good afternoon we have two cases for the scepter new and the first is davis the failing helen hunt and diamond miss masters boyish and good kind sophisticated debt collection company feeling took the precise type of actions congress soft prohibited from an act in the f t c the initial section of the statute states its purpose which is to protect consumers to davis's information his sensitive personal information as you said is the dead his address the amount the debt with the servicer is all that information is floating right now in the public realm one of the critical things and and when you say it's out floating in the public realm in your complaint do you allege anywhere that anybody has actually seen this information you i understand the district court and read the complaint to not see that there and i can understand in a post spokeo decision suggesting that the pleadings were not sufficient enough in that regard in that was not done in part because there was one motion a motion to dismiss that was immediately converted to a summary judgment motion the opportunity was not provided i understand that it could be put into papers and i could advise the court now that if given the opportunity for the plaintiff i found myself in a difficult position and plan to find himself in a difficult position you gamble on not respond when somebody puts additional evidence in the record or do you take a chance and you respond to encourage the court we are to consider the information but acknowledge that if they do indeed still apply summary judgment standard that's what i have done in this case you can file a motion and say i i need the opportunity for discovery right i mean the rules give you that option you did you didn't do that but you responded i mean i understand might have not been the position you would have sought wanted but there are tools for you if you think court is is moving before it should you need help that those are available to you but you didn't indicate that in any way to the district court did you i feel that the way he the opposition was drafted it indicated that i believe the court should disregard but i did not explicitly make a motion or anything to that regard iran that is correct can i ask a question you fault the other side for not responding to the jurors char's ina case i'm not sure i'm saying that case in their right but you know it's the judge refrain a case from the eastern district of pennsylvania from twenty fifteen but there's another case by that same fine district court judge called the strauss which was  mentioned in the briefing by your opposing counsel which you did not seem to address either and that's it they pick it up first and their answer in brief is page twelve i'm wondering if if you would  the plaintiff consumer and sent the him although it actually should say her in that case it was a woman and said to her that her appearances progress were not communications with the third party and that is what it held the court looked at that address other than his home address but it was not a communication with any third party straus tells you that someone else was more present and it was an address where his ex wife was living so your honor the interesting thing is there is no ex wife i don't know where that came from the financial services where the letter and that was in the record as well where the letter was sent to the stepsons house and you know those are situations where the debtor clearly has an affiliation with the actress and i think that's a very important sting wish in fact from the record here and the other thing is that the f t c p a also provides for an exception to communicate with for example a where there's someone who's a minor you can communicate with the parent you can also communicate with the spouses judge for authenticated it so those are all you know when it's when it's a family relationship we certainly have those situations but i do believe the court is the key question here is the court below incorrectly framed the question as whether a letter seeking to collect  to an address of a third party which the third party never received violates the f t c v a and that's the wrong question because nobody in this room knows what happened to the letter sent by regular mail ok when you say nobody knows what happened but that's  a great point on whom should the ambiguity fall you say well the new jersey rules of civil procedure say you presume he received it which prompts me to wonder one why would new jersey procedural rules about service of process be what we would look to in answering the question of where ambiguity would fall in an instance like this and to  what what do we even if we assume it was received at that residence how does that answer the question posed by straus which is if it's addressed to the correct person it's not a communication with the reporting why would we assume that it's open and read by anon address e and not just for it or wrong way and i have a couple responses that are first i do understand the argument has been made and was really included in judge hoover's decision which is the say if it letter comes to your house but it's addressed to someone else it would be in fact illegal to open it but the reality is that regulation exists because people open other people's mail and so in this situation that the question of the should be by accident may be why should we presume that people aren't you know why should we presume to the extent there's a big unity why would you presume that a non and receive would open the a instead of the assuming that they would have made a law there doesn't need to be a presumption that they absolutely would but i do believe the question is must the communication be actively received by the target recipient the f t c p a the court in this circuit and other circuits have have been driven to adopt objective standards that focus on the conduct of the collector not the subject of reaction of the debtor or in this case the unknown third party who is on the other what their subjective reaction was when they received mailings with love neither subjective reaction mr george but that they had any reaction because they open the mail that's the that's the question you want us to presume and you've given us a new jersey code section rule about about service of process you want to assume that anon address address he opened the letter and and that's what i'm trying to get you to engage with because strauss seems to imply or not more that imply it seems to say that you send the you send the letter to an address see at a different address than the ad receives aggress it's not a communication with a third party because it's still speaking there's no attempt to communicate with a third party it's still an attempt to communicate with the correct party even if it's mr rapid and it doesn't seem to say assume it's been opened by some third party that's why i'm trying to  understand rather you are this is not intend to engage with the proper party to know exactly how to reach mr davis and shows that send this to an unrelated address anyhow i believe that this is more similar to the doors and in the bird case and also   i'd like to reserve it for before i thought you said earlier that we don't know objective leak if the letters that were not returned by regular mail will sell these letters by certified and registered mail to comply with the new jersey statute but that statute requires letters to be sent by certified registered mail return receipt requested there is no provision authorizing or directing to send by regular mail there's no one to brockton were not returned so we don't know where they are we don't know somebody's got them and pitched that we just don't know so mike is isn't the real issue let's just assume for the moment somebody other than the wife got the letter and but how can you possibly prove there was an intent to harass the press or abuse davis your honor the f t c v a does not require proof of intent in that manner if your honour's return referring to subsection d the question becomes whether sending the notices to an any person could act and that was my question not is there anything in the complaint that would allow us to infer harassment oppression or abuse mr davis alleges that when feeling conducted its in ry found the addresses had nothing to do with them and still sent these notices containing personal information about his financial condition to these unknown very actresses that has a natural consequence of resulting in oppression the natural consequence of sending a letter that we don't even know who got it and it says that you are what two or sixty seven thousand dollars the somehow that was with the intent were the who or the third party is joe smith equal the natural consequence of which is rest with your honor when when in fact collector sends that collection notices to an address that it knows has no affiliation with the debtor well this is not an address i mean you're here you seem to be imparting total knowledge of what where these letters actually went so we know that one was sent to an address that didn't exist so if you send a letter to an address that doesn't exist is  violation because the session where was use of any postcards but i do believe in that regard that the information is conveyed and that's why it comes to the question of does does the debtor and this is a question for the statute interpretation i mean th the meaning of communication is simply to convey information it says nothing about about understanding receiving and interpret the information but it does require communication with and that implies does it not connotes that there actually has been something sent that something received not just received in the sense of i got a thing but that the there was a message and when you said we can assume anything you are say you're asking us to assume that the non addressee got it opened it read it you're asking us even though it's not pled that we assume those things right because you have to for this for the idea of communication with the have meaning don't you your honor i respectfully i do not i believe that the statute very strictly defines communication as conveying of information and i do believe that when we look at when we look at the the tarzana case where the court doesn't even matter if you listen to it it's the act of leaving in a violation and when we look at this one case i was one of the context of a voicemail again like a postcard this is well let me ask you this this is completely different bill i want to trainers in this are these two separate bases of liability the idea of communicating with the third party and the idea of abuse or of harassing oppressive an abusive conduct or these things that have to work together that is even if you communicate with a third party it it could be the case that there's no why ability because it's not harassing oppressive or abusive were the as independent  independent of each other one is under subsection d and the other is under c so and you're asserting both right yes or say and even if it's not harassing oppressive or abusive we ought to win because it's at least a communication with a third party pointed out the letter was undeliverable as addressed the regular mail was addressed i got quickly it wasn't delivered anybody assume that's true they're still the clustered drafts and as your opponent makes much of  would you send a letter to that address where you knew he was not well we did have information and failing to hire an employees an outside litigation services so when but when the outfit full spectrum comes and gives you degrees of separation that links brockton massachusetts with this case well we do know because there's a certification of your attorney blotter we are palmer who worked with full spectrum services and setting this up full spectrum from  obligations on you right you are the ones that have to decide who you're going to communicate with and what happens in new jersey foreclosures this was a fair foreclosure act notice that failing was required to sign drop before its client  against the davis right and pay their mortgage since two thousand and nine you don't want to get tripped up by having a foreclosure defended say the notice was no good so the safe thing to do is are you could call with regard to something that conceivably could give an arrow in the quiver of the other side to say that you violated the fair debt collection practices act because failing was complying with the fair foreclosure rock and didn't want to be in a position where the foreclosure would be  overturned because mr davis came in how serious it was how can you say it's the complying with the fear of foreclosure that it was what are you relying on because i got that i got back in front of me and i'm trying to i've been trying to find it since you said it in your brief and on and i'm not clear when into whether in the fair foreclosure act requires you to send mail to places where the post office is said the debtor is not because the places you have to send it to the first place and i can give you the statute cite or you have it i've got a radio hook if it's to a call in fifty or fifty six for big you have to send a letter to the  at fifteen linda avenue in brockton massachusetts is far as i know he did not but it is indicated by the databases that that is a mailing address for him and that was the last information that phailin had for a mailing address regard to the brockton massachusetts address that gave you an inkling that you should send a letter i know this is standard procedure as mr holman outlined in his certification if they go through a number of cases including creditor databases and this came up as the mailing address one of the mailing addresses along with the kloster address for mr davis and the cost of gas is the same they say that it's not her i'm sorry who says i thought i heard mr dewey say that the address in new jersey in the cost or addresses not the address for  around something here but let me let me ask you this you guys these are a third party complain that the your investigation for the say look if we're liable they must be liable because we were albert davis is in new jersey and all the water davis in new jersey and we can all be liable for that under the fair debt collection act because we expect all non albert davis that is all over davis who aren't this davis to come in and say ok having been told that are you under any legal obligation given the fair debt collection act to then take care and not engage in as you put it overkill and send letters to people where the tell you whether there's a known address or not i mean that's the government agencies responsibility if it says he's not there what in the new jersey law makes you think that you're responsible to is the home you were trying to foreclose on was the address i don't believe that we did you know that was addressed because that's where you have been communicating with him previously i don't believe failing to be communicating by the way your question before about who represented who in the first foreclosure  ten one failing was not involved in that and i think if you may know the law is clear that even if failings klein even if the bank knew that knowledge is not imputed to anybody else and failing had no contact with mr davis and five years later had no reason to know one way or the other whether the firm was that all involved isn't by far you are strong strongest argument that no matter what happened with regard to the address outrageous and you see examples you know profane language strikes of violence and things like that it's things of that nature so mike my question to you is why not make that argument at the outset why didn't i know when we when you came up here is you're talking about and argue about whether there's dissenting address to the wrong place is ok or not ok but on the second prong the natural consequence of it must be as you say agree just or with the attempt to or with because judge emerges describe this as the second prong is this is this a two prong test or it is sixty ninety two c b and sixty ninety two d independent basis of liability they are independent however but even if this conduct were not oppressive abusive it cetera if there were a communication with a third party under sixty ninety two c b that would standing in itself be a basis for liability if it were i know you're you're not admitting that it is you're fighting that very hard but if it if if we were to say no this is a communication with a third party does fifteen u s c sixteen ninety two c b stand as an independent basis for liability even without a yes yes i would i would say there is but as you pointed out before and one of my other point is there's a four letter word here that's very important that's the word with if you look at sixteen ninety two c b s or as you did how many an case and they all talk about the third party it's not a one way she you have to communicate with somebody and these letters all of them are dressed only that albert gave us there was no attempt by failing to communicate with anybody else as you pointed out the statutes of the federal statutes say you don't open anybody else's map it's illegal and there's an audience here that happened it would be we are now twenty seven months from descending the l other than the consumer so if you send it to a place that albert davis doesn't live then there's a real chance that you could have a communication with somebody if there's on who people are they have sussed security numbers other identification proper davis is a fairly common name there are probably hundreds of new jersey they did not they now take out here there's there's not much there's one in my neighborhood yes so it's something everybody that's it well it's a  you don't have anything in the record to indicate that it's the barber dave's doing we've got you saying well they're careful but evidently they're not all that careful because they also see it brockton massachusetts where everybody acknowledges nobody connected to the davis  but there's no evidence and if i can just make those two little quick points one is a stretch amdro point out in the gum as for socks this case last year we did have a materiality standard and this circuit certainly since the johnson case and that also ties into the spok issue there is no concrete injury this is a procedural violation it doesn't go to the content of what was in the communication it's simply procedural there is no injury in fact here and whatever the injury would have been it's immaterial we're sitting here twenty seven months later and there's been absolutely nothing that they've pointed to at any time he showed it was any injury fail and acted in good faith with the country comply with the jersey statute to give notice and that's all that happened and there's no adverse consequences to anybody it was only a communication with albert davis he's the only addresses on the sea of him so the just so i haven't understood the full spectrum came back and thank you very much mr gorst but thank you addresses that we good faith believe he was using we we made an effort we were just shooting randomly we hired people to find addresses for this man so that we could comply with these subsection of sixty ninety two k provides for them to address in defense should we get remanded and i'm sure that will come out the next point that i just want to focus the court to is that i do think that we're in need of guidance one way or another here as to really when we look at communication in connection with its definition under sixty nine hundred eighty two for it says that it is the conveying of information is this in fact require an active form of consumption of information do we as a simply do we have to do that were does this case hinge on with six no not in that subsection that you just mentioned the one  but the the one associated with was it c v a the subsection that deals with whether you've communicated with a third party if i say if we were to say for example whether assume this this is a communication was not communication with a third party because of the way it was addressed we just cooper handled it we would never get to the question of whether it was a communication right your honor i do not believe that this on the we're with is the correct way to approach it when we look at the other case law on the issue in regard to particularly you know the abundance of case law has to do with voice messages and we hear about third parties listening so with goes to the intent of the creditor or the debt collector i don't think that's really the question we look at an objective standard and we look at the definition that says convey so communication it was their communication more than was their communication with i think you have to address all of prongs of that and i do think that it's more appropriate to view this as was information conveyed and i believe the answer is yes open and so my question for the court is does eighty does eighty dead or in mike and mr davis position need before bringing this case to see have the burden of reaching out to these third parties to find out the subjective reaction or are we going to apply an objective standard as we do why does it have to be subject to standard mr bush when why isn't it incumbent upon you this gets back to the ambiguity question why isn't it come on you to show that it actually accept was was the information conveyed or not because otherwise we're splitting hairs and we're getting into a situation where if a debt collector for example sends a letter to to a person and they happen to be illiterate do they not has the information not being conveyed or for messages left on someone's machine but when you say illiterate they're really does take us in another direction we're supposed to assume and  the sort of the what was common denominator consumer but one that can actually appreciate some notice that central that's part of this that so that doesn't seem to be to help you much the but i believe i understand