demand letters to debtors these letters create the impression well if that's all they did that would be cracked but doesn't the case law suggest that there are other factors that we look to that might take them out of the conclusion category of flat readers over this is not illegal to schedule the arrangement by paying a fixed amount of money per file is that if you actually take active steps that's like that's right your hon me let me a den of the five items where i thought the c c i specifically did they screened referred accounts for barriers to car collection the independently composed and mail letters  it provided its contact info on letters and invited debt or correspondence that handled their phone calls itself it hosted a website where debtors could review all of those activities go into the picture do they not a no first of all i assume you would have to agree that all of those were in the record they were on the record but then that's an add on question order because again back to the chairman's question this is what vincent looks at all of those factors were invented and some of those factors are disputed you know the review is disputed vincent looked at the review nielsen looked at review and said it's ministerial if you're looking at an up down assessment bankruptcy duplicate information whether the state prohibits those letters being sent in the state this is the review that the record shows that c c i did hear that's what nelson and vincent looked at and said that's not enough it's ministerial the other factors that the court identified such as handling phone calls vincent and nielsen same issue in those cases and you know no to the court that nielsen was and affirming a summary judgment decision in favor the plaintiff vinson of course was a reversal of summary judgment against the plaintiff handling better phone calls because it's something the court raising we see repeatedly in the briefing not only is that what the third parties did in the vincent case but it's not meaningful and the reason it's not meaningful your honor is because the third party can't give substantive information to the debtor in that situation well i thought subsume information are you talking about what the the bill was for in terms of what health services that were provided that would be included but that's not the problem is that hipaa res details of the page since medical file and that's not totally true if you look at the zab rick case which is what c c i relied on the court acknowledged there that some information from a health care patient can be released for the purpose of debt collection urgency room visits correct at least for the name plano that's right the putative class representative that's right and so what what more does she need to know both sides that this is a bill for her visit to the emergency room one example can you accept a partial payment plan can't given that information can we negotiated dispute can't can't c c i can't given that information these are undisputed facts right and those are what would what was determinative a couple of the determine the facts and the vents in the nielsen case so if you're putting only information on a letter and that's all that the third party can give you in a phone call you just wasted the debtor's time they've contacted the third party well i thought they created or call it a file i'm not sure that's right term and put it on a website that the debtor could access and that would tell the debtor sort of the payment history on the account the amount that's old whether any payments had been made and credited to the account that's that's what the allegation of c c i is stronger and that's of course what judge rusty identified in order but being able to digest the i guess i'm having the same problems as will scanlon asked you about and that is if all of those activities are true why doesn't that take this out of a quote unquote why operate situation where the collection agency is simply lending its name and maybe letterhead to the creditor in order to send a dunning letter or two to the debtor because none of those factors were determinative in the only circuit cases we have looking at flat rating those factors were all present in these two circuit cases that i'm talking about the deals in the vincent case and they were not determinative in in one of those courts they go the other way so to find out what is meaningful you know many of these courts including many of the district courts they're looking at are they taking another step forward such as taking you know an issue to phone calls can they sue i mean that's what we see in the majority the district court cases that c c i relies on you know they're taking an act beyond letter writing they're not done it is your position then that the only acceptable financial arrangement would be the traditional transfer title to and let the election agency collect thirty five percent or whatever the percentage is absolutely absolutely not your honor that's why we highlighted on page fifteen sixteen of our of our opening brief the thirteen factors that courts like hartley like larsen looked at so it provides district courts with guidance in this intensely factual situation but the facts that the district court relied on in this case and what you're go hear see come up and talk about all the material meaningful facts that we've seen from the circuit decisions or distinguish the district court decisions and we have not expressly adopted those thirteen factors that we know you know and the circuit courts didn't adopt those factors they but it's a factor the has to be considered those are the meaningful factors among others that i'll get back into in in my rebuttal much in the because here you're relying on a second circuit in the seventh circuit case what's the closest ninth circuit case if any we don't have when you're on earth the only district court case all identify for the court that came out of the circuit was the becker case and the court didn't look at you know didn't provide any alan analysis what it did say it was a pro s plaintiff and it sounds like the court was can confused because they plied the six hundred ninety two j claim to a creditor or claim as a six thousand nine hundred eighty six claim to the creditor who is acting as the debt collector and the so that as close as we can get factor test is not terribly helpful so you distilled any better legal principles that you might you know if we were if you were writing the opinion if all you want to do is just say here here's a thirteen factors districts have at it i don't think we've done a whole lot of good is there something more refined than that you can offer yes your honor and we can again i'm going to sound like a broken record because i keep saying the word vince in a nielson here they decided not to look at thirteen factors since it could have and they did what they did is they looked at these five or six key components and i'll do one and is what the what the third party did which is they take basic data not detailed information that identify basic data some name date of service that address dump it into a letter that has already been formed preform letter an approved during a sales pitch years and years ago populate the letter with you know the information that the creditor provided to them send the letters out en masse basically a day after th information is received and in this case after sending a second letter close the account thirty five days after its receipt so but then don't they also run some sort of an industry as check to see of the debtors file for bankruptcy or whether the statue of limitation might have run on the claim from their doing a little more than you're giving them credit they do and that's why we keep referring to the ministerial review because that's exactly what happened in nielsen they look to see whether the letters were allowed in certain states you label it ministerial but isn't that in essence an assessment that calls for a judgment call as to whether or not the debt is legally collectable sure and i apologize for not being clear about what what nielson meant when they said minister what they said was ministerial was looking at bankruptcy records assigning or sending the file to debt collection attorney as you would do exactly the same thing would he or she not well know and the answer is what we see in the form in case when you look to see whether or not the debtor was judgment proof before they'll send an individual lies letter based on their findings they then exercise discretion based on this focused review to send decide whether they're going to transfer the can over i mean at the district court case but it's an example that hopefully response of your question about what more do they need to do it's sixty three and sixty four it's mentioned twice sixty nine hundred two is a statute of general application it says that in the statute that prohibits misleading and deceptive communications within that statute there are sixteen separate subsections didn't identify the subsections in our brief house was this argument specifically addressed to the district court yes it was because what part of the reason there are sixty nine ninety two ninety two he claim survives is because we included factual allegations in the complaint that said the letters contain threats that cannot be taken were did you say that in the complaint the letter paragraph twenty five and twenty six on that c r sixty two of the complaint there are two allegations that threats  were made that cannot be taken and that's support for six hundred ninety two equally ok so the pages ago you are sixty two is the page in our complaint and their paragraphs twenty five and twenty six i believe your honor great thanks thank you but emphasizing that they are acting as a debt collector here and miss eklund is contesting that and i think in essence saying that because c c i is not taking more aggressive actions it's not really a debt collector and to talk you know to go to the factors scanlon was talking about the fact that c c i screens this information for bankruptcy and for new attorney representation it's looking at its files from prior collection activities because it represents multiple creditors and as in the case of miss eklund sometimes it gets multiple accounts from a single creditor and it has to make a judgment call as to whether the collection activity can begin in the first place it controls the content and the timing of its letters it reviews correspondence and unlike most second contention that c c i merely forwards these letters on the piece l again c c i is making a judgment does this letter require that we stop communication is this from an attorney do we need to make a note for our future records that we need to stop collecting on against this person and by the way it's also in the record that c c i would sometimes independently respond to consumers without peace elfs involvement or you know permission at all and that is all on top of the fact in the you're teasing me i know i apologize go ahead we make it is it is it is approximately one hundred ninety three phone calls ok during and during the time period issue in this complaint one  of that would it be and i don't know if i can do the math of five hundred per week but during the during the course of the year at issue in the limitations period here it was one hundred ninety three calls from total total from p self debtors or yes and  i think it to say that a debt collector that takes all of these actions is not really a debt collector it's wrong as a matter of common sense but also you know it's inconsistent with the text and the purpose and the legislative history in the f t c p a here the f t c p a applies in general to debt collectors it defines a debt collector as someone who is in the business of debt collection section six hundred ninety two j by contrast is designed to impose liability on someone who sells forms who is not participating in debt collection and according to legislative history who is not actually in the business of debt collection is a case under section eight as to whether a communication was from an attorney that was under scrutiny a debt collector there was no question that the attorney in that case with a debt collector and you know for twenty years the law in both the second circuit and the seventh circuit has been that if you are sending a letter that has a facility of an attorney signature that is almost never going to comply with the f t c p a unless that attorney has made a considered professional judgment that that particular debtor is a candidate for collection name exception but that was wholly you know that the court again did not actually look to the text in the history of six hundred ninety two j that footnote i think says that sixty ninety two j was not before the court there so it's a myth that the reasoning of either of those letters falsely represented that you were actually involved in the collection process when you really work right i mean that's the theory for both the j claim and the claim so you're saying that there's daylight there that you could be off the hook under j but hey the j claim i hear you it seems like that is really the form with just the form scheme right where that's all you've done is basically left out your letterhead and your name to some creditor and i grant you that's not what you've done what your client has done you've done certainly more than that but there's still a question as to whether that what you've done is you know meaningful were of the standard is right sure and i could i have two responses to that your honor i think the first is and this goes back to a question that judge first time around is that the night circuit has certainly not squarely had any holding on this issue but in toward him in which is cited in the briefs there's a footnote that recognizes that the ninth circuit has not recognized meaningful involvement quote in the attorney context and the footnote recognizes that meaningful involvement is unique to the attorney context and that the footnote says it doesn't apply to ten so i think that the second response is that you know where you see this case law developing under a three and the question of whether a letter is from an attorney that's important for you know protecting consumers under the act because if you get a letter from an attorney there's a very specific connotation there right and the attorney cannot take advantage of that connotation a letter from a debt collector in and of itself doesn't have a specific connotation the implication say that i guess especially applying the lease sophisticated consumer standard if you are i would say that if somebody says as your guys letters do we are debt collectors we belong to the national association of debt collectors and then you better pay up this is your final notice that to me conveys that you all are in the business of basically making people pay debts that they don't want to so why wouldn't someone in that legal action brought by your client is going to end well i think that would collapse the distinction between some of the other case law out there that says you know a debt collector is not entitled to miss to imply that it can take action that it's not going to take or can't take right c c i certainly can't imply that it's going to take legal action but if we say that it's misleading for a letter to to say that we're a debt collector if we don't actually sue on debt then that means the only way for us to comply with the f t c p a is for every debt collector to be a debt collector that sues and i think there's room in the f t c p a for there to be someone between the flat rate or like you recognizing and the  as we reference in the brief extraordinary collection activities which congress has recognized are different than if that's been you aren't providing any value it seems to me right because that is precisely the the coercive effect that your geysers letters have is that the person at least the non sophisticated person is going to think my god they've they're threatening me with something they haven't spelled it out graham grant you that but otherwise you're not going to get your clime you know any more money than than otherwise would be obtained but i think your honor you know when we do engage with the consumers in the phone call right that we are adding value in that situation and c c i because it works with so many hospital and medical debtors where well placed to to help a consumer that says well i think my insurance paid we can help walk them through that explanation of benefits right and find out we can explain to them that if they sent in a check for one hundred dollars when they owe a thousand if they actually want to you know not be in collections they've got to set up a payment plan if they have hardship they can apply to charity care we don't need to be administering you know a creditors charity care program or you know be guaranteed to sue on the debt or do anything else in order to be encouraging debtors to pay which i think is the definition of participation but you all are implicitly threatening especially in that final notice implicitly threatening that if the person doesn't pay you guys are going to take further action no it doesn't say that but i'm saying under the least sophisticated consumer standard why wouldn't that be the natural inference someone would draw well your honor i think the you know there's two different letters the further collection activity is in the first letter and in that case we are sending you know an additional letter in the second case it just says that it's our last attempt and the final action and i think and i think that what you think the average that i think that that you know some of the cases we cited said that you know that this is you know it's going to get escalated from here and i think in this case that's completely accurate in the fact that d c i was not itself suing it these debts did get referred to a different collector that had the power to so it was in fact the last step of this early engagement process counsel you wanted to leave five minutes for mr fisher who is anxiously getting out of his chair you have one i guess it's a it's an economic question it appeared to me from reading the record that the reason that piece health does this is that this is a cheaper way and perhaps a more effective way to collect a debt then assigning the debt to a traditional debt collector who gets i don't know what a third or whatever the percentages of whatever it collects sure your honor i mean that right i mean is that why they enter into what council described as sort of people who work in the middle of the spectrum yeah and i think i mean i think that's right your honor but i think that's a good thing and i think that as a i'm not sick sure question was a  trying to understand the economics of sure yeah no absolutely i mean and particularly in the context of health care i mean it's the right approach i mean piece health you know this is a mission driven not for profit entity right that gives away over one hundred million dollars  charity care a year they work on hardships cases we don't get the chance to do that because mazatlan never responded to anything but of course your honor they're going to take an incremental approach and i think now under the cia that's actually really what's required or intended i mean congress wants clients like mine to be less aggressive not more aggressive and when you layer on top of that your honor that we have obligations under the state charity care law ok there are all kinds of reasons good reasons legal reasons why piece health does not let go of these accounts for whatever may happen when a collector takes them over it's not it's not legal in some respects and it's not good business oh but absolutely i mean the idea here is there's an incremental approach to this they're not suing they're not reporting things on credit reports they're not taking steps that are of a serious nature that would injure the consumer in this case they're simply saying you're in collections and really when you distill this entire case down their claim is that we were bluffing right we were trying to convince ms acland that we were going to take steps to collect on our account when we weren't that is categorically untrue and it's undisputed in the record this account did go to the next phase of collection it stopped once a lawsuit came in you know her ninth or tenth lawsuit under the f t c p a we stopped because things get nasty at that point but also i have a question having to do with the e five issue we didn't have a chance to ask miss crawford about it but your opposing counsel relies on paragraphs twenty five and twenty six of the complaint to establish that not only was the issue raised but it was discussed in the district court what's your response well if you'd like to know my main response and i know there  a reference to me being thrown under the bus not throwing c c i under the bus here but just to be clear that's not a claim against my client but i realize that that's why i say as i mentioned that i didn't have a chance to ask your co counsel yes so as long as we have a common understanding on that that that's a separate issue about the substance of their letter because we're not as a creditor we are not derivative lee liable for what is in their formal letter so the effect is it separate case that you know we think it's a defacto amendment by way of reply brief trying to bring that claim into it it was well what's what's the specific response to the twenty five twenty six comment the response the response your honor is i believe if i have the liberty of speaking from his crawford and her client it was not that she reached the right result i think this is a lawsuit looking for a claim not the other way around read requests that you affirm as to peace thank you you thank i got about four minutes thank nearing questions i'd like to get right into my response to some of what you've heard you want to see anything more with victor twenty five twenty six i would be happy to your honor you know if you look at the language i don't want to be redundant but if you look at language false or misleading representation we say that in number thirty two of that i just think the theory you put forward in your complaint was that the false statement was c c i was representing that it actually was involved in the collection process when it really wasn't that that shift you want to make hundred five it's quite different i think and it's not if all you've got is twenty five and twenty six i think you kind of strike out there if there's nothing else you've got other than these two paragraphs i think you might want to use the rest your time to talk about the other issues ok i would just say an attempt to compel the miss athlete to pay is what we deem as a threat and that's in twenty six and this was extensively brief in our response to some of judgment motion there was an ample opportunity to discuss section eight with miss eklund during a deposition not with single question was asked by the forces this report found that you hadn't adequately raise that with the defendants on notice that they needed to conduct discovery well from what we've said in the complaint your honor you know this is the claim that they are doing the collection that they can take actions that they can't take that they have authority that they can't take in under the lease sophisticated minute here you know there's a dispute about what is meaningful a factual dispute about what's meaningful you know c c i side of the federal register that's fifty three fed reg fifty thousand one hundred nine three actions are listed for what's meaningful one of them it's undisputed cannot be done that is negotiating payments the other to handling debt verification that's disputed c c i says i'm sorry health says the debt verification comes from it it sends i don't my statement n so that's a dispute the second thing the second that is disputed the third that said in the federal register is that they keep individual records no records are sent and they count as close thirty five days later there's a dispute even under those two of the three factors the other one doesn't apply finally to the second j argument which was raised vincent did consider a j claim it said in a footnote that it was a triable claim  it had not been re so it didn't make a decision on it randle is a case the court should look at for summary judgment determination that there is a false belief created by the debt collector can i ask you just one question because i didn't feel like you gave me a satisfactory answer to my the one question i asked you in your first go around so just as a legal principle putting aside this thirteen factor test can you give us something that to meaningfully participate in the collection process you at least have to do x is there some just you know like because the bars here and you're saying that they you know that they've got to get over this bar what's that bar what are they at least have to do in order to be you have to do more than write letters and take in defensive dental actions based on that letters like ok what what is that you have to do that they're not doing that you think gets them above that legal bar verify deaths negotiate payment i mean examples negotiate payment plans verify verify doesn't just mean what does that mean that means contacting the credit contact the credit and say hey is this the right amount we sell says that doesn't happen here that on that point we're back to the hipaa issue right i mean that c c i knows what the amount that's due and owing is correct and whether or not the debtor has made any payments to p c l before the file goes to c c i that's right i don't know what the specific medical services were that were provided to the debtor and that gets into the hip of privacy concerns well the hipaa privacy help me you haven't got the facts right here  yes ok yes but that's why we have it that's why the thirteen factor test is more important because it is harder for debt collectors and collecting medical debt if there are seven factors established but six go the other way is that meaningful participation way in this case ok thank you very much thank you ok just argued is submitted we'll take a ten minute recess before we hear argument in the last case on the calendar