Gionis v. Javitch, Block & Rathbone, LLP

a party). named as Without connection the deprivation

between and the property

right question, process Lucre’s due

claim fails.

III. reasons,

For the foregoing we affirm the

district court’s dismissal Lucre’s claims.

Sherry GIONIS, Plaintiff-Appellee,

JAVITCH, RATHBONE, BLOCK &

LLP, Defendant-Appellant. 06-3048,

Nos. 06-3171. of Appeals,

United States Court

Sixth Circuit.

June

25 file eventually led it suit the debt on Ohio state court against Gionis November appeared

No mention but Javitch did complaint; the state court & attach an “Affidavit Indebtedness (“Affi- Non-Military & Contract” Debt & (a davit”) Erica Direct signed by Vick 4 of agent), paragraph Merchant reads, part: specifi- card]

The [credit cally Merchant’s provides that Direct recover, is entitled to Credit Card Bank applicable permitted by extent law, attorney’s fees and its reasonable incurred in action costs agreement. under the rights its (JA 20) Though Ohio permit recovery law not involving fees in connection with claim debt, family, “personal, or household” see (which 1301.21, §Ann. Ohio Rev.Code parties dispute), do not Gionis contends that this the Affidavit misleads “the consumer” think least otherwise, thereby the Fair violates (“FDCPA” Debt Practices Act Collection “Act”), §§ U.S.C. 1692—1692o. event, against court suit state parties. Gionis was settled between the (a class Gionis then filed her own lawsuit COLE, KEITH, BEFORE: Circuit action) against federal court. STEEH, Judges; Judge.* District violated that the law firm She contended KEITH, Judge. DAMON J. Circuit provisions of the FDCPA and various (“OCS- Act Ohio Sales Practices Consumer Sherry into card Gionis entered a credit PA”), 1345.01, Ann. et Ohio Rev.Code with Merchants Credit Direct seq., by attaching threatening and mis- (“Direct Merchants”). Bank When Card court com- leading Affidavit to delinquent payments, she became her plaint. hired the law firm of Direct Merchants (“Jav- However, Javitch, Rathbone, the matter never reached a & LLP Block firm”) summary jury. judg- cross motions for itch” or “law to collect the delin- On (a ment, district court found Javitch attempts to collect quent funds. Javitch’s * Steeh, designation. Michigan, sitting George Caram United District of The Honorable Judge Court for the Eastern States District Inc., Act, cise, (D.C.Cir.1996).

“debt collector” under the see Heintz Jenkins, Hence, 291, 294, 514 U.S. we may properly pendent S.Ct. invoke (1995)) jurisdiction appellate L.Ed.2d 395 over these issues. Chambers, protected 797; immunity litiga- witness nor 145 F.3d at Gilda Marx, Inc., immunity, tion and under 85 F.3d at 679. liable two provisions the Act—15 U.S.C. Javitch, Unfortunately for neither §§ and —for litigation immunity nor witness immunity complaint. Affidavit the state court it from liability shields under the Act. With The district court dismissed Gionis’s re- respect litigation immunity, Javitch maining claims. Right maintains that “[t]he Petition un certification,

Unresolved issues of class der the First Amendment has been con notice, and remedies remain pending qualified strued Courts to afford immu Therefore, district court. Javitch filed this (JA lawyers nity engaged litigation]” [to appeal interlocutory (purportedly 38) under added), and, (emphasis at the same doctrine”) the “collateral order challenging time, “[l]awyers possess absolute privi immunity district court’s denial of its lege common concerning [under law] state petitioned claims. Javitch also for an in- they ments make which are reasonably appeal issues, terlocutory liability on the to and judi related made in the course of 1292(b), see 28 U.S.C. which another proceedings, cial and likewise absolute panel of granted. this Court The two ly immune from suit claims for which are appeals were later (JA 54) (em consolidated. based on such statements.” added.)

phases Accepting proposi these applied would, tions as true as to Javitch course, undercut v. Heintz Jenkins— Though party juris disputes neither our Supreme where the Court held that “the issues, diction to hear these we have “a applies Act who attorneys ‘regularly’ duty sponte sua appel consider whether engage consumer-debt-collection activi jurisdiction invoked[,]” late is properly ty, activity even when that consists of Bank, Mattingly v. Farmers State 153 299, litigation.” 514 at U.S. 115 S.Ct. (6th 336, Cir.1998), F.3d 336 recent added); 1489 see also 15 U.S.C. case, Kelly v. Great Corp., Seneca Fin. 447 1692a(6). dispute Javitch (6th Cir.2006), F.3d 944 clear makes “ ‘regularly’ it engage[s] consumer-debt- independent jurisdiction we have no over Heintz, activity.” collection 514 U.S. immunity Javitch’s the collat claims under 299, 115 So S.Ct. 1489. discussion eral order doctrine. See Delawder v. also litigation immunity applied lawyers Corp., Platinum Fin. Servs. 189 Fed. (those in general regularly who do not Cir.2006) (6th Appx. 369, 371 (unpub engage consumer-debt-collection activi lished). Javitch, But, fortunately for ty) help of no Supreme to Javitch. The (which liability already issues we have already lawyers, has Court said 1292(b)) agreed to under hear 28 U.S.C. collectors, function their as debt are cov “cannot addressing” be resolved without ered the Act. of immunity. Javitch’s claims See Cham Servs., Dep’t bers v. Ohio Human 145 Javitch also “statements contends (6th Cir.1998). in[,] to, F.3d 797 That is to contained and attached the state say, a finding immunity favorable on the court cannot serve as the basis liability issues forestall under the Act. a claim here the [common law] Marx, immunity.” See Gilda Inc. v. Exer- doctrine of absolute Wildwood witness said; it, it said, said or where was 45.) who (JA Javitch is assumes that This to the com attached it about who in none testimony no provided But it “witness.” apply these is to (the plaint. All that remains Affidavit; Direct only Erica Vick legal stan applicable facts” to “basic merely at- did. agent) Merchant Mehra, See, v. e.g., dard. Williams com- to the state court tached the Affidavit banc) Cir.1999) (en (ap F.3d authority pur- points plaint, and standard to deliberate-indifference plying immunity to witness porting to extend Shadoan, F.3d facts); Weaver v. merely affidavits. those who attach (6th Cir.2003) probable- (applying so, we held that while Even have facts); Clay standard to Scott cause in the form of “testimony presented (6th 867, 16 205 877 n. Cir. County, F.3d protected under absolute may affidavit be 2000) (same). summary under So review Weltman, immunity,” 434 Todd v. witness see Fed. appropriate, judgment was (6th Cir.2006), 432, immunity the F.3d 439 56(c); Liberty Lobby, Anderson v. R.Civ.P. “complaining not wit extend 2505, 248, 242, 106 91 S.Ct. 477 U.S. judi help instigate who the nesses”—those (1986), review 202 and we de L.Ed.2d truth, process by swearing to tell the cial Cos., novo, Philip 8 v. Morris see Moore (as Todd) Affidavit id. 444. Vick’s (6th Cir.1993). Hence, 335, 339 F.3d complaint, to a court was attached state 1692e(5) § or Did Javitch violate issue: government in and thus “set the wheels of 1692e(10) § Act it attached of the when Id. instigating legal motion a action.” Affidavit, re which mentioned Erica Vick’s Cole, 158, (quoting Wyatt v. 504 U.S. 164- “to covering attorney per the extent (1992)) 1827, 65, 112 118 L.Ed.2d 504 S.Ct. law,” by applicable state mitted (internal omitted). quotation marks So complaint? court and, enti especially, Vick not Act eliminate purpose of the is “to The (But immunity. tled absolute witness practices debt debt collection abusive Vick, course, of sued cannot be under 1692(e).1 collectors];.]” Sec- 15 U.S.C. Act, for is not a she “debt collector.” Act debt col- “[a] tion 1692e states 1692a(6).) false, any deceptive, or lector not use means con- misleading representation or II any collection of debt.” nection with the applica- And, limiting general turn now to issue of “without We whether 1692e(5) id., § summary foregoing,” pro- of the judgment in Gionis’s favor tion a to take action that proper. genuine There are no issues of hibits “threat is not in- legally taken or that dispute material fact—no as to what was particular support arguments, a Jav- After Javitch submitted thus Beler lends oral R.App. P. 28(j), letter Rule Fed. position. under see itch’s 28(j), providing a with citation to Court though postures case the Beler And Blatt, case, v. 480 recent Circuit Beler Seventh citation, appellate "supplemental” Javitch’s (but (7th Cir.2007). questions F.3d Beler provide to think that do not reason briefs decide) regulates Act does not whether the Act does not cover the content particular. filings in content of state court filings particular, United States v. court see Sheeks, F.3d 691- But see Veach Nason, (1st Cir.1993) ("[A] Cir.2003) (applying the Act to 28(j) pursuant can- [R]ule submitted letter content of “a summons and issue.”) (internal quotation not raise new proceedings”). Indiana small claims court omitted) (alterations original); and marks incerti But the reason for the Beler court’s entirely opinion, and the Court none. is from its sees tude clear 1692e(10) tended taken.” to be Section or idiosyncratic interpretations bizarre similarly prohibits, part, relevant collection Id. at 1320. “[t]he notices.” use of any decep- Since Javiteh sued in Ohio and tive means to collect Affidavit “applicable leaves the unde law” any debt[.]” fined, sophisticated least consumer sense, a strict neither nor (who is both “below-average “naive” and been here. has violated The 1319) would, sophistication,” see id. at only says Affidavit Direct Merchant “is question, “applicable without conclude the recover, entitled permitted to the (It extent to be law” Ohio law. does not matter law, by applicable its reasonable that a sophisticated more consumer would fees and costs incurred in action to “applicable have discovered that the law” rights agreement.” its under the law, actually Ari “federal and laws of (JA 20) Because the agreement. zona” the credit card 167.)) (JA credit card agreement (though not the Af- phrase And the “to the extent fidavit) (at “applicable defines law” as “federal permitted” suggests least least to the law, Arizona,” consumer) laws and because the that some extent (techni- Ohio, case was filed in in fact permitted “Why there was is under Ohio law. cally else,” speaking) wonder, no “threat any to take ac- consumer would “would taken,” tion that legally language cannot Javiteh attach this to the com 1692e(5) § added), if (emphasis plaint permit attorney Ohio law does not nor “use of fees here?” representation deceptive or debt, means to collect” Gionis’s threatening language Yet the appeared 1692e(10) § (emphases filing in a court one seeks reme- —where dies, not make that empty threats —and But the Act does not such require arguably could be understood the least sophisticated interpretation. Quite the sophisticated as an “at- consumer actual contrary, in fact: Courts view must (not attorney tempt” to collect fees alleged through violation the lens of the se) per “threat” thus and not actionable consumer,” “least see Smith 1692e(5). § (prohib- See Inc., Sys. Transworld 953 F.2d iting' the “threat to take action (6th Cir.1992) objective usual —the legally be taken” add- legal in standard consumer protection ed)). all, After other “What reason would cases, Jackson, see Clomon v. appear proceeding the statement a court (2d Cir.1993). pur- “The basic if attempting Javiteh were not to collect pose of least-sophisticated-consumer fees?,” attorney may again the consumer standard is to ensure that FDCPA courts, A fact, ask. few lower have consumers, protects all gullible as well to refused find a violation under ground- as the Id. shrewd.” “This effort is “[djefendants did to not threaten where ed, sensibly, quite in the assumption action, actually [an take but took unlawful] below-average sophistication consumers of See, by filing De- complaint.” e.g., or intelligence especially vulnerable to Corp., lawder v. Platinum Fin. Servs. fraudulent schemes.” Id. at The (S.D.Ohio 2005) (em- F.Supp.2d standard thus serves a dual “it purpose: phasis original) and cases cited therein. (1) consumers, protection ensures the of all But, context, against even the and trusting, “attempts” naive this and deceptive practices, necessarily mutually debt collection and are not ex- “threats” protects against liability concepts, debt collectors for when we keep clusive recovery generally bars “prayer of relief’ overarching principles mind—“to Act’s 8(A). P.R. relief. Ohio Civ. of such practices debt collection eliminate abusive it, Hence, an unlawful way we slice either 1692(e), collectors,” pre- and to by debt made attorney fees was to collect “threat” “false, misleading repre- deceptive, or vent 1692e(5), Affidavit, violating § sentation!;,]” the Affida- § 1692e—whether a “false also amounted to an is more metaphysical description vit’s collect or means to deceptive essentially “attempt” more “threat” 1692e(10). debt[,]” violating a[] collect recasting alters wordplay. No semantical intimidating sophis- attaching effect on the least Affi- believes con- be no differ- “would be to the would ticated consumer: she davit credit card than entire fused, reasonably pressured feel ent might complaint, and that to the debt, even if she immediately pay the “effectively pro- would it hable here hold validity, in disputed its order avoid fee-shifting including from hibit creditors having pay [the debt also possibility agreements, in their cardholder terms attorney later fees at some collector’s] [those] their hamper efforts Javitch, 405 F.Supp.2d Gionis v. date.” 22.) But Br. this (Appellant’s terms.” (S.D.Ohio 2005). 856, 867 distinctions. Fore- ignores significant two if the so- This is so because even least most, the credit card had Javitch attached view the Affi- phisticated consumer would complaint, there to the would as an actual davit’s sophis- least argue room to that the be less fees, “attempt” the at- consumer would feel threatened ticated embody ongo- tempt would nonetheless agree- here manner as since the same likely attorney fees ing higher threat that as explicitly “applicable defines law” ment the long litigation be assessed so as would (JA law, of Arizona[.]” and laws “federal be legally continues—an action that cannot (convenient- 167.) does not The Affidavit 1692e(5). in Suppose, taken See Ohio. clarification, ly) and such an make this hand, sophisticated the on other the least sophisti- room for the least omission leaves view the Affidavit’s attor- consumer would “applicable to conclude the cated consumer (not simple as ney language fees a threat to be Ohio law. law” attempt) attorney actual fees an The Affi- is distinction. There another (should at some later date Javitch choose the chose out the fact that point davit to). That threat is likewise one that can- re- provides” for “agreement specifically in legally taken not be Ohio. covery attorney applica- of fees under failure assert Javitch’s (and, men- again, law does so without ble of complaint’s “prayer in the language fees is). (JA tioning “applicable law” what section does not cure the threat. relief’ added.) 20) Certainly, this is Sheeks, F.3d See Veach v. than the entire threatening more Cir.2003) (“When are two different there or conditions Agreement terms —where actually owes accounts of what debtor “specifically” isolated for consum- creditor, that one is the correct version Barany-Snyder attention. er’s ... not the other description does save Weiner, 06-2111, No. at 2007 WL 2007) unsophisticated (N.D.Ohio debtor stan- Jan.24, under (unpublished) *8 dard....”). distinction). Hence, con- The least (discussing this con- holding trained trary thinking, would not realize what our sumer Javitch’s including “prohibit creditors from lawyer would—that a failure assert fee-shifting their cardholder in a terms request complaint’s fees agreements, taken,” hamper legally efforts [or] their be violation of 22.) (Appellant’s enforce terms.” Br. 1692e(5), which also amounted to “false deceptive col- means to One more hurdle remains this matter: debt[,]” lect to collect a[] Javitch utter did not the statement 1692e(10). Affidavit; violation of For these rea- Erica Vick did. there- sons, fore that imputing contends Erica Vick’s we AFFIRM the district court’s words essentially onto it would amount to grant summary judgment. of impermissible “vicarious liability.” This is

not so. independently Had made Vick STEEH, Judge, GEORGE G. District (with threat to Gionis no assistance from dissenting. Javitch), imposition liability on Jav- itch for threatening Vick’s could words respectfully dissent. liability.” classified as “vicarious See Re- The underlying facts this case are (Third) (2000). statement of Torts straightforward. Appellee Sherry Gionis But Javitch not passively by did stand sued in an was Ohio court for a credit

Vick made threat. It instead chose to owing card debt to Direct Merchant’s communicate the threatening language to (DMCCB). Card Credit Bank Gionis Gionis—in a lawsuit no And less. agreement, signed the time took she consumer, especially sophisticat- the least one, card, on applicable ed the credit that the very could view the act law doing so adoption as an of Vick’s threat —and thus a be that would of Arizona.1 An affidavit “threat” within itself. United States v. by filed the appellant-attorneys to collect Cf. Cox, (6th Cir.1992) (“A unpaid debt included victim.”) appearance threat is ... an to the recover, “is DMCCB entitled to to the (internal omitted). quotation marks This permitted applicable law, extent its rea- is all the more true in given Ohio sonable costs incurred 10(c) provides Ohio’s Civil Procedure Rule action to its rights copy “[a] written instrument agreement.” majori- noted As pleading part plead- attached to a settled, ty, the case promptly 10(c) ing for all P.R. purposes.” Ohio Civ. DMCCB never sought attorney’s fees. Hence, to hold case, particular Given the facts of it this liable for its own actions does not invoke unreasonably statutory stretches the lan- liability. vicarious

guage conclude that the action com- Ill of in plained this lawsuit violated Fair the my we Debt Collection Practices Act.2 col- Accordingly, conclude that Javitch As concede, made a leagues sense, “threat take action that a strict nei- an[] “[i]n curb, calls, Although, appears appellant phone it that waived such as abusive and argument disposed may letters, its that case of deceptive debt collection and other on the Arizona basis that law —which allows patently unfair described in the stat- antics attorney’s the collection of fees in connection history. legislative ute’s See Lewis v. ACB governed with consumer Ms. Gionis' Services, Inc., 389, (6th debt — Business DMCCB, contract with the fact that remains Cir.1998). fact, placement the careful of agreement the cardholder is in the record and affidavit, attorney the reference to fees in the dispute there is no that it Arizona contains the complaint, than the and that rather the fact provision. choice lawof plaintiff made no affirmative fees, that was entitled to indicates certainly 2. This action does not fall within the scope designed practices of the FDCPA 1692e(10) fees were that such complaint been itself nor has ther owed,3 of com- a mere recitation Nowhere did the rather than violated here.” affirmatively agreement that in an plaint or affidavit text a cardholder from sought. Further- fees would be at 693. is so affidavit. See id. Veach more, appellee is no record that felt there distinguishable from the instant factually pressure resulting undue from the state- lends assistance opinion case that affidavit, or that there was ment this decision. appel- and prior appellee contact between recent, case Bara unpublished In the might support which an inference that lant Weiner, 06-2111, No. v. ny-Snyder of its the law firm threatened collection 2007) (N.D. (un 24, Ohio Jan. WL 210411 perspective from the “the least fees attorneys for the published), which sophisticated consumer.” College sued for Baldwin Wallace were agree any authority I cited improper unpaid collection allegedly significant to her by appellee support lends debt, held that school the district court support- position. precedent There is no “[mjerely attaching an argument ing appellee’s a a attorneys’ provision fee includes an

which itself did make claim to attor- a constitute a complaint and brief does not fees, ney’s appending an attachment which provision.”4 threat This to exercise not state an affirmative intention to did of the ele holding followed its discussion fees, may nonetheless be a required ments claim (10). found have violated “(1) 1692e(5): legal threat take ac instance, For the case of Veach v. inability tion take action Sheeks, Cir.2003), 316 F.3d 690 relied *7, citing lawfully.” Wright Id. Asset part by appellee, Cir- on Seventh C-3-97, 375, Acceptance Corp., No. ruling actually cuit’s reverses the lower 7, *1 n. U.S. Dist. WL judgment entry summary court’s for the (S.D.Ohio n. 7 Jan. LEXIS *5 defendant on FDCPA claim because 2000). agree I with the decision rendered collector, the defendant debt in addition to case, Gaughan in that Judge claiming that the attor- debt owed included meaningful be cannot find distinction fees, ney represented had the amount of page “revolving a two debt, tween the debt to be three times actual subject of the agreement” that was applying damages, i.e. treble where such Barany-Snyder5 case and by court lawsuit only an award be made Furthermore, provision of the cardholder quoting order. of attor- mention Here, instant case.6 ney’s was an affirmative statement in “revolving agree- part plaintiff Notably, page on the of the 5. two contain, comply did not as the cardholder with FDCPA. ment” did, in the instant case a choice of indicating applicable law provision law "[T]he 3. Defendant is indebted to the Plaintiff 1,050 damages for than Ohio. $ as treble other sum 350.00, plus $ rea- bad check in sum of fact, "revolving agreement” page 6. the two sonably permitted by [sic] arguably that was more contained law.” Id. at 693. “threatening”: upon any, part, default of Discussing, holding of the court understand 4. I/We the terms and conditions of this instant case. See Gionis v. Jav all of below in the itch, Rathbone, upon proper F.Supp.2d service & credit Block (S.D.Ohio 2005). College, DEFAULT a NOTICE OF appellant even if could not lawfully seek Ohio, fees in there is no threat

to do so stated or implied in the complaint

or affidavit.

Although Judge Gaughan in Barany-

Snyder distinguished the district court’s Gionis,

decision in pointing out that

language complained of in the Gionis case affidavit,

was contained in an rather than a

copy of the cardholder agreement, I find

her reasoning equally applicable to this

matter, and cannot find that under the case,

facts of this even the sophisti “least

cated consumer” would conclude that de

fendant threatened to take illegal or unin b) action,

tended that defendant used a representation or deceptive means to

collect or attempt to collect a debt.

would reverse the grant district court’s

summary judgment. CROSS,

Barbara Jean Petitioner-

Appellant, STOVALL,

Clarice Respondent-

Appellee.

No. 05-1528.

United States Court of Appeals,

Sixth Circuit.

June become, signers immediately all op- be added to the total amount college, tion of the liable for due. actual or reasonable collection costs and/or

Case Details

Case Name: Gionis v. Javitch, Block & Rathbone, LLP

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 6, 2007

Citation: 238 F. App'x 24

Docket Number: 06-3048, 06-3171

Court Abbreviation: 6th Cir.