Avila v. Reliant Capital Sols., LLC

Full title: ANNMARIE AVILA, individually and on behalf of all others similarly…

Court: UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Date published: Jun 4, 2019

No. 18-3637-cv (2d Cir. Jun. 4, 2019)

Opinion

No. 18-3637-cv

06-04-2019

ANNMARIE AVILA, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. RELIANT CAPITAL SOLUTIONS, LLC, an Ohio Limited Liability Company, Defendant-Appellee, JOHN AND JANE DOES, 1-10, Defendants.

FOR PLAINTIFF-APPELLANT: PHILIP D. STERN (Andrew T. Thomasson, Francis Greene, on the brief), Stern Thomasson LLP, Springfield, NJ. FOR DEFENDANT-APPELLEE: MANUEL H. NEWBURGER, Barron & Newburger, P.C., Austin, TX (Arthur Sanders, Barron & Newburger, P.C., New City, NY, Chad V. Echols, David A. Grassi, Jr., The Echols Firm, LLC, Rock Hill, SC, on the brief).

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4^th day of June, two thousand nineteen. PRESENT: GUIDO CALABRESI, RAYMOND J. LOHIER, JR., Circuit Judges, ANN M. DONNELLY,^* District Judge. FOR PLAINTIFF-APPELLANT: PHILIP D. STERN (Andrew T. Thomasson, Francis Greene, on the brief), Stern Thomasson LLP, Springfield, NJ. FOR DEFENDANT-APPELLEE: MANUEL H. NEWBURGER, Barron & Newburger, P.C., Austin, TX (Arthur Sanders, Barron & Newburger, P.C., New City, NY, Chad V. Echols, David A. Grassi, Jr., The Echols Firm, LLC, Rock Hill, SC, on the brief).

* Judge Ann M. Donnelly, of the United States District Court for the Eastern District of New York, sitting by designation.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiff Annmarie Avila appeals from a judgment of the District Court (Spatt, J.) dismissing her complaint. Avila sued Reliant Capital Solutions, LLC, claiming that Reliant's debt collection practices violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. Avila alleged that Reliant sent her a debt collection letter falsely stating that it was possible for the debt on her defaulted loan to increase due to "late charges and other charges" when, she claimed, such charges were in fact not possible. We assume the parties' familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

In Avila v. Riexinger & Associates, LLC (Avila I), we adopted safe-harbor language to "satisfy a debt collector's duty to state the amount of debt in cases where the amount varies from day to day." 817 F.3d 72, 77 (2d Cir. 2016). Reliant included that language in its letter to Avila. Avila now urges us to follow the Seventh Circuit's recent holding that such language will not offer safe harbor if it falsely suggests an outcome that cannot come to pass. Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366-71 (7th Cir. 2018). At oral argument, however, counsel for Avila conceded that late charges could be imposed on Avila's debt were it reinstated from default and acceleration status. In that case, other charges such as collection charges would also be possible. See 34 C.F.R. § 682.202(f). This case is therefore unlike Boucher, where the defendant conceded that late charges and other charges were impossible. Boucher, 880 F.3d at 367. Because Reliant's letter was not inaccurate in stating that "late charges and other charges" were possible, we affirm the District Court's dismissal of Avila's complaint. See Avila I, 817 F.3d at 77.

We have considered Avila's remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court