1 28 U.S.C. § 3001 et seq.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10912

SOBRANES RECOVERY POOL I, LLC, a Delaware Limited Liability

Company, as successor-in-interest to FEDERAL DEPOSIT INSURANCE

CORPORATION, as Manager of FSLIC Resolution Fund in its Corporate

Capacity

Plaintiff-Appellant

v.

TODD & HUGHES CONSTRUCTION CORP.; 

J. RANDALL HUGHES

Defendants-Appellees

Appeal from the United States District Court 

for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Sobranes Recovery Pool I, LLC (Sobranes), as private-party assignee of the

Federal Deposit Insurance Company (FDIC), sought to execute on a judgment

entered against Todd & Hughes Construction Company (THCC) and J. Randall

Hughes (collectively, Defendants) in favor of the FDIC under the Federal Debt

Collection Procedures Act(FDCPA).1 The district court held that Sobranes could

not invoke the FDCPA. We affirm, although on grounds different from those

relied on by the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

November 28, 2007

Charles R. Fulbruge III

Clerk
No. 06-10912

2 SeeFinancial Institutions Reform, Recovery, andEnforcement Act of 1989, Pub. L. No.

101-73, 103 Stat. 183.

2

I

In June 1984, THCC executed an “All Inclusive Deed of Trust Note” (the

Note) in favor of Western Savings Association for $10.3 million. The Note

matured on June 8, 1985. In June 1985, THCC executed an “Extension of Real

Estate Note and Lien,” renewing the Note and extending the maturity date to

July 31, 1985. When THCC renewed the Note, Hughes, Gordon Todd, and

Thomas Todd each guaranteed the Note. In July 1985, THCC, Western Savings

Association, and BBC Olympic agreed to an “Assumption and Consent

Agreement and Modification of Real Estate Note and Lien,” under which BBC

Olympic assumed without recourse the Note and obligations of THCC. The

assumption note was to mature on June 1, 1987. 

However, in September 1986, Western Savings Association was placed into

receivership and its assets – including the notes and guarantees involved here

– were transferred by the Federal Savings and Loan Insurance Corporation

(FSLIC) to Western Federal Savings and Loan Association (Western Federal).

Then, in August 1988, Western Federal was placed into receivership, and its

assets – again including the notes and guarantees involved here – were

transferred to Sunbelt Savings,FSB, by theFSLIC. Sunbelt Savings transferred

the notes and guarantees back to the FSLIC in December 1988. THCC and the

guarantors defaulted on their obligations under the notes and guarantees.

In August 1989, Congress abolished the FSLIC and appointed the FDIC

as Manager of the FSLIC Resolution Fund.2 The FDIC thus came into

possession of the notes and guarantees, and in August 1991, the FDIC brought

suit against THCC, T. Todd, G. Todd, and Hughes to recover on the note and

guarantees. The FDIC filed an amended complaint in March 1992, adding Todd

& Todd Development Company as a defendant and asserting additional claims
No. 06-10912

3

In this appeal, Sobranes has made no mention of the note and guarantee agreements

that led the FDIC to amend its complaint in March 1992. To the extent Sobranes has any

separate arguments regarding the later note and guarantee agreements, Sobranes abandoned

those arguments. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant

abandons all issues not raised and argued in its initial brief on appeal. . . . A party who

inadequately briefs an issue is considered to have abandoned the claim.”).

4 Hughes and his wife executed the partition agreement in July 1988. The partition

agreement implicated the ownership of the successor companies to THCC.

3

against T. Todd, G. Todd, and Hughes, in order to recover on another promissory

note and guarantee agreements.3 The district court entered judgment in favor

of the FDIC in October 1992, and an abstract of judgment was filed in January

1993. 

The FDIC did not execute on the judgment itself, but rather assigned the

judgment to RecoverEdge, LP. RecoverEdge then assigned the judgment to

Lawyers’ Recovery & Litigation Services, Inc. On October 28, 2004, Lawyers’

Recovery assigned the judgment to Sobranes; the district court received notice

ofthe assignment on January 31, 2005. During the series of assignments, a writ

of execution issued in April 2003.

On July 1, 2005, Sobranes, turning to enforcement of the judgment, filed

a motion requesting declaratory judgment, appointment of a receiver, or an

accounting. Sobranes sought a declaration that assets held by Hughes’ wife,

Melanie Hughes, pursuant to an agreement “Partitioning Community

Property,”4 were subject to execution to satisfy the judgment. It also sought to

have the successor entities to THCC placed in receivership, and in the

alternative requested an accounting of assets held by Hughes, his wife, and the

successor entities. Mrs. Hughes and the successor entities were not parties to

the FDIC’s judgment.

Mrs. Hughes and the successor companies argued, inter alia, that even

though a writ of execution issued in April 2003, it came too late as Texas law

required the writ to issue within ten years from entry of judgment to prevent it
No. 06-10912

4

from going dormant, and that Sobranes could not invoke the FDCPA to evade

the state time-bar. Sobranes countered that execution of the judgment in the

hands of the FDIC would face no limitations period under the FDCPA, and as

the FDIC’s assignee, it should have the same benefit. The district court referred

the requests to a magistrate judge. 

The magistrate recommended denying Sobranes’ motion, concluding that

the judgmentis not a “debt” under the FDCPA because the underlying notes and

guarantees were between private parties; that under Federal Rule of Civil

Procedure 69(a), state law governed the time limits on execution, and execution

was time-barred under Texas law because no writ of execution issued within ten

years of the entry of judgment and there were no grounds for revival. 

The district court agreed with the recommended denial of relief, but on

different grounds. The court explained that “Sobranes has not identified (and

the court has not located) any instance where a private party such as Sobranes,

as assignee or otherwise, has been held to be entitled to recover judgment on a

debt, or otherwise to assert rights or benefits under the FDCPA.” Rather, the

court concluded that the case law indicated that the United States was the

“proper party to invoke the benefits of the FDCPA.” The court thus “adopt[ed]

the magistrate judge’s recommendation to deny Sobranes’ motion . . . on the

limited ground that Sobranes has failed to demonstrate that it is a proper party

to invoke FDCPA and that it therefore cannot rely on the FDCPA to establish

that the judgment is not dormant under Texas law.” Sobranes appeals.

II

Before turning to the merits, we address three preliminary issues.

A

Although neither party questions our jurisdiction, we have an independent

duty to consider it, and given the unusual procedural history of this case, we
No. 06-10912

5 See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).

6 McLaughlin v. Miss. Power Co., 376 F.3d 344, 350 (5th Cir. 2004) (quoting Catlin v.

United States, 324 U.S. 229, 233 (1945)) (internal quotations omitted). 

7 See Goodman v. Harris County, 443 F.3d 464, 468 (5th Cir. 2006) (listing the collateral

source doctrine’s elements).

5

pause on the issue.5 28 U.S.C. § 1291 gives this court jurisdiction to review

“final decisions” of the district courts. “A final decision generally is one which

ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.”6

Sobranes’ brief and reply brief are in great – if not complete – tension over

whether the district court’s order is a final decision. In its statement of

jurisdiction, Sobranes writes, “The parties in the underlying post-judgment

proceeding agreed, and the trial court agreed, that ‘the judgment is dormant if

Texas law applies, and it is not dormant if the FDCPA controls.’” Thus,

Sobranes explains, because the judgment is dormant under Texas law, the

district court’s ruling that the FDCPA is inapplicable is dispositive. In its reply

brief, Sobranes comes about face, arguing that the issue of dormancy was never

decided below, the issue of dormancy is not before this court, and this court

should remand on the issue. But if this be so, then this court is without

jurisdiction because the district court never reached the dispositive issue

remaining in the case. Rather, the district court only made an antecedent ruling

on the applicable law, and the applicability of the FDCPA is not “effectively

unreviewable on appeal from a final judgment.”7

A close reading of the district court’s ruling, the magistrate’s

recommendation and report, and the parties’ filings persuade us thatthe district

court did rule that the judgment is dormant under Texas law.

In recommending that Sobranes’ motion be denied, the magistrate

specifically considered whether the judgment is dormant, concluding that it is.
No. 06-10912

8 Comacho v. Tex. Workforce Comm’n, 408 F.3d 229, 234 (5th Cir. 2005). There is,

arguably, some question of whether our review is for abuse of discretion. We have previously

noted that under both 28 U.S.C. § 2201 and § 2202, the statutory provisions providing for

declaratory relief and motions for further relief, the district court “may” grant relief, therefore

limiting our review to abuse of discretion. See United Teacher Assocs. Ins. Co. v. Union Labor

Life Ins. Co., 414 F.3d 558, 569 (5th Cir. 2005). However, we have also recognized that, when

“the denial of a motion for further relief under 28 U.S.C. § 2202 is based on a question of law,

it is reviewed de novo.” Id.; see also United Nat. Ins. Co. v. SST Fitness Corp., 309 F.3d 914,

916 (6th Cir. 2002) (same); Unocal Corp. v. United States, 222 F.3d 528, 544 (9th Cir. 2000)

(“Because the district court’s failure to issue a declaratory judgment turned on a question of

statutory interpretation, this court reviews it de novo.”). We have also recognized that de novo

review of a district court’s dismissal of a declaratory judgment action is appropriate when the

court’s ruling was based on ripeness, a question of law. See, e.g., Venator Group Specialty Inc.

6

Thus,the magistrate’s decision squarely placed the issue before the district court

– and Sobranes’ objections to the magistrate’s decision explicitly made the

argument that the judgment is not dormant because of the FDCPA. 

Before analyzing the applicability ofthe FDCPA,the district court framed

the issue before it as “Sobranes’ objection to the magistrate judge’s conclusion

that the judgment is dormant,” and noted that “the parties also agree that the

judgment is dormant if Texas law applies.” The district court adopted the

magistrate’s recommendation, concluding that“[Sobranes]therefore cannot rely

on the FDCPA to establish that the judgment is not dormant under Texas law.”

The district court specifically limited its departure from the magistrate’s

recommendation to the FDCPA analysis, leaving untouched the magistrate’s

analysis ofthe dormancy issue. It is not surprising that the district court did not

include a detailed analysis of whether the judgmentis dormant under Texas law

as the parties conceded that it is, a concession Sobranes again makes in its

statement of jurisdiction in its opening brief.

As the district court in substance held that Sobranes is time-barred from

executing on the judgment, its order is a final decision, and we have jurisdiction.

B

The central question is whether Sobranes is entitled to invoke theFDCPA.

As this is a question of statutory interpretation, our review is de novo.8
No. 06-10912

v. Matthew/Muniot Family, LLC, 322 F.3d 835, 838 (5th Cir. 2003). Similarly, in Cole v. City

of Dallas, 314 F.3d 730, 731-32 (5th Cir. 2002) (per curiam), we considered a district court’s

denial of a preliminary injunction. Explaining that normally we would apply abuse of

discretion review in such cases, we held that de novo review applied because “the specific issue

relevant to this inquiry is the district court’s conclusion of law related to Cole’s declaratory

judgment request.” Thus, because the only question is one of statutory interpretation, de novo

review is appropriate.

9 Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).

10 H. R. Rep. No. 101-736, at 24 (1990), as reprinted in 1990 U.S.C.C.A.N. 6630, 6631.

11 Id.

12 28 U.S.C. § 3001(a)(1).

7

C

Sobranes argues that resolving the issue of whether the judgmentis a debt

within the meaning of the FDCPA would not properly dispose of this appeal

because the district court did not address it. It is an elementary proposition, and

the supporting cases too numerous to cite, that this court may “affirm the

district court’s judgment on any grounds supported by the record”9 – which we

elect to do.

III

Congress passed the FDCPA “to create a comprehensive statutory

framework for the collection of debts owed to the United States government.”10

Congress soughtto alleviate the burden on the federal government of navigating

the different collection schemes in each state and “lessen[] the effect of

delinquent debts on the massive federal budget deficit now undermining the

economic well-being of the Nation.”11

Important as these concerns are, Congress did not create a statutory

scheme without limit, but rather cabined the types of obligations – in the

parlance of the statute, “debts” – that trigger the FDCPA. The statute “provides

the exclusive civil procedures for the United States to recover a judgment on a

debt.”12 The statute is specific in that it applies only to debts, as § 3001(c) makes
No. 06-10912

13 Id. § 3002(3).

8

clear: “This chapter shall not apply with respect to an amount owing that is not

a debt or to a claim for an amount owing that is not a debt.” The statute defines

a debt as 

(A) an amount that is owing to the United States on account of a

direct loan, or loan insured or guaranteed, by the United States; or

(B) an amountthatis owing to the United States on account of a fee,

duty, lease, rent, service, sale of real or personal property,

overpayment, fine, assessment, penalty, restitution, damages,

interest, tax, bail bond forfeiture, reimbursement, recovery of a cost

incurred by the United States, or other source of indebtedness to the

United States, but that is not owing under the terms of a contract

originally entered into by only persons other than the United States

. . . .

13

Defendants argue that the judgment is not an FDCPA debt. They explain that

the underlying notes were agreements between private parties that the FDIC

acquired only through the failure of a private savings and loan institution.

Neither the acquisition of the notes by the FDIC nor the FDIC’s obtaining a

judgment on the notes, they continue, created FDCPA debts.

Sobranes’ briefs did not address the merits of the issue. During oral

argument, Sobranes’ counsel conceded that subpart (B) was not applicable, but

urged that the judgment is a debt within the meaning of subpart (A). However,

in its objections to the magistrate’s recommendations, Sobranes argued that the

judgment is a debt under subpart (B). As Sobranes explained in its objections

brief,

The text of the FDCPA is clear and unambiguous, a “debt” is an

“amount owing the United States on account of . . . fine, assessment,

penalty, restitution, damages, interest . . . or other source of

indebtedness to the United States.” As found by the [Fifth] Circuit,

a judgment entered in the name of the United States is an amount

owing the United States, and therefore is a “debt” subject to the

provisions of the FDCPA. . . . As a judgment entered in the name of

the FDIC is only owed by the judgment debtor to the FDIC . . . a
No. 06-10912

14 Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 391 (5th Cir. 2002).

15 See Inhabitants of Montclair Twp. v. Ramsdell., 107 U.S. 147, 152 (1883) (“It is the

duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if

it may be, any construction which implies that the legislature was ignorant of the meaning of

the language it employed.”).

16 See, e.g., United States v. Alphagraphics Franchising, Inc., 973 F.2d 429, 431 (5th

Cir. 1992) (per curiam) (allowing the SBA to utilize the surcharge provisions of the FDCPA

where the SBA initially guaranteed the loan, which was between private parties). 

9

judgment entered in the name of the FDIC is an “amount owing to

the United States” and is therefore a “debt” . . . .

To be clear, we address the definition of debt under both subparts (A) and (B).

The starting point of our analysis is, as always, the text of the statute

itself.14 We begin with an observation regarding the phrase “an amount that is

owing to the United States on account of,” a phrase which appears in both

subparts. The phrase is not a freestanding definition of what constitutes a debt.

If the phrase were, then there would be neither a need for a two part definition

nor any of the other language that appears in either subpart. We cannot

interpret a statute in such a way as to render significant portions of it a nullity.15

Rather, the amounts owing to the United States that are qualifying debts are

defined by reference to the language following the phrase as indicated by the

qualifying language “on account of.” 

Subpart (A) contemplates two separate types of “amounts owing to the

United States”: those that result from direct loans by the United States and

those that result from loans insured or guaranteed by the United States. The

former is not implicated here as the government did not make any loans.

Nor is the latter applicable. The phrase “insured or guaranteed” by the

United States indicates that the types of loans covered are those where the

federal government has agreed to cover a lender’s losses in the event the debtor

defaults.16 This common sense reading is supported by the definitions of “insure”

and “guarantee”: Black’s Law Dictionary defines, in relevant part, “insure” as
No. 06-10912

17 The full definition of insure is “1. To secure, by payment of a premium, the payment

of a sum of money in the event of a loss. 2. To issue or procure an insurance policy on or for”;

and guarantee is “1. The assurance that a contract or legal act will be duly carried out. 2.

GUARANTY. 3. Something given or existing as a security, such as to fulfill a future

engagement or a condition subsequent. 4. One to whom a guarantee is made.” Black’s Law

Dictionary 811, 711 (7th ed. 1999).

10

“[t]o secure . . . the payment of a sum of money in the event of a loss,” and

“guarantee” as an “assurance that a contract or legal act will be duly carried

out.”17 Sobranes points to no evidence, nor have we found any, that the

government insured or guaranteed the underlying loan to THCC, that this was

anything but a private loan by a private institution. And, of course, the

judgment entered against Defendants is not a loan at all – insured or otherwise.

Sobranes has argued that because Western Savings Association was a

federally insured institution, the note fell within the ambit of loans insured or

guaranteed by the United States. This, however, misreads the definition. The

definition does not focus on whether the lending institution itself is federally

insured, but rather focuses on whether the United States has insured or

guaranteed the loan. Nor does it matter, as Sobranes has suggested, that the

FDIC took possession ofthe note through receivership. As the holder of the note,

this meant that the FDIC might bear the loss if the debtor defaulted, but it does

not mean thattheFDIC began to “insure or guarantee”the note;the government

did not alter the terms of note and guarantee to pay anyone for losses suffered

in the event the debtor defaulted. 

Nor can Sobranes find succor under subpart(B) ofthe definition. The bulk

of subpart (B) is written in broad language, capturing numerous forms of debt;

indeed, the definition contains a final, catch-all provision for “other source of

indebtedness to the United States.” However, the final clause of the subpart

contains important limiting language: “but that is not owing under the terms of

a contract originally entered into by only persons other than the United States.”
No. 06-10912

18 Barnhart v. Thomas, 540 U.S. 20, 26 (2003).

19 For example: “Compare the Fifth Amendment of the Constitution, which provides

that no person shall ‘be deprived of life, liberty, or property, without due process of law.’ The

comma before the phrase ‘without due process of law’ indicates that the phrase modifies ‘life,’

‘liberty,’ and ‘property.’This obviously follows the grammatical rule.” Stepnowski v. C.I.R., 456

F.3d 320, 324 n.7 (3d Cir. 2006); see also Bingham, Ltd. v. United States, 724 F.2d 921, 926

n.3 (11th Cir. 1984); Quindlen v. Prudential Ins. Co. of Am., 482 F.2d 876, 878 (5th Cir. 1973).

11

The most natural reading of the definition is that the final clause limits all of

subpart (B) and not simply the catch-all provision. 

Although under the last antecedent rule, “a limiting clause or phrase . . .

should ordinarily be read as modifying only the noun or phrase that it

immediately follows,” it is not an unyielding rule.18 There is a “grammatical

corollary”: when there is a serial list followed by modifying language that is set

off from the last item in the list by a comma, this suggests that the modification

applies to the whole list and not only the last item.19 The parallel phrasing in

the subpart confirms this reading. The list of qualifying types of debts begins

with the phrase “an amount that is owing” and the limiting clause begins with

the parallel language “but that is not owing.” The final clause, therefore, pulls

out from the definition those amounts owing to the United States that find their

genesis in contracts where the United States was not an original party.

The subpart (B) limitation is directly applicable to this case: the note

underlying the FDIC’s judgment was originally entered into by only private

parties. Thus, even though a judgment obtained by the government can fall

within the scope of subpart(B),the final clause prevents the judgment here from

being an FDCPA debt. The limitation does not give way because the FDIC came

into possession of the note, sued to recover on it, and obtained a judgment. The

judgment does not create an obligation between the debtor and holder that is

independent of the note. That is, the note establishes the rights and liabilities

of the parties, what is owed and to whom. A subsequent lawsuit and judgment
No. 06-10912

20 28 U.S.C. § 3001(a)(1).

21 Id. § 3002(8).

22 136 Cong. Rec. H13288-02, H13288 (1990) (statement of Rep. Brooks).

12

enforce the terms of the note. The subpart (B) limitation captures this

relationship and applies it where the United States was not a party to the

underlying contract.

Other provisions of the statute support this interpretation. The scope

section explains that the FDCPA provides procedures for the government “to

recover a judgment on a debt,”20 suggesting that the proper inquiry is on the

source of the judgment. Similarly, a judgment is defined as “a judgment, order,

or decree entered in favor of the United States in a court and arising from a civil

or criminal proceeding regarding a debt.”21 Because the note underlying the

judgment obtained by the FDIC falls squarely within subpart (B)’s limitation,

and subpart (A) is plainly not relevant, the judgment does not qualify as an

FDCPA debt.

Although we conclude that the statute’s text is plain, we do note

Congressman Brooks’ explanation ofthe meaning of debt because of the striking

parallel of his hypothetical to this case:

The definition of “debt” was carefully written to make clear that the

act will not apply to obligations which begin as purely private loan

or contract obligations. For example, if one of our constituents goes

to his neighborhood bank or thrift and takes out a business or

personal loan, that transaction is between him and the bank or

thrift. Unless it is a veterans’ home loan or an FHA home loan or

similar loan in which the Government is either the lender or the

insurer or guarantor of the loan – that is, the cosigner of the loan –

then these loans will not come under coverage of this act’s new

procedures. This is true even if the bank or thrift later fails and is

taken over by Federal regulators. If the Federal Government seeks

to recover these loan or contract obligations, it may do so in exactly

the way it proceeded in the past; it is not eligible to use the new

procedures in this act.22
No. 06-10912

23 H. R. Rep. No. 101-736, supra, at 28. In at least two filings below, including in its

brief in support of its objections to the magistrate’s recommendations at page 8 ¶ 28, Sobranes

altered this quotation to read “defined broadly to include amounts owing to the United States

on account of a direct loan or loan insured or guaranteed by the United States as well as other

amounts . . . due the United States.” (emphasis Sobranes’). See also Plaintiff’s Response in

Opposition to Motion for Rehearing of Melanie Hughes’ Motion for Protective Order, at p. 14

¶ 38 (May 6, 2005). Compounding the offense, Sobranes credited by citation the Second Circuit

for the edit. Unsurprisingly, the Second Circuit properly quoted the House report. See NLRB

v. E.D.P. Med. Computer Sys., Inc., 6 F.3d 951, 954 (2d Cir. 1993). Cutting out “originally”

fundamentally alters the quotation’s meaning. Creative editing that is done with no plausible

purpose other than to try to fool the court is deeply troubling and utterly unacceptable. 

24 Neither the parties nor the magistrate points to any cases that analyze the definition

of debt on facts that parallel those here. Nor has our research uncovered any published

opinions on point. Although Defendants put some stock in our decision in FDIC v. Shaid, 142

F.3d 260 (5th Cir. 1998), Shaid is not relevant. Shaid held that a judgment owned by the

FDIC was dormant under Texas law; the opinion contains no analysis of the applicability of

the FDCPA. We will not attempt to divine why the FDIC did or did not attempt to use the

FDCPA. FDIC v. Bauman, No. Civ. 3:90-CV-0614-H, 2004 WL 1732933 (N.D. Tex. July 30,

2004), is similarly unhelpful.

However, in two unpublished lower court decision, courts have on similar facts

concluded that the FDCPA was inapplicable. In Jalapeno Property Management, LLC v.

Dukas, the FDIC bought a defaulted note originally entered into by private parties, obtained

a judgment on the note, and then assigned the judgment to a private party. The private-party

assignee attempted to invoke the FDCPA. According to the Sixth Circuit, the district court

ruled that “because the original debt arose between two private parties . . . , the FDCPA’s

statutory exclusion for debts ‘owing under the terms of a contract originally entered into by

only persons other than the United States,’ rendered the statute inapplicable.” 265 F.3d 506,

509 (6th Cir. 2001). The Sixth Circuit did not reach this question on appeal, reversing the

district court on its application of the state statute of limitations. Id. at 514.

Similarly, in United States ex rel. Small Business Administration v. Commercial

Technology, Inc., the magistrate judge, according to this court, concluded that the FDCPA was

not applicable because the United States was not a party to the underlying loan: “The

13

This hypothetical covers the factual situation here – a loan from a private bank;

the bank fails and is taken over by the federal government; and the government

seeks to collect on the loan. The House report accompanying the FDCPA is also

consistent with our reading of the statute and Brooks’ description: “‘Debt’ is

defined broadly to include amounts owing to the United States on account of a

direct loan or loan insured or guaranteed by the United States as well as other

amounts originally due the United States.”23 Nor does the case law compel a

different conclusion.24
No. 06-10912

magistrate determined that the government was not entitled to relief under the FDCPA

because the original promissory note between Caddo and CTI was not a ‘debt’ owing to the

United States as defined by the federal statute because Caddo was not an instrumentality of

the government.” 354 F.3d 378, 382 n.4 (5th Cir. 2003). The district court adopted the

magistrate’s recommendation, but the government did not appeal that particular decision.

25 303 F.3d 548 (5th Cir. 2002).

26 Id. at 551.

27 376 F.3d 317 (5th Cir. 2004).

28 Id. at 318.

14

In United States v. Phillips, we considered whether the federal

government could use the FDCPA to collect restitution owing to private

individuals under the Mandatory Victims Restitution Act.25 We held that the

government could. Our decision, however, turned not on the FDCPA, but on the

MVRA, which we interpreted as independently authorizing the government to

use the FDCPA to collect restitution for victims: 

Our review of the statutory language and legislative history

persuades us beyond peradventure,therefore, that Congress drafted

the MVRA with the intent that it would allow prosecutors to utilize

the FDCPA to collect restitution in favor of private victims.26

Sobranes points to no other provision of federal law like the MVRA that was

drafted with the intent to authorize independently the use of the FDCPA in a

situation like this.

In FTC v. National Business Consultants, Inc., the question before our

court was whether a judgment obtained by theFederalTrade Commission (FTC)

qualified as a debt.27 The FTC had sued the defendants who were “engaged in

the nation-wide sale of business franchises” under the Federal Trade

Commission Act (FTCA) for material misrepresentations to potential

franchisees, unsupported earnings claims, failure to provide required

documentation, and failure to make required disclosures.28 The FTC sought

injunctive relief and money damages to redress losses suffered by defrauded
No. 06-10912

29 Id. at 320.

30 6 F.3d at 954.

15

franchisees. The FTC wanted to use the FDCPA to collect on the judgment it

obtained, and we held that it could.

We explained that the judgment was “an amount . . . owing to the United

States,” and that the judgment rendered the defendants liable only to the FTC,

and not to any private individuals, for the whole judgment. The federal

government was, therefore, the formal owner of the judgment. Finally, we

explained that, even though the government might pay out some of the judgment

to private individuals, nothing in the FDCPA required that the government be

the “exclusive beneficiary of the judgment.”29

The critical distinction between this case and National Business

Consultants is that here the FDIC was seeking only to recover under the terms

of a contract originally entered into by private parties, whereas in National

Business Consultants the FTC was vindicating its independent statutory

authority to enforce theFTCA. That is, the judgment the FTC recovered was not

“owing under the terms of a contract” between private parties even if the private

contracts provided the impetus for the lawsuit; rather, the amount owing to the

United States existed because of the FTCA.

Sobranes finds its strongest support in the Second Circuit’s decision in

NLRB v. E.D.P. Medical Computer Systems, Inc. The Second Circuit held that

the NLRB could use the FDCPA to enforce a backpay award under the National

Labor Relations Act against an employer.30 The employer argued that the

FDCPA was inapplicable because any backpay award the government collected

would flow to the individual employees. The court seized on Congressman

Brooks’ statement that the FDCPA was not meant to reach “purely private”
No. 06-10912

31 Id. at 955.

32 Id.

33 Id. at 958-60 (Walker, J., dissenting).

34 See United States v. Bongiorno, 106 F.3d 1027, 1038 (1st Cir. 1997) (concluding that

“Judge Walker’s dissent provides better guidance for us than does the majority opinion”).

While we agree with the First Circuit’s discussion of E.D.P. here, we have previously declined

to follow Bongiorno when we held that the government may use the FDCPA to collect

restitution owed under the MVRA. See Phillips, 303 F.3d at 550 n.3.

35 Bongiorno, 106 F.3d at 1038. 

16

obligations.31 Using this as an interpretive lodestar, the court gave great weight

to the fact that the NLRB was the only entity statutorily authorized to enforce

the award, the NLRB was acting in the public interest when it sought to enforce

and collect a backpay award, and allowing the government to use the FDCPA

would help to enforce federal labor laws.32 Judge Walker dissented, however,

taking the majority to task for elevating the legislative history above the plain

meaning of the statute’s text, and for its interpretation of the statute’s purposes

and its use of precedent.33

We think the dissent has the better of the argument.34 While the majority

opinion is rich with legislative history and purpose, its textual analysis is brief

at best and spends nary a word on the limiting clause in § 3002(3)(B) – “but that

is not owing under the terms of a contract originally entered into by only persons

other than the United States.” Looking past the text saps persuasive force from

the majority’s opinion. Nor is exclusive authority to enforce a judgment or

award – as was initially the case here when the FDIC was the sole owner of the

judgment – always determinative. As the First Circuit has noted, “Because the

statute, as written, contains no language suggesting that all debts subject to

exclusive federal enforcement are included within the grasp of the FDCPA, we

find the position taken by the E.D.P. majority to be unsatisfactory.”35 We add

that the limiting clause in § 3002(3)(B) strongly indicates that who can enforce
No. 06-10912

36 Nor is United States v. Golden Elevator, Inc., 868 F. Supp. 1063 (C.D. Ill. 1994),

helpful to Sobranes. The SBA took possession of a note entered into between a private party

and bank through an assignment. The issue before the court was whether, as a jurisdictional

matter, the government had to use the FDCPA to collect on a judgment, holding thatit did not.

The court did not analyze the definition of the debt, stating only in passing that “the FDCPA

could apply to this action.” Nor do we know, for example whether the SBA guaranteed the

original loan.

37 See Cinel, 15 F.3d at 1345.

17

a judgment is not dispositive, as the clause focuses on the parties to the original

contract and not on the parties to the judgment. In any event, we do not pass on

whether we would reach the same outcome as the Second Circuit on the facts it

faced, but rather conclude only that the Second Circuit’s analysis does not

detract from our application of the FDCPA’s plain meaning here.36

Sobranes advances a number of policy arguments for support. However

attractive these policies are, they find no home in the plain language of the

statute. While Congress is free to amend the statute to effectuate these policy

concerns, we are not. As we hold there is no FDCPA debt, we need not address

the ability of private-party assignees of the government to invoke the FDCPA or

what statute of limitations the government enjoys under it.

IV

Thus, under Rule 69(a), state law governs execution on the judgment.

Although Sobranes has abandoned any argument that the judgment is not

dormant by failing to brief meaningfully the issue and essentially conceding the

point in its opening brief,37it gave away nothing – the judgment is dormant

under Texas law. The district court entered judgment against Defendants in

October 1992 and an abstract of judgment was filed in January 1993. The only
No. 06-10912

38 See Tex. Civ. Prac. & Rem. Code Ann. § 34.001(a) (“If a writ of execution is not issued

within 10 years after the rendition of a judgment of a court of record or a justice court, the

judgment is dormant and execution may not be issued on the judgment unless it is revived.”).

39 See Tex. Civ. Prac. & Rem. Code Ann. § 31.006 (“A dormant judgment may be revived

by scire facias or by an action of debt brought not later than the second anniversary ofthe date

that the judgment becomes dormant.”).

18

writ of execution to issue is dated April 3, 2003, which occurred more than ten

years after the entry of judgment.38 Revival is not available.39

For the foregoing reasons, we AFFIRM.