UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TODD SCRIBNER, Plaintiff - Appellant,

v. WORKS & LENTZ, INC., Defendant - Appellee. No. 15-5034 (D.C. No. 4:14-CV -00177-JHP-PJC) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Plaintiff Todd Scribner appeals from the grant of summary judgment entered in favor of defendant Works & Lentz, Inc. (W&L), a debt collector, in this action under the Fair Debt Collection Practices Act (FDCPA), 15 U. S.C. §§1692-1692p. Scribner’s claims arise out of one tele phone call made by a W&L employee to the manager of his apartment complex. The district judge decided the call was not a

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 21, 2016
Elisabeth A. Shumaker Clerk of Court2 prohibited communication actionable under th e FDCPA. Circuit precedent compels us to affirm. BACKGROUND Here, Scribner focuses exclusively on whether W&L violated the FDCPA’s qualified restriction on contact with third parties, cons isting of § 1692c(b), which prohibits “communication[s]” from debt collectors to th ird parties “in connection with the collection of any debt,” and § 1692b, which excepts fro m that prohibition a one-time communication by a debt collector who, as relevant here, “identif[ies] himself, state[s] that he is confirming or correcting lo cation information concerning the consumer,” and does “not state that such consumer owes any debt.” See Evankavitch v. Green Tree Servicing, LLC , 793 F.3d 355, 36 2 (3d Cir. 2015) (“[T]he FDCPA generally prohibits a debt collector from contac ting third parties, with the debt collector’s ab ility to seek location inform ation framed as an exception to this general prohibition.”) . In a provision applicable throughout the FDCPA, the term “communication” is defi ned as “the conveying of in formation regarding a debt directly or indirectly to a ny person through any medium.” 15 U.S.C. § 1692a(2). In Marx v. General Revenue Corp. , 668 F.3d 1174, 1177-78 (10th Cir. 2011), cert. granted in part by 132 S. Ct. 2688, and judgment aff’d by 133 S. Ct. 1166 (2013), we decided § 1692c(b)’s prohibiti on on third-party contact is limited to communications as defined in § 1692a(2) and, hence, once it is determined that a debt collector’s contact with a third party (in Marx , a fax seeking to verify the debtor’s employment) does not convey information about a debt, th ere can be no violati on of § 1692c(b).3 Accord Brown v. Van Ru Credit Corp. , 804 F.3d 740, 742- 45 (6th Cir. 2015) (following Marx ). Turning to the operative facts here, in 2013 W&L wa s attempting to collect a debt owed by Scribner. On May 30, 2013, W&L employee Erica Pruitt called the manager of Scribner’s apartment complex, Brigitte Coffman, fo r the purpose (she asserts) of confirming or correcting his current location inform ation. While the record is not entirely clear as to whether Pruitt actually told Coffman this was the purpose of the call, 1 another matter is undisputed: Pr uitt did not identify herself or her employer as a debt collector or refer to any debt owed by Scribner. Nor did Coffman understand or infer (from what she wa s told) the call to be concerned with a debt owed by Scribner. Pruitt did ask Co ffman to post a note (to be faxed later) on Scribner’s door—a request calling for a tell-tale answer regarding Scribner’s residence at the complex. Coffman’s res ponse was vague, agreeing only to see what she could do. 2 No fax was ever received from W&L. After concluding the short conversation with Pruitt, Coffman sent a text message about the call to Scribner,

1 In an affidavit Pruitt’s claims to having made a statement about the purpose of the call. In her affidavit, (consistent with a text she sent Scribner at the time) Coffman denies such a stat ement was made, although he r later equivocal deposition testimony suggests that possibi lity. As will be eviden t shortly, this point, which relates only to § 1692b’s exception to § 1692c(b)’s prohibition on third-party communications, is not material; the prohibiti on was not violated in the first place. Moreover, § 1692b is inapplicable for the sa me reason § 1692c(b) is inapplicable.

2 In this regard, there is some dispute as to whether Pruitt said Scribner had not been answering phone calls. Co ffman affirms it is true; Prui tt denies it. That dispute is also not material to our disposition of the case.4 which prompted an exchange of multiple me ssages. Only throug h the exchange with Scribner did Coffman became awar e of an attempt to collect a debt owed by Scribner. Scribner brought this action alleging Pruitt’s call to Coffman violated several FDCPA proscriptions, including the §§ 169 2c(b)/1692b limitation on third-party communications, the focus of th is appeal. In a summary j udgment, the district judge concluded the call did not constitute a communication w ithin the meaning of the FDCPA, because the undisput ed facts showed it neither directly nor indirectly conveyed information about Sc ribner’s debt to Coffman. Consequently, relying on
Marx , he decided as a matter of law there had been no violation of the cited sections of the FDCPA. 3
ANALYSIS We review the grant of summary judgmen t de novo, using the same standard as the district court under Fed. R. Civ. P. 56(a). Certain Underwriters at Lloyd’s London v. Garm in Int’l, Inc. , 781 F.3d 1226, 1229-30 (10th Ci r. 2015). That is, we will affirm the district court’s determination if “‘there is no genuine dispute as to any

3 At one point he loosel y observed that the lack of a qualifying communication precluded any and all claims under the FDCP A. But, as Scribner notes, there are numerous prohibitions in the FDCPA not involving a communication, such as 15 U.S.C. §§ 1692d(1) (prohibiting use of violence or other criminal means for collection purposes), 1692f(2) (prohibitin g acceptance of checks or instruments postdated more than five days), 1692f(4) (prohibiting early deposit of postdated checks or instruments), and 1692i (pr ohibiting filing of collection action in inconvenient forum). Because our holding is restricted to §§ 1692c(b)/1692b, which expressly refer to communications, we affirm without embracing overbroad conclusions about the FDCPA as a whole. Scribner’s several c ounterexamples do not undermine our more limited holding.5 material fact and the mova nt is entitled to judgment as a matter of law.’” Id. (quoting Rule 56(a)). While the primary focus of this appeal is on Marx ’s legal holding regarding the interaction of the definition of communi cation in § 1692a(2) and the use of that term in § 1692b(c), Scribner does raise two factual issues . Both concern § 1692b’s exception of location-information inqu iries from § 1692c(b)’s prohibition on third-party communications. He contends W&L’s showing (for this exception) in support of its motion for summary judgment was deficient because (1) evidence indicated W&L already knew he lived at the apartment complex and (2) there is a genuine dispute as to whethe r Pruitt told Coffman she was confirming that fact. But these points relate to a factual matter immaterial to our disposition. If (as, per Marx , we hold below) the absence of third-pa rty contact qualifying as a communication under § 1692a(2) precludes any violation of § 1692c(b), the question of § 1692b’s exception for location-informati on inquiries never arises. To avoid this conclusion, Scribner seems to argue that a failure to satisfy the conditions for § 1692b’s exception to liability for third-party comm unications is somehow itself a separate basis for such liability. L eaving aside the logical problem the argument presents, any independent claim under § 1692b would fa il for the same reasons the § 1692c(b) claim fails. The introducto ry sentence of § 1692b states: “Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall” satisfy the six conditions that follow.6 (Emphasis added). Thus, § 1692b, like § 1692c(b), is not violated unless (per Marx ) the third-party contact qualifies as a communication under § 1692a(2). 4 Which brings us back to the nub of this appeal—the application of Marx ’s holding to Scribner’s §§ 1692c( b)/1692b claim. He attempts to avoid this result in two ways. To begin with, he contends Marx is inapposite becau se it dealt with a violation of § 1692c(b) rather than a viola tion of § 1692b. As indicated above, this argument appears to rest on a mischaract erization of the role § 1692b plays in determining an actionable vi olation of the FDCPA’s qua lified prohibition on contact with third parties, which is that of a limited exception to liability under § 1692c(b), not a separate basis for liability. Moreover, as also noted above, § 1692b itself refers to communication and hence implicates the definition in § 1692a(2). Consequently,
Marx ’s holding that in the absence of a qualifying communication there can be no liability is analytically pertin ent in any event. Nothing in Marx suggests its holding would not control here. According to Scribner, a pplying § 1692a(2)’s definition of communication in this manner renders the exception in § 169 2b superfluous—a resu lt to be avoided whenever it is possible to do so through a permissible contrary construction of the statute in question, see Marx , 668 F.3d at 1183. His ar gument runs as follows: applying the statutory defin ition of communication, no acti onable violation can arise

4 Also immaterial, and for the same reasons, is Scribne r’s complaint that Pruitt exceeded the scope of permissible location- information contact under § 1692b when she asked about getting a mess age posted to his door.7 unless a debt collector “convey[ s] . . . information rega rding a debt directly or indirectly,” § 1692(a)(2); but one of the conjunctive cond itions for § 1692b’s exception to liability is that th e debt collector “not state [t o the third party] that [the] consumer owes any debt,” § 1692b(2); thus, the re dundant requirement for the reference to debt in both prohibition a nd exception means that the exception will apply only when it is not n eeded, i.e., when there could be no violation in the first place. 5 Two considerations lead us to reject this argument. First, the argument depends on equati ng § 1692a(2)’s broad and inclusive reference to “the conveying of information regarding a debt directly or indirectly ” (emphasis added) with § 1692b(2)’s strict and specific reference to “ stat [ ing ] that [the] consumer owes a [] debt ” (emphasis added). These ar e not equivalent. One can convey some information regard ing a debt (especially indirectly) to a third party so as to trigger § 1692c(b) wit hout stating “consumer ‘x’ owes a debt.” Thus, it appears § 1692b’s location-information exception may still be available to excuse contact otherwise coming within § 1692c(b)’s proh ibition on third-party communications as defined in § 1692a(2). In any event, basically the same redunda ncy/superfluity argument, directed at one of the other conditions for invoking § 1692b’s loca tion-information exception, was squarely rejected in Marx . Sub-section 1695b(5) requi res the debt collector to

5 A consequence of this, he adds, is this: if third-pa rty contact does not qualify as communication under § 1692a(2), the debt collector is free to engage in conduct Congress clearly intended to curb through constraints im posed by the various other requirements for invoking the location- information exception in § 1692b.8 avoid use of language or symbols evin cing a prohibited “communication.” In Marx , this court conceded the debto r’s point that giving effect to the statutory definition of communication made § 1692b(5) superfluous (because it would be satisfied only when there had been no communication to vi olate § 1692c(b) in the first place), but noted “[a] court should not apply the superfluity canon [i n construing the statute] unless it first determines that the te rm being construed is ambiguous.” Marx , 668 F.3d at 1183. Holding “the statutory definition of th e key term ‘communication’ is unambiguous,” Marx “decline[d] to avoid [the s uperfluity the te rm created] by creating an ambiguity where none exists.” Id. at 1184. We cannot accept Scribner’s similar argument here without imperm issibly diverging from our holding in Marx

. The judgment of the distri ct court is affirmed.

Entered for the Court

Terrence L. O’Brien Circuit Judge