Vincent v. The Money Store

This case requires us to determine if the consumer protections of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., apply to a mortgage lender that has purchased mortgages initially payable to other lenders and, after the homeowners defaulted on their mortgages, hired a law firm to send allegedly deceptive debt collection letters on its behalf. Plaintiffs-Appellants Lori Jo Vincent, Ruth Ann Gutierrez, Linda Garrido, and John Garrido (collectively, the “plaintiffs”) appeal from a judgment of the United States District Court for the Southern District of New York (Koeltl, J.), which granted defendants’ motion for summary judgment on plaintiffs’ TILA claims and denied plaintiffs’ motion for reconsideration of the district court’s (Sprizzo, J.) earlier dismissal of their FDCPA claims against Defendants-Appellees The Money Store, TMS Mortgage, Inc., and HomeEq Servicing Corp. (collectively, “The Money Store”).

With respect to plaintiffs’ FDCPA claims, although creditors are generally not considered debt collectors subject to the FDCPA, the statute contains an excep*91tion to creditor immunity where the creditor, “in the process of collecting [its] own debts, uses any name other than [its] own which would indicate that a third person is collecting or attempting to collect such debts.” 15 U.S.C. § 1692a(6). Plaintiffs contend that The Money Store used the name of the law .firm Moss, Codilis, Staw-iarski, Morris, Schneider & Prior, LLP (“Moss Codilis”) by hiring the law firm to send out collection letters that falsely indicated that Moss Codilis had been retained to collect the debts The Money Store was in fact collecting. The district court rejected that argument, finding that The Money Store had not used a name other than its own, and therefore could not be found liable for violating the FDCPA through the so-called false name exception.

Similarly, with respect to plaintiffs’ TILA claims, the district court found that The Money Store could not be held liable under TILA for charging plaintiffs unauthorized fees on their accounts and failing to refund the resulting credit balances. TILA applies only to a “creditor,” which is defined in the statute as the person to whom the debt is initially payable. 15 U.S.C. § 1602(g).1 Because The Money Store was an assignee of the plaintiffs’ notes, and therefore not the person to whom the debts were initially payable, the district court determined that The Money Store did not qualify as a creditor under TILA.

For the reasons set forth below' and resolving all factual disputes in plaintiffs’ favor, we respectfully first hold that the district court erred in concluding that The Money Store was not a “debt collector” under the false name exception to FDCPA liability. Where a creditor, in the process of collecting its own debts, hires a third party for the express purpose of representing to its debtors that the third party is collecting the creditor’s debts, and the third party engages in no bona fide efforts to collect those debts, the false name exception exposes the creditor to FDCPA liability. With respect to the TILA claims, however, we conclude that the district court correctly determined that, because plaintiffs’ mortgage documents did not name The Money Store as the person to whom the debt was initially payable, The Money Store is not a “creditor” under TILA and is therefore not subject to liability. Accordingly, we affirm the judgment of the distinct court, in part, vacate in part, and remand the case for further proceedings consistent, with this Opinion.

BACKGROUND

I. Factual Background

The following facts are drawn from the record before the district court and are undisputed unless otherwise noted:

Plaintiffs-Appellants are homeowners who defaulted on their mortgages. The Money Store, a mortgage lender, serviced the loans on which plaintiffs defaulted.

A. The Plaintiffs’Mortgages

Plaintiff Lori Jo Vincent took out a mortgage loan on her home in Carrollton, Texas on February 16, 1998. She executed a promissory note and a deed of trust with her lender, Accubanc Mortgáge Corporation. In the promissory note Vincent agreed:

In return for a loan that I have received, I promise to pay U.S. $67,600.00 (this amount is called “principal”), plus interest, to the order of the Lender. The *92Lender is ACCUBANC MORTGAGE CORPORATION. I understand that the Lender may transfer this Note.

J. App’x 851. In addition, the deed of trust states:

Borrower [Vincent] owes Lender [Accu-banc] the principal sum of SIXTY-SEVEN THOUSAND SIX HUNDRED and NO/lOO — Dollars (U.S. $67,600.00). This debt is evidenced by Borrower’s note dated the same date as this Security Instrument (“Note”), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on March 1, 2028. This Security Instrument secures to Lender [Accubanc]: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note....

J. App’x 857. Neither the promissory note nor the deed of trust mentions The Money Store.

At the time of the loan’s execution on February 16, 1998, Accubanc gave Vincent the disclosure statement required by TILA, 15 U.S.C. § 1631.2 Immediately after executing the mortgage, Accubanc transferred its interest in the loan to Equi-Credit Corporation of America by endorsing the promissory note to EquiCredit. Two-and-a-half months later, on April 30, 1998, EquiCredit assigned and endorsed the note and deed of trust to The Money Store, whichds reflected on the note with a stamp that reads “Without Recourse Pay to the Order of TMS Mortgage Inc.” Vincent’s first loan payment was due on April 1, 1998, before the note had been assigned to The Money Store.

On April 5, 1997, plaintiff Ruth Gutierrez took out a mortgage loan on her home in Stockton, California. Gutierrez executed a note and deed of trust identifying the lender as First Financial Funding Group and using language very similar to the loan documents described above for Vincent’s mortgage. Again, neither of these documents mentions The Money Store. At the time First Financial and Gutierrez executed the loan, First Financial also gave Gutierrez the TILA-required disclosure statement. Two days later, on April 7, 1997, First Financial assigned and endorsed the note and deed of trust to The Money Store. Gutierrez’s first loan payment was due on May 10, 1997, meaning that Gutierrez’s first payment, unlike Vincent’s, was not due until after the loan had been assigned to The Money Store.

On May 22, 1996, plaintiffs Linda and John Garrido took out a $100,000 mortgage loan on their home in Huntington Station, New York. The promissory note they executed on that date again used language similar to the notes applicable to the other loan transactions, and listed FHB Funding Corporation as their lender. The Garridoses additionally signed a mortgage that referenced the note and identified FHB Funding as the “Lender” and the Garridoses as the “Borrower.” Once again, neither the note nor the mortgage mentions The Money Store. Like Vincent and Gutierrez, the Garridoses also received the TILA-required disclosure statement from FHB Funding at the time they executed the loan. Three weeks later, on June 13, 1996, FHB Funding assigned and endorsed the note and mortgage to The Money Store. The Garridoses’ first loan payment was due on July 1, 1996, ie., two weeks after the loan had been assigned to The Money Store.

*93After the loans had been assigned to The Money Store, plaintiffs all eventually defaulted on their mortgages. They subsequently received letters from Moss Codi-lis informing them of their default. In addition, The Money Store allegedly charged plaintiffs improper fees on their accounts, including, inter alia: fees for multiple property inspections that did not occur; vague and unwarranted fees for “file reviews,” “senior lien monitoring,” and “Outsource Management Fees”; excessive late fees; surcharges for breach letters; attorneys’ fees that were never paid out to attorneys; costs for purported motions in the bankruptcy court that were never filed; and fees for other bankruptcy services that were in excess of what was contractually allowed.

B. The Breach Letter Program

By agreement dated April 17, 1997, The Money Store contracted with Moss Codilis to prepare and mail breach notices to borrowers who, like plaintiffs, had defaulted on their loans. Such notices inform homeowners that they are in default and are generally a prerequisite before mortgage lenders like The Money Store can foreclose on a borrower’s property. Labeled the “Breach Letter Program” Moss Codilis “generate® the thirty (30) day breach letters based on information provided [by The Money Store] within [a] ... spreadsheet.” J. App’x 336 (Letter of Agreement). In return, Moss Codilis received fifty dollars (later thirty-five dollars) for each breach letter generated. Outside of the Breach Letter Program, the firm performed no role in The Money Store’s collection of its debts.

Moss Codilis promoted the Program to lenders as a means of leveraging its status as a law firm to encourage repayment of loans from borrowers in default. The promotional materials state:

This program allows the client to send breach letters on attorney letterhead at a reasonable cost. Most of these costs are recovered through the reinstatement of the loans which is at a higher level as a result of the impression which the attorney breach letter makes.... It is ... an excellent collection tool.

J. App’x 682. At least one executive at The Money Store confirmed at his deposition that the purpose of the Breach Letter Program was “to hopefully gain the attention of the borrower, since it was coming from the law firm[ ].” J. App’x 271-72 (deposition of John Dunnery, The Money Store Vice President).

' The letters, which were printed on Moss Codilis letterhead, state that “this law firm” has been “retained” in order to “collect a debt for our client,” and that the “this firm has been authorized by [The Money Store] to contact you” and “provide[] notice that you are in default” on the mortgage. J. App’x 652-56. The letters further state that if the default is not resolved within 30 days, then

our client shall accelerate the entire sum of both principal and interest immediately due and payable, and invoke any and all remedies provided for in the Note and Security Instrument, including but not limited to the foreclosure sale of the property.

J. App’x 652. Finally, the letters state that, with limited exceptions, “[a]ll communication about this matter must be made through [The Money Store].”3 J. App’x *94656. From 1997 up through 2002, Moss Codilis sent 88,937 letters on The Money-Store’s behalf, and thus received approximately between $3 and $4.5 million in fees.

Moss Codilis’s work for The Money Store was supervised by Christina Nash and, after July 1999, Valerie Bromley, who assisted Ms. Nash in sending breach letters on The Money Store’s behalf. According to Moss Codilis, one of its partners, Leo Stawiarski,' bore primary responsibility for the legal aspects of the firm’s work for The Money Store, and supervised Ms. Nash in all aspects, legal and non-legal, of her work. The breach letters were “jointly drafted” by Nash and The Money Store’s legal department.

The parties disagree markedly as to the nature of the tasks that Moss Codilis performed for The Money Store. Each marshals evidence supporting its respective position. Although characterizing itself as a law firm, Moss Codilis describes the Breach Letter Program as an “exercise in mass processing” that involved little to no legal or otherwise independent judgment. In particular, Moss Codilis represented to the district court that “the only element of the Breach Letter Program that required legal analysis was the drafting of language for the breach letter templates to ensure that they were in compliance with applicable state and federal laws.” Vincent v. Money Store (Vincent II), No. 03 Civ. 2876(JGK), 2011 WL 4501325, at *3 (S.D.N.Y. Sept. 29, 2011) (summarizing Moss Codilis’s position).

For their part, plaintiffs assert that “Moss Codilis[’s] role in the default process ... began and ended with the mass generation of the breach letters.” Appellants’ Br. 12. Plaintiffs further note:

Apart from the breach letters themselves, Moss Codilis had no authority to initiate contact with debtors, no right to negotiate payment plans, no right to settle for any amount other than what Money Store said was in default, and no right to bring any legal action. If the breach letters sent out by Moss Codilis failed to elicit payment, it was Money Store — not Moss Codilis — who would then determine whether the matter should be referred out to their network of foreclosure counsel....

Id. (citations and internal quotation marks omitted). Moreover, plaintiffs point to Nash’s deposition testimony where she stated that if a debtor contacted her with regard to “a legal matter” she “escalated” it by referring the matter to The Money Store instead of handling it herself.

In contrast to the foregoing, The Money Store contends that Moss Codilis did more than simply print and mail letters. In addition to Moss Codilis’s role in reviewing the breach letters for their compliance with the FDCPA, The Money Store notes that Nash testified at her deposition that she was the primary drafter of the breach letters, with attorneys for The Money Store limited to “review[ing] [the letters] for format.” Further, The Money Store points to Nash’s deposition testimony that Moss Codilis conducted an independent review of the data on delinquent borrowers sent to it by The Money Store, and that “if there was questionable data, those loans were pulled and sent back to The Money Store.” J. App’x 80-81 (testifying that questionable data includes things like “incomplete borrower information or incomplete address information,” as well as data suggesting that the borrower was not actually in default on his or her loan obligations). Stressing Moss Codilis’s independence, The Money Store asserts that when Moss Codilis disagreed with The Money Store’s request to send a breach *95letter, Moss Codilis did not send out the letter.

The Money Store also notes that the breach letters invited debtors to contact Moss Codilis if they wished to verify the debt or the identity of their creditors. Pursuant to that invitation, Nash testified that she directly corresponded with The Money Store’s debtors and their attorneys around one hundred times. Nash testified that on occasion she corresponded with a debtor’s bankruptcy counsel and attorneys at The Money Store with regard to a debtor’s bankruptcy proceedings, as well as whether the debts in question had been discharged in bankruptcy. When legal action against a debtor was necessary, The Money Store claims that lawyers “affiliated with” Moss Codilis handled the legal proceedings through their own practices.

II. Procedural History

On April 24, 2003, plaintiffs filed the instant action in the district court alleging that The Money Store had violated provisions of the FDCPA and TILA. Plaintiffs argued that the breach letters were unlawful under the FDCPA because they “creat[ed] the false impression that a third party had been hired to collect the debt” and “falsely implied] that a law firm had been retained by the Money Store to collect the debt and was authorized to commence legal action against the borrower.” With respect to their TILA claims, plaintiffs claimed that The Money Store had charged their accounts for fees and expenses which it had no right to collect, and had failed to refund the overcharges as required by TILA. Neither the FDCPA claims nor the TILA claims were asserted against Moss Codilis. Separately, plaintiffs brought a number of claims against The Money Store and Moss Codilis under Colorado and California state law.

By Order dated December 7, 2005, the district court (Sprizzo, J.) granted summary judgment to The Money Store plaintiffs’ FDCPA claims, relying on its prior decision in the separate, related case of Mazzei v. Money Store, 349 F.Supp.2d 651, 661 (S.D.N.Y.2004). Vincent v. Money Store (“Vincent I ”), 402 F.Supp.2d 501, 502-03 (S.D.N.Y.2005).4 In Mazzei, the district court found that plaintiffs could not rely on the false name exception because The Money Store had not “used” Moss Codilis’s name. The district court reached this conclusion on the grounds that Moss Codilis, not The Money Store, sent out the breach letters, that The Money Store did not pretend to be Moss Codilis, and that The Money Store did not so thoroughly control Moss Codilis as to render Moss Codilis its “alter ego.” Mazzei, 349 F.Supp.2d at 661 (citing Maguire v. Citicorp Retail Servs., 147 F.3d 232, 234-36 (2d Cir.1998)). Accordingly, the district court concluded that The Money Store was not subject to FDCPA liability pursuant to the false name exception. Id. The court declined to dismiss plaintiffs’ TILA claims, however, concluding that plaintiffs had adequately alleged that The Money Store had violated TILA by charging unauthorized fees and expenses and failing to refund the resulting credit balances on their accounts. Id. at 662-63.

Following Judge Sprizzo’s death this case was reassigned to Judge Koeltl on January 9, 2009. The Money Store subsequently moved for summary judgment on plaintiffs’ TILA claims, arguing that it was not a “creditor” as defined by the *96statute. By Order dated September 29, 2011, the district court agreed and dismissed the TILA claims. Noting that TILA defines a “creditor” as “the person to whom a debt is initially payable on the face of the indebtedness,” 15 U.S.C. § 1602(g), the district court found that The Money Store did not fit within this definition because “[e]ach of the Notes identifies an entity other than The Money Store Defendants as the original lender and indicates an assignment to The Money Store Defendants.” The court also declined to exercise supplemental jurisdiction over plaintiffs’ remaining state law claims, and denied plaintiffs’ motion for reconsideration of the Judge Sprizzo’s decision to grant defendants summary judgment on plaintiffs’ FDCPA claims, concluding that the subsequent declaration of Ms. Nash introduced by plaintiffs, where she explained that both she and Moss Co-dilis had a limited role in the Breach Letter Program, would not have altered Judge Sprizzo’s decision.

Plaintiffs timely appealed the dismissal of their TILA and FDCPA claims against The Money Store.5

DISCUSSION

“We review a district court’s grant of summary judgment de novo,” Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir.2002), and apply “the same standards applied by the district court,” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir.2011). “Summary judgment may be granted only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(a)). In determining whether there is a genuine dispute as to a material fact, we resolve all ambiguities and draw all inferences in favor of the non-moving party. Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir.2012).

I. FDCPA Liability

We start with plaintiffs’ FDCPA claims against The Money Store. Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). To further these ends, the FDCPA “establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection.” De-Santis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir.2001). As is relevant here, section 1692e of the FDCPA provides generally that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. In addition, “[wjithout limiting the general application of the foregoing,” section 1692e proscribes sixteen specific debt collection practices, including “[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney.” Id. § 1692e(3).

Under our prior precedent, the plaintiffs have a triable claim that Moss Codilis’s breach letters violated section 1692e’s prohibition on the “use of false, deceptive, or misleading representation^] ... in con*97nection with the collection of any debt.” See Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993).6 Nonetheless, we must decide whether the plaintiffs may press this claim against The Money Store. , They may do so only if The Money Store, “in the process of collecting [its] own debts,” has “use[d] any name other than [its] own[, thereby] indicating] that a third person is collecting or attempting to collect .spch debts.” 15 U.S.C. § 1692a(6). This provision of the statute is a departure from the general rule that creditors are not subject to the FDCPA. Maguire v. Citicorp Retail Servs., 147 F.3d 232, 235 (2d Cir.1998); see also Mazzei, 349 F.Supp.2d at 658 (“Such a rule makes sense given that creditors already have a strong incentive to refrain from badgering their customers about overdue debts.” (citing S.Rep. No. 95-382, at 2 (1977))). Thus, we must decide whether The Money Store “used” Moss Codilis’s name in order to suggest that Moss Codilis, rather than The Money Store, was “collecting” the relevant debts. We conclude that, resolving all factual disputes in plaintiffs’ favor, it did.

We have previously addressed the scope of the FDCPA’s so-called false name exception only once before, in Maguire v. Citicorp Retail Services. In Maguire, the creditor, Citicorp, used the name “Debtor Assistance” in its collection letters, which was the name of its in-house collection unit. 147 F.3d at 236. We held that, in determining whether this constituted the use of a “false” name, a court must apply an objective standard of whether the “least sophisticated consumer would have the false impression that a third party was collecting the debt.” Id. (citing Clomon, 988 F.2d at 1318).

We found that the letterhead in Ma-guire created the impression that a third party called “Debtor Assistance” was collecting Citicorp’s debt, and that the evidence in the record was unclear as to whether the plaintiff would have known that Debtor Assistance was affiliated with Citicorp. We therefore held that the letters were potentially misleading enough to trigger the application of the false name exception. Accordingly, we reversed the district court’s grant of summary judgment, and remanded for further proceedings. See id. at 236-38. Maguire did not, however, address the situation we are confronted with here: whether the false name exception can be invoked when the credi*98tor uses the name of an actual, non-affiliated third-party to collect its debts.

To resolve this question of statutory interpretation, we begin with the statutory text. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” (internal quotation marks omitted)). Because the FDCPA is “remedial in nature, its terms must be construed in liberal fashion if the underlying Congressional purpose is to be effectuated.” N.C. Freed Co. v. Bd. of Governors of Fed. Resewe Sys., 473 F.2d 1210, 1214 (2d Cir.1973); accord Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.2002) (collecting cases); see also Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir.1989) (“Congress painted with a broad brush in the FDCPA to protect consumers from abusive and deceptive debt collection practices.”). Section 1692a(6) of the FDCPA provides, in relevant part, that any creditor, “who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts,” will be deemed a “debt collector” and subject to liability under the FDCPA. 15 U.S.C. § 1692a(6). The text of the exception thus sets forth three elements that must be satisfied before deeming a creditor a debt collector pursuant to the false name exception: (1) the creditor is collecting its own debts; (2) the creditor “uses” a name other than its own; and (3) the creditor’s use of that name falsely indicates that a third person is “collecting or attempting the collect” the debts that the creditor is collecting. The first element, that the creditor is collecting its own debts, is undisputedly satisfied here.

Turning to the latter two elements, in Maguire we described three ways that these elements could be satisfied: (1) the creditor uses a name that falsely implies that a third party is involved in collecting its debts; (2) the creditor pretends to be someone else; or (3) the creditor uses a pseudonym or alias. Maguire, 147 F.3d at 235. By separating the situation where a creditor falsely implies the involvement of a third party from the situation where a creditor uses a pseudonym, Maguire makes clear that the mere fact that the third-party whose name is used by the creditor is a real entity not affiliated with the creditor is not dispositive. See White v. Goodman, 200 F.3d 1016, 1018 (7th Cir.2000) (“Conceivably [the false name exception] could be read so narrowly as to reach only the case in which the creditor is using a pseudonym; but this reading, as the cases interpreting section 1692a(6) make clear, is too narrow.... [T]he statute distinguishes between the use of pseudonyms ... and a false representation that a third party (which may exist) is participating in debt collection.... ” (citations omitted)). When presented with the allegation that a creditor has falsely implied that a third party is collecting the creditor’s debts, we must examine both the actions .of the creditor, i.e., whether the creditor has “used” a name, and the role of the third party, i.e., whether the third party is “collecting or attempt to collect” the creditor’s debts.

Because neither “use” nor “collect” is defined in the statute, see 15 U.S.C. § 1692a, we give these terms their ordinary meaning. Taniguchi v. Kan Pac. Saipan, Ltd., — U.S. -, -, 132 S.Ct. 1997, 2002, 182 L.Ed.2d 903 (2012). Starting with “use,” dictionaries define “use” as, inter alia, “To make use of (some immaterial thing) as a means or instrument; to employ for a certain end or purpose.” 2 The Compact Edition of the Ox*99ford English Dictionary 3574 (1971); see also The American Heritage Dictionary of the English Language New College Edition 1410 (1976) (“To ... employ for some purpose”); Webster’s Third New International Dictionary 2524 (1976) (“[T]o carry out a purpose or action by means of’).7 By requiring the creditor to “use” or “employ for some purpose” a name other than its own, the text of the statute is clear that there must be some active involvement in the misrepresentation by the creditor before triggering liability under the false name exception. The exception does not create backdoor vicarious liability for creditors simply because the collection agencies they hire to collect their debts engage in deceptive practices. Williams v. Citibank, N.A., 565 F.Supp.2d 523, 529 (S.D.N.Y.2008).8

Here, the relevant affirmative action by The Money Store was retaining Moss Codilis for the express purpose of sending breach letters that appeared to be attorney collection letters to its debtors. Although we did not address what constitutes sufficient affirmative action by the creditor in Maguire, an analogous case from the Seventh Circuit, Boyd v. Wexler, makes clear why the alleged- misrepresentation of Moss Codilis’s role here can be attributed to The Money Store’s “use” of Moss Codilis’s name in the breach letters. 275 F.3d 642 (7th Cir.2001). In Boyd, the Seventh Circuit addressed the issue of a collection agency’s liability for paying a lawyer to use his letterhead on its collection- letters. The Court of Appeals explained that such a practice violates section 1692e because “the lawyer is allowing the collection agency to impersonate him. The significance of such impersonation is that a debtor who receives a ... letter signed by a lawyer will" think that a lawyer reviewed the claim and determined that it has at least colorable merit.” Id. at 644 (emphasis added). Although Boyd addressed section 1692e liability as against a debt collector, we see no reason why this “impersonation” would not apply equally to a creditor’s “use” of a name under section 1692a(6)’s false name exception. See Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1235 (5th Cir.1997) (holding that creditor may be held liable under false name exception for sending a form “attorney demand letter” that had been pre-prepared “by [an attorney] for [the creditor] to use in collecting or attempting to collect from the debtor” and which “bore the letterhead of the [attorney’s] law firm and the facsimile of [the attorney’s] signature”). When a creditor that is collecting its own debts hires a third party for the purpose of sending letters that represent that the third party is collecting the debts, that is sufficient to show the “use” of a name by the creditor other than its own. See also White, 200 F.3d at 1018 (describing the creditor as the “primary violator” in a flat-rating case).

*100The “use” element focuses on whether the creditor has actively engaged in misrepresenting its identity in some way; by contrast, the “collecting or attempting to collect” element focuses on whether the third party’s role is in fact being misrepresented. See id. (noting that if a “third party is participating in the debt collection, ... there is no deception”). Even if The Money Store “use[d]” Moss Codilis’s name in collecting its own debts, the false name exception does not apply if in fact Moss Codilis was collecting or attempting to collect The Money Store’s debts such that there was no misrepresentation to the consumer.9 Id.; cf. Greco v. Trauner, Cohen & Thomas L.L.P., 412 F.3d 360, 364-65 (2d Cir.2005) (holding no misrepresentation, and thus no 1692e liability against the debt collector law firm, where the law firm retained by the creditor clearly disclosed-in the letter that the law firm was not acting as an attorney).

The plain meaning of “collect” in the context of debts is “[t]o gather (contributions of money, or money due, as taxes, etc.) from a number of people.” 1 The Compact Edition of the Oxford English Dictionary 465; see also The American Heritage Dictionary of the English Language New College Edition 261 (“To call for and obtain payment of’); Webster’s Third International Dictionary 444 (“[T]o receive, gather, or exact from a number of persons or other sources”). This definition, while useful to the inquiry, is ultimately ambiguous as applied to the facts of any particular case. It does not define how involved a debt collector must be before we can fairly say it is gathering money on behalf of the creditor.10 The Money Store argues that Moss Codilis was involved in the debt collection process by generating the breach letters and sending them to the debtors. Moss Codilis, however, described its Breach Letter Program *101as an exercise in “mass processing.” According to plaintiffs and Moss Codilis, other than printing and mailing the letters and dealing with some follow-up limited to directing substantive phone calls from debtors to The Money Store, all meaningful collection efforts or attempts to “gather” the money owed were handled by The Money Store.

We reject The Money Store’s contention that by generating and mailing the breach letters alone, Moss Codilis was “collecting or attempting to collect” The Money Store’s debts. Under our holding in Ma-guire, if The Money Store had simply purchased letterhead from Moss Codilis and sent out the debt collection letters on Moss Codilis letterhead, The Money Store would be liable. See Maguire, 147 F.3d at 235; Taylor, 103 F.3d at 1236, 1239; see also Sokolski v. Trans Union Corp., 53 F.Supp.2d 307, 312 (E.D.N.Y.1999) (“[A] creditor participating in [a] flat-rating arrangement can be liable under the [false name exception].”). And if instead The Money Store had provided the precise text of the letters to Moss Codilis, which then printed them on Moss Codilis letterhead and mailed them,11 it would be a hyper-technical distinction to conclude that Moss Codilis was “collecting or attempting to collect” The Money Store’s debts by physically printing and mailing the letters. Thus, “collecting” debts must mean something more than any role, no matter how tangential, in the collection process. Merely changing the return address from The Money Store to Moss Codilis does not alter the force of Maguire because it does not change whether the letter misleads consumers, which we have explained is the statutory touchstone for all aspects of the FDCPA, including the false name exception. Maguire, 147 F.3d at 236; see also Clomon, 988 F.2d at 1318. Accordingly, the fact that Moss Codilis sent deceptive letters in and of itself is not conclusive evidence of Moss Codilis collecting or attempting to collect The Money Store’s debts.

Our rejection of this argument is supported by the Federal Trade Commission’s interpretative guidance on section 1692e(14), which prohibits a debt collector from “us[ing] ... any business, company, or organization name other than the (collector’s) true name.” See FTC, Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.Reg. 50,097, 50,107 (Dec. 13, 1988).12 Addressing the scope of the section as applied to creditors, the FTC has suggested:

A creditor violates this section if he uses the name of a collection bureau as a conduit for a collection process that the creditor controls in collecting his own accounts.... A creditor does not violate this provision where an affiliated (and differently named) debt collector undertakes collection activity, if the debt collector does business separately from the creditor (e.g., where the debt collector in fact has other clients that he treats similarly to the creditor, has his own employees, deals at arms length with the *102creditor, and controls the process himself).

Id. (emphasis added).13 The FTC Staff Commentary distinguishes between a third-party acting as a mere “conduit for a collection process that the creditor controls” from “undertak[ing] collection activity ... separate[ ] from the creditor.” Id.14

The Seventh Circuit’s approach to creditor liability lends further support to this “conduit” test.15 In Nielsen v. Dickerson, the Seventh Circuit held that creditors who retain an attorney to mass mail debt collection letters are “debt collectors” under the FDCPA’s false name exception if the attorney has “neither made a considered, professional judgment that [the debt- or] was delinquent on her debt and a candidate for legal action nor meaningfully involved himself in the decision to send the [collection] letter to any individual debtor.” Nielsen v. Dickerson, 307 F.3d 623, 636 (7th Cir.2002) (internal quotation marks omitted). The Seventh Circuit in Nielsen relied on several factors to determine that “the true source” of the letter was the creditor, not the attorney. Id. at 639.

First, the Court of Appeals noted that the attorney’s review of the debtor information p