In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3184

GEANIECE D. CARTER,

Plaintiff-Appellant,

v.

AMC, LLC,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 C 7181—Robert W. Gettleman, Judge.

SUBMITTED MARCH 23, 2011—DECIDED MAY 13, 2011

Before EASTERBROOK, Chief Judge, and KANNE and

SYKES, Circuit Judges.

EASTERBROOK, Chief Judge. Geaniece Carter rented an

apartment at Riverstone Apartments in Bolingbrook,

Illinois. AMC, LLC, managed the building on behalf of

its owner, Jackson Square Properties. AMC filed suit in

state court to have Carter evicted. (AMC’s name at the

time was American Management Consultants, LLC; we

use its current name in this opinion.) The trial court
2 No. 10-3184

entered an eviction order but the appellate court

reversed, holding that AMC had not given a notice required by state law. American Management Consultants,

LLC v. Carter, 392 Ill. App. 3d 39, 915 N.E.2d 411 (2009)

(relying on 735 ILCS 5/9-211). One judge concluded that

AMC also had violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692–1692p. See 392 Ill. App. 3d at

48–52, 915 N.E.2d at 420–24 (McDade, J.). The other members of the panel did not join that portion of the opinion. 392 Ill. App. 3d at 65–66, 915 N.E.2d at 434 (Wright

& Schmidt, JJ., concurring specially).

Having prevailed in state court, Carter filed this

federal suit seeking damages for the violation of the

FDCPA that Justice McDade believed had occurred.

Carter contends that AMC violated the Act in two ways:

by telling a credit bureau that she owed rent without informing it that she disputed that position, see 15 U.S.C.

§1692e(8), and by misrepresenting the status of the debt

during the state litigation, see §1692e(2)(A). Cf. Thomas

v. Simpson & Cybak, 392 F.3d 914 (7th Cir. 2004) (en banc)

(holding that the Act applies to some documents filed

in state court, though the conclusion of Thomas that

lawyers must send a verification notice before or with

a complaint was undone by an amendment in 2006; see

15 U.S.C. §1692g(d)).

AMC might have replied that the state court was

the right forum for Carter’s contentions. But it did not

contend that a claim under the FDCPA was a compulsory counterclaim in the state case or that principles of

claim preclusion (res judicata) otherwise block a federal
No. 10-3184 3

suit. Preclusion is an affirmative defense that debt collectors forfeit by failing to invoke it in the district court.

See Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480

F.3d 470, 472 (7th Cir. 2007). (Carter does not want to

upset the state judgment, for she prevailed in state

court; our suit therefore does not present any issue

under the Rooker–Feldman doctrine, which a federal court

must raise on its own because it curtails subjectmatter jurisdiction. See Kelley v. Med-1 Solutions, LLC,

548 F.3d 600 (7th Cir. 2008); Epps v. Creditnet, Inc., 320

F.3d 756 (7th Cir. 2003).)

For her part, Carter does invoke preclusion: She contends that the state court resolved the FDCPA claim in

her favor, and that the federal court’s only role is to

supply the remedy. That isn’t so. The opinion of one

member of a three-judge panel does not resolve any

issue; it takes a majority to make an authoritative ruling. And even if another member of the panel had joined

this part of Justice McDade’s opinion, it would not be

conclusive. The doctrine of issue preclusion (collateral

estoppel) applies only when an issue is actually

and necessarily decided in the earlier suit. Restatement

(Second) of Judgments §27 (1982); In re A.W., 231 Ill. 2d 92,

99, 896 N.E.2d 316, 321 (2008). Justice McDade stated

that her view about the FDCPA was not necessary to the

court’s decision—and the other members of the panel

agreed with that assessment when they concurred without expressing an opinion on the topic.

The federal district judge assumed that AMC owns

Riverstone Apartments and thus is Carter’s lessor and
4 No. 10-3184

creditor. Justice McDade, who made the same assumption, concluded that lessors are “debt collectors” covered

by the FDCPA. The district judge disagreed, observing

that a “debt collector” is someone who regularly collects,

or attempts to collect, “debts owed or due or asserted to

be owed or due another.” 15 U.S.C. §1692a(6) (emphasis

added). An entity that tries to collect money owed to

itself is outside the FDCPA. This led the district judge

to dismiss Carter’s complaint. 2010 U.S. Dist. LEXIS 91729

(N.D. Ill. Sept. 2, 2010).

There’s nothing wrong with the district court’s legal

analysis, but its factual assumption is incorrect. AMC

does not own Riverstone Apartments and is not Carter’s

landlord. The lease, which is in the record, is explicit:

Jackson Square Properties, a California corporation, owns

the building and is Carter’s creditor; AMC is Jackson

Square’s agent. AMC described itself as an agent in the

state-court papers. Why Justice McDade treated it as

the owner is mysterious. Why Judge Gettleman did

so is easier to understand. Carter named “American

Management Consultants LLC/Riverstone Apartments”

as the defendant and relied on Justice McDade’s opinion. AMC’s lawyer did not disabuse Judge Gettleman of

the mistake that the complaint shared with Justice

McDade. And in this court, counsel filed a corporate

disclosure statement naming “AMC, LLC/Riverstone

Apartments” as his client. There is no such entity. Riverstone Apartments is a building, and perhaps a trade

name too, but it is not a person or organization. It is no

more possible to sue “Riverstone Apartments” than it

would be to sue the Mississippi River. See Schiavone v.

Fortune, 477 U.S. 21 (1986).
No. 10-3184 5

We know from the lease that AMC is the lessor’s agent

rather than the building’s owner. This sets up an argument for Carter, because AMC is not her creditor and

thus potentially is a debt collector, as §1692a(6) defines

that term. We say “potentially” because not all agents

are debt collectors. The Act excludes not only the

original creditor but also any person who tries to collect

a debt that “was not in default at the time it was obtained by such person.” 15 U.S.C. §1692a(6)(F)(iii). If a

management firm “obtains” a debt, it does so when the

lease begins, which necessarily precedes default, or when

the agency relation begins (if that happens after a

given apartment has been let). The harder question is

whether an agent “obtains” the debt at all, or that word

instead denotes only ownership. See Ruth v. Triumph

Partnerships, 577 F.3d 790, 796–97 (7th Cir. 2009); McKinney

v. Cadleway Properties, Inc., 548 F.3d 496, 500–01 (7th

Cir. 2008); Schlosser v. Fairbanks Capital Corp., 323 F.3d

534, 536–37 (7th Cir. 2003); Whitaker v. Ameritech Corp., 129

F.3d 952, 958–59 (7th Cir. 1997).

At least four courts of appeals, including ours, have

concluded that a servicing agent for a mortgage loan

“obtains” the debt even though the bank owns the note.

See Bailey v. Security National Servicing Corp., 154 F.3d 384,

387–88 (7th Cir. 1998); Alibrandi v. Financial Outsourcing

Services, Inc., 333 F.3d 82, 84–85 (2d Cir. 2003); Wadlington

v. Credit Acceptance Corp., 76 F.3d 103, 107 (6th Cir. 1996);

Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.

1985). Apparently the question whether this is also true

of the servicing agent for a lessor has never arisen in a

court of appeals—at least, has not led to a precedential
6 No. 10-3184

decision. But it has come up frequently in district

courts, which have concluded uniformly that a servicing

agent “obtains” the debt when the lease is signed.

Reynolds v. Gables Residential Services, Inc., 428 F. Supp. 2d

1260, 1264 (M.D. Fla. 2006); Williams v. Edelman, 408

F. Supp. 2d 1261, 1265–66 (S.D. Fla. 2005); Kvassay v. Hasty,

236 F. Supp. 2d 1240, 1269–70 (D. Kan. 2002); Alexander v.

Omega Management, Inc., 67 F. Supp. 2d 1052, 1055–56

(D. Minn. 1999); Franceschi v. Mautner-Glick Corp., 22

F. Supp. 2d 250, 253–54 (S.D.N.Y. 1998); Azar v. Hayter,

874 F. Supp. 1314, 1319 (N.D. Fla. 1995), affirmed

without opinion, 66 F.3d 342 (11th Cir. 1995).

The Federal Trade Commission holds some interpretive and enforcement authority with respect to the

FDCPA. See 15 U.S.C. §§ 1692k(e), 1692l, 1692o. It has

not issued regulations or advisory opinions on this

subject or commenced an administrative adjudication.

But the staff of its Division of Credit Practices has concluded that the managing and servicing agent for a

lessor or condominium association “obtains” the debt

when it becomes the creditor’s agent, and thus is not a

“debt collector” unless a given debt was in arrears

when the agent assumed that role. See the letters of

August 31, 1992, and November 6, 1995, available at

http://www.ftc.gov/os/statutes/fdcpa/letters/sheehan.htm

and http://www.ftc.gov/os/statutes/fdcpa/letters/goodacre.

htm. These letters don’t receive Chevron deference, see

United States v. Mead Corp., 533 U.S. 218 (2001), but they

are entitled to respectful consideration and show that

the district judges and the responsible agency are in

agreement.
No. 10-3184 7

We conclude that, although one usually “obtains” a debt

by purchasing it, this is not the only way to do so. A

servicing agent “obtains” a debt in the sense that it acquires the authority to collect the money on behalf of

another. Cf. Sprint Communications Co. v. APCC Services,

Inc., 554 U.S. 269 (2008) (discussing assignments for

collection); CWCapital Asset Management, LLC v. Chicago

Properties, LLC, 610 F.3d 497 (7th Cir. 2010) (discussing

servicers of mortgage pools). It follows that AMC “obtained” an interest in Carter’s debt to Jackson Square

Properties when AMC became Jackson Square’s agent—

which occurred before Carter got behind in her rent (if,

indeed, that ever occurred, a question that the state’s

court of appeals did not reach). Section 1692a(6)(F)(iii)

thus tells us that AMC is not a debt collector and does

not owe Carter any duties under the FDCPA. (Justice

McDade reached a contrary conclusion without mentioning §1692a(6) or the FTC’s opinion letters; her

opinion accordingly lacks the power to persuade.)

Carter’s brief contends that AMC’s attorneys violated

the Act even if AMC itself is not covered by the statute.

Attorneys can be debt collectors, see Heintz v. Jenkins,

514 U.S. 291 (1995), but none is a party to this suit, so

this possibility need not be discussed further.

AFFIRMED

5-13-11