Author Topic: Finally, a rational decision by an Ohio Court  (Read 2759 times)

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Doctor Evil

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Finally, a rational decision by an Ohio Court
« on: September 27, 2007 02:22:24 PM »
FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff-Appellee,
LERNER, SAMPSON & ROTHFUSS, L.P.A., Defendant-Appellee,
SCOTT HARNER; CLEVELAND PROCESS SERVICE, LLC, Defendants, v.
CYNTHIA G. LAMAR, Defendant-Appellant.
No. 06-4335
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
 
   07a0390p.06; 2007 U.S. App. LEXIS 22675; 2007 FED App.
0390P (6th Cir.)
July 26, 2007, Argued
September 25, 2007, Decided
September 25, 2007, Filed
PRIOR HISTORY: [*1]
   Appeal from the United States District Court for the Northern District of
Ohio at Cleveland. No. 05-01455. Donald C. Nugent, District Judge.
COUNSEL: ARGUED: Thomas A. Barni, DINN, HOCHMAN, POTTER & LEVY, Cleveland, Ohio,
for Appellant.
Rick D. Deblasis, LERNER, SAMPSON & ROTHFUSS, Cincinnati, Ohio, for Appellees.
ON BRIEF: Thomas A. Barni, Renee S. Pienta, DINN, HOCHMAN, POTTER & LEVY,
Cleveland, Ohio, for Appellant.
Rick D. Deblasis, LERNER, SAMPSON & ROTHFUSS, Cincinnati, Ohio, for Appellees.
JUDGES: Before: BATCHELDER and GRIFFIN, Circuit Judges; ACKERMAN, District
Judge. *
*   The Honorable Harold A. Ackerman, Senior United States District Judge for
the District of New Jersey, sitting by designation.
OPINION BY: ALICE M. BATCHELDER
OPINION
    [**2] ALICE M. BATCHELDER, Circuit Judge. Cynthia G. Lamar appeals the
district court's grant of summary judgment in favor of Lerner, Sampson, &
Rothfuss, L.P.A. ("LS&R") on Lamar's claim that LS&R violated the notice
provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692
et. seq., when LS&R included the statutorily-required notice with the summons
and complaint it served Lamar. Because LS&R effectively conveyed notice of
Lamar's right to dispute the validity of her [*2] debt, we AFFIRM the district
court.
I. BACKGROUND
   On May 17, 2005, Federal Home Loan Mortgage Corporation contacted LS&R to
institute mortgage foreclosure proceedings against Lamar. On May 23, 2005, LS&R
filed a summons and complaint in foreclosure against Lamar in the Northern
District of Ohio. Pursuant to § 1692g of the FDCPA, LS&R included a notice
provision located immediately below the case caption and immediately above the
complaint. Though not preceded by the caption "Notice," the notice provision was
the first substantive text in the complaint. The notice provision stated:
 
   The Summons attached to this Complaint advises you of certain of
your rights under state law for responding to this Complaint. Among
these rights is your right to serve your Answer upon Lerner, Sampson,
& Rothfuss within twenty (20) days. If your name appears in numbered
paragraph 1 below, you have additional rights under federal law to
request certain information from Lerner, Sampson & Rothfuss within
thirty (30) days. These time periods run at the same time and start on
the day after you receive this Complaint.
   The federal Fair Debt Collection Practices Act requires that
Lerner, Sampson & Rothfuss provide [*3] you with the following
information. The amount of the debt, as of May 20, 2005, is $
121,289.78. This amount is made up of your principle balance,
interest, late charges, and amounts expended by the creditor, such as
for taxes and insurance. Because many of these items vary from day to
day, the amount due on the day you pay will be greater. Hence, if you
pay the amount shown above, an adjustment will be necessary after we
receive your check.
   The creditor to whom the debt is owed is the plaintiff listed
above. Unless, within thirty (30) days of your receipt of this Notice,
you notify Lerner, Sampson & Rothfuss that you dispute the validity of
this debt or any portion of it, Lerner, Sampson & Rothfuss will assume
the debt is valid. Lerner, Sampson & Rothfuss is a debt collector.
This is an attempt to collect a debt, and any information obtained
will be used for that purpose.
   If you notify Lerner, Sampson & Rothfuss in writing within thirty
(30) days of the receipt of this Notice that the debt or any portion
thereof is disputed, Lerner, Sampson & Rothfuss will obtain a
verification of the debt and will mail a copy of that verification to
you. If the creditor named as plaintiff above is [*4] not the
original creditor, and if you make written request to Lerner, Sampson
& Rothfuss within thirty (30) days from receipt of this notice,
Lerner, Sampson & Rothfuss will provide you with the name and address
of the original creditor.
 
 
   LS&R waited three weeks for confirmation of service from Lamar. On June 14,
2005, LS&R initiated personal service of the summons and complaint through
Cleveland Process Service, LLC and Scott Harner. 1 The next day, June 15, Lamar
received the complaint and summons via certified mail. On June 16, a certified
mail return indicating service upon Lamar was filed with the court and the court
sent notice to the attorney of record at LS&R. Despite receiving notice that
Lamar had been served by certified mail, LS&R failed to inform Harner of
successful service, and Harner personally served Lamar with a second, albeit
identical, summons and complaint on June 23, 2005. Lamar answered the complaint
and filed a third-party complaint against LS&R alleging that LS&R violated the
FDCPA and the Ohio Consumer Sales Practices Act ("OCSPA"), Ohio Rev. Code Ann. §
1345.01 et seq. The record is silent as to whether Lamar sought to dispute the
debt described in the complaint. [*5]
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1   Harner
and Cleveland Process Service are no longer parties to this appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   Both Lamar and LS&R moved for summary judgment on Lamar's FDCPA and OCSPA
claims. The district court granted summary judgment in favor of LS&R. Lamar
noticed a timely appeal.
II. ANALYSIS
   We review de novo the district court's grant of summary judgment. Edgar v.
JAC Prods., Inc., 443 F.3d 501, 506 (6th Cir. 2006). Summary judgment is proper
"if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). "We view the evidence, all facts, and any
inferences that may be drawn from the facts in the light most favorable to the
nonmoving party." Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005)
(citing to Matsush*ta Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). If, after reviewing the record as a whole, a rational fact finder could
not find for the nonmoving party, summary judgement is appropriate. Ercegovich
v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998). [*6] The
parties do not dispute the underlying facts, and present only questions of law.
2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2   Lamar
notes that there is some conflict regarding whether the issue of effective
notice and the least sophisticated consumer standard is one of fact or law,
contending that the issue is one of fact, rendering summary judgment
inappropriate. We have determined that "t is well-settled that courts may
properly make the objective determination whether language effectively conveys a
notice of rights to the least sophisticated debtor." Savage v. Hatcher, 109 F.
App'x 759, 762 (6th Cir. 2004); see also Smith v. Transworld Sys., Inc., 953
F.2d 1025, 1029 (6th Cir. 1992) (affirming district court's grant of summary
judgment to debt collector where debt collector's letter "clearly satisfies 15
U.S.C. § 1692g(a)(3), even under the 'least sophisticated consumer' standard").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
A. Fair Debt Collection Practices Act
   Congress enacted the FDCPA in order "to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers
against [*7] debt collection abuses." 15 U.S.C. § 1692(e). "Congress designed
the [FDCPA] to 'eliminate the recurring problem of debt collectors dunning the
wrong person or attempting to collect debts which the consumer has already
paid.'" Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir.
1988) (quoting S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N.
1695, 1699).
   1. § 1692g - Validation Notice
   Section 1692g(a) "requires debt collectors to issue a 'validation notice,'
either in the initial communication with a consumer or within five days of that
initial communication, that informs the consumer of certain rights including the
right to make a written request for verification of the debt [**4] and to
dispute the validity of the debt." Jacobson v. Healthcare Fin. Servs., Inc., 434
F. Supp. 2d 133, 139 (E.D.N.Y. 2006). Section 1692g(a) provides:
 
   (a) Notice of debt; contents. Within five days after the initial
communication[ 3] with a consumer in connection with the collection of
any debt, a debt collector shall, unless the following information is
contained in the initial communication or the consumer has paid the
debt, send the consumer a written notice containing -
   (1) the [*8] amount of the debt;
   (2) the name of the creditor to whom the debt is owed;
   (3) a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the debt
collector;
   (4) a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a copy of
such verification or judgment will be mailed to the consumer by the
debt collector; and
   (5) a statement that, upon the consumer's written request within
the thirty-day period, the debt collector will provide the consumer
with the name and address of the original creditor, if different from
the current creditor.
 
15 U.S.C. § 1692g(a). Congress added § 1692g "specifically to ensure that debt
collectors gave consumers adequate information concerning their legal rights."
Swanson, 869 F.2d at 1225.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3   Section
1692g(a)'s notice requirements apply only to an "initial communication." Before
the district court, LS&R argued that a summons and complaint [*9] was not an
"initial communication" under the FDCPA and, therefore, § 1692g(a) was
inapplicable. At the time Lamar brought suit against LS&R, a circuit split
existed concerning whether a summons and complaint constituted an "initial
communication." Compare Goldman v. Cohen, 445 F.3d 152 (2d Cir. 2006) (summons
and complaint is an "initial communication") and Thomas v. Law Firm of Simpson &
Cybak, 392 F.3d 914 (7th Cir. 2004) (en banc) (same) with Vega v. McKay, 351
F.3d 1334, 1337 (11th Cir. 2003) ("t seems far more consistent with the
purpose of the [FDCPA] that the term 'communication' as used does not include a
'legal action or pleading.'"). Moreover, our court had not yet spoken on the
issue. The district court, therefore, assumed without deciding, that LS&R's
summons and complaint was an "initial communication" under the FDCPA and
triggered § 1692g(a)'s notice requirements.
   Since the district court rendered its decision, Congress has amended § 1692g
to provide that "[a] communication in the form of a formal pleading in a civil
action shall not be treated as an initial communication for purposes of
subsection (a)." 15 U.S.C. § 1692g(d). Given the state of the law at the time
Lamar [*10] initiated suit against LS&R and the subsequent amendment by
Congress, the district court did not err in its assumption. We likewise assume
that a summons and complaint was an "initial communication" at the time Lamar
brought suit.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   It is undisputed that LS&R's FDCPA notice contains the technical information
required by the statute. The issue before us is whether LS&R "effectively
conveyed notice of the thirty-day validation period" to the least sophisticated
consumer. 4 As we have previously stated, "nder the [FDCPA], notice of the
thirty-day validation period is necessary, but not sufficient to satisfy §
1692g(a)." Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999).
Instead, "[a] debt collector must 'effectively convey' the notice to the
debtor." Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4   Lamar
attempts to dispose of this case on the grounds of collateral estoppel,
contending that the district court erred by finding that the doctrine did not
apply. She argues that the same issue of effective notice in LS&R's summons and
complaint was fully and fairly litigated in Kafele v. Lerner, Sampson &
Rothfuss, L.P.A., 2005 U.S. Dist. LEXIS 11127 (S.D. Ohio June 9, 2005), where
LS&R included the FDCPA notice in [*11] the summons and complaint and conceded
that the notice was ineffective. Kafele, 2005 U.S. Dist. LEXIS 11127, at *7,
9-10.
   "The doctrine of collateral estoppel operates when three requirements are
met: (1) the issue in the current action and the prior action are identical; (2)
the issue was actually litigated; and (3) the issue was necessary and essential
to the judgment on the merits." United States v. Beaty, 245 F.3d 617, 624 (6th
Cir. 2001). Because the notice in our case is different in content, form and
placement from the Kafele notice, the notice issue litigated in Kafele is not
identical to the notice issue here. Therefore, the doctrine of collateral
estoppel does not apply.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   In order to determine whether notice was "effectively conveyed," "[t]his
Court uses the 'least sophisticated debtor [or consumer]' standard." Id; see
also Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1028 (6th Cir. 1992). "The
least sophisticated debtor standard is lower than simply examining whether
particular language would deceive or mislead a reasonable debtor." Computer
Credit, 167 F.3d at 1054 (internal punctuation and citation omitted). "The basic
purpose of the least-sophisticated-consumer standard [*12] is to ensure that
the FDCPA protects all consumers, the gullible as well as the shrewd." Clomon v.
Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). "[A]lthough this standard protects
naive consumers, it also 'prevents liability for bizarre or idiosyncratic
interpretations of collection notices by preserving a quotient of reasonableness
and presuming a basic level of understanding and willingness to read with
care.'" Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000) (quoting
United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 136) (4th Cir. 1996)).
Moreover, this standard "assumes that a Validation Notice is read in its
entirety, carefully and with some elementary level of understanding." Martinez
v. Law Offices of David J. Stern, P.A. (In re Martinez), 266 B.R. 523, 532
(Bankr. S.D. Fla. 2001).
   The critical question is whether Lamar has been led to believe "that [she]
did not have thirty days in which to dispute the validity of the debt." Computer
Credit, 167 F.3d at 1054; see also DeSantis v. Computer Credit, Inc., 269 F.3d
159, 161 (2d Cir. 2001) ("The critical question is therefore whether the notice
fails to convey the required information 'clearly and effectively and [*13]
thereby makes the least sophisticated consumer uncertain' as to the meaning of
the message." (quoting Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir.
1998)). "If the [communication] reduces this time frame, it violates the
[FDCPA]." Computer Credit, 167 F.3d at 1054.
   a. Reconciling Language
   Lamar argues primarily that LS&R violated § 1692g when it incorporated the
FDCPA notice into the complaint without providing reconciling language
explaining the conflicting time periods between the consumer's deadline to file
an answer to the complaint and the consumer's deadline to request validation of
the debt. She asserts that "LS&R's FDCPA notice gives the least sophisticated
consumer the false impression that she has thirty days before she is required to
take action in the lawsuit." Lamar contends that we should require debt
collectors to provide language explaining the difference between the two time
periods. Lamar directs us to the Second and Seventh Circuits, which have drafted
templates containing reconciling language, i.e.,
 
   This advice pertains to your dealings with me as a debt collector.
It does not affect your dealings with the court, and in particular it
does not change the [*14] time at which you must answer the
complaint. The summons is a command from the court, not from me, and
you must follow its instructions even if you dispute the validity or
amount of the debt. The advice in this letter also does not affect my
relations with the court. As a lawyer, I may file papers in the suit
according to the court's rules and the judge's instructions.
 
Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914, 919-20 (7th Cir. 2004) (en
banc) superseded on other grounds by 15 U.S.C. § 1692g(d); Goldman v. Cohen, 445
F.3d 152, 157 (2d Cir. 2006) (same); see also Bartlett v. Heibl, 128 F.3d 497,
501-02 (7th Cir. 1997) (similar language). This language is merely a suggestion.
Those courts were not faced with determining whether the debt collector's
notice, included with the summons and complaint, effectively conveyed to the
consumer notice of the thirty-day validation period.
   To require debt collectors to include such language goes beyond the plain
language of the statute and favors the consumer at the debt collector's expense.
The FDCPA is not one-sided;
 
   Without doubt, the broadly sweeping regulations of the statute
protect consumers from abusive debt collection practices. If, [*15]
however, the enacted purpose of the statute is equally "to insure that
those debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged," 15 U.S.C. 1692(e), and
the courts are to give life to the admonition . . . that the standards
are intended to protect collectors against "bizarre or idiosyncratic
interpretations of collection notices," the statute must be applied
with some circumspection.
 
Jacobson, 434 F. Supp. 2d at 139 (citation omitted).
   We find Lamar's argument without merit. As the district court noted,
 
   The least sophisticated consumer, with a careful reading of the
language in the Summons and Complaint, including the statutorily
required notice, would understand that there were two different time
periods within which she must act, and that the time periods run at
the same time, from the day after the Summons and Complaint is
received.
 
Fed. Home Loan Mortgage Corp. v. Lamar, 2006 U.S. Dist. LEXIS 59249, at *22
(N.D. Ohio Aug. 22, 2006). LS&R put Lamar on notice that she had twenty days to
answer the complaint and thirty days to dispute the debt. Further, the notice
specifically stated that the time periods began on the same day [*16] and ran
simultaneously. The notice was clear in stating that the two time periods were
on separate tracks, i.e., the court's requirements and federal rights under the
FDCPA.
   We find that the least sophisticated consumer, after carefully reading the
summons, notice, and complaint in their entirety, would not be led to believe
that she did not have thirty days in which to dispute the validity of the debt.
LS&R was not obligated to include further reconciling language to comply with
the FDCPA.
   b. Overshadowed and/or Contradicted Text
   Lamar also contends that the FDCPA notice was inadequate because it was
overshadowed and/or contradicted by the remaining text in the complaint. She
cites as problematic the "contradiction" between the two time periods and
contends that the validation notice is "overshadowed" because it is (1) in the
same font and text as the complaint's text and (2) not separated from the
complaint's text by a heading.
   The notice "must be large enough to be easily read and sufficiently prominent
to be noticed . . . . [and it] must not be overshadowed or contradicted by other
messages or notices appearing in the initial communication from the collection
agency." Swanson, 869 F.2d at 1225 [*17] (citation omitted); see also McMillan
v. Collection Prof'ls, Inc., 455 F.3d 754, 759 n.5 (7th Cir. 2006) ("[A] debt
collector can violate § 1692g by contradicting the required information or by
'overshadowing' it").
    [**7] For the reasons stated above, we conclude that the FDCPA notice was
not contradicted by the remaining text included in the summons and complaint.
Likewise, we find no merit in Lamar's contention that the FDCPA notice was
overshadowed. The notice was in the same font and size as the remaining document
-- not difficult to read or discern -- and while the notice was not separated by
a heading, it was the first substantive text in the complaint following the
caption -- not buried. As the district court held, a careful reading of the
summons, notice and complaint, in their entirety, would alert the least
sophisticated consumer to her right under the FDCPA to dispute the validity of
her debt. Lamar, 2006 U.S. Dist. LEXIS 59249, at *22.
   c. LS&R Served Lamar Twice
   Lamar complains that LS&R's notice was inadequate because it served the
summons and complaint on two separate occasions leading to confusion as to when
the thirty-day deadline began. As the district court opined, "it is [*18]
reasonable to assume that the 'least sophisticated consumer,' reading and
understanding the first notice sent, would find it important to respond within
the time constraints arising after receipt of the documents for the first time,
or at the very least, inquire as to the deadline for response." Id. at *22.
Lamar, however, points to Adams v. Law Offices of Stuckert & Yates, 926 F. Supp.
521 (E.D. Pa. 1996), where the court granted summary judgment to the consumer on
multiple grounds, including the fact that the law offices sent identical
notices, which arrived on different days at different locations. The Adams court
held that "the least sophisticated [consumer] would be confused as to the
boundaries of the thirty day period if he receives copies of the letter on
different days, as Mr. Adams did here." Id. at 528. We decline to adopt the
reasoning in Adams. Here, the district court's reasoning comports with the
purpose of the FDCPA. The first service put Lamar on notice that she could
contest the debt. The second service described the same property, and at the
very least, put Lamar on notice that she should contact LS&R to clarify what she
had received if she was confused.
   d. Errors
   Lamar [*19] contends LS&R's notice was inadequate because two errors in the
notice confused her: the notice contained "under state law" instead of "under
federal law," and "if your name appears in numbered paragraph 1 below," instead
of "in paragraph 4." (Emphasis added.) We find this argument without merit. In
reading the entirety of the document, the least sophisticated consumer would
understand that she had a right to challenge the validity of the debt described
in the notice and complaint, the errors notwithstanding.
   2. § 1692e -- Deceptive or Misleading Means to Collect a Debt
   Lamar next argues that the district court failed to address whether LS&R
violated § 1692e of the FDCPA, which provides that a "debt collector may not use
any false, deceptive, or misleading representation or means in connection with
the collection of any debt." Contrary to Lamar's contention, the district court
considered Lamar's claims under this provision and found them lacking. See Lamar
, 2006 U.S. Dist. LEXIS 59249, at *27-28.
   "Whether or not a [communication] is 'false, deceptive, or misleading' (in
violation of § 1692e)" is an inquiry similar to "whether a [communication] is
confusing in violation of § 1692g." McMillan, 455 F.3d at 759. [*20] Lamar
essentially contends that because LS&R's FDCPA notice was contradictory and/or
confusing, it was also deceptive, and therefore, violated § 1692e. See, e.g.,
Tipping-Lipshie v. Riddle, 2000 U.S. Dist. LEXIS 2477, *10 (E.D.N.Y. Mar. 1,
2000) ("misleading validation notice violates both sections 1692g and 1692e(10)
") (citation omitted).
   "[A] collection notice is deceptive when it can be reasonably read to have
two or more different meanings, one of which is inaccurate." Russell v. Equifax
A.R.S., 74 F.3d 30, 35 (2d Cir. 1996). Here, LS&R's notice cannot be reasonably
read to have two or more different meanings. [**8] "Because the notice did not
violate the requirements of 15 U.S.C. § 1692g(a), it would not support a finding
that [LS&R] used 'false representation or deceptive means to collect or attempt
to collect any debt.' We therefore reject [Lamar's] argument that [LS&R's]
notice violated section 1692e(10) of the FDCPA." Renick v. Dun & Bradstreet
Receivable Mgmt. Servs., 290 F.3d 1055, 1057-58 (9th Cir. 2002) (citation
omitted).
   Both parties discuss at length the FDCPA's bona fide error provision, which
shields a debt collector from liability for violating the FDCPA in certain
instances. [*21] See 15 U.S.C. § 1692k(c). Because LS&R's notice did not
violate the FDCPA, we do not reach the bona fide error defense.
B. The Ohio Consumer Sales Practices Act
   Finally, Lamar argues that because LS&R violated the notice provisions of the
FDCPA, LS&R likewise violated the provisions of the Ohio Consumer Sales
Practices Act ("OCSPA"), Ohio Rev. Code Ann. § 1345.01 et seq. Lamar cites for
this proposition Becker v. Montgomery, Lynch, 2003 U.S. Dist. LEXIS 24992, at *7
(N.D. Ohio Feb. 26, 2003), which states, "the purpose of both acts [the FDCPA
and OCSPA] is to prohibit both unfair and deceptive acts and this court holds
that any violation of any one of the enumerated sections of the FDCPA is
necessarily an unfair and deceptive act or practice in violation of R.C. §
1345.02 and/or § 1345.03."
   Other than LS&R's alleged violations of the FDCPA, Lamar provides no
independent grounds by which LS&R violated the OCSPA. See Lewis v. ACB Bus.
Servs., 135 F.3d 389, 403 (6th Cir. 1998) ("While it is true that the OCSPA
could have been violated independently, [plaintiff] did not provide any
additional evidence to sustain those claims. He simply relied on the asserted
violations of the FDCPA to support [*22] his OCSPA claims. Given that the
district court correctly determined that no FDCPA violation had occurred, we
believe that the district court's opinion sufficiently addresses [plaintiff's]
OCSPA claims."). The district court concluded that "ecause there is no FDCPA
violation, there is nothing to sustain [the OCSPA] claim." Lamar, 2006 U.S.
Dist. LEXIS 59249, at *29. We agree. Accordingly, because LS&R did not violate
the FDCPA, it did not violate the OCSPA.
III. CONCLUSION
   Courts have characterized the FDCPA as a strict liability statute, meaning
that a consumer may recover statutory damages if the debt collector violates the
FDCPA even if the consumer suffered no actual damages. See 15 U.S.C. § 1692k(a);
see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir. 2003)
("[C]ourts have held that actual damages are not required for standing under the
FDCPA"). As a district court in the Second Circuit recently noted "[t]he
interaction of the least sophisticated consumer standard with the presumption
that the FDCPA imposes strict liability has led to a proliferation of
litigation." Jacobson, 434 F. Supp. 2d at 138. The court in Jacobson continued:
 
 
   Ironically, it appears [*23] that it is often the extremely
sophisticated consumer who takes advantage of the civil liability
scheme defined by this statute, not the individual who has been
threatened or misled. The cottage industry that has emerged does not
bring suits to remedy the "widespread and serious national problem" of
abuse that the Senate observed in adopting the legislation, 1977
U.S.C.C.A.N. 1695, 1696, nor to ferret out collection abuse in the
form of "obscene or profane language, threats of violence, telephone
calls at unreasonable hours, misrepresentation of a consumer's legal
rights, disclosing a consumer's personal affairs to friends,
neighbors, or an employer, obtaining information about a consumer
through false pretense, impersonating public officials and attorneys,
and simulating legal process." Id. Rather, the inescapable inference
is that the judicially developed standards have enabled a class of
professional plaintiffs . . . .
   It is interesting to contemplate the genesis of these suits. The
hypothetical Mr. Least Sophisticated Consumer ("LSC") makes a $ 400
purchase. His debt remains unpaid and undisputed. He eventually
receives a collection letter requesting payment of the debt which he
[*24] rightfully owes. Mr. LSC, upon receiving a debt collection
letter that contains some minute variation from the statute's
requirements, immediately exclaims "This clearly runs afoul of the
FDCPA!" and -- rather than simply pay what he owes -- repairs to his
lawyer's office to vindicate a perceived "wrong." "[T]here comes a
point where this Court should not be ignorant as judges of what we
know as men." Watts v. State of Ind., 338 U.S. 49, 52, 69 S. Ct. 1347,
1349, 93 L. Ed. 1801 (1949).
 
Id. at 138-39 (emphasis added). We echo Jacobson's sentiments and concerns.
Lamar fits the description of Jacobson's hypothetical consumer to a tee, and we
will not "countenance lawsuits based on frivolous misinterpretations or
nonsensical assertions of being led astray." 5 Id. at 138.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5   In fact,
Lamar has not been sanctioned for her suit and appeal only because LS&R did not
so request.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   Accordingly, we AFFIRM the district court's grant of summary judgment.


NOTE

This opinion as it was originally published is presented in Reply No. 5 to this thread.


« Last Edit: September 27, 2007 04:09:17 PM by Admin1781 »

ambrosiapixie

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  • Posts: 13
Re: Finally, a rational decision by an Ohio Court
« Reply #1 on: September 27, 2007 02:56:44 PM »
Ahhh  the good Doctor Evil...

See, some people out there that are filing lawsuits DONT read and study the law they are trying to apply.  This individual tried to improperly interpret the FCDPA and it burned her ass.  May have worked if she was seeking a small claim against a colletion firm for a small debt, but we are talking about a foreclosure here, and you'd be hard pressed to find a CA, OC, or Attorney willing to just "let that go". 

Rule number one of litigation in my book is..... dont be STUPID!!  If you are gonna use a fringe provision that can be loosely interpreted depending on the courts... make sure you know what the you are doing :)

Moreover... I have a bit of a "dumb pudding" question here..... it looks as though she was sued by the OC, with an attorney representing the OC in court.  Wouldn't that make the FCDPA a moot point to begin with??  Maybe I am reading wrong, as after a while these court proceedings make my eyes bleed.... but thats what I got out of this whole thing....

Mischievous Smurfy

  • Valued Member
  • Posts: 5595
Re: Finally, a rational decision by an Ohio Court
« Reply #2 on: September 27, 2007 03:22:12 PM »
If you are gonna use a fringe provision that can be loosely interpreted depending on the courts... make sure you know what the you are doing :)

The answer here is find case law that supports your position for the circuit you are litigating in.

Moreover... I have a bit of a "dumb pudding" question here..... it looks as though she was sued by the OC, with an attorney representing the OC in court.  Wouldn't that make the FCDPA a moot point to begin with??

No ... lawyers lost the blanket exclusion years ago, because they were stupid.  (advertising that they were exempt, and using inappropriate means) .. the same things the FDCPA intended to stop a normal CA from doing.   If one can prove that they "regularly" attempt to collect debts using practices (letters, phone calls) non attorney debt collectors use, then they are a "debt collector" under the Act.

 

Ease of Use - Smurfy's Quick Reference


why are we requesting validation instead of disputing???  Why Why Why

ambrosiapixie

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  • Posts: 13
Re: Finally, a rational decision by an Ohio Court
« Reply #3 on: September 27, 2007 03:30:06 PM »
Smurfy....

At the beginning of the complaint, the Plaintiff appears to be the OC (mortgage company)... thats why I asked if the FCDPA would still apply because it appears that the Defendant was sued by the OC for foreclosure... making the attorney merely the representative in court.... or were the pre foreclosure letters also from said firm??

Mischievous Smurfy

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  • Posts: 5595
Re: Finally, a rational decision by an Ohio Court
« Reply #4 on: September 27, 2007 03:36:36 PM »
Smurfy....

making the attorney merely the representative in court....

Those are conclusions no one cannot reach without further information ... information not contained in the opinion ...

I can't say whether or not  this attorney is a "debt collector" ... without further information.
Ease of Use - Smurfy's Quick Reference


why are we requesting validation instead of disputing???  Why Why Why

Mod7135

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  • Posts: 519
Re: Finally, a rational decision by an Ohio Court
« Reply #5 on: September 27, 2007 03:40:26 PM »
The complete text of this case--without editorial emphasis--is below. 
----------------------------------------------------------------------------------------------------------

*The Honorable Harold A. Ackerman, Senior United States District Judge for the District of New Jersey, sitting
by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0390p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FEDERAL HOME LOAN MORTGAGE CORPORATION,
Plaintiff-Appellee,
LERNER, SAMPSON & ROTHFUSS, L.P.A.,
Defendant-Appellee,
SCOTT HARNER; CLEVELAND PROCESS SERVICE,
LLC,
Defendants,

v.

CYNTHIA G. LAMAR,
Defendant-Appellant.

No. 06-4335

Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 05-01455—Donald C. Nugent, District Judge.

Argued: July 26, 2007
Decided and Filed: September 25, 2007
Before: BATCHELDER and GRIFFIN, Circuit Judges; ACKERMAN, District Judge.*
_________________
COUNSEL
ARGUED: Thomas A. Barni, DINN, HOCHMAN, POTTER & LEVY, Cleveland, Ohio, for
Appellant. Rick D. Deblasis, LERNER, SAMPSON & ROTHFUSS, Cincinnati, Ohio, for
Appellees. ON BRIEF: Thomas A. Barni, Renee S. Pienta, DINN, HOCHMAN, POTTER &
LEVY, Cleveland, Ohio, for Appellant. Rick D. Deblasis, LERNER, SAMPSON & ROTHFUSS,
Cincinnati, Ohio, for Appellees.

_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Cynthia G. Lamar appeals the district court’s
grant of summary judgment in favor of Lerner, Sampson, & Rothfuss, L.P.A. (“LS&R”) on Lamar’s
claim that LS&R violated the notice provisions of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et. seq., when LS&R included the statutorily-required notice with the
summons and complaint it served Lamar. Because LS&R effectively conveyed notice of Lamar’s
right to dispute the validity of her debt, we AFFIRM the district court.

I. BACKGROUND

On May 17, 2005, Federal Home Loan Mortgage Corporation contacted LS&R to institute
mortgage foreclosure proceedings against Lamar. On May 23, 2005, LS&R filed a summons and
complaint in foreclosure against Lamar in the Northern District of Ohio. Pursuant to § 1692g of the
FDCPA, LS&R included a notice provision located immediately below the case caption and
immediately above the complaint. Though not preceded by the caption “Notice,” the notice
provision was the first substantive text in the complaint. The notice provision stated:
The Summons attached to this Complaint advises you of certain of your
rights under state law for responding to this Complaint. Among these rights is your
right to serve your Answer upon Lerner, Sampson, & Rothfuss within twenty (20)
days. If your name appears in numbered paragraph 1 below, you have additional
rights under federal law to request certain information from Lerner, Sampson &
Rothfuss within thirty (30) days. These time periods run at the same time and start
on the day after you receive this Complaint.

The federal Fair Debt Collection Practices Act requires that Lerner, Sampson
& Rothfuss provide you with the following information. The amount of the debt, as
of May 20, 2005, is $121,289.78. This amount is made up of your principle balance,
interest, late charges, and amounts expended by the creditor, such as for taxes and
insurance. Because many of these items vary from day to day, the amount due on the
day you pay will be greater. Hence, if you pay the amount shown above, an
adjustment will be necessary after we receive your check.

The creditor to whom the debt is owed is the plaintiff listed above. Unless,
within thirty (30) days of your receipt of this Notice, you notify Lerner, Sampson &
Rothfuss that you dispute the validity of this debt or any portion of it, Lerner,
Sampson & Rothfuss will assume the debt is valid. Lerner, Sampson & Rothfuss is
a debt collector. This is an attempt to collect a debt, and any information obtained
will be used for that purpose.

If you notify Lerner, Sampson & Rothfuss in writing within thirty (30) days
of the receipt of this Notice that the debt or any portion thereof is disputed, Lerner,
Sampson & Rothfuss will obtain a verification of the debt and will mail a copy of
that verification to you. If the creditor named as plaintiff above is not the original
creditor, and if you make written request to Lerner, Sampson & Rothfuss within
thirty (30) days from receipt of this notice, Lerner, Sampson & Rothfuss will provide
you with the name and address of the original creditor.

LS&R waited three weeks for confirmation of service from Lamar. On June 14, 2005, LS&R
initiated personal service of the summons and complaint through Cleveland Process Service,
----------------------------------------------------------------------------------------------------------
1Harner and Cleveland Process Service are no longer parties to this appeal.

2Lamar notes that there is some conflict regarding whether the issue of effective notice and the least
sophisticated consumer standard is one of fact or law, contending that the issue is one of fact, rendering summary judgment inappropriate. We have determined that “[i ]t is well-settled that courts may properly make the objective determination whether language effectively conveys a notice of rights to the least sophisticated debtor.” Savage v. Hatcher, 109 F. App’x 759, 762 (6th Cir. 2004); see also Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1029 (6th Cir. 1992) (affirming district court’s grant of summary judgment to debt collector where debt collector’s letter “clearly satisfies 15 U.S.C. § 1692g(a)(3), even under the ‘least sophisticated consumer’ standard”).
----------------------------------------------------------------------------------------------------------
and Scott Harner.1 The next day, June 15, Lamar received the complaint and summons via certified
mail. On June 16, a certified mail return indicating service upon Lamar was filed with the court and
the court sent notice to the attorney of record at LS&R. Despite receiving notice that Lamar had
been served by certified mail, LS&R failed to inform Harner of successful service, and Harner
personally served Lamar with a second, albeit identical, summons and complaint on June 23, 2005.
Lamar answered the complaint and filed a third-party complaint against LS&R alleging that LS&R
violated the FDCPA and the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Rev. Code Ann.
§ 1345.01 et seq. The record is silent as to whether Lamar sought to dispute the debt described in
the complaint.

Both Lamar and LS&R moved for summary judgment on Lamar’s FDCPA and OCSPA
claims. The district court granted summary judgment in favor of LS&R. Lamar noticed a timely
appeal.

II. ANALYSIS

We review de novo the district court’s grant of summary judgment. Edgar v. JAC Prods.,
Inc., 443 F.3d 501, 506 (6th Cir. 2006). Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). “We view the evidence, all facts, and any inferences that
may be drawn from the facts in the light most favorable to the nonmoving party.” Walton v. Ford
Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (citing to Matsush*ta Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). If, after reviewing the record as a whole, a rational fact finder
could not find for the nonmoving party, summary judgement is appropriate. Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998). The parties do not dispute the
underlying facts, and present only questions of law.2

A. Fair Debt Collection Practices Act

Congress enacted the FDCPA in order “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.” 15 U.S.C. § 1692(e). “Congress designed the [FDCPA]
to ‘eliminate the recurring problem of debt collectors dunning the wrong person or attempting to
collect debts which the consumer has already paid.’” Swanson v. S. Or. Credit Serv., Inc., 869 F.2d
1222, 1225 (9th Cir. 1988) (quoting S. Rep. No. 95-382, at 4 (1977), reprinted in 1977
U.S.C.C.A.N. 1695, 1699).

1. § 1692g – Validation Notice

Section 1692g(a) “requires debt collectors to issue a ‘validation notice,’ either in the initial
communication with a consumer or within five days of that initial communication, that informs the
consumer of certain rights including the right to make a written request for verification of the debt
------------------------------------------------------------------------------------------------------
3Section 1692g(a)’s notice requirements apply only to an “initial communication.” Before the district court,
LS&R argued that a summons and complaint was not an “initial communication” under the FDCPA and, therefore,
§ 1692g(a) was inapplicable. At the time Lamar brought suit against LS&R, a circuit split existed concerning whether a summons and complaint constituted an “initial communication.” Compare Goldman v. Cohen, 445 F.3d 152 (2d Cir. 2006) (summons and complaint is an “initial communication”) and Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914 (7th Cir. 2004) (en banc) (same) with Vega v. McKay, 351 F.3d 1334, 1337 (11th Cir. 2003) (“[I ]t seems far more consistent with the purpose of the [FDCPA] that the term ‘communication’ as used does not include a ‘legal action or pleading.’”). Moreover, our court had not yet spoken on the issue. The district court, therefore, assumed without deciding, that LS&R’s summons and complaint was an “initial communication” under the FDCPA and triggered § 1692g(a)’s notice requirements.

Since the district court rendered its decision, Congress has amended § 1692g to provide that “[a] communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).” 15 U.S.C. § 1692g(d). Given the state of the law at the time Lamar initiated suit against LS&R and the subsequent amendment by Congress, the district court did not err in its assumption. We likewise assume that a summons and complaint was an “initial communication” at the time Lamar brought suit.

4Lamar attempts to dispose of this case on the grounds of collateral estoppel, contending that the district court erred by finding that the doctrine did not apply. She argues that the same issue of effective notice in LS&R’s summons and complaint was fully and fairly litigated in Kafele v. Lerner, Sampson & Rothfuss, L.P.A., 2005 U.S. Dist. LEXIS 11127 (S.D. Ohio June 9, 2005), where LS&R included the FDCPA notice in the summons and complaint and conceded that the notice was ineffective. Kafele, 2005 U.S. Dist. LEXIS 11127, at *7, 9-10.
-----------------------------------------------------------------------------------------------------------
and to dispute the validity of the debt.” Jacobson v. Healthcare Fin. Servs., Inc., 434 F. Supp. 2d
133, 139 (E.D.N.Y. 2006). Section 1692g(a) provides:

(a) Notice of debt; contents. Within five days after the initial communication[3] with
a consumer in connection with the collection of any debt, a debt collector shall,
unless the following information is contained in the initial communication or the
consumer has paid the debt, send the consumer a written notice containing —

(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be assumed to
be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the
thirty-day period that the debt, or any portion thereof, is disputed, the debt collector
will obtain verification of the debt or a copy of a judgment against the consumer and
a copy of such verification or judgment will be mailed to the consumer by the debt
collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day
period, the debt collector will provide the consumer with the name and address of the
original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a). Congress added § 1692g “specifically to ensure that debt collectors gave
consumers adequate information concerning their legal rights.” Swanson, 869 F.2d at 1225.
It is undisputed that LS&R’s FDCPA notice contains the technical information required by
the statute. The issue before us is whether LS&R “effectively conveyed notice of the thirty-day
validation period” to the least sophisticated consumer.4 As we have previously stated, “[u ]nder the
-----------------------------------------------------------------------------------------------------------

“The doctrine of collateral estoppel operates when three requirements are met: (1) the issue in the current action and the prior action are identical; (2) the issue was actually litigated; and (3) the issue was necessary and essential to the judgment on the merits.” United States v. Beaty, 245 F.3d 617, 624 (6th Cir. 2001). Because the notice in our case is different in content, form and placement from the Kafele notice, the notice issue litigated in Kafele is not identical to the notice issue here. Therefore, the doctrine of collateral estoppel does not apply.
----------------------------------------------------------------------------------------------------------
[FDCPA], notice of the thirty-day validation period is necessary, but not sufficient to satisfy
§ 1692g(a).” Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999). Instead, “[a]
debt collector must ‘effectively convey’ the notice to the debtor.” Id.

In order to determine whether notice was “effectively conveyed,” “[t]his Court uses the ‘least
sophisticated debtor [or consumer]’ standard.” Id; see also Smith v. Transworld Sys., Inc., 953 F.2d
1025, 1028 (6th Cir. 1992). “The least sophisticated debtor standard is lower than simply examining
whether particular language would deceive or mislead a reasonable debtor.” Computer Credit, 167
F.3d at 1054 (internal punctuation and citation omitted). “The basic purpose of the
least-sophisticated-consumer standard is to ensure that the FDCPA protects all consumers, the
gullible as well as the shrewd.” Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993).
“[A]lthough this standard protects naive consumers, it also ‘prevents liability for bizarre or
idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and
presuming a basic level of understanding and willingness to read with care.’” Wilson v. Quadramed
Corp., 225 F.3d 350, 354-55 (3d Cir. 2000) (quoting United States v. Nat’l Fin. Servs., Inc., 98 F.3d
131, 136) (4th Cir. 1996)). Moreover, this standard “assumes that a Validation Notice is read in its
entirety, carefully and with some elementary level of understanding.” Martinez v. Law Offices of
David J. Stern, P.A. (In re Martinez), 266 B.R. 523, 532 (Bankr. S.D. Fla. 2001).

The critical question is whether Lamar has been led to believe “that [she] did not have thirty
days in which to dispute the validity of the debt.” Computer Credit, 167 F.3d at 1054; see also
DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001) (“The critical question is
therefore whether the notice fails to convey the required information ‘clearly and effectively and
thereby makes the least sophisticated consumer uncertain’ as to the meaning of the message.”
(quoting Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998)). “If the [communication]
reduces this time frame, it violates the [FDCPA].” Computer Credit, 167 F.3d at 1054.

a. Reconciling Language

Lamar argues primarily that LS&R violated § 1692g when it incorporated the FDCPA notice
into the complaint without providing reconciling language explaining the conflicting time periods
between the consumer’s deadline to file an answer to the complaint and the consumer’s deadline to
request validation of the debt. She asserts that “LS&R’s FDCPA notice gives the least sophisticated
consumer the false impression that she has thirty days before she is required to take action in the
lawsuit.” Lamar contends that we should require debt collectors to provide language explaining the
difference between the two time periods. Lamar directs us to the Second and Seventh Circuits,
which have drafted templates containing reconciling language, i.e.,

This advice pertains to your dealings with me as a debt collector. It does not affect
your dealings with the court, and in particular it does not change the time at which
you must answer the complaint. The summons is a command from the court, not
from me, and you must follow its instructions even if you dispute the validity or
amount of the debt. The advice in this letter also does not affect my relations with
the court. As a lawyer, I may file papers in the suit according to the court’s rules and
the judge’s instructions.

Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914, 919-20 (7th Cir. 2004) (en banc)
superseded on other grounds by 15 U.S.C. § 1692g(d); Goldman v. Cohen, 445 F.3d 152, 157 (2d
Cir. 2006) (same); see also Bartlett v. Heibl, 128 F.3d 497, 501-02 (7th Cir. 1997) (similar
language). This language is merely a suggestion. Those courts were not faced with determining
whether the debt collector’s notice, included with the summons and complaint, effectively conveyed
to the consumer notice of the thirty-day validation period.

To require debt collectors to include such language goes beyond the plain language of the
statute and favors the consumer at the debt collector’s expense. The FDCPA is not one-sided;
Without doubt, the broadly sweeping regulations of the statute protect consumers
from abusive debt collection practices. If, however, the enacted purpose of the
statute is equally “to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged,” 15 U.S.C. 1692(e),
and the courts are to give life to the admonition . . . that the standards are intended
to protect collectors against “bizarre or idiosyncratic interpretations of collection
notices,” the statute must be applied with some circumspection.
Jacobson, 434 F. Supp. 2d at 139 (citation omitted).

We find Lamar’s argument without merit. As the district court noted,
The least sophisticated consumer, with a careful reading of the language in the
Summons and Complaint, including the statutorily required notice, would understand
that there were two different time periods within which she must act, and that the
time periods run at the same time, from the day after the Summons and Complaint
is received.

Fed. Home Loan Mortgage Corp. v. Lamar, 2006 U.S. Dist. LEXIS 59249, at *22 (N.D. Ohio Aug.
22, 2006). LS&R put Lamar on notice that she had twenty days to answer the complaint and thirty
days to dispute the debt. Further, the notice specifically stated that the time periods began on the
same day and ran simultaneously. The notice was clear in stating that the two time periods were on
separate tracks, i.e., the court’s requirements and federal rights under the FDCPA.
We find that the least sophisticated consumer, after carefully reading the summons, notice,
and complaint in their entirety, would not be led to believe that she did not have thirty days in which
to dispute the validity of the debt. LS&R was not obligated to include further reconciling language
to comply with the FDCPA.

b. Overshadowed and/or Contradicted Text

Lamar also contends that the FDCPA notice was inadequate because it was overshadowed
and/or contradicted by the remaining text in the complaint. She cites as problematic the
“contradiction” between the two time periods and contends that the validation notice is
“overshadowed” because it is (1) in the same font and text as the complaint’s text and (2) not
separated from the complaint’s text by a heading.

The notice “must be large enough to be easily read and sufficiently prominent to be noticed
. . . . [and it] must not be overshadowed or contradicted by other messages or notices appearing in
the initial communication from the collection agency.” Swanson, 869 F.2d at 1225 (citation
omitted); see also McMillan v. Collection Prof’ls, Inc., 455 F.3d 754, 759 n.5 (7th Cir. 2006) (“[A]
debt collector can violate § 1692g by contradicting the required information or by ‘overshadowing’
it”).

For the reasons stated above, we conclude that the FDCPA notice was not contradicted by
the remaining text included in the summons and complaint. Likewise, we find no merit in Lamar’s
contention that the FDCPA notice was overshadowed. The notice was in the same font and size as
the remaining document — not difficult to read or discern — and while the notice was not separated
by a heading, it was the first substantive text in the complaint following the caption — not buried.
As the district court held, a careful reading of the summons, notice and complaint, in their entirety,
would alert the least sophisticated consumer to her right under the FDCPA to dispute the validity
of her debt. Lamar, 2006 U.S. Dist. LEXIS 59249, at *22.

c. LS&R Served Lamar Twice

Lamar complains that LS&R’s notice was inadequate because it served the summons and
complaint on two separate occasions leading to confusion as to when the thirty-day deadline began.
As the district court opined, “it is reasonable to assume that the ‘least sophisticated consumer,’
reading and understanding the first notice sent, would find it important to respond within the time
constraints arising after receipt of the documents for the first time, or at the very least, inquire as to
the deadline for response.” Id. at *22. Lamar, however, points to Adams v. Law Offices of Stuckert
& Yates, 926 F. Supp. 521 (E.D. Pa. 1996), where the court granted summary judgment to the
consumer on multiple grounds, including the fact that the law offices sent identical notices, which
arrived on different days at different locations. The Adams court held that “the least sophisticated
[consumer] would be confused as to the boundaries of the thirty day period if he receives copies of
the letter on different days, as Mr. Adams did here.” Id. at 528. We decline to adopt the reasoning
in Adams. Here, the district court’s reasoning comports with the purpose of the FDCPA. The first
service put Lamar on notice that she could contest the debt. The second service described the same
property, and at the very least, put Lamar on notice that she should contact LS&R to clarify what
she had received if she was confused.

d. Errors

Lamar contends LS&R’s notice was inadequate because two errors in the notice confused
her: the notice contained “under state law” instead of “under federal law,” and “if your name
appears in numbered paragraph 1 below,” instead of “in paragraph 4.” (Emphasis added.) We find
this argument without merit. In reading the entirety of the document, the least sophisticated
consumer would understand that she had a right to challenge the validity of the debt described in the
notice and complaint, the errors notwithstanding.

2. § 1692e — Deceptive or Misleading Means to Collect a Debt

Lamar next argues that the district court failed to address whether LS&R violated § 1692e
of the FDCPA, which provides that a “debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” Contrary to Lamar’s
contention, the district court considered Lamar’s claims under this provision and found them
lacking. See Lamar, 2006 U.S. Dist. LEXIS 59249, at *27-28.

“Whether or not a [communication] is ‘false, deceptive, or misleading’ (in violation of
§ 1692e)” is an inquiry similar to “whether a [communication] is confusing in violation of § 1692g.”
McMillan, 455 F.3d at 759. Lamar essentially contends that because LS&R’s FDCPA notice was
contradictory and/or confusing, it was also deceptive, and therefore, violated § 1692e. See, e.g.,
Tipping-Lipshie v. Riddle, 2000 U.S. Dist. LEXIS 2477, *10 (E.D.N.Y. Mar. 1, 2000) (“misleading
validation notice violates both sections 1692g and 1692e(10)”) (citation omitted).

“[A] collection notice is deceptive when it can be reasonably read to have two or more
different meanings, one of which is inaccurate.” Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir.
1996). Here, LS&R’s notice cannot be reasonably read to have two or more different meanings.
No. 06-4335 Federal Home Loan Mortgage Corp., et al. v. Lamar Page 8

“Because the notice did not violate the requirements of 15 U.S.C. § 1692g(a), it would not support
a finding that [LS&R] used ‘false representation or deceptive means to collect or attempt to collect
any debt.’ We therefore reject [Lamar’s] argument that [LS&R’s] notice violated section 1692e(10)
of the FDCPA.” Renick v. Dun & Bradstreet Receivable Mgmt. Servs., 290 F.3d 1055, 1057-58 (9th
Cir. 2002) (citation omitted).

Both parties discuss at length the FDCPA’s bona fide error provision, which shields a debt
collector from liability for violating the FDCPA in certain instances. See 15 U.S.C. § 1692k(c).
Because LS&R’s notice did not violate the FDCPA, we do not reach the bona fide error defense.

B. The Ohio Consumer Sales Practices Act

Finally, Lamar argues that because LS&R violated the notice provisions of the FDCPA,
LS&R likewise violated the provisions of the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio
Rev. Code Ann. § 1345.01 et seq. Lamar cites for this proposition Becker v. Montgomery, Lynch,
2003 U.S. Dist. LEXIS 24992, at *7 (N.D. Ohio Feb. 26, 2003), which states, “the purpose of both
acts [the FDCPA and OCSPA] is to prohibit both unfair and deceptive acts and this court holds that
any violation of any one of the enumerated sections of the FDCPA is necessarily an unfair and
deceptive act or practice in violation of R.C. § 1345.02 and/or § 1345.03.”

Other than LS&R’s alleged violations of the FDCPA, Lamar provides no independent
grounds by which LS&R violated the OCSPA. See Lewis v. ACB Bus. Servs., 135 F.3d 389, 403
(6th Cir. 1998) (“While it is true that the OCSPA could have been violated independently, [plaintiff]
did not provide any additional evidence to sustain those claims. He simply relied on the asserted
violations of the FDCPA to support his OCSPA claims. Given that the district court correctly
determined that no FDCPA violation had occurred, we believe that the district court’s opinion
sufficiently addresses [plaintiff’s] OCSPA claims.”). The district court concluded that “[b ]ecause
there is no FDCPA violation, there is nothing to sustain [the OCSPA] claim.” Lamar, 2006 U.S.
Dist. LEXIS 59249, at *29. We agree. Accordingly, because LS&R did not violate the FDCPA,
it did not violate the OCSPA.

III. CONCLUSION

Courts have characterized the FDCPA as a strict liability statute, meaning that a consumer
may recover statutory damages if the debt collector violates the FDCPA even if the consumer
suffered no actual damages. See 15 U.S.C. § 1692k(a); see also Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 307 (2d Cir. 2003) (“[C]ourts have held that actual damages are not required
for standing under the FDCPA”). As a district court in the Second Circuit recently noted “[t]he
interaction of the least sophisticated consumer standard with the presumption that the FDCPA
imposes strict liability has led to a proliferation of litigation.” Jacobson, 434 F. Supp. 2d at 138.
The court in Jacobson continued:

Ironically, it appears that it is often the extremely sophisticated consumer who takes
advantage of the civil liability scheme defined by this statute, not the individual who
has been threatened or misled. The cottage industry that has emerged does not bring
suits to remedy the “widespread and serious national problem” of abuse that the
Senate observed in adopting the legislation, 1977 U.S.C.C.A.N. 1695, 1696, nor to
ferret out collection abuse in the form of “obscene or profane language, threats of
violence, telephone calls at unreasonable hours, misrepresentation of a consumer’s
legal rights, disclosing a consumer’s personal affairs to friends, neighbors, or an
employer, obtaining information about a consumer through false pretense,
impersonating public officials and attorneys, and simulating legal process.” Id.
Rather, the inescapable inference is that the judicially developed standards have
enabled a class of professional plaintiffs . . . .

5In fact, Lamar has not been sanctioned for her suit and appeal only because LS&R did not so request.
It is interesting to contemplate the genesis of these suits. The hypothetical Mr. Least
Sophisticated Consumer (“LSC”) makes a $ 400 purchase. His debt remains unpaid
and undisputed. He eventually receives a collection letter requesting payment of the
debt which he rightfully owes. Mr. LSC, upon receiving a debt collection letter that
contains some minute variation from the statute’s requirements, immediately
exclaims “This clearly runs afoul of the FDCPA!” and — rather than simply pay
what he owes — repairs to his lawyer’s office to vindicate a perceived “wrong.”
“[T]here comes a point where this Court should not be ignorant as judges of what we
know as men.” Watts v. State of Ind., 338 U.S. 49, 52, 69 S.Ct. 1347, 1349, 93 L.
Ed. 1801 (1949). Id. at 138-39 (emphasis added). We echo Jacobson’s sentiments and concerns. Lamar fits the
description of Jacobson’s hypothetical consumer to a tee, and we will not “countenance lawsuits
based on frivolous misinterpretations or nonsensical assertions of being led astray.”5 Id. at 138.

Accordingly, we AFFIRM the district court’s grant of summary judgment.
« Last Edit: September 27, 2007 05:09:06 PM by Admin1781 »

vialna

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Re: Finally, a rational decision by an Ohio Court
« Reply #6 on: September 27, 2007 04:00:47 PM »

i have a question as well relating to this section:

1692g(a)'s notice requirements apply only to an "initial communication." Before
the district court, LS&R argued that a summons and complaint [*9] was not an
"initial communication" under the FDCPA and, therefore, § 1692g(a) was
inapplicable. At the time Lamar brought suit against LS&R, a circuit split
existed concerning whether a summons and complaint constituted an "initial
communication." Compare Goldman v. Cohen, 445 F.3d 152 (2d Cir. 2006) (summons
and complaint is an "initial communication") and Thomas v. Law Firm of Simpson &
Cybak, 392 F.3d 914 (7th Cir. 2004) (en banc) (same) with Vega v. McKay, 351
F.3d 1334, 1337 (11th Cir. 2003) ("t seems far more consistent with the
purpose of the [FDCPA] that the term 'communication' as used does not include a
'legal action or pleading.'"). Moreover, our court had not yet spoken on the
issue. The district court, therefore, assumed without deciding, that LS&R's
summons and complaint was an "initial communication" under the FDCPA and
triggered § 1692g(a)'s notice requirements.
   Since the district court rendered its decision, Congress has amended § 1692g
to provide that "[a] communication in the form of a formal pleading in a civil
action shall not be treated as an initial communication for purposes of
subsection (a)." 15 U.S.C. § 1692g(d). Given the state of the law at the time
Lamar [*10] initiated suit against LS&R and the subsequent amendment by
Congress, the district court did not err in its assumption. We likewise assume
that a summons and complaint was an "initial communication" at the time Lamar
brought suit.

i understand  what they determined the end result in this regards was...but I ALSO
believed that once a debt has had  request for validation in place..and in return a suit is filed...that that was considered continued collection activity...am I wrong in my thinking in regards to the matter i have just listed....

Rottweiler

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Re: Finally, a rational decision by an Ohio Court
« Reply #7 on: September 27, 2007 04:18:43 PM »
I need to say two things:

1.)  Doctor Evil is a creditors' rights attorney.  For those of you who don't know already, that means he works for creditors, not consumers.  That's his line of work.

2.)  Doc. can rub his hands in glee all he wants...but if he tried to make an argument based on his take on this case, it might well be he who would be sanctioned for filing a frivolous action!

Here's why:

Start with this legislative statement about just whom the FDCPA is intended to protect...right from the statute (§802):

Quote
§ 802.  Congressional findings and declarations of purpose  [15 USC 1692]

(a) There 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.

(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

(c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.

(d) Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.

(e) It is the purpose of this title to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

Or, as clarified by this statement in "Clomon v. Jackson", 2d. Cir. U.S. App. Ct. (emphasis mine):

Quote
1. The "Least Sophisticated Consumer" Standard

        The most widely accepted test for determining whether a collection letter violates § 1692e is an objective standard based on the "least sophisticated consumer." This standard has been widely adopted by district courts in this circuit. See, e.g., Johnson v. NCB Collection Services, 799 F.Supp. 1298, 1306 (D.Conn.1992); Rabideau v. Management Adjustment Bureau, 805 F.Supp. 1086, 1094 (W.D.N.Y.1992); Britton v. Weiss, 1989 WL 148663, at *2, 1989 U.S.Dist. LEXIS 14610, at * 6 (N.D.N.Y. Dec. 18, 1989); Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 178 (W.D.N.Y.1988) (using "unsophisticated consumer" standard). This standard has also been adopted by all federal appellate courts that have considered the issue. Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1028 (6th Cir.1992); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir.1991); Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1174-75 (11th Cir.1985); Baker v. G.C. Services Corp., 677 F.2d 775, 778 (9th Cir.1982). Blackwell v. Professional Business Services, of Georgia, Inc., 526 F.Supp. 535, 538 (N.D.Ga.1981) (applying "reasonable consumer" standard). We now adopt the least-sophisticated consumer standard for application in cases under § 1692e. In doing so, however, we examine in some detail the purposes served by this standard as well as the extent of the liability that it creates.

        The basic purpose of the least-sophisticated-consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd. This standard is consistent with the norms that courts have traditionally applied in consumer-protection law. More than fifty years ago, the Supreme Court noted that

[t]he fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious.

        Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 116, 58 S.Ct. 113, 115, 82 L.Ed. 141 (1937)
(finding encyclopedia-selling scheme in violation of Federal Trade Commission Act). We subsequently sounded the same theme in our consumer-protection cases, holding that the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 41 et seq., was not made " 'for the protection of experts, but for the public--that vast multitude which includes the ignorant, the unthinking and the credulous.' "

...Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 143 F.2d 676, 679 (2d Cir.1944), quoting Florence Manufacturing Co. v. J.C. Dowd & Co., 178 F. 73, 75 (2d Cir.1910). This basic principle of consumer-protection law took on its modern formulation several years later, when we held that "[i ]n evaluating the tendency of language to deceive, the [Federal Trade] Commission should look not to the most sophisticated readers but rather to the least." Exposition Press, Inc. v. Federal Trade Commission, 295 F.2d 869, 872 (2d Cir.1961). In recent years, as courts have incorporated the jurisprudence of the FTC Act into their interpretations of the FDCPA, the language of Exposition Press has gradually evolved into what we now know as the least-sophisticated-consumer standard. See, e.g., Jeter, 760 F.2d at 1174-75; Baker, 677 F.2d at 778.

        To serve the purposes of the consumer-protection laws, courts have attempted to articulate a standard for evaluating deceptiveness that does not rely on assumptions about the "average" or "normal" consumer. This effort is grounded, quite sensibly, in the assumption that consumers of below-average sophistication or intelligence are especially vulnerable to fraudulent schemes. The least-sophisticated-consumer standard protects these consumers in a variety of ways. First, courts have held that collection notices violate the FDCPA if the notices contain language that "overshadows" or "contradicts" other language that informs consumers of their rights. See Graziano, 950 F.2d at 111 (notice of right to respond within thirty days is not effectively communicated when presented in conjunction with contradictory demand for payment within ten days); Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1225 (9th Cir.1988) (same). In addition, courts have found collection notices misleading where they employ formats or typefaces which tend to obscure important information that appears in the notice. See Baker, 677 F.2d at 778 (required information must be "large enough to be easily read and sufficiently prominent to be noticed"). Finally, courts have held that collection notices can be deceptive if they are open to more than one reasonable interpretation, at least one of which is inaccurate. Dutton v. Wolhar, 809 F.Supp. 1130, 1141 (D.Del.1992) ("least sophisticated debtor is not charged with gleaning the more subtle of the two interpretations" of collection notice); Britton, 1989 WL 148663, at *2, at * 6 (deceptiveness of collection notices "should be assessed in terms of the impression likely to be left on the unsophisticated consumer").

In other words, this decision by the OH Appellate Court, in their statement that Lamar's action was frivolous and sanctions were not being sought simply because they were not asked for--makes the assumption that one HAS to really be a dunce to be protected and have a CoA under the FDCPA, is simply wrong.  By making this statement in affirming the lower court decision to find for the defendants, the Appellate Court goes against the majority of Federal opinion AND the U.S. Supreme Court's own decision as to who is covered under consumer protection laws.

In other words,  the protections of consumer law apply to ALL consumers.  So, her action was not frivolous on its face.

I will continue with my input in my next post.
« Last Edit: September 27, 2007 05:53:09 PM by Rottweiler »
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Mischievous Smurfy

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Re: Finally, a rational decision by an Ohio Court
« Reply #8 on: September 27, 2007 04:22:13 PM »
I take issue with the statements made the author as well ..  under that thinking there would be no enforcement ... if your sophisticated you can't/shouldn't sue ... if your unsophisticated you have no idea you can sue ... hence, no enforcement at all.
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why are we requesting validation instead of disputing???  Why Why Why

Rottweiler

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Re: Finally, a rational decision by an Ohio Court
« Reply #9 on: September 27, 2007 04:53:23 PM »
Vialna:

The notice was part of the summons and complaint.  Therefore, the suit had been filed already, as the law firm could legally do.  The best that could be hoped for here for the defendant in the collection suit would be to delay the prosecution of the case until verification of the debt had been gotten (assuming it was requested at all).

If the case even moved toward trial.  Going by the "Notice"--which was not labelled as such, and hence it could then be overlooked easily--the case could have ended before the validation period would have under the FDCPA.  I will explain shortly.

Back to the case:

In this case, Lamar got the initial notice as required by §809 (15 USC §1692g ).  It was attached to the complaint!  Perfectly legal so far.  But, was it understandable to the least sophisticated consumer?  Maybe, and maybe not:

Quote
The Summons attached to this Complaint advises you of certain of your
rights under state law for responding to this Complaint. Among these rights is your
right to serve your Answer upon Lerner, Sampson, & Rothfuss within twenty (20)
days. If your name appears in numbered paragraph 1 below, you have additional
rights under federal law to request certain information from Lerner, Sampson &
Rothfuss within thirty (30) days. These time periods run at the same time and start
on the day after you receive this Complaint.

While technically correct (the time periods for dealing with litigation under the RCP are not tolled by the validation period under the FDCPA), if it were truly the LSC (and most people are NOT served a collection letter with a complaint and have little experience with litigation), they would wonder here "Am I supposed to answer this complaint first?  Or, write them asking to validate first?  Both at the same time?

Indeed, the LSC might even make the mistake of serving the answer to the law firm ONLY, and not file it in court as they should.  That would lead to default.

Quote
The federal Fair Debt Collection Practices Act requires that Lerner, Sampson
& Rothfuss provide you with the following information. The amount of the debt, as
of May 20, 2005, is $121,289.78. This amount is made up of your principle balance,
interest, late charges, and amounts expended by the creditor, such as for taxes and
insurance. Because many of these items vary from day to day, the amount due on the
day you pay will be greater. Hence, if you pay the amount shown above, an
adjustment will be necessary after we receive your check.

The creditor to whom the debt is owed is the plaintiff listed above. Unless,
within thirty (30) days of your receipt of this Notice, you notify Lerner, Sampson &
Rothfuss that you dispute the validity of this debt or any portion of it, Lerner,
Sampson & Rothfuss will assume the debt is valid. Lerner, Sampson & Rothfuss is
a debt collector. This is an attempt to collect a debt, and any information obtained
will be used for that purpose.

If you notify Lerner, Sampson & Rothfuss in writing within thirty (30) days
of the receipt of this Notice that the debt or any portion thereof is disputed, Lerner,
Sampson & Rothfuss will obtain a verification of the debt and will mail a copy of
that verification to you. If the creditor named as plaintiff above is not the original
creditor, and if you make written request to Lerner, Sampson & Rothfuss within
thirty (30) days from receipt of this notice, Lerner, Sampson & Rothfuss will provide
you with the name and address of the original creditor.

The rest of the notice is legal in terms of the language on its face.  But, would an LSC (which ALL consumers are presumed to be) become even more confused by the "boilerplate"? That's a real question here.  Already the LSC is confused as to what they should have to do first, and then they are trying to figure out what the rest of the "bla-bla-bla" is and how it affects what they need to do?  Looks like some law firm is seeking a default judgment here...

How to rewrite the first paragraph to make it clear to ANY non-attorney as to what should be done?  Perhaps they should have started with...

"You have been served with a lawsuit.

Under state law, (they would cite appropriate law or procedure section here) you have 20 days to file an Answer to the attached Complaint with the court, serving a copy to us, Lerner, Sampson & Rothfuss."


The first part of the original:

Quote
The Summons attached to this Complaint advises you of certain of your
rights under state law for responding to this Complaint. Among these rights is your
right to serve your Answer upon Lerner, Sampson, & Rothfuss within twenty (20)
days.

Note the lack of mention of the court.  The LSC--and even people more sophisticated than that--would not think to check law or civil procedure, never mind where to look for the information!  They would logically--and legitimately--presume they were to serve a copy of the answer to only the law firm!

That is deceptive and a means to try to collect by default judgment.

So...here is CoA #1.  A legitimate one. 

The action therefore never was frivolous either in the common language sense nor in the legal one.  Hence, the  6th District U.S. Appeals Court decision is simply flat-out wrong.

Why?  The decision, in essence, said there never was a CoA:

Quote
III. CONCLUSION

Courts have characterized the FDCPA as a strict liability statute, meaning that a consumer
may recover statutory damages if the debt collector violates the FDCPA even if the consumer
suffered no actual damages. See 15 U.S.C. § 1692k(a); see also Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 307 (2d Cir. 2003) (“[C]ourts have held that actual damages are not required
for standing under the FDCPA”). As a district court in the Second Circuit recently noted “[t]he
interaction of the least sophisticated consumer standard with the presumption that the FDCPA
imposes strict liability has led to a proliferation of litigation.” Jacobson, 434 F. Supp. 2d at 138.
The court in Jacobson continued:

Ironically, it appears that it is often the extremely sophisticated consumer who takes
advantage of the civil liability scheme defined by this statute, not the individual who
has been threatened or misled. The cottage industry that has emerged does not bring
suits to remedy the “widespread and serious national problem” of abuse that the
Senate observed in adopting the legislation, 1977 U.S.C.C.A.N. 1695, 1696, nor to
ferret out collection abuse in the form of “obscene or profane language, threats of
violence, telephone calls at unreasonable hours, misrepresentation of a consumer’s
legal rights, disclosing a consumer’s personal affairs to friends, neighbors, or an
employer, obtaining information about a consumer through false pretense,
impersonating public officials and attorneys, and simulating legal process.” Id.
Rather, the inescapable inference is that the judicially developed standards have
enabled a class of professional plaintiffs . . . .

5In fact, Lamar has not been sanctioned for her suit and appeal only because LS&R did not so request.
It is interesting to contemplate the genesis of these suits. The hypothetical Mr. Least
Sophisticated Consumer (“LSC”) makes a $ 400 purchase. His debt remains unpaid
and undisputed. He eventually receives a collection letter requesting payment of the
debt which he rightfully owes. Mr. LSC, upon receiving a debt collection letter that
contains some minute variation from the statute’s requirements, immediately
exclaims “This clearly runs afoul of the FDCPA!” and — rather than simply pay
what he owes — repairs to his lawyer’s office to vindicate a perceived “wrong.”
“[T]here comes a point where this Court should not be ignorant as judges of what we
know as men.” Watts v. State of Ind., 338 U.S. 49, 52, 69 S.Ct. 1347, 1349, 93 L.
Ed. 1801 (1949). Id. at 138-39 (emphasis added). We echo Jacobson’s sentiments and concerns. Lamar fits the description of Jacobson’s hypothetical consumer to a tee, and we will not “countenance lawsuits
based on frivolous misinterpretations or nonsensical assertions of being led astray.”5 Id. at 138.

Uh, the law firm did not request sanctions simply because...they were wrong and they knew it.  They just lucked out and got judges who, in a misguided attempt to clear court dockets, will make assumptions that will favor the wrong party which are not codified under either statute or case law.

« Last Edit: September 27, 2007 04:55:01 PM by Rottweiler »
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Admin1781

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Re: Finally, a rational decision by an Ohio Court
« Reply #10 on: September 27, 2007 05:04:23 PM »
A case referred to in this thread--Clomon v. Jackson--has been posted here at DB in our Case Law forum:

http://www.debtorboards.com/smf/index.php?topic=4840.0

Admin9999

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Re: Finally, a rational decision by an Ohio Court
« Reply #11 on: September 27, 2007 05:10:53 PM »
I need to say two things:

1.)  Doctor Evil is a creditors' rights attorney.  For those of you who don't know already, that means he works for creditors, not consumers.  That's his line of work.


This comes too close to discounting a person's opinion simply because of their line of work which is uncomfortably close to a personal attack so please keep this fact based and leave such lines of thinking out of the thread. Debtorboards welcomes any US citizen irregardless of their employment and opinion*.


*So long as they have no negative agenda with regards to Debtorboards or have not been previously banned/denied access.

Kitten

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Re: Finally, a rational decision by an Ohio Court
« Reply #12 on: September 27, 2007 05:52:53 PM »
*So long as they have no negative agenda with regards to Debtorboards or have not been previously banned/denied access.

Which reminds me, what happened to the other lawyer, aka Centex back in December?
I miss her.

Admin1781

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Re: Finally, a rational decision by an Ohio Court
« Reply #13 on: September 27, 2007 06:14:39 PM »
The individual cited is no longer a member of the Debtorboards community.

Doctor Evil

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Re: Finally, a rational decision by an Ohio Court
« Reply #14 on: September 27, 2007 06:37:02 PM »
Rotty:  I think you are missing the point of this case.

Look at the citation to a great quote which speaks volumes about the course that some decisions have taken in this field, and urges that courts not continue to follow that path. 

“There comes a point where this Court should not be ignorant as judges of what we know as men.” 

It also infers the strict liability holding of previous decisions may not be in the best interests of the parties and the court system.

This court has moved to a least reasonably sophisticated consumer standard hopefully the others will follow.


 

credit