09-4984-cv 

Simmons v. Roundup Funding, LLC 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

August Term, 2009 

(Argued: May 11, 2010 Decided: October 5, 2010) 

Docket No. 09-4984-cv 

LAMONT B. SIMMONS, MELISSA R. SIMMONS, 

on behalf of themselves and all others 

similarly situated, 

Plaintiffs-Cross-Defendants 

-Appellants, 

ROUNDUP FUNDING, LLC, 

Defendant-Counter-Claimant 

-Appellee, 

MALEN & ASSOCIATES, P. C., 

Before: JACOBS, Chief Judse, WINTER and 

McLAUGHLIN, Circuit Judses. 

Appeal from a judgment of the United States District 

Court for the Southern District of New York (Sweet, J.), 

* We direct the Clerk of Court to amend the caption as 

noted. 
dismissing on the pleadings a Fair Debt Collection Practices 

Act claim. We hold that a proof of claim filed in 

bankruptcy court cannot form the basis for a claim under the 

Fair Debt Collection Practices Act, and therefore affirm the 

dismissal. We vacate the award of costs and attorneys' fees 

in favor of defendants. 

JOSHUA N. BLEICHMAN, Law Offices 

of Joshua N. Bleichman, Spring 

Valley, NY, for PlaintiffsCross-Defendants-Appellants. 

PAUL WILLIAM MAHLER, Malen & 

Associates, P.C., Westbury, NY, 

for Defendant-Appellee Malen & 

Associates; 

LINH K. TRAN, Seattle, WA, for 

Defendant-Counter-ClaimantAppellee Roundup Funding, LLC. 

DENNIS JACOBS, Chief Judse: 

Lamont and Melissa Simmons ("the Simmons") allege that 

an inflated proof of claim filed by a creditor in their 

bankruptcy proceeding constituted a violation of the Fair 

Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 

m. They appeal from a judgment of the United States 

District Court for the Southern District of New York (Sweet, 

J.), dismissing their complaint on the pleadings. We hold 

that such a proof of claim cannot form the basis for a claim 
under the FDCPA, and therefore we affirm. 

The Simmons sought protection in bankruptcy in October 

2007. In December 2007, Roundup Funding, LLC ("Roundup") 

filed a proof of claim for a debt in the claimed amount of 

$2,039.21. The Simmons filed an objection, and Roundup's 

counsel, Malen & Associates ("Malen") , filed a response 

(which, it is alleged, included no relevant information). 

At a hearing on April 17, 2008, the bankruptcy court reduced 

the Roundup claim to $1,100, the amount the Simmons conceded 

they owed. 

On July 10, 2008, the Simmons brought a putative class 

action against Roundup and Malen, alleging that they had 

violated the FDCPA by misrepresenting the amount of the 

Simmons's debt. An amended complaint reflected the same 

underlying theory. 

Malen and Roundup moved to dismiss under Rule 12(b)(6) 

on the ground that an inflated proof of claim in bankruptcy 

court cannot form the basis for an FDCPA action as a matter 

of law, and also sought costs and attorneysf fees pursuant 

to 15 U.S.C. § 1692k(a)(3). Their motions to dismiss and 
their requests for attorneys' fees and costs were granted by 

the district court, Simmons v. Roundu~ Funding, LLC, No. 08- 

CV-6263, 2009 U.S. Dist. LEXIS 87383 (S.D.N.Y. Sept. 22, 

2009) , and the Simmons's appeal followed.' 

A 

"We review a district court's grant of a motion to 

dismiss under Rule 12 (b) (6) de novo." Vietnam Ass'n for 

Victims of Auent Oranse v. Dow Chem. Co., 517 F.3d 104, 115 

(2d Cir. 2008) (internal quotation marks omitted) . 

"A debt collector may not use any false, deceptive, or 

misleading representation or means in connection with the 

collection of any debt." 15 U.S.C. § 1692e. Among other 

things, the FDCPA bars misrepresentation of "the character, 

amount, or legal status of any debt." Id. § 1692e (2) (A) . 

"Congress acted with the aim of eliminating abusive 

It is unclear from their briefs whether the Simmons 

are appealing the dismissal of their claim as-well as the 

grant of attorneys' fees and costs or just the latter. 

Their lawyer failed to clarify the point when asked to do so 

at oral argument. However, the Simmons's brief at one point 

states that the district court "erred . . . in . . . dismissing the Plaintiff's [sic] case"; so we divine that 

they appeal the dismissal. 
practices in the debt collection industry, and also sought 

to ensure that those debt collectors who refrain from using 

abusive debt collection practices are not competitively 

disadvantaged. These purposes inform the FDCPA's many 

provisions." Jacobson v. Healthcare Fin. Servs., 516 F.3d 

85, 89 (2d Cir. 2008) (internal quotation marks omitted) 

(citing 15 U.S.C. § 1692 (e) ("It is the purpose of this 

subchapter to eliminate abusive debt collection practices by 

debt collectors....")). 

Federal courts have consistently ruled that filing a 

proof of claim in bankruptcy court (even one that is somehow 

invalid) cannot constitute the sort of abusive debt 

collection practice proscribed by the FDCPA, and that such a 

filing therefore cannot serve as the basis for an FDCPA 

action. See, e.q., B-Real, LLC v. Rogers, 405 B.R. 428, 

431-32 (M.D. La. 2009) ("[TI he Bankruptcy Code itself 

contemplates a creditor filing a proof of claim on a 

time-barred debt and the Bankruptcy Court disallowing such 

claim after objection from the debtor. It is difficult for 

this Court to understand how a procedure outlined by the 

Bankruptcy Code could possibly form the basis of a violation 

under the FDCPA."); Middlebrooks v. Interstate Credit 
Control, Inc., 391 B.R. 434, 437 (D. Minn. 2008) (holding 

that an FDCPA action cannot be premised on the filing of a 

proof of claim in bankruptcy court); Gray-Mapp v. Sherman, 

100 F. Supp. 2d 810, 813-14 (N.D. Ill. 1999) (same); Baldwin 

v. McCalla, No. 98-C-4280, 1999 U.S. Dist. LEXIS 6933, at 

*lo-11 (N.D. Ill. Apr. 19, 1999) (same). 

We join these courts. The FDCPA is designed to protect 

defenseless debtors and to give them remedies against abuse 

by creditors. There is no need to protect debtors who are 

already under the protection of the bankruptcy court, and 

there is no need to supplement the remedies afforded by 

bankruptcy itself. 

B 

"The FDCPA . . . was designed to protect against the 

abusive debt collection practices likely to disrupt a 

debtor's life." Mace v. Van Ru Credit Corp., 109 F.3d 338, 

343 (7th Cir. 1997). "Debtors in bankruptcy proceedings do 

not need protection from abusive collection methods that are 

covered under the FDCPA because the claims process is highly 

regulated and court controlled. While the FDCPA's purpose 

is to protect unsophisticated consumers from unscrupulous 
debt collectors, that purpose is not implicated when a 

debtor is instead protected by the court system and its 

officers." B-Real, 405 B.R. at 432 (footnote 

omitted) (internal quotation marks omitted). Thus debtors 

are protected in bankruptcy proceedings--and by discharge 

afterward. 

Bankruptcy provides remedies for wrongfully filed 

proofs of claim. "It is beyond cavil that past bankruptcy 

practice, as well as explicit Bankruptcy Code provisions, 

have left the remedy for fraudulent and otherwise defective 

proofs of claim to the Bankruptcy Code." Baldwin, 1999 U.S. 

Dist. LEXIS 6933, at *14 (referencing 11 U.S.C. §§ 105, 

1330); see also Walls v. Wells Fargo Bank, N.A., 276 F.3d 

502, 510 (9th Cir. 2002) ("Nothing in either [the Bankruptcy 

Code or the FDCPA] persuades us that Congress intended to 

allow debtors to bypass the Code's remedial scheme when it 

enacted the FDCPA. While the FDCPA's purpose is to avoid 

bankruptcy, if bankruptcy nevertheless occurs, the debtor's 

protection and remedy remain under the Bankruptcy Code."). 

These remedies include revocation of fraudulent proofs of 
claim and the court's contempt power. See Baldwin, 1999 

U.S. Dist. LEXIS 6933, at *14. Without seeking these 

remedies, the Simmons filed suit under the FDCPA. "Nothing 

in either the Bankruptcy Code or the FDCPA suggests that a 

debtor should be permitted to bypass the procedural 

safeguards in the Code in favor of asserting potentially 

more lucrative claims under the FDCPA. And nothing in the 

FDCPA suggests that it is intended as an overlay to the 

protections already in place in the bankruptcy proceedings." 

Grav-Mapp, 100 F. Supp. 2d at 814. 

As the district court held, the filing a proof of claim 

in bankruptcy court cannot form the basis for an FDCPA 

claim. 2 

I11 

"On'a finding by the court that an action under this 

Some courts have ruled more broadly that no FDCPA 

action can be based on an act that violates any provision of 

the Bankruptcy Code, because such violations a;e- dealt with 

exclusively by the Bankruptcy Code. See, e.~., Walls v. 

Wells Fargo Bank, N.A., 276 F.3d 502, 510 (9th Cir. 2002) ; 

Diamante v. Solomon & Solomon, P.C., 1:99-CV-1339, 2001 U.S. 

Dist. LEXIS 14818, at *18 (N.D.N.Y. Sept. 18, 2001); Kibler 

v. WFS Fin., CV-00-5217, 2000 U.S. Dist. LEXIS 19131, at *33 

(C.D. Cal. Sept. 12, 2000). This broader rule has not been 

universally accepted, see Randol~h v. IMBS, Inc., 368 F. 3d 

726, 732-33 (7th Cir. 2004), and we are not compelled to 

consider it in this case. 
section was brought in bad faith and for the purpose of 

harassment, the court may award to the defendant attorney's 

fees reasonable in relation to the work expended and costs." 

15 U.S.C. § 1692k(a) (3). "[Wle review for abuse of 

discretion a district court's decision to award attorneys' 

fees to a defendant pursuant to the FDCPA." Jacobson, 516 

F.3d at 96. The district court granted motions by Roundup 

and Malen for costs and attorneys' fees related to the 

motions to dismiss. The finding that this action was 

brought "in bad faith and for the purpose of harassment," 

see 15 U.S.C. § 1692k(a)(3), seems to have been premised 

upon the conclusion that this action was meritless and 

properly dismissed on the pleadings. While we agree with 

the district court's ruling on the merits of the claim, see 

supra Part 11, the merits turned on a question of law that 

was, until this opinion, undecided in this Circuit. The 

assertion of the claim did not by itself prove bad faith. 

Accordingly, we vacate the judgment insofar as it grants 

Malen and Roundup attorneys' fees and costs related to the 

motions to dismiss. 

Notwithstanding our vacatur, we cannot disagree with 

the district court's characterization that the Simmons were 
1 "careless" in their pursuit of this action below, Simmons, 

2 2009 U.S. Dist. LEXIS 87383, at *2, and continue to be so 

3 here. Therefore, we grant reasonable costs of this appeal 

4 in favor of Malen and Roundup. 

5 

6 * * * 

7 For the foregoing reasons, we affirm the district 

8 court's dismissal of the Simmons's claim, vacate the grant 

9 of attorneys' fees and costs related to the motions to 

10 dismiss, and grant Malen and Roundup reasonable costs of 

11 this appeal.