Sherman Anderson Morton, III, et al v. Lien Filers, Etc. of Heath W. Williams, L.L.C., et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12106
Non-Argument Calendar
____________________
SHERMAN ANDERSON MORTON, III,
ASHLYN AIKEN MORTON,
Plaintiffs-Counter Defendants-Appellants,
versus
LIEN FILERS, ETC. OF HEATH W. WILLIAMS, L.L.C.,
Defendant-Counter Claimant-Appellee,
HEATH W. WILLIAMS, L.L.C.,
Defendant-Appellee.
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2 Opinion of the Court 22-12106
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-03211-TWT
____________________
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges.
PER CURIAM:
This case arises under the Fair Debt Collection Practices Act
(“FDCPA”). Plaintiffs Sherman Anderson Morton, III and Ashyln
Aiken Morton (“Mortons”) engaged in a dispute with Tigeski,
L.L.C., over a bill Tigeski issued the Mortons for remediation work
it performed at the Mortons’ residence. The Mortons, through
their attorney Ronald Daniels, mailed Tigeski and its attorney,
Heath Williams, from Lien Filers, Etc. of Heath W. Williams,
L.L.C. (“Lien Filers”), a proposed settlement for $2,000. Without
including Williams on the response e-mail, a Tigeski employee
accepted the offer. When Williams found out about the
settlement, he expressed his strong disapproval of Daniels
resolving a settlement with Williams’s client without Williams’s
approval. Daniels then stated that he assumed Tigeski was no
longer interested in the deal. Williams responded that Tigeski
would take the deal but requested an additional $450 in attorneys’
fees. The Mortons filed a motion to enforce the original $2,000
settlement, and Tigeski agreed to settle for $2,000.
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22-12106 Opinion of the Court 3
After the parties settled, the Mortons brought this federal
suit, alleging that Williams’ request for $450 in attorneys’ fees
violated the FDCPA. The district court adopted a magistrate
judge’s report and recommendation granting summary judgment
to Williams. Because we find that Williams’s e-mail was a
counteroffer in an ongoing settlement negotiation, rather than an
attempt to collect a debt, we hold that the e-mail falls outside the
FDCPA. Accordingly, we affirm.
I. Background
In July 2019, the Mortons entered into a work authorization
contract with Tigeski for Tigeski to perform water remediation
work at the Mortons’ residence. The Mortons disputed the final
bill. On August 28, 2019, Tigeski filed a “Materialman’s and
Mechanic’s Claim of Lien.” On October 4, 2019, the Mortons filed
and recorded a notice that they were contesting the lien. Tigeski
then engaged the law firm, Lien Filers, to perfect its lien by
initiating a lien action. On November 12, 2019, Williams, an
attorney for Lien Filers, initiated the lien action by filing a claim in
the Magistrate Court of Dekalb County.
On December 11, 2019, Daniels, the Mortons’ lawyer,
mailed a letter to both Williams and Tigeski proposing to settle “all
of these interrelated claims” for $2,000. Daniels represented that if
the offer was not accepted “by close of business on December 20,
2019,” the Mortons would “be filing responsive pleadings including
a counterclaim against [Tigeski] and seeking to have the case
transferred to State Court.”
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On December 19, 2019, without including Williams, a
Tigeski employee named Sue Jefcoat initiated a series of e-mails
with Daniels and “communicated acceptance” of the settlement to
Daniels. The day after, Jefcoat reached out to Daniels to confirm
that he had received her “acceptance.” Daniels acknowledged that
he had received the acceptance. On December 23, 2019, Jefcoat
asked Daniels for an update on “the status of payment and
settlement agreement.”
On December 26, 2019, Daniels replied asking for Tigeski’s
attorney’s e-mail information, noting that the rules of professional
conduct required him to communicate with the company’s lawyer
because the company was represented by counsel. Jefcoat
responded with Williams’s e-mail address and phone number, this
time copying Williams on the e-mail. On December 27, 2019,
Williams responded, acknowledging receipt of Daniels’ and
Jeffcoats’ e-mail, and stating that Daniels could either e-mail
Williams or call him.
On December 30, 2019, Daniels e-mailed Williams a
“proposed release.” A contentious exchange followed. Williams
responded, “Can you tell me why you negotiated a resolution with
my client that has been represented by counsel since the outset?”
Daniels then explained the nature of his e-mail communications
with Jefcoat. But Williams responded that he “really [didn’t] care
what [his] client did” and that Daniels “knew [Tigeski] w[as]
represented by counsel” yet still communicated with a Tigeski
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22-12106 Opinion of the Court 5
employee without involving counsel. Williams demanded to
know how long Daniels had been practicing law.
Based on the previous exchange, Daniels responded that he
assumed Tigeski was “no longer interested in resolving this
matter,” so he would “proceed accordingly.” Williams responded
that Daniels was “intentionally avoiding the point” that Daniels
“had absolutely no right to discuss anything with [Williams’s] client
knowing they were represented and in doing so ha[d] violated
several ethics guidelines.” Williams concluded the e-mail by again
asking Daniels how long he had been practicing law, emphasizing
that he “want[ed] an answer.” Daniels responded that he had been
practicing since 2012, to which Williams responded, “Then [you]
should know better.”
Daniels then asked Williams to “[p]lease confirm whether
your client still intends to accept the terms sent to your office on
December 11, 2019 by 5:00 P.M. today[;] [o]therwise we will
proceed as advised in the letter.” Williams responded telling
Daniels to “[g]o fuck [him]self,” that Daniels was “[at] minimum .
. . looking at a reprimand from the state bar if this [wa]s reported,”
and that he would not “put up with [Daniels] placing any kind of
arbitrary and short timeline” on the matter.
The next day, December 31, 2019, Williams e-mailed
Daniels, stating that Tigeski had told him they would “accept the
$2,000 and split their attorneys fees to date of $900.00,” meaning
“this [matter] would resolve for $2,450.00.” Daniels relayed this
information to the Mortons. The same day, Daniels, on behalf of
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6 Opinion of the Court 22-12106
the Mortons, filed responsive pleadings in the lien action, and a
motion to enforce the settlement agreement, or alternatively, to
transfer the case to DeKalb County State Court.
On January 3, 2020, Williams e-mailed Daniels that,
although the Mortons’ motion to enforce the settlement
agreement had “zero” chance of being granted, Tigeski wished to
go through with the original $2,000 deal. Daniels responded that
he would forward the check to Williams as soon as it was received.
Following payment, the parties filed a mutual dismissal of the lien
action with prejudice.
After the state action was dismissed, the Mortons, now
represented by different counsel, brought the instant suit against
Lien Filers and Williams in federal court. The Mortons alleged that
Williams’s e-mails with Daniels violated several provisions of the
FDCPA. Specifically, focusing on the e-mails from December 30
and 31, 2019, the Mortons alleged that defendants, who were debt
collectors within the meaning of the FDCPA, (1) violated 15 U.S.C.
§ 1692d by telling Daniels to “go fuck” himself, (2) violated §
1692e(2)(A) and § 1692f(1) by “seeking to collect amounts” they
“were not authorized to collect,” (3) violated § 1692e(11) by “not
disclosing in the initial communication” that “the communication
was from a debt collector and was an attempt to collect a debt,”
and (4) violated § 1692g by not providing the required notices in its
communications.
After a contentious discovery period, defendants moved for
summary judgment. Following oral argument on the motion, the
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22-12106 Opinion of the Court 7
magistrate judge issued a report and recommendation (“R&R”),
recommending that the defendants’ motion be granted. The
magistrate judge divided his analysis of the communications into
two parts: (1) the December 30, 2019 e-mail chain, ending with
Williams telling Daniels to “go fuck” himself, and (2) the December
31, 2019, e-mail where Williams told Daniels that Tigeski would
settle the case for $2,000 plus an additional $450 in attorneys’ fees.
As to the December 30, 2019, e-mail chain, the magistrate
judge ruled that the communications were not made in connection
with the collection of any debt, noting that the e-mails did not
allege the Mortons owed a debt, demand payment, or threaten
future collection proceedings. Instead, the magistrate judge held
that the December 30, 2019, e-mails related to “Williams’s opinion”
that Daniels had violated the rules of professional conduct “by
communicating directly with [an entity] whom” Daniels knew was
represented by counsel.
As to the December 31, 2019, e-mail from Williams stating
that Tigeski would settle for $2,000 plus an additional $450 in
attorneys’ fees, the magistrate judge held that this e-mail was also
not debt collection activity. While the magistrate judge
acknowledged that this was a “closer call” because it was a request
for payment of money, it held that “no reasonable jury could
conclude” that the e-mail “qualified as debt collection activity”
because it “lack[ed] virtually all the hallmarks of a debt collection
communication.” Rather, according to the magistrate judge,
Williams’s e-mail was prompted by Daniels’s request that Williams
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8 Opinion of the Court 22-12106
“confirm whether [Tigeski] still intend[ed] to accept the terms sent
to [his] office on December 11, 2019 by 5:00 P.M. today.” Daniels’s
request, the magistrate judge reasoned, “created an air of
ambiguity about whether settlement had been reached in the
parties’ minds.” Thus, the magistrate judge reasoned that
Williams’s response was a counteroffer, not an affirmative demand
for payment.
The district court adopted the R&R over plaintiffs’
objections, holding that “the only reasonable way to interpret Mr.
Williams’s [December 31] e-mail is as an effort to continue
negotiating the amount of a settlement payment to resolve the
DeKalb Action, and not toward the collection of a debt.”
The Mortons appealed.
II. Standard of Review
We review a district court’s grant of summary judgment de
novo. Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327,
1333 (11th Cir. 2022), cert. denied 143 S. Ct. 2465 (2023). Summary
judgment is proper if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Id.
(quotations omitted). “A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving
party for a reasonable jury to return a verdict in its favor.” Chapman
v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc)
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22-12106 Opinion of the Court 9
(quotations omitted). All submitted evidence is viewed in the light
most favorable to the non-moving party. Owens, 52 F.4th at 1333.
III. Discussion
The Mortons raise two issues on appeal. First, they argue
that a jury could find that Williams’s December 31, 2019, e-mail
stating that Tigeski would settle for $2,450 was a demand for more
money post-settlement in violation of the FDCPA.1 Second, they
argue that the district court erred by granting summary judgment
on grounds that were not raised by the parties: the unenforceability
of the settlement agreement that Jefcoat accepted on December 19,
2019.
A. FDCPA Challenge
As relevant to the Mortons’ challenge on appeal, the FDCPA
prohibits a “debt collector” from using “any false, deceptive, or
misleading representation or means in connection with the
collection of any debt,” including a false representation of “the
character, amount, or legal status of any debt[.]” 15 U.S.C.
§ 1692e(2)(A). The FDCPA also prohibits a “debt collector” from
using “unfair or unconscionable means to collect or attempt to
collect any debt.” 15 U.S.C. § 1692f. Such prohibited conduct
includes collecting “any amount (including any interest, fee,
charge, or expense incidental to the principal obligation) unless
1 The Mortons do not challenge the district court’s ruling as to the December
30, 2019, e-mail exchange that ended with Williams telling Daniels to “go
fuck” himself.
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such amount is expressly authorized by the agreement creating the
debt or permitted by law.” 15 U.S.C. § 1692f(1).2
Thus, the FDCPA requires a plaintiff to show (1) that the
defendant is a debt collector, (2) that the challenged conduct
related to debt collection, and (3) that the challenged conduct was
prohibited under the statute. See Reese v. Ellis, Painter, Ratterree &
Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012). Defendants
concede that they qualify as a debt collector for purposes of the first
element.
As to the second element, we have held that “[a]
communication has the necessary nexus to debt collection under
the FDCPA if it conveys information about a debt and its aim is at
least in part to induce the debtor to pay.” Lamirand v. Fay Servicing,
LLC, 38 F.4th 976, 979 (11th Cir. 2022). We make this
determination by viewing the communication “holistically.” Id.
Several aspects of a communication suggest that it is
connected to debt collection. For example, (1) explicit language
that a lender is “attempting to collect a debt,” (2) demands for “full
and immediate payment of all amounts due,” (3) threats that fees
2 Along with violations of 15 U.S.C. § 1692e(2)(A) and § 1692f(1), the Mortons’
complaint also alleged violations of § 1692a(2), § 1692d, § 1692e(11), and
§ 1692g. But the Mortons make no arguments related to these alleged other
violations on appeal, so those claims are abandoned. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that
an appellant abandons a claim when he either makes only passing references
to it or raises it in a perfunctory manner without supporting arguments and
authority.”).
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22-12106 Opinion of the Court 11
will be added or legal action will be commenced if all amounts on
the debt are not paid, (4) instructions on how the debt must be paid,
or (5) filing a lawsuit to collect the debt. See Reese, 678 F.3d at 1217
(debt collection activity found where lender sent letter that
demanded “full and immediate payment of all amounts due,”
threatened that attorney’s fees would be added unless payment
was made, and was enclosed with other documents that stated that
the lender was “attempting to collect a debt” (emphasis omitted));
Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303 (11th Cir. 2014)
(debt collection activity found where lender sent letter that stated
it was “for the purpose of collecting a debt,” referred throughout
to “collection efforts,” stated the debt amount and how to pay it,
and stated that additional attorneys’ fees would accrue as collection
efforts continued); Leblanc v. Unifund CCR Partners, 601 F.3d 1185,
1188, 1193 (11th Cir. 2010) (debt collection activity found where
lender sent letter stating legal action might ensue if debt was not
resolved within 35 days, and lender subsequently filed lawsuit);
Daniels v. Select Portfolio Servicing, Inc., 34 F.4th 1260, 1268 (11th Cir.
2022) (debt collection activity plausibly stated where lender sent
mortgage statement noting it was “an attempt to collect a debt,”
asked for payment of a certain amount by a certain date, and
provided for a late fee).
The Mortons’ FDCPA challenge fails because Williams’s
December 31, 2019, e-mail was not debt collection activity. The
e-mail—stating that Tigeski would accept the proposed settlement
of $2,000 but was requesting $450 additional dollars for attorneys’
fees—contained none of the recognized hallmarks of debt
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collection activity. The e-mail was not a letter stating that it was
“attempting to collect a debt” or demanding “full and immediate
payment.” See Reese, 678 F.3d at 1217. Nor did the e-mail threaten
legal action or additional fees if the Mortons did not pay within a
certain time. See Lamirand, 38 F.4th at 980; Leblanc, 601 F.3d at
1188, 1193.
Instead, given the context of the e-mail, we agree with the
district court that the e-mail was a counteroffer in what was
reasonably perceived to be an ongoing settlement negotiation.
While the parties do not dispute that Jefcoat’s December 19, 2019,
e-mail was an acceptance of the $2,000 settlement, the subsequent
e-mails created ambiguity as to the finality of that agreement. To
recap, because Tigeski’s counsel, Williams, was not copied on the
e-mail when Jefcoat accepted Daniels’s offer, Williams told Daniels
that Daniels “had absolutely no right” to do what he did and that a
motion to enforce that settlement had “zero” chance of being
granted. And after Williams expressed his strong disapproval of
Daniels’s actions, Daniels stated that he assumed Tigeski was “no
longer interested in resolving this matter,” and asked Williams to
“confirm whether” Tigeski “still intend[ed] to accept” the $2,000
settlement offer.
These communications suggest that negotiations were still
ongoing. Given this backdrop, Williams’s December 31, 2019,
e-mail—accepting the proposed settlement agreement of $2,000,
but requesting $450 additional dollars for attorneys’ fees—was a
counteroffer in a continuing negotiation, rather than a demand for
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22-12106 Opinion of the Court 13
collection of a debt. See Daniels, 34 F.4th at 1271 (suggesting that
“the history of the parties” reflects whether communication was a
debt collection attempt). Thus, this e-mail was not debt collection
activity and so falls outside the scope of the FDCPA.3
B. Whether the district court violated Federal Rule of Civil
Procedure 56(f)(2)
The Mortons also argue that the district court violated
Federal Rule of Civil Procedure 56(f)(2) when it “ma[d]e the
enforceability of the underlying settlement agreement an issue” in
its ruling. They argue that neither party made arguments about
the enforceability of the settlement agreement, nor did the district
court give the parties notice and a reasonable time to respond that
it was planning to rule on the enforceability of the underlying
settlement agreement. Fed. R. Civ. P. 56(f)(2) (providing that a
court may grant a motion for summary judgment “on grounds not
raised by a party” after “giving notice and a reasonable time to
respond”).
The Mortons’ challenge fails because the district court did
not rule on the enforceability of the settlement agreement. Recall
that the magistrate judge found that “Daniels’s request that Mr.
Williams confirm the settlement amount created an air of
3 Because a communication must be debt collection activity to fall within the
FDCPA, our holding that Williams’s e-mail was not debt collection activity
resolves the case. Thus, we need not address the third prong: whether the
debt collection activity involved conduct that was prohibited by § 1692e(2)(A)
and § 1692f.
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ambiguity about whether settlement had been reached in the
parties’ minds.” It then clarified that “[w]hether the Mortons could
move to enforce the terms of the $2,000 settlement is a separate
question from whether the parties believed they were still
negotiating, and whether those negotiations could have resulted in
a modification of the settlement terms without offense to the
FDCPA.” Thus, rather than ruling on the enforceability of the
alleged settlement agreement, the magistrate judge, in
determining whether the exchange constituted debt collection
activity, merely considered the context of the e-mail exchange and
concluded that Williams’s e-mail was intended to be a counteroffer
and not a demand for payment of a debt.4
Regardless, even accepting the Mortons’ argument that the
district court’s ruling effectively passed on the enforceability of the
settlement, there still was no Rule 56(f) violation. First, the parties
put the e-mail exchange related to the settlement directly at issue
in this appeal by asserting that the e-mails violated the FDCPA.
Second, the parties argued in their respective summary judgment
motions that an enforceable settlement agreement existed. Third,
the magistrate judge held oral argument and, according to
Tigeski’s brief on appeal, questioned the parties about the existence
4 Nor did the district court, in adopting the magistrate judge’s report and rec-
ommendation, make a ruling as to the enforceability of the settlement agree-
ment. It similarly stated that “the only reasonable way to interpret Mr. Wil-
liams’s e-mail is as an effort to continue negotiating the amount of a settlement
payment to resolve the DeKalb Action, and not toward the collection of a
debt.”
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of the settlement agreement and advised the parties that the
existence of a settlement agreement was a question of law for the
court to decide.5 In other words, the parties had adequate notice
and opportunity to be heard on the existence and enforceability of
the settlement agreement. Accordingly, the Mortons are not
entitled to relief on this issue either.
AFFIRMED.
5 Although we do not have a transcript of the oral argument, the Mortons do
not dispute Tigeski’s contention.
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