* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

August 6, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GARRY L. SOLOMON,

Plaintiff-Appellant,

v.

HSBC MORTGAGE CORPORATION

(USA), d/b/a HSBC Bank USA,

as Trustee; BAER & TIMBERLAKE

P.C.; AMERICA’S SERVICING

COMPANY, a/k/a ASC Recovery

Systems,

Defendants-Appellees.

No. 09-6293

(D.C. No. 5:09-CV-00200-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.

Garry L. Solomon appeals the district court’s dismissal of his complaint

as time-barred under the one-year statute of limitations applicable to the

Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. 

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For the reasons that follow, we affirm the judgment of the district court in part

and reverse in part. 

I.

In his initial complaint, filed February 20, 2009, Mr. Solomon alleged that

defendants HSBC Mortgage Corporation (HSBC), America’s Servicing Company

(ASC), and Baer & Timberlake, P.C., were liable to him for their attempts to

collect a debt related to his home mortgage. According to the complaint,

defendants provided him with conflicting information on the amount owed. And

after he requested debt validation information as a step in bringing his account

current, HSBC and ASC, represented by Baer & Timberlake, continued

debt-collection activities by initiating a foreclosure action in state court. In

foreclosure proceedings, defendants supplied him with discrepant reinstatement

figures. Further, Mr. Solomon alleged, defendants delayed resolution of the

matter in order to increase his interest charges and litigation costs. 

Mr. Solomon’s lawsuit asserted entitlement to damages under the FDCPA

and state-law theories of negligence, infliction of emotional distress, unfair trade

practices, fraud, breach of the implied covenant of good faith and fair dealing,

unjust enrichment, and breach of contract. The sole basis for federal jurisdiction

was the FDCPA, which was enacted “to eliminate abusive debt collection

practices, to ensure that debt collectors who abstain from such practices are not

competitively disadvantaged, and to promote consistent state action to protect

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1 In pertinent part, § 1692g(b) provides:

If the consumer notifies the debt collector in writing within the

thirty-day period . . . that the debt, or any portion thereof, is

disputed, . . . the debt collector shall cease collection of the debt, or

any disputed portion thereof, until the debt collector obtains

verification of the debt . . . and a copy of such verification . . . is

(continued...)

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consumers.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA,

130 S. Ct. 1605, 1608 (2010) (citing 15 U.S.C. § 1692(e)). “The Act regulates

interactions between consumer debtors and ‘debt collector[s],’ defined to include

any person who ‘regularly collects . . . debts owed or due or asserted to be owed

or due another.’” Id. (alteration in original) (quoting §§ 1692a(5), (6)). 

Defendants HSBC and ASC moved for dismissal of all claims. With regard

to the FDCPA claim, they alleged that they are not debt collectors under

§ 1692a(6) and therefore not subject to the provisions of the Act. They

characterized themselves as creditors or mortgage servicing companies. See

Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (“The legislative

history of section 1692a(6) indicates conclusively that a debt collector does not

include the consumer’s creditors, a mortgage servicing company, or an assignee

of a debt, as long as the debt was not in default at the time it was assigned.”). In

addition, HSBC and ACS argued that Mr. Solomon’s FDCPA claim was invalid

because he had not sought verification of the debt within thirty days of the

creditors’ notice of arrearage, as required by 15 U.S.C. § 1692g(b).1

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1

(...continued)

mailed to the consumer by the debt collector. Collection activities

and communications that do not otherwise violate this subchapter

may continue during the 30-day period . . . unless the consumer has

notified the debt collector in writing that the debt, or any portion of

the debt, is disputed . . . .

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Focusing on the FDCPA claim, the district court determined that the

complaint failed to allege specific facts establishing HSBC and ACS as debt

collectors with liability under the FDCPA. In addition, it found a lack of clarity

in the allegations concerning Mr. Solomon’s request for verification of the debt. 

The district court dismissed the complaint with leave to amend to cure the

identified defects. 

Mr. Solomon filed an amended complaint asserting the same causes of

action, but elaborating on the underlying factual situation. The amended

complaint featured an allegation that ASC sent him a “letter dated January 21,

2008,” which was “the first notice . . . that he was in default on his account.” 

Aplt. App. at 86. According to the amended filing, ASC “characterized itself as a

bona fide ‘debt collector,’” id. at 87, but its letter violated FDCPA disclosure

requirements, id. at 86-87. The amended complaint also alleged that defendants

continued to violate the FDCPA after January 21, 2008, by providing erroneous

account information, failing to furnish debt validation, continuing collection

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activities during the thirty-day period after his request for debt validation, and

being obstructive in foreclosure discovery proceedings.

The defendant law firm, Baer & Timberlake, P.C., filed a motion to dismiss

the amended complaint. Among other things, it argued that the FDCPA claim was

time-barred under 15 U.S.C. § 1692k(d) because the complaint was filed more

than one year after January 21, 2008, the date Mr. Solomon admittedly received

his first notice of delinquency. In a separate motion, HSBC and ASC continued

to maintain that they do not fall within the FDCPA definition of debt collector.

In response to the dismissal motions, Mr. Solomon specifically asserted

that HSBC and ASC are debt collectors as defined by the FDCPA. His primary

argument, however, was that defendants committed additional violations of the

FDCPA within the statute of limitations.

The district court determined that Mr. Solomon’s FDCPA cause of action

accrued upon the January 21 mailing date of the letter and was therefore

time-barred. Concerning Mr. Solomon’s allegations of FDCPA violations within

the one-year period before he filed his complaint, the district court concluded that

there was no legal support for a “continuing violation” theory. Aplt. App.

at 170-71. Further, Mr. Solomon would not be “permitted to revive this claim

through amendment,” in that his “own allegations . . . set forth the operative

dates, making the bar by the limitations period apparent.” Id. at 171. In the

absence of a valid federal claim, the district court declined to exercise

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supplemental jurisdiction over the state claims. Mr. Solomon appeals the district

court’s order of dismissal.

II.

On appeal, Mr. Solomon changes his approach to the issue of whether ASC

has debt-collector status. He also reasserts his argument that defendants

continued to violate the FDCPA after January 21, 2008. “The legal sufficiency of

a complaint is a question of law, and a Rule 12(b)(6) dismissal is reviewed de

novo. Courts must evaluate whether the complaint contains enough facts to state

a claim to relief that is plausible on its face.” Casanova v. Ulibarri, 595 F.3d

1120, 1124 (10th Cir. 2010) (citations and quotation marks omitted). This court

“accept[s] as true all well-pleaded factual allegations and views these allegations

in the light most favorable to the plaintiff.” Id. (quotation marks and alteration

omitted). Although the statute of limitations is an affirmative defense, it may be

resolved on a Rule 12(b)(6) motion to dismiss “when the dates given in the

complaint make clear that the right sued upon has been extinguished.” Aldrich v.

McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). 

Mr. Solomon’s modified view of ASC’s role is based on the premise that

“[if] ASC is not a debt collector, then its January 21st letter was not within the

purview of the FDCPA and therefore the statute of limitations issue would be

moot.” Reply Br. at 7. Mr. Solomon argues that the district court should have

recognized the parties’ dispute over whether ASC qualified as a debt collector and

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allowed the case to go forward. His argument, however, ignores a well-settled

rule: a court should “restrict itself to looking at the complaint” when considering

a motion to dismiss under Rule 12(b)(6). Casanova, 595 F.3d at 1125. It is error

to consider and treat as true an assertion made in a defendant’s answer. See id.

In ruling on the dismissal motion, the district court correctly confined its analysis

to the face of the amended complaint. 

“‘An action to enforce any liability created by [the FDCPA] may be

brought . . . within one year from the date on which the violation occurs.’” 

Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002) (first alteration in

original) (quoting 15 U.S.C. § 1692k(d)). And the complaint makes it clear that

the statute of limitations bars any FDCPA claim arising from deficiencies in the

January 21, 2008, letter.

Mr. Solomon’s next argument, however, has a more solid basis. He asserts

that the entire amended complaint should not have been dismissed simply because

one allegedly wrongful act occurred outside of the limitation period. The

FDCPA’s comprehensive scheme makes many debt-collecting maneuvers

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2 See 15 U.S.C. § 1692b (governing debt collector’s acquisition of location

information on the debtor); § 1692c (restricting communications with third parties

and debtors); § 1692d (prohibiting harassment, oppression, and abuse); § 1692e

(prohibiting false or misleading representations); § 1692f (prohibiting unfair or

unconscionable means of debt collection); § 1692g (requiring debt collector to

send consumer written notice of debt, along with specified information); § 1692h

(requiring application of payments in accordance with instructions of consumer

owing multiple debts); § 1692j (prohibiting use of deceptive forms).

3 This statement is in accord with the vast majority of federal cases that have

considered the issue. See, e.g., Purnell v. Arrow Fin. Servs., LLC, 303 F. App’x

297, 301-02 (6th Cir. 2008); Brandon v. Fin. Accounts Servs. Team, Inc.,

___ F. Supp. 2d ___, No. 3:09-CV-152, 2010 WL 1223919, at * (E.D. Tenn.

Mar. 24, 2010); Jones v. Baugher, 689 F. Supp. 2d 825, 829-30 (W.D. Va. 2010);

Ortiz v. Accounts Receivable Mgmt., Inc., No. 09-80124-CIV, 2010 WL 547910,

at *2 (S.D. Fla. Feb. 12, 2010); Puglisi v. Debt Recovery Solutions, LLC,

No. 08-CV-5024, 2010 WL 376628, at *3 (E.D.N.Y. Jan. 26, 2010); Ehrich v.

RJM Acquisitions LLC, No. 09 CIV. 2696 (BMC) (RER), 2009 WL 4545179,

at *2 (E.D.N.Y. Dec. 4, 2009); Craig v. Meyers, No. C-1-09-31, 2009 WL

3418685, at *4 (S.D. Ohio Oct. 19, 2009); McCorriston v. L.W.T., Inc.,

536 F. Supp. 2d 1268, 1272 (M.D. Fla. 2008). Any other rule would immunize

debt collectors from later wrongdoing.

The rule should not be confused, however, with a determination that

defendants’ collection activities amounted to a continuing violation, which

generally allows later claims to bring earlier actions within the statute of

limitations. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)

(in an employment discrimination case, contrasting a continuing-violation theory

used to “pull in” a time-barred act with allegations of a “discrete discriminatory

act [that] starts a new clock for filing charges alleging that act”). 

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actionable.2

 Thus, separate communications can create separate causes of action

arising from collection of a single debt. 

For statute-of-limitations purposes, discrete violations of the FDCPA

should be analyzed on an individual basis.3

 Mr. Solomon’s complaint may be

read to allege at least three kinds of violations within the one-year statutory

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period: (1) falsely representing the amount of the debt or compensation for

collection of a debt, see 15 U.S.C. § 1692e(2)(A); (2) generally engaging in false,

deceptive, or misleading practices, see id., § 1692f; and (3) failing to provide debt

validation or to cease collection efforts within thirty days after he disputed the

debt, see § 1692g. On the face of the amended complaint, it is not at all evident

that these claims are barred by the statute of limitations. 

III.

We have not evaluated the merits of Mr. Solomon’s claims or sorted

through allegations of liability as to each defendant. We decide only that the

district court improperly dismissed the entirety of Mr. Solomon’s case based on

statute-of-limitations grounds. We AFFIRM the judgment of the district court

with respect to any claim based on the contents of the January 21, 2008, letter

from ASC. We REVERSE and REMAND for further proceedings concerning the

remaining claims.

Entered for the Court

Stephen H. Anderson

Circuit Judge 

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