18

‐ 3637

‐ cv

Avila v. Reliant Capital Solutions, LLC

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE

(WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 4 th day of June, two thousand nineteen. 3

4

PRESENT: GUIDO CALABRESI, 5

RAYMOND J. LOHIER, JR., 6

Circuit Judges

, 7

ANN M. DONNELLY,  8

District Judge

. 9

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐ 10

ANNMARIE AVILA, individually 11

and on behalf of all others similarly 12

situated, 13

14

Plaintiff

‐ Appellant

, 15

16

v. No. 18

‐ 3637

‐ cv 17

18

RELIANT CAPITAL SOLUTIONS, LLC, an Ohio 19

Limited Liability Company, 20

 Judge Ann M. Donnelly, of the United States District Court for the Eastern District of

New York, sitting by designation.2 1

Defendant

‐ Appellee

, 2

3

JOHN AND JANE DOES, 1–10, 4

5

Defendants

. 6

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 7

FOR PLAINTIFF

‐ APPELLANT: P HILIP D. S TERN (Andrew T. 8

Thomasson, Francis Greene, on 9

the brief ), Stern Thomasson 10

LLP, Springfield, NJ. 11

12

FOR DEFENDANT

‐ APPELLEE: M ANUEL H. N EWBURGER

, 13

Barron & Newburger, P.C., 14

Austin, TX (Arthur Sanders, 15

Barron & Newburger, P.C., 16

New City, NY, Chad V. Echols, 17

David A. Grassi, Jr., The 18

Echols Firm, LLC, Rock Hill, 19

SC, on the brief ). 20

21

Appeal from a judgment of the United States District Court for the Eastern 22

District of New York (Arthur D. Spatt, Judge ). 23

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 24

AND DECREED that the judgment of the District Court is AFFIRMED. 25

Plaintiff Annmarie Avila appeals from a judgment of the District Court 26

(Spatt, J.) dismissing her complaint. Avila sued Reliant Capital Solutions, LLC, 27

claiming that Reliant’s debt collection practices violated the Fair Debt Collection 283 Practices Act, 15 U.S.C. § 1692, et seq. Avila alleged that Reliant sent her a debt 1

collection letter falsely stating that it was possible for the debt on her defaulted 2

loan to increase due to “late charges and other charges” when, she claimed, such 3

charges were in fact not possible. We assume the parties’ familiarity with the 4

underlying facts and the record of prior proceedings, to which we refer only as 5

necessary to explain our decision to affirm. 6

In Avila v. Riexinger & Associates, LLC (Avila I), we adopted safe

‐ harbor 7

language to “satisfy a debt collector’s duty to state the amount of debt in cases 8

where the amount varies from day to day.” 817 F.3d 72, 77 (2d Cir. 2016). 9

Reliant included that language in its letter to Avila. Avila now urges us to 10

follow the Seventh Circuit’s recent holding that such language will not offer safe 11

harbor if it falsely suggests an outcome that cannot come to pass. Boucher v. 12

Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366–71 (7th Cir. 2018). At oral 13

argument, however, counsel for Avila conceded that late charges could be 14

imposed on Avila’s debt were it reinstated from default and acceleration status. 15

In that case, other charges such as collection charges would also be possible. 16

See 34 C.F.R. § 682.202(f). This case is therefore unlike Boucher, where the 174 defendant conceded that late charges and other charges were impossible. 1

Boucher, 880 F.3d at 367. Because Reliant’s letter was not inaccurate in stating 2

that “late charges and other charges” were possible, we affirm the District 3

Court’s dismissal of Avila’s complaint. See Avila I, 817 F.3d at 77. 4

We have considered Avila’s remaining arguments and conclude that they 5

are without merit. For the foregoing reasons, the judgment of the District Court 6

is AFFIRMED. 7

FOR THE COURT: 8

Catherine O = Hagan Wolfe, Clerk of Court 9