[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-10204

____________________

CONSTANCE DANIELS, 

Plaintiff-Appellant,

versus

SELECT PORTFOLIO SERVICING, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cv-01652-JSM-CPT

____________________

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Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

JORDAN, Circuit Judge:

Constance Daniels sued Select Portfolio Servicing under 

the Fair Debt Collections Practices Act, 15 U.S.C. §§ 1692 et seq., 

and the Florida Consumer Collection Practices Act, Fla. Stat. § 

559.72, alleging that a series of monthly mortgage statements misstated a number of items, including the principal amount due. 

She claimed that, by sending her the incorrect mortgage statements, Select Portfolio violated the FDCPA’s prohibitions on harassment or abuse, false or misleading representations, and unfair 

practices. See 15 U.S.C. §§ 1692d, 1692e(2)(A), 1692e(10), 

1692f(1). She also claimed that the statements violated the 

FCCPA’s prohibitions on harassment and on attempts to collect 

on debt that is not legitimate. See Fla. Stat. §§ 559.72(7), 

559.72(9). The district court dismissed Ms. Daniels’ complaint 

with prejudice, agreeing with Select Portfolio that the mortgage 

statements in question were not communications in connection 

with the collection of a debt and therefore not covered by the 

FDCPA and the FCCPA. 

The question presented in this appeal—one of first impression in our circuit—is whether monthly mortgage statements required by the Truth in Lending Act, 15 U.S.C. § 1638, and its regulations can constitute communications in connection with the collection of a debt under the FDCPA and the FCCPA. We hold that 

they may, at least when—as here—they contain debt-collection 

language that is not required by the TILA or its regulations and 

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the context suggests that they are attempts to collect or induce 

payment on a debt. In such circumstances, coverage under the 

FDCPA and the FCCPA is plausible.

I 

In reviewing the district court’s Rule 12(b)(6) dismissal order, we accept as true the facts set out by Ms. Daniels in her complaint and its attached exhibits. See Tellabs, Inc. v. Makor Issues 

& Rts., Ltd., 551 U.S. 308, 322 (2007). The complaint and the exhibits tell the following story. 

In 2005, Ms. Daniels executed a promissory note with 

Countrywide Home Loans, secured by a mortgage on her home 

in Florida. In March of 2009, after falling behind on her payments, 

she entered into a mortgage modification agreement with Countrywide. She agreed to make interest-only monthly payments 

(plus escrow amounts) for 10 years, with the principal balance 

remaining at $189,911.00 for that period. The interest-only 

monthly payments for the first year were $813.12, but for each 

succeeding year during the 10-year period the interest rate (and 

the payments) would increase pursuant to a schedule in the modification agreement. After the 10-year period, the monthly payments would include both principal and interest, again pursuant 

to a schedule set forth in the agreement. See D.E. 23 at 3 & Ex. A.

For over a year, Ms. Daniels made her interest-only monthly payments on time. Then Countrywide sold, transferred, or assigned the mortgage to Wells Fargo Bank. In June of 2010, Wells 

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Fargo refused to accept the interest-only payments from Ms. Daniels. Claiming that Ms. Daniels had defaulted on the note and 

mortgage, Wells Fargo filed a foreclosure action in state court. 

Select Portfolio was the mortgage servicer at this time. See id. at 

3–4. 

In December of 2015, the state court granted Ms. Daniels’ 

motion to enforce the earlier mortgage modification agreement, 

ordered Ms. Daniels to resume making payments according to the 

terms of the agreement, and sanctioned Wells Fargo for improperly bringing the foreclosure action. The sanctions included requiring Wells Fargo to waive interest on the mortgage debt for 

certain periods of time and to pay Ms. Daniels’ attorney’s fees. 

See id. at 4–5 & Exs. B, C. 

Because the dispute between Wells Fargo and Ms. Daniels 

had lasted for years, certain interest and escrow payments had either not been made or had not been accepted. The state court 

ruled in May of 2016 that these sums, totaling $60,808.83, would 

be added “to the end of” the loan modification agreement. See id. 

at 5–8 & Ex. C. At that time, Ms. Daniels’ interest-only monthly 

payments (not including escrow amounts) were $928.25 pursuant 

to the schedule set out in the modification agreement. See id. at 

9. 

Following the conclusion of the foreclosure action, Select 

Portfolio sent Ms. Daniels a number of monthly mortgage statements. Not all the statements were the same in terms of format, 

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language, and amounts, so we summarize the November 2016 

statement, which Ms. Daniels claims was the most problematic. 

The November 2016 statement listed Select Portfolio’s address and phone number, and had entries for “loan due date,” 

“amount due,” “transaction activity,” “past payments breakdown,” “past due payments,” “total amount due,” “interestbearing principal,” “deferred principal,” “outstanding principal,” 

and “late fee.” It included a “delinquency notice” box, which 

listed overdue payments and the amount needed to bring the account current. And it had a “monthly payment coupon” at the 

bottom of the first page. The coupon listed the late fee that 

would be charged if the payment was not made by the due date, 

and it contained the following instructions: “Please detach bottom 

portion and return with your payment,” and “Make checks payable to Select Portfolio Servicing.” See id. at Ex. E.

The November 2016 statement also contained the following language: 

◆ This is an attempt to collect a debt. All information obtained will be used for that purpose.

◆ You are late on your mortgage payments. Failure 

to bring your loan current may result in fees and 

foreclosure – the loss of your home.

◆ [Select Portfolio] has completed the first notice or 

filing required to start a foreclosure.

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◆ Paying your mortgage on time is an important 

obligation, so please pay on or before the payment 

due date. Payments are not considered paid until 

received and posted to your account.

◆ [Select Portfolio] furnishes information to consumer reporting agencies. You are hereby notified 

that a negative credit report reflecting on your credit 

record may be submitted to a credit reporting agency if you fail to fulfill the terms of your Note and 

Mortgage.

Id. The statement did not indicate that it was being sent for informational purposes.1

According to Ms. Daniels, the November 2016 statement 

significantly misstated the deferred principal balance, the outstanding principal balance, and the amount of the interest-only 

payment that was due. The statement, for example, listed the deferred principal as $83,259.92 (when the actual sum to be added to 

the end of the modification agreement was $60,808.83); listed the 

outstanding principal balance as $356,121.53 (when it should have 

1Ms. Daniels did not attach all the statements to her complaint. But the ones 

that were attached contained some of the same debt-collection language 

found in the November 2016 statement. For example, the statements from 

July, August, and September of 2017 all said: “This is an attempt to collect a 

debt. All information obtained will be used for that purpose.” See D.E. 23 at

Comp. Ex. G. They also included Select Portfolio’s address and phone number, as well as a payment coupon with the same late fee information and 

payment instructions contained in the November 2016 statement. See id. 

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been $250,714.83 [$189,911.00 + $60,803.83]); and listed the 

monthly payment due as $2,244.90 (when the actual figure was 

$982.25 based on the schedule in the loan modification agreement). 

Ms. Daniels alleged that the “delinquency notice” box in 

the November 2016 statement also misrepresented that the loan 

was in arrears for 197 days based on six unpaid installments of 

$2,244.90 (when there was no delinquency at all). The “delinquency notice” box stated that the “total” due was $9,075.71 and 

provided the following instruction: “You must pay this amount to 

bring your loan current.” The payment coupon attached to the 

statement also incorrectly listed the amount due as $9,075.71. See 

id. at 10–11, 12–13, 15–16, & Ex. E.

In October and December of 2017, Ms. Daniels’ counsel 

sent letters to Select Portfolio asserting that there was no deferred 

principal balance (because the $60,808.83 was to be added to the

end of the loan modification agreement pursuant to the state 

court’s order) and demanding a specific line-by-line accounting of 

the deferred balance amount. Select Portfolio did not respond to 

the letters. 

In June of 2018, Ms. Daniels sued Select Portfolio under the 

FDCPA, 15 U.S.C. §§ 1692d, 1692e, 1692f, and the FCCPA, Fla. 

Stat. §§ 559.72(7), 559.72(9). She alleged that the erroneous 

monthly mortgage statements were harassing, false, and misleading, and that by sending them Select Portfolio engaged in unfair 

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practices in connection with the collection of a debt in violation of 

the FDCPA and the FCCPA.2 

As noted, the district court dismissed Ms. Daniels’ claims 

with prejudice. Agreeing with Select Portfolio, it ruled that the 

monthly mortgage statements complied with the TILA and its 

regulations, and so were not communications in connection with 

the collection of a debt under the FDCPA and the FCCPA. It also 

denied leave to amend because it concluded that any amendment 

by Ms. Daniels would be futile. 

II 

We review orders granting a Rule 12(b)(6) motion de novo. 

See Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 

2013); Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 

2006). The question here is whether Ms. Daniels pled sufficient 

facts to plausibly allege FDCPA and FCCPA coverage. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 556 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court 

to draw the reasonable inference that the defendant is liable for 

the misconduct alleged. The plausibility standard is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 

2 The FCCPA is the Florida analogue to the FDCPA, and generally the two 

Acts are construed in similar fashion where the statutory language is the 

same. See Oppenheimer v. I.C. Sys., Inc., 627 F.3d 833, 839 (11th Cir. 2010). 

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678. See also Johnson v. City of Shelby, 574 U.S. 10, 12 (2014) 

(“Petitioners stated simply, concisely, and directly events that, 

they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were 

required to do no more to stave off threshold dismissal for want 

of an adequate statement of their claim.”).

III 

We start with the basics, and first address whether the 

monthly mortgage statements sent by Select Portfolio constitute 

“communications” about a “debt.” The FDCPA and the FCCPA 

both define a “debt” as “any obligation or alleged obligation of a 

consumer to pay money arising out of a transaction in which the 

money, property, insurance, or services which are the subject of 

the transaction are primarily for personal, family, or household 

purposes, whether or not such obligation has been reduced to 

judgment.” See 15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(6). And 

they both define “communication” as “the conveying of information regarding a debt directly or indirectly to any person 

through any medium.” See 15 U.S.C. § 1692a(2); Fla. Stat. §

559.55(2). 

We have already held that a homeowner’s promissory 

note, secured by a mortgage on the property, constitutes a “debt” 

under the FDCPA. See Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012) (“T[he definition of 

‘debt’ in the FDCPA] clearly encompasses the Reeses’ payment 

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obligation under the promissory note [secured by a mortgage.]”). 

So the obligation of Ms. Daniels to pay the promissory note, secured by a mortgage on her home, is a “debt” under the FDCPA 

and the FCCPA. 

The mortgage statements also constitute a “communication” under the FDCPA and the FCCPA. The definition of 

“communication” is “broad,” Hart v. Credit Control, LLC, 871 

F.3d 1255, 1258 (11th Cir. 2017), and the statements certainly 

conveyed information from Select Portfolio to Ms. Daniels regarding her debt under the promissory note. “In order to be considered a communication, the only requirement of the information that is to be conveyed is that it must be regarding a debt.” 

Id. (holding that a voicemail left by a debt collector who wanted 

to speak to a consumer about a debt was a “communication” under the FDCPA). 

IV 

Ms. Daniels alleges that Select Portfolio, by sending her 

mortgage statements with incorrect information about her debt 

under the promissory note, violated §§ 1692d, 1692e(2)(A), 

1692e(10), and 1692f(1) of the FDCPA and §§ 559.72(7) and 

559.72(9) of the FCCPA. Select Portfolio responds that the mortgage statements were required by the TILA, 15 U.S.C. §§ 1601 et 

seq., and its regulations and therefore did not constitute communications “in connection with the collection of a[ ] debt” under 

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the FDCPA or in connection with “collecting [a] . . . debt[ ]” under the FCCPA.

Congress passed the TILA and the FDCPA to protect consumers. The TILA, enacted in 1968, is meant to “assure a meaningful disclosure of credit terms...and to protect the consumer 

against inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a). The FDCPA, enacted almost a decade 

later in 1977, is meant to “eliminate abusive debt collection practices by debt collectors, to ensure those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to 

protect consumers against debt collection abuses.” 15 U.S.C. § 

1692(e). 

We begin by analyzing the monthly mortgage statements 

under the FDCPA and the FCCPA. We then turn to the TILA. 

A 

The substantive FDCPA provisions relied on by Ms. Daniels require that the challenged communications be “in connection with the collection of a[ ] debt.” See 15 U.S.C. §§ 1692d, 

1692e(10), 1692f(1). The substantive FCCPA provisions similarly 

require that the challenged action be made in connection with 

“collecting [a] . . . debt[.]” Fla. Stat. §§ 559.72(7), 559.72(9). Both 

Acts, therefore, require a nexus between the communication and 

the collection of a debt.

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We have said that the FDCPA’s “in connection with the 

collection of a[ ] debt” language asks whether the “challenged 

conduct is related to debt collection,” i.e., is “an attempt to ‘collect’ [a] debt.” Reese, 678 F.3d at 1216, 1217. And we have recognized that a communication can “have dual purposes,” such as 

providing a consumer with information and demanding payment 

on a debt. See id. at 1217 (“The fact that the letter and documents 

relate to the enforcement of a security interest does not prevent 

them from also relating to the collection of a debt within the 

meaning of § 1692e.”).

In Reese, for example, we held that a law firm’s dunning 

letter was “in connection with the collection of a[ ] debt” because 

it (a) demanded full and immediate payment, (b) threatened collection and attorney’s fees if the full payment was not paid, and 

(c) was accompanied by documents which stated that the law firm 

was attempting to collect a debt. See id. at 1216–17. Two years 

later, in Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303 

(11th Cir. 2014), we held that a letter from a law firm advising a 

consumer that she was behind in her residential mortgage payments was “in connection with the collection of a[ ] debt” because 

it (a) listed the amount due to the lender, (b) indicated that failure 

to dispute the amount would result in the debt being assumed 

valid by the lender, and (c) stated that it was for purpose of collecting a debt. We recognized that the letter did not contain an 

express demand for payment, but concluded that taken as a whole 

it “was an implicit demand for payment.” Id. at 1303 n.2.

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Based on Reese and Caceres, we conclude that Ms. Daniels 

plausibly alleged that the mortgage statements for November of 

2016 and for July, August, and September of 2017 were communications “in connection with the collection of a[ ] debt” under the 

FDCPA and in connection with “collecting [a] . . . debt[ ]” under 

the FCCPA. In the words of Reese, 678 F.3d at 1216, the statements were “related to debt collection.” First, the statements expressly said that they were “an attempt to collect a debt” and that 

“[a]ll information obtained will be used for that purpose.” Second, 

the statements had entries for “loan due date,” “payment due 

date,” “amount due,” “total amount due,” “interest-bearing principal,” “deferred principal,” “outstanding principal,” and “interest 

rate.” Third, the statements attached a monthly payment coupon 

at the bottom of the first page with Select Portfolio’s address. 

The coupon included late fee information and instructed Ms. 

Daniels to “[p]lease detach bottom portion and return with your 

payment” and “[m]ake checks payable to Select Portfolio Servicing.” Viewed holistically, a communication that expressly states 

that it is “an attempt to collect a debt,” that asks for payment of a 

certain amount by a certain date, and that provides for a late fee if 

the payment is not made on time is plausibly “related to debt collection.” Reese, 678 F.3d at 1217.3

3 We do not hold that the statements are, as a matter of law, communications in connection with the collection of a debt. Our ruling is that Ms. Daniels has plausibly alleged that they are.

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The context of the communication also matters. By the 

time Select Portfolio sent Ms. Daniels the November 2016 statement, she had prevailed in the foreclosure action brought by 

Wells Fargo. During that litigation Select Portfolio was the 

mortgage servicer. Given that the state court had ruled that the 

unpaid $60,808.83 would be added to the end of the loan modification agreement, the sums listed as allegedly due and owing in 

the November 2016 statement, along with the delinquency notice, could be viewed as an attempt to collect (or induce payment 

on) a disputed and allegedly defaulted debt. See Grden v. Leikin 

Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir. 2011); Gburek v. 

Litton Loan Servicing LP, 614 F.3d 380, 386 (7th Cir. 2010).

We recognize that some portions of the statements could 

have been for informational purposes. But, as we have already 

held, a communication can have dual purposes. See Reese, 678 

F.3d at 1217. Moreover, the possibility that some portions of the 

statements were informational does not doom Ms. Daniels’ complaint at the Rule 12(b)(6) stage, where the standard is not certainty (or even probability) but plausibility. See Iqbal, 556 U.S. at 579. 

At summary judgment, the result may or may not be the 

same. “[W]hether a communication was sent ‘in connection 

with’ an attempt to collect a debt is a question of objective fact, to 

be proven like any other fact.” Ruth v. Triumph Partnerships, 

577 F.3d 790, 798 (7th Cir. 2009). We do not prejudge the issue, 

as it is not before us.

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B 

We next address the effect, if any, of the TILA. As we explain, under the circumstances alleged in the complaint the TILA 

and its regulations do not foreclose Ms. Daniels’ claims under the 

FDCPA and the FCCPA as a matter of law. 

As relevant here, the TILA requires mortgage lenders

and/or servicers to send their mortgagees a statement once per 

billing cycle, updating them on a number of items. These items 

are the amount of the principal obligation under the mortgage; 

the current interest rate in effect; the date on which the interest 

rate may reset or adjust; the amount of any prepayment penalty 

that may be charged; late payment fees; a telephone number and 

electronic mail address that can be used to obtain information regarding the mortgage; the names and contact information of credit counseling agencies or programs reasonably available; and such 

other information as may be required by regulation. See 15 

U.S.C. § 1638(f)(1). The TILA also provides that a standard form 

for these disclosures may be proscribed by regulation. See §

1638(f)(2).

The TILA’s regulations require a monthly mortgage 

statement to include certain items. These include the amount 

due; the payment due date; the amount of any late payment fee 

and the date on which it will be imposed; the monthly payment 

amount (including a breakdown of how the payment will be applied to principal, interest, and escrow); the total sum of any fees 

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charged since the last statement; any payment amount past due; 

the total of all payments received since the last statement (including a breakdown of how the payments were applied); the total of 

all payments received since the beginning of the current calendar 

year (including a breakdown of how the payments were applied); 

a list of transaction activity since the last statement; partial payment information; a toll-free telephone number and electronic 

mail address to obtain information about the account; the amount 

of the outstanding principal balance; the current interest rate in 

effect; the existence of any prepayment penalty; and delinquency 

information (including the length of the delinquency, the risk of 

consequences like foreclosure, and notice as to whether the service has made the first notice required for foreclosure). See 12 

C.F.R. § 1026.41(d)(1)-(8). 

The TILA’s regulations also include three sample standard 

forms for the required monthly mortgage statements. See 12 

C.F.R. Pt. 26, App’x H, Forms H-30(A) (“Sample Form of Periodic 

Statement”), H-30(B) (“Sample Form of Periodic Statement with 

Delinquency Box”), & H-30(C) (“Sample Form of Periodic Statement for a Payment-Option Loan”). Each of the three sample 

forms includes a payment coupon. But none of the sample forms 

contain the words “this is an attempt to collect a debt.”

“When confronted with two Acts of Congress touching on 

the same topic, [a court] is not at liberty to pick and choose 

among congressional enactments and must instead strive give effect to both.” Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624 

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(2018) (internal quotation marks and citations omitted). See also

Jove Engineering, Inc., v. I.R.S., 92 F.3d 1539, 1559 (11th Cir. 

1996) (“[W]e are mindful of the fundamental principle of statutory construction that, ‘when interpreting and construing two or 

more acts that affect one particular subject matter or area, the 

court must attempt to reconcile the acts, if possible, so as to produce a symmetrical whole.’”) (alterations adopted and citation 

omitted). So we must try to give meaning to both the FDCPA 

and the TILA.

Select Portfolio argues that its monthly mortgage statements cannot be actionable under the FDCPA or the FCCPA because they largely conform to the requirements of the TILA and 

its regulations. It relies primarily on our decision in Green v. Specialized Loan Servicing LLC, 766 F. App’x 777 (11th Cir. 2019).

Green, as an unpublished opinion, is not binding. But even 

if it were, it is distinguishable because it does not answer the precise coverage question before us. In Green a consumer alleged 

that a mortgage servicer violated the FDCPA by “attempting to 

collect mortgage debt beyond the five-year statute of limitations,” 

thereby engaging in “unlawful debt collection of time-barred 

debts.” Id. at 779. The Green panel held that the servicer’s 

monthly mortgage statement contained no language “beyond 

what is required by [the] TILA” and therefore did “not rise[ ] to 

the level of being unlawful debt collection language.” Id. at 784 

(emphasis added). 

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The consumer in Green relied on the following delinquency language in an “important messages” box in the mortgage 

statement: “Please note, if your account is past due, this amount 

may not include all fees or other amounts necessary to fully reinstate your loan.” Green v. Specialized Loan Servicing LLC, 280 

F.Supp.2d 1349, 1355 (M.D. Fla. 2017). But the mortgage statement did not include the “this is an attempt to collect a debt” language that we have here. See id. Because the TILA’s regulations 

require delinquency information, see 12 C.F.R. § 1026.41(d)(8), 

the Green panel held that the content of the mortgage statement

did not go beyond “the ‘garden variety’ type of statement required by [the] TILA, even for the ‘least sophisticated consumer.’” 

Green, 766 F. App’x at 784–85 (quoting the district court’s order). 

In reaching this conclusion, the Green panel accepted Kelliher v. 

Target Nat’l Bank, 826 F.Supp.2d 1324, 1328–29 (M.D. Fla. 2011), 

as standing for the “unremarkable principle that a monthly statement that is in conformity with [the] TILA may nevertheless include additional language that constitutes debt collection,” and 

cited favorably to Caceres, 755 F.3d at 1302, and Reese, 678 F.3d 

at 1217. See Green, 766 F. App’x at 785. 

In this case, Select Portfolio’s mortgage statements contained “this is an attempt to collect a debt” language that is not 

required by the TILA or its regulations. The FDCPA mandates 

that consumers be told in the “initial written communication” 

that a “debt collector is attempting to collect a debt and that any 

information obtained will be used for that purpose,” 15 U.S.C. §

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1692e(11), but neither the FDCPA nor the TILA requires the use 

of such language in subsequent communications or periodic 

statements. Because Green did not involve a mortgage statement 

with “this is an attempt to collect a debt” language, it is distinguishable. And because it recognized that a TILA-mandated 

mortgage statement can contain additional language that makes it 

a debt-collection communication, Green is not inconsistent with 

our ruling today.

Select Portfolio also relies on a number of unpublished cases to support its contention that its mortgage statements were not 

communications in connection with the collection of a debt. 

Most of those cases, however, do not bear the weight that Select 

Portfolio seeks to place on them. For example, in Hill v. DLJ 

Mortgage Capital, Inc., 689 F. App’x 97, 98 (2d Cir. 2017), the 

monthly statements were “in compliance with the [TILA]” and 

did “not reflect attempts to collect on the debt referenced by the 

[n]ote.” The same is true of Wagoner v. Ever Home Mortgage, 

Inc., 2018 WL 2230553, at *4 (D.N.J. 2018). 

There are two unpublished district court cases that do support Select Portfolio’s position. See Jones v. Select Portfolio Servicing, Inc., 2018 WL 2316636 (S.D. Fla. 2018); Zavala v. Select 

Portfolio Servicing, Inc., 2018 WL 6198685 (S.D. Fla. 2018). In 

both of those cases the district courts ruled that monthly mortgage statements required by the TILA were not communications 

in connection with the collection of a debt under the FDCPA 

even though they contained “this is an attempt to collect a debt” 

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language. The district courts concluded that this additional language constituted only a “minor discrepanc[y]” when compared 

with the TILA’s model forms. See Jones, 2018 WL 2316636, at *4;

Zavala, 2018 WL 6198685, at *2–*3. 

Having considered Jones and Zavala, we respectfully disagree with them. We hold, consistent with our decisions in Reese 

and Caceres, that monthly mortgage statements required by the 

TILA and its regulations can plausibly constitute communications 

in “connection with the collection of a[ ] debt” under the FDCPA 

and in connection with “collecting [a] . . . debt” under the FCCPA 

if (a) they contain “this is an attempt to collect a debt” language, 

(b) they request or demand payment of a certain amount by a certain date, (c) they provide for a late fee if the payment is not made 

on time, and (d) the history between the parties suggests that the 

statement is an attempt to collect on a disputed debt. See Lear v. 

Select Portfolio Servicing, Inc., 309 F.Supp.3d 1237, 1240 (S.D. Fla. 

2018) (the “fact that [the] TILA requires” the servicer “to send 

[the consumer] periodic [mortgage] statements does not mean 

that [the consumer’s FDCPA] claims fail as a matter of law,” and 

the use of “this is an attempt to collect a debt” language “would 

seem to indicate that the mortgage statements are debt collection 

communications”). 

C 

We have considered the guidance bulletin issued in 2013 by 

the Consumer Financial Protection Bureau, on which the district 

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19-10204 Opinion of the Court 21

court relied. See Consumer Financial Protection Bureau, Implementation Guidance for Certain Mortgage Servicing Rules, CFPB 

Bulletin 2013-2, 2013 WL 9001249 (Oct. 15, 2013). In that bulletin, 

the CFPB provided an “advisory opinion” concerning the “cease 

communications” option provided by the FDCPA. See 15 U.S.C. 

§ 1692c(c). The CFPB concluded that servicers who are debt collectors are generally not liable under § 1692c(c) to consumers who 

make a “cease communications” request if they comply with the 

regulations issued under federal laws like the TILA, including 12 

C.F.R. § 1026.41 (the periodic statement regulation). The CFPB 

explained that it believed a consumer’s “cease communications” 

request under the FDCPA “should ordinarily be understood to 

exclude the[ ] categories of communications” required by federal 

law. “Thus, only if the [consumer] sends a communication to the 

servicer specifically withdrawing the request for [certain action] 

may a servicer cease to carry out the requirement of these provisions.” 

The CFPB bulletin addresses a specific issue—servicers 

who are required by federal law to send consumers certain communications, and the difficulties created when consumers elect 

the FDCPA’s “cease communications” option—and applies the 

settled principle of statutory interpretation that, when there is an 

irreconcilable conflict between two statutes, “the specific governs 

the general.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 

384 (1992). Select Portfolio argues, however, that we should read 

the CFPB bulletin more broadly as standing for the proposition 

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22 Opinion of the Court 19-10204

that any conduct or communications required by the TILA and its 

regulations cannot be actionable under the FDCPA. We decline 

the invitation. 

An agency’s interpretive bulletin provides non-controlling 

guidance, and its persuasiveness depends on the thoroughness, 

consistency, and validity of its reasoning. See Rodriguez v. Farm 

Stores Grocery, Inc., 518 F.3d 1259, 1268 n.5 (11th Cir. 2008); 

Brennan v. Great Am. Disc. & Credit Co., 477 F.2d 292, 297 (5th 

Cir. 1973). Given that the CFPB bulletin deals only with consumers who choose the “cease communications” option under the 

FDCPA, we do not think it is wise to extend it beyond that scenario. See 15 U.S.C. § 1692k(e) (“No provision of this section imposing any liability shall apply to any act done or omitted in good 

faith in conformity with any advisory opinion of the [CFPB], 

notwithstanding that after such act or omission has occurred, 

such opinion is amended, rescinded, or determined by judicial or 

other authority to be invalid for any reason.”). 

Indeed, there is nothing in the bulletin indicating that the 

CFPB sought to provide an advisory opinion excluding all TILArequired periodic mortgage statements from FDCPA coverage no 

matter the circumstances. As some courts have noted, a debt collector can satisfy the TILA requirements and at the same time 

comply with the harassment (§ 1692d), misrepresentation (§

1692e), and unconscionable practices (§ 1692f) provisions of the 

FDCPA, which was passed after the TILA. See, e.g., Kelliher, 826 

F. Supp. 2d at 1329. Unlike the conflict between the FDCPA proUSCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 22 of 50
19-10204 Opinion of the Court 23

hibiting certain communications and the TILA requiring those 

same communications, a debt collector can satisfy the TILA’s information requirements and at the same time comply with the 

FDCPA provisions at issue here. 

D 

In response to our colleague’s dissent, we offer the following observations.

First, the dissent says that we should look at the substance 

of the communication. But that is exactly what we have done—

we have considered all of the language in the monthly mortgage 

statements and viewed that language in the context of the prior 

foreclosure litigation.

Second, the dissent maintains that our unpublished decision in Green, 766 F. App’x at 784, warrants a different result 

here. We respectfully disagree. For starters, Green did not involve all of the language present here. And, as explained earlier, 

Green addressed whether a mortgage statement “r[o]se[] to the 

level of being unlawful debt collection language,” id. (emphasis 

added)—in other words, it considered the merits of the FDCPA 

claim. We, in contrast, have only tackled the question of FDCPA 

and FCCPA coverage—whether Select Portfolio’s mortgage 

statements are plausibly in connection with the collection of a 

debt under the FDCPA and the FCCPA. That is, we have only 

answered whether FDCPA and FCCPA coverage is plausible, and 

we leave for the district court on remand whether Ms. Daniels’ 

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24 Opinion of the Court 19-10204

allegations make out a plausible claim that Select Portfolio violated the FDCPA and the FCCPA.

Third, the dissent asserts that use of the words “this is an 

attempt to collect a debt” in a monthly mortgage statement does 

not—not even in conjunction with the other debt-collection language in the statement—allow for a plausible claim of FDCPA 

and FCCPA coverage. That approach, however, would incorrectly render the “this is an attempt to collect a debt” language completely irrelevant, and do so as a matter of law. And though the 

dissent apparently demands more threatening language, the in 

connection requirement of the FDCPA and the FCCPA does not 

require that the communication itself be debt collection—it only 

requires that the communication be “related to debt collection.” 

Reese, 678 F.3d at 1216.

Fourth, the dissent contends that we have created a circuit 

split. An examination of the cases cited by the dissent, however, 

negates that claim.

We’ll start with the earliest case, the Sixth Circuit’s decision in Lewis v. ACB Business Services, Inc., 135 F.3d 389 (6th Cir. 

1998). In that case the Sixth Circuit explained that a letter sent to 

a consumer was not transformed “into an unlawful demand for 

payment” just because it “stated at the bottom that it ‘is an attempt to collect a debt[.]’” Id. at 399. But the Sixth Circuit came 

to that conclusion because, at the time the letter was sent, the 

1987 version of the FDCPA “required” such a notice. See id. Indeed, the Sixth Circuit recognized in a footnote that the FDCPA 

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19-10204 Opinion of the Court 25

was amended in 1996 to eliminate this requirement in subsequent 

communications, and explained that the debt collector was “attempting to comply with the requirements of the Act as it appeared when it sent the letter to [the consumer].” Id. at 399 n.9.

Here, of course, nothing in the FDCPA or the FCCPA required Select Portfolio to include “this is an attempt to collect a 

debt” language in subsequent mortgage statements. Lewis therefore does not conflict with our decision today.4

The second case, Gburek, 614 F.3d at 386, is unremarkable. 

The Seventh Circuit held there that a letter to a consumer “qualifie[d] as a communication in connection with an attempt to collect a debt.” Id. at 386. In a footnote, the Seventh Circuit cited 

the Sixth Circuit’s decision in Lewis for the proposition that a 

“disclaimer [in the letter] identifying it as an attempt to collect a 

debt” did not “automatically trigger the protections of the 

FDCPA, just as the absence of such language does not have dispositive significance.” Id. at 386 n.3.

Gburek did not involve mortgage statements with the language used by Select Portfolio, and is therefore distinguishable on 

that basis alone. Moreover, in citing to Lewis, the Seventh Circuit 

4 We note that Lewis was a 2-1 decision, with the dissent in that case making 

the persuasive point that a letter which says that it is an attempt to collect a 

debt “is exactly what it says it is: ‘ . . . an attempt to collect a debt.’” Lewis, 

135 F.3d at 414 (Ryan, J. dissenting). See also id. at 415 (“The letter is not a 

mere notification of the invocation of remedies ordinarily invoked; it is a 

debt-collection letter, just as it says[.]”).

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26 Opinion of the Court 19-10204

in Gburek did not acknowledge what Lewis itself had recognized—that after 1996 the FDCPA does not require “this is an attempt to collect a debt” language to be included in subsequent 

mortgage statements. So the Gburek discussion was based on a 

misreading of Lewis and a failure to grasp the limitations of that 

case’s holding. In any event, Gburek said only that the “attempt 

to collect a debt” language does not “automatically” result in the 

applicability of the FDCPA. It did not purport to hold that such 

language is irrelevant to the question of FDCPA coverage.

Next is Maynard v. Cannon, 401 F. App’x 389 (10th Cir. 

2010), an unpublished decision from the Tenth Circuit. Maynard

“assume[d] that non-judicial foreclosures are covered by the 

FDCPA,” and in so doing said that inclusion of the words “sent in 

an attempt to collect a debt” was “legally irrelevant.” Id. at 395. 

The pertinent language in Maynard is dicta, as the Tenth 

Circuit assumed that the FDCPA applied to the communication. 

To the extent that the Tenth Circuit was holding—as a matter of 

law—that language to the effect that “this is an attempt to collect 

a debt” is always irrelevant in deciding whether a communication 

is “in connection with” the collection of a debt under the FDCPA, 

we are not convinced by such a sweeping proposition. To borrow from Judge Ryan’s dissent in Lewis, such language “is what it 

says it is”—an attempt to collect a debt. See Lewis, 135 F.3d at 

414 (Ryan, J., dissenting). Or, to put the matter as a question, in 

determining whether a communication is in connection with the 

collection of a debt, what could be more relevant than a stateUSCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 26 of 50
19-10204 Opinion of the Court 27

ment in the communication that “this is an attempt to collect a 

debt”?

Heinz v. Carrington Mortgage Services, LLC, 3 F. 4th 1107 

(8th Cir. 2021), is the final case. There the Eighth Circuit held 

that several letters sent to a consumer were not “in connection 

with an attempt to collect on the underlying mortgage debt.” See 

id. at 1114. After coming to that conclusion, it addressed the 

“[m]ore troublesome” inclusion in the letters of the words “[t]his 

communication is from a debt collector and it is for the purpose 

of collecting a debt.’’ Id. Relying on the Seventh Circuit’s decision in Gburek and the Sixth Circuit’s decision in Ellis, the Eight 

Circuit wrote that such a boilerplate disclosure does not “automatically trigger the protections of the FDCPA, just as the absence of such [disclosures] does not have dispositive significance.” 

Id. (quoting Gburek, 614 F.3d at 386 n.3). Significantly, the 

Eighth Circuit concluded that because the statement was “at odds 

with the remainder of the letter,” it did “not turn the communication into something that it [was] not— . . . a communication 

made in connection with the collection of a debt for the purposes 

of the FDCPA.” Id.

Like Gburek, Heinz failed to consider the fact that the 

FDCPA no longer requires the use of such language in subsequent mortgage statements. It is therefore not persuasive. In any 

event, Heinz—like Gburek—did not hold that “this is an attempt 

to collect a debt” language is always irrelevant to the question of 

FDCPA coverage. Indeed, Heinz acknowledged the obvious: “[I]t 

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28 Opinion of the Court 19-10204

. . . seem[s] implausible that a communication labeled by the 

sender as ‘for the purposes of collecting a debt’ would, in fact, not 

be sent ‘in connection with the collection of a debt.’” Id. Our 

thoughts exactly.

V 

The only question we address today is the narrow one resolved by the district court—whether a required monthly mortgage statement that generally complies with the TILA and its regulations can plausibly be a communication “in connection with 

the collection of a[ ] debt” under the FDCPA or in connection 

with “collecting [a] . . . debt” under the FCCPA if it contains additional debt-collection language. For the reasons we have set out,

our answer to that question is yes. 

We note, in closing, that Select Portfolio may at times be 

conflating the threshold issue of a communication’s coverage under the FDCPA and the FCCPA with the ultimate merits issue of 

an entity’s liability under those Acts as a result of that communication. Our holding does not mean (or suggest) that monthly 

mortgage statements required by the TILA and its regulations automatically lead to liability under the substantive provisions of the 

FDCPA or the FCCPA. In order for Ms. Daniels to prevail on her 

claims, she will need to show that the statements violated §§

1692d, 1692e(2)(A), 1692e(10), and 1692f(1) of the FDCPA and/or 

§§ 559.72(7) and 559.72(9) of the FCCPA. We express no view on 

whether Ms. Daniels has plausibly pled that any of the mortgage 

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19-10204 Opinion of the Court 29

statements—given the alleged inaccuracies—violated any of these 

provisions, and leave that matter for the district court to resolve 

on remand under the “least sophisticated consumer” standard. 

See Holzman v. Malcolm S. Gerald & Assocs., Inc., 920 F.3d 1264, 

1269 (11th Cir. 2019).

The district court’s dismissal of Ms. Daniels’ complaint is 

reversed, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

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19-10204 LAGOA, J., Dissenting 1

LAGOA, Circuit Judge, Dissenting:

I respectfully dissent from the majority’s opinion, as I do 

not believe that inclusion of the sentence, “This is an attempt to 

collect a debt,” in the periodic mortgage statements that Select 

Portfolio Servicing, Inc., sent to Constance Daniels can bear the 

weight the majority places on it. 

The Truth in Lending Act (“TILA”), 15 U.S.C. § 1638, and 

regulations under the TILA require a residential mortgage servicer to provide periodic—in this case, monthly—statements containing comprehensive information regarding the status of the 

consumer’s loan, ranging from the amount due, the payment due 

date, and late payment fees, to information regarding delinquency, the consequences of late or nonpayment, and whether the 

servicer has taken any steps regarding foreclosure. See 15 U.S.C. 

§ 1638(f); 12 C.F.R. § 1026.4(d). Regulations under the TILA also 

expressly authorizes the use of a standard-form payment coupon 

to be included with the periodic statement. 

The mortgage statements at issue are each a couple of pages. The sentence, “[t]his is an attempt to collect a debt,” appears 

once on each statement, is not physically separated from other 

information in the statement, is not capitalized or otherwise emphasized, and is printed using the same font and font size as the 

rest of the information contained in the statement. Other than 

this sentence, the information in Select Portfolio’s statements and 

payment coupons does not materially differ from the TILA’s requirements. Indeed, the statements do not contain any other lanUSCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 31 of 50
2 LAGOA, J., Dissenting 19-10204

guage that arguably tries to induce Daniels to pay the outstanding 

debt or resembles the types of threats or demands for payment 

that we have previously discussed in connection with the Fair 

Debt Collection Practices Act (“FDCPA”). 

To be sure, the majority is correct when it states that “a required monthly mortgage statement that generally complies with 

the TILA and its regulations can plausibly be a communication ‘in 

connection with the collection of a[ ] debt’ under the FDCPA or 

in connection with ‘collecting [a] . . . debt’ under the FCCPA if it 

contains additional debt-collection language.” Maj. Op. at 28. 

But this means that the Court’s inquiry should focus on the additional debt-collection language and the substance of the communication sent to the consumer by the servicer. That approach is 

consistent with our precedent, and it is also consistent with the 

conclusion of other circuits, which have uniformly rejected the 

legal significance of the “attempt to collect a debt” language. 

“This is an attempt to collect a debt”—the only additional 

language contained in the TILA mandated statements—are not 

magic words, and their presence or absence in a communication 

to a debtor has no independent legal significance. Imagine a 

mortgage statement that included language typically found in a 

demand letter but lacked the “attempt to collect a debt” language—or expressly disclaimed that it was an attempt to collect a 

debt altogether. Would that insulate the servicer from the 

FDCPA requirements? In my view, the answer is “no.” For the 

same reason, including that sentence in a monthly mortgage 

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19-10204 LAGOA, J., Dissenting 3

statement that in all other respects simply includes language required by the TILA does not automatically mean that the statement is subject to both the TILA and the FDCPA.

Courts should look at the substance of the communication 

to determine whether the FDCPA applies, i.e., by determining 

whether the communication uses language typically seen or used 

in debt-collection efforts. Because that type of language is not 

present here, the “attempt to collect a debt” sentence alone cannot be the basis for a reversal. I would affirm the dismissal of 

Daniels’s complaint. 

A. FDCPA, TILA, and the Eleventh Circuit 

Under the relevant FDCPA provisions, a debt collector 

may not (1) “engage in any conduct the natural consequence of 

which is to harass, oppress, or abuse any person in connection 

with the collection of a debt,” 15 U.S.C. § 1692d, (2) “use any 

false, deceptive, or misleading representation or means in connection with the collection of any debt,” id. § 1692e, or (3) “use unfair 

or unconscionable means to collect or attempt to collect any 

debt,” id. § 1692f. Similarly, the relevant Florida Consumer Collections Practices Act (“FCCPA”) provisions require the action to 

be made in connection with “collecting [a] . . . debt.” Fla. Stat. 

§ 559.72(7), (9). 

In Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 

F.3d 1211, 1216 (11th Cir. 2012), this Court held that to state a 

plausible FDCPA claim the plaintiff “must allege, among other 

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4 LAGOA, J., Dissenting 19-10204

things, (1) that the defendant is a ‘debt collector’ and (2) that the 

challenged conduct is related to debt collection.” At issue in 

Reese was “a collection or ‘dunning’ notice, which consisted of a 

cover letter and three documents” sent by a law firm. Id. at 1214. 

The cover letter provided that it was intended to advise the plaintiffs that their “Note has been and is declared to be in default for 

non-payment and Lender hereby demands full and immediate 

payment of all amounts due and owing thereunder,” that “attorney’s fees will be added to the total amount for which collection is 

sought,” and that non-payment will result in foreclosure. Id. The 

attached documents also contained various statements in all capital letters stating that the law firm was attempting to collect a 

debt, as well as statements related to the forced sale of the property and the deadline for disputing the debt. Id. at 1214–15. This 

Court found that “[i]n light of all that language” the plaintiffs had 

sufficiently alleged that the notice was a communication related 

to the collection of a debt for purposes of the FDCPA. Id. at 1217. 

In Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1300–

01 (11th Cir. 2014), the lender’s law firm sent the plaintiff a letter 

stating that she “was behind in her payments on her residential 

mortgage and owed the lender” just under $270,000. The letter 

stated that the plaintiff could dispute the validity of the debt and 

that “[t]his communication is for the purpose of collecting a debt, 

and any information obtained from the debtor will be used for 

that purpose.” Id. at 1301. The letter also contained references, 

in two additional paragraphs, to “collection efforts” and stated: (1) 

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19-10204 LAGOA, J., Dissenting 5

those collections efforts would continue, (2) that additional attorney’s fees and costs would accrue, (3) the amount of the debt, 

with indication that it must be paid in certified funds, and (4) the 

name of the creditor and the phone number of the law firm in the 

paragraph relating to payments. Id. at 1303. This Court found 

that no reasonable person would consider the letter to be a legal 

pleading1 (let alone a formal one) and concluded that it was “a 

communication in connection with the collection of a debt.” Id.

Under the TILA, a servicer (with respect to a residential 

mortgage loan) must send the obligor a statement for each billing 

cycle containing certain information in a “conspicuous and prominent manner.” 15 U.S.C. § 1638(f)(1). The statement must include: 

(A) The amount of the principal obligation under the 

mortgage. 

(B) The current interest rate in effect for the loan. 

(C) The date on which the interest rate may next reset or adjust. 

(D) The amount of any prepayment fee to be 

charged, if any. 

1 Under 15 U.S.C. § 1692g(d), “a communication in the form of a formal 

pleading in a civil action shall not be treated as an initial communication for 

purposes of section (a).” Section 1692g(a) addresses the contents required in 

the initial communication by a debt collector with a consumer in connection 

with the collection of any debt. 

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6 LAGOA, J., Dissenting 19-10204

(E) A description of any late payment fees. 

(F) A telephone number and electronic mail address 

that may be used by the obligor to obtain information regarding the mortgage. 

(G) contact information, as specified by the statute, 

of counseling agencies or programs reasonably 

available to the obligor that have been certified or 

approved and made publicly available by the Secretary of Housing and Urban Development or a state 

housing finance authority . . . . 

(H) Such other information as the [Consumer Financial Protection Bureau (“CFPB”)] may prescribe 

in regulations. 

Id. Those CFPB regulations require that a periodic statement also 

include information such as the amount due, the payment due 

date, the amount of any late payment fee and the date on which it 

will be imposed, and delinquency information, including: the 

length of the delinquency; the risk of consequences like foreclosure; and notice as to whether the servicer has made the first notice required for foreclosure. See 12 C.F.R. § 1026.41(d)(1)–(8).

Pursuant to § 1638(f)(2), the CFPB has developed and published standard disclosure forms. See 12 C.F.R. ch. X, pt. 1026, 

App’x H, Forms H-30(A), H-30(B), H-30(C). These sample forms 

contain payment coupons, but they lack the “this is an attempt to 

collect a debt” language present in Select Portfolio’s mortgage 

statements.

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19-10204 LAGOA, J., Dissenting 7

Unlike the case before us here, neither Reese nor Caceres

involved a mortgage statement required to be sent under the 

TILA. Although not binding on us as an unpublished decision, 

this Court has considered whether mortgage statements that generally comply with the TILA’s requirements implicate the 

FDCPA. In Green v. Specialized Loan Servicing LLC, 766 F. 

App’x 777, 784 (11th Cir. 2019), the plaintiff claimed that a servicer violated the FDCPA by sending a mortgage statement that 

allegedly “falsely included time-barred payments from more than 

five years prior.” The mortgage statement in Green contained 

the following language: (1) “You are currently due for the 

07/01/10 payment,” and (2) “Amount to bring loan current: 

Please note, if your account is past due, this amount may not include all fees or other amounts necessary to fully reinstate your 

loan.” Green v. Specialized Loan Servicing LLC, 280 F. Supp. 3d 

1349, 1355 (M.D. Fla. 2017). A comparison of the mortgage 

statement attached as an exhibit to the plaintiff’s complaint in 

Green and Select Portfolio’s mortgage statement shows that, 

while not identical, there are no material differences between 

them. Both contain the TILA-mandated information regarding 

the status of the loan, both contain payment coupons, and while 

the statement in Green does not include the “attempt to collect a 

debt” language, it does state, “SPECIALIZED LOAN SERVICING 

LLC IS REQUIRED BY FEDERAL LAW TO ADVISE YOU 

THAT THIS COMMUNICATION IS FROM A DEBT 

COLLECTOR.” Amended Complaint at 19, Green v. Specialized 

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8 LAGOA, J., Dissenting 19-10204

Loan Servicing LLC, 280 F. Supp. 3d 1349 (M.D. Fla. 2017) (No. 

6:16-cv-1298-Orl-37KRS, ECF No. 21).2

This Court concluded that there was “nothing in the language in question from the Mortgage Statement, beyond what is 

required by TILA, which rises to the level of being unlawful debt 

collection language.” Green, 766 F. App’x at 784. While the 

plaintiff argued that the servicer should have reduced the total 

amount shown due and not included payments due beyond five 

years prior, this Court noted that (1) the TILA regulations required the statement to include delinquency information and (2) 

“under Florida law, a lien remains on a property throughout the 

term of the mortgage irrespective of any statute of limitations.” 

Id. at 784–85 (citing Countrywide Home Loans, Inc. v. Burnette, 

177 So. 3d 1032, 1034 (Fla. Dist. Ct. App. 2015)). As such, this 

Court concluded that “the district court did not err in finding that 

the content of the mortgage statement does not rise above the 

‘garden variety’ type of statement required by TILA, even for the 

‘least sophisticated consumer.’” Id. at 785 (quoting Green, 280 F. 

Supp. 3d at 1355). 

Additionally, in Green, this Court recognized that “a 

monthly statement that is in conformity with TILA may nevertheless include additional language that constitutes debt collec2 The Court “may take judicial notice of [our] own records and the records 

of inferior courts.” United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 

1987).

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19-10204 LAGOA, J., Dissenting 9

tion,” such as the language discussed in Kelliher v. Target National Bank, 826 F. Supp. 2d 1324 (M.D. Fla. 2011). Id. (emphasis added). Relevant here, this Court distinguished the statements in 

Green from those in Kelliher because the mortgage statement in 

Green “lack[ed] the strong demands for payments used by debt 

collectors in cases like Kelliher.” Id. The three mortgage statements at issue in Kelliher contained increasingly stronger demands for payment: (1) “Please Contact Us About Your Past Due 

Account . . . We have a number of special payment arrangements, 

but we need to hear from you in order to try to help,” (2) “Account Seriously Past Due . . . but we may still be able to offer special payment arrangements. . . . Your first step is to call us,” and 

then (3) “If we don’t set up payment arrangements for your REDcard soon, we’ll charge off your account and report it to the credit 

bureaus as bad debt. There’s still time to work with us . . . .” 826 

F. Supp. 2d at 1328. The district court in Kelliher found that these 

statements constituted debt collection language under the 

FDCPA, even if the rest of the mortgage statements complied 

with the TILA. Id. at 1328–29. 

The same approach this Court took in Green—looking at 

the substance of the communication sent to the debtor to determine whether it contains language associated with debt collection 

activity—was also taken in Saint Vil v. Perimeter Mortg. Funding 

Corp., 630 F. App’x 928 (11th Cir. 2015). The legal issue in Saint 

Vil involved a separate, but related, question under the FDCPA: 

Was the defendant acting as a “debt collector” for purposes of the 

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10 LAGOA, J., Dissenting 19-10204

statute? Id. at 930–31. In Saint Vil, the plaintiffs’ lender claimed 

that plaintiffs were in default on their mortgage, and the lender’s 

law firm sent them two notices of foreclosure, as required by 

Georgia law. Id. Although neither notice demanded payment of 

the underlying debt, the last line of each notice stated that that 

the law firm was “acting as a debt collector.” Id. at 931. This 

Court concluded, however, that the “acting as a debt collector” 

language did not automatically make the law firm a “debt collector” for FDCPA purposes, explaining that “the question in deciding whether a law firm acted as a debt collector is not simply 

what the firm called itself but rather whether the firm acted as 

debt collector as that term is defined by the statute.” Id. (emphasis added). Although the firm’s own description of itself was one 

factor to consider, “it d[id] not end the inquiry,” and had the firm 

“taken other action that could be interpreted as trying to induce 

payment of the debt,” such as “threatening additional penalties or 

fees, hounding the Saint Vils for payment, proposing alternatives 

to immediate or full payment, or even just telling the Saint Vils 

the amount they needed to pay, then the firm might have been 

acting as a debt collector under the FDCPA.” Id. at 931–32. None 

of those circumstances existed, however, and the plaintiffs relied 

solely on the one sentence in the foreclosure notice. Id. at 932. 

Rejecting that argument, we concluded that “sending just the 

statutorily required notice of foreclosure was not enough.” Id. 

As the majority recognizes, other than the single sentence 

stating, “[t]his is an attempt to collect a debt,” nothing else in SeUSCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 40 of 50
19-10204 LAGOA, J., Dissenting 11

lect Portfolio’s statements is alleged to be beyond what is required by the TILA. Maj. Op. at 20. Unlike Kelliher, there are no 

increasingly threatening demands for immediate payment in the 

mortgage statements that Select Portfolio sent to Daniels, see 826 

F. Supp. 2d at 1328, nor are there statements like those that this 

Court considered actionable under the FDCPA in Reese and Caceres, see 678 F.3d at 1214–15; 755 F.3d at 1303. And while the 

“attempt to collect a debt” language is not contained in the sample forms in the TILA regulations, this additional language by itself does not “materially deviate in substance” from the regulation’s requirements, which unquestionably seek to inform the 

debtor of the status of his debt and the consequences of nonpayment. See Zavala v. Select Portfolio Servicing Inc., No. 18-cv61651-BLOOM/Valle, 2018 WL 6198685, at *2–3 (S.D. Fla. Nov. 

28, 2018) (finding that “this is an attempt to collect a debt” language by itself did not automatically convert a monthly statement 

required by the TILA into debt collection activity under the 

FDCPA); Jones v. Select Portfolio Servicing, Inc., No. 1:18-cv20389-UU, 2018 WL 2316636, at *4 (S.D. Fla. May 2, 2018) (same). 

Again, Green and Saint Vil, are not binding on us. And 

there is a difference of opinion among the district courts in our 

circuit regarding this issue. But I think that Green, Saint Vil, and 

decisions like Zavala and Jones got it right; the majority’s conclusion that, by including this extra language—which is not required 

but is neither inconsistent with nor materially additive to TILA’s 

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12 LAGOA, J., Dissenting 19-10204

requirements—the periodic mortgage statements have become 

communications subject to the FDCPA is far too broad. 

B. How This Issue Has Fared in Other Circuits 

Each circuit that has considered the issue has concluded 

that inclusion of “this is an attempt to collect a debt” language, 

without more, does not convert an otherwise routine communication about a debt into a debt-collection statement subject to the 

FDCPA. See Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 

386 n.3 (7th Cir. 2010) (stating that the fact that a communication 

to a debtor in default on her mortgage “bore a disclaimer identifying it as an attempt to collect a debt, . . . does not automatically 

trigger the protections of the FDCPA, just as the absence of such 

language does not have dispositive significance” (citing Lewis v. 

ACB Bus. Servs, Inc., 135 F.3d 389, 399 (6th Cir. 1990)))3; Maynard 

v. Cannon, 401 F. App’x 389, 395 (10th Cir. 2010) (explaining that 

the inclusion of “attempt to collect a debt” language “does not inevitably lead to the conclusion” that non-judicial foreclosure actions fall within the scope of the FDCPA, as such language, like an

explicit statement that a communication is not meant as a debt 

collection, is “legally irrelevant”); Boosahda v. Providence Dane 

LLC, 462 F. App’x 331, 334–35 (4th Cir. 2012) (rejecting argument 

3 In Lewis, the Sixth Circuit explained that “the mere fact that the letter 

states at the bottom that it ‘is an attempt to collect a debt’ does not transform the letter into an unlawful demand for payment” under a previous version of the FDCPA that required such a statement on all communications. 

135 F.3d at 399.

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19-10204 LAGOA, J., Dissenting 13

that FDCPA disclaimer language that sender is “attempting to collect a debt” satisfies burden of showing that debt was consumer 

debt because such language lacks legal significance); Goodson v. 

Bank of Am., N.A., 600 F. App’x 422, 431–32 (6th Cir. 2015) (noting that a statement that the loan servicer “was ‘a debt collector 

attempting to collect a debt’” in a letter to the mortgagor in default informing her of a change in loan servicer and also allegedly 

falsely representing the amount due “did not, by itself, transform 

[an] informational letter into debt collection activity”); Tabb v. 

Ocwen Loan Servicing, LLC, 798 F. App’x 726, 729 (3d Cir. 2020) 

(noting that a disclaimer that sender is not attempting to collect a 

debt “does not automatically insulate the communication from 

liability under the FDCPA” and that courts must look to the context and content of the communication). 

Most recently, in Heinz v. Carrington Mortgage Services, 

LLC, 3 F.4th 1107, 1112–14 (8th Cir. 2021), the Eighth Circuit 

concluded that several communications were not made in connection with the collection of the debt and thus did not fall within 

the scope of the FDCPA. At issue in Heinz were four communications that the plaintiff identified as violating the FDCPA because of misrepresentations they contained. Id. at 1109–10. In 

determining whether each communication was made in connection with the collection of a debt, the Eighth Circuit considered 

(1) the amount and type of information about the loan in the 

communications, (2) whether there was a request or demand for 

payment, and (3) the timing of the communications. Id. at 1112–

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14 LAGOA, J., Dissenting 19-10204

14. Additionally, the Eighth Circuit noted that each communication contained what it characterized as a “so-called ‘Mini-Miranda’ 

statement” in the disclosures section. Id. at 1114. That statement 

provided, in relevant part, that “[t]his communication is from a 

debt collector and it is for the purpose of collecting a debt and any 

information obtained will be used for that purpose.” Id. While 

recognizing that “[a]t first glance, it may seem implausible that a 

communication labeled by the sender as ‘for the purpose of collecting a debt’ would, in fact, not be sent ‘in connection with the 

collection of a debt,’” the Eighth Circuit explained that “these 

types of boilerplate mini-Miranda disclosures . . . ‘do[] not automatically trigger the protections of the FDCPA, just as the absence of such [disclosures] does not have dispositive significance.’” Id. (alterations in original) (citation omitted) (quoting 

Gburek, 614 F.3d at 386 n.3). Rather, the court concluded that it 

must “look to the substance of the letter—what information it 

provides and what it asks the borrower to do—to determine 

whether an ‘animating purpose’ is ‘to induce payment by the 

debtor.’” Id. (emphasis in original) (quoting McIvor v. Credit 

Control Servs., Inc., 773 F.3d 909, 914 (8th Cir. 2014)). As the 

communications did not try to induce the plaintiff to pay the outstanding debt, the court concluded that “a routine disclosure 

statement that is at odds with the remainder of the letter does not 

turn the communication into something that it is not—in this 

case, a communication made in connection with the collection of 

a debt for the purposes of the FDCPA.” Id.

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C. Application to This Case 

Consistent with our cases, as well as the general approach 

of the other circuits, this Court should focus on the substance of 

the language used in the mortgage statements Select Portfolio 

sent to Daniels to determine whether they are debt-collection 

communications covered by the FDCPA. Although we are reviewing the district court’s Rule 12(b)(6) dismissal of Daniels’s 

complaint for failure to state a plausible claim under the FDCPA 

and the FCCPA, the issue this appeal requires us to answer is 

whether, based on her complaint and the content of the attached 

statements, Daniels has plausibly alleged that those mortgage 

statements were made “in connection with the collection of a[ ] 

debt” under the FDCPA or in “collecting [a] . . . debt” under the 

FCCPA. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 4

Daniels claims that the November 2016 statement she received was the most problematic. This statement is titled “Mort4 Other courts have similarly ruled on this question at the pleading 

stage, see, e.g., McIvor, 773 F.3d at 914–16, and in ruling on this question 

have determined that courts may consider the contents of the relevant 

communications. Here, Daniels attached the relevant communications to 

her complaint, see Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 

2016) (“A district court can generally consider exhibits attached to a complaint in ruling on a motion to dismiss, and if the allegations of the complaint 

about a particular exhibit conflict with the contents of the exhibit itself, the 

exhibit controls.”). It is therefore proper for us to consider the attached exhibits to the complaint at this procedural stage. 

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16 LAGOA, J., Dissenting 19-10204

gage Statement” and provides: (1) the amount due ($9,075.71) 

with the loan and payment due dates, (2) an “Explanation of 

Amount Due” section, (3) a “Past Payments Breakdown” section, 

(4) a “Transaction Activity” section, (5) information regarding 

partial payments (and overpayments), (6) Select Portfolio’s contact information, and (7) an “Account Information” section, including the interest bearing principal, the deferred principal, the 

outstanding principal, the interest rate, and the lack of prepayment penalty. The November 2016 statement also contains a 

“Delinquency Notice” section with delinquency information, 

which states: (1) “You are late on your mortgage payments. Failure to bring your loan current may result in fees and foreclosure –

the loss of your home,” (2) the length of delinquency, (3) the 

amount to pay to make the loan current, (4) that Select Portfolio 

had completed the first notice/filing to start a foreclosure, and (5) 

information about mortgage counseling or assistance. All of this 

information is in line with—indeed, required by—the TILA. The 

November 2016 statement also contains a “payment coupon,” 

which the TILA’s sample forms also contain. See 12 C.F.R. ch. X, 

pt. 1026, App’x H, Forms H-30(A), H-30(B), H-30(C). 

Here, the language of the November 16 statement (and the 

other periodic monthly statements) complies with the TILA’s requirement to send mortgagors a statement each billing cycle with 

all the aforementioned information in order to provide Daniels 

with information about her mortgage. Because a communication 

to a debtor can be subject to both the TILA and the FDCPA, 

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19-10204 LAGOA, J., Dissenting 17

however, we need to determine whether, through the inclusion 

of the additional sentence—“This is an attempt to collect a 

debt”—the monthly statements also are communications in connection with the collection of a debt subject to the FDCPA. 

Based on the cases discussed above, the inclusion of that 

language does not automatically turn a periodic, statutorilymandated TILA communication from a debt collector into a 

communication that also falls within the scope of the FDCPA. 

Indeed, the law firms’ demand letters in Reese and Caceres involved materially different language demanding payment and 

threatening consequences for nonpayment. By contrast, there is 

no material difference between the inclusion of the “attempt to 

collect a debt” language in Select Portfolio’s mortgage statements 

and the TILA’s requirements that a periodic statement contains 

information such as the amount due, the due date, and delinquency information, and the TILA’s regulations authorizing the 

use of sample forms providing “payment coupons.” Moreover, 

the information contained in the payment coupons is derived 

from the information already disclosed in the mortgage statements in compliance with the TILA. There is no new information contained in the payment coupons, not even a demand 

for payment; the coupons simply provide Daniels with a convenient way to make payment, if she so desires. Nor is there a material difference between Select Portfolio’s mortgage statements 

and the mortgage statement considered in Green. 

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18 LAGOA, J., Dissenting 19-10204

In addition to the “attempt to collect a debt” sentence, the 

majority also notes that Daniels alleges that she prevailed in an 

earlier mortgage foreclosure action brought against her by the 

lender, which resulted in a loan modification agreement. Maj. 

Op. at 14. Daniels alleges that the sums shown in Select Portfolio’s mortgage statements as presently due and owing are incorrect because they do not reflect the terms of the loan modification 

agreement and liability is therefore triggered under the FDCPA. 

But Daniels’s allegations explaining why the information in the 

mortgage statements is “false, misleading, or deceptive” do not 

answer the threshold question of whether the FDCPA applies to 

the statements. Reese and Caceres require us to look at the language used in the statements themselves, and I remain unconvinced that Daniels’s liability allegations can bolster the statements’ language for purposes of determining whether the FDCPA 

applies here. 

All TILA-mandated information, by its very nature, constitutes a communication relating to the status of the debt. That includes the TILA-mandated information about making a payment 

and TILA-authorized payment coupons providing the debtor a 

way to make a payment if the debtor wants to do so. But that is 

different from a communication made in connection with seeking 

to collect on the debt for purposes of the FDCPA. As a result, I 

cannot conclude that a TILA-mandated mortgage statement that 

includes a sentence stating that it is “an attempt to collect a debt,” 

without, for example, stronger demands for full or partial payUSCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 48 of 50
19-10204 LAGOA, J., Dissenting 19

ment and threats of consequences for failure to do so, gives rise to 

a claim under the FDCPA. Indeed, neither this Court nor other 

circuits have adopted a test based solely on the presence or absence of certain “magic words;” instead, a court must look at the 

language used in the mortgage statement to determine whether it 

materially deviates from what is required by TILA. 

Because the language in Select Portfolio’s mortgage statements to Daniels does not materially vary from what is required 

to comply with TILA’s mandates for periodic statements sent to a 

residential mortgagor, and because the statements do not include 

the type of debt-collection language discussed in Reese, Caceres, 

Green, and Saint Vil, I conclude that Select Portfolio’s mortgage 

statements to Daniels do not “rise above the ‘garden variety’ type 

of statement required by TILA.” Green, 766 F. App’x at 785; see 

also, e.g., Hill v. DLJ Morg. Cap., Inc., 689 F. App’x 97, 98 (2d Cir. 

2017) (affirming dismissal of FDCPA claims premised on TILAmandated monthly statements and explaining that the mortgage 

servicer “sent these statements in compliance with the 

[TILA] . . . , which requires mortgage loan servicers to transmit 

monthly statements to consumers” and that “[w]ith this in mind, 

the monthly statements here do not reflect attempts to collect on 

the debt evidenced by the Note”). And because Daniels’s FDCPA 

claims are predicated solely on the language in these mortgage 

statements and not on additional communications sent to her by 

Portfolio Select, I further conclude that Daniels failed to state 

plausible claims that Select Portfolio violated the FDCPA and that 

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20 LAGOA, J., Dissenting 19-10204

the district court did not err in dismissing her complaint. Accordingly, I respectfully dissent.

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