PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 17

- 3330

_____________

ELAINE LEVINS; WILLIAM LEVINS, on behalf of themselves and others similarly situated,

Appellants

v.

HEALTHCARE REVENUE RECOVERY GROUP LLC, a/k/a ARS Account Resolution Services;
JOHN AND JANE DOES 1 THROUGH 25

_____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1

- 17

- cv

- 00 928 ) District Judge: Hon o r able Ro bert B. Kugler

_______________

Argued

J une 5 , 2018

Before: AMBRO, JORDAN , and VANASKIE, Circuit

Judges2 (Filed : August 22, 2018 )

Daniel A. Frischberg
525 Route 73 South
Evesham Commons Marlton, NJ 08053

Philip D. Stern [ARGUED]
Andrew T. Thomasson
Stern Thomasson
150 Morris Avenue

, 2nd Floor Springfield, NJ 07081

Counsel for Appellant s

Sean X. Kelly
Christian M. Scheuerman [ARGUED]
Marks O’Neill O’ Brien Doherty & Kelly
535 Route 38 East

, Suite 501 Cherry H ill, NJ 08002

Counsel for Appellee

_______________

OPINION

_______________

JORDAN, Circuit Judge

.

In this appeal, w e interpret three provisions of the Fair
Debt Collection Practi ces Act (“FDCPA”), 15 U.S.C. §§ 1692

- 1692p. Elaine and William Levins allege that Healthcare3 Revenue Recovery Group LLC (“HRRG”) violated §§ 1692e(14)

, 1692d(6), and 1692e(10) by leaving telephone voice messages that did not use its true name

, did not meaningfully disclose its identity, and used false representations and deceptive means to collect or attempt to
collect a debt or obtain in formation about a consumer . In particular, the Levins es complain that voicemail messages in
which HRRG went by the name of “ARS” w ere in sufficient to identify it as HRRG or even as “ARS ACCOUNT RESOLUTION SERVICES, ” which is an alternative business

name used by HRRG. HRRG moved to dismiss the complaint, as amended, for failure to state a claim

, and the District Court granted that motion.

We conclude that the Levins es have stated a plausible
claim th at HRRG violated § 1692e(14) ’s “true name” provision, but they have not stated plausible claims under §§ 1692d(6 ) or 1692e(10). Accordingly, w e will vacate in part and affirm in part the dismissal of the ir case

.

I. B ACKGROUND

A. Allegations In The Complaint 1

The Levins es , who live in New Jersey, purportedly
incurred a debt that was transferred to HRRG for collection.

HRRG then began leaving pre

- recorded voice mail messages

1 For convenience, we refer to the amended complaint simply as “the complaint.” We construe the allegations of that pleading in the light most favorable to the Levinses. See infra
note 2.4 on the Levins es ’ phone in an attempt to collect the debt. The
follow ing is a transcription of the message : ARS calling. Please return our call at 1

- 800

- 694

- 3048. ARS is a debt collector. This is an attempt to collect a debt. Any information obtained will be used for that purpose. Again, our number is

1

- 800

- 694

- 3048. Visit us at
www.arspayment.com.

(App. at 22 ¶ 31.)

At the time the Levins es received th at message over and

over , they did not know the identity of the caller. The y had never received any written communication from HRRG. Having recently gone through bankruptcy, they knew of a debt
collector with the full name “ARS National Services, Inc. ” that
was known as “ARS” for short. T hat company , however, turns
out to be wholly unrelated to HRRG. While it has registered
the name “ ARS ACCOUNT RESOLUTION SERVIC ES ” in New Jersey, HRRG has neither registered the stand

- alone

name “ARS” nor taken any other legal steps to do business
under that specific name.

T here are numerous businesses that use the name “ARS, ” including the debt collector the Levinses had hea rd of

, which is a California corporation registered to transact
business in New Jersey

. According to the Levinses

, “ b y reputation the name ‘ ARS ’ is, without more, associated in the nation’s debt collection industry with ARS National Services Inc.” (App. at 23 ¶ 41.) A Google search of “ARS” along with “debt” or “collector” will result in links to many debt collectors

other than HRRG. R efer ence to www.arspayment.com , the
websi te that HRRG mentioned in the pre

- recorded messages it5 left for the Levinses , does not narrow the field

. It only leads to a browser privacy warning that block s access to the web site

. A nd

, if one ignores the warning and access e s the site

, the
website begi ns track ing and stor ing information about the
computer user

.

B. Procedural History

W ithin a year of receiving the voicemail messages from
HRRG

, the Levins es filed their putative class

- action complaint alleging that HRRG violated the FDCPA when attempt ing to collect debt s from them and others similarly situated

. T hey eventually filed an amended complaint in which they claim ed
that the pre

- recorded messages violate 15 U.S.C. §§ 1692e(14)

, 1692d(6), and 1692e(10) because the y “ use the name of any business, company or organization other than the
true name of the debt collector’s busi ness, company, or organization ” ; “fail to provide meaningful disclosure of HRRG’s identity ” ; and “ use false representations and deceptive means to collect or attempt to collect an y debt and to obtain information concerning a consumer [.] ” (App. at 19 ¶ 13.)

HRRG moved to dismiss the case , invoking Federal
Rule of Civil Procedure 12(b)(6). Along with its motion, HRRG filed an attorney declaration with supporting
documents

. Among those was a certificat e stating that it is registered to do business in New Jersey under the name “A R S
ACCOUNT RESOLUTION SERVICES

, ” and a collection letter that it purports to have sent to Elaine Levins in November
2015

. The Levins es opposed HRRG’s motion and submitted
their own attorney declaration with documents listing hundreds
of businesses registered in New Jersey under names that6 include “ARS. ” After reviewing the parties’ subm issions , the District Court granted the motion to d ismiss.

The Levins es have timely appealed.

II. D ISCUSSION 2

In appealing the order dismiss ing the ir complaint for failure to state a claim, the Levinses make three arguments. First, th e y say that HRRG violated § 1692e(14) because it did
not use its true name in the voicemail messages. Next, t he y argue that HRRG violated § 1692d(6) because the messages did not meaningfully disclose the caller’s identity. And finally, they assert that HRRG vi olated § 1692e(10) because forcing consumers to call HRRG or navigate its website is a deceptive

2 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

“ We exercise plenary review over a district c ourt’s dismissal for failure to state a claim under Rule 12(b)(6) , applying the
same standard as the d istrict court

. ” Glover v. FDIC , 698 F.3d 139, 144 (3d Cir. 2012). “We will affirm an order dismissing a complaint on ly when the complaint fails to contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its fa ce.” Rotkiske v. Klemm

, 890 F.3d 422, 424

n.2 (3d Cir. 2018) (en banc) (internal quotation marks omitted). “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.” Tatis v. Allied Inte rstate, LLC , 882 F.3d 422, 426 (3d Cir. 2018). We construe the allegations in the complaint in the light most favorable to the non

- moving parties, the plaintiffs.
Id.7 means to collect debts and obtain information about a

consumer.

HRRG of course disputes all of tho se contentions. It

says that it did not violate § 1692e(14) because “ARS” is an

abbreviation of its registered alternat iv e business name “ARS
Account Resolution S ervices

, ” which is a true name. It then
contends that it did not violate § 1692d(6) because the

messages said that the calle r was a debt collector, pointed out that the purpose of the call was to collect a debt, and provided a phone number and website for the consumer to use, all of
which was a sufficient disclosure of identity

. And , last, it

argues that it did not use decepti ve collection practices in violation of § 1692e(10) because the messages informed consumers that any information obtained would be used to
collect a debt.

Before turning to the parties ’ competing arguments

, though, we must determine which materials can properly be
consider ed in evaluating the District Court’s decision to dismiss the claims under Rule 12(b)(6).

A. We Decline T o Rely On The Collection Letter
Attached To HRRG’s Motion To Dismiss

Because The Complaint Does Not Reference Or Rely On It

.

We “generally consider only the allegations contained in the complaint, exhibits attached to the complaint[,] and matters of public record” when evaluating whether dismissal under Rule 12(b)(6) was proper. Pension Benefit Guar. Corp.
v. White Consol. Indus. , Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993). But we can also consider “an undisputedly authentic8 document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.”

Id. We may do so because “the primary problem raised by looking to documents outside the complaint

— lack of notice to the plaintiff

— is dissipated where the plaintiff has actual notice ... and has relied upon [those] documents in framing the complaint.” Schmi dt v. Skolas , 770 F.3d 241, 249 (3d Cir. 2014) (internal quotation marks, alteration, and citation omitted).

Here, HRRG asks us to consider the collection letter that
it cla ims to have mailed to the Levins es i n November 2015

. The letter bears a company logo consisting of the letters “ARS, ” says in the letterhead that “Account Resolution

Services ” is “a division of HRRG, LLC

, ” and, in the body of the letter, uses “ARS” as an abbreviated name. (App. at 38.)
HRRG urges us to conclude that the Levinses received that
collection letter before the phone messages and so would have
underst ood ARS an d HRRG to be one and the same. The
Levins es respond that the letter is off limits at this stage of the litigation , and they are right

. W e will not consider it be cause the claims in the Levins es ’ complaint are not based on it. Rather, the claims are based on the pre

- recorded phone

messages that the Levins es allegedly received. Indeed, t he
Levinses specifically allege that they have never rec eived any
written communication from HRRG, and w e must take that as

true

, see Tatis v. Allied Interstate, LLC , 882 F.3d 422, 426 (3d Cir. 2018) (construing allegations in the complaint in the light
most favorable to the non

- moving party)

. 3

3 The District Court’s decision likewise did not
reference that collection letter. We will, however, consider the certificate stating that HRRG is registered to do business in9 Of course, our decision not to co nsider the letter at this
stage does not mean that it is irrelevant or forever precluded
from consideration. Assuming it is properly tendered to the District Court, HRRG may rely on it later in a motion for summary judgment or at trial

.

With that decided, we can now consider whether the
Levins es have stated their FDCPA claims with suffic ient plausibility to withstand the motion to dismiss.

B. The Levins es Have Stated A Plausible Claim Under § 1692e(14)

.

Congress enacted the FDCPA “to elimi nate abusive debt collection practices by debt collectors[.]” 15 U.S.C. § 1692. Because it is a remedial statute, “we construe its language broadly, so as to effect its purpose.” Tatis , 882 F. 3d

at 427 (internal quotation marks and citation omitted) . In evaluating whether a particular debt

- collection practice violates the Act, “we employ a ‘least sophisticated debtor’ standard[.]” Id. (citation omitted). “The standard is objective, meaning that the specific plaintiff need not prove that she was

ac tually confused or misled, only that the objective least sophisticated debtor would be.” Id. (internal quotation marks, emphasis, and citation omitted). “[That] standard aims to

New Jersey under the name “ARS ACCOUNT RESOLUTION SERVICES,” (App. at 35), because it is a matter of public record, Pension Benefit Guar. Corp. , 998 F.2d at 1196 . Th e District Court referenced the certificate in its decision, and neither party disputes that choice on appeal. That is the limit of what we are considering outside of the complaint.10 protect the gullible as well as the shrewd, but it nevertheless

preserves a quotient of reasonableness[.]” Id. (internal quotation marks, altera tions, and citations omitted).

To state a claim under the FDCPA, a plaintiff must allege that “(1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant’s challenge d practice involves an attempt to collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting
to collect the debt.” Id. Here, the parties only dispute the fourth element, i.e. , whether the messages violated §§ 1692e(14)

, 1692d(6), or 1692e(10) of the Act

.

We conclude that the Levins es have stated a plausible claim under § 1692e(14) because , as alleged in the complaint,
“ARS” is neither HRRG’s full business name, the name under which it usually tra nsacts business, nor a commonly used

acronym of its registered name “ARS ACCOUNT

RESOLUTION SERVICES

. ” Section 1692e prohibits a debt collector from “us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. It contains a non

- exhaustive list of pro hibited conduct, one sort of which is “[t]he use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organiza tion.” Id. § 1692e(14).

The FDCPA is enforced by the F ederal Trade Commission (“FTC”), which has offered guidance on how to

i nterpret that statute

. Hawthorne v. Mac Adjustment, Inc. , 140 F.3d 1367, 1372 n.2 (11th Cir. 1998)

. Although the FTC’s guidance “does n ot have the force of law and is not entitled to
deference in FDCPA cases [,]” we may adopt i ts interpretation11 when we find its logic persuasive

. Brown v. Card Serv. Ctr.

, 464 F.3d 450, 455 (3d Cir. 2006) (internal quotation marks, alterations, and citation omitted). The FTC has interpreted the
“true name” requirement in § 1692e(14) to permit a debt
collector to “use its full business name, the name under which it usually transacts business, or a commonly

- used acronym [,]” as long as “ it consistently uses th e same name when dealing with a particular consumer.” Statements of General Policy or Interpretation Staff Commentary On the Fair Debt Collection

Practices Act , 53 F ed. R eg. 50097 , 50107 ( Dec. 13, 1988) [hereinafter FTC Commentary ]

. That is a sound interpretation
of the statutory requirement, and we adopt it as our own.

Here, at thi s early stage in the case, when we must tak e the allegations in the complaint as true

, the Levins es have plausibly alleged facts suggesting that “ARS” is not the “true

na me” of HRRG. While they do not deny that “ARS” is a name HRRG may use, t hey say that the acronym is commonly associated with other debt collection companies , including “ARS National Services, Inc.

, ” and that it could refer to hundreds of other businesses registered to do business in New Jersey under names that include “ARS. ” (App. at 23 ¶ ¶ 37 , 41 ; App. at 4 1 .) See also Sayles v. Advanced Recovery Sys., Inc.

, 865 F.3d 246, 248 (5th Cir. 2017) (abbreviating defendant
“Advanced Recovery Systems, Inc.” as “ARS”); Koby v. ARS Nat’l Servs., Inc. , 846 F.3d 1071, 1074 (9th Cir. 2017) (abbreviating defendant “ARS National Services, Inc.” as “ARS”). Nothing in the information properly before us
indicates that “ ARS ” is HRRG’s full business name, the name

under which it usually transacts business, or its commonly used acronym. To the extent HRRG argues to the contrary, it is doing so without proper record support. It will have an opportunity later to expand the recor d, but for now taking the12 a llegations in the complaint as true , we conclude that the
Levins es have stated a plausible claim for relief under § 1692e(14). 4

C. The Levins es Have Not Stated A Plausible Claim Under § 1692d(6)

.

Sect ion 1692d prohibits a debt collector from “engag[ing] in any conduct the natural consequence of which

4 The District Court reached the opposite conclusion by relying on Pescatrice v. Elite Recovery Service, Inc. , No. 06

- 61130, 2007 WL 1192441 (S.D. Fla. Apr. 23, 2007), and Strand v. Diversified Collection Service, Inc. , 380 F.3d 316 (8th Cir. 2004). Those cases, however, are distinguishable.

In Pescatrice , the court he ld that there was no violation of § 1692e(10) when a debt collector used an abbreviation of its company name in the return address of a mailing. 2007 WL 1192441, at *4; see also 15 U.S.C. § 1692e(10) (prohibiting “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer”); infra Section II.D. Similarly

, in
Strand , the court held that a collection agency’s practice of using its initials and corporate logo on an envelop e’s exterior did not violate § 1692f(8). 380 F.3d at 319; see also 15 U.S.C. § 1692f(8) (prohibiting “[u]sing any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by
tel egram, except that a debt collector may use his business
name if such name does not indicate that he is in the debt collection business”). Both of those cases were based on different provisions of the FDCPA, and we do not interpret them as deciding the “t rue name” question that is at issue here.13 is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. It too, like § 1692e, contains a non

- exhaustive list of prohibited cond uct,

one type of which is “the placement of telephone calls without meaningful disclosure of the caller’s identity.” Id. § 1692d(6). Here, though the issue is close, we conclude that the District
Court was correct to rule that the Levinses have not state d a
claim under § 1692d(6) . The voicemail messages provided enough information about the caller’s identity for the least sophisticated debtor to know that the call was from a debt
collector and was an attempt to collect a debt.

T he statute does not def

ine “meaningful disclosure [, ] ”
but i n Hart v. Credit Control, LLC , t he United States Court of Appeals for the Eleventh Circuit interpreted “meaningful disclosure” as requiring a debt collector’s voice message to provide two types of information: first, “the name of the debt collection company[,]” and second, “the nature of the debt collection company’s business, which can be satisfied by disclosing that the call is on beha lf of a debt collection company[

. ] ” 871 F.3d 1255, 12 60 (11th Cir. 2017)

. The c ou rt
held that there was no violation of § 1692 d(6) when the
individual calling on behalf of the debt collector did not leave his or her personal name in a message because that individual provided a company name and stat ed that the call was from a
debt colle ctor. Id. at 1259

- 60; s ee also id. at 1256 (“ This is Credit Control calling with a message. This call is from a debt
collector. Please call us at 866

– 784

– 1160. Thank you. ”)

. District courts in our Circuit have similarly interpreted “meaningful disclosure” as requiring a debt collector “ to reveal itself as a collection agency when leaving messages ” because “[m]eaningful disclosure requires a debt collector to disclose enough information so as not to mislead the recipient as to the14 pur pose of the call.” See Pisarz v. GC Serv s

. L td. P’ship

, No.
16

- 4552, 2017 WL 1102636, at *6 (D.N.J. Mar. 24, 2017) (internal quotation marks and citation omitted); see also id. ( citing district court cases )

.

The Levins es claim that saying “ARS” was not e nou gh meaningful disclos ur e of the caller’s identity to be lawful under § 1692 d(6)

. As with their claim under § 1692 e(14), they again argue that, from the words of the messages, it is not clear that “ARS” would uniquely refer to HRRG because there are other companies in the debt collection industry that are associated
with the name “ARS

, ” and there are other businesses registered in New Jersey with business names or ass ociated names that
include “ARS. ” Although we agreed with that contention with respect to § 1692e(14)’s “true name” requirement, it has less
for ce in the context of § 1692d(6) for two reasons

.

First, although it is possible for a debt collector’s phone message to violate both §§ 1692d(6) and 1692e(14), 5 a

5 T he FTC regards a debt collector’s use of “a false business name in a phone call” as violating both §§ 1692e(14) and 1692d(6)

. See FTC Commentary , 53 Fed. Reg. at 50105 (“A debt collector who uses a false busine ss name in a phone call to conceal his identity violates [§ 1692e(14)], as well as [§ 1692d(6)].”); id. at 50107 (“When a debt collector uses a false business name in a phone call, he violates [§ 1692d(6)] as well as [§ 1692e(14)]. ”). We agree that such conduct would
violate both §§ 1692e(14) and 1692d(6), but here the Levins es have not alleged that “ARS” is a “false business name” of HRRG. They have only alleged and argued that the name
“ARS” could refer to any number of companies that use the15 violation of one provision is not necessarily a violation of the
other because “meaningful disclosure of the caller’s identity”

is not restricted to providing the name of the debt collector

. As

e xplained above, “ meaningful disclosure of the caller’s identity ” has been interpreted to include information that
discloses the call is from a debt collector so as not to mislead the least sophisticated debtor of the purpose of the call

. Here,

t he voicema il messages would not mislead the least sophisticated debtor because the messages gave some identifying information about the caller, stated that the call was
from a debt collector

, and stated that the call was an attempt to collect a debt. Even though the Levinses have sufficiently alleged that “ARS” is, as already discussed, less than a “true
name” as defined by § 1692e(14)

, they have not plausibly alleged that using the abbreviation “ARS

, ” which is asso ciated with a registered identity of HRRG, amounts to a lack of meaningful disclosure of the sort forbidden by § 1692d(6)

. Nothing in the messages rises to the level of “harass[ment], oppress[ion], or abuse ... in connection with the collection of a
debt

, ” which is the target of § 1692d.

Second

, and closely related, if we were to say that use of anything less than a debt collector’s “ true name ” was a violation of § 1692d(6), we would make § 1692d(6) superfluous in light of § 1692e(14). See Everage v. Nat’l Recovery Agency , No. 14

- 2463, 2015 WL 1071757, at *5 (E.D. Pa. Mar. 11, 2015) (declining to import § 1692e(14)’s “true name” requirement into § 1692d(6))

. When Congress enacted the FDCPA, it used the term “true name” in § 1692e(14)

, whereas it used “ meaningful disclosure of the caller’s identity ”

name “ARS ,” which falls short of saying that “ARS” is a “false

business name ” of HRRG.16 in § 1692d(6). Fair Debt Collection Practices Act, P ub. L . No.
95

- 109, 91 Stat

. 874 , 877

- 78 (1977). Th e difference must have sig nifican ce . If Congress had wanted § 1692d(6) also to require that a debt col lection compan y use its “true name[,]”

then it would have so specified

. See Loughrin v. United States

, 134 S. Ct. 2384, 2390 (2014) ( noting “ when Congress includes particular language in one section of a statute but omits it in
another [,] ... th[e Supreme] Court presumes that Congress
intend ed a difference in meaning” (internal quotation marks, citation, and alteration omitted) ). We will not rewrite the statute and import the “true name” requirement of § 1692e(14) into § 1692d(6)

.

For those reasons

, t he District Court properly dismissed
the Levins es ’ claim under § 1692d(6).

D. The Levins es Have Not Stated A Plausible
Claim Under § 1692e(10)

.

Finally, we also agree with the District Court’s
conclusion that the Levins es failed to state a claim under § 1692e(10) because the messages adequately warned that any
information obtained would be used to collect a debt.
Section 1692e (10) prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a
consumer.” 15 U.S.C . § 1692e(10).

V iolations of § 1692e(10) usually “include impersonating a public official, falsely representing that unpaid debts will be referred to an attorney, and misrepresent ing the amount of the debt owed

. ” Harvey v. Great Seneca Fin. Corp. , 453 F.3d 324, 331 (6th Cir. 2006)17 (internal citations omitted); see also , e.g. , Crossley v.
Lieberman , 868 F.2d 566, 5 7 1 (3d Cir. 1989) (holding attorney violated § 1692e(10) when he sent a collection letter that falsely represented that a mortgage foreclosure case was already in litigation, that threatened to take action within one week, and that failed to inform debtor of her right to cure). To
state a claim under § 1692e , a false statement “ must be material when viewed through the le ast sophisticated debtor’s eyes[,]”
which means “ it has the potential to affect the decision

- making process of the least sophisticated debto r[.] ” Jensen v. Pressler
& Pressler , 791 F.3d 413, 421 (3d Cir. 2015) (emphasis omitted)

.

Here, nothing in the messages rises to the level of being materially deceptive, misleading, or false

. The plain language of each message reveals that the caller is a debt collector, that
the call is part of an attempt to collect a debt, and that any
information obtain ed will be used in that attempt

. Given those
clear disclosures , e ven the least sophisticated debtor is fai rly on notice that calling the phone number provided in the

message or visit ing the website might result in the debt
collector obtaining information that it could use in trying to
collect the debt. The caller’s purpose is transparent and the

messages are far removed from the false representations that typically have been held to violat e § 1692e(10). T he District
Court thus properly dismissed the claim brought under that
FDCPA subsection

.

III. C ONCLUSION

For the foregoing reasons

, we will vacate the District
Court’s dismissal of the § 1692e(14) claim and remand for further proceedings

. We will affirm , however, the District18 Court’s dismissal of the claims under §§ 1692d(6) and 1692e(10)

.