1692c provides:

Communication in connection with debt collection
(a)

Communication with the consumer generally

Without the prior consent of the consumer given
directly to the debt collector or the express permission
of a court of competent jurisdiction, a debt collector
may not communicate with a consumer in connection
with the collection of any debt—
(1) at any unusual time or place or a time or
place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for
communicating with a consumer is after 8 o’clock
antemeridian and before 9 o’clock postmeridian,
local time at the consumer’s location;
(2) if the debt collector knows the consumer is
represented by an attorney with respect to such
debt and has knowledge of, or can readily ascertain,
such attorney’s name and address, unless the attorney fails to respond within a reasonable period of
time to a communication from the debt collector or
unless the attorney consents to direct communication with the consumer; or
(3) at the consumer’s place of employment if the
debt collector knows or has reason to know that the
consumer’s employer prohibits the consumer from
receiving such communication.
(b)

Communication with third parties

Except as provided in section 1692b of this title,
without the prior consent of the consumer given directly

 7a
to the debt collector, or the express permission of a
court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a
debt collector may not communicate, in connection with
the collection of any debt, with any person other than
the consumer, his attorney, a consumer reporting
agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt
collector.
(c)

Ceasing communication

If a consumer notifies a debt collector in writing
that the consumer refuses to pay a debt or that the
consumer wishes the debt collector to cease further
communication with the consumer, the debt collector
shall not communicate further with the consumer with
respect to such debt, except—
(1) to advise the consumer that the debt collector’s further efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which
are ordinarily invoked by such debt collector or
creditor; or
(3) where applicable, to notify the consumer
that the debt collector or creditor intends to invoke
a specified remedy.
If such notice from the consumer is made by mail,
notification shall be complete upon receipt.
(d)

“Consumer” defined

For the purpose of this section, the term “consumer”
includes the consumer’s spouse, parent (if the consumer
is a minor), guardian, executor, or administrator.

 8a
5.

15 U.S.C. 1692d provides:

Harassment or abuse

A debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress, or
abuse any person in connection with the collection of a
debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this
section:
(1) The use or threat of use of violence or other
criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or
language the natural consequence of which is to
abuse the hearer or reader.
(3) The publication of a list of consumers who
allegedly refuse to pay debts, except to a consumer
reporting agency or to persons meeting the requirements of section 1681a(f ) or 1681b(3) 1 of this title.
(4) The advertisement for sale of any debt to
coerce payment of the debt.
(5) Causing a telephone to ring or engaging any
person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any
person at the called number.
(6) Except as provided in section 1692b of this
title, the placement of telephone calls without meaningful disclosure of the caller’s identity.

1

See References in Text note below

 9a
6.

15 U.S.C. 1692e provides:

False or misleading representations

A debt collector may not use any false, deceptive, or
misleading representation or means in connection with
the collection of any debt. Without limiting the general application of the foregoing, the following conduct
is a violation of this section:
(1) The false representation or implication that
the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including
the use of any badge, uniform, or facsimile thereof.
(2)

The false representation of—

(A) the character, amount, or legal status of
any debt; or
(B) any services rendered or compensation
which may be lawfully received by any debt collector for the collection of a debt.
(3) The false representation or implication that
any individual is an attorney or that any communication is from an attorney.
(4) The representation or implication that nonpayment of any debt will result in the arrest or
imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of
any person unless such action is lawful and the debt
collector or creditor intends to take such action.
(5) The threat to take any action that cannot
legally be taken or that is not intended to be taken.

 10a
(6) The false representation or implication that
a sale, referral, or other transfer of any interest in a
debt shall cause the consumer to—
(A) lose any claim or defense to payment of
the debt; or
(B) become subject to any practice prohibited by this subchapter.
(7) The false representation or implication that
the consumer committed any crime or other conduct
in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person credit information which is
known or which should be known to be false, including the failure to communicate that a disputed debt
is disputed.
(9) The use or distribution of any written communication which simulates or is falsely represented
to be a document authorized, issued, or approved by
any court, official, or agency of the United States or
any State, or which creates a false impression as to
its source, authorization, or approval.
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or
to obtain information concerning a consumer.
(11) The failure to disclose in the initial written
communication with the consumer and, in addition,
if the initial communication with the consumer is
oral, in that initial oral communication, that the debt
collector is attempting to collect a debt and that any
information obtained will be used for that purpose,
and the failure to disclose in subsequent communi-

 11a
cations that the communication is from a debt collector, except that this paragraph shall not apply to
a formal pleading made in connection with a legal
action.
(12) The false representation or implication that
accounts have been turned over to innocent purchasers for value.
(13) The false representation or implication that
documents are legal process.
(14) The use of any business, company, or organization name other than the true name of the debt
collector’s business, company, or organization.
(15) The false representation or implication that
documents are not legal process forms or do not
require action by the consumer.
(16) The false representation or implication that
a debt collector operates or is employed by a consumer reporting agency as defined by section
1681a(f ) of this title.
7.

15 U.S.C. 1692f provides:

Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.
Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any
interest, fee, charge, or expense incidental to the
principal obligation) unless such amount is expressly

 12a
authorized by the agreement creating the debt or
permitted by law.
(2) The acceptance by a debt collector from any
person of a check or other payment instrument postdated by more than five days unless such person is
notified in writing of the debt collector’s intent to
deposit such check or instrument not more than ten
nor less than three business days prior to such
deposit.
(3) The solicitation by a debt collector of any
postdated check or other postdated payment instrument for the purpose of threatening or instituting
criminal prosecution.
(4) Depositing or threatening to deposit any
postdated check or other postdated payment instrument prior to the date on such check or instrument.
(5) Causing charges to be made to any person
for communications by concealment of the true purpose of the communication. Such charges include,
but are not limited to, collect telephone calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of
property if—
(A) there is no present right to possession of
the property claimed as collateral through an
enforceable security interest;
(B) there is no present intention to take
possession of the property; or
(C) the property is exempt by law from such
dispossession or disablement.

 13a
(7) Communicating with a consumer regarding
a debt by post card.
(8) Using any language or symbol, other than
the debt collector’s address, on any envelope when
communicating with a consumer by use of the mails
or by telegram, except that a debt collector may use
his business name if such name does not indicate
that he is in the debt collection business.
8.

15 U.S.C. 1692g provides:

Validation of debts
(a)

Notice of debt; contents

Within five days after the initial communication with
a consumer in connection with the collection of any
debt, a debt collector shall, unless the following information is contained in the initial communication or the
consumer has paid the debt, send the consumer a written notice containing—
(1)

the amount of the debt;

(2) the name of the creditor to whom the debt is
owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the
validity of the debt, or any portion thereof, the debt
will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the
debt collector in writing within the thirty-day period
that the debt, or any portion thereof, is disputed, the
debt collector will obtain verification of the debt or a
copy of a judgment against the consumer and a copy

 14a
of such verification or judgment will be mailed to the
consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt
collector will provide the consumer with the name
and address of the original creditor, if different from
the current creditor.
(b)

Disputed debts

If the consumer notifies the debt collector in writing
within the thirty-day period described in subsection (a)
of this section that the debt, or any portion thereof, is
disputed, or that the consumer requests the name and
address of the original creditor, the debt collector shall
cease collection of the debt, or any disputed portion
thereof, until the debt collector obtains verification of
the debt or a copy of a judgment, or the name and
address of the original creditor, and a copy of such
verification or judgment, or name and address of the
original creditor, is mailed to the consumer by the debt
collector. Collection activities and communications
that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection
(a) unless the consumer has notified the debt collector
in writing that the debt, or any portion of the debt, is
disputed or that the consumer requests the name and
address of the original creditor. Any collection activities and communication during the 30-day period may
not overshadow or be inconsistent with the disclosure
of the consumer’s right to dispute the debt or request
the name and address of the original creditor.

 15a
(c)

Admission of liability

The failure of a consumer to dispute the validity of a
debt under this section may not be construed by any
court as an admission of liability by the consumer.
(d)

Legal pleadings

A communication in the form of a formal pleading in
a civil action shall not be treated as an initial communication for purposes of subsection (a).
(e)

Notice provisions

The sending or delivery of any form or notice which
does not relate to the collection of a debt and is
expressly required by title 26, title V of Gramm-LeachBliley Act [15 U.S.C. 6801 et seq.], or any provision of
Federal or State law relating to notice of data security
breach or privacy, or any regulation prescribed under
any such provision of law, shall not be treated as an
initial communication in connection with debt collection
for purposes of this section.
9.

15 U.S.C. 1692h provides:

Multiple debts

If any consumer owes multiple debts and makes any
single payment to any debt collector with respect to
such debts, such debt collector may not apply such
payment to any debt which is disputed by the consumer
and, where applicable, shall apply such payment in
accordance with the consumer’s directions.

 16a
10. 15 U.S.C. 1692i provides:
Legal actions by debt collectors
(a)

Venue

Any debt collector who brings any legal action on a
debt against any consumer shall—
(1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or
similar legal entity in which such real property is
located; or
(2) in the case of an action not described in
paragraph (1), bring such action only in the judicial
district or similar legal entity—
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the
commencement of the action.
(b)

Authorization of actions

Nothing in this subchapter shall be construed to
authorize the bringing of legal actions by debt collectors.
11.

15 U.S.C. 1692j provides:

Furnishing certain deceptive forms

(a) It is unlawful to design, compile, and furnish
any form knowing that such form would be used to
create the false belief in a consumer that a person
other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt

 17a
such consumer allegedly owes such creditor, when in
fact such person is not so participating.
(b) Any person who violates this section shall be
liable to the same extent and in the same manner as a
debt collector is liable under section 1692k of this title for
failure to comply with a provision of this subchapter.
12.

15 U.S.C. 1692k provides:

Civil liability
(a)

Amount of damages

Except as otherwise provided by this section, any
debt collector who fails to comply with any provision of
this subchapter with respect to any person is liable to
such person in an amount equal to the sum of—
(1) any actual damage sustained by such person
as a result of such failure;
(2)(A)  in the case of any action by an individual,
such additional damages as the court may allow, but
not exceeding $1,000; or
(B) in the case of a class action, (i) such amount
for each named plaintiff as could be recovered under
subparagraph (A), and (ii) such amount as the court
may allow for all other class members, without regard
to a minimum individual recovery, not to exceed the
lesser of $500,000 or 1 per centum of the net worth
of the debt collector; and
(3) in the case of any successful action to enforce
the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined
by the court. On a finding by the court that an

 18a
action under this section was brought in bad faith
and for the purpose of harassment, the court may
award to the defendant attorney’s fees reasonable in
relation to the work expended and costs.
(b)

Factors considered by court

In determining the amount of liability in any action
under subsection (a) of this section, the court shall consider, among other relevant factors—
(1) in any individual action under subsection
(a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the
nature of such noncompliance, and the extent to which
such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B)
of this section, the frequency and persistence of
noncompliance by the debt collector, the nature of
such noncompliance, the resources of the debt collector, the number of persons adversely affected,
and the extent to which the debt collector’s noncompliance was intentional.
(c)

Intent

A debt collector may not be held liable in any action
brought under this subchapter if the debt collector
shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide
error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.
(d)

Jurisdiction

An action to enforce any liability created by this
subchapter may be brought in any appropriate United
States district court without regard to the amount in

 19a
controversy, or in any other court of competent jurisdiction, within one year from the date on which the
violation occurs.
(e)

Advisory opinions of Bureau

No provision of this section imposing any liability
shall apply to any act done or omitted in good faith in
conformity with any advisory opinion of the Bureau,
notwithstanding that after such act or omission has
occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for
any reason.
13. 15 U.S.C. 1692l provides:
Administrative enforcement
(a)

Federal Trade Commission

The Federal Trade Commission shall be authorized
to enforce compliance with this subchapter, except to the
extent that enforcement of the requirements imposed
under this subchapter is specifically committed to another Government agency under any of paragraphs (1)
through (5) of subsection (b), subject to subtitle B of
the Consumer Financial Protection Act of 2010 [12
U.S.C. 5511 et seq.]. For purpose of the exercise by
the Federal Trade Commission of its functions and
powers under the Federal Trade Commission Act (15
U.S.C. 41 et seq.), a violation of this subchapter shall be
deemed an unfair or deceptive act or practice in violation of that Act. All of the functions and powers of the
Federal Trade Commission under the Federal Trade
Commission Act are available to the Federal Trade
Commission to enforce compliance by any person with

 20a
this subchapter, irrespective of whether that person is
engaged in commerce or meets any other jurisdictional
tests under the Federal Trade Commission Act, including the power to enforce the provisions of this subchapter, in the same manner as if the violation had
been a violation of a Federal Trade Commission trade
regulation rule.
(b)

Applicable provisions of law

Subject to subtitle B of the Consumer Financial
Protection Act of 2010, compliance with any requirements imposed under this subchapter shall be enforced
under—
(1) section 8 of the Federal Deposit Insurance
Act [12 U.S.C. 1818], by the appropriate Federal
banking agency, as defined in section 3(q) of the
Federal Deposit Insurance Act (12 U.S.C. 1813(q)),
with respect to—
(A) national banks, Federal savings associations, and Federal branches and Federal agencies of foreign banks;
(B) member banks of the Federal Reserve
System (other than national banks), branches and
agencies of foreign banks (other than Federal
branches, Federal agencies, and insured State
branches of foreign banks), commercial lending
companies owned or controlled by foreign banks,
and organizations operating under section 25 or
25A of the Federal Reserve Act [12 U.S.C. 601
et seq., 611 et seq.]; and
(C) banks and State savings associations
insured by the Federal Deposit Insurance Corporation (other than members of the Federal

 21a
Reserve System), and insured State branches of
foreign banks;
(2) the Federal Credit Union Act [12 U.S.C.
1751 et seq.], by the Administrator of the National
Credit Union Administration with respect to any
Federal credit union;
(3) subtitle IV of title 49, by the Secretary of
Transportation, with respect to all carriers subject
to the jurisdiction of the Surface Transportation
Board;
(4) part A of subtitle VII of title 49, by the Secretary of Transportation with respect to any air carrier or any foreign air carrier subject to that part;
(5) the Packers and Stockyards Act, 1921
[7 U.S.C. 181 et seq.] (except as provided in section
406 of that Act [7 U.S.C. 226, 227]), by the Secretary
of Agriculture with respect to any activities subject
to that Act; and
(6) subtitle E of the Consumer Financial Protection Act of 2010 [12 U.S.C. 5561 et seq.], by the
Bureau, with respect to any person subject to this
subchapter.
The terms used in paragraph (1) that are not defined in
this subchapter or otherwise defined in section 3(s) of
the Federal Deposit Insurance Act (12 U.S.C. 1813(s))
shall have the meaning given to them in section 1(b) of
the International Banking Act of 1978 (12 U.S.C. 3101).
(c)

Agency powers

For the purpose of the exercise by any agency
referred to in subsection (b) of this section of its powers under any Act referred to in that subsection, a

 22a
violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to
in subsection (b) of this section, each of the agencies
referred to in that subsection may exercise, for the
purpose of enforcing compliance with any requirement
imposed under this subchapter any other authority
conferred on it by law, except as provided in subsection
(d) of this section.
(d)

Rules and regulations

Except as provided in section 1029(a) of the Consumer Financial Protection Act of 2010 [12 U.S.C.
5519(a)], the Bureau may prescribe rules with respect
to the collection of debts by debt collectors, as defined
in this subchapter.
14.

15 U.S.C. 1692m provides:

Reports to Congress by the Bureau; views of other Federal
agencies

(a) Not later than one year after the effective date
of this subchapter and at one-year intervals thereafter,
the Bureau shall make reports to the Congress concerning the administration of its functions under this
subchapter, including such recommendations as the
Bureau deems necessary or appropriate. In addition,
each report of the Bureau shall include its assessment
of the extent to which compliance with this subchapter
is being achieved and a summary of the enforcement
actions taken by the Bureau under section 1692l of this
title.

 23a
(b) In the exercise of its functions under this subchapter, the Bureau may obtain upon request the views
of any other Federal agency which exercises enforcement functions under section 1692l of this title.
15. 15 U.S.C. 1692n provides:
Relation to State laws

This subchapter does not annul, alter, or affect, or
exempt any person subject to the provisions of this
subchapter from complying with the laws of any State
with respect to debt collection practices, except to the
extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of
the inconsistency. For purposes of this section, a
State law is not inconsistent with this subchapter if the
protection such law affords any consumer is greater
than the protection provided by this subchapter.
16. 15 U.S.C. 1692o provides:
Exemption for State regulation

The Bureau shall by regulation exempt from the
requirements of this subchapter any class of debt collection practices within any State if the Bureau determines that under the law of that State that class of debt
collection practices is subject to requirements substantially similar to those imposed by this subchapter, and
that there is adequate provision for enforcement.

 24a
17. 15 U.S.C. 1692p provides:
Exception for certain bad check enforcement programs
operated by private entities
(a)

In general
(1)

Treatment of certain private entities

Subject to paragraph (2), a private entity shall be
excluded from the definition of a debt collector, pursuant to the exception provided in section 1692a(6) of this
title, with respect to the operation by the entity of a
program described in paragraph (2)(A) under a contract described in paragraph (2)(B).
(2)

Conditions of applicability

Paragraph (1) shall apply if—
(A) a State or district attorney establishes,
within the jurisdiction of such State or district attorney and with respect to alleged bad check violations that do not involve a check described in subsection (b), a pretrial diversion program for alleged
bad check offenders who agree to participate voluntarily in such program to avoid criminal prosecution;
(B) a private entity, that is subject to an administrative support services contract with a State or
district attorney and operates under the direction,
supervision, and control of such State or district
attorney, operates the pretrial diversion program
described in subparagraph (A); and
(C) in the course of performing duties delegated
to it by a State or district attorney under the contract, the private entity referred to in subparagraph
(B)—

 25a
(i)

complies with the penal laws of the State;

(ii) conforms with the terms of the contract
and directives of the State or district attorney;
(iii) does not exercise independent prosecutorial discretion;
(iv) contacts any alleged offender referred to
in subparagraph (A) for purposes of participating
in a program referred to in such paragraph—
(I) only as a result of any determination
by the State or district attorney that probable
cause of a bad check violation under State
penal law exists, and that contact with the
alleged offender for purposes of participation
in the program is appropriate; and
(II) the alleged offender has failed to pay
the bad check after demand for payment,
pursuant to State law, is made for payment of
the check amount;
(v) includes as part of an initial written communication with an alleged offender a clear and
conspicuous statement that—
(I) the alleged offender may dispute the
validity of any alleged bad check violation;
(II) where the alleged offender knows, or
has reasonable cause to believe, that the alleged
bad check violation is the result of theft or forgery of the check, identity theft, or other fraud
that is not the result of the conduct of the
alleged offender, the alleged offender may file
a crime report with the appropriate law
enforcement agency; and

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(III) if the alleged offender notifies the
private entity or the district attorney in writing, not later than 30 days after being contacted for the first time pursuant to clause
(iv), that there is a dispute pursuant to this
subsection, before further restitution efforts
are pursued, the district attorney or an
employee of the district attorney authorized to
make such a determination makes a determination that there is probable cause to believe
that a crime has been committed; and
(vi) charges only fees in connection with services under the contract that have been authorized
by the contract with the State or district attorney.
(b)

Certain checks excluded

A check is described in this subsection if the check
involves, or is subsequently found to involve—
(1) a postdated check presented in connection
with a payday loan, or other similar transaction,
where the payee of the check knew that the issuer
had insufficient funds at the time the check was
made, drawn, or delivered;
(2) a stop payment order where the issuer acted
in good faith and with reasonable cause in stopping
payment on the check;
(3) a check dishonored because of an adjustment to the issuer’s account by the financial institution holding such account without providing notice
to the person at the time the check was made, drawn,
or delivered;

 27a
(4) a check for partial payment of a debt where
the payee had previously accepted partial payment
for such debt;
(5) a check issued by a person who was not
competent, or was not of legal age, to enter into a
legal contractual obligation at the time the check
was made, drawn, or delivered; or
(6) a check issued to pay an obligation arising
from a transaction that was illegal in the jurisdiction
of the State or district attorney at the time the
check was made, drawn, or delivered.
(c)

Definitions

For purposes of this section, the following definitions shall apply:
(1)

State or district attorney

The term “State or district attorney” means the
chief elected or appointed prosecuting attorney in a
district, county (as defined in section 2 of title 1),
municipality, or comparable jurisdiction, including
State attorneys general who act as chief elected or
appointed prosecuting attorneys in a district, county
(as so defined), municipality or comparable jurisdiction, who may be referred to by a variety of titles
such as district attorneys, prosecuting attorneys,
commonwealth’s attorneys, solicitors, county attorneys, and state’s attorneys, and who are responsible
for the prosecution of State crimes and violations of
jurisdiction-specific local ordinances.

 28a
(2)

Check

The term “check” has the same meaning as in
section 5002(6) of title 12.
(3)

Bad check violation

The term “bad check violation” means a violation
of the applicable State criminal law relating to the
writing of dishonored checks.