Marco Salinas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50618

MARCO SALINAS,

Plaintiff - Appellant

v.

R.A. ROGERS, INCORPORATED,

Defendant - Appellee

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

Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
R.A. Rogers, Inc., a debt collection agency, mailed a collections letter to
Appellant Marco Salinas listing the total amount due on his account ($4629.96)
and the interest and fees due (both $0.00). The letter also included this
statement: “In the event there is interest or other charges accruing on your
account, the amount due may be greater than the amount shown above after
the date of this notice.” In response, Salinas sued R.A. Rogers, alleging the
letter was false, deceptive, and misleading in violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., because no
interest or other charges could actually accrue on his account. The district
court granted summary judgment for R.A. Rogers, holding that the letter
United States Court of Appeals
Fifth Circuit
FILED
March 12, 2020

Lyle W. Cayce
Clerk
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No. 19-50618
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accurately conveyed what was possible under Texas law—that interest could
accrue—and was therefore not false, deceptive, or misleading. We affirm the
summary judgment, but based on a more fundamental proposition. The
challenged statement in the letter is not false, deceptive or misleading because
it merely expresses a common-sense truism about borrowing—if interest is
accruing on a debt, then the amount due may go up. That simple statement
would have been clear even to an unsophisticated borrower thousands of years
ago, just as it would be today. We therefore conclude that putting the statement
in a dunning letter does not violate the FDCPA.
I.
At some unknown point in the past, Marco Salinas obtained a loan for
personal, family, or household use from Security Service Federal Credit Union
(“SSFCU”). Apparently, the loan agreement between Salinas and SSFCU was
silent as to whether interest or other charges could accrue in the event of
default. Salinas eventually did default on the loan, which led to R.A. Rogers
sending Salinas an initial dunning letter on September 5, 2017. The letter lists
the “Principal Balance” and “Total Amount Due” as $4629.96, and states that
the “Interest” and “Fee[s]” are each $0.00. A sentence near the bottom of the
letter reads: “In the event there is interest or other charges accruing on your
account, the amount due may be greater than the amount shown above after
the date of this notice.”
On July 16, 2018, Salinas filed suit against R.A. Rogers in federal district
court, alleging that the language quoted above is false, deceptive, and
misleading in violation of the FDCPA, 15 U.S.C. § 1692e, because (1) R.A.
Rogers does not collect interest or other charges on debts related to SSFCU
and (2) the agreement between Salinas and SSFCU “does not allow” for
interest to accrue or other charges to be added. Salinas characterized the
language as an attempt to “induce payment . . . by scaring him.” Contending
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that R.A. Rogers sent “hundreds if not thousands” of similar letters, Salinas
sought certification of a class of “[a]ll consumers within the State of Texas that
have received collection letters from Defendant concerning debts from Security
Service FCU within one year prior to filing of this complaint which falsely
represent to the consumer that interest or other charges may accrue.” Salinas
requested $1000.00 in statutory damages for himself and each class member,
plus attorneys’ fees and costs.
The parties stipulated that “R.A. Rogers does not collect interest or other
charges on debts referred to it for collection by the creditor, Security Service
FCU” and also that “[t]he agreement between Security Service FCU and
Salinas is silent as to whether interest or other charges can accrue in the event
of default.” R.A. Rogers moved for summary judgment, arguing that even on
the stipulated facts the letter complies with the FDCPA because it “clearly and
unambiguously states the amount of the debt.” According to R.A. Rogers, the
“plain statement” that the total amount due is $4629.96 and interest and fees
are $0.00 “is not undercut by the contingent (but obviously inapplicable rather
than ‘applicable’) language of the [challenged] sentence.” R.A. Rogers added
that “common sense also dictates that Salinas’ claims lack merit.”
In granting summary judgment, the district court sua sponte detoured to
the Texas Finance Code, reasoning that the letter was not false, misleading, or
deceptive because “Texas law stipulates that a six percent interest rate may be
applied to the principal balance of the loan starting thirty days after payment
is due when the obligor has not agreed on an interest rate.” Salinas v. R.A.
Rogers, Inc., No. SA-18-CV-733-XR, 2019 WL 2465325, at *5 (W.D. Tex. June
13, 2019) (citing T
EX. FIN. CODE ANN. § 302.002). The court faulted Salinas for
“fail[ing] to produce the loan agreement or any statute or regulation that would
absolutely prohibit interest or other charges to accrue on the account following
default.” Id. Given the possibility that SSFCU could, under Texas law, elect to
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charge interest on the defaulted loan, the district court also held that the letter
was “not confusing or unclear on its face” and faulted Salinas further for failing
to produce any objective or subjective evidence of confusion. Id. Ultimately, the
court concluded “[t]here is insufficient evidence in the record to create a triable
issue of fact as to whether Defendant’s debt collection letter is false, deceptive,
or misleading.” Id. Salinas timely appealed.
II.
We review a summary judgment de novo. Mahmoud v. De Moss Owners
Ass’n, Inc., 865 F.3d 322, 328 (5th Cir. 2017). “Summary judgment is required
‘if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Id. (quoting F
ED.
R. CIV. P. 56(a)). A genuine dispute of material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “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.” Mahmoud, 865 F.3d at 328
(citation omitted).
III.
On appeal, Salinas argues that the district court erred in granting
summary judgment because, given the stipulated facts, the conditional
language in R.A. Rogers’ letter is misleading, deceptive, and “utterly false,”
and therefore violates the FDCPA. He also contends that the district court
misapplied the summary judgment standard by drawing one or more
inferences in R.A. Rogers’ favor. We consider each argument in turn.
A.
The FDCPA provides: “A debt collector may not use any false, deceptive,
or misleading representation or means in connection with the collection of any
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debt.” 15 U.S.C. § 1692e.
1
Among its nonexclusive list of proscribed practices,
the FDCPA prohibits “[t]he 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.” Id.
§ 1692e(2). It is also a violation of the FDCPA to use “any false representation
or deceptive means to collect or attempt to collect any debt or to obtain
information concerning a consumer.” Id. § 1692(e)(10). Because Congress
“intended the FDCPA to have a broad remedial scope,” the FDCPA should “be
construed broadly and in favor of the consumer.” Daugherty v. Convergent
Outsourcing, Inc., 836 F.3d 507, 511 (5th Cir. 2016) (internal quotation marks
and citations omitted). We evaluate whether a collection letter violates § 1692e
by “view[ing] the letter from the perspective of an ‘unsophisticated or least
sophisticated consumer.’” Id. (quoting McMurray v. ProCollect, Inc., 687 F.3d
665, 669 (5th Cir. 2012)). “At the same time we do not consider the debtor as
tied to the very last rung on the intelligence or sophistication ladder.” Goswami
v. Am. Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004) (cleaned up).
2

Salinas argues that the conditional language in the letter—“In the event
there is interest or other charges accruing on your account, the amount due
may be greater than the amount shown above after the date of this notice”—is
false, deceptive, and misleading because under no set of circumstances would
Salinas’ debt have increased due to interest or other charges while being
collected upon by R.A. Rogers. According to Salinas, the letter clearly implied

1
The parties agree that Salinas is a “consumer” and R.A. Rogers is a “debt collector”
under the FDCPA. See 15 U.S.C. § 1692a(3), (6).
2
Other circuits are split on whether to treat the application of the unsophisticated
consumer standard as a question of law or question of fact. See Gonzalez v. Kay, 577 F.3d
600, 610 (5th Cir. 2009) (Jolly, J., dissenting). We have not formally picked sides in that
debate, but generally treat the issue as a question of law, see id. at 609–10, as we do again
here.
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the false proposition that in the absence of prompt payment, interest or other
charges could accrue on his account.
To the extent Salinas contends the language in the dunning letter is
false, his claim is “downright frivolous.” See Taylor v. Cavalry Inv., L.L.C., 365
F.3d 572, 575 (7th Cir. 2004). The language merely expresses a truism: “In the
event there is interest or other charges accruing on your account, the amount
due may be greater than the amount shown above after the date of this notice”
(emphasis added). In American legal usage, “in the event” is the equivalent of
“if.” See B
RYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 465 (2d
ed. 1995) (observing that “in the event of” and “in the event that” are
“unnecessarily prolix” equivalents of “if”). Thus, the letter’s statement is no
more false than the statement: “If it is raining outside, the ground may be
wet”—a proposition as true in Death Valley as in New Orleans. It matters not
whether Salinas’ agreement with SSFCU prohibited SSFCU from applying
interest or other charges to the debt, because the language at issue does not
state that R.A. Rogers or SSFCU would—or even could—collect interest.
A perhaps closer question is whether the language is “deceptive” or
“misleading,” insofar as Salinas reads it to imply the possibility that interest
or other charges may accrue when in fact they cannot. To date, our court has
not settled on precise definitions for the FDCPA terms “deceptive” and
“misleading.” We have previously held that a collection agency’s form letter
was deceptive and misleading because it appeared on law firm letterhead even
though no attorney from the firm ever participated in debt collection efforts.
Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1237 (5th Cir.
1997); accord Gonzalez, 577 F.3d at 606–0 7 (allowing FDCPA claim to proceed
where deceptive law firm letter contained disclaimer on back in “legalese”). We
have also stated that “a collection letter that is silent as to litigation, but which
offers to ‘settle’ a time-barred debt without acknowledging that such debt is
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judicially unenforceable, can be sufficiently deceptive or misleading to violate
the FDCPA.” Daugherty, 836 F.3d at 511; but see Mahmoud, 865 F.3d at 334
(no FDCPA violation where “only a small portion of the debt may have been
time-barred”). On the other hand, we have held non-misleading a collection
letter stating—“FULL COLLECTION ACTIVITY WILL CONTINUE UNTIL
THIS ACCOUNT IS PAID IN FULL . . . TO AVOID FURTHER COLLECTION
ACTIVITY, YOUR STUDENT LOAN MUST BE PAID IN FULL”—because the
back of the letter informed the debtor she could contest the debt within 30 days
of receiving the collection letter. Peter v. GC Servs. L.P., 310 F.3d 344, 349–50
(5th Cir. 2002); see 15 U.S.C. § 1692g(b).
While our court has not yet faced conditional language akin to that in
the R.A. Rogers letter, we agree with the district court that the language at
issue here is not deceptive or misleading. Reading the letter as a whole, even
the least sophisticated consumer would not conclude, as Salinas urges, that
absent prompt payment interest and other charges will accrue. Salinas reads
the letter as if it literally says “interest and other charges may accrue” on his
ac count, but the letter does not say that. Instead, it warns of a possible
outcome—an increase in the amount due—“in the event” interest or other
charges are accruing. Logically speaking, the actual text of the letter does not
state or imply that interest or other charges will accrue, or even that they may
accrue, on Salinas’ account.
3

An illustration shows the problem with Salinas’ reading of the letter.
Suppose a traveler boards a flight from El Paso, TX, to Tucson, AZ—a route
traversing only desert—and is shown a safety video describing steps to take

3
Moreover, the letter unambiguously states that Salinas owed “$0.00” in “Interest”
and “$0.00” in “Fee[s],” further undermining his claim that the letter was misleading or
deceptive.
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“in the event of a water landing.” Even the least sophisticated traveler would
not take the video to imply the plane would be flying over water. No passenger
would leap out of his seat in panic, concluding he had boarded the wrong flight.
Even a traveler “tied to the very last rung on the intelligence or sophistication
ladder” would interpret the video as merely acknowledging the reality that
some flights, if not this one, fly over water. Admittedly, there might be
confusion in the cabin if the captain announced, “We may be flying over water
today,” just as there might be confusion if the R.A. Rogers letter announced,
“Interest may be accruing on your account.” But that is not what the letter
said. Instead, the innocuous, boilerplate language merely reiterates what
unsophisticated borrowers have collectively experienced for thousands of
years: that interest and other charges tend to accrue on some debts, and that
if that occurs, the amount the debtor owes usually goes up.
Indeed, Salinas’ argument, if adopted, would lead to absurd results. For
example, by Salinas’ logic, the letter would be misleading even without the
offending sentence since the mere mention of “Interest” and “Fee[s]”—even
though currently pegged at “$0.00”—could suggest the possibility that interest
or fees may accrue in the future. What is more, the outcome Salinas proposes
would force collection agencies to sift through applicable statutes and loan
contracts to determine with absolute certainty, for each and every account,
whether interest or other charges might possibly accrue, insofar as some debt
collectors have been exposed to FDCPA liability for omitting statements
similar to the one at issue here. See, e.g., Gill v. Credit Bureau of Carbon Cty.,
No. 14-CV-01888-KMT, 2015 WL 2128465, at *5 (D. Colo. May 5, 2015); Dragon
v. I.C. Sys., Inc., 483 F. Supp. 2d 198, 202–0 3 (D. Conn. 2007); see also Miller
v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872,
876 (7th Cir. 2000) (prescribing as safe harbor language under FDCPA:
“Because of interest, late charges, and other charges that may vary from day
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to day, the amount due on the day you pay may be greater”); Avila v. Riexinger
& Assocs., LLC, 817 F.3d 72, 74, 77 (2d Cir. 2016) (holding that “Section 1692e
requires debt collectors, when they notify consumers of their account balance,
to disclose that the balance may increase due to interest and fees” and adopting
Miller’s safe harbor language).
To support his position, Salinas relies on cases from other circuits
involving conditional language in collection letters. These cases are not
controlling and, more importantly, not on point. Many involve language
implying the possibility of some ominous event beyond the familiarity of
unsophisticated consumers. See, e.g., Schultz v. Midland Credit Mgmt., 905
F.3d 159, 160 (3d Cir. 2018) (conditional language implying collection agency
could report debt forgiveness to IRS); Lox v. CDA, Ltd., 689 F.3d 818, 820 (7th
Cir. 2012) (conditional language implying debtor could be charged attorneys’
fees); Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1059–60 (9th Cir.
2011) (conditional language implying settlement of old debts could be reported
to credit bureaus); Ruth v. Triumph P’ships, 577 F.3d 790, 793 (7th Cir. 2009)
(conditional language implying debtor’s information could be shared without
consent). In contrast, the conditional language at issue here involves a basic
concept familiar to even the least sophisticated debtor: that interest and other
charges, in the event they are accruing, may lead to an increase in the amount
due.
To be sure, some of the cases cited by Salinas do involve statements
about interest or other charges. These cases are nevertheless distinguishable
because the structure of the offending statements differs from the one at issue
here. For example, in Walker v. Shermeta, Adams, Von Allmen, PC, 623 F.
App’x 764 (6th Cir. 2015), the collections letter stated: “Because of interest and
other charges that may accrue, the amount you owe may continue to increase
daily.” Id. at 765. The Sixth Circuit held that, “if Plaintiff can show that
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interest or charges could never accrue and therefore the balance owed is truly
fixed,” then it was at least possible the statement was “materially
misleading.”
4
Id. at 768. But even if the Sixth Circuit had held the statement
misleading—which it did not—the differences in grammar would thwart direct
comparison. The complex causal sentence in Walker included a relative clause
(“Because of interest and other charges that may accrue”) implying that
interest may accrue on the debtor’s account. In contrast, the sentence at issue
in the present case is best described as a “zero” conditional: it expresses a
general truth without implying anything about the debtor’s actual account.
The same distinction applies to the dunning letter in Boucher v. Fin. Sys. of
Green Bay, Inc., 880 F.3d 362 (7th Cir. 2018), which stated: “Because of
interest, late charges, and other charges that may vary from day to day, the
amount due on the day you pay may be greater.” Id. at 365. Unlike the letters
in Walker and Boucher, the letter Salinas received does not “imply” that
interest or other charges will accrue on his account; it merely communicates
that Salinas’ balance “may” increase “in the event” such charges are accruing.
In sum, we hold that the language at issue in this case expresses a
common-sense truism about borrowing and lending, and does not imply that
interest or other charges may actually accrue on the debtor’s account. We
therefore conclude that R.A. Rogers’ dunning letter is not false, misleading, or
deceptive in violation of the FDCPA.
B.
Salinas also argues that the district court applied the wrong summary
judgment standard because the court drew an inference in R.A. Rogers’ favor—

4
Importantly, the Sixth Circuit did not hold the statement at issue in that case
misleading or deceptive. Indeed, it recognized that the letter “tracks the FDCPA
requirements for debt collection letters.” Id. at 768.
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the court inferred that R.A. Rogers would collect interest based on the fact that
(under Texas law) the agency could collect interest—and, further, improperly
required evidence of “subjective confusion” on the part of Salinas. Because our
holding today does not depend on either point, we need not address these
arguments.
* * *
The judgment of the district court is AFFIRMED.
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