*1 plaintiffs may not sue individuals under
EMTALA.
Thus, grant the district court’s of sum-
mary judgment dismissing Plaintiffs claim
against Dr. Lessem pursuant to EMTALA
is affirmed.
CONCLUSION
For above, the reasons set forth
respect to Plaintiffs claims against
hospital, of the district court
is REVERSED and REMANDED for fur-
ther proceedings consistent opin- with this
ion. respect With to Plaintiffs
against Dr. Lessem pursuant EMTALA,
the district court’s order granting sum-
mary judgment is AFFIRMED.
Peggy MILLER, Plaintiff-Appellant,
United America, Intervenor, States
JAVITCH, RATHBONE; BLOCK & Prehn;
Diana J. Block, Brian C.
Defendants-Appellees.
No. 08-3336.
United States Court of Appeals,
Sixth Circuit.
Argued: Dec. 2008.
Decided and Filed: April 2009.
Rehearing and Rehearing En Banc May 29,
Denied 2009.*
* Judge grant Cole rehearing would rea- sons stated in his dissent. *2 Felson, Stephen
ARGUED: R. Law Of- I. fice, Cincinnati, Ohio, for Appellant. Mi- This case centers on a form debt-collec- Slodov, Javitch, chael D. Block & Rath- *3 tion complaint by drafted and used JBR bone, Cleveland, Ohio, Appellees. for suits, numerous state-court one including Scher, Howard S. United States Depart- filed against Peggy Miller in Scioto Coun- Justice, Washington, D.C., ment of In- for ty, Ohio. Miller accrued debt on a credit tervenor. ON Stephen BRIEF: R. Fel- card issued Providian National Bank. son, Office, Cincinnati, Law Ohio, Steven The bank sent monthly her statements Shane, Shane, C. Steven Attorney C. detailing charges the on her “Providian Law, Bellevue, Kentucky, for Appellant. Card,” Visa paid and she the statements Slodov, Javitch, Michael D. Block & Rath- with checks made out to “Providian.” But bone, Cleveland, Ohio, Appellees. for How- after she stopped making payments —a Scher, Raab, ard S. S. Michael United fact she dispute does not sold —Providian Department Justice, States of Washington, Miller’s debt to Palisades Collection LLC D.C., for Intervenor. (“Palisades”). JBR, Palisades then hired and JBR filed the state-court COOK,
Before: COLE and Circuit prompted Judges; EDMUNDS, this class-action suit. District Judge.* The state court “COMPLAINT FOR COOK, J., delivered the opinion of the MONEY LOANED” read as follows: court, EDMUNDS, D.J., joined. COLE, 597-601), (pp. J. delivered a 1. Plaintiff acquired, for a valuable separate dissenting opinion. consideration, right, all title and interest in and to the claim set forth origi- below
OPINION Defedant(s) nally owed by to ASTA As a result of II/PROVIDIAN-03/NAT COOK, Judge. Circuit the assignment, became, Plaintiff and Peggy Miller filed a putative class action is, now of owner funds loaned on against Javitch, law firm Block & Rath- account number xxxx-xxxx-xxxx-0736. bone and two of agents its (collectively, 2. There is presently “JBR”) due the Plain- under the Fair Debt Collection (s) tiff from the Defendant on money (“FDCPA”). Protection Act 15 U.S.C. loaned on charge debt, defendant’s §§ 1692e seq. et Miller contends that JBR $4,604.56. the sum of violated false, by using FDCPA decep- tive, and misleading language in a debt- (s) 3. Plaintiff notified Defendant of complaint. collection The district court assignment and demanded that De- granted judgment first on pleadings on (s) fendant pay the balance due falsity claim, and then entered sum- account, but part no of the forgoing mary judgment in of JBR favor as to the balance paid. has been remaining claims. appeals, Miller and be- (s) 4. Defendant in default on is/are agree cause we with the district court that repayment this obligation. Miller failed in her burden to genu- raise a ine issue of fact regarding a statutory vio- WHEREFORE, Plaintiff prays JBR, lation we affirm. (s) against Defendant in the * Edmunds, Nancy The Honorable G. United Michigan, sitting by designation. Judge States District Eastern District title, consideration, right, all and valuable statutory inter- $4,604.56with amount set forth below in and to the claim interest costs judgment, date of from the est ” Defendant(s).... originally owed further action, other and such just prop- deems as Court relief jury. After reached matter never the circumstances. er under examined district court discovery, the suggest nothing found omitted] evidence [signature block decep- qualified four these statements read that when she admits Ac- the FDCPA. misleading under tive or much” understood “pretty complaint, she granted JBR’s district court *4 cordingly, the lawyer a the took it. She ap- motion. Miller summary judgment more moving for responded to it who the judgment on the district court’s peals voluntarily then JBR statement. definite summary judgment. its pleadings and suit, collec- large as volume the dismissed resis- met do when with firms often tion II. tance. “to the FDCPA enacted Congress in the on offensive then went Miller practices collection abusive debt eliminate her- of court, on behalf suing JBR federal collectors, that those to insure by debt She similarly situated. and others self using from who collectors refrain debts for “debt collector” that JBR —a claimed are not practices collection debt abusive FDCPA, v. see Heintz purposes pro and to disadvantaged, competitively 1489, 291, 299, Jenkins, 115 S.Ct. 514 U.S. protect action State mote consistent (1995) the L.Ed.2d 395 —violated abuses.” debt collection against consumers false, and deceptive, including FDCPA 1692(e). rele § The FDCPA’s 15 U.S.C. com- its state-court misleading language read: vant sections for and moved answered plaint. JBR false, any may not use A debt collector district The pleadings.1 the on judgment misleading representation or deceptive, finding in part, the motion court granted the with collec- means in connection or a claim when failed to state that Miller limiting the any debt. Without tion of money loaned” amounted “for alleged that the foregoing, the general application But the court —at- to a false statement. violation of is following conduct may still statement how a true tentive to section: motion denied JBR’s misleading be —also a claim Miller stated finding part, (A) (2) the representation The false of— misleading potentially respect to four with amount, any character, legal status of or (1) “for the statements: debt; (2) “the loaned,” Palisades was number on account funds loaned owner of (10) representation The use (3) due ”; presently ... “there
xxxx attempt or to collect means Defendant(s) deceptive or on from Plaintiff to obtain informa- any debt or to collect card charge money loaned on defendant’s concerning a consumer. (4) tion acquired, ”; “Plaintiff ... debt affirming on And the same. because We do violates argued the FDCPA 1. also JBR straightforward res- a more the merits affords The Petition Clause. First Amendment’s olution, arguments sidestep intervenor, JBR's also States, we defends United claims and that Miller waived certain constitutionality. court The district FDCPA's lia- JBR from defense shields granted bona-fide-error issues bypassed the constitutional bility. grounds. summary on judgment other JBR receivable, merchant’s account not a loan. rejected district court this position (12) implica- representation The false pleadings. Reviewing its on the have been turned over tion accounts novo, Music, Roger the issue de purchasers innocent value. Sony/ATV Publ’g, Inc. v. 477 F.3d § 15 U.S.C. 1692e. (6th Cir.2007), agree These provisions sweep with “ex- rely court district its well-reasoned breadth, traordinar[y]” Frey Gangwish, v. analysis: (6th Cir.1992), and call Typically, credit card debt is one that is liability, ... meaning for “strict that a considered “an account” where there is a statutory damages consumer recover pur- sheet of sorts that balance lists if collector violates the FDCPA chases made with the credit card and even if the consumer suffered actual no payments received is- Fed. damages,” Mortgage Home Loan it a approach calling suer. This loan Lamar, Corp. F.3d Although a novel one. the Ohio Rules *5 Cir.2007) 1692k(a)). § (citing 15 U.S.C. provide of Civil do a Procedure for com- court, determining in This whether a state loaned, plaint for money question qualifies misleading, ment as an employs whether or not a histori- has objective, “least-sophisticated-consumer” cally been one on account can now be test. Kistner v. P. Law Michael Offices of plead money as one for Defen- loaned. 433, Margelefsky F.3d 518 438-39 cites dant a handful of cases from other (6th Cir.2008). “protects This standard circuits and state courts as as vari- well prevent[ing] naive consumers liabil [while] secondary other ous sources for the ity idiosyncratic bizarre interpreta for or proposition that a credit card transac- by tions of collection preserving notices a equates by tion to a loan card the credit quotient of reasonableness and presuming to the card issuer credit holder. a level of understanding willing basic Mercer, 391, In re In 246 406 F.3d ness to read with care.” Id. La (quoting Cir.2001), case, bankruptcy discharge a 509-10). mar, 503 F.3d at Stated differ by the Court stated that “... each card- ently, we “will not ‘countenance lawsuits use, requested a [the debtor] loan based misinterpretations frivolous line; against approving each interpretations nonsensical being led as card-use, reimbursing and therefore ” Lamar, tray.’ F.3d at (quoting 503 514 merchant, owner, including an ATM Inc., v. Jacobson Fin. Healthcare Servs. [the USC credit card made a issuer] (E.D.N.Y.2006)). F.Supp.2d 434 133 to loan her.” Applying principles these to Miller’s claim, begin by analyzing the district v. May Defendants also cite Trus Co. court’s on the pleadings, and nik, 71, 75, App.2d Ohio 375 N.E.2d summary then judgment. consider its (1977), a statute of limitations case involving the failure of a [Trus debtor
A.
to timely pay
purchases placed
nik]
JBR’s state-court
char
May
on an account at a retail store [The
Company].
acterized Miller’s credit-card
as a
May
Court cited Har
The
loan. Miller thinks that description
Savings
counts
Trust
McCray
ris
Bank v.
(1974),
false under the FDCPA. Credit-card
21 Ill.App.3d
316 N.E.2d
debt,
argument goes,
actually
so her
In
209.
Trust
Harris
the issuer
any merchandise or
respect
to
with
to
the cardholder
sued
credit card
bank
purchased.
service
on the cardhold-
due
the balance
recover
argued
Trust
Harris
account.
er’s
McCray,
Bank v.
Trust & Sav.
Harris
the card-
arose when
action
the cause
605, 607-608, 316 N.E.2d
Ill.App.3d
for funds
the bank
repay
failed
holder
(1974).
The Court
merchant.
to the
advanced
in Harris
reasoning
upon
Based
held
Trust and
with Harris
agreed
Trust,
actually
the fact
pay-
in
to a merchant
“money advanced
to mer-
by the credit card issuer
paid
by the
received
for merchandise
ment
behalf,
credit card holders’
on the
chants
at
a loan.” Id.
constitutes
defendant
Rules of Civil
and Form 5
the Ohio
May
The
Court
N.E.2d 209.
fil-
Procedure,
that the
the Court finds
stating
Trust
distinguished Harris
“money
loaned”
ing of an action
purchase
case the
that,
present
“[i]n
or its successor
credit card issuer
Compa-
May
by The
money was loaned
a credit card
funds owed from
recover
party as
Harris
by a third
ny, not
violate
FDCPA.
holder does not
Trusnik, 54
Trust,
May Co.
supra.”
72. The
375 N.E.2d
App.2d
Ohio
finds ad
district court’s conclusion
underlying
allegations
factual
in Miller’s credit-card
support
ditional
are more
case
court collection
state
Providian,
where
agreement
whereby a credit
Trust
with Harris
line
when due
pay
“promise[d]
[Providian]
a credit card
company
issued
added).
(emphasis
borrowed.”
all amounts
*6
card
the credit
in turn used
Miller who
evidence of nine
also includes
The record
at merchant stores.
purchases
to make
used her credit
Miller
instances where
good
provided
Court
a
Harris Trust
auto
from
cash advances
card to secure
card
of the
summary
credit
issuer/holder
(“ATMs”). Finally,
machines
mated-teller
relationship:
concedes
brief to
court
Miller’s
system involves
The bank credit
may or
the
‘loan’
matter
word
“as a legal
the
relationship between
tripartite
reasons,
For these
may not be accurate.”
cardholder,
bank,
mer-
and
the
issuer
“money
to
references
complaint’s
the
system.
in the
participating
chants
here as
not actionable
loaned” are
ac-
an
establishes
The issuer bank
deci
Circuit’s
The Seventh
statements.
to whom
person
on behalf
count
Hasenmiller,
Blatt,
Leibsk
in
sion Beler
issued,
the two parties
the card is
Moore, LLC,
Cir.
er &
gov-
which
agreement
enter into
“con
2007),
complaint’s
addressed
agree-
relationship. This
their
erns
credit-card-debt
description” of a
fusing
pay
will
that the bank
provides
ment
transaction,
472, articulates
id. at
account the amount
for cardholder’s
claim:
with Miller’s
problem
purchased
services
merchandise or
during
writes
everything
lawyer
[Not]
the credit card
through the use of
must be stated
litigation
course
cash loans available
also make
will
by unso-
English understandable
plain
It also states that
the cardholder.
desir-
However
consumers.
phisticated
bank
be liable
shall
cardholder
be,
not a command
it is
might
able that
payments made
advances and
in the FDCPA.
to be found
cardholder’s
bank and
clarity in
require
not
1692e does
Section
not be
the bank shall
obligation
pay
says is
“[a]
writings. What
all
dispute,
by any
impaired
or
affected
false,
any
use
collector
not
by the cardholder
or demand
deceptive, misleading
or
representation
shita Elec. Indus. Co. v. Zenith Radio
means
connection with
Corp.,
574, 587,
the collec-
475 U.S.
106 S.Ct.
tion of
debt.” A
against
(1986).
rule
trick- L.Ed.2d 538
ery differs from a
plain
command to use
argues
the same four
English and
at a sixth-grade
write
lev-
statements we cite above from JBR’s com
el.... Whatever
appeared
shorthand
plaint deceive or
by wrongly
mislead
im
payments
system
—the
plying that
actually
Providian
transferred
through which
slips
credit-card
flow is
funds to
court,
her. The district
examin
complex,
many
lawyers
even
don’t
ing the evidence gathered in discovery,
grasp all of its details —was harmless
determined that Miller failed to raise a
rather
than an
anyone
effort to lead
genuine issue of material fact. Addressing
astray.
It
judge,
was the
plain-
not [the
statements,
the first
three
the district
tiff], who had to be able to determine to
court correctly explained:
owed,
whom the debt was
for it is the
(or
court)
Plaintiff
judge
presented
affidavits,
has
clerk of
no
rather than the
oth-
er than
defendant
one from
prepares
counsel,
who
Plaintiffs
no
surveys,
specifying
expert
no
opinion,
the relief to
prevail-
nothing
which the
ing party
demonstrate
genuine
that a
entitled.
issue of fact
fact,
exists.
In
Plaintiff admits that
(internal
Id. at 473
quotation marks omit-
when she first saw the state court com-
ted).
plaint she was not confused....
[Addi-
Like
dissent,
“permit
Javitch
tionally,] the Court notes that the Plain-
leeway
some
use
legal
terms of
tiff stated in
deposition
her
that she
art and other language that might be diffi-
read the state
complaint,
court
and that
cult for the least-sophisticated consumer to
“pretty
much” understood it.
Thus,
understand.”
even if JBR could
Javitch,
Rathbone,
Miller v.
Block &
have
drafted its
using plainer
(S.D.Ohio
F.Supp.2d 772,
2008).
776-77
language, and even
novelly styled
if it
*7
money loaned,”
as one “for
JBR did
argues
Miller
the
that
district court’s
go
not
so far as to falsely describe Miller’s
reasoning
Kistner,
contravenes
a case de-
debt. See Evans v.
Funding
Midland
cided after the district court granted JBR
(S.D.Ohio
F.Supp.2d 808,
574
813
summary judgment.
particular,
In
Miller
2008) (holding in an FDCPA credit-card
focuses on the district court’s comment
debt case “that
allegations
the
in the state
that “[h]ad the
complaint
state court
stat-
court complaints at issue here were not
only
ed
that it
‘complaint
was a
false insofar as they sought recovery ‘for
loaned’
inquiry
may very
[then]
well
”).
money loaned’
have turned
differently.”
out
This obser-
vation,
asserts,
Miller
triggers KistnePs
B.
requirement
any
that
statement suscepti-
Turning to the
summary
district court’s
ble to “more than one
interpre-
reasonable
judgment, we conduct a de novo review.
tation”
genuine
raises a
issue of material
Potter,
(6th
Jones
F.3d
488
402
fact.
595 complaint, state court of the reading entire suggestion, contrary to Miller’s And being he or she was when understand that otherwise would imply not court did district unpaid may very well the collection of credit “inquiry sued for it noted lan- that she differently” repeating had other It card balance.” bears turned out have comment mere- That much” understood having “pretty omitted. admits been guage properly court the district complaint. shows that ly read meaning as complaint’s assessed complaint’s reference Nor does the Lamar, at F.3d 503 entirety. See in its misleading. “charge card” render to a least-sophisticated- that the (observing 510 differs how a credit card Regardless of that the docu- assumes standard consumer card, that difference would charge from a entirety, care- its “is read in at issue ment sophisticat the least mean so much to not elementary level some fully and with she would be mis Martinez, ed consumer he re In understanding”) (quoting term instead of the (Bankr.S.D.Fla.2001)). use of one led 523, 532 266 B.R. Granted, lawyer “closely parsing a referring to a other. as a And read whole— number, municipal bond like of card,” complaint] account specific [the “charge ambiguity or account”—the some fering” detect due and “balance Miller, Jacobson, F.Supp.2d 534 not mislead. confusion. complaint did (“Even sophisti- the least least-sophisticated-consumer at 777 But the F.Supp.2d 138. if to know able It does exacting. would be not cated consumer is not so standard underly- in the number stated “the complaint the account reading require ” belonged] one ing complaint ‘Philadelphia lawyer.’ of a astuteness Beler, F.3d at her.”); see also him or Jacobson, (quoting F.Supp.2d at 138 “everything that not (commenting A.R.S., Equifax Russell v. litiga- course of during the lawyer writes (2d Cir.1996)). complaint We read English under- plain must be stated tion sense entirety give it a “common its consumers”). by unsophisticated standable so, conclude Doing Id. appraisal.” deceive, particular- complaint Nor does not mislead or would term use that does not ly because consumer. least-sophisticated deceive Harvey v. sense.” “in the traditional interpretation for Miller’s Corp., 453 F.3d As Fin. Seneca Great Cir.2006). misleading in her statement— denied potentially She “never fourth debt,” ... valuable consider acquired, that she owed “Plaintiff *8 or that “misstated in and to ation, not claim JBR and interest right, she does all title amount owed misrepresented originally set forth below the claim Defendant(s) owed.” Id. to ASTA II/Providian-03/ the district with again side NAT”—we failure complaint’s focuses on that this statement contends court. Miller if Even card.” the words “credit to use 1692(e)(12) by falsely or mis § violates clarified, have including those words would assigned Providian leadingly implying that mis- impermissibly not omitting them did for val purchaser an innocent her debt to complaint as we read the Again, lead. hold under the enjoyed protection ue who 510, Lamar, con- whole, at 503 F.3d see insists that this She rule. er-in-due-course credit-card its mention of Miller’s scious dupe would statement acquired-for-value “balance due number and the account into consumer least-sophisticated statements, we account.” Given those enjoyed holder-in thinking that Palisades “the least district court: agree with the think not. We protection. consumer, due-course a careful sophisticated 596 says nothing
The statement about holders offering bond and towards a common in due And course. no reason exists appraisal sense of the [communication]. think that the least-sophisticated consumer It is interesting contemplate gen- gives any thought holders due esis of these suits. The hypothetical definition, least-sophisticat- Mr. Sophisticated Least course— Consumer any ed consumer lacks knowledge of the (“LSC”) makes a purchase. His $400 Also, concept. as the dissent debt remains unpaid and undisputed. agree, leeway” “some given must be He eventually receives a collection letter legal the use of terms. requesting payment of the debt which he rightfully LSC, owes. Mr. upon receiv- analysis, The district following court’s ing a debt collection letter that contains Lamar, 514, our decision in 503 F.3d at some minute variation from the statute’s properly relied on insights from a New requirements, immediately exclaims York district court to expose the flaw un- clearly “This runs afoul of the FDCPA!” derlying posi- Miller’s holder-in-due-course and —rather simply pay than what he tion: repairs lawyer’s his office to owes— Ironically, appears that it is often the vindicate perceived “wrong.” “[T]here extremely sophisticated consumer who point comes a this Court where should takes advantage of the liability civil not ignorant be judges of what we FDCPA], scheme defined [the not Ind., know as men.” Watts v. State of the individual 49, who has been 52, threatened 1347, 338 U.S. 69 S.Ct. 93 L.Ed. (1949). cottage industry misled. The emerged has bring does not suits to Jacobson, F.Supp.2d at 138-39. remedy “widespread and serious na- reject We also Miller’s claim on problem” tional abuse the Senate materiality grounds. Writing for the Sev observed in adopting legislation, Circuit, enth Judge recently Easterbrook 1695, 1696, 1977 U.S.C.C.A.N. nor to observed that “[m]ateriality an ordinary ferret out collection abuse in the form of element of federal based aon profane “obscene or language, threats of false or misleading statement.” Hahn v. violence, telephone calls unreasonable Triumph P’ships 755, hours, misrepresentation of a consum- (7th Cir.2009) (citing Carter v. United legal er’s rights, disclosing a consumer’s States, 255, 530 U.S. 120 S.Ct. personal friends, affairs to neighbors, or (2000); L.Ed.2d 203 Neder v. United an employer, obtaining information States, U.S. 119 S.Ct. about a through consumer pre- (1999)). L.Ed.2d 35 Seeing no “reason tense, public impersonating officials and why materiality should not equally be re attorneys, simulating legal process.” quired in an 1692e,” § action based on Rather, Id. the inescapable inference is Judge found a Easterbrook statement judicially developed standards *9 “false in some technical sense” immaterial. have enabled a professional class of Id. (quoting Wahl Midland Credit plaintiffs. Inc., Mgmt., Cir. 2009)). The statute need be applied not in this “A statement cannot mislead un manner ... proper] [A understanding of material, less it is so a false but non- the least sophisticated consumer stan- material is statement not actionable.” Id. points dard away closely parsing from agree. Miller, dissent, We along with the debt collection a municipal letter like relies on a too reading technical of the con- acquired, for a valuable 1. Plaintiff in a complaint Appraising complaint. sideration, right, all title interest that, and just us way convinces sense common originally claim set forth below and to the understood JBR’s much” “pretty as Miller Defedant(s) to ASTA owed II/PROVI- least-sophisti- too would language, so DIAN-03/NAT consumer. cated Plaintiff assignment,
As a of result is, became, of funds and now owner III. number xxxx-xxxx- on account loaned affirm. We xxxx-0736. the Plaintiff presently 2. There is due dissenting. COLE, Judge, Circuit (s) money from Defendant on say with confidence I cannot Because debt, charge card defendant’s loaned on this jury could find that no reasonable $4,604.56. the sum of misleading per- from the to be document (s) of the notified Defendant 3. Plaintiff least-sophisticated consum- spective that Defendant assignment and demanded misleading er, potentially it is and because account, (s) but due on pay the balance the Fair harms interests way in a has been forgoing balance part no of (“FDCPA”) Act Practices Collection Debt paid. I protect, believe designed (s) default 4. Defendant is/are question this proper course to submit obligation. repayment this of three sentences jury. first literally complaint contain WHEREFORE, prays six-sentence Plaintiff statements, (s) docu- although this in the Defendant judgment against credit-card attempt $4,604.56 an to collect statutory ment is interest amount of card.” debt, the term “credit it never uses costs of this judgment, from the date dissent. relief as respectfully action, I and further and such other just proper under deems
the Court confusing on its A. The document the circumstances.
face omitted] block [signature 18). (See at issue in this Appendix The state-court Joint appeared as follows: case is, with- state-court Javitch’s doubt, terms “com- confusing. The
out a CLERK OF THE COUNTY loaned” seem inconsistent plaint IN SCIOTO debt,” “charge COUNTY card COURTS SCIOTO with the reference of credit do not tend to think since we Assignee Palisades Collection “money.” “loaning” us companies Sylvan Ave- Bank Providian National having Rather, talk in usually terms Cliffs, nue, 07632—Plaintiff Englewood NJ awith or an debt” “account” “credit-card vs. may be “over- company that credit card Miller, “outstanding balance.” Peggy A. due” or have Miller AKA Peggy a bank Portsmouth, point, 45662—Defen- To illustrate consider OH 9Th St. branch dants) into a bank goes who customer money he had some of asks for NUMBER: CASE this would although to the “loaned” bank— *10 JUDGE: way asking to technically a correct be account, it savings a money from withdraw MONEY LOANED COMPLAINT FOR certainly See, would almost the cycle. confuse teller. e.g., Information, Consumer Granted, complaint Javitch’s also refers to Cards,” Charge “Credit and Re- Federal account,” on the “balance due the but the Francisco, serve Bank of San available “money language, promi- loaned” which is http://www.frbsf.org/publications/ nently in placed caption the repeated According to Jav- consumer/cards.html. document, within the creates confusion and brief, itch’s Mrs. applied for a Provi- traditional, seems to refer to a one-time card,” dian “credit so the in statement the lender, which, from loan a unlike credit complaint that Mrs. Miller borrowed funds issuer, money directly card loans to con- a “charge appears card” also to be Furthermore, sumers. the reference to false. “money loaned on charge defendant’s Third, complaint refers to a “claim added) (emphasis debt” could cause a Defendant(s) ... originally owed to to wonder if “money reader loaned” ASTA in- It is II/PROVIDIAN-03/NAT.” separate to a referred loan from the say correct to that a debtor “owes” debt,” “charge card as in “money loaned “claim” anyone to yet is another —this plaintiffs fact, In house.” Miller testi- false impressive for a docu- statement — fied that she did not understand the sen- ment consisting of about fifteen lines containing “money tence loaned on de- text. could guess One the drafter charge fendant’s card debt” that she say intended to that Palisades owns was confused the fact that the docu- claim against the formerly debtor owned ment was entitled “Complaint Money by “ASTA II/PROVIDIAN-03/NAT,” but Loaned.” that is not what says. the document In In addition to being generally confusing, addition the fact that the statement includes three false state- incorrect, a debtor would certainly almost ments, one each of the first three sen- be confused about what “ASTA II/PROVI- First, Palisades, tences. it refers to actually is. The majority DIAN-03/NAT” debt-buyer, “owner funds defines this term for its readers as “Provi- loaned.” Palisades does not and never did dian,” may definition not be strict- —a own the funds that were “loaned” Pro- ly correct —but the state-court complaint rather, it owns the debt that for- vidian— offered no such definition for the benefit of merly belonged to may Providian. This debtor, and I quite am sure that Mrs. distinction, seem like a fine but the “own- Miller, when entered into a credit card ers” of the funds that Providian “loaned” agreement, did not imagine herself to be are the merchants whom those funds dealing entity with an called “ASTA paid were in exchange goods and ser- What “ASTA II/PROVIDIAN-03/NAT.” provided Second, vices to Mrs. Miller. II” and refer to remains a “-03/NAT” the fact despite that the seeks a mystery (and, debtor and to me debt, based on a credit-card apparently, majority). to the words “credit card” inexplicably are omit- Also, ted Instead, from the document. the “for loaned” language there is a single arguably because, “charge reference to card debt.” addition to A “charge card” is not paid the same amounts as a merchants on Mil- Mrs. behalf, “credit card.” The latter ler’s involves a re- sought by sum Javitch volving credit arrangement certainly an almost significant includes a outstanding balance be penalty carried from amount of penalty fees and inter- month, month to while the former must be est added to her account balance before paid off in full at the end of each billing See, charged e.g., off. Dis-
599
71,
majority). Even if it is correct that
Owens,
129 Ohio Misc.2d
v.
Bank
cover
(2004) (denying
equita-
not be held liable for imma-
lender should
N.E.2d 869
822
credit-card
to collect
clearly
action
that
lack a
grounds
ble
false statements
terial
of late fees
composed
primarily
mislead,
debt
Muha v. Encore
tendency to
cf.
interest,
than amounts ad-
rather
penalty
623,
07-
Mgmt., 558 F.3d
No.
Receivable
Therefore, while
purchases).
vanced
623, 627-28,
3581,
2009
558 F.3d
WL
debtor
relationship between the
part
(7th
593135,
Cir.2009), the fact that
at *3-4
can be described
credit-card issuer
and the
the sentences in this document
half of
very
loans,
potentially
it is
a series of
as
seems to
literally
contain
false statements
the entire account
to refer to
misleading
allowing jury
in favor of
weigh
me to
And, of
“money loaned.”
balance
least-sophisticated-con-
decide whether
course,
know for sure how
only way to
sumer test has been met.
$4,604.56”
actually
of
is
much of the “sum
the ac-
to examine
money loaned” is
“for
that the document at issue is
recognize
I
Rule of Civil
required by Ohio
counting
letter;
it is a state-court
not a collection
(see
10(D)(1)
infra).
Procedure
legal
is a
document.
complaint, which
Therefore,
permit
fal
I
that we must
that the literal
believe
majority
claims
may be over
complaint
leeway
legal
in the
use of
sehoods
some
for the
Javitch
con
least-sophisticated
looked because
might
language
of art and other
terms
to know
savvy enough
not be
sumer would
least-sophisticated
con
be difficult for
to me
It is not clear
they
were false.
See,
v.
e.g., Beler
sumer to understand.
use of the least-
appropriate
is an
that this
Moore,
Blatt, Hasenmiller,
&
Leibsker
test,
sophisticated-consumer
(7th Cir.2007)
470, 473
480 F.3d
for consum
intended as a sword
primarily
applies
if the FDCPA
(stating
making
ers,
debt-collectors
not a shield for
require
it does not
complaints,
state-court
v. Law
See Kistner
false statements.
Of
be un
language
in the
that all
LLC, 518
Margelefsky,
Michael P.
fices
by unsophisticated consum
derstandable
(6th Cir.2008) (“[The]
433,
test is
F.3d
ers). However,
that an affi
we have held
pro
that the FDCPA
‘to ensure
designed
complaint is
to a
davit attached
state-court
consumers,
as well as
gullible
tects all
that the FDCPA
a “communication” such
”)
Loan
Fed. Home
(quoting
the shrewd.’
misleading state
containing
forbids
from
504,
Lamar,
F.3d
Corp. v.
Mortgage
Javitch,
ments,
Block &
see Gionis
added)).
Cir.2007)
(6th
I
(emphasis
LLP,
24,
Rathbone,
Fed.Appx.
acknowledge
purpose
that an additional
Cir.2007),
attached to a
“
and if an affidavit
liability for bizarre
‘prevent
is to
the test
pro
by the FDCPA’s
complaint is covered
of collec
interpretations
idiosyncratic
”
de
representation[s][and]
of “false
hibition
id.,
notices,’
thing “bi
only
tion
but
collection, then
means”
ceptive
“idiosyncratic” in this case
zarre” and
covered as well.
surely
complaint. See
wording
of Javitch’s
1692e(10)); see
§
15 U.S.C.
(quoting
Id.
Servs.,
Fin.
v. Healthcare
also Jacobson
Jenkins, 514 U.S.
Heintz v.
also
Cir.2008)
(2d
(noting
(1995)
1489,
See to mislead not intend (“The 593135, intimidating effect *5at confusing nature of the com and that the by [language that] magnified have been plaint was a bona fide error. See Jerman unsophisticat- suggested to might have Carlisle, McNellie, Rini, Kramer & Ulrich v. might he any right have consumer ed (6th Cir.2008) A, 469, F.3d 478 LP had payment demand for challenge the to fide error defense (holding that bona Finally, if the extinguished_”). been 1692k(e) § fide er applies bona U.S.C. com- thinking this fooled into debtor is law). Similarly, may be able to rors of debt, she for a credit-card plaint is not unin its false statements were prove that likely to demand be less might either from careless tentional and resulted obligation pro- Javitch’s court enforce understanding of the drafting or a lack of credit-card ac- of her vide documentation However, given the concepts. relevant 10(D)(1). Rule count under confusing language pervasiveness document, say that I cannot Javitch this com could have drafted Javitch an ex its burden to such has established the nature of way in a that made plaint of mate genuine that there is no issue tent instead, debtor, but, to the suit clear jury. rial fact for unnatural confusing, is stated document false state and contains several language D. Conclusion relationships at the financial ments about states, reasons, Congress I would re- majority foregoing issue. As the For the “extraordinarily summary judgment to be grant the FDCPA verse the wrote broad,” Gangwish, 970 F.2d trial. Frey v. remand for (6th Cir.1992), provide and to 1692k(c). § liability. See 15 U.S.C. strict a debt- analyze whether
We are bound using not deceptive, is practice
collector’s ju experienced common sense as
our own
rists, least-sophisticated-con using the but test, “designed to ensure sumer LINDSAY, Plaintiff- Thomas A. consumers, all protects the FDCPA Appellant, Kist well as the shrewd.” gullible ner, majority, F.3d at 438. Unlike GROUP, MANAGEMENT COVENANT as one that I view Javitch’s Defendant-Appellee. misleading find jury could reasonable There consumer. least-sophisticated No. 07-1725. fore, jury deter I that “a should believe Appeals, States Court United deceptive [complaint] mine whether Circuit. Sixth 441; see also misleading.” Id.
Muha, F.3d at WL 6, 2009. March Submitted: (“The was not so defendant’s letter at *5 7, 2009. April Filed: Decided and plain misleading as to entitle the palpably neither summary judgment, but tiffs to misleading as to palpably it so not