your honor may i please the court and counsel the district court dismissed this f t c ph case that involves a series of communications that the plaintiff received concerning a single doubt with each communication representing an inconsistent amount of the debt to continue to just accrue the payments as few and mount up the late fees acceleration is that it was vulnerable to acceleration but the full amount had come due and paypal had i believe that i briefing seems to rely partly on the difference in the mails to argue that for instance the november amount is in most be incorrect because the subsequent amounts are much larger but my memory of the november letter and  front of me is that that letter says well we may accelerate this could be this debt could be accelerated in and i'm not sure that the inference that the amount must be false because it differs from a later amount is all that compelling if the loan had not yet been accelerated the november letter does represent that the mo had not been accelerated however at the time that aspen g purchased the loan it purchased the entire so plaintiff alleges that at the time the loan that at the time that wildman was sent the november rd two thousand and fifteen latter wildman had been retained to collect the full balance of the loan not just the amount to reinstate that's on page three and i'm sorry the letter can be found at plaintiff's appendix seventy five dollars on page three of the wildmen latter it states the total to reinstate it gives a breakdown and stomach payments late charges accrue late charges attorneys fees and costs but it only states the total to reinstate it does not state the total amount of plaintiff debt what's wrong with its initial communication that's required to comply with six hundred and ninety two dollars g and as such it needs to state the total amount of the debt and the amount to reinstate would if plaintiff paint the amount to reinstate it would not satisfy his debt in its entirety it would only put him in a position to resume making monthly payments whereby he would proceed to satisfy the debt but this contain a notice of debt the district court held that this was not a communication in connection with the collection of the debt relying on this court's decisions in the heart and carling case and i ask you the complaint alleges that it feels to communicate accurately the six they gives you an overview of all of the different communications that the plaintiff we see within a ten month period concerning this that the communications began with a representation that the debt is fifty eight thousand dollars then fifty four thousand dollars in the november waltman letter then the plaintiff with sue for an amount and also received a letter saying that the debt was one hundred and ten thousand the letter at issue here says that that is seventy two thousand dollars and the final letter at issue in this case says that that that is one hundred and eighty one thousand these numbers are very inconsistent and they are not consistent with the regular progression or increase of a debt so looking at the totality of the numbers it's clear that this doesn't accurately state the amount of the debt ok so the basis for saying that the amount stated in the june letter arms is is false wrong is that it's discrepancy with the letter that came afterwards in the letter that came before as well as the foreclosure action yes the district court held that the ask you to address who is a debt collector in these circumstances your adversary argues that aspen properties and i believe aspen g different kind of organization who doesn't that doesn't have a sense principal purpose the collection of debts and henson they had just a small unit that acquired some defaulted debts and some not it looks to me that aspen acquired this as its part of its business model and was already several years into fault and asking properties in aspen she were had joint ownership and therefore they were not the aspen properties the only defendant in this case is asking properties aspin jeem which is alleged to be the owner of plaintiff that is not a party to this action and what aspen properties is affectively encouraging the court to do is pierce the make them this isn't mean that their mutual control removes them from the purview of the debt collection definition is your honor referring to the affiliate exemption the aspen defendants vance let's say only access a debt collector only for persons to whom it is related or affiliated with the principal business of the person is not the collection of debts the affiliate exemption does not is not a clickable to ask them properties because one the record does not reflect that ask them properties and is an affiliate of aston g two the record does not reflect that ask them properties only collects debts for aspin she and the rd element that's missing is that the complaint the amended complaint alleges that aspens asked them properties primary isn't the principal business of debt collection so as such they do not satisfy the affiliates except the affiliate exemption is set forth in the f t c the district court held that the june nd two thousand and sixteen letter excuse me asking communicate with not a communication in connection with the collection of the debt relying on this course decisions and heart in carmen this course this ignorance and heart and carlin did not set forth an all inclusive checklist by which all debt collection letters must comply it's that this court was merely analyzing the letters that were before the letter at issue here and it says this communication is from a debt collector or the information will be used without purpose correct did you want to reserve your three minutes of rebuttal or do you want to take some now i can take some i mean you case fairly simple at this point we're talking about a motion to dismiss the f t c p a a require is a lease sophisticated consumer standard now what that means is that you cannot take the numbers outside of the context of the letters as a plaintiff attempts to do you can't simply take the numbers and the date and put them in a chart together and say they must be inconsistent and therefore they all must be wrong why can't you they do vary by dramatic amounts for instance why isn't it enough for the june nd letter to look at the amount of seventy two thousand and change and compare it to the august letter and infer from that that there's something wrong with the amount when a nd letter st of all is an offer of settlement it's dated several months beforehand and as any lisa has to cater to consumer would understand that if you don't pay off a debt and the debt has interest on it that that amount will increase accordingly every month every day according to the interest rate that's put on there similarly the st letter the letter as your honor put out a demand letter livingston just recently found to be perfectly compliant with the f t c p a and vs capital management decided a few months ago you move on after the for closure that has been accelerated by the foreclosure action itself we have two communications the st being an offer of settlement now the st problem with this is it's an offer of settlement a for closure action typically the holding of a foreclosure action letter that is for sure an initial communication aspen properties group has alleged and not plaintiff's complaint but in the motions to dismiss and in future litigation f responsibility to their clients ensure owner they do what we're pushing for is that not all clients are to collectors there are plenty of clients out there is loan servicers are clearly considered to not be that collectors the repo man that everyone's concerned about in the f t sepia are not collectors the attorney should have the exact same status and collector as the client now this is also been held in several of the sr circuits and that he because it was the creditor not had a debt collection company that any lawyer working for it is not a debt collector and that's our contention yes and that's  actually consistent with the additional exemptions on the f t c p a a for employees and owners so what you have is an inconsistency between a large company like bank of america where a substantial amount of its business is collecting  who has in house counsel that in house counsel pursuing for closure for them would be exempt under the employee exemption whereas outside counsel would not be it's inconsistent and we're just  it's a feel your isn't that just a failure of the statutory language i guess i'm not seeing how understanding the policy argument you're making how that triggers the six  has to bona fide fiduciary obligation so what we're saying is that even though you don't have that in house counsel privilege that would come in under the employee that congress would not have intended to exempt outside counsel doing the exact same thing as inside counsel for the same and therefore writing in this application would have been  congress's way of remedying that inconsistency perhaps not as clearly as we would like but it's there nonetheless of my having is that with that word incidental because the collection here doesn't and maybe i'm misreading the statute because action here doesn't seem  to the the fiduciary obligation it's it's essentially what the lawyer is hired to do in part yes lawyers hired to do the foreclosure but part of that is also a matter of advising the clients on other things for example wildman will routinely advise aspen as far as the due diligence before they purchase on the island via is whether or not for clues via is whether or not to send a man legal issues regarding the fact the matter is the party hasn't litigated the principal purpose test of this so really we're only looking at the henson argument at this time and that's the same as in the hens hanson court reduced its holding to simply under that nd portion of the test and we're asking the court to do the same thing here rather a different question in the august one two thousand and sixteen communication from the law sixteen dollars for every some period i don't know what period i have difficulty understanding how this could be a correct figure could you explain to me how it could be insure on or moment is not a loan servicer so wildman does not have access to non payment histories or figure out how the loan servicer is calculating that an amount due the payoff letter is actually created based upon the records of the lender and loan servicer at that time so when womyn received those figures it translated those figures verbatim into another letter the payoff letter would have any duty to verify the correctness of those figures mean when there's seems to be you know officially incorrect number one woman does not have a duty to do that actually wildman at this point has has a duty to obey its client's wishes which in this case was to send a payoff letter at mr hale's request to him extend showing the amount of the debt as of the lender's record still as of that date surely fact that he requested it doesn't mean i stem from the consequences of giving an incorrect figure no your honor it does not are you so are you conceding that figure is incorrect your honor we're not conceding anything based upon what has been argued in the complaint i think further discovery would be needed however if the figure is in fact correct the f t c p a contains another exception for liability for a bona fide error if something had happened where somebody clicked a wrong number and applied the wrong type of late charges to that despite the rule set to prevent such a thing than the bonafide are exception would also take care of that so i was apparently facial her enough to have a complaint survive a motion to dismiss your honor the biggest problem with both the complaint and be amended complaint is that it's not pled it's facts almost all of the allegations are played as legal conclusions which the court does not have to accept as true but didn't the complaint include these communications either implicitly or explicitly doesn't it incorporate these communications that we've been discussing yes it does and the court based on its own reading is free to determine whether or not each of those would be confusing or insufficient based upon the least sophisticated consumer standard rather than taking the facts as true because they were played as legal conclusions and not because i just asked again about the aug st letter because i was reading the complaint to suggest that there might perhaps perhaps there's enough here to infer the stake based on the simple math but i didn't know that late charges and late fees are the same thing and so for instance late fees can  accrue to other insurance charges service charges payment of the accelerated principal the figure me out the the late charge was the sixteen dollars a month in my mistress reading that that  concept is there a distinction between late charges and late fees no your honor they are the same although they can apply depending on the no terms to other things besides just the late payment many no talk yes that's my question does late charge a late fee do both of those phrases in the context of this complaint refer to the sixteen dollars the only thing that it could be is the sixteen dollars a month charge unless those fees are also applied cording to the mortgage there may be a different rate there that applies there's also a provision in the contract that states that after the st ten years where they can draw that some of those terms will change and you would have to look at the no clearly to ensure that that late charge remains the same as well thank your hon sure some of the issues raised by council walkmen does have a responsibility and a duty to accurately if they're going to undertake sending a collection letter it should be accurate with respect to a distinction between late charges and late fees the question would be will isa physic a consumer know that distinction and i don't believe objective lease sophisticated consumer will look at a letter that represents late charges and  entitled to discovery on the issue of quantifier error and again it will require a finding of liability and just to go excuse me thank consistency is represented in the letters if we look at a point plaintiff's appendix rabbit says this offer also includes a discounted payoff settlement offer of eighty thousand dollars so apparently the offer of some woman is scuse me is more than the amount of the debt this is just further inconsistency and the numbers that are in the communications that plaintiffs received and you just explain because addressing the aug st letter the basis for concluding that the late charges  dollars it states that its home amount of late charges or late fees is eight hundred dollars here the amount of late fees has increased by a total of five hundred and twenty four dollars thirty two cents which would be inconsistent for a ten month period between november rd and september th that wouldn't be a month that wouldn't be consistent with late fees occurring in the amount of sixteen dollars per month i take it that the loan documents don't provide that interest can accrue and accumulated loan charges or late charges is that right i would need to check i don't know don't know at this moment