2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-7-2015

Dale Kaymark v. Bank of America NA

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 14-1816

____________

DALE KAYMARK, individually and on behalf of

other similarly situated current and former

homeowners in Pennsylvania,

 Appellant

v.

BANK OF AMERICA, N.A.; UDREN LAW OFFICES, P.C.

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. No. 2-13-cv-00419)

District Judge: Honorable Cathy Bissoon

______

Argued December 10, 2014

Before: FUENTES, FISHER and KRAUSE, Circuit Judges.

(Opinion Filed: April 7, 2015)
2

Jonathan R. Burns, Esq.

Michael P. Malakoff, Esq. ARGUED

Malakoff, Doyle & Finberg

437 Grant Street, Suite 200

Pittsburgh, PA 15219

Counsel for Appellant Dale Kaymark

Thomas L. Allen, Esq. ARGUED

Nellie E. Hestin, Esq.

Reed Smith

225 Fifth Avenue, Suite 1200

Pittsburgh, PA 15222

Marc A. Goldich, Esq.

Andrew J. Soven, Esq.

Reed Smith

1717 Arch Street

Three Logan Square, Suite 3100

Philadelphia, PA 19103

Counsel for Appellee Bank of America, N.A.

Jonathan J. Bart, Esq. ARGUED

Wilentz, Goldman & Spitzer

Two Penn Center Plaza

Suite 910

Philadelphia, PA 19102

Counsel for Appellee Udren Law Offices, P.C.

______
3

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Dale Kaymark defaulted on a mortgage held by Bank 

of America, N.A. (“BOA”). On behalf of BOA, Udren Law 

Offices, P.C. (“Udren”) initiated foreclosure proceedings 

against Kaymark in state court. The body of the Foreclosure 

Complaint listed certain not-yet-incurred fees as due and 

owing, which Kaymark alleges violated several state and 

federal fair debt collection laws and breached the mortgage 

contract. Because we conclude that Kaymark has sufficiently 

pled that the disputed fees constituted actionable 

misrepresentation under the Fair Debt Collection Practices 

Act (“FDCPA”), 15 U.S.C. § 1692 et seq., we will reverse the 

District Court’s order dismissing certain FDCPA claims 

against Udren but affirm its dismissal of all other claims.

I.

A.

Kaymark refinanced his home in Coraopolis, 

Pennsylvania, in December 2006, executing a note for 

$245,600 and granting BOA a mortgage. The mortgage was 

insured by Fannie Mae (“FNMA”). The terms of the 

mortgage state, in pertinent part: 

Lender may charge Borrower fees for 

services performed in connection with

Borrower’s default and for the purpose 

of protecting Lender’s interest in the 

Property and rights under this Security 

Agreement, including, but not limited to, 
4

attorneys’ fees, property inspection and 

valuation fees.

. . . .

If the default is not cured as specified . . . 

. Lender shall be entitled to collect all 

expenses incurred in pursuing the 

remedies provided in this Section [], 

including, but not limited to, attorneys’ 

fees and costs of title evidence to the 

extent permitted by Applicable Law.

App. 72a (¶ 14), 75a (¶ 22) (emphases added). 

Kaymark experienced a drop in income in June 2011 

and failed to make his mortgage payments. On August 1, 

2011, BOA sent Kaymark an “Act 91 Notice” of preforeclosure delinquency pursuant to Pennsylvania’s Housing 

Finance Agency Law, 35 P.S. § 1680.403c, which requires 

mortgage-holders considering foreclosure to send 

homeowners a notice as a prerequisite to initiating formal 

action. An Act 91 notice must, among other things, include 

an itemized breakdown of the total amount past due as of the 

date of the notice and inform the homeowner that he is 

entitled to thirty days plus three additional days for mailing to 

meet with a consumer credit counseling agency to attempt to 

resolve the delinquency. Id. Kaymark alleges his Act 91 

Notice was improper by attempting to collect three months 

payment when, at the date of mailing, Kaymark was only two 

months in arrears, and by misrepresenting the time within 

which Kaymark had to meet with a credit agency as thirty 

days, instead of thirty-three days.

Over a year later, on September 13, 2012, Udren, on 

behalf of BOA, filed a verified Foreclosure Complaint against 

Kaymark in the Court of Common Pleas of Allegheny 
5

County, Pennsylvania. The body of the Foreclosure 

Complaint included an itemized list of the total debt, stating 

that the following items were due and owing as of July 12, 

2012:

Unpaid Principal Balance

$213,224.26

Accumulated Interest (07/01/2011-07/12/2012) 

$13,452.47

Accumulated Late Charges 

$177.74

Escrow Deficit / (Reserve) 

$1,935.45

Title Report 

$325.00

Attorney Fees 

$1,650.00

Property Inspection 

$75.00

Grand Total

$230,839.92

The above figures are calculated as of 07/12/2012[.]

App. 47a. 

Kaymark alleges that the $1,650 in attorneys’ fees, 

$325 in title report fees, and $75 in property inspection fees 

(or $2,050 total) were not actually incurred as of July 12, two 

months before the foreclosure action was filed on September 

13. Kaymark also alleges that the fees were improperly 

calculated on a fixed basis. Appellees retort that fixed fees 

are contemplated under the FNMA servicing guide, which 

sets the maximum foreclosure fee, or cap, for attorneys’ fees 

at $1,650. See App. 85a-86a. 
6

Kaymark contested the foreclosure action, which is 

still pending in the Allegheny County Court of Common 

Pleas. As such, Kaymark has never paid the disputed fees. 

The parties do not dispute that these fees were ultimately 

incurred in the course of the foreclosure action or that the fees 

were ultimately reasonable. See App. 6a n.4.

B.

In February 2013, Kaymark filed a complaint on 

behalf of himself and a putative class against BOA and Udren 

(collectively, “Appellees”) in the Court of Common Pleas of 

Allegheny County. In the original complaint, Kaymark 

alleged that Appellees violated the Pennsylvania Loan 

Interest and Protection Law (“Act 6”), 41 P.S. § 101 et seq., 

because the Foreclosure Complaint sought attorneys’ fees 

which were not “actually incurred” upon commencement of 

the foreclosure action. Id. § 406. Appellees removed the 

case to the U.S. District Court for the Western District of 

Pennsylvania and filed motions to dismiss on the grounds that 

Kaymark’s mortgage exceeded the maximum baseline figure 

to be governed under Act 6. 

In response, Kaymark filed an amended complaint, 

asserting the following four counts on the bases of the alleged 

misrepresentations in the Foreclosure Complaint and/or Act 

91 Notice: Count I, against BOA, for violating 

§ 2270.4(b)(5)(ii), (v), (x), and (6)(i) of the Pennsylvania Fair 

Credit Extension Uniformity Act (“FCEUA”), 73 P.S. § 

2270.1 et seq.; Count II, against Udren, for violating §§ 

1692e(2)(A), (5), (10), and 1692f(1) of the FDCPA; Count 

III, against both BOA and Udren, for violating the 

Pennsylvania Unfair Trade Practices and Consumer 

Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq., by 

virtue of the violations of the FCEUA or by engaging in 

certain “unfair or deceptive acts or practices,” in violation of 
7

§ 201-2(4)(v) and (xxi); and Count IV, against BOA, for 

common law breach of contract.

BOA and Udren again moved to dismiss for failure to 

state a claim under Federal Rule of Civil Procedure 12(b)(6). 

The Magistrate Judge issued a Report and Recommendation 

(“R&R”) to grant the motions on December 11, 2013. It 

reasoned that Kaymark’s FDCPA claim that Appellees were 

not authorized to list not-yet-incurred flat fees in the 

Foreclosure Complaint was “rather hypertechnical,” App. 

136a, and that “nowhere do the loan documents or any state 

or federal law prohibit listing attorneys’ fees and other fixed 

costs at the time of filing the complaint, but are reasonably 

expected to be incurred,” App. 135a. It also explained that 

Kaymark “pled himself out of the state causes of action” 

because he did not show any actual loss or damage. App. 

125a.

The District Court adopted the R&R and granted the 

motions to dismiss in their entirety, with prejudice, on March 

31, 2014. Agreeing that the inclusion of not-yet-incurred fees 

was not prohibited by the mortgage contract or other state or 

federal laws, the District Court dismissed the FDCPA claim. 

It also concluded that Kaymark failed to demonstrate an 

actual loss as a result of the alleged misrepresentations, and, 

therefore, that he failed to state a claim under the UTPCPL 

and the FCEUA. For the same reasons (i.e., failure to plead 

actual loss), the District Court dismissed Kaymark’s breach of 

contract claim against BOA. Kaymark timely appealed.

II.

The District Court exercised jurisdiction over 

Kaymark’s FDCPA claim under 28 U.S.C. § 1331 and 

supplemental jurisdiction over Kaymark’s state-law claims 

under 28 U.S.C. § 1367. This Court exercises jurisdiction 

under 28 U.S.C. § 1291. 
8

We exercise plenary review over a district court’s 

grant of a motion to dismiss under Rule 12(b)(6). See 

Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 

2012). “To survive a motion to dismiss, a complaint must 

contain sufficient factual allegations, taken as true, to ‘state a 

claim to relief that is plausible on its face.’” Id. (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We accept 

all factual allegations as true and construe all inferences in the 

light most favorable to the plaintiff. Id. 

III.

A.

Congress enacted the FDCPA in 1977 “to eliminate 

abusive debt collection practices by debt collectors.” 15 

U.S.C. § 1692(e). The Court has repeatedly held that “[a]s 

remedial legislation, the FDCPA must be broadly construed 

in order to give full effect to these purposes,” Caprio v. 

Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 148 

(3d Cir. 2013), and, as such, we analyze the communication 

giving rise to the FDCPA claim “from the perspective of the 

least sophisticated debtor,” Rosenau v. Unifund Corp., 539 

F.3d 218, 221 (3d Cir. 2008) (internal quotation marks 

omitted).

Kaymark alleges that, by attempting to collect fees for 

legal services not yet performed in the mortgage foreclosure, 

Udren violated 15 U.S.C. § 1692e—specifically, 

§ 1692e(2)(A), (5), and (10)—which imposes strict liability 

on debt collectors who “use any false, deceptive, or 

misleading representation or means in connection with the 

collection of any debt,” and § 1692f(1) by attempting to 

collect “an[] amount (including any interest, fee, charge, or 

expense incidental to the principal obligation) unless such 

amount is expressly authorized by the agreement creating the 

debt or permitted by law.” 
9

Bearing on these claims, the parties dispute the 

relevance of our intervening decision in McLaughlin v. 

Phelan Hallinan & Schmieg, LLP, 756 F.3d 240 (3d Cir. 

2014)—decided by this Court after the District Court’s order. 

In McLaughlin, we held that nearly-indistinguishable conduct 

in a debt collection demand letter, rather than a foreclosure 

complaint, violated the FDCPA. We now conclude that 

McLaughlin’s holding extends to foreclosure complaints, and 

we reverse the District Court’s order dismissing certain 

FDCPA claims against Udren. 

1.

Timothy McLaughlin defaulted on a mortgage held by 

CitiMortgage. CitiMortgage referred the issue to Phelan 

Hallinan & Schmieg, LLP (“PHS”), which sent McLaughlin a 

demand letter on June 7, 2010, itemizing the total amount of 

debt due as of May 18, 2010, as $365,488.40. Id. at 243. The 

debt included two line items relevant here: $650 in 

“Attorney’s Fees” and $550 for “Costs of Suit and Title 

Search.” Id. (internal quotation marks omitted). Like in the 

case at bar, “McLaughlin assert[ed], among other things, that 

these fees and costs had not actually been incurred as of the 

date stated in the Letter,” id., constituting actionable 

misrepresentation under § 1692e(2) (“The false representation 

of—(A) the character, amount, of legal status of any debt; or 

(B) any services rendered or compensation which may be 

lawfully received by any debt collector for the collection of a 

debt.”) and (10) (“The use of any false representation or 

deceptive means to collect or attempt to collect any debt or to 

obtain information concerning a consumer.”) of the FDCPA. 

When McLaughlin filed a class action complaint, the 

district court held, among other things, that “estimating the 

amount of attorneys’ fees in an itemized debt collection 

notice does not violate the FDCPA,” id. (internal quotation 
10

marks omitted), and dismissed McLaughlin’s claims. On 

appeal, this Court reversed:

Nothing [in the Letter] says [the amount 

owed on the debt] is an estimate or in 

any way suggests that it was not a 

precise amount. As the drafter of the 

Letter, PHS is responsible for its content 

and for what the least sophisticated 

debtor would have understood from it. If 

PHS wanted to convey that the amounts 

in the Letter were estimates, then it could 

have said so. It did not. Instead, its 

language informs the reader of the 

specific amounts due for specific items 

as of a particular date. If the amount 

actually owed as of that date was less 

than the amount listed, then, construing 

the facts in the light most favorable to 

McLaughlin as we must when reviewing 

the dismissal under Rule 12(b)(6), 

McLaughlin has stated a claim that the 

Letter misrepresents the amount of the 

debt in violation of § 1692e(2) and (10).

Id. at 246 (internal citations omitted). 

The facts in McLaughlin are virtually indistinguishable 

from the case at bar. Here, the Foreclosure Complaint also 

plainly “inform[ed] the reader of the specific amounts due for 

specific items as of a particular date,” id., two months prior to 

the date the Foreclosure Complaint was filed. Udren also did 

not convey that the disputed fees were estimates or imprecise 

amounts. Thus, pursuant to McLaughlin, the Foreclosure 

Complaint conceivably misrepresented the amount of the debt 
11

owed, forming a basis for violations of § 1692e(2)(A) and 

(10).

By extension, it follows that Kaymark has sufficiently 

alleged that Udren’s attempt to collect those misrepresented 

fees was not “expressly authorized” by the mortgage contract 

or permitted by law. § 1692f(1).1 To be sure, Kaymark 

expressly agreed to the collection of certain fee categories, 

such as “attorneys’ fees, property inspection and valuation 

fees.” App. 72a (¶ 14). But the contract also specified that 

BOA could only charge for “services performed in 

connection with” the default and collect “all expenses 

incurred” in pursuing authorized remedies. App. 72a (¶ 14), 

75a (¶ 22) (emphases added). While such language is 

arguably capable of more than one meaning, we must view 

the Foreclosure Complaint through the lens of the leastsophisticated consumer and in the light most favorable to 

Kaymark. In this perspective, the most natural reading is that 

Udren was not authorized to collect fees for not-yetperformed legal services and expenses, forming a basis for a 

violation of §1692f(1).2

This conclusion is not a departure from our sister 

Circuits, which have held that demanding fees in the 

collection of debts in a way contrary to the underlying 

agreement is actionable under the FDCPA. See Kojetin v. C 

U Recovery, Inc., 212 F.3d 1318 (8th Cir. 2000) (per curiam) 

 

1 The district court dismissed this claim in 

McLaughlin, and McLaughlin did not challenge it on appeal. 

See McLaughlin, 756 F.3d at 244 n.5. 

2 Because there is no such language for fixed fees, we 

will presume that they were not prohibited by the mortgage 

contract (or, in any event, intertwined with the argument that 

the fees be actually incurred).
12

(finding FDCPA violation where the debt collector charged a 

collection fee based on a percentage of the principal balance 

of the debt due rather than the “actual cost[]” of collection as 

stipulated in the loan agreement); Bradley v. Franklin 

Collection Serv., Inc., 739 F.3d 606, 610 (11th Cir. 2014) 

(finding § 1692f(1) violation where debtor “agreed to pay the 

actual costs of collection,” not “a percentage above the 

amount of his outstanding debt that was unrelated to the 

actual costs to collect that debt”) (per curiam). Likewise, 

Kaymark agreed to pay attorneys’ fees and other expenses 

that were actually incurred in connection with the default, not 

fees that might eventually be incurred. 

However, because Udren did not “threat[en] to take 

an[] action that cannot legally be taken,” 15 U.S.C. 

§ 1692e(5), such as falsely threatening to file suit, see Brown 

v. Card Serv. Ctr., 464 F.3d 450, 454-55 (3d Cir. 2006), 

Kaymark fails to state a claim under § 1692e(5). 

The false communication in McLaughlin was a debt 

collection letter; here, of course, it is a Foreclosure 

Complaint. Accordingly, to determine whether Kaymark has 

sufficiently stated an FDCPA claim, we must decide whether 

this distinction is fatal.

2.

The thrust of Udren’s argument is that pleadings—in 

particular, foreclosure complaints—cannot be the basis of 

FDCPA claims. However, the statutory text, as well at the 

case law interpreting the text, renders this argument meritless. 

In Heintz v. Jenkins, the Supreme Court established 

that attorneys “engage[d] in consumer-debt-collection 

activity, even when that activity consists of litigation” are 

covered by the FDCPA. 514 U.S. 291, 299 (1995). In so 

holding, the Court explained that Congress repealed an 

express exemption from the definition of “debt collector” in 
13

an earlier version of the statute for “any attorney-at-law 

collecting a debt as an attorney on behalf of and in the name 

of a client.” Id. at 294 (quoting Pub. L. No. 95-109, 

§ 803(6)(F), 91 Stat. 874, 875 (1977)). Once Congress 

amended the law without creating another exemption to fill its 

void, the Court explained, “Congress intended that lawyers be 

subject to the [FDCPA] whenever they meet the general ‘debt 

collector’ definition.” Id. at 295; see 15 U.S.C. § 1692a(6) 

(defining debt collector as “any person . . . who regularly 

collects or attempts to collect, directly or indirectly, debts 

owed or due or asserted to be owed or due another.”). That 

the FDCPA covers attorneys engaged in debt collection 

litigation is well-established law in this Circuit, see, e.g., 

Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 234 (3d 

Cir. 2005) (“[I]f a communication meets the [FDCPA’s] 

definition of an effort by a ‘debt collector’ to collect a ‘debt’ 

from a ‘consumer,’ it is not relevant that it came in the 

context of litigation.”), and there is no dispute here that Udren 

acted as a “debt collector” when, by filing the Foreclosure 

Complaint, it “attempt[ed] to collect” a debt on behalf of 

BOA. 15 U.S.C. § 1692a(6).

But Congress did not stop there. Subsequent to Heintz, 

Congress twice amended the statute and exempted “formal 

pleading[s] made in connection with a legal action” from 15 

U.S.C. § 1692e(11), as amended Pub. L. No. 104-208, 

§ 2305(a), 110 Stat. 3009, 3009-425 (1996), and 

“communication[s] in the form of [] formal pleading[s]” from

§ 1692g(d), as amended Pub. L. No. 109-351, § 802(a), 120 

Stat. 1966 (2006), two provisions not here at issue. If 

Congress intended that all conduct in the course of formal 

pleadings be exempt from the FDCPA, then these express 

exemptions would be superfluous, and “courts should 

disfavor interpretations of statutes that render language 
14

superfluous.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 

253 (1992). Furthermore, as the Fourth Circuit explained, 

“the fact that the amendment[s] occurred after Heintz further 

indicates that Congress was aware of the Court’s 

interpretation of the FDCPA and accepted it, except for the 

narrow exemption[s] it provided for formal pleadings” in 

§§ 1692e(11) and 1692g(d). Sayyed v. Wolpoff & Abramson, 

485 F.3d 226, 231 (4th Cir. 2007); see also Merrill Lynch, 

Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 

n.66 (1982) (“Congress is presumed to be aware of a[] . . . 

judicial interpretation of a statute and to adopt that 

interpretation when it re-enacts a statute without change . . . .” 

(internal quotation marks omitted)). If Congress had wanted 

to exclude formal pleadings from the protections of the 

FDCPA under any of its other provisions, it could have done 

so. It did not. Thus, except for §§ 1692e(11) and 1692g(d), 

“[t]he amendment[s] by [their] terms in fact suggest[] that all

litigation activities, including formal pleadings, are subject to 

the FDCPA.” Sayyed, 485 F.3d at 231.

We conclude that a communication cannot be uniquely 

exempted from the FDCPA because it is a formal pleading or, 

in particular, a complaint. This principle is widely accepted 

by our sister Circuits. See, e.g., Currier v. First Resolution 

Inv. Corp., 762 F.3d 529, 535 (6th Cir. 2014) (“The fact that 

the [alleged violation] appears in a lawsuit or other court 

filing does not diminish the threatening nature of the 

communication for purposes of the FDCPA.”); James v. 

Wadas, 724 F.3d 1312, 1316 (10th Cir. 2013) (“[T]he 

FDCPA ‘applies to the litigating activities of lawyers,’ which, 

as other circuits have held, may include the service upon a 

debtor of a complaint to facilitate debt collection efforts . . . 

.”) (quoting Heintz, 514 U.S. at 294)); Donohue v. Quick 

Collect, Inc., 592 F.3d 1027, 1032 (9th Cir. 2010) (“To limit 
15

the litigation activities that may form the basis of FDCPA 

liability to exclude complaints served personally on 

consumers to facilitate debt collection, the very act that 

formally commences such a litigation, would require a 

nonsensical narrowing of the common understanding of the 

word ‘litigation’ that we decline to adopt.”); Sayyed, 485 F.3d 

at 229 (subjecting interrogatories and summary judgment 

motions to the FDCPA); Gearing v. Check Brokerage Corp., 

233 F.3d 469, 472 (7th Cir. 2000) (finding § 1692e(2) and 

(10) violations where debt collector’s “allegation in its state 

court complaint . . . gave a false impression as to the legal 

status it enjoyed”). And, while we have not directly decided 

the issue, this Court has extended the FDCPA to state court 

complaints, see Glover v. F.D.I.C., 698 F.3d 139, 152 n.8 (3d 

Cir. 2012) (explaining that the law firm, “[i]n filing the 

Foreclosure Complaint against Glover,” indisputably met the 

definition of “debt collector” under the FDCPA), and so has 

the Supreme Court, see Jerman v. Carlisle, McNellie, Rini, 

Kramer & Ulrich LPA, 559 U.S. 573 (2010) (deciding the 

scope of the FDCPA’s bona fide error defense on the basis of 

a notice attached to mortgage foreclosure complaint).

Udren makes two further attempts to distinguish 

foreclosure complaints from debt collection letters, both of 

which must fail. 

First, Udren contends that a complaint, because it is 

directed to the court, is not a communication to the consumer

subject to §§ 1692e and 1692f. This argument cannot be 

sustained. The statute defines a “communication” under the 

FDCPA as “the conveying of information regarding a debt 

directly or indirectly to any person through any medium.” 15 

U.S.C. § 1692a(2) (emphasis added). Interpreting this 

provision in Allen ex rel. Martin v. LaSalle Bank, N.A., where 

we decided whether a communication made to a consumer’s 
16

attorney was governed by § 1692f, we held that “[i]f an 

otherwise improper communication would escape FDCPA 

liability simply because that communication was directed to a 

consumer’s attorney, it would undermine the deterrent effect 

of strict liability.” 629 F.3d 364, 368 (3d Cir. 2011); see also 

id. at n.6 (noting that the Heintz Court also referred to a 

communication from a debt collector to a consumer’s 

attorney, though it did not directly decide that question). 

So too for pleadings filed with the court and served on 

the consumer. Because the Foreclosure Complaint was 

served on Kaymark (directly or indirectly through his 

attorney), he was the intended recipient of the 

communication. See Donohue, 592 F.3d at 1031-32 (holding 

that a complaint served on the debtor is a communication 

subject to the FDCPA).

3

 Courts have only held that a 

 

3 Moreover, rejecting similar arguments that Udren raised in 

this case, the Ninth Circuit explained: 

[Defendant] Quick Collect suggests that 

a complaint, because it can be corrected 

by amending the offending pleading, 

should not constitute an actionable 

communication. But all communications 

can be “amended” in this way by simply 

sending out a subsequent communication 

correcting the error. Sections 1692e and 

1692f do not suggest that otherwise 

unlawful representations are permitted so 

long as they are followed up, at some 

later time, with a communication

correcting the statements that gave rise to 

the communication's unlawful nature. 

We see no reason to treat complaints 
17

complaint misleads the judge, rather than the consumer, 

when, for instance, the plaintiff specifically pled that a 

materially-false attachment to a complaint “would mislead the 

Cook County judge handling his case.” O’Rourke v. 

Palisades Acquisition XVI, LLC, 635 F.3d 938, 941 (7th Cir. 

2011); see id. at 939 (noting that this allegation was “[u]nlike 

most lawsuits under the [FDCPA]”). This is not that case. 

Here, the Foreclosure Complaint was unquestionably a 

communication directed at Kaymark in attempt to collect on 

his debt. 

Udren’s second argument is that foreclosure actions 

cannot be the basis of FDCPA claims because Kaymark has 

to his avail the protections of the Pennsylvania Rules of Civil 

Procedure and because the Heintz Court noted that the 

FDCPA has the “apparent objective of preserving creditors’ 

judicial remedies.” 514 U.S. at 296. 

Similar arguments have been raised and rejected. In 

Simon v. FIA Card Services, N.A., we refused to categorically 

preclude FDCPA claims because the claim arose in a pending 

bankruptcy proceeding, referencing the Supreme Court’s 

“reluctan[ce] to limit the FDCPA because other, preexisting 

rules and remedies may also apply to the conduct alleged to 

violate the [FDCPA].” 732 F.3d 259, 276 (3d Cir. 2013). We 

explained that “[t]he proper inquiry . . . is whether the 

FDCPA claim raises a direct conflict between the 

 

differently where there was no effort to 

correct the error before an answer was 

filed.

Donohue, 592 F.3d at 1032 n.1. We agree that simply 

because a complaint is amendable is not a justification for 

removing it from the protections of the FDCPA.
18

[Bankruptcy] Code or Rules and the FDCPA, or whether both 

can be enforced.” Id. at 274; see also Germain, 503 U.S. at 

253 (“Redundancies across statutes are not unusual events in 

drafting, and so long as there is no ‘positive repugnancy’ 

between two laws, a court must give effect to both.” (internal 

citations omitted)).

Nowhere does the FDCPA exclude foreclosure actions 

from its reach. On the contrary, foreclosure meets the broad 

definition of “debt collection” under the FDCPA, see 

McLaughlin, 756 F.3d at 245 (defining “debt collection” as 

“activity undertaken for the general purpose of inducing 

payment”), and it is even contemplated in various places in 

the statute, see, e.g., 15 U.S.C. § 1692i (discussing procedures 

for “action[s] to enforce an interest in real property securing 

the consumer’s obligation”); Glazer v. Chase Home Fin. LLC, 

704 F.3d 453, 461 (6th Cir. 2013) (explaining why 

“[f]oreclosure’s legal nature . . . does not prevent it from 

being debt collection”). Udren would have us “create an 

enormous loophole in the [FDCPA] [by] immunizing any 

debt from coverage if that debt happened to be secured by a 

real property interest and foreclosure proceedings were used 

to collect the debt.” Wilson v. Draper & Goldberg, P.L.L.C., 

443 F.3d 373, 376 (4th Cir. 2006). We will not. Like the 

Court explained previously, “if a collector were able to avoid 

liability under the FDCPA simply by choosing to proceed in 

rem rather than in personam, it would undermine the purpose 

of the FDCPA.” Piper, 396 F.3d at 236 (internal quotation 

marks omitted). 

In any event, the prudence of maintaining parallel 

FDCPA claims is not ours to decide; it is Congress’s, and its 

intent is clear for the reasons discussed. Absent a finding that 

“the result [will be] so absurd as to warrant implying an 

exemption for” FDCPA claims involving foreclosure actions, 
19

we are not empowered to disregard the plain language of the 

statute. Heintz, 514 U.S. at 295. Thus, Udren’s arguments 

are more “properly addressed to Congress,” which “is, of 

course, free to amend the statute accordingly.” Jerman, 559 

U.S. at 604.

Given our holding in McLaughlin based on nearlyindistinguishable facts, we conclude that the fact that the debt 

collection activity at issue here involves a foreclosure 

complaint, rather than a debt collection letter, does not 

remove it from the FDCPA’s purview under McLaughlin. 

We will reverse the order dismissing Kaymark’s 

§§ 1692e(2)(A), (10), and 1692f(1) claims against Udren, and 

we will affirm the order dismissing the § 1692e(5) claim.

B.

Kaymark next alleges that, by misrepresenting or 

overcharging fees in the Foreclosure Complaint, BOA and 

Udren4 violated the UTPCPL by virtue of the violations of the 

FCEUA, 73 P.S. § 2270.5(a) (“If a debt collector or creditor 

engages in an unfair or deceptive debt collection act or 

practice under [the FCEUA], it shall constitute a violation of 

the [UTPCPL].”), or by engaging in certain “unfair or 

deceptive acts or practices,” in violation of 73 P.S. § 201-

 

4 While Udren is correct that attorneys are exempt 

from liability under the UTPCPL if the alleged misconduct 

concerns the adequacy of their legal representation, attorneys 

engaged in debt collection—considered an “act of trade or 

commerce” within the definition of the UTPCPL—are not. 

See Beyers v. Richmond, 937 A.2d 1082, 1088-89, 1093 (Pa. 

2007) (plurality); Yelin v. Swartz, 790 F. Supp. 2d 331, 337-

38 (E.D. Pa. 2011). Because the parties do not dispute that 

Udren’s alleged misconduct here stems from its debt 

collection activities, we do not immunize it from liability. 
20

2(4)(v) (representing that services have characteristics they do 

not have) and (xxi) (“Engaging in any other fraudulent or 

deceptive conduct which creates a likelihood of confusion or 

of misunderstanding.”). 

To maintain a private right of action under the 

UTPCPL, a plaintiff must demonstrate (1) “ascertainable loss 

of money or property, real or personal,” id. § 201-9.2(a), (2) 

“as a result of” the defendant’s prohibited conduct under the 

statute, id.; see Yocca v. Pittsburgh Steelers Sports, Inc., 854 

A.2d 425, 438 (Pa. 2004). Assuming arguendo that Kaymark 

has pled a violation of the UTPCPL, we conclude that 

Kaymark fails to allege ascertainable loss, and we do not 

reach Appellees’ alternative argument that Kaymark also 

failed to establish reliance. 

The crux of Kaymark’s theory of ascertainable loss is 

that the “lien” on his property from the mortgage was inflated 

by not-yet-performed services, “resulting in a corresponding, 

precisely quantifiable, diminishment in his interests in 

property.” Appellant’s Br. at 38. He reasons that, for a 

period of time before any services were performed, he had to 

pay $2,050 extra—the total overcharged amount on the 

debt—to cure his default and avoid foreclosure. The District 

Court rejected Kaymark’s so-called “lien” theory, concluding 

that his “argument is couched in forward-looking speculative 

terms.” App. 5a. On the facts presented in this case, we 

agree. 

Because the Pennsylvania Supreme Court has not 

definitively addressed what constitutes ascertainable loss 

under the statute, “we must predict how that court would rule 

if faced with the issue,” and, in doing so, “[t]he decision of an 

intermediate state court is particularly relevant.” Covington 

v. Cont’l Gen. Tire, Inc., 381 F.3d 216, 218 (3d Cir. 2004). 

Lower state courts reason that “[a]scertainable loss must be 
21

established from the factual circumstances surrounding each 

case,” Agliori v. Metro. Life Ins. Co., 879 A.2d 315, 321 (Pa. 

Super. 2005), but that the loss must be non-speculative, 

Schwarzwaelder v. Fox, 895 A.2d 614, 619 (Pa. Super. 2006); 

see also Benner v. Bank of America, N.A., 917 F. Supp. 2d 

338, 360 (E.D. Pa. 2013) (“[A]n actual loss of money or 

property must have occurred to state a cognizable UTPCPL 

claim.”). Based on the plain language of the statute, we find 

this interpretation persuasive.

The statute explicitly provides that any person who 

suffers an ascertainable loss “may bring a private action to 

recover actual damages.” 73 P.S. § 201-9.2 (emphasis 

added). Indeed, a plaintiff must have “suffered harm” as a 

result of the defendant’s wrongful conduct. Yocca, 854 A.2d 

at 438. Kaymark’s “lien” theory is untenable because he has 

not suffered actual loss. He alleges, in essence, that the 

alleged misrepresentations in the Foreclosure Complaint 

deprived him of his property to the extent of the 

misrepresentations. However, Kaymark was never deprived 

of his property and never paid the disputed fees alleged to 

have deprived him of his property. He very well could have, 

and did, contest the foreclosure action, which is still pending 

in state court. And despite Kaymark’s ability to quantify the 

damages by the inverse of the allegedly inflated fees, “[t]he 

test of whether damages are remote or speculative has nothing 

to do with the difficulty in calculating the amount, but deals 

with the more basic question of whether there are identifiable 

damages. . . . Thus, damages are speculative only if the 

uncertainty concerns the fact of damages rather than the 

amount.” Pashak v. Barish, 450 A.2d 67, 69 (Pa. Super. 

1982) (internal quotation marks omitted). 

Of course, the statute references “ascertainable loss of 

money or property, real or personal,” 73 P.S. § 201-9.2 
22

(emphasis added), and there may be situations in which a lien 

against a consumer’s property provides a sufficiently concrete 

loss that a consumer need not pay off before bringing a 

UTPCPL claim to remedy her rights. See Brock v. Thomas, 

782 F. Supp. 2d 133, 143-44 (E.D. Pa. 2011) (denying motion 

to dismiss UTPCPL claim where equity theft scheme left 

victim’s home encumbered by lien). However, losses can 

range from the speculative to the concrete, and, here, whether 

Kaymark would have cured his debt but for those fees is by 

definition speculative. It is plausible that the alleged 

misrepresentations deterred Kaymark or other homeowners 

from curing their delinquencies—even if only on a temporary 

basis and even if that amount was negligible compared to the 

total debt. But a plaintiff must experience some nonspeculative loss to make that harm actionable under the 

UTPCPL. Cf. Schwarzwaelder, 895 A.2d at 619 (dismissing 

plaintiffs’ argument under the UTPCPL that they “would 

have” benefited from renegotiating their agent’s commission 

if they had known all the facts as “wholly speculative”). 

Kaymark’s temporary injury, which by all accounts shrank to 

zero after the filing of the foreclosure action, is too 

speculative, standing alone, to quality for the protection of the 

UTPCPL.

The recent decision by the Supreme Court of 

Pennsylvania interpreting the case law on a closely-related 

issue lends further support to this conclusion. In Grimes v. 

Enterprise Leasing Co., LLC, 105 A.3d 1188 (Pa. 2014), a 

plaintiff brought, among other things, a UTPCPL claim 

against the Enterprise Leasing Company of Philadelphia 

(“Enterprise”) for seeking allegedly fraudulent and excessive 

fees that, like here, she did not pay. The Superior Court held 

that the plaintiff suffered an ascertainable loss by incurring 

costs to retain an attorney to prevent Enterprise from 
23

collecting the debt. Enterprise argued on appeal that, if the 

Superior Court was correct, any plaintiff could show 

ascertainable loss by merely hiring a lawyer “without actually 

suffering a loss of money or property.” Id. at 1192. The 

Supreme Court agreed with Enterprise for two primary 

reasons. First, it did not want to allow a plaintiff to 

“manufacture the ‘ascertainable loss’ required to bring a 

private UTPCPL claim simply by obtaining counsel.” Id. at 

1193. Second, confirming our analysis above, it 

distinguished the case law on which the Superior Court relied 

because “[i]n [those] cases, the plaintiff had alleged a specific 

loss of money.” Id. at 1194 (emphasis added).5 

Because Kaymark has not adequately pled 

ascertainable loss from the fees he did not pay and currently 

disputes, his claim fails. We therefore affirm the District 

Court’s order dismissing the UTPCPL claim against BOA 

and Udren. 

C.

The FCEUA, Pennsylvania’s analogue to the FDCPA, 

prohibits “unfair methods of competition and unfair or 

deceptive acts or practices with regard to the collection of 

debts.” 73 P.S. § 2270.2. Kaymark alleges that by 

misrepresenting the amount of the debt in the Foreclosure 

Complaint and Act 91 Notice, BOA violated several FCEUA 

 

5 While the court also noted that the plaintiff did not 

allege ascertainable loss from the “unpaid bill, standing 

alone,” Grimes, 105 A.3d at 1193, we find Grimes instructive 

for determining ascertainable loss here. The thrust of the 

opinion reads that because the plaintiff did not pay the 

disputed fees and therefore could not plead ascertainable loss, 

she cannot manufacture that loss with attorneys’ fees. See id.

at 1193-94.
24

provisions, which are identical to the FDCPA violations 

asserted. Compare id. § 2270.4(b)(5)(ii), (v), (x), and (6)(i), 

with 15 U.S.C. §§ 1692e(2)(A), (5), (10), and 1692f(1).

The text of the FCEUA’s enforcement provision reads: 

“If a debt collector or creditor engages in an unfair or 

deceptive debt collection act or practice under this act, it shall 

constitute a violation of the [UTPCPL].” 73 P.S. § 2270.5(a). 

The FCEUA therefore does not provide its own private cause 

of action; rather, it is enforced through the remedial provision 

of the UTPCPL. While the Supreme Court of Pennsylvania 

has not ruled on its interpretation of § 2270.5(a), a Superior 

Court construing the statute recently concluded that “[t]he 

inclusion of a violation of the FCEUA as also being a 

violation of the UTPCPL[] evinces a clear intent by our 

Legislature that FCEUA claims be treated in the same manner 

as other private action claims under the UTPCPL. . . . 

FECUA [sic] claims therefore must plead that a plaintiff 

suffered an ascertainable loss as a result of a defendant’s 

prohibited action.” Kern v. Lehigh Valley Hosp., Inc., No. 

2843 EDA 2013, 2015 WL 344623, at *5 (Pa. Super. Jan. 28, 

2015) (citing 1 P.S. § 1932); see also Benner, 917 F. Supp. 2d 

at 360 (holding that plaintiff’s FCEUA claim, “as brought 

under the UTPCPL,” failed because he did not show 

ascertainable loss).6 We find this interpretation persuasive 

and, indeed, logical. If the FCEUA can only be enforced to 

the extent the UTPCPL’s private remedy is invoked, then it 

follows that Kaymark cannot state a claim for relief under the 

 

6 Where the state’s highest court has not definitively 

ruled on an issue, we consider the decisions of the state’s 

intermediate appellate courts. See Covington, 381 F.3d at 

218. 
25

FCEUA if he cannot state a claim for relief under the 

UTPCPL. 

As discussed, Kaymark failed to allege ascertainable 

loss because he cannot point to actual damages as a result of 

the disputed fees listed in the Foreclosure Complaint. Much 

less can the alleged deficiencies in the pre-foreclosure Act 91 

Notice—the purpose of which is to provide debtors with 

information about programs to support them in their debt—

form the basis of any such loss.7 Therefore, we affirm the 

District Court’s order dismissing Kaymark’s FCEUA claim 

against BOA.

D.

Finally, we affirm the District Court’s order dismissing 

Kaymark’s breach of contract claim against BOA for failure 

to plead resultant damages. To allege breach of contract in 

Pennsylvania, a plaintiff must show “(1) the existence of a 

contract, including its essential terms, (2) a breach of a duty 

imposed by the contract and (3) resultant damages.” Omicron 

Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. 2004) 

(internal quotation marks omitted).

Kaymark relies on the same arguments asserted in his 

UTPCPL and FCEUA claims to show damages in his breach 

of contract claim. Specifically, he alleges the unincurred, 

fixed fees in the Foreclosure Complaint diminished his 

property interests in his home. Importing here the same 

reasons for rejecting those claims above, we conclude that 

Kaymark fails to plead resultant damages because he did not 

 

7 We do not reach BOA’s argument that an Act 91 

Notice can never be the basis of an FCEUA violation. We 

hold, simply, that Kaymark fails to allege ascertainable loss 

on the basis of the Act 91 Notice in this case.
26

incur any non-speculative loss of property or pay the disputed 

fees or expenses. As such, we affirm the District Court’s 

order dismissing Kaymark’s breach of contract claim and do 

not reach BOA’s alternative argument that Kaymark failed to 

plead breach of duty. 

IV.

For the reasons set forth above, we will reverse the 

District Court’s order dismissing Kaymark’s 15 U.S.C. §§ 

1692e(A)(2), (10), and 1692f(1) claims against Udren and 

affirm the District Court’s order dismissing Kaymark’s 

§ 1692e(5), UTPCPL, FCEUA, and breach of contract claims.