858 F. Supp. 2d 891
N.D. Ohio2012Background
- FDCPA and OCSPA claims arise from Burkes’ alleged debt-collection actions for an MRI bill unpaid by Plaintiffs’ insurer.
- Plaintiffs allege Burke Defendants violated FDCPA §§1692e, 1692f and OCSPA §1345 through billing, filing a collection suit, and communications with Plaintiffs’ counsel.
- Burke Defendants moved to dismiss or for a more definite statement; motion reflects timeliness and scope defenses.
- Debt collection actions originated with CHP, Alliance One, then pursued by Burke Defendants; initial Debt Collection Complaint served October 7, 2009; later dismissed February 5, 2010.
- Court analyzes accrual of FDCPA claims (filing vs. service) and whether communications to debtor’s attorney fall within the FDCPA’s scope.
- Court ultimately denies Burke Defendants’ motion in full, allowing FDCPA and OCSPA claims to proceed at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA statute of limitations accrual date | Accrual at service date; timely since Oct. 7, 2009 service | Accrual at filing date; untimely since Oct. 1, 2010 filing | Accrual at service; timely claims surviving dismissal |
| Whether communications to debtor’s attorney fall within FDCPA | Communications to counsel are within FDCPA scope | Communications to attorney excluded under Guerrero rule | Communications to debtor’s attorney are not categorically excluded; not dismissal at this stage |
| Duty to investigate debt under §1692e and relation to §1692g(a) | FDCPA violated by misrepresenting the debt; not protected by verification notice | No independent duty to investigate; compliance with §1692g(a) | Claims not foreclosed; bona fide error defense not proven; viable claims survive |
| OCSPA pleading sufficiency (Rule 9(b)) | OCSPA claims sufficiently pled with particularity | OCSPA claims require Rule 9(b) specificity | Rule 9(b) applicability undecided; pleadings satisfy heightened standard at this stage |
Key Cases Cited
- Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007) (communications to debtor's counsel within FDCPA scope)
- Evory v. RJM Acquisitions Funding LLC, 505 F.3d 769 (7th Cir. 2007) (FDCPA covers communications to a debtor’s attorney)
- Heintz v. Jenkins, 514 U.S. 291 (1995) (debt-collecting lawyer deemed a debt collector under FDCPA)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605 (2010) (emphasizes broad scope of FDCPA and no immunity for mistaken interpretations)
- Johnson v. Riddle, 305 F.3d 1107 (10th Cir. 2002) (accrual upon service, not filing, for FDCPA claims)
- Guerrero v. RJM Acquisitions LLC, 499 F.3d 926 (9th Cir. 2007) (FDCPA not limited to communications to debtor; debated circuitly)
- Ruth v. Unifund CCR Partners, 604 F.3d 908 (6th Cir. 2010) (discussion of FDCPA accrual and remedies)
- Ferron v. Metareward, Inc., 698 F. Supp. 2d 992 (S.D. Ohio 2010) (cited for Rule 9(b) and OCSPA pleading considerations)