USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 1 of 50
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`[PUBLISH]
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 19-10204
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`____________________
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`CONSTANCE DANIELS,
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`versus
`SELECT PORTFOLIO SERVICING, INC.,
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` Plaintiff-Appellant,
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` Defendant-Appellee.
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`____________________
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`Appeal from the United States District Court
`for the Middle District of Florida
`D.C. Docket No. 8:18-cv-01652-JSM-CPT
`____________________
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`[PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`____________________
`
`No. 19-10204
`
`____________________
`
`
`CONSTANCE DANIELS,
`
`versus
`SELECT PORTFOLIO SERVICING, INC.,
`
`
` Plaintiff-Appellant,
`
` Defendant-Appellee.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Middle District of Florida
`D.C. Docket No. 8:18-cv-01652-JSM-CPT
`____________________
`
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`Opinion of the Court
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`19-10204
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`Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
`JORDAN, Circuit Judge:
`Constance Daniels sued Select Portfolio Servicing under
`the Fair Debt Collections Practices Act, 15 U.S.C. §§ 1692 et seq.,
`and the Florida Consumer Collection Practices Act, Fla. Stat. §
`559.72, alleging that a series of monthly mortgage statements mis-
`stated a number of items, including the principal amount due.
`She claimed that, by sending her the incorrect mortgage state-
`ments, Select Portfolio violated the FDCPA’s prohibitions on har-
`assment or abuse, false or misleading representations, and unfair
`practices. See 15 U.S.C. §§ 1692d, 1692e(2)(A), 1692e(10),
`1692f(1). She also claimed that the statements violated the
`FCCPA’s prohibitions on harassment and on attempts to collect
`on debt that is not legitimate. See Fla. Stat. §§ 559.72(7),
`559.72(9). The district court dismissed Ms. Daniels’ complaint
`with prejudice, agreeing with Select Portfolio that the mortgage
`statements in question were not communications in connection
`with the collection of a debt and therefore not covered by the
`FDCPA and the FCCPA.
`
`The question presented in this appeal—one of first impres-
`sion in our circuit—is whether monthly mortgage statements re-
`quired by the Truth in Lending Act, 15 U.S.C. § 1638, and its regu-
`lations can constitute communications in connection with the col-
`lection of a debt under the FDCPA and the FCCPA. We hold that
`they may, at least when—as here—they contain debt-collection
`language that is not required by the TILA or its regulations and
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`the context suggests that they are attempts to collect or induce
`payment on a debt. In such circumstances, coverage under the
`FDCPA and the FCCPA is plausible.
`
`I
`
`In reviewing the district court’s Rule 12(b)(6) dismissal or-
`der, we accept as true the facts set out by Ms. Daniels in her com-
`plaint and its attached exhibits. See Tellabs, Inc. v. Makor Issues
`& Rts., Ltd., 551 U.S. 308, 322 (2007). The complaint and the ex-
`hibits tell the following story.
`
`In 2005, Ms. Daniels executed a promissory note with
`Countrywide Home Loans, secured by a mortgage on her home
`in Florida. In March of 2009, after falling behind on her payments,
`she entered into a mortgage modification agreement with Coun-
`trywide. She agreed to make interest-only monthly payments
`(plus escrow amounts) for 10 years, with the principal balance
`remaining at $189,911.00 for that period. The interest-only
`monthly payments for the first year were $813.12, but for each
`succeeding year during the 10-year period the interest rate (and
`the payments) would increase pursuant to a schedule in the modi-
`fication agreement. After the 10-year period, the monthly pay-
`ments would include both principal and interest, again pursuant
`to a schedule set forth in the agreement. See D.E. 23 at 3 & Ex. A.
`
`For over a year, Ms. Daniels made her interest-only month-
`ly payments on time. Then Countrywide sold, transferred, or as-
`signed the mortgage to Wells Fargo Bank. In June of 2010, Wells
`
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`Fargo refused to accept the interest-only payments from Ms. Dan-
`iels. Claiming that Ms. Daniels had defaulted on the note and
`mortgage, Wells Fargo filed a foreclosure action in state court.
`Select Portfolio was the mortgage servicer at this time. See id. at
`3–4.
`
`In December of 2015, the state court granted Ms. Daniels’
`motion to enforce the earlier mortgage modification agreement,
`ordered Ms. Daniels to resume making payments according to the
`terms of the agreement, and sanctioned Wells Fargo for improp-
`erly bringing the foreclosure action. The sanctions included re-
`quiring Wells Fargo to waive interest on the mortgage debt for
`certain periods of time and to pay Ms. Daniels’ attorney’s fees.
`See id. at 4–5 & Exs. B, C.
`
`Because the dispute between Wells Fargo and Ms. Daniels
`had lasted for years, certain interest and escrow payments had ei-
`ther not been made or had not been accepted. The state court
`ruled in May of 2016 that these sums, totaling $60,808.83, would
`be added “to the end of” the loan modification agreement. See id.
`at 5–8 & Ex. C. At that time, Ms. Daniels’ interest-only monthly
`payments (not including escrow amounts) were $928.25 pursuant
`to the schedule set out in the modification agreement. See id. at
`9.
`
`Following the conclusion of the foreclosure action, Select
`Portfolio sent Ms. Daniels a number of monthly mortgage state-
`ments. Not all the statements were the same in terms of format,
`
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`language, and amounts, so we summarize the November 2016
`statement, which Ms. Daniels claims was the most problematic.
`
`The November 2016 statement listed Select Portfolio’s ad-
`dress and phone number, and had entries for “loan due date,”
`“amount due,” “transaction activity,” “past payments break-
`down,” “past due payments,” “total amount due,” “interest-
`bearing principal,” “deferred principal,” “outstanding principal,”
`and “late fee.” It included a “delinquency notice” box, which
`listed overdue payments and the amount needed to bring the ac-
`count current. And it had a “monthly payment coupon” at the
`bottom of the first page. The coupon listed the late fee that
`would be charged if the payment was not made by the due date,
`and it contained the following instructions: “Please detach bottom
`portion and return with your payment,” and “Make checks paya-
`ble to Select Portfolio Servicing.” See id. at Ex. E.
`
`The November 2016 statement also contained the follow-
`ing language:
`
`◆ This is an attempt to collect a debt. All infor-
`◆ You are late on your mortgage payments. Failure
`◆ [Select Portfolio] has completed the first notice or
`
`mation obtained will be used for that purpose.
`
`to bring your loan current may result in fees and
`foreclosure – the loss of your home.
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`filing required to start a foreclosure.
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`◆ Paying your mortgage on time is an important
`◆ [Select Portfolio] furnishes information to con-
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`obligation, so please pay on or before the payment
`due date. Payments are not considered paid until
`received and posted to your account.
`
`sumer reporting agencies. You are hereby notified
`that a negative credit report reflecting on your credit
`record may be submitted to a credit reporting agen-
`cy if you fail to fulfill the terms of your Note and
`Mortgage.
`
`Id. The statement did not indicate that it was being sent for in-
`formational purposes.1
`
`According to Ms. Daniels, the November 2016 statement
`significantly misstated the deferred principal balance, the out-
`standing principal balance, and the amount of the interest-only
`payment that was due. The statement, for example, listed the de-
`ferred principal as $83,259.92 (when the actual sum to be added to
`the end of the modification agreement was $60,808.83); listed the
`outstanding principal balance as $356,121.53 (when it should have
`
`1Ms. Daniels did not attach all the statements to her complaint. But the ones
`that were attached contained some of the same debt-collection language
`found in the November 2016 statement. For example, the statements from
`July, August, and September of 2017 all said: “This is an attempt to collect a
`debt. All information obtained will be used for that purpose.” See D.E. 23 at
`Comp. Ex. G. They also included Select Portfolio’s address and phone num-
`ber, as well as a payment coupon with the same late fee information and
`payment instructions contained in the November 2016 statement. See id.
`
`
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`been $250,714.83 [$189,911.00 + $60,803.83]); and listed the
`monthly payment due as $2,244.90 (when the actual figure was
`$982.25 based on the schedule in the loan modification agree-
`ment).
`
`Ms. Daniels alleged that the “delinquency notice” box in
`the November 2016 statement also misrepresented that the loan
`was in arrears for 197 days based on six unpaid installments of
`$2,244.90 (when there was no delinquency at all). The “delin-
`quency notice” box stated that the “total” due was $9,075.71 and
`provided the following instruction: “You must pay this amount to
`bring your loan current.” The payment coupon attached to the
`statement also incorrectly listed the amount due as $9,075.71. See
`id. at 10–11, 12–13, 15–16, & Ex. E.
`
`In October and December of 2017, Ms. Daniels’ counsel
`sent letters to Select Portfolio asserting that there was no deferred
`principal balance (because the $60,808.83 was to be added to the
`end of the loan modification agreement pursuant to the state
`court’s order) and demanding a specific line-by-line accounting of
`the deferred balance amount. Select Portfolio did not respond to
`the letters.
`
`In June of 2018, Ms. Daniels sued Select Portfolio under the
`FDCPA, 15 U.S.C. §§ 1692d, 1692e, 1692f, and the FCCPA, Fla.
`Stat. §§ 559.72(7), 559.72(9). She alleged that the erroneous
`monthly mortgage statements were harassing, false, and mislead-
`ing, and that by sending them Select Portfolio engaged in unfair
`
`
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`practices in connection with the collection of a debt in violation of
`the FDCPA and the FCCPA.2
`
`As noted, the district court dismissed Ms. Daniels’ claims
`with prejudice. Agreeing with Select Portfolio, it ruled that the
`monthly mortgage statements complied with the TILA and its
`regulations, and so were not communications in connection with
`the collection of a debt under the FDCPA and the FCCPA. It also
`denied leave to amend because it concluded that any amendment
`by Ms. Daniels would be futile.
`
`II
`
`We review orders granting a Rule 12(b)(6) motion de novo.
`See Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir.
`2013); Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir.
`2006). The question here is whether Ms. Daniels pled sufficient
`facts to plausibly allege FDCPA and FCCPA coverage. See Ash-
`croft v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atlantic Corp. v.
`Twombly, 550 U.S. 544, 556 (2007). “A claim has facial plausibil-
`ity when the plaintiff pleads factual content that allows the court
`to draw the reasonable inference that the defendant is liable for
`the misconduct alleged. The plausibility standard is not akin to a
`‘probability requirement,’ but it asks for more than a sheer possi-
`bility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
`
`2 The FCCPA is the Florida analogue to the FDCPA, and generally the two
`Acts are construed in similar fashion where the statutory language is the
`same. See Oppenheimer v. I.C. Sys., Inc., 627 F.3d 833, 839 (11th Cir. 2010).
`
`
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`678. See also Johnson v. City of Shelby, 574 U.S. 10, 12 (2014)
`(“Petitioners stated simply, concisely, and directly events that,
`they alleged, entitled them to damages from the city. Having in-
`formed the city of the factual basis for their complaint, they were
`required to do no more to stave off threshold dismissal for want
`of an adequate statement of their claim.”).
`
`III
`
`We start with the basics, and first address whether the
`monthly mortgage statements sent by Select Portfolio constitute
`“communications” about a “debt.” The FDCPA and the FCCPA
`both define a “debt” as “any obligation or alleged obligation of a
`consumer to pay money arising out of a transaction in which the
`money, property, insurance, or services which are the subject of
`the transaction are primarily for personal, family, or household
`purposes, whether or not such obligation has been reduced to
`judgment.” See 15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(6). And
`they both define “communication” as “the conveying of infor-
`mation regarding a debt directly or indirectly to any person
`through any medium.” See 15 U.S.C. § 1692a(2); Fla. Stat. §
`559.55(2).
`
`We have already held that a homeowner’s promissory
`note, secured by a mortgage on the property, constitutes a “debt”
`under the FDCPA. See Reese v. Ellis, Painter, Ratterree & Ad-
`ams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012) (“T[he definition of
`‘debt’ in the FDCPA] clearly encompasses the Reeses’ payment
`
`
`
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`obligation under the promissory note [secured by a mortgage.]”).
`So the obligation of Ms. Daniels to pay the promissory note, se-
`cured by a mortgage on her home, is a “debt” under the FDCPA
`and the FCCPA.
`
`The mortgage statements also constitute a “communica-
`tion” under the FDCPA and the FCCPA. The definition of
`“communication” is “broad,” Hart v. Credit Control, LLC, 871
`F.3d 1255, 1258 (11th Cir. 2017), and the statements certainly
`conveyed information from Select Portfolio to Ms. Daniels re-
`garding her debt under the promissory note. “In order to be con-
`sidered a communication, the only requirement of the infor-
`mation that is to be conveyed is that it must be regarding a debt.”
`Id. (holding that a voicemail left by a debt collector who wanted
`to speak to a consumer about a debt was a “communication” un-
`der the FDCPA).
`
`IV
`
`Ms. Daniels alleges that Select Portfolio, by sending her
`mortgage statements with incorrect information about her debt
`under the promissory note, violated §§ 1692d, 1692e(2)(A),
`1692e(10), and 1692f(1) of the FDCPA and §§ 559.72(7) and
`559.72(9) of the FCCPA. Select Portfolio responds that the mort-
`gage statements were required by the TILA, 15 U.S.C. §§ 1601 et
`seq., and its regulations and therefore did not constitute commu-
`nications “in connection with the collection of a[ ] debt” under
`
`
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`the FDCPA or in connection with “collecting [a] . . . debt[ ]” un-
`der the FCCPA.
`
`Congress passed the TILA and the FDCPA to protect con-
`sumers. The TILA, enacted in 1968, is meant to “assure a mean-
`ingful disclosure of credit terms…and to protect the consumer
`against inaccurate and unfair credit billing and credit card practic-
`es.” 15 U.S.C. § 1601(a). The FDCPA, enacted almost a decade
`later in 1977, is meant to “eliminate abusive debt collection prac-
`tices by debt collectors, to ensure those debt collectors who re-
`frain from using abusive debt collection practices are not competi-
`tively disadvantaged, and to promote consistent State action to
`protect consumers against debt collection abuses.” 15 U.S.C. §
`1692(e).
`
`We begin by analyzing the monthly mortgage statements
`under the FDCPA and the FCCPA. We then turn to the TILA.
`
`A
`
`The substantive FDCPA provisions relied on by Ms. Dan-
`iels require that the challenged communications be “in connec-
`tion with the collection of a[ ] debt.” See 15 U.S.C. §§ 1692d,
`1692e(10), 1692f(1). The substantive FCCPA provisions similarly
`require that the challenged action be made in connection with
`“collecting [a] . . . debt[.]” Fla. Stat. §§ 559.72(7), 559.72(9). Both
`Acts, therefore, require a nexus between the communication and
`the collection of a debt.
`
`
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`We have said that the FDCPA’s “in connection with the
`collection of a[ ] debt” language asks whether the “challenged
`conduct is related to debt collection,” i.e., is “an attempt to ‘col-
`lect’ [a] debt.” Reese, 678 F.3d at 1216, 1217. And we have rec-
`ognized that a communication can “have dual purposes,” such as
`providing a consumer with information and demanding payment
`on a debt. See id. at 1217 (“The fact that the letter and documents
`relate to the enforcement of a security interest does not prevent
`them from also relating to the collection of a debt within the
`meaning of § 1692e.”).
`
`In Reese, for example, we held that a law firm’s dunning
`letter was “in connection with the collection of a[ ] debt” because
`it (a) demanded full and immediate payment, (b) threatened col-
`lection and attorney’s fees if the full payment was not paid, and
`(c) was accompanied by documents which stated that the law firm
`was attempting to collect a debt. See id. at 1216–17. Two years
`later, in Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303
`(11th Cir. 2014), we held that a letter from a law firm advising a
`consumer that she was behind in her residential mortgage pay-
`ments was “in connection with the collection of a[ ] debt” because
`it (a) listed the amount due to the lender, (b) indicated that failure
`to dispute the amount would result in the debt being assumed
`valid by the lender, and (c) stated that it was for purpose of col-
`lecting a debt. We recognized that the letter did not contain an
`express demand for payment, but concluded that taken as a whole
`it “was an implicit demand for payment.” Id. at 1303 n.2.
`
`
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`Opinion of the Court
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`Based on Reese and Caceres, we conclude that Ms. Daniels
`plausibly alleged that the mortgage statements for November of
`2016 and for July, August, and September of 2017 were communi-
`cations “in connection with the collection of a[ ] debt” under the
`FDCPA and in connection with “collecting [a] . . . debt[ ]” under
`the FCCPA. In the words of Reese, 678 F.3d at 1216, the state-
`ments were “related to debt collection.” First, the statements ex-
`pressly said that they were “an attempt to collect a debt” and that
`“[a]ll information obtained will be used for that purpose.” Second,
`the statements had entries for “loan due date,” “payment due
`date,” “amount due,” “total amount due,” “interest-bearing prin-
`cipal,” “deferred principal,” “outstanding principal,” and “interest
`rate.” Third, the statements attached a monthly payment coupon
`at the bottom of the first page with Select Portfolio’s address.
`The coupon included late fee information and instructed Ms.
`Daniels to “[p]lease detach bottom portion and return with your
`payment” and “[m]ake checks payable to Select Portfolio Servic-
`ing.” Viewed holistically, a communication that expressly states
`that it is “an attempt to collect a debt,” that asks for payment of a
`certain amount by a certain date, and that provides for a late fee if
`the payment is not made on time is plausibly “related to debt col-
`lection.” Reese, 678 F.3d at 1217.3
`
`
`3 We do not hold that the statements are, as a matter of law, communica-
`tions in connection with the collection of a debt. Our ruling is that Ms. Dan-
`iels has plausibly alleged that they are.
`
`
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`The context of the communication also matters. By the
`time Select Portfolio sent Ms. Daniels the November 2016 state-
`ment, she had prevailed in the foreclosure action brought by
`Wells Fargo. During that litigation Select Portfolio was the
`mortgage servicer. Given that the state court had ruled that the
`unpaid $60,808.83 would be added to the end of the loan modifi-
`cation agreement, the sums listed as allegedly due and owing in
`the November 2016 statement, along with the delinquency no-
`tice, could be viewed as an attempt to collect (or induce payment
`on) a disputed and allegedly defaulted debt. See Grden v. Leikin
`Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir. 2011); Gburek v.
`Litton Loan Servicing LP, 614 F.3d 380, 386 (7th Cir. 2010).
`
`We recognize that some portions of the statements could
`have been for informational purposes. But, as we have already
`held, a communication can have dual purposes. See Reese, 678
`F.3d at 1217. Moreover, the possibility that some portions of the
`statements were informational does not doom Ms. Daniels’ com-
`plaint at the Rule 12(b)(6) stage, where the standard is not certain-
`ty (or even probability) but plausibility. See Iqbal, 556 U.S. at 579.
`
`At summary judgment, the result may or may not be the
`same. “[W]hether a communication was sent ‘in connection
`with’ an attempt to collect a debt is a question of objective fact, to
`be proven like any other fact.” Ruth v. Triumph Partnerships,
`577 F.3d 790, 798 (7th Cir. 2009). We do not prejudge the issue,
`as it is not before us.
`
`
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`B
`
`We next address the effect, if any, of the TILA. As we ex-
`plain, under the circumstances alleged in the complaint the TILA
`and its regulations do not foreclose Ms. Daniels’ claims under the
`FDCPA and the FCCPA as a matter of law.
`
`As relevant here, the TILA requires mortgage lenders
`and/or servicers to send their mortgagees a statement once per
`billing cycle, updating them on a number of items. These items
`are the amount of the principal obligation under the mortgage;
`the current interest rate in effect; the date on which the interest
`rate may reset or adjust; the amount of any prepayment penalty
`that may be charged; late payment fees; a telephone number and
`electronic mail address that can be used to obtain information re-
`garding the mortgage; the names and contact information of cred-
`it counseling agencies or programs reasonably available; and such
`other information as may be required by regulation. See 15
`U.S.C. § 1638(f)(1). The TILA also provides that a standard form
`for these disclosures may be proscribed by regulation. See §
`1638(f)(2).
`
`The TILA’s regulations require a monthly mortgage
`statement to include certain items. These include the amount
`due; the payment due date; the amount of any late payment fee
`and the date on which it will be imposed; the monthly payment
`amount (including a breakdown of how the payment will be ap-
`plied to principal, interest, and escrow); the total sum of any fees
`
`
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`charged since the last statement; any payment amount past due;
`the total of all payments received since the last statement (includ-
`ing a breakdown of how the payments were applied); the total of
`all payments received since the beginning of the current calendar
`year (including a breakdown of how the payments were applied);
`a list of transaction activity since the last statement; partial pay-
`ment information; a toll-free telephone number and electronic
`mail address to obtain information about the account; the amount
`of the outstanding principal balance; the current interest rate in
`effect; the existence of any prepayment penalty; and delinquency
`information (including the length of the delinquency, the risk of
`consequences like foreclosure, and notice as to whether the ser-
`vice has made the first notice required for foreclosure). See 12
`C.F.R. § 1026.41(d)(1)-(8).
`
`The TILA’s regulations also include three sample standard
`forms for the required monthly mortgage statements. See 12
`C.F.R. Pt. 26, App’x H, Forms H-30(A) (“Sample Form of Periodic
`Statement”), H-30(B) (“Sample Form of Periodic Statement with
`Delinquency Box”), & H-30(C) (“Sample Form of Periodic State-
`ment for a Payment-Option Loan”). Each of the three sample
`forms includes a payment coupon. But none of the sample forms
`contain the words “this is an attempt to collect a debt.”
`
`“When confronted with two Acts of Congress touching on
`the same topic, [a court] is not at liberty to pick and choose
`among congressional enactments and must instead strive give ef-
`fect to both.” Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624
`
`
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`(2018) (internal quotation marks and citations omitted). See also
`Jove Engineering, Inc., v. I.R.S., 92 F.3d 1539, 1559 (11th Cir.
`1996) (“[W]e are mindful of the fundamental principle of statuto-
`ry construction that, ‘when interpreting and construing two or
`more acts that affect one particular subject matter or area, the
`court must attempt to reconcile the acts, if possible, so as to pro-
`duce a symmetrical whole.’”) (alterations adopted and citation
`omitted). So we must try to give meaning to both the FDCPA
`and the TILA.
`
`Select Portfolio argues that its monthly mortgage state-
`ments cannot be actionable under the FDCPA or the FCCPA be-
`cause they largely conform to the requirements of the TILA and
`its regulations. It relies primarily on our decision in Green v. Spe-
`cialized Loan Servicing LLC, 766 F. App’x 777 (11th Cir. 2019).
`
`Green, as an unpublished opinion, is not binding. But even
`if it were, it is distinguishable because it does not answer the pre-
`cise coverage question before us. In Green a consumer alleged
`that a mortgage servicer violated the FDCPA by “attempting to
`collect mortgage debt beyond the five-year statute of limitations,”
`thereby engaging in “unlawful debt collection of time-barred
`debts.” Id. at 779. The Green panel held that the servicer’s
`monthly mortgage statement contained no language “beyond
`what is required by [the] TILA” and therefore did “not rise[ ] to
`the level of being unlawful debt collection language.” Id. at 784
`(emphasis added).
`
`
`
`USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 18 of 50
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`18
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`Opinion of the Court
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`19-10204
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`The consumer in Green relied on the following delinquen-
`cy language in an “important messages” box in the mortgage
`statement: “Please note, if your account is past due, this amount
`may not include all fees or other amounts necessary to fully rein-
`state your loan.” Green v. Specialized Loan Servicing LLC, 280
`F.Supp.2d 1349, 1355 (M.D. Fla. 2017). But the mortgage state-
`ment did not include the “this is an attempt to collect a debt” lan-
`guage that we have here. See id. Because the TILA’s regulations
`require delinquency information, see 12 C.F.R. § 1026.41(d)(8),
`the Green panel held that the content of the mortgage statement
`did not go beyond “the ‘garden variety’ type of statement re-
`quired by [the] TILA, even for the ‘least sophisticated consumer.’”
`Green, 766 F. App’x at 784–85 (quoting the district court’s order).
`In reaching this conclusion, the Green panel accepted Kelliher v.
`Target Nat’l Bank, 826 F.Supp.2d 1324, 1328–29 (M.D. Fla. 2011),
`as standing for the “unremarkable principle that a monthly state-
`ment that is in conformity with [the] TILA may nevertheless in-
`clude additional language that constitutes debt collection,” and
`cited favorably to Caceres, 755 F.3d at 1302, and Reese, 678 F.3d
`at 1217. See Green, 766 F. App’x at 785.
`
`In this case, Select Portfolio’s mortgage statements con-
`tained “this is an attempt to collect a debt” language that is not
`required by the TILA or its regulations. The FDCPA mandates
`that consumers be told in the “initial written communication”
`that a “debt collector is attempting to collect a debt and that any
`information obtained will be used for that purpose,” 15 U.S.C. §
`
`
`
`USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 19 of 50
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`19-10204
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`Opinion of the Court
`
`19
`
`1692e(11), but neither the FDCPA nor the TILA requires the use
`of such language in subsequent communications or periodic
`statements. Because Green did not involve a mortgage statement
`with “this is an attempt to collect a debt” language, it is distin-
`guishable. And because it recognized that a TILA-mandated
`mortgage statement can contain additional language that makes it
`a debt-collection communication, Green is not inconsistent with
`our ruling today.
`
`Select Portfolio also relies on a number of unpublished cas-
`es to support its contention that its mortgage statements were not
`communications in connection with the collection of a debt.
`Most of those cases, however, do not bear the weight that Select
`Portfolio seeks to place on them. For example, in Hill v. DLJ
`Mortgage Capital, Inc., 689 F. App’x 97, 98 (2d Cir. 2017), the
`monthly statements were “in compliance with the [TILA]” and
`did “not reflect attempts to collect on the debt referenced by the
`[n]ote.” The same is true of Wagoner v. Ever Home Mortgage,
`Inc., 2018 WL 2230553, at *4 (D.N.J. 2018).
`
`There are two unpublished district court cases that do sup-
`port Select Portfolio’s position. See Jones v. Select Portfolio Ser-
`vicing, Inc., 2018 WL 2316636 (S.D. Fla. 2018); Zavala v. Select
`Portfolio Servicing, Inc., 2018 WL 6198685 (S.D. Fla. 2018). In
`both of those cases the district courts ruled that monthly mort-
`gage statements required by the TILA were not communications
`in connection with the collection of a debt under the FDCPA
`even though they contained “this is an attempt to collect a debt”
`
`
`
`USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 20 of 50
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`20
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`Opinion of the Court
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`19-10204
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`language. The district courts concluded that this additional lan-
`guage constituted only a “minor discrepanc[y]” when compared
`with the TILA’s model forms. See Jones, 2018 WL 2316636, at *4;
`Zavala, 2018 WL 6198685, at *2–*3.
`
`Having considered Jones and Zavala, we respectfully disa-
`gree with them. We hold, consistent with our decisions in Reese
`and Caceres, that monthly mortgage statements required by the
`TILA and its regulations can plausibly constitute communications
`in “connection with the collection of a[ ] debt” under the FDCPA
`and in connection with “collecting [a] . . . debt” under the FCCPA
`if (a) they contain “this is an attempt to collect a debt” language,
`(b) they request or demand payment of a certain amount by a cer-
`tain date, (c) they provide for a late fee if the payment is not made
`on time, and (d) the history between the parties suggests that the
`statement is an attempt to collect on a disputed debt. See Lear v.
`Select Portfolio Servicing, Inc., 309 F.Supp.3d 1237, 1240 (S.D. Fla.
`2018) (the “fact that [the] TILA requires” the servicer “to send
`[the consumer] periodic [mortgage] statements does not mean
`that [the consumer’s FDCPA] claims fail as a matter of law,” and
`the use of “this is an attempt to collect a debt” language “would
`seem to indicate that the mortgage statements are debt collection
`communications”).
`
`C
`
`We have considered the guidance bulletin issued in 2013 by
`the Consumer Financial Protection Bureau, on which the district
`
`
`
`USCA11 Case: 19-10204 Date Filed: 05/24/2022 Page: 21 of 50
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`19-10204
`
`Opinion of the Court
`
`21
`
`court relied. See Consumer Financial Protection Bureau, Imple-
`mentation Guidance for Certain Mortgage Servicing Rules, CFPB
`Bulletin 2013-2, 2013 WL 9001249 (Oct. 15, 2013). In that bulletin,
`the CFPB provided an “advisory opinion” concerning the “cease
`communications” option provided by the FDCPA. See 15 U.S.C.
`§ 1692c(c). The CFPB concluded that servicers who are debt col-
`lectors are generally not liable under § 1692c(c) to consumers who
`make a “cease communications” request if they comply with the
`regulations issued under federal laws like the TILA, including 12
`C.F.R. § 1026.41 (the periodic statement regulation). The CFPB
`explained that it believed a consumer’s “cease communications”
`request under the FDCPA “should ordinarily be understood to
`exclude the[ ] categories of communications” required by federal
`law. “Thus, only if the [consumer] sends a communication to the
`servicer specifically withdrawing the request for [certain action]
`may a servicer cease to carry out the requireme
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