UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARRY STIMPSON,

Plaintiff-Appellant,

MIDLAND CREDIT

MANAGEMENT, INC., a Kansas

corporation; MIDLAND

FUNDING, LLC, a Delaware

limited liability company,

Defendants-Appellees.

No. 18-35833

D.C. No.

4:17-cv-00431-BLW

OPINION

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.

STIMPSON V. MIDLAND CREDIT MANAGEMENT2

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

STIMPSON V. MIDLAND CREDIT MANAGEMENT4

to the account.

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.

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.

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:

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.

We refer to Midland Funding and Midland Credit Management,

Inc., which services the account, collectively as “Midland.”

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

STIMPSON V. MIDLAND CREDIT MANAGEMENT6

a purported class of similarly situated individuals.

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).

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

According to the complaint, “The Class consists of (a) all

individuals in Idaho (b) to whom Midland Funding or Midland Credit

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).

STIMPSON V. MIDLAND CREDIT MANAGEMENT8

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)).

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

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.

STIMPSON V. MIDLAND CREDIT MANAGEMENT10

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.

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.

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

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[.]”

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)).

STIMPSON V. MIDLAND CREDIT MANAGEMENT12

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,

nothing in the FDCPA requires

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

STIMPSON V. MIDLAND CREDIT MANAGEMENT14

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.

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).

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”).

In these

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.,

STIMPSON V. MIDLAND CREDIT MANAGEMENT16

states, the debtor “still owes the debt.” Huertas, 641 F.3d at

32. Nevada and Idaho have both adopted this majority rule,

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.”).

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,

STIMPSON V. MIDLAND CREDIT MANAGEMENT18

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).

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

STIMPSON V. MIDLAND CREDIT MANAGEMENT20

claim fails. The district court did not err in granting summary

judgment in Midland’s favor.

AFFIRMED.

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

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EX 3

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