Obduskey v. McCarthy & Holthus, LLP Brief Amicus Curiae

    No. 17-1307

In The

mpreme Court of tfje SJntteb States;

DENNIS OBDUSKEY, 

v.
Petitioner,

MCCARTHY & HOLTHUS, LLP, et al,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Tenth Circuit

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC., IN SUPPORT OF PETITIONER

SHERRILYN A. IFILL 
Director-Counsel 

Janai S. Nelson 
Samuel Spital *
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

September 17, 2018

Sparky Abraham 
Kerrel Murray 
NAACP Legal Defense & 

Educational Fund. Inc. 
700 14th St., NW 
6th Floor
Washington, DC 20005

Counsel for Amicus Curiae

* Counsel of Record

mailto:sspital@naacpldf.org


1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES....................................... ii
INTEREST OF AMICUS CURIAE............................1
INTRODUCTION AND

SUMMARY OF ARGUMENT...............................3
ARGUMENT................................................................. 6
I. NONJUDICIAL FORECLOSURE IS DEBT

COLLECTION ACCORDING TO THE 
PLAIN MEANING OF THE FDCPA................... 7
A. Nonjudicial Foreclosure Proceedings

Are Designed to Collect on an 
“Obligation . . .  to Pay.” .................  8

B. Nonjudicial Foreclosure Attorneys
Collect Debt “Directly or Indirectly.” ..........10

II. THE FDCPA’S PURPOSES CONFIRM
THAT THE STATUTE APPLIES TO 
NONJUDICIAL FORECLOSURE 
PROCEEDINGS....................................................11

III. THE FDCPA'S APPLICATION TO
NONJUDICIAL FORECLOSURES IS 
CONSISTENT WITH THE SOLICITUDE 
FOR HOMEOWERS IN OUR LEGAL 
TRADITION...........................................................17

IV. THE DECISION BELOW CREATES
PARTICULAR RISKS FOR AFRICAN 
AMERICAN HOMEWONERS............................24

CONCLUSION...................   30



TABLE OF AUTHORITIES

PAGE IS)

CASES:

Carey v. Brown,
447 U.S. 455 (1980)....................................................21

Cent. Ala. Fair Hous. Ctr., Inc. v.
Lowder Realty Co.,
236 F.3d 629 (11th Cir. 2000).... ...............................1

Comer v. Cisneros,
37 F.3d 775 (2d Cir. 1994).........................................1

District of Columbia v. Heller,
554 U.S. 570 (2008)................................................... 19

Ferguson u. Commercial Bank,
578 So. 2d 1234 (Ala. 1991).......................................4

Florida v. Jardines,
569 U.S. 1 (2013)...................................................18-19

Frizzell u. Murray,
313 P.3d 1171 (Wash. 2013).......................................4

Georgia v. Randolph,
547 U.S. 103 (2006)................................................... 19

Glazer u. Chase Home Fin. LLC,
704 F.3d 453 (6th Cir. 2013).....................................14

Hannah u. Larche,
363 U.S. 420 (1960)....................................................20

ii



I l l

PAGE(S)

Heintz v. Jenkins,
514 U.S. 291 (1995)..................................................  14

Jerman v. Carlisle, McNellie, Rini, Kramer 
& Ulrich LPA,
559 U.S. 573 (2010)................................................... 14

Jones u. Flowers,
547 U.S. 220 (2006)....................................................20

Kennedy Park Homes Ass’n, Inc. v.
City of Lackawanna,
436 F.2d 108 (2d Cir. 1970).......................................1

Kyllo v. United States,
533 U.S. 27 (2001).... ................................................ 19

Lawrence u. Texas,
539 U.S. 558 (2003).............................................. 19-20

McGhee u. Sipes,
334 U.S. 1 (1948)................................................  1

McNair v. Maxwell & Morgan PC,
893 F.3d 680 (9th Cir. 2018)................................... 13

NAACP v. Am. Family Mut. Ins. Co.,
978 F.2d 287 (7th Cir. 1992)......................................1

Obduskey v. Wells Fargo,
879 F.3d 1216 (10th Cir. 2018)................................. 7

Payton v. New York,
445 U.S. 573 (1980).................. ................................ 19



IV

PAGE(S)

Semayne’s Case,
77 Eng. Rep. 194 (K.B.)............................................ 17

Shelley v. Kraemer,
334 U.S. 1 (1948)........................................................1

Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive
Cmtys. Project, Inc., 135 S. Ct. 2507 (2015)..... 2, 22

Thompson v. U.S. Dep’t of Hous. & Urb. Dev.,
2006 WL 581260 (D. Md. Jan. 10, 2006)................. 1

Trafficante v. Metro. Life Ins. Co.,
409 U.S. 205 (1972) ........................... ...................... 23

United States v. Craighead,
539 F.3d 1073 (9th Cir. 2008)................................. 20

Wilson v. Draper & Goldberg, PLLC,
443 F.3d 373 (4th Cir. 2006).................................... 11

STATUTES & RULES

3, 6, 8, 11, 13
....... 7, 10, 14
................... 15

1692g...................................   15

15U.S.C.
§ 1692... 
§ 1692a. 
8 1692e.



V

PAGE(S)
42 U.S.C.

§ 1441........................................................................... 22
§ 3605............................................................................. 2

National Housing Act, Pub. L. No. 73-479,
48 Stat. 1246 (1934)................................................... 22

Housing Act of 1949, Pub. L. No. 81-171,
63 Stat. 413 .................................................................22

Fed. R. Civ. P. 65(c) ......................................................... 4

OTHER AUTHORITIES
ATTOM Data Sols., U.S. Foreclosure Activity 

Drops to 12-Year Low in 2017, (Jan. 16, 2018), 
https://www.attomdata.com/news/foreclosure- 
trends/2017-year-end-u-s-foreclosure-market-
report/.........................................................................12

William Blackstone, Commentaries on the 
Laws of England
(Phila., J.B. Lippineott Co., 1893).......................... 17

Brief of Amici Curiae Housing Scholars
Supporting Respondent, Tex. Dep’t of Hous. & 
Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,
135 S. Ct. 2507 (2015)
(No. 13-1371), 2014 WL 7405732...........................22

Brief of Amicus Curiae NAACP Legal Def. &
Educ. Fund, Inc.,
Bank of America Corp. v. City of Miami,
No. 15-1111 (U.S. May 1, 2017)................................ 2

https://www.attomdata.com/news/foreclosure-trends/2017-year-end-u-s-foreclosure-market-
https://www.attomdata.com/news/foreclosure-trends/2017-year-end-u-s-foreclosure-market-


V I

PAGE(S)
Rick Brooks & Ruth Simon, Subprime Debacle

Traps Even Very Credit-Worthy,
Wall Street J. (Dec. 3, 2007), 
https:// w ww. wsj. com/articles/
SB119662974358911035.......................................... 26

Cal. Reinvestment Coalition, Race to 
the Bottom: An Analysis of HAMP Loan 
Modification Outcomes by Race and 
Ethnicity for California (July 2011)................. 29

John Campbell, Can We Trust Trustees? Proposals 
for Reducing Wrongful Foreclosures,
63 Cath. U. L. Rev. 103 (2013)............................... 5

Charu A. Chandrasekhar, Can New Americans 
Achieve the American Dream? Promoting 
Homeownership in Immigrant Communities,
39 Harv. C.R.-C.L. L. Rev. 169 (2004).................. 21

Complaint, Morningside, et al. v. Sabree, et al.,
No, 16-8807-CH (Mich. Cir. Ct., July 13, 2016)..... 2

Consent Decree, Byrd v. First Real Estate 
Corp. of Ala.,
No. 95-CV-3087 (N.D. Ala. May 14, 1998) 1

Thomas Y. Davies, Recovering the Original 
Fourth Amendment,
98 Mich. L. Rev. 547 (1999)..................................... 18

Mechele Dickerson, Home Ownership and 
America’s Financial Underclass: Flawed 
Premises, Broken Promises, New 
Prescriptions (Cambridge Univ. Press 2014).... 25



Shaun Donovan, Prepared Remarks of Secretary 
Shaun Donovan During the Countrywide 
Settlement Press Conference,
U.S. Dep’t of Hous. & Urban Dev.,
Pressroom  (Dec. 21, 2011),
https://archives.hud.gov/remarks/donovan/ 
speeches/2011-12-21.cfm..........................................27

Fed. Reserve Bank of New York, Quarterly 
Report on Household Debt and Credit 
2018:Q2 (Aug. 2018),
https://www.newyorkfed.org/medialibrary
/interactives/householdcredit/data/pdf/

PAGE(S)

HHDC_2018Q2.pdf.................................................. 12
Foreclosure, B l a c k ’s La w  DICTIONARY

(10th ed. 2014).......................................................... 8
Timothy A. Froehle, Standing in the 

Wake of the Foreclosure Crisis:
Why Procedural Requirements Are Necessary 
to Prevent Further Loss to Homeowners,
96 Io w a L. Rev. 1719 (2011)..... ............................. 15

Jenny Gathright, Forget Wealth and Neighborhood. 
The Racial Income Gap Persists, NPR 
(Mar. 19, 2018),
https://www.npr.org/sections/codeswitch/2018/03/19 
/594993620/forget-wealth-and-neighborhood-the- 
racial-income-gap-persists...................................... 29

Richard K. Green & Susan M. Wachter, The 
American Mortgage in Historical and 
International Context,
19 J. OF ECON. PERSP. 93 (2005) 24

https://archives.hud.gov/remarks/donovan/
https://www.newyorkfed.org/medialibrary
https://www.npr.org/sections/codeswitch/2018/03/19


V l l l

Brad Greenburg, Consolidation After Crisis: How a 
Few Private Investors Bought Distressed, Federally- 
Insured Mortgages After the Foreclosure Crisis,

PAGE(S)

20 N.Y.U. J. Legis. & PUB. P o l ’Y 887 (2017).......22
Matthew Hall, Kyle Crowder & Amy Spring, 

Neighborhood Foreclosures, Racial/Ethnic 
Transitions, and Residential Segregation,
80 Am . Soc. Rev. 526 (2015).......................... ......... 27

Benjamin Howell, Exploiting Race and Space: 
Concentrated Subprime Lending as Housing 
Discrimination,
94 Calif. L. Rev. 101 (2006)....................................24

Joint Ctr. for Hous. Studies, Harv. Univ.,
The State of the
Nation’s Housing: 2015 (2015),
http://www.jchs.harvard.edu/sites/default/files/ 
jchs-sonhr-2015-full.pdf............................................28

G. Thomas Kingsley, Robin Smith & David Price,
The Impacts of Foreclosures on Families and
Communities, URBAN INST. (May 2009), 
https ://www. urb an.org/ sites/default/files/ 
publication/30426/411909-The-Impacts-of- 
Foreclosures-on-Families-and-
Communities.PDF..................................................... 3

Legal Papers of John Adams (L. Kinvin Wroth
& Hiller B. Zobel eds., 1965).............................  18, 19

Douglas S. Massey & Nancy A. Denton,
American Apartheid: Segregation
and the Making of the Underclass (1993)........24

http://www.jchs.harvard.edu/sites/default/files/


IX

Atif Mian, Amir Sufi & Francesco Trebbi, 
Foreclosures, House Prices, and the Real 
Economy, Kreisman Working Papers Series 
in Housing Law and Policy, No, 6 (2014)..............5

Monique W. Morris, NAACP, Discrimination 
and Mortgage Lending in America:
A Summary of the Disparate Impact of 
Subprime Mortgage Lending on African 
Americans (Mar. 2009), 
https://naacp.3cdn.net/4ca760b774f81317c4_

PAGE(S)

klm6i6yxg.pdf............................................................26
Mortgage, BLACK’S LAW DICTIONARY

(10th ed. 2014)........................................................... 8
Ylan Q. Mui, For Black Americans, Financial

Damage from Subprime Explosion Is Likely to Last, 
Wash. Post (July 8, 2012),
https://www.washingtonpost.com/business/economy
/for-black-americans-financial-damage-from-
subprime-implosion-is-likely-to-
last/2012/07/08/g J Q AwNmz WW_story. html?
utm_term:=.1417963b278b....................................... 28

NAACP Legal Def. & Educ. Fund, Inc., et al., The 
Futu re of Fair Housing: Report on the National 
Com mission of Fair Housing and Equal 
Opportunity (Dec. 2008)........................................... 2

Nat‘l Fair Hous. Alliance, Zip Code Inequality: 
Discrimination by Banks in the Maintenance 
of Homes in Neighborhoods of Color 
(Aug. 27, 2014), https://nationalfairhousing.org/ 
wp-content/uploads/2017/04/2014-08- 
27_NFHA_REO_report.pdf......................................13

https://naacp.3cdn.net/4ca760b774f81317c4_
https://www.washingtonpost.com/business/economy
https://nationalfairhousing.org/


Charles Lewis Nier III, The Shadow of Credit:
The Historical Origins of Racial Predatory
Lending and Its Impact Upon
African American Wealth Accumulation,
11 U. Pa . J.L. & Soc. Change 131 (2008)..............21

President Barack Obama, Remarks by the President 
on Responsible Homeownership (Aug. 6, 2013), 
https://obamawhitehouse.archives.gov/the-press- 
office/2013/08/06/remarks-president-responsible-

PAGE(S)

homeownership......................................................... 21
Lynnise E. Phillips Pantin, The Wealth Gap 

and the Racial Disparities in the Startup 
Ecosystem,
62 St. Louis U. L.J. 419 (2018)............................... 27

L o u  PlZANTE, ET AL., OFF. OF THE ASSESSOR-
Recorder, San Francisco, Foreclosure in 
California: A Crisis in Compliance, (2012), 
http://aequitasaudit.com/images/aequitas_sf_
report.pdf................................................................5, 15

Katherine Porter, Misbehavior and Mistake in 
Bankruptcy Mortgage Claims,
87 Tex. L. Rev. 121 (2008).......................................  15

Carolina Reid & Elizabeth Laderman, The Untold 
Costs of Subprime Lending: Examining the Links 
among Higher-Priced Lending, Foreclosures and 
Race in California, INST. FOR ASSETS & SOC.
POL’Y, BRANDEIS U n iv . (2009)................................. 26

John P. Reiman, Foreclosures, Integration, 
and the Future of the Fair Housing Act,
41 IND. L. REV. 629 (2008) 25

https://obamawhitehouse.archives.gov/the-press-office/2013/08/06/remarks-president-responsible-
https://obamawhitehouse.archives.gov/the-press-office/2013/08/06/remarks-president-responsible-
http://aequitasaudit.com/images/aequitas_sf_


XI

PAGE(S)
David Reiss, Underwriting Sustainable 

Homeowner ship: The Federal Housing 
Administration and the Low Down 
Payment Loan,
50 GA. L. rev . 1019 (2016)........................................23

Ira Rheingold, et al., From Redlining to Reverse 
Redlining: A History of Obstacles for Minority 
Homeowner ship in America,
34 Clearinghouse Rev. 642 (2001)........................25

Richard Rothstein, Race and Public 
Housing: Revisiting the Federal Role,
21 Poverty & Race Res. Action Council 2 
(Nov.-Dee. 2012)........................................................25

Jacob S. Rugh & Douglas S. Massey, Racial
Segregation and the American Foreclosure Crisis,
75 Am . Soc. Rev. 629 (2010).....................................28

Michael Sallah, Debra Cenziper & Steven Rich,
Left with Nothing, WASH. POST (Sept. 8, 2013), 
http://www.washingtonpost.com/sf/ 
investigative/2013/09/08/left-with-nothing/..........12

Thomas M. Shapiro, Race, Homeoumership 
and Wealth,
20 Wash. U. J.L. & Pol’y 53 (2006).........................27

Fred Schulte & June Arney, Small Unpaid 
Bills Put Residents at Risk, Balt. Sun 
(Mar. 25, 2007),
http://www.baltimoresun.com/bal- 
te.bz.waterbills25mar25-story.html#......................12



PAGE(S)
Robert G. Schwemm & Jeffrey L. Taren,

Discretionary Pricing, Mortgage Discrimination,
and the Fair Housing Act,
45 Harv. C.R.-C.L. L. Rev. 375 (2010)................... 26

S. Rep. No. 95-382 (1977),
as reprinted in 1977 U.S.C.C.A.N. 1695................ 23

Lawrence B. Simons, Towards a New National 
Housing Policy,
6 Yale L. & Pol’y Rev. 259(1988)...........................22

Joseph Story, Commentaries on the Constitution 
of the United States,
(Bos., Hilliard, Gray & Co. 1833)...........................  18

Alexander C. Tsai, Home Foreclosure, Health, 
and Mental Health: A Systematic Review of 
Individual, Aggregate, and Contextual 
Associations,
PLOS ONE (Apr. 7, 2015),
https://doi.org/10.1371/journal.pone.0123182.........3

Heather K. Way, Informal Homeownership 
in the United States and the Law,
29 St . Louis U. Pub. L. Rev. 113 (2009)................ 21

Aleatra P. Williams, Lending Discrimination, 
the Foreclosure Crisis and the Perpetuation 
of Racial and Ethnic Disparities in 
Homeownership in the U.S.,
6 Wm . & Mary Bus. L. Rev. 601 (2015)................. 26



INTEREST OF AMICUS CURIAE *

The NAACP Legal Defense & Educational Fund, 
Inc. (“LDF”) is the nation’s first and foremost civil 
rights legal organization. Through litigation, 
advocacy, public education, and outreach, LDF strives 
to secure equal justice under the law for all Americans, 
and to break down barriers that prevent African 
Americans from realizing their basic civil and human 
rights.

Throughout its history, LDF has challenged 
policies that deny housing opportunities to African 
Americans. See, e.g., McGhee v. Sipes, 334 U.S. 1 
(1948) (companion case to Shelley v. Kraemer, 334 U.S. 
1 (1948)) (racially restrictive covenants); Cent. Ala. 
Fair Hous. Ctr., Inc. v. Lowder Realty Co., 236 F.3d 629 
(11th Cir. 2000) (racial steering); Comer v. Cisneros, 37 
F.3d 775 (2d Cir. 1994) (racial discrimination in public 
housing and assistance programs); NAACP u. Am. 
Family Mut. Ins. Co., 978 F.2d 287 (7th Cir. 1992) 
(redlining); Kennedy Park Homes Ass’n, Inc. v. City of 
Lackawanna, 436 F.2d 108 (2d Cir. 1970)
(exclusionary zoning); Thompson v. U.S. Dep’t o f Hous. 
& Urb. Dev., 2006 WL 581260 (D. Md. Jan. 10, 2006) 
(federal government’s obligation to affirmatively 
further fair housing); Consent Decree, Byrd v. First

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state that no counsel for a party authored this brief in 
whole or in part and that no person other than amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. All parties have consented 
to the filing of this brief.



2

Real Estate Corp. of Ala., No. 95-CV-3087 (N.D. Ala. 
May 14, 1998) (racial steering); Complaint,
Morningside, et al. v. Sabree, et al., No, 16-8807-CH 
(Mich. Cir. Ct., July 13, 2016) (discriminatory 
foreclosures).

LDF has also advocated for the fair and 
comprehensive interpretation and application of the 
Fair Housing Act of 1968, 42 U.S.C. § 3605, see Tex. 
Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. 
Project, Inc., 135 S. Ct. 2507 (2015); see also NAACP 
Legal Def. & Educ. Fund, Inc., et al., The Future of Fair 
Housing: Report on the National Commission of Fair 
Housing and Equal Opportunity (Dec. 2008), and for 
protections for African American communities from 
discriminatory and unfair foreclosure-related 
practices, see Brief of Amicus Curiae NAACP Legal 
Def. & Educ. Fund, Inc., Bank of America Corp. v. City 
of Miami, No. 15-1111 (U.S. May 1, 2017).



3

INTRODUCTION AND 
SUMMARY OF ARGUMENT

The Fair Debt Collection Practices Act (“FDCPA”) 
protects borrowers from a broad range of deceptive, 
unfair and abusive debt collection practices across all 
sectors of consumer finance. In passing the law, 
Congress recognized that such practices can have 
drastic effects on borrowers, including personal 
bankruptcy, marital instability, and job loss. 15 U.S.C. 
§ 1692(a). These negative effects are especially 
pronounced when debt collection threatens a person’s 
home.2

Mortgage debt is the primary form of debt held by 
American consumers, and the FDCPA protects 
borrowers from unfair, abusive, and deceptive 
practices when lenders’ agents seek to collect that debt 
through any type of foreclosure proceeding. This 
conclusion is compelled by the language and purpose 
of the law, and it is in line with American legal 
traditions recognizing the need for particular 
attention to fairness when a person’s home is at risk.

2 See, e.g., G. Thomas Kingsley, Robin Smith & David Price, The 
Impacts of Foreclosures on Families and Communities, URBAN 
INST., 11-12 (May 2009), https://www.urban.org/sites/default/ 
files/publication/30426/411909-The-Impacts-of-Foredosures-on- 
Families-and-Communities.PDF (noting that foreclosures may 
make families more vulnerable to marital instability and missed 
employment); Alexander C. Tsai, Home Foreclosure, Health, and 
Mental Health: A Systematic Review of Individual, Aggregate, 
and Contextual Associations, PLOS ONE (Apr. 7, 2015), 
https://doi.org/10.1371/journal.pone.0123182 (finding that home 
foreclosure adversely affects health and mental health).

https://www.urban.org/sites/default/
https://doi.org/10.1371/journal.pone.0123182


4

The sanctity of the home, and the encouragement and 
protection of homeownership, has been a bedrock 
principle of American law dating back even before the 
Constitution.

Most states allow “nonjudicial” foreclosures, which 
are conducted outside the oversight of a court and 
usually through a series of notices published and 
mailed to borrowers. As in foreclosures generally, the 
mortgage servicer ordinarily delegates to a third 
party—often attorneys—the responsibility for
initiating, managing, and completing the foreclosure 
process against a borrower. In nonjudicial 
foreclosures, however, the foreclosing party does not 
have to prove its case to a court. Instead, after the 
notices are sent to the borrower via mail, the property 
is sold at public auction without a forum in which the 
borrower may make objections. If there are defects in 
the process, the borrower herself must find them, 
document them, and often must file an affirmative 
lawsuit to challenge the foreclosure. Many actions to 
enjoin nonjudicial foreclosures face onerous 
procedural barriers, such as requirements to post a 
bond before an injunction to stop the foreclosure can 
be granted.3 Nonjudicial foreclosures are generally

3 See, e.g., FED. R. Civ. P. 65(c); Frizzell v. Murray, 313 P.3d 1171, 
1172 (Wash. 2013) (holding that borrower’s failure to post 
$25,000 bond waived her claims in an action to enjoin a 
nonjudicial foreclosure); Ferguson v. Commercial Bank, 578 So. 
2d 1234, 1235 (Ala. 1991) (noting that borrowers’ attempt to stop 
a nonjudicial foreclosure sale was dismissed when they failed to 
pay a $30,000 bond).



5

faster than judicial foreclosures, and foreclosure rates 
in states with nonjudicial foreclosure are significantly 
higher than in states that permit only judicial 
foreclosure.4

Foreclosing parties regularly take advantage of 
this lack of judicial oversight, misleading borrowers 
about who owns their loan, misstating amounts owed, 
inflating fees, and sometimes proceeding with 
foreclosure even after borrowers have made 
outstanding payments.5 These practices represent 
precisely the kind of conduct Congress sought to 
address by empowering borrowers with a uniform 
federal cause of action in the FDCPA. It would 
therefore lead to a perverse result if the FDCPA 
applied to judicial foreclosure proceedings, but not to 
nonjudicial proceedings.

4 See Atif Mian, Amir Sufi & Francesco Trebbi, Foreclosures, 
House Prices, and the Real Economy, Kreisman Working Papers 
Series in Housing Law and Policy, No. 6 (2014) (finding that 
lenders are twice as likely to foreclose on delinquent homeowners 
in nonjudicial states controlling for income, credit score, and 
education levels).
5 See, e.g., LOU PlZANTE, ETAL., OFF. OF THE ASSESSOR-RECORDER,
San Francisco, Foreclosure In California: A Crisis in 
COMPLIANCE 1 (2012), http://aequitasaudit.com/images/
aequitas_sf_report.pdf (finding that 84% of nonjudicial 
foreclosure documents recorded in San Francisco County from 
2009—2011 contained “clear violations of law”); John Campbell, 
Can We Trust Trustees? Proposals for Reducing Wrongful 
Foreclosures, 63 CATH. U. L. Rev. 103, 114—16 (2013) (collecting 
examples of wrongful foreclosures, including where borrowers 
had not taken out a loan at all, and where borrowers had made 
all required payments).

http://aequitasaudit.com/images/


6

The prevalence of foreclosures, and the abusive 
practices that accompany them, disproportionately 
affect communities of color. African American 
borrowers were far more likely to be foreclosed upon 
during the foreclosure crisis, lost more relative wealth 
than any other group during that crisis, and have seen 
less recovery since. African American borrowers, 
regardless of education and income, are more likely to 
receive risky mortgages and more likely to experience 
foreclosure. Communities of color also suffer from 
depressed property values as a result. Exempting 
nonjudicial foreclosures from the FDCPA’s protections 
would leave borrowers of color—who already face other 
types of housing-related discrimination—particularly 
vulnerable.

ARGUMENT

In 1977, Congress recognized that “ [ajbusive debt 
collection practices contribute to the number of 
personal bankruptcies, to marital instability, to the 
loss of jobs, and to invasions of individual privacy.” 15 
U.S.C. § 1692(a). In response, Congress enacted the 
Fair Debt Collection Practices Act (FDCPA) to 
“eliminate” those practices and their deleterious 
effects. Id. § 1692(e). The Act limits what debt 
collectors may do when they engage in the “collection 
of [a] debt.” 15 U.S.C. § 1692g(a). And Congress 
ensured that the FDCPA would have a broad sweep by 
defining “debt” broadly: “any obligation or alleged 
obligation of a consumer to pay money arising out of a 
transaction in which the money, property, insurance, 
or services which are the subject of the transaction are



7

primarily for personal, family, or household 
purposes[.]” 15 U.S.C. § 1692a(5). Congress further 
ensured that the Act would reach a wide range of 
unfair debt collection practices by defining “debt 
collector” as, inter alia, “any person who . , . regularly 
collects or attempts to collect, directly or indirectly, 
debts owed or due or asserted to be owed or due 
another.” Id. § 1692a(6).

Petitioner is correct that a nonjudicial foreclosure 
is the collection of a debt, because it seeks satisfaction 
of the promise or obligation embodied in the mortgage 
agreement. That conclusion is clear from the plain text 
of the FDCPA, as well as the context and purpose of 
the law. It is confirmed by the particular importance 
of homeownership in the American legal tradition, and 
by the need to ensure that homeowners of color in 
particular have tools to address abusive practices.

I. NONJUDICIAL FORECLOSURE IS DEBT
COLLECTION ACCORDING TO THE PLAIN
MEANING OF THE FDCPA.

The FDCPA applies to nonjudicial foreclosure 
proceedings because, under the plain text of the 
statute, they constitute a form of debt collection. 
Nonjudicial foreclosure proceedings concern a “debt,” 
which, under the FDCPA, is the “obligation . . .  to pay 
money . . . .” 15 U.S.C. § 1692a(5) (emphasis added), 
and is not “synonymous with ‘money,’” Obduskey v. 
Wells Fargo, 879 F.3d 1216, 1221 (10th Cir. 2018). 
Nonjudicial foreclosure seeks to satisfy this obligation 
by taking possession of the property. And foreclosing 
parties in nonjudicial foreclosures are “debt collectors”



8

under the FDCPA because the statute defines that 
term to include any person who regularly “collects, or 
attempts to collect, directly or indirectly, debts owed or 
due . . . another.” 15 U.S.C. § 1692(a)(6) (emphasis 
added).

A. Nonjudicial Foreclosure Proceedings Are 
Designed to Collect on an “Obligation . . . 
to Pay.”

The obligation to pay money is the central feature 
in any mortgage transaction. A mortgage secures an 
obligation to pay money with a security interest in 
property.6 Where there is no obligation to pay, there is 
no security interest in the property.7

The obligation to pay money is also, therefore, 
central to any foreclosure. Black’s Law Dictionary 
defines “foreclosure” as “ [a] legal proceeding to 
terminate a mortgagor’s interest in property, 
instituted by the lender (the mortgagee) either to gain 
title or to force a sale in order to satisfy the unpaid debt 
secured by the property ,”8 All foreclosures, judicial and 
nonjudicial, are mechanisms to satisfy unpaid debts: 
where there is no debt, there can be no foreclosure. The 
obligation embedded in the mortgage both mandates

6 See Mortgage, BLACK’S LAW DICTIONARY (10th ed. 2014) (“1. A 
conveyance of title to property that is given as security for the 
payment of a debt[.]”).
7 See Restatement (Third) of Property (Mortgages) § 6.4 
(1997) (“[Performance in full of the obligation secured by a 
mortgage . . . redeems the real estate from the mortgage . . . and 
extinguishes the mortgage.”)
8 Foreclosure, BLACK’S LAW DICTIONARY (10th ed. 2014) (emphasis 
added).



9

payment and authorizes the seizure and sale of 
property if the debt is not paid as the mortgage directs, 
and that seizure and sale of property satisfies the debt 
according to the property’s value and the underlying 
state law.

In the decision below, the Tenth Circuit failed to 
consider key words in the text of the FDCPA, and these 
basic principles of property law. The Tenth Circuit 
held that “debt” under the FDCPA is “synonymous 
with money,” and that enforcing a security interest “is 
not an attempt to collect money from the debtor,” as 
“the consumer has no obligation . . .  to pay money.” 
Obduskey, 879 F.3d at 1221 (internal quotation marks 
omitted).

But consumers in foreclosure proceedings— 
whether judicial or nonjudicial—do have an obligation 
to pay money. That obligation is a necessary condition 
for the enforcement of the security interest. Here, for 
example, Respondent could not foreclose on Petitioner 
if Petitioner paid the debt in full before the foreclosure. 
Depending on the value of the security interest and the 
underlying state law, this enforcement may satisfy the 
consumer’s monetary obligation in whole, in part, or 
with a surplus that must be repaid to the consumer. 
The entire foreclosure process relies upon and revolves 
around the consumer’s obligation to pay a sum of 
money. The foreclosure process is therefore collection 
of a “debt” within the meaning of the FDCPA.



10

B, Nonjudicial Foreclosure Attorneys 
Collect Debt “Directly or Indirectly.”

The Tenth Circuit also suggested that 
Respondents are not debt collectors because, under 
Colorado law, a public trustee ultimately sells the 
property and transfers payment to the mortgagee. 
Obduskey, 879 F.3d at 1221, n.4. But the FDCPA 
defines a “debt collector” as any person who “regularly 
collects . . . directly or indirectly, debts owed or due 
. . . another.” 15 U.S.C. § 1692a(6) (emphasis added). 
As attorneys engaging in nonjudicial foreclosure 
activity, Respondents can be deemed to collect debt 
“directly” under this definition, because they institute 
legal actions where the intended remedy (seizure and 
sale of the borrower’s home) will satisfy the borrower’s 
obligation to pay. Indeed, Respondent McCarthy’s 
communications with Petitioner indicate as much. Its 
initial letter stated that McCarthy “may be considered 
a debt collector attempting to collect a debt” and that 
“any information obtained will be used for that 
purpose.” J.A. 37. Among other things, the letter 
informed Petitioner of “the total amount of the debt 
currently owed” and informed him that McCarthy 
“w[ould] assume this debt to be valid unless 
[Petitioner] dispute [d] its validity, or any part of it, 
within 30 days[.]” Id.

But even if they are not collecting directly, 
Respondents are certainly collecting indirectly. They 
are undertaking actions intended to enforce a security 
interest in the borrower’s home in order to satisfy the 
borrower’s obligation to pay. Nonjudicial foreclosure



11

attorneys are therefore “debt collectors,” under the 
text of the FDCPA.

II. THE FDCPA’S PURPOSES CONFIRM THAT 
THE STATUTE APPLIES TO NONJUDICLAL 
FORECLOSURE PROCEEDINGS.
Congress enacted the FDCPA to protect 

consumers from the adverse consequences of abusive 
and deceptive debt collection practices, and to ensure 
that there is a uniform nationwide remedy against 
such practices. The decision below would create an 
“enormous loophole” in the FDCPA, Wilson v. Draper 
& Goldberg, PLLC, 443 F.3d 373, 376 (4th Cir. 2006), 
and therefore frustrate both purposes.

In passing the FDCPA, Congress found that 
“ [tjhere is abundant evidence of the use of abusive, 
deceptive, and unfair debt collection practices by many 
debt collectors. Abusive debt collection practices 
contribute to the number of personal bankruptcies, to 
marital instability, to the loss of jobs, and to invasions 
of individual privacy.” 15 U.S.C. § 1692(a). In addition 
to addressing these devastating effects on borrowers, 
Congress sought to “promote consistent State action to 
protect consumers against debt collection abuses.” Id. 
§ 1692(e).

The risks of abusive debt collection are 
particularly prevalent with respect to collection of the 
principal type of debt in this country: mortgage debt. 
As of the second quarter of 2018, mortgages constitute 
more than two thirds of all consumer debt in the 
United States—i.e. more than twice as much as all



12

other types of consumer debt combined.9 There are 
more than 75 million mortgage accounts in the United 
states.10 Although foreclosures have been declining 
since recession-level highs, 1.1% of mortgages, i.e. 
more than 750,000 borrowers, are “seriously 
delinquent” as of August 2018,11 and more than 
675,000 borrowers found themselves in the foreclosure 
process in 2017.12 The effect of foreclosures is 
compounded in the African American community in 
particular by other practices that target or 
disproportionately affect African American 
homeowners, including discriminatory targeting for 
predatory loans,13 discriminatory property tax and 
water lien foreclosure practices,14 and

9 See Fed. Reserve Bank  of New York, Quarterly Report on 
Household Debt and Credit 2018:Q2, 3 (Aug. 2018),
https://www.newyorkfed.org/medialibrary/interactives/househol 
dcr edit/data/p df/H HD C<_2 018Q2. p df.
10 Id. at 4.
11 Id. at Summary.
12 ATTOM Data Sols., U.S. Foreclosure Activity Drops to 12- 
Year LOW IN 2017, (Jan. 16, 2018), https://www.attomdata.com/ 
news/foreclosure-trends/2017-year-end-u-s-foreclosure-market- 
report/ (finding 676,535 U.S. homes with foreclosure filings in 
2017).
13 See infra Section IV.
14 See, e.g. Michael Sallah, Debra Cenziper & Steven Rich, Left
with Nothing, WASH. POST (Sept. 8, 2013),
http://www.washingtonpost.com/sf/investigative/2013/09/08/left- 
with-nothing/ (finding hundreds of homeowners in primarily 
minority neighborhoods in Washington D.C. lose their homes to 
tax foreclosure over amounts as small as $134); Fred Schulte & 
June Arney, Small Unpaid Bills Put Residents at Risk, BALT. Sun 
(Mar. 25, 2007), http://www.baltimoresun.com/bal-

https://www.newyorkfed.org/medialibrary/interactives/househol
https://www.attomdata.com/
http://www.washingtonpost.com/sf/investigative/2013/09/08/left-with-nothing/
http://www.washingtonpost.com/sf/investigative/2013/09/08/left-with-nothing/
http://www.baltimoresun.com/bal-


13

disproportionate neglect of bank-owned properties, 
which devalues surrounding properties in 
predominantly African American neighborhoods.15 If 
the decision below is affirmed, the FDCPA would not 
apply to the most common type of foreclosure 
proceedings in over half the states, thereby seriously 
undermining Congress’s purpose of protecting 
consumers from abusive and deceptive debt collection 
practices.

Congress also enacted the FDCPA to apply 
consistent protections for borrowers in different states. 
15 U.S.C. § 1692(e). Here, too, Respondent’s
interpretation would frustrate Congress’s purpose.

In the decision below, the Tenth Circuit exempted 
only nonjudicial foreclosures from the FDCPA, noting 
that “judicial mortgage foreclosures may be covered 
under the FDCPA[.]” Obduskey, 879 F.3d at 1221. This 
is consistent with decisions by other Circuits, which 
have held judicial foreclosures subject to FDCPA 
claims,16 and, more generally, with this Court’s

te.bz.waterbills25mar25-story.html# (finding hundreds of 
Baltimore residents lose their homes due to unpaid water bills, 
half of which are $500 or less).
15 See Nat‘l Fair Hous. Alliance, Zip Code Inequality:
Discrimination by Banks in the Maintenance of Homes in 
Neighborhoods of Color (Aug. 27, 2014),
https://nationalfairhousing.org/wp-
content/uploads/2017/04/2014-08-27_NFHA_REO_report.pdf 
(finding that banks often fail to maintain real estate owned 
properties in communities of color).
16 See, e.g. McNair v. Maxwell & Morgan PC, 893 F.3d 680, 683 
(9th Cir. 2018) (holding that attorneys pursuing judicial

https://nationalfairhousing.org/wp-


14

precedent regarding FDCPA applicability to litigation. 
See Jerman v. Carlisle, McNellie, Rini, Kramer & 
Ulrich LPA, 559 U.S. 573, 578-79 (2010); Heintz v. 
Jenkins, 514 U.S. 291, 299 (1995). No Circuit has held 
that the FDCPA does not apply to judicial foreclosures.

But applying the FDCPA to judicial foreclosures, 
but not nonjudicial foreclosures, would create precisely 
the patchwork Congress was seeking to avoid through 
the uniform FDCPA. And it would do so in a 
particularly anomalous fashion: the FDCPA would 
protect borrowers who already have more protection 
from, and recourse for, abusive practices by virtue of 
being a party to a judicial proceeding. Borrowers who 
face unfair, abusive, or deceptive practices in 
nonjudicial foreclosures, by contrast, would be denied 
a federal cause of action to redress the same kinds of 
harms, even though they already have fewer 
protections given the lack of judicial oversight .

Indeed, evidence indicates that the deceptive and 
abusive practices Congress sought to address through 
the FDCPA are common in nonjudicial foreclosure

foreclosure are covered by the FDCPA); Glazer v. Chase Home 
Fin. LLC, 704 F.3d 453, 461 (6th Cir. 2013) (holding that judicial 
foreclosure is debt collection under the FDCPA and stating that 
“[i]n fact, every mortgage foreclosure, judicial or otherwise, is 
undertaken for the very purpose of obtaining payment on the 
underlying debt”); Kaltenbach v. Richards, 464 F,3d 524, 529 (5th 
Cir. 2006) (holding that “a party who satisfies § 1692a(6)’s 
general definition of a ‘debt collector’ is a debt collector for the 
purposes of the entire FDCPA even when enforcing security 
interests”).



15

proceedings. Sections 1692e and 1692g of the FDCPA 
protect borrowers from misrepresentations about the 
amount or character of a debt, and from attempts to 
collect amounts not authorized by the underlying 
agreement. But a 2008 study in Texas found that 
nonjudicial foreclosure filings in that state routinely 
inflated charges and misrepresented amounts owed.17 
These abuses were only remedied because the 
borrowers in this study declared bankruptcy—for 
countless others they went unaddressed. The amicus 
curiae brief of the National Consumer Law Center 
provides many more instructive examples. See Br. of 
Amicus Curiae National Consumer Law Center at 
Section IV.

Similarly, Sections 1692e and 1692g protect 
borrowers from threats of action that cannot legally be 
taken, and from foreclosures by parties who have no 
right to possession. But a 2012 study of nonjudicial 
foreclosure filings in San Francisco County showed 
that foreclosing entities often use nonjudicial 
foreclosure to strip people of their homes despite 
having no legal right to the property.18

17 Katherine Porter, Misbehavior and Mistake in Bankruptcy 
Mortgage Claims, 87 Tex. L. Rev. 121 (2008).
18 See PlZANTE, supra note 5, at 1 (finding that 84% of nonjudicial 
foreclosure documents recorded in San Francisco County from 
2009—2011 contained “clear violations of law”). See also Timothy 
A. Froehle, Standing in the Wake of the Foreclosure Crisis: Why 
Procedural Requirements Are Necessary to Prevent Further Loss 
to Homeowners, 96 IOWAL. REV. 1719, 1738—40 (2011) (describing 
examples of parties foreclosing without proper ownership of the 
under lying mortgage).



16

Borrowers going through foreclosure with judicial 
oversight are less vulnerable to these abusive 
practices. Foreclosing parties must file documents in 
court sufficient to show the truth of the amounts they 
claim borrowers owe, and sufficient to show that they 
may legally foreclose, consistent with pleading and 
evidence rules in state courts. But borrowers in 
nonjudicial foreclosure proceedings have no 
comparable access to this information, and no already- 
assigned judge to ask for relief from abuse. Borrowers 
in nonjudicial foreclosures are therefore more 
vulnerable to these abusive collection practices, and 
more in need of the protections of the FDCPA.

Mortgages are often the most important and most 
complicated transactions consumers enter in their 
lives. Sorting out available options when a mortgage 
payment is impossible to make is no small 
undertaking. Borrowers must document their own 
finances accurately and repeatedly, explore the 
possibility of refinances, modifications, and short 
sales, and determine their legal rights simultaneously. 
FDCPA application in the nonjudicial foreclosure 
process provides an incentive for foreclosing parties to 
provide accurate, understandable information on 
which consumers can rely. And this application also 
accomplishes Congress’s goal of uniformity and 
consistency in consumer protection from debt 
collection abuses nationwide.



17

III. THE FDCPA’S APPLICATION TO 
NONJUDICIAL FORECLOSURES IS 
CONSISTENT WITH THE SOLICITUDE FOR 
HOMEOWERS IN OUR LEGAL TRADITION.
Our constitutional and common-law tradition give 

the home the highest solicitude in a host of areas.

Long before the Founding, Anglo-American law 
prized the importance and indeed sanctity of the home. 
In 1604, Semayne’s Case held that “the house of every 
one is to him as his Q castle and fortress, as well for 
his defence against injury and violence, as for his 
repose[.]” 77 Eng. Rep. 194, 195 (K.B.). A century and 
a half later, Blackstone observed that English law had 
“so particular and tender a regard to the immunity of 
a man’s house that it styles it his castle and will never 
suffer it to be violated with impunity[.]” 4 William 
Blackstone, Commentaries on the Laws of England 223 
(Phila., J.B. Lippincott Co., 1893). Indeed, Blackstone 
recognized this principle as predating positive law. 
Discussing the origin of property in “house and home- 
stall,” he noted that even animals “maintain0 a kind 
of permanent property in their dwellings, especially 
for the protection of their young . . . the invasion of 
which they esteemed a very flagrant injustice[.]” 2 
William Blackstone, Commentaries on the Laws of 
England 4 (Phila., J.B. Lippincott Co., 1893); see also 
4 Blackstone, supra, at 222 (observing that the “right 
of habitation” could be acquired “even in a state of 
nature”).

The Founders were aware of, and relied upon, this 
legacy, even before the Founding. So, for example,



18

John Adams could argue with confidence in 1774 that 
“ [a]n Englishmans dwelling House is his Castle. . . . 
every Member of Society has entered into a solemn 
Covenant with every other that he shall enjoy in his 
own dwelling House as compleat a security, safety and 
Peace and Tranquility as if it was surrounded with 
Walls of Brass, with Ramparts and Palisadoes and 
defended with a Garrison and Artillery[.]” Thomas Y. 
Davies, Recovering the Original Fourth Amendment, 
98 Mich. L. Rev. 547, 642 n.260 (1999) (quoting 1 Legal 
Papers of John Adams 137 (L. Kinvin Wroth & Hiller 
B. Zobel eds., 1965)).

The Bill of Rights reflected their understanding. 
As Justice Joseph Story explained in his influential 
Commentaries on the Constitution of the United States, 
the Third Amendment’s bar on the quartering of 
soldiers in homes aimed “to secure the perfect 
enjoyment of that great right of the common law, that 
a man’s house shall be his own castle, privileged 
against all civil and military intrusion.” 3 Joseph 
Story, Commentaries on the Constitution of the United 
States 747 (Bos., Hilliard, Gray & Co. 1833). And the 
Fourth Amendment, with its explicit protection of 
“houses,” was in Story’s view “the affirmance of a great 
constitutional doctrine of the common law.” Id. at 748; 
see also Davies, supra, at 603, 608 (discussing the 
relevance of the house’s “special status at common 
law” to the Framers).

Consistent with this history, this Court has 
deemed the home “first among equals” for Fourth 
Amendment purposes. Florida v. Jardines, 569 U.S. 1,



19

6 (2013); see also Payton v. New York, 445 U.S. 573, 
597 n.45 (1980) (“[0]ne of the most essential branches 
of English liberty is the freedom of one’s house.”) 
(quoting 2 Legal Papers of John Adams 142 (L. Kinvin 
Wroth & Hiller B. Zobel eds. 1965))). Because we have 
“lived our whole national history with an 
understanding of the ancient adage that a man’s house 
is his castle,” one occupant’s consent for the police to 
enter and search is invalid if a present co-occupant 
objects. Georgia v. Randolph, 547 U.S. 103, 115 (2006) 
(internal quotation marks omitted). To preserve that 
sanctity, the Court recognizes a prophylactic 
protection for the area “immediately surrounding and 
associated with the home,” Jardines, 569 U.S. at 6, and 
has held that employing thermal imaging from a 
public street to detect heat levels within the home 
must satisfy Fourth Amendment scrutiny, see Kyllo v. 
United States, 533 U.S. 27, 29, 40 (2001).

Moreover, this Court has considered the special 
importance of the home in interpreting constitutional 
protections that do not specifically mention it. For 
example, in the Second Amendment context, District 
of Columbia v. Heller emphasized that the 
Amendment “elevates above all other interests the 
right of law-abiding, responsible citizens to use arms 
in defense of hearth and home.” 554 U.S. 570, 635 
(2008). And, invalidating a ban on same-sex intimate 
conduct as violating the liberty protected by the 
Fourteenth Amendment, this Court in Lawrence v. 
Texas recognized that “ [i]n our tradition the State is



2 0

not omnipresent in the home.” 539 U.S. 558, 562 
(2003).

This Court’s treatment of the home in Jones u. 
Flowers, 547 U.S. 220 (2006), is particularly notable 
here. Settled Fourteenth Amendment due-process law 
required notice and opportunity for a hearing “ [bjefore 
a State [could] take property and sell it for unpaid 
taxes[.]” Id. at 223. The question in Flowers was 
whether the government could seize a homeowner’s 
property based on nothing more than the undelivered 
return of a notice of tax sale mailed to the owner. See 
id. The nature of the process due “varies according to 
specific factual contexts[,]” Hannah v. Larche, 363 U.S. 
420, 442 (1960), and the linchpin in Flowers was the 
home. In holding that more process was 
constitutionally required, the Court in Flowers 
emphasized repeatedly that the petitioner’s home was 
at stake. See, e.g., Flowers, 547 U.S. at 229 (stating 
that at issue was “the adequacy of notice prior to the 
State extinguishing a property owner’s interest in a 
home”); id. at 238 (“ [S]omeone who actually wanted to 
alert Jones that he was in danger of losing his house 
would do more[.]”); id. at 239 (“In this case, the State 
is exerting extraordinary power against a property 
owner—taking and selling a house he owns.”).

In short, it does not overstate the matter to call the 
home “the most constitutionally protected place on 
earth.” United States v. Craighead, 539 F.3d 1073, 
1083 (9th Cir. 2008). As this Court has recognized, the 
“interest in protecting the well-being, tranquility, and 
privacy of the home” is “of the highest order in a free



2 1

and civilized society.” Carey v. Brown, 447 U.S. 455, 
471 (1980).

Consistent with this legal tradition, the home has 
been uniquely linked to the idea of the “American 
dream.” 19 Both before and after slavery—despite 
antebellum bars on property ownership and 
postbellum barriers to its acquisition—African 
Americans sought to be part of this tradition.20 
Similarly, for successive generations of new 
Americans, a home of their own has been a central, 
driving ambition and a marker of self-sufficiency and 
accomplishment.21

For these reasons, a long line of Congresses before 
the 95th Congress—which enacted the FDCPA— 
recognized the home’s importance. For example, the

19 See Heather K. Way, Informal Homeownership in the United
States and the Law, 29 ST. LOUIS U. PUB. L. REV. 113, 126 (2009); 
President Barack Obama, Remarks by the President on 
Responsible Homeownership (Aug. 6, 2013),
http s ://ob amawhitehouse. archive s. gov/the-pre ss -
office/2013/08/06/remarks-president-responsible-homeownership 
(describing “the chance to own your own home” as “the most 
tangible cornerstone that lies at the heart of the American 
dream”).
20 See, e.g., Charles Lewis Nier III, The Shadow of Credit: The 
Historical Origins of Racial Predatory Lending and Its Impact 
Upon African American Wealth Accumulation, 11 U. Pa. J.L. & 
Soc. CHANGE 131, 135-37, 143, 148, 167-69 (2008) (discussing 
relevant history).
21 See Charu A. Chandrasekhar, Can New Americans Achieve the 
American Dream? Promoting Homeownership in Immigrant 
Communities, 39 HABV. C.R.-C.L. L. Rev. 169, 170—172 (2004) 
(collecting studies).



2 2

National Housing Act, Pub. L. No. 73-479, 48 Stat. 
1246 (1934), created the Federal Housing
Administration to “address a crisis in mortgage 
delinquencies and foreclosures[.]”22 And the Housing 
Act of 1949, Pub. L. No. 81-171, 63 Stat. 413, declared 
Congress’s “goal of a decent home and a suitable living 
environment for every American family” to “advance[]
. . . the growth, wealth, and security of the Nation.” 42 
U.S.C. § 1441. We had, in short, “ [djecades of federal 
policy designed to expand and improve the nation’s 
housing supply).]”23

Of course, as this Court recently recognized, 
African Americans and other minorities were in large 
part excluded—sometimes by government action— 
from this housing policy. See, e.g., Tex. Dep’t of Hous. 
& Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 
S. Ct. 2507, 2515-16 (2015); see also Brief of Amici 
Curiae Housing Scholars Supporting Respondent, Tex. 
Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. 
Project, Inc., 135 S. Ct. 2507 (2015) (No. 13-1371), 2014 
WL 7405732, at *10-21 (discussing this history). 
These exclusionary practices often relegated African 
Americans to substandard, exploitative housing. For 
example, the Federal Housing Administration 
intentionally imposed racially restrictive covenants

22 Brad Greenburg, Consolidation After Crisis: How a Few Private 
Investors Bought Distressed, Federally-Insured Mortgages After 
the Foreclosure Crisis, 20 N.Y.U. J. LEGIS. & PUB. POL’Y 887, 890 
(2017) (internal quotation marks omitted).
23 Lawrence B. Simons, Towards a New National Housing Policy, 
6 Yale L. & POL’Y Rev. 259, 264 (1988).



23

and “redlined” African American families into blocks 
ineligible for Federal Housing Administration insured 
mortgages.24 Seeking to eliminate these and other 
injustices, Congress passed the Fair Housing Act, 
which aimed to create “truly integrated and balanced 
living patterns.” Trafficante v. Metro. Life Ins. Co., 409 
U.S. 205, 211 (1972) (citation omitted). As one of our 
most significant civil rights statutes, the Fair Housing 
Act represents our recognition that the promise of 
security, stability, and full citizenship that a home 
represents must be available to all Americans.

This history and context should illuminate the 
question presented here. Given our long history of 
granting the home pride of place, there can be no 
serious dispute that the 95th Congress understood the 
home’s importance. Nor can it be doubted that 
Congress knew that mortgages were a form of debt 
that can be collected upon. After all, the Senate Report 
explicitly recognizes that they are. In explaining why 
“persons who originated” loans could collect on those 
debts without being considered debt collectors, 
Congress gave “mortgages and student loans” as 
examples of collectible debts. S. Rep. No. 95-382, at 3 
(1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1698 
(emphasis added).

And, finally, it was clear in 1977, as it is today, 
that mortgages were a significant form of debt. In the

24 See, e.g., David Reiss, Underwriting Sustainable 
Homeowner ship: The Federal Housing Administration and the 
Low Down Payment Loan, 50 Ga . L. REV. 1019, 1050—51 (2016).



24

thirty years between 1949 and 1979, mortgage debt 
rose: from 20 percent of total American household 
income to 46 percent of household income, from 15 
percent of household assets to 28 percent of household 
assets, and from just over ten percent of GDP to just 
under thirty percent of GDP,25 It would have been 
strange indeed had Congress drafted a statute focused 
on curbing abusive debt collection practices that 
exempted an enormous amount of American household 
debt relating to one of the most prized possessions in 
American thought and law—the home. It did not.
IV. THE DECISION BELOW CREATES

PARTICULAR RISKS FOR AFRICAN
AMERICAN HOMEWONERS.
In the years following the Second World War, 

federal, state, and local governments enforced and 
subsidized discriminatory policies that prevented 
Black families from acquiring homes.26 Federal 
agencies initiated the practice of redlining,27 and the 
Federal Housing Administration required developers 
to include racially restrictive covenants in their deeds

25 See Richard K. Green & Susan M. Wachter, The American 
Mortgage in Historical and International Context, 19 J. OF ECON. 
PERSP. 93, 93-94 (2005).
26 See generally, DOUGLAS S. MASSEY & NANCY A. DENTON,
American Apartheid: Segregation and the Making of the 
Underclass (1993).
27 Benjamin Howell, Exploiting Race and Space: Concentrated 
Subprime Lending as Housing Discrimination, 94 CALIF. L. REV. 
101, 107-08 (2006).



25

to obtain federal financing.28 This combination of 
racially discriminatory government policies and 
private sector prejudice prevented many Black people 
from owning homes, and “segregation continued 
unabated” through the early 1960s.29 While the overall 
homeownership rate in the United States increased 
from 43.6 percent in 1940 to 62 percent in 1960, that 
increase inured exclusively to the benefit of the white 
middle class.30 The resultant “residential spatial 
segregation in America’s cities has contributed to the 
growth of an African-American underclass that 
threatens to make urban poverty and racial injustice a 
permanent fixture of American society.”31

More recently, a number of major lenders 
developed and aggressively pushed forms of “reverse 
redlining.” They did so by marketing high-risk, 
subprime loans, “offering easier and faster approvals” 
to borrowers of color while downplaying the exorbitant 
costs that would later be exacted through inflatable 
interest rates, balloon payments, negative 
amortization features, and/or stricter repayment

28 See Richard Rothstein, Race and Public Housing: Revisiting the 
Federal Role, 21 POVERTY & RACE RES. ACTION COUNCIL 2 (Nov.- 
Dee. 2012).
29 Ira Rheingold, et al., From Redlining to Reverse Redlining: A 
History of Obstacles for Minority Homeownership in America, 34 
Clearinghouse Rev. 642, 645 (2001).
30 Mechele Dickerson, Home Ownership and America’s 
Financial Underclass: Flawed Premises, Broken Promises, 
NEW PRESCRIPTIONS 181 (Cambridge Univ. Press 2014).
31 John P. Reiman, Foreclosures, Integration, and the Future of 
the Fair Housing Act, 41 IND. L. REV. 629, 629, 641 (2008).



26

terms.32 Studies that control for income, credit score, 
and other risk variables consistently show that 
borrowers of color were and continue to be 
disproportionately steered into predatory high-risk 
loans.33

Given this historical and contemporary 
discrimination in the housing market, it is no surprise 
that Black borrowers fared significantly worse than 
others during and since the foreclosure crisis. “ [T]he 
group with the smallest percentage of homeownership, 
African Americans, had the greatest dive in 
homeownership rates.”34 Indeed, a study examining 
foreclosures during the housing crisis found that 
predominantly Black neighborhoods experienced 8.1 
foreclosures per 100 homes, while predominantly

32 See Rick Brooks & Ruth Simon, Subprime Debacle Traps Even
Very Credit-Worthy, WALL STREET J. (Dec. 3, 2007),
https://www.wsj.com/articles/SBll9662974358911035.
33 See, e.g., Robert G. Schwemm & Jeffrey L. Taren, Discretionary
Pricing, Mortgage Discrimination, and the Fair Housing Act, 45 
Harv. C.R.-C.L. L. Rev. 375, 399-400 (2010); Carolina Reid & 
Elizabeth Laderman, The Untold Costs of Subprime Lending: 
Examining the Links among Higher-Priced Lending, Foreclosures 
and Race in California 7, INST. FOR ASSETS & SOC. POL’Y, 
BRANDEIS UNIV. (2009); MONIQUE W. MORRIS, NAACP,
Discrimination and Mortgage Lending in America: A 
Summary of the Disparate Impact of Subprime Mortgage 
Lending on African Americans (Mar. 2009),
https://naacp.3cdn.net/4ca760b774f81317c4_klm6i6yxg.pdf.
34 Aleatra P. Williams, Lending Discrimination, the Foreclosure 
Crisis and the Perpetuation of Racial and Ethnic Disparities in 
Homeownership in the U.S., 6 Wm . & MARY BUS. L. Rev. 601, 618 
(2015).

https://www.wsj.com/articles/SBll9662974358911035
https://naacp.3cdn.net/4ca760b774f81317c4_klm6i6yxg.pdf


27

white neighborhoods experienced only 2.3 homes per 
100 on average.33 * 35

The implications for wealth accumulation in the 
Black community have been devastating. 
Homeownership is strongly linked to wealth 
accumulation, due in large part to the transferability 
of real estate between generations.36 The decades of 
federal policies and private discriminatory practices 
expanding white homeownership and restricting 
Black homeownership steadily widened the racial 
wealth gap through the 20th century.37 The great 
recession and foreclosure crisis exacerbated this trend:

[BJetween 2005 and 2009, fully two-thirds of 
median household wealth in [communities of 
color] was wiped out. From Jamaica, Queens,
New York, to Oakland, California, strong, 
middle class African American 
neighborhoods saw nearly two decades of 
gains reversed in a matter of not years — but 
months.38

33 Matthew Hall, Kyle Crowder & Amy Spring, Neighborhood, 
Foreclosures, Racial / Ethnic Transitions, and Residential
Segregation, 80 AM. SOC. REV. 526, 534 (2015) (examining the
years 2005-2009). .
36 Lynnise E. Phillips Pantin, The Wealth Gap and the Racial 
Disparities in the Startup Ecosystem, 62 St. LOUIS U. L.J. 419, 
436 (2018).
37 See id.; Thomas M. Shapiro, Race, Homeownership and Wealth, 
20 WASH. U. J.L. & POL’Y 53, 58-59 (2006).
38 Shaun Donovan, Prepared Remarks of Secretary Shaun 
Donovan During the Countrywide Settlement Press Conference, 
U.S. Dep’t of Hous. & Urban Dev., Press Room (Dec. 21, 2011),



28

This dramatic and disproportionate decline in 
household wealth also reflects the fact that home 
equity “represents a much larger share of the net 
worth of the typical black or Hispanic homeowner (58 
percent) than of the typical white homeowner (37 
percent).”39 The downstream effects of the foreclosure 
crisis, particularly decreased property values and 
depressed credit scores, likewise disproportionately 
harm Black families and communities of color.40

These downstream effects also restrict Black 
families’ options for preventing foreclosure. Black 
families are less likely to qualify for refinancing due to 
disproportionately high loan balances, low property 
values, and weak credit scores. For these same

https://archives.hud.gov/remarks/donovan/speeches/2011-12- 
21.cfm. See also Jacob S. Rugh & Douglas S. Massey, Racial 
Segregation and the American Foreclosure Crisis, 75 Am . SOC. 
REV. 629, 633 (2010) (“[S]egregation and the new face of unequal 
lending combined to undermine black residential stability and 
erode any accumulated wealth.”).
39 Joint Ctr. for Hous. Studies, Harv. Univ., The State of the
Nation’s Housing: 2015 17 (2015),
http://www.jchs.harvard.edu/sites/default/files/jchs-sonhr-2015- 
full.pdf.
40 See e,g., Ylan Q. Mui, For Black Americans, Financial Damage 
from Subprime Explosion Is Likely to Last, WASH. POST (July 8, 
2012), https://www.washingtonpost.com/business/economy/for- 
black-americans-financial-damage-from-subprime-implosion-is- 
likely-to-last/2012/07/08/gJQAwNmzWW_story,html? 
utm_term=.1417963b278b (“[Cjredit scores of black Americans 
have been systematically damaged, haunting their financial 
futures.”).

https://archives.hud.gov/remarks/donovan/speeches/2011-12-21.cfm
https://archives.hud.gov/remarks/donovan/speeches/2011-12-21.cfm
http://www.jchs.harvard.edu/sites/default/files/jchs-sonhr-2015-full.pdf
http://www.jchs.harvard.edu/sites/default/files/jchs-sonhr-2015-full.pdf
https://www.washingtonpost.com/business/economy/for-black-americans-financial-damage-from-subprime-implosion-is-likely-to-last/2012/07/08/gJQAwNmzWW_story,html
https://www.washingtonpost.com/business/economy/for-black-americans-financial-damage-from-subprime-implosion-is-likely-to-last/2012/07/08/gJQAwNmzWW_story,html
https://www.washingtonpost.com/business/economy/for-black-americans-financial-damage-from-subprime-implosion-is-likely-to-last/2012/07/08/gJQAwNmzWW_story,html


29

reasons, as well as a racial income gap,41 Black 
families also have a harder time qualifying for loan 
modifications.42 The result is that Black families often 
have fewer options for escaping foreclosure, and they 
have a particular need for accurate information to 
evaluate what options they do have.

FDCPA protections are particularly essential for 
African American and other borrowers of color. As 
explained above, nonjudicial foreclosure is ripe for, 
and rife with, the abuses the FDCPA is meant to 
prevent, and those abuses disproportionately harm 
minority borrowers. Congress’s intent for the FDCPA 
was to require debt collectors to be honest and 
forthright with borrowers about their obligations. 
Nowhere is this more important than in nonjudicial 
foreclosure, where the borrowers’ stakes are enormous 
and their access to information is limited.

41 A recent study found that race is a significant factor in 
determining income, even after controlling for neighborhood and 
socioeconomic background. See Jenny Gathright, Forget Wealth 
and Neighborhood. The Racial Income Gap Persists, NPR 
(Mar. 19, 2018), https://www.npr.org/sections/codeswitch/ 
2018/03/19/594993620/forget-wealth-and-neighborhood-the- 
racial-income-gap-persists.
42 See, e.g. Cal. REINVESTMENT COALITION, RACE TO THE BOTTOM:
An Analysis of HAMP Loan Modification Outcomes by Race 
and Ethnicity for California (July 2011), 
http://www.calreinvest.org/system/resources/WlsiZiIsIjIwMTEv 
MDcvMTIvMTFfMTBfMjdfOTg3XOhBTVBfUkVQTlJUXOZJTk 
FMLnBkZiJdXQ/HAMP%20REPORT%20FINAL.pdf.

https://www.npr.org/sections/codeswitch/
http://www.calreinvest.org/system/resources/WlsiZiIsIjIwMTEv


30

CONCLUSION

Because the FDCPA applies to nonjudicial 
foreclosure proceedings, the judgment of the Tenth 
Circuit should be reversed.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital *
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

September 14, 2018

Sparky Abraham 
Kerrel Murray 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St., NW 
6th Floor
Washington, DC 20005

Counsel for Amicus Curiae 

*Counsel of Record

mailto:sspital@naacpldf.org