FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARRY STIMPSON, No. 18-35833

Plaintiff-Appellant,
D.C. No.
v. 4:17-cv-00431-BLW

MIDLAND CREDIT
MANAGEMENT, INC., a Kansas OPINION
corporation; MIDLAND
FUNDING, LLC, a Delaware
limited liability company,
Defendants-Appellees.

Appeal from the United States District Court

for the District of Idaho
B. Lynn Winmill, District Judge, Presiding

Argued and Submitted October 24, 2019

Seattle, Washington

Filed December 18, 2019

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit

Judges, and Jed S. Rakoff,* District Judge.

Opinion by Judge Ikuta

*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 STIMPSON V. MIDLAND CREDIT MANAGEMENT

SUMMARY**

Fair Debt Collection Practices Act

Affirming the district court’s summary judgment in favor

of the defendant in an action under the Fair Debt Collection
Practices Act, the panel rejected plaintiff’s claim that a debt
collector’s letter was deceptive or misleading under 15 U.S.C.
§ 1692e because it attempted to persuade him to pay a time-
barred debt.

The panel held that a debt collector is entitled to collect

a lawful, outstanding debt even if the statute of limitations
has run, so long as the debt collector does not use means that
are deceptive or misleading and otherwise complies with
legal requirements. The panel concluded that the letter’s
statute-of-limitations disclosure would not mislead the least
sophisticated debtor into thinking that the debt collector could
use legal means to collect the debt, and the letter was not
deceptive or misleading for not warning about the potential
for revival of the statute of limitations. Further, there is
nothing inherently deceptive or misleading in attempting to
collect a valid, outstanding debt, even if it is unenforceable in
court.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 3

COUNSEL

Scott C. Borison (argued), Esq., Legg Law Firm, LLP, San

Mateo, California; Ryan A. Ballard, Esq., Ballard Law,
PLLC, Rexburg, Idaho; Peter A. Holland, Esq., Holland Law
Firm PC, Annapolis, Maryland; for Plaintiff-Appellant.

Joshua C. Dickinson (argued), Spencer Fane LLP, Omaha,

Nebraska; Lyle J. Fuller, Fuller & Fuller, PLLC, Preston,
Idaho; for Defendants-Appellees.

OPINION

IKUTA, Circuit Judge:

Barry Stimpson contends that a debt collector’s letter was

deceptive or misleading because it attempted to persuade him
to pay a time-barred debt. We reject this claim because a
debt collector is entitled to collect a lawful, outstanding debt
even if the statute of limitations has run, so long as the debt
collector does not use means that are deceptive or misleading
and otherwise complies with legal requirements.

In February 2006, Barry Stimpson obtained a credit card

from HSBC Bank Nevada, N.A. (HSBC). HSBC’s credit
agreement with Stimpson provided that Nevada law applied
4 STIMPSON V. MIDLAND CREDIT MANAGEMENT

to the account.1 Stimpson charged purchases to his card, but

did not pay off the entire balance. He made his last payment
on December 12, 2008. In September 2009, HSBC sold
Stimpson’s account to a debt collector, Midland Funding,
LLC.2 Under Nevada law, the limitations period for bringing
a legal action against Stimpson for recovery of the amount
owed on the credit card expired on December 12, 2014, six
years after Stimpson’s last payment. See NRS §§ 11.010,
11.190, 11.200.

Over two years later, in March 2017, Midland Credit sent

a letter to Stimpson indicating that his account balance was
$1,145.60.3 The upper right-hand corner of the letter states:
“Offer Expiration Date: 04-27-2017.” In the middle of the
page, the letter states: “Available Payment Options. Option
1: 40% OFF. Option 2: 20% OFF Over 6 Months. Option
3: Monthly Payments As Low As: $50 per month. Call
today to discuss your options and get more details.”
Immediately below the payment options, the letter states:

1
The credit agreement stated:

This Agreement and your Account will be governed by

federal law and, to the extent state law is applicable, the
laws of the state of Nevada, whether or not you live in
Nevada and whether or not your Account is used
outside Nevada. This Agreement is entered into in
Nevada, your Account is maintained in Nevada, and all
credit under this Agreement will be extended from
Nevada.
2
We refer to Midland Funding and Midland Credit Management,
Inc., which services the account, collectively as “Midland.”
3
A copy of the letter is attached to this opinion.
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 5

Benefits of Paying Your Debt

--Save $458.24 if you pay by 04-27-2017

--Put this debt behind you.
--No more communication on this account.
--Peace of mind.

The letter is signed by Tim Bolin, Division Manager.

Under his signature, the letter states:

The law limits how long you can be sued on a

debt and how long a debt can appear on your
credit report. Due to the age of this debt, we
will not sue you for it or report payment or
non-payment of it to a credit bureau.

Near the bottom of the page, the letter provides: “We are not
obliged to renew any offers provided. . . . PLEASE SEE
REVERSE SIDE FOR IMPORTANT DISCLOSURE
INFORMATION.”

The back of the letter states: “Please understand this is a

communication from a debt collector. This is an attempt to
collect a debt.” Further down the page, the letter states: “We
are required under state law to notify consumers of the
following rights. This list does not contain a complete list of
the rights consumers have under state and federal law.” The
letter then provides specific disclosures required by the laws
of Massachusetts, Minnesota, New York City, North
Carolina, and Tennessee.

After receiving the letter, Stimpson brought this action

against Midland in Idaho state court on behalf of himself and
6 STIMPSON V. MIDLAND CREDIT MANAGEMENT

a purported class of similarly situated individuals.4 The

complaint alleged that Midland violated the FDCPA by
attempting to collect “time-barred debts without disclosure of
that fact.” Midland removed the case to federal court and the
district court granted summary judgment in favor of Midland.
Stimpson v. Midland Credit Mgmt., 347 F. Supp. 3d 538, 553
(D. Idaho 2018). Stimpson appealed.

We have jurisdiction under 28 U.S.C. § 1291. We review

a district court’s grant of summary judgment de novo and
“may affirm on any basis supported by the record.” Gordon
v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009).
Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).

II

Congress enacted the FDCPA in 1977 due to finding

“abundant evidence of the use of abusive, deceptive, and
unfair debt collection practices by many debt collectors” and
that “[e]xisting laws and procedures for redressing these
injuries are inadequate to protect consumers.” 15 U.S.C.
§ 1692(a), (b). Congress did not intend to ban debt collection
but instead intended “to eliminate abusive debt collection
practices by debt collectors, to insure that those debt
collectors who refrain from using abusive debt collection

4
According to the complaint, “The Class consists of (a) all
individuals in Idaho (b) to whom Midland Funding or Midland Credit
(c) sent a letter seeking to collect a debt (d) which is time barred (e) which
does not disclose that partial payment or other action revives the debt
(f) which letter was sent within the one (1) year period immediately
preceding the filing of this complaint.”
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 7

practices are not competitively disadvantaged, and to promote

consistent State action to protect consumers against debt
collection abuses.” § 1692(e). In other words, the FDCPA
was designed to stop a relatively small number of
“unscrupulous debt collectors” from using a “host of unfair,
harassing, and deceptive debt collection practices without
imposing unnecessary restrictions on ethical debt collectors.”
S. Rep. No. 95-382, at 1–2, reprinted in 1977 U.S.C.C.A.N.
1695, 1696 (1977).

To prevail on a claim under the FDCPA, a plaintiff must

establish that a debt collector, as defined in § 1692a(6), has
failed to comply with a provision of the FDCPA. See
§ 1692k; Baker v. G. C. Servs. Corp., 677 F.2d 775, 777 (9th
Cir. 1982) (“Section 1692k, which governs a debt collector’s
liability under the [FDCPA], provides in pertinent part that
‘any debt collector who fails to comply with any provision of
this subchapter with respect to any person is liable to such
person.’”). On appeal, Stimpson contends that Midland’s
letter violated § 1692e, which provides: “A debt collector
may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt.”
§ 1692e. Section 1692e includes a nonexclusive list of
16 practices that are deemed to be “false, deceptive,
or misleading.” § 1692e. Those practices include
misrepresenting the “character, amount, or legal status of any
debt,” § 1692e(2), and threatening to “take any action that
cannot legally be taken,” § 1692e(5). Section 1692e(10),
which has been referred to as a “catchall” provision, Gonzalez
v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1062 (9th Cir.
2011), prohibits “[t]he use of any false representation or
deceptive means to collect . . . any debt,” § 1692e(10).
8 STIMPSON V. MIDLAND CREDIT MANAGEMENT

In determining whether conduct violates § 1692e, we

undertake an objective analysis of the question whether the
“least sophisticated debtor would likely be misled by a
communication.” Gonzalez, 660 F.3d at 1061 (quoting
Donohue v. Quick Collect Inc., 592 F.3d 1027, 1030 (9th Cir.
2010)); accord Tourgeman v. Collins Fin. Servs., Inc., 755
F.3d 1109, 1117–18 (9th Cir. 2014); Baker, 677 F.2d at 778.
This is a legal, not a factual, determination. See Gonzalez,
660 F.3d at 1061 (citing Terran v. Kaplan, 109 F.3d 1428,
1432 (9th Cir. 1997) (collecting cases)).5 The “least
sophisticated debtor” is distinguished from the ordinary,
reasonable person by being financially unsophisticated. See
id. at 1062. Such a debtor is comparatively uninformed and
naive about financial matters and functions as an “average
consumer in the lowest quartile (or some other substantial
bottom fraction) of consumer competence.” Evory v. RJM
Acquisitions Funding L.L.C., 505 F.3d 769, 774 (7th Cir.
2007) (cited in Gonzales, 660 F.3d at 1062). Even so, the
debtor has “rudimentary knowledge about the financial
world.” Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643,
645 (7th Cir. 2009) (citation omitted). While financially
unsophisticated, this debtor is not “the least intelligent
consumer in this nation of 300 million people.” Evory, 505
F.3d at 774. Rather, the debtor grasps the normal, everyday
meaning of words, see Gonzales, 660 F.3d at 1062, and is
“capable of making basic logical deductions and inferences,”
Wahl, 556 F.3d at 645 (quoting Pettit v. Retrieval Masters

5
In other circuits, the question whether a debtor would be misled by
a communication is a question of fact. See, e.g., Kistner v. Law Offices of
Michael P. Margelefsky, LLC, 518 F.3d 433, 441 (6th Cir. 2008) (“[A]
jury should determine whether the letter is deceptive and misleading.”);
Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999)
(“Whether a given message is confusing [under the FDCPA] is . . . a
question of fact, not of law or logic.”).
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 9

Creditors Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir.2000)).

The least sophisticated debtor is not unreasonable, Turner v.
J.V.D.B. & Assocs., Inc., 330 F.3d 991, 995 (7th Cir. 2003),
and has a “basic level of understanding and willingness to
read with care,” Gonzales, 660 F.3d at 1062 (cleaned up)
(quoting Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d
Cir. 2008)). In short, the least sophisticated debtor is
reasonable and functional, but lacks experience and education
regarding financial matters.

III

In light of this background, we begin by considering

Stimpson’s claim that Midland’s letter used “false, deceptive,
or misleading representation[s]” in violation of § 1692e.

Stimpson first identifies the letter’s statute-of-limitations

disclosure as a primary example of misleading or deceptive
representations. This disclosure states:

The law limits how long you can be sued on a

debt and how long a debt can appear on your
credit report. Due to the age of this debt, we
will not sue you for it or report payment or
non-payment of it to a credit bureau.

According to Stimpson, this language is deceptive or

misleading because the letter does not clarify that his debt is
time-barred as a matter of law; rather, it states Midland “will
not” sue, which could mean that Midland has simply decided
not to sue.
10 STIMPSON V. MIDLAND CREDIT MANAGEMENT

We disagree. A person who is unsophisticated regarding

financial matters, but is still “capable of making basic logical
deductions and inferences,” Wahl, 556 F.3d at 645 (citation
omitted), would not be deceived or misled by this language.
The phrase “[d]ue to the age of this debt, we will not sue
you,” follows immediately after the sentence explaining that
“[t]he law limits how long you can be sued on a debt.” The
first sentence “draws a connection between the legal
unenforceability of debts in general and [Midland’s] promise
not to sue.” Stimpson, 347 F. Supp. 3d at 551 (cleaned up)
(quoting Trichell v. Midland Credit Mgmt., Inc., No. 4:18-cv-
00132-ACA, 2018 WL 4184570, at *3 (N.D. Ala. Aug. 31,
2018)). The natural conclusion is that the debt is time barred.
Nothing in the letter falsely implies that Midland could bring
a legal action against Stimpson to collect the debt. For
instance, the letter does not offer him a “settlement offer,”
which could “falsely impl[y] that the underlying debt is
enforceable in court.” Buchanan v. Northland Grp., Inc., 776
F.3d 393, 399 (6th Cir. 2015); see also Tatis v. Allied
Interstate, LLC, 882 F.3d 422, 429 (3d Cir. 2018).
Accordingly, we conclude that the least sophisticated debtor
would understand the letter’s disclosure to mean that Midland
cannot take a legal action to collect the debt.

Our conclusion that Midland’s disclosure would not

mislead or deceive the least sophisticated debtor is supported
by the fact that federal and state authorities have found
substantially similar language to be appropriate (or necessary)
to alert consumers about the effect of the statute of
limitations. The Consumer Financial Protection Bureau
(CFPB), the agency tasked with administering the FDCPA,
see § 1692l(d), and whose mission is to protect consumers,
required Midland to use this exact language in its debt-
collection communications to avoid implying that it could
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 11

legally enforce the debtor’s duty to pay the debt.6 Moreover,

three states (California, Connecticut, and Texas) enacted
legislation requiring a materially similar disclosure when a
debt collector attempts to collect a time-barred debt.7

Finally, the Sixth Circuit concluded that a debt collector

could correct “any possible misimpression by unsophisticated
consumers” regarding the applicable statute of limitations by
adding a substantially similar disclosure: “The law limits
how long you can be sued on a debt. Because of the age of
your debt, [debt collector] will not sue you for it, and [debt

6
In 2015, the CFPB entered into a settlement agreement with
Midland, requiring the following:

[F]or those Consumer accounts where the Debt is Time-

Barred and generally cannot be included in a Consumer
report under the provisions of the FCRA [Fair Credit
Reporting Act], 15 U.S.C. § 1681c(a), but can be
collected through other means pursuant to applicable
state law, [communications] will include the following
statement: “The law limits how long you can be sued
on a debt and how long a debt can appear on your credit
report. Due to the age of this debt, we will not sue you
for it or report payment or non-payment of it to a credit
bureau[.]”
7
See Cal. Civ. Code § 1788.52(d)(3) (“The law limits how long you
can be sued on a debt. Because of the age of your debt, we will not sue
you for it, and we will not report it to any credit reporting agency.”);
Conn. Gen. Stat. § 36a-805(a)(14)(B) (“The law limits how long you can
be sued on a debt. Because of the age of your debt, (INSERT OWNER
NAME) will not sue you for it and (INSERT OWNER NAME) will not
report it to any credit reporting agencies.”); Tex. Fin. Code
§ 392.307(e)(2) (“The law limits how long you can be sued on a debt.
Because of the age of your debt, we will not sue you for it. This notice is
required by law.” (emphasis removed)).
12 STIMPSON V. MIDLAND CREDIT MANAGEMENT

collector] will not report it to any credit reporting agency.”

Buchanan, 776 F.3d at 400.

Given the consensus that language substantially similar to

that used by Midland provides appropriate notice to
consumers, we conclude that the least sophisticated debtor
would not be confused by Midland’s disclosure.
Accordingly, we reject Stimpson’s argument that the letter’s
statute-of-limitations disclosure would mislead the least
sophisticated debtor into thinking that Midland could use
legal means to collect the debt.

Second, Stimpson argues that Midland’s letter is

deceptive or misleading because it does not warn debtors
regarding the potential dangers of making a payment on a
time-barred debt.

In some states, the statute of limitations on a debt can be

revived or restarted after it has expired. That is, an
acknowledgment of a debt “from which a promise to pay may
be implied, removes the bar created by the statute of
limitations and revives the debt.” Potterton v. Ryland Grp.,
Inc., 424 A.2d 761, 763 (Md. 1981). In states that follow this
approach, such as Idaho, a partial payment on a debt restarts
the statute of limitations and thus re-establishes the creditor’s
right to enforce the debt in court. See Idaho Code § 5-238
(“[A]ny payment of principal or interest is equivalent to a
new promise in writing, duly signed, to pay the residue of the
debt.”); Modern Mills, Inc. v. W.W. Havens, 739 P.2d 400,
403 (Idaho Ct. App. 1987); see also Renault v. L. N. Renault
& Sons, Inc., 188 F.2d 317, 320 (3d Cir. 1951) (stating that
New Jersey law “implies from partial payment a promise to
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 13

pay the entire obligation.”). In other states, such as Nevada,

a partial payment on a time-barred debt does not revive the
statute of limitations. See Riff v. Kowal, 352 P.2d 819, 820
(Nev. 1960).

Stimpson makes a two-step argument as to why

Midland’s letter was misleading for failing to warn him about
the risk of revival. First, he argues that Idaho law applies to
the debt in this case, notwithstanding the provision in his
credit agreement stating that Nevada law applies. If Idaho
law applies, Stimpson claims, the statute of limitations on a
debt, see Idaho Code §§ 5-201, 5-216, can be revived by a
partial payment on the debt, see Idaho Code § 5-238; Modern
Mills, 739 P.2d at 403. Second, Stimpson argues that even if
Nevada law applies to his debt, had he made a partial
payment on the debt, he would have been in a worse legal
position because he would be forced to argue with Midland
about whether Idaho or Nevada law applied. Therefore,
Stimpson argues, whether Idaho or Nevada law applies to his
debt, Midland’s failure to warn him of the risk of revival
violated the FDCPA.

These arguments fail. Although Congress expressly

required debt collectors to provide specific statements to
debtors on certain issues,8 nothing in the FDCPA requires

8
Section 1692e(11) requires that debt collectors “disclose in the
initial written communication with the consumer and, in addition, if the
initial communication with the consumer is oral, in that initial oral
communication, that the debt collector is attempting to collect a debt and
that any information obtained will be used for that purpose” and “in
subsequent communications that the communication is from a debt
14 STIMPSON V. MIDLAND CREDIT MANAGEMENT

debt collectors to make disclosures that partial payments on

debts may revive the statute of limitations in certain states.
“Generally, the inclusion of certain terms in a statute implies
the exclusion of others.” In re Cybernetic Servs., Inc., 252
F.3d 1039, 1053 (9th Cir. 2001); see also Lamie v. U.S. Tr.,
540 U.S. 526, 538 (2004) (“There is a basic difference
between filling a gap left by Congress’ silence and rewriting
rules that Congress has affirmatively and specifically
enacted.” (citation omitted)). Stimpson does not point to any
language in the FDCPA that can reasonably be interpreted as
requiring debt collectors to provide legal advice on revival
statutes. Nor is the failure to provide such specific legal
advice misleading.9 Accordingly, we conclude that
Midland’s letter was not deceptive or misleading for not
warning about the potential for revival of the statute of
limitations.

collector.” 15 U.S.C. § 1692e(11). Section 1692g(a) similarly requires

that a debt collector make specific disclosures, such as the “amount of the
debt” and to whom it is owed, “[w]ithin five days” of the initial
communication attempting to collect a debt. § 1692g(a).
9
To the contrary, the CFPB concluded that a rule requiring debt
collectors to provide such legal advice would be potentially confusing to
debtors, and therefore did not propose any rule on that issue. See Small
Business Review Panel for Debt Collector and Debt Buyer Rulemaking,
Outline of Proposals Under Consideration and Alternatives Considered,
dated July 28, 2016, at 21 (“[T]he Bureau’s testing to date suggests that
consumers may not fully understand [a disclosure about the potential
effect of making a partial payment], because it seems counterintuitive to
them.”).
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 15

Finally, Stimpson points to several statements in

Midland’s letter that Stimpson claims misrepresented the
benefits of paying the time-barred debt, and therefore were
misleading or deceptive. Before considering the statements
Stimpson targets, we first address the underlying thrust of
Stimpson’s argument: that the letter was drafted to encourage
debtors to pay the time-barred debt, and thus the language
and layout of the letter would prevent the least sophisticated
debtors from realizing “that they don’t have to pay a penny.”

This argument is built on several faulty premises. Most

important, it assumes that Stimpson’s debt was extinguished
when the statute of limitations ran. This is untrue. In most
states, a statute of limitations does not extinguish a party’s
rights, but merely precludes a judicial remedy. See 54 C.J.S.
Limitations of Actions § 20 (2019) (collecting cases); Marc
C. McAllister, Ending Litigation & Financial Windfalls on
Time-Barred Debts, 75 Wash. & Lee L. Rev. 449, 458 (2018)
(“[M]ost courts agree that a statute of limitations bar does not
actually extinguish the debt itself.”); see also Midland
Funding, LLC v. Johnson, 137 S. Ct. 1407, 1411 (2017)
(“Alabama’s law, like the law of many States, provides that
a creditor has the right to payment of a debt even after the
limitations period has expired.”); Huertas v. Galaxy Asset
Mgmt., 641 F.3d 28, 32 (3d Cir. 2011) (holding that under
New Jersey law, a “debt obligation is not extinguished by the
expiration of [a] statute of limitations, even though the debt
is ultimately unenforceable in a court of law”).10 In these

10
Mississippi and Wisconsin are among the few exceptions that
currently have statutes providing that the expiration of the limitations
period extinguishes both the remedy and the underlying right. See, e.g.,
16 STIMPSON V. MIDLAND CREDIT MANAGEMENT

states, the debtor “still owes the debt.” Huertas, 641 F.3d at
32. Nevada and Idaho have both adopted this majority rule,11
and so the time-bar merely prevents Midland from enforcing
Stimpson’s debt in court; Stimpson’s debt was not
extinguished.

This being the case, there is nothing inherently deceptive

or misleading in attempting to collect a valid, outstanding
debt, even if it is unenforceable in court. See Buchanan, 776
F.3d at 397; cf. Holzman v. Malcolm S. Gerald & Assocs.,
Inc., 920 F.3d 1264, 1273 (11th Cir. 2019) (“[W]e reject
Plaintiff’s claim that the general practice of attempting to
collect on time-barred debt is per se unfair or unconscionable
in violation of 1692f of the FDCPA.”). In enacting the
FDCPA, Congress did not purport to prevent debtors from
attempting to collect lawful outstanding debts, so long as they
did not use abusive or unfair means. See 15 U.S.C.
§ 1692(e). Accordingly, debt collectors may attempt to
persuade debtors to make payments, so long as the debt

Miss Code Ann. § 15-1-3(1) (“The completion of the period of limitation

prescribed to bar any action, shall defeat and extinguish the right as well
as the remedy.”); Wis. Stat. § 893.05 (“When the period within which an
action may be commenced on a Wisconsin cause of action has expired, the
right is extinguished as well as the remedy.”).
11
See Sallaz v. Rice, 384 P.3d 987, 992 (Idaho 2016) (holding that,
under Idaho law, “[t]he running of the statute of limitations does not
extinguish the debt”); Facklam v. HSBC Bank USA for Deutsche ALT-A
Sec. Mortg. Loan Trust, 401 P.3d 1068, 1070–71 (Nev. 2017) (holding,
under “long-standing” Nevada precedent, lender may foreclose on
mortgaged property that is security for payment of a promissory note even
if “the statute of limitations for contractual remedies on the note has
passed”); Henry v. Confidence Gold & Silver Mining Co., 1 Nev. 619, 622
(1865) (recognizing “modern” rule that a “statute of limitation [does] not
destroy the debt but only [takes] away the remedy”).
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 17

collector otherwise complies with statutory requirements.

The letter’s disclosure that Midland “will not sue” effectively
informed the least sophisticated debtor, who is deemed to
have a “willingness to read with care,” Gonzales, 660 F.3d at
1062, that the debt could not be collected in court, cf.
§ 1692e(5). Accordingly, we reject Stimpson’s argument that
merely attempting to persuade a debtor to pay a lawful debt
is deceptive or misleading.

Nonetheless, we recognize that attempts to collect time-

barred debts can present unique risks to unsophisticated
consumers. Those attempting to collect time-barred debts
may, for example, be tempted to misrepresent the “character,
amount, or legal status of [the] debt,” § 1692e(2), or to
threaten to “take legal action that cannot legally be taken,”
§ 1692e(5). This is evidenced by the fact that multiple circuit
courts have held that debt collectors are potentially liable
under the FDCPA for implying that a time-barred debt
remains legally enforceable. See Tatis, 882 F.3d at 429–30;
Pantoja v. Portfolio Recovery Assocs., LLC, 852 F.3d 679,
686–87 (7th Cir. 2017), cert. denied, 138 S. Ct. 736 (2018);
Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507,
509 (5th Cir. 2016); Buchanan, 776 F.3d at 395; McMahon v.
LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th Cir. 2014).
Thus, we examine with particular care Stimpson’s claims that
the letter he received was deceptive.

In addition to his theme that urging consumers to pay

time-barred debt is per se misleading or deceptive, Stimpson
also points to specific language in the Midland letter that he
claims violates § 1692e. First, Stimpson argues that the letter
is misleading because it states that he can save money by
paying the debt before a certain date but does not inform him
he has the option to “pay nothing.” But as explained above,
18 STIMPSON V. MIDLAND CREDIT MANAGEMENT

Midland had no obligation to encourage Stimpson not to pay

the debt. Midland’s letter accurately explained that if
Stimpson paid off the debt before a certain time, one of the
benefits would be a discount on what was legally owed. The
letter is not deceptive or misleading for doing so because
creditors have “the right to payment of a debt even after the
limitations period has expired.” Johnson, 137 S. Ct. at 1411.
“There is nothing wrong with informing debtors that a debt
remains unpaid or for that matter allowing them to satisfy [a]
debt at a discount.” Buchanan, 776 F.3d at 397.

Stimpson next contends that the letter is deceptive or

misleading because it states that a benefit of paying the debt
is “[n]o more communication on this account,” but does not
inform him that he has a right to demand that
communications cease under the FDCPA, § 1692c(c). Again,
we disagree. The letter merely states, accurately, that one of
the “benefits of paying [the] debt” is “[n]o more
communication on th[e] account.” Midland had no obligation
to inform Stimpson that he could request that
communications cease under § 1692c(c).12

12
Section 1692c(c) does not require the complete cessation of
communications. Even after a consumer notifies a debt collector that the
“consumer wishes the debt collector to cease further communication”
under § 1692c(c), the debt collector can still communicate with the
consumer: (1) “to advise the consumer that the debt collector’s further
efforts are being terminated,” (2) “to notify the consumer that the debt
collector or creditor may invoke specified remedies which are ordinarily
invoked by such debt collector or creditor,” and (3) “where applicable, to
notify the consumer that the debt collector or creditor intends to invoke a
specified remedy.” § 1692c(c).
 STIMPSON V. MIDLAND CREDIT MANAGEMENT 19

Finally, Stimpson argues that the letter is deceptive or

misleading because it states that one of the benefits of paying
the debt is “[p]eace of mind.” Again, we disagree. A
common sense reading of this statement is that the debtor
may be relieved of any sense of worry, guilt, or responsibility
once the debt is paid and extinguished. Again, the letter’s
disclosure that Midland “will not sue” informs the least
sophisticated debtor that the phrase “[p]eace of mind” does
not implicitly threaten litigation. Cf. § 1692e(5).

In short, no part of the letter, standing alone, is deceptive

or misleading. Nor is the letter deceptive or misleading when
“read as a whole.” Gonzales, 660 F.3d at 1064. The
disclosure “we will not sue” dispels the possibility that the
least sophisticated debtor will read any of the “Benefits of
Paying Your Debt” as falsely implying that non-payment will
result in adverse consequences (such as Midland taking legal
action in violation of § 1692e(5)) if the debtor does not avail
himself of one of the “Available Payment Options” before the
“Offer Expiration Date.”

In sum, we reject Stimpson’s argument that a letter is

deceptive or misleading if a debt collector tries to persuade
debtors to pay what they owe. Congress could prohibit, or
otherwise restrict, attempts to collect time-barred debts, but
it has not done so. Instead, liability attaches under § 1692e
only if a debt collection letter is “false, deceptive, or
misleading.” Stimpson has not identified anything false,
deceptive, or misleading in Midland’s letter, so his FDCPA
20 STIMPSON V. MIDLAND CREDIT MANAGEMENT

claim fails. The district court did not err in granting summary
judgment in Midland’s favor.13

AFFIRMED.

13
For the first time on appeal, Stimpson argues that “[e]ven if the
Court does not agree that the FDCPA imposes a duty on Midland to give
all of the facts . . . to make[] its statements not misleading or confusing,
common law principles still hold Midland responsible for its omissions of
all of the facts.” But Stimpson did not assert a claim for relief based on
common-law principles; he alleged a single claim under the FDCPA. Nor
did Stimpson raise this argument below. Accordingly, we decline to
consider it. See Sierra Med. Servs. All. v. Kent, 883 F.3d 1216, 1223 (9th
Cir. 2018).
STIMPSON V. MIDLAND CREDIT MANAGEMENT 21

APPENDIX
Case 4:17-cv-00431-BLW Document 22-3 Filed 03/21/18 Page 1 of 2

EX 3

Record Excerpt 038

Case 4:17-cv-00431-BLW Document 22-3 Filed 03/21/18 Page 2 of 2

Record Excerpt 039