the mailing service had developed "in consultation with" the creditor, indicating that the debtor had an outstanding obligation and explaining how to pay it. It is easy to see why this activity constitutes debt collection -- it falls under the statute's literal terms. By contacting debtors on its own via telephone -- with a message whose contents it helped define -- and informing debtors about obligations owed, the mailing service was literally attempting to collect a debt. This situation is distinguishable from Lason's; at no time did Lason follow up on Arrow's collection efforts by calling or otherwise contacting debtors, nor did Lason have a hand in crafting Arrow's communications with debtors.
In sum, we find that Trull has not submitted evidence that would permit a reasonable jury to find that Lason's activities in connection with Arrow's communications rose to the level of debt collection.
III. Lason's Identification in Trull's Letter Does Not Bring It Under the Act
Finally, Trull argues that Lason's nominal appearance on the February 9 communication renders it a debt collector. She contends that the "unsophisticated consumer" looking at the letter would have thought Lason was a debt collector, and that this is sufficient to trigger FDCPA coverage. For support, Trull relies on the Seventh Circuit's decision in Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996), which viewed collection letters' compliance with the FDCPA through the eyes of the "unsophisticated consumer."
But Avila has no application here because it addressed an entirely different legal issue. The court never considered whether the defendant was acting as a debt collector under FDCPA section 1692a(6). Rather, the issue was whether the defendant attorney, who permitted his signature to appear on collection letters without substantively reviewing them, was liable for falsely implying that the communications were from an attorney in violation of FDCPA section 1692e. Id. at 228-29. Contrary to the section 1692a(6) analysis, which weighs a defendant's lack of involvement in the collections process in the defendant's favor, the section 1692e inquiry bases liability on the attorney's failure to participate: he must be "directly and personally involved in the mailing of the letters in order to comply" with that provision. Id. at 228. Otherwise, it is misleading for the attorney to sign the letter, creating the impression that "the attorney has reached a considered, professional judgment that the debtor is delinquent and is a candidate for legal action." Id. at 229. Consequently, Avila provides no guidance in the debt collector inquiry.
Even if the Avila decision could be read implicitly to hold that the defendant attorney met the definition of debt collector under section 1692a(6), his activities provide no comparison to Lason's. The attorney in Avila received all his business from a collection agency in which he had an 80% ownership interest, devoted his entire practice to collecting debts for this agency, and even filed collection suits on the agency's behalf. Id. at 224.
Putting aside the problems with Trull's legal authority, no reasonable juror (or even an unsophisticated consumer) would form the impression that the February 9 letter is from Lason or that Lason is driving the debt collection attempt. The letter clearly identifies Arrow as both a collection agency and the sender: Arrow's address, telephone number, and contact person -- Marty Pryor, identified in the January 19 letter as an Arrow employee -- are prominently displayed. In contrast, Lason's name is relegated to the upper corner of the letter and is not accompanied by a phone number, address, or contact person. Moreover, neither Arrow's letter preceding nor its letter following the February 9 Priority-Gram makes any reference to Lason, and both letters unequivocally state that they are attempts by Arrow to collect Trull's retail debt. These are precisely the facts that both the Powell and Fratto courts found compelling in determining that the printer/mailer was not a debt collector. See Powell, 975 F. Supp. 1034, 1997 WL 526031, at *4-*5 (S.D. Ohio 1997) (printing creditor's return address and phone number on the letter and including an instruction to contact creditor was a "clear indication" that the communication was from the creditor); Fratto, 1996 U.S. Dist. LEXIS 14102, 1996 WL 554549, *3 (N.D. Ill. Sept. 25, 1996) (including employee's name and phone number on collection letter was evidence that creditor was engaging in debt collection activity).
While Trull may not have been able to tell from the February 9 letter that Lason is a printing/mailing service, the string of communications she received from Arrow do not leave any room to believe that Lason is trying to collect Trull's debt. Accordingly, she cannot withstand summary judgment on this ground.
For the reasons above, we grant summary judgment in Lason's favor, and deny Trull's motion for class certification as moot. Trull has failed to raise a genuine issue of material fact that would permit a reasonable jury to find that Lason was acting as a debt collector under the FDCPA. The Clerk of the Court is directed to enter judgment in favor of Lason and against Trull pursuant to Fed. R. Civ. P. 58.
United States District Judge
Dated: November 4, 1997