Manuel v. Merchants and Prof Bur

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50814

SILVIA MANUEL,

Plaintiff - Appellee

v.

MERCHANTS AND PROFESSIONAL BUREAU, INCORPORATED,

Defendant - Appellant

Appeals from the United States District Court
for the Western District of Texas

Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit
Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:
This Fair Debt Collection Practices Act (“FDCPA”) appeal concerns the
collection of debt too old to be legally enforced under the applicable statute of
limitations. In 2016, we held in Daugherty v. Convergent Outsourcing, Inc.,
that “a collection letter seeking payment on a time-barred debt (without
disclosing its unenforceability) but offering a ‘settlement’ and inviting partial
payment (without disclosing the possible pitfalls) could constitute a violation
of the FDCPA.”
1
Here, the collection letters did not expressly threaten

1
836 F.3d 507, 513 (5th Cir. 2016).
United States Court of Appeals
Fifth Circuit
FILED
April 29, 2020

Lyle W. Cayce
Clerk
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2
litigation or offer a settlement. Still, the district court, leaning on Daugherty
and the out-of-circuit cases it endorsed, held that letters seeking collection of
time-barred debt that do not flag the existence and operation of statutes of
limitations are misleading as a matter of law. On that basis, it granted
Appellee Silvia Manuel partial summary judgment on one of her FDCPA
claims. Appellant Merchants and Professional Bureau, Inc. (“Merchants”)
timely appealed this order. As the letters in question were misleading for more
than their mere silence as to the age and time-barred nature of the debt, we
leave for another day whether such silence on its own is misleading as a matter
of law. We affirm summary judgment on alternate grounds.
I.
A.
Manuel owes Texas Orthopedics, Sports and Rehabilitation Associates
(“Texas Orthopedics”) a $250 debt for services from December 2010 and
January 2011. No payments have been made on the debt, which was
transferred to Merchants for collection. Merchants sent Manuel six collection
letters in 2011 and, after six years with seemingly no collection effort, it sent
four more in 2017. When Merchants sent the 2017 letters, it is undisputed that
the four-year Texas statute of limitations barred any lawsuit to collect the debt.
At issue here, these letters did not disclose (1) that a lawsuit seeking payment
of the debt was time-barred or (2) that any partial payment might defeat a
statute-of-limitations defense.
The first letter at issue, dated October 2, 2017, stated in relevant part:
YOU OWE: TX ORTHOPEDICS, SPORTS, & REHAB

AMOUNT DUE: $250.00

Urgent! Payment has not been received!

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In reviewing your account today, we show you still have an unpaid
balance due. Please remit your balance due immediately in order
to prevent any additional collection efforts, such as personal phone
calls.

Payment may be made over the phone, by mail or through our
secure website shown above. We report unpaid collection accounts
to the three national credit reporting repositories. Check by phone
and major credit cards accepted by phone, with no service fees
added.

The second, dated October 10, 2017, was written in Spanish and stated
in relevant part:
YOU OWE: TX ORTHOPEDICS, SPORTS, & REHAB

AMOUNT DUE: $250.00

IMPORTANT NOTICE:

Your account is being reevaluated. We must notify you of
additional collection efforts, such as phone calls, can be anticipated
if you don’t pay your account immediately.

Pay this debt now to suspend these efforts. We report statements
in collection to the national credit repositories.
2

The third, dated October 17, 2017, was also written in Spanish and
stated in relevant part:
YOU OWE: TX ORTHOPEDICS, SPORTS, & REHAB

AMOUNT DUE: $250.00

Important Warning

You have only one more opportunity to stop all collection efforts.
Make payment arrangements immediately.

2
The quoted text is from the district court’s reproduction and translation. The parties
do not object to the translated text as analyzed by the district court.
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Please call our office today to make a complete payment or to make
payment arrangements on the balance due. We report to the three
national repositories.

Finally, the fourth, dated October 25, 2017, again written in Spanish,
stated:
YOU OWE: TX ORTHOPEDICS, SPORTS, & REHAB

AMOUNT DUE: $250.00

Account eliminated when it is paid.

Our client has authorized the elimination of this element of your
credit history, but we need to receive your complete payment
immediately! In most cases this should improve your credit points
since this will be eliminated completely from your credit history.
As you know, a good credit score is more essential than ever. We
will notify all the credit reporting agencies when the bill is paid.

This is a very special offer. Please take advantage of this now.

B.
In March 2018, Manuel sued Merchants and Merchants’s surety,
Travelers Casualty and Surety Company of America (“Travelers”). Manuel
brought claims under the FDCPA, alleging the 2017 letters were false or
misleading (15 U.S.C. § 1692e) and unfair or unconscionable (15 U.S.C. §
1692f) for failing to disclose the time-barred nature of the debt. Manuel also
brought a claim under the Texas Debt Collection Act based on the same
conduct. Manuel argued that the 2017 letters violated the Texas and federal
statutes by failing to inform her that the debt was time-barred and thus
judicially unenforceable, and that any partial payment could reinstate the
statute of limitations. Manuel also contended that the threat to use “additional
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collection efforts” could induce an unsophisticated consumer to anticipate
litigation.
In December 2018, Manuel moved for partial summary judgment on her
§ 1692e claim. Merchants then filed its own summary judgment motion. With
these motions pending, the parties filed a joint stipulation narrowing the case.
They stipulated that Manuel dismissed all claims against Travelers, leaving
Merchants as the only defendant, and that Manuel dismissed without
prejudice her TDCA claim. Finally, they stipulated that Manuel did not seek
actual damages, and if she won summary judgment she would receive the
maximum $1,000 statutory damages rather than proceed to trial on that issue.
The district court granted summary judgment for Manuel on her § 1692e
claim, concluding
that a debt collection letter that does not inform the consumer that
judicial enforcement of the debt is time-barred or that any partial
payment on the debt could defeat the otherwise absolute defense
of the statute of limitations is a ‘false representation of the
character, amount, or legal status of any debt’ under 15 U.S.C. §
1692e(2)(A) and the use of a ‘false representation or deceptive
means to collect or attempt to collect any debt’ under 15 U.S.C. §
1692e(10).

Since the letters were misleading under § 1692e, and “there is a growing
consensus” that a claim under § 1692f is a “backstop” to catch conduct outside
that barred by § 1692e and other provisions, the court granted summary
judgment to Merchants on Manuel’s § 1692f claim. Merchants timely appealed.
II.
This Court reviews a grant of summary judgment de novo, applying the
same standard as the district court.
3
Summary judgment is warranted “if the
movant shows that there is no genuine dispute as to any material fact and the

3
Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010).
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movant is entitled to judgment as a matter of law.”
4
“This court may affirm the
district court’s grant of summary judgment on any ground supported by the
record and presented to the district court.”
5

III.
A.
The FDCPA’s purpose is to “eliminate abusive debt collection practices
by debt collectors[.]”
6
Because “Congress . . . clearly intended the FDCPA to
have a broad remedial scope[,]” it should “be construed broadly and in favor of
the consumer.”
7
The provisions of § 1692e relied on by Manuel are as follows:
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:
. . . .
(2) The false representation of—
(A) the character, amount, or legal status of any
debt; . . . .
(5) The threat to take any action that cannot legally be taken
or that is not intended to be taken.
. . . .
(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.
8

The parties do not dispute that Merchants is a debt collector as
understood by the FDCPA or that Manuel was the object of debt-collection
activity arising from a consumer debt. This leaves the sole issue of whether

4
FED. R. CIV. P. 56(a).
5
Salinas v. R.A. Rogers, Inc., 952 F.3d 680, 682 (5th Cir. 2020).
6
15 U.S.C. § 1692(e).
7
Daugherty, 836 F.3d at 511 (5th Cir. 2016) (quoting Serna v. Law Office of Joseph
Onwuteaka, P.C., 732 F.3d 440, 445 (5th Cir. 2013) (emphasis omitted)).
8
15 U.S.C. § 1692e.
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Merchants’s letters “use[d] any false, deceptive, or misleading representation
or means in connection with the collection of any debt.”
9

“When evaluating whether a collection letter violates § 1692e or § 1692f,
a court must view the letter from the perspective of an ‘unsophisticated or least
sophisticated consumer.’”
10
The unsophisticated consumer is “neither shrewd
nor experienced in dealing with creditors[,]” but neither is that consumer “tied
to the very last rung on the intelligence or sophistication ladder.”
11
While “[w]e
have not formally picked sides” in the circuit debate over whether application
of the unsophisticated-consumer standard is a question of law or fact, we
“generally treat the issue as a question of law, as we do again here.”
12

B.
Our decision in Daugherty is central to this appeal. There, a debt
collector offered to “settle” the plaintiff’s old credit card debt of roughly $32,000
for a payment of roughly $3,000.
13
We held that “a collection letter that is silent
as to litigation, but which offers to ‘settle’ a timebarred debt without
acknowledging that such debt is judicially unenforceable, can be sufficiently
deceptive or misleading to violate the FDCPA.”
14
In doing so we “agree[d] with
the Seventh Circuit’s interpretation of the FDCPA in [McMahon v. LVNV

9
15 U.S.C. § 1692e.
10
Daugherty, 836 F.3d at 511 (quoting McMurray v. ProCollect, Inc., 687 F.3d 665,
669 (5th Cir. 2012)). We generally refer to the “unsophisticated consumer” and “least
sophisticated consumer” standards interchangeably as “unsophisticated consumers.” Id. at
511 n.2. (citing Peter v. G.C. Servs. L.P., 310 F.3d 344, 349 n.1 (5th Cir. 2002) (opting not to
decide which of the two standards governs because “the difference between the standards is
de minimis at most”)).
11
Id. (quoting Goswami v. Am. Collections Enter., 377 F.3d 488, 495 (5th Cir. 2004)
(cleaned up)).
12
Salinas, 952 F.3d at 683 n.2 (citing Gonzalez v. Kay, 577 F.3d 600, 610 (5th Cir.
2009) (Jolly, J., dissenting)) (citation omitted).
13
Daugherty, 836 F.3d at 509.
14
Id. at 511.
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Funding, LLC,
15
] and with the Sixth Circuit’s opinion in [Buchanan v.
Northland Group, Inc,
16
] insofar as it is consistent with McMahon.”
17

In McMahon, the Seventh Circuit noted it is not “automatically
improper” to seek payment of old debts, as “some people might consider full
debt re-payment a moral obligation, even though the legal remedy for the debt
has been extinguished.”
18
But the letters at issue, which offered to “settle”
time-barred debt that did not state when the debt was incurred and otherwise
“contained no hint” that the debt was time-barred, misrepresented the legal
status of the debts.
19
The silence as to the debt’s age was worsened by the offers
of settlement, “since a gullible consumer who made a partial payment would
inadvertently have reset the limitations period and made herself vulnerable to
a suit on the full amount.”
20
The settlement offers thus “reinforced the
misleading impression that the debt was legally enforceable.”
21
As support, the
court pointed to the view of the FTC and CFPB that most consumers do not

15
744 F.3d 1010 (7th Cir. 2014).
16
776 F.3d 393 (6th Cir. 2015).
17
Daugherty, 836 F.3d at 513. This required a choice between an “apparent conflict”
between these circuits and the Third and Eighth Circuits, which had concluded that “[i]n the
absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred
when a debt collector attempts to collect on a potentially time-barred debt that is otherwise
valid.” Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 33 (3d Cir. 2011) (quoting Freyermuth v.
Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir. 2001)).
Since then, the Eleventh Circuit has joined the approach of Daugherty, McMahon, and
Buchanan. See Holzman v. Malcolm S. Gerald & Assocs., Inc., 920 F.3d 1264, 1267 (11th Cir.
2019) (extending the reasoning of these cases to an offer to “resolve” an account with a
“balance reduction”). So has the Third Circuit, cabining its Huertas decision to the specific
provision it discussed, § 1692e(2)(A), and holding that a letter regarding time-barred debt
can mislead even without threatening suit. See Tatis v. Allied Interstate, LLC, 882 F.3d 422,
427–30 (3d Cir. 2018); see also id. at 429 (endorsing the “considered view” of Daugherty,
McMahon, and Buchanan as “the best interpretation of the FDCPA” and concluding that a
“threat of litigation” requirement overly restricts the terms “deceptive” and “misleading”).
18
McMahon, 744 F.3d at 1020.
19
Id. at 1013, 1014–15, 1021.
20
Id.
21
Id.
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understand their legal rights regarding time-barred debt.
22
“If unsophisticated
consumers believe either that the settlement offer is their chance to avoid court
proceedings where they would be defenseless, or if they believe that the debt
is legally enforceable at all, they have been misled[.]”
23

Finally, McMahon sought to dispel the idea that its decision requires
additional research by debt collectors. While McMahon expected most
collectors would know the age and legal enforceability of a debt, it noted that
a collector who does not know whether a debt is time-barred could easily
“include general language about that possibility.”
24

Our court’s most recent FDCPA case regarding old debt is Mahmoud v.
De Moss Owners Association.
25
In Mahmoud, which concerned a foreclosure
sale on a condominium unit, the plaintiffs brought FDCPA claims, alleging in
part that the attorneys who acted as debt collectors misrepresented the
character or legal status of the debt in their collection letters because about 25
percent of the debt was allegedly time-barred.
26
Even assuming that this part
of the debt was time-barred, however, we concluded that “[n]o Fifth Circuit

22
Id. (citing Fed. Trade Comm’n, Repairing a Broken System: Protecting Consumers
in Debt Collection Litigation and Arbitration 26–27 (2010)). In February 2020, the CFPB
issued a proposed rule that would require a debt collector “who knows or should know that a
debt is time barred when the debt collector makes the initial communication” to clearly and
conspicuously disclose (1) “[t]hat the law limits how long the consumer can be sued for a debt
and that, because of the age of the debt, the debt collector will not sue the consumer to collect
it” and (2) “[i]f, under applicable law, the debt collector’s right to bring a legal action against
the consumer can be revived, the fact that revival can occur and the circumstances in which
it can occur.” See Debt Collection Practices (Regulation F) Supplemental Proposal on Time-
Barred Debt, 85 F
ED. REG. 12672 (proposed Feb. 21, 2020).
23
McMahon, 744 F.3d at 1022.
24
Id. McMahon surmised that an original creditor would know the dates, a third-party
collector would be able to get that information from the original creditor for whom it was
collecting, and a debt purchaser pays different amounts depending on the age of debts and so
should know whether debts are time-barred. Id.
25
865 F.3d 322 (5th Cir. 2017). In March 2020, this Court issued Salinas v. R.A.
Rogers, Inc., 952 F.3d 680 (5th Cir. 2020), which cited Mahmoud and Daugherty but
concerned unrelated legal theories under § 1692e.
26
Mahmoud, 865 F.3d at 331.
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authority compels the holding that a nonjudicial foreclosure on a partially
time-barred debt can violate FDCPA Sections 1692e or f.”
27

Mahmoud noted Daugherty held that collection of old debt “can be”
violative, not that it always is, and distinguished Daugherty on its facts
because: (1) all of the Daugherty debt was old while less than 25 percent, at
most, of the Mahmoud debt was; (2) the application of limitations was unclear
as a bar to nonjudicial foreclosure but was undisputed as to the Daugherty
credit-card debt; and (3) the course of events showed the Mahmoud plaintiffs
were not misled about what they owed or about the consequence (foreclosure)
of nonpayment.
28
Mahmoud distinguished McMahon and Buchanan along the
same lines—as cases concerning “dubious exercises of collection activity on
indisputably and wholly time-barred debt.”
29

Another Seventh Circuit case relying on McMahon warrants mention. In
Pantoja v. Portfolio Recovery Associates, LLC, the collection letter had a
settlement offer similar to those in the cases described above.
30
It also stated,
“Because of the age of your debt, we will not sue you for it and we will not
report it to any credit reporting agency.”
31
Even with this warning, the Pantoja
court affirmed summary judgment granted to the plaintiff because (1) the
letter did not warn that partial payment would forfeit any limitations defense
and (2) it “deceptively said that [the collector] had chosen not to sue [the
plaintiff], rather than saying that the debt was so old that [the collector] could
not sue him for the alleged debt.”
32
As to the first reason, the court concluded
that a collector cannot “lur[e] debtors away from the statute of limitations

27
Id. at 332–33.
28
Id. at 333.
29
Id.
30
852 F.3d 679, 682 (7th Cir. 2017).
31
Id.
32
Id. at 682–83.
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without providing an unambiguous warning” but declined to prescribe exact
language for debt collectors to use.
33
As to the second, the court found the
chosen language to be a “careful and deliberate ambiguity[.]”
34

The Ninth Circuit, on the other hand, reversed a grant of summary
judgment to plaintiffs for a letter with the following warning: “The law limits
how long you can be sued on a debt and how long a debt can appear on your
credit report. Due to the age of this debt, we will not sue you for it or report
payment or non-payment of it to a credit bureau.”
35
The second sentence
matches the vague warning in Pantoja, but the first sentence informs the
debtor that there is a statute of limitations. Indeed, Pantoja quoted this longer
warning, which comes from a 2012 consent decree between the Federal Trade
Commission and another debt collector.
36
The Pantoja court noted that the

33
Id. at 685–86.
34
Id. at 687.
35
Stimpson v. Midland Credit Mgmt., Inc., 944 F.3d 1190, 1196 (9th Cir. 2019).
Stimpson also concluded that “nothing in the FDCPA requires debt collectors to make
disclosures that partial payments on debts may revive the statute of limitations in certain
states.” Id. at 1198.
36
Pantoja, 852 F.3d at 686. Similar language crops up repeatedly, including in state
laws requiring limitations-period disclosures. Effective September 2019, for debt buyers in
Texas, all first collection letters sent on debt for which the limitations period has run must
contain one of three variations of the following notice: “THE LAW LIMITS HOW LONG YOU
CAN BE SUED ON A DEBT. BECAUSE OF THE AGE OF YOUR DEBT, WE WILL NOT
SUE YOU FOR IT. THIS NOTICE IS REQUIRED BY LAW.” T
EX. FIN. CODE § 392.307
(2019). The precise formulation depends on whether the reporting period for including the
debt in a consumer report prepared has expired under the Fair Credit Reporting Act. See id.
(e)(1)–(3). Texas joins several other jurisdictions in requiring statute-of-limitations
disclosures. See, e.g., C
AL. CIV. CODE 1788.14(d); CONN. GEN. STAT. 36a-805(a)(14); MASS.
CODE REGS., tit. 940, 7.07(24); N.M. ADMIN. CODE 12.2.12.9; N.Y. COMP. CODES R. & REGS.,
tit. 23, 1.3; N.C.
GEN. STAT. 58-70-115(1); 6 VT. CODE R. 031-004-Rule-CF 104.05; W. Va.
Code 46a-2-128(f). And almost this exact language has survived legal challenges like
Manuel’s. See Stimpson, 944 F.3d at 1194.
Note, however, that the model forms included in the proposed CFPB disclosure rule
would impose even stricter language. See Debt Collection Practices (Regulation F)
Supplemental Proposal on Time-Barred Debt, 85 F
ED. REG. 12672 (proposed Feb. 21, 2020).
For example, where, like in Texas, an acknowledgement is required to revive old debt, the
rule would provide: “The law limits how long you can be sued for a debt. If you do nothing or
speak to us about this debt, we will not sue you to collect it. This is because the debt is too
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effect of omitting the first sentence is that “[t]he reader is left to wonder
whether [the collector] has chosen to go easy on this old debt out of the goodness
of its heart, or perhaps because it might be difficult to prove the debt, or
perhaps for some other reason.”
37

IV.
In assessing the letters at hand, we begin with the following proposition
from McMahon: “Whether a debt is legally enforceable is a central fact about
the character and legal status of that debt. A misrepresentation about that fact
thus violates the FDCPA.”
38
Collectors do not automatically violate the FDCPA
when seeking collection of time-barred debt.
39
Still, we cannot conclude, as
Merchants presses us to, that settlement offers and litigation threats are the
only ways debt collectors can mislead unsophisticated consumers regarding old
debt. This would place artificial constraints on broad terms—like “deceptive”
and “misleading”—under a statute we should construe broadly.
40

In Daugherty, we did not purport to catalogue all the ways collection of
time-barred debt can be misleading. Instead, deciding only what was necessary
on the facts then before us, we concluded that collectors can misrepresent a
debt’s legal enforceability by offering to settle the debt at a discount. That is
not to say that all settlement offers violate the statute, nor that such offers are
the only way to misrepresent the character of old debt. While Merchants’s

old. BUT if you acknowledge in writing that you owe this debt, then we can sue you to collect
it.” Id. at 12682, B-7 Model Form for Time-Barred Debt and Revival Disclosure (Written
Acknowledgement).
37
Pantoja, 852 F.3d at 686.
38
McMahon, 744 F.3d at 1020; see also Daugherty, 836 F.3d at 513 (“We agree with
the Seventh Circuit’s interpretation of the FDCPA in McMahon[.]”).
39
See id. at 509 (noting that “it is not automatically unlawful for a debt collector to
seek payment of a time-barred debt”); see also Holzman v. Malcolm S. Gerald & Assocs., Inc.,
920 F.3d 1264, 1273–74 (11th Cir. 2019) (“[C]ourts generally have recognized that the
FDCPA does not impose a bright-line rule prohibiting debt collectors from attempting to
collect on time-barred debt.”) (collecting cases).
40
See Tatis, 882 F.3d at 429.
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letters do not contain settlement offers, we agree with the district court:
Confining Daugherty and McMahon “to the specifics of the letters involved in
those cases does not comport with the broad language of McMahon—expressly
agreed with by the Fifth Circuit in Daugherty—and the edict that the FDCPA
‘should therefore be construed broadly and in favor of the consumer.’”
Further, McMahon made its basic premise clear: “[A] debt collector
violates the FDCPA when it misleads an unsophisticated consumer to believe
a time-barred debt is legally enforceable[.]”
41
The McMahon letters did so
because they did not “g[i]ve a hint” that the debts were time-barred.
42
“Matters
may be even worse if the debt collector adds a threat of litigation,” and the
settlement offer in that case also “[made] things worse,” since consumers may
unwittingly reset the limitations period, which is “why those offers only
reinforced the misleading impression that the debt was legally enforceable.”
43

The question, then, is not whether the letters include a settlement offer
or litigation threat but whether, read as a whole, they misrepresent the legal
enforceability and character of the debt in violation of 15 U.S.C. § 1692e(2) and
(10). In answering this question, the district court went further than was
necessary. It concluded that a letter is misleading as a matter of law if it lacks
warnings “that judicial enforcement of the debt is time-barred or that any
partial payment on the debt could defeat the otherwise absolute defense of the
statute of limitations.”
We and other circuits have framed our holdings in this area with
moderation.
44
So we leave for another day the question of whether a letter
seeking collection on time-barred debt is misleading as a matter of law by its

41
McMahon, 744 F.3d at 1020.
42
Id.
43
Id. at 1020–21.
44
See Mahmoud, 865 F.3d at 333 (noting that Daugherty, McMahon, and Buchanan
“qualified their holdings”).
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mere silence as to the age and legal unenforceability. We do not need to draw
that line because the letters at issue do not toe it. Instead, the sum effect of the
2017 letters is at least as misleading as any settlement offer from prior cases.
45

Read “as a whole,”
46
several aspects of the 2017 letters from Merchants
lead us to this conclusion. First, the letters do not just fail to warn that Texas
has a statute of limitations or how that statute may affect the collection
methods available to Merchants—the letters do not even state when the debt
was incurred. If they had, as the district court noted, they “might give a
consumer at least some inkling that the debt might be too old to be legally
enforceable.” Although we need not hold that all letters without statute-of-
limitations warnings are misleading as a matter of law, the complete silence
in these letters works in conjunction with their vague language to mislead the
unsophisticated consumer that the debt is enforceable.
47

As for the language itself, although there is no specific settlement offer
that would discount Manuel’s debt, the letters are rife with characterization of
a soon-to-expire special deal or offer:
• “Important Warning.”
• “You have only one more opportunity to stop all collection efforts.”
• “This is a very special offer. Please take advantage of this now.”

45
Despite Merchants’s claim to the contrary, Manuel’s summary judgment motion
argued that the specific language of the letters would mislead an unsophisticated consumer
that the debt is enforceable. There is no reason we may not affirm on this alternate ground.
See Tig Specialty Ins. Co. v. Pinkmonkey.com, 375 F.3d 365, 369 (5th Cir. 2004).
46
Gonzalez v. Kay, 577 F.3d 600, 607 (5th Cir. 2009).
47
See McMahon, 744 F.3d at 1021 (concluding that the silence as to limitations was
worsened by an offer of settlement that reinforced the misleading nature of the letters). In
the Seventh Circuit, one circuit and at least two district-court cases have relied on McMahon
at the summary-judgment stage in finding that debt collection efforts that failed to disclose
the time-barred nature of a debt violated the FDCPA as a matter of law. See Pantoja, 852
F.3d at 687; Rawson v. Source Receivables Mgmt., LLC, 215 F. Supp. 3d 684, 685–86 (N.D.
Ill. 2016); Slick v. Portfolio Recovery Assocs., LLC, 111 F. Supp. 3d 900, 906 (N.D. Ill. 2015)
(“[A] letter that is completely silent on the subject [of the time-barred nature of the debt] is
. . . misleading.”).
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No. 19-50814
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• “Our client has authorized the elimination of this element of your credit
history but we need to receive your complete payment immediately!”
• “Urgent!”
There is nothing urgent about this old debt, nor are there any details offered
to explain the “very special offer,” nor are these permissible attempts at “moral
suasion.”
48

Further, the letters hint at “additional collection efforts” should Manuel
not pay the debt:
• “Please remit your balance due immediately in order to prevent any
additional collection efforts, such as personal phone calls.”
• “We must notify you of additional collection efforts, such as phone calls,
can be anticipated if you don’t pay your account immediately. Pay this
debt now to suspend these efforts.”
The unexplained urgent language and the vague threats of additional
but unspecified collection efforts perform a similar role to the settlement offers
in Daugherty and McMahon. The combined effect of the letters’ vague language
and their silence as to the debt’s time-barred nature leaves an unsophisticated
consumer with the impression that the debt is enforceable, and that if payment
is not levied quickly then adverse collection efforts will follow.
49

That consumer does not know the terms of the special offer or why
payment is “urgent” after years have passed. And that consumer does not know
what collection efforts will follow if payment is withheld. “Where the FDCPA

48
Mahmoud, 865 F.3d at 333 n.3.
49
See Holzman, 920 F.3d at 1272 (“[B]y urging the debtor to ‘take advantage’ of the
offer, the letter might have caused an unsophisticated consumer to mistakenly believe that
the debt was legally enforceable and that he had something to gain by accepting the offer, or
to lose by declining it. . . . [A]n unsophisticated reader might conclude from this language
that he is being presented with an ultimatum, and that failure to make payment within the
required time frame would result in negative consequences, such as legal action.”).
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No. 19-50814
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requires clarity, . . . ambiguity itself can prove a violation.”
50
For the reasons
discussed above, we agree with the district court that Merchants’s letters are
“example[s] of careful and crafted ambiguity.”
51
“The only reason to use such
carefully ambiguous language is the expectation that at least some
unsophisticated debtors will misunderstand and will choose to pay on the
ancient, time-barred debts because they fear the consequences of not doing
so.”
52

Courts have recognized that the risk of partial payment reviving old debt
amplifies the effect of the want of limitations-period warnings. Daugherty
observed that an “unsophisticated debtor who could not afford the settlement
might assume from the letter that at least a partial payment would be
advisable” without knowing the risk of restarting the limitations clock.
53
That
danger is perhaps reduced but not absent with letters like these. A debtor
confronted with an “urgent” letter seeking full payment might also think it
advisable to pay some of it.
Thus, these letters seeking collection of time-barred debt, filled with
ambiguous offers and threats with no indication that the debt is old, much less
that the limitations period has run, misrepresent the legal enforceability of the
underlying debt in violation of 15 U.S.C. § 1692e(2) and (10).
54

V.
The grant of summary judgment to Plaintiff Silvia Manuel is affirmed.

50
Pantoja, 852 F.3d at 687.
51
Id.
52
Id.
53
Daugherty, 836 F.3d at 512.
54
Mahmoud is no barrier to our holding. This case is factually distinct from Mahmoud
for the same reasons Mahmoud distinguished Daugherty and its like cases: the letters in this
case “exhibit dubious exercises of collection activity on indisputably and wholly time-barred
debt.” See Mahmoud, 865 F.3d at 333.
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