argument even when it's not requested because the court has concerns i appreciate that and happens all the time i appreciate it and the purpose is to help us you've got a big record here you've got six camps you've got lot going on in this case you've got a secondary appeal it's very complicated we're doing twenty cases this week to make sure we understand the case understood is a very serious matter and a serious proceeding understood oral argument counter as judge paul said it is because the court sought there was something that would be illuminated by oral argument that we had a problem with an issue we weren't clear on the record and we thought maybe the dialogue would help us reach the right answer and i hope it does with that fire way thank you i think the main issue and the words that i try to live by are you mean what you say and you say what you mean so when nation star sent this letter few letters to my client saying this debt collector and this is debt collection activity before the court to turn around and simply interpret that at the motion to dismiss stage as being not that collection activity i think is error i think the documents be civically ask for an amount it says if you don't do a certain thing we're going to charge you this is a reverse mortgage remember the reverse mortga specifically chargers the client the client doesn't get a bill every month the pay they get charged so according to the document the equity is charged five thousand dollars if she does not respond it is our position she had no duty to respond under the mortgage at all specifically the only duty she had to do was advise one if there's a loss or if there's a lapse in insurance and if you look at the document they actually have the carrier philadelphian them the insurance company on each of the notices sent to mr seed so they know who the alleged insurance co i'm just looking at the document itself which i'm looking at the second notice a of the flood insurance requirement receipt twenty one stamped it stamped may fourth two thousand and fifteen there are other documents but that's just let's take that one ok by way of the sample notice it says second notice of flood insurance requirement dare steer sarah it says about a month ago we notified you that the federal law requires all mortgage properties determined to be located in a special flood hazard area must be covered by flood insurance policy restated if you did not respond within forty five days it may be necessary for us to obtain flood insurance on your behalf our records show that we have not received evidence who continue to flood coverage the federal law requires flood insurance be purchased this letter is to remind you that we have not received evidence of a continuous flood insurance coverage and if you do not respond within fifteen days we may purchase at your expense the flood insurance the premium would be five thousand and two dollars for insurance coverage in the amount of two hundred and fifty thousand dollars to be repaid as opposed to a notice that the mortgagee was obliged to purchase and had not purchase flood insurance how does that come close to being a demand for the payment of  debt the issue really is they're asking or asking her to provide a document specifically saying you need to produce proof of insurance if you don't you will be in default writer allows the condominium association or the obligation to have the insurance but as i read payment in prague property charges in paragraph two it's pretty clear that flooding has your insurance debt collection to say and a request for evidence even though you have the evidence in hand that's not a declaration that's asking for the evidence the problem i see is if you're asking for something and threatening a default by not producing it when you actually have it which is what is alleged that is a violation a prospect of default correct your through a future debt your career threatening somebody you're saying we are going to charge you five thousand dollars to collect for that isn't due and payable at the moment it might be doing payable possibly later if you do not provide this information which we believe we don't have to since we've alleged in the complaint you know what happens if i disagree with you the contract clearly require you to provide that evidence and i think i have a problem you know i've got a problem honestly but i think the way the letter is written and the fact that the letter specifically says it's a we are a debt collector we this is an attempt to collect the debt and the simply look at it and say at the motion to dismiss stage i'm going to ignore this is viewed through the eyes of reasonably unsophisticated reader you're correct the least consumer believes that the insurance is all paid but there is no there is no obligation to return it how could they possibly think they're trying to collect because they're specifically threatening them to put a charge on the going to charge your account five thousand dollars it's not going to send you a bill for five thousand it's charging her equity five thousand dollars that's the problem and when they put in their document this is an effort to collect a debt it certainly is correct put in the mind of the unsophisticated consumer that they were going to collect absolutely your honor short of the matter is that they're not trying to collect it and the threat is harmless right that is true however at the motion to dismiss stage i don't think you can jump to that conclusion and that's our problem with what the court did because the court it's a document you know why can't the court summary guys are entering the document determine whether or not it constitutes an attempt to converted into motion right but the last summer here you attached to your complaint did you not absolutely get a copy of paragraph twenty five of your complaint says defendant s borrowers letters attached as exhibit a and b are examples of letters sent to our hasi dated april thirtieth fifteen march twenty one sixteen see you attached to the complaint itself  as exhibit a this document from which i was reading in from which judge clevenger was agreed and there's no question that the court could properly review this document even on a motion to dismiss without it being converted into a motion for summary judgment under rule fifty six but at the motion to write you agree with that i absolutely agree but at the most the amount of time and that's all right at the motion to dismiss viewing the facts in the light most favorable to my client when the document says specifically and the allegation say specifically they sent this letter to collect a debt this letter at the bottom the boilerplate language is the boilerplate language they could just have easily put in there and the and if you look at the case i think the core lied on in making its ruling that letter says this is a document not to collect it that's what he relied on that case if you read that i believe is the prosecutor in his order and his docket order specifically says this is a letter not to collect a debt and he said well that's just a notice we get it and that's what our position is it may just be a notice at the summary judgment stage you may be right but at the motion to dismiss stage it is not in the viewing the facts in the light most favorable to my client if you put that language in your letter by its terms it is a document designed to collect a bit thank you very much and you have reserved  d morning your honor is christopher carver eckermann l l p star the breed the record in this case is fairly small it is on a motion to dismiss i think the issue here is at least as framed by appellants counsel whether or not the language at the bottom makes a difference i submit the court doesn't get there unless the fair debt collection practices act applies and the collection practices act does not apply here because nation star is not a debt collector under the act because it was servicing a loan that was not in default and as this court nation star be canned servicing the debt and there is no allegation that there the debt was in default of the time that nations are began servicing is in the complaint i read the complaint those says that the defendant nation star does business as quote champion mortgage and the complaint then says the defendant that is champion mortgage sends its power was letters and it goes on to say among the letters are exhibits a and b it attaches exhibit a to the complaint and it says at the bottom of the letter you having a be an easy case if you didn't have the boilerplate language at the bottom but it does include the language and it does say at the bottom and i quote champion mortgage is a debt collector it doesn't stop there it goes on to say this is an attempt to collect the debt and any information obtained will be used for that purpose however if you are currently in bankruptcy or have reached a received a discharge this communication is not to attempt to collect the debt but if you are not in bankruptcy this is an attempt to collect a debt from champion mortgage which is characterized out of its own mouth as a debt collector why wouldn't that leave a normal reasonable on sophisticated homeowner to think that this is in fact a dunning letter or they're looking to collect the debt i owe five grand for it if i don't pay it they will and they're going to go after me for it why wouldn't that be the kind of thing that a a borrower would normally think and if the answer is well it's debatable etc was this appropriate to dump on a motion to dismiss your honor it was appropriate to dump but a motion to dismiss the district court correctly found that any amendment would be futile they have not identified in the district court court any possible thing that they could have added to no no i accept that so what you see is what you get what you see there was nothing better that's going to come down the road in an emendation i'm simply asking why this is insufficient here and now having characterized the defendant having characterize itself as a debt collector involved in this communication with these specific intent to collect that and the reason your honor is that under the least sophisticated consumer test which that your honor was on the panel that is repeatedly cited the long case you have to you are entitled to be unsophisticated you are not entitled to be blind to the other evidence and information that you have there's nothing in this letter that is an attempt to collect it or if i'm a debt collector and i characterize my letter as being an effort to collect a debt but in fact if you look behind it all you're really saying is you've got to you've got to here is notice you've got to go buy flood insurance that isn't the collector a reasonable person unsophisticated could not possibly conceive of that as being a de collection your honor it two things one you are correct and it's not not possibly conceive that's not the standard and in fact this court end up in a decision your honor author to the same bill case says just because it's described as something doesn't necessarily mean you have to ignore all of the other evidence the definition is controlled by the defined i think that i think that's the language and the tenth circuit tip if you go back to the case that you're making reference to was there a comparable exhibit like a which says where a debt collector and this very letter is an attempt to collect a debt and indeed the information you give us will be used for the purpose of collecting it that i do not think that that was there but trust me it wasn't ok and your honor i certainly trust you but again we are going one a few steps too far here this language at the bottom of the letter only becomes important at all if the fair debt collection practices act could apply here it can't apply here because it doesn't apply to a entity in nation stars position servicing a debt that is not in default so you don't get to the lease sophisticated consumer test unless you find that the fair debt collection practices act apply and on the face of the complaint you can see that because nation star was serving a debt that is not in default and there's never been an allegation here that the  fact to the contrary the argument is that the implicit threat of the letter could potentially in the future if there weren't enough money put the debt into default the debts not in default nation star servicing a debt that is not in  c as a matter of law does not apply and even under the least sophisticated consumer test the least sophisticated secure consumer is and is required to use her other information recently and the other information that she has here is what your honor pointed out which is that the rot condominium writer does not excuse her clear contractual obligation to provide evidence of payment to the lender that she didn't do that is what lation starr was entitled to request and i will point out that in the opposition to the motion to dismiss miss out his c f r is a condition proceeding to nation star sending the letter that is it admission that to send that letter nation star was required by the apical regulations to send that letter at the time that it was s and with respect to your honor the judge marcus the question about the demand for payment the numerical amount five thousand dollars is only in one of the two letters right and this whole discussion started with missed you del with the court for that letter says second notice the reference line in both of these letters is a notice this was the the make a back to the statute and the definition of the word debt you say this can't be a debt because they were in default it's a simple as that right depending on the this you mean no i'm saying that the f e c ph doesn't apply because nation star was servicing a debt that was not in default the debt was the mortgage the reverse mortgage was a debt let's look at the definition the term debt i'm quoting now from section sixteen ninety two a five of title fifteen of the us code 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 service is 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 it doesn't explain what is meant by in connection with the collection of any debt and we've not established any bright line rule for determining whether a communication from a debt collector is made in connection with the collection of any debt i'm just asking why reasonable consumer might not look at this and say they say oh five thousand bucks to buy the flood insurance i didn't buy the flood insurance they're giving me a dunning notice and demanding that i make payment and they tell me they're a debt collector and this is an effort to collect reasonable consumer your honor would i submit that the lease sophisticated consumer is the test there is a an express objective component and objective lee that is not a reasonable reading for several reasons one there is no means in this letter to make payment to do nation star there is no request in this letter to make payment to nation for that to be added to the balance and that's how it goes but for a reasonable person to read this letter is judge marcus's is having the letter read that is a very sophisticated reading but there is no means for anyone getting this letter to have the ability to write a check to anyone because that information is not in this letter the letter is very been di yes it does have this letter the language in small print at the bottom which is not that much different in the end of the letter but the letter is both of these letters are clearly informational requests there we don't have this information please provide this or don't you think you could read this is saying hey we don't have this information be you're obliged to buy the flood insurance see you go ahead and do it and the if we don't hear from you in fifteen days we're going to do it instead of you and your honor that is exactly what the contract allows a nation st agree that that's what the contract allowance and which means that this letter is in no way inconsistent with nations does that the new the letter from being falling into the character of the debt and this operation befalling into the character of being conceived of as an effort to collect on a debt no your honor because the least the fist akkad of consumer is not entitled to ignore all of the other information that she has at hand she is a piece charged with knowledge of her contractual obligations and these are not complicated contracts the condominium writer is not that complicated the contracts are very short but the bottom line here is this letter isn't governed by the f t c a and even if it were governed by the f t c under the applicable test you're taking a little language at the bottom of the letter which that tenth circuit and the seventh circuit has recognized that these type of disclaimers don't automatically turn it into a communication governed by the t c p s a the supplemental authority that we submitted last week the western district of new york looked at this exact language and says it doesn't change it into a letter governed by the f t c p a the dire case out of the middle district o florida looked at similar language said that wasn't enough because you don't look at this particular sentence in absolute isolation of every other piece of information that the recipient is required to have at hand a court have any other questions having the language might very well be worse than having the language deal under the least sophisticated consumer to test this language is one factor that may be considered but i submit the case law shows it is by no means a what's the purpose of having  what this letter does not say and you didn't have that language that would be a problem thanks very much thank you just to address one issue which was the amendment issue i think the court's aware of there was a prior case filed by my client against this and wherein the defendant foreclosed on her house based on erroneous notice and erroneous letters so if i were to have leave to amend we have a amend to add those additional factors which are the possible prior respect to whether nation star collector or not if you take their argument and then you apply the florida law over the f c c p a it applies to any person not just an entity so if you were to exclude nation star from the definition under f t c p a a they clearly would fall under the definition under f c c p a i think i raise that in our in our reply but the least sophisticated consumer should be able to get a letter which tells them this is a letter to collect a debt i'm a debt collector if a consumer able east of his a consumer can't look at that and say this is a letter i may be in trouble i'm going to ofeibea grand i'm not going to pay it how on earth can they rely on it it's pretty simple this is a sophisticated company vacancy and a letter which specifically says this is not a letter this is  but that's not what they did in this case they sent this letter they put the boilerplate language in the letter they put it at the bottom and they say twice in my view it's a statement against interest vamp telling us who they are for the court to simply say well let's look behind it at the motion to dismiss stage i think was erroneous i think based on the case law and basic but even if we were here on summary judgment the arguments would be essentially the same what was extreme as it was made intrinsic by appending exhibits a and b to the complaint correct correct understood but i think if she is not the list the least sophisticated consumer getting this document looking at it how could this not be viewed as a letter to collect a debt when somebody tells you it is a letter to collect a debt it specifically asked for an amount to say if you don't do something we're going to  am you for five thousand dollars we're going to put it on your mortgage it's reverse mortgage we're going to take it out of your equity it is a document it is it says what it says and it means what it says for them to simply change the language it would be quite easy but they didn't do that and under f t c strict liability statute they made the mistake just like in the i believe the reese case where the the language of the letter mentioned it misidentified the credit it said mortgage electronic recording services was the creditor and this court said specifically well that was a mistake this is a violation of the c p a reversed in this case this specifically letter based on