*1 However, Po- ongoing discomfort.” stopped testified at trial that he had gor pain he had
taking the medication and that plans surgery. Accordingly,
no for future in denying district court erred Makita’s for a the award of future
motion JNOV expenses.
medical
III. above, judg-
For stated the reasons part
ment of the court is affirmed in district part, reversed in and this is re- cause pro- court for
manded the district further
ceedings opinion. with this accordance LEWIS, Plaintiff-Appellant,
William C.
v. SERVICES, INC.,
ACB BUSINESS (96-
Defendant-Appellee
3093/3498), Express Travel
American Related Services Connors,
Company, Inc.; James P. De (96-3498).
fendants-Appellees 96-3093,
Nos. 96-3498. Appeals,
United States Court of
Sixth Circuit.
Argued Jan. 1997. Jan. 1998.
Decided *6 briefed), Fregeau (argued D. and
Jason OH, Springs, Plaintiff-Appellant. for Yellow (argued James Patrick Connors and briefed), Columbus, OH, Defendants-Ap- for pellees. BOGGS, CONTIE, RYAN,
Before: Judges. Circuit BOGGS, J., ACB, Amex, opinion alleged Lewis delivered and James P. court, CONTIE, J., RYAN, joined. in which Connors had filed the state court action in 413-16), (pp. separate J. delivered retaliation having Dayton for Lewis filed the opinion. dissenting case. He claimed that this violated the
FDCPA, OCSPA, Equal and the Credit (“ECOA”). Opportunity Act Amex and ACB OPINION complaint moved to dismiss Lewis’s and Con- BOGGS, Judge. Circuit complaint nors moved to strike appeal granted two actions in this him. The district court The involved defendants’ out of C. Lewis’s credit rela- appeals judgments arose William motions. Lewis now tionship Express with American Travel Re- against him in both cases. We affirm. (“Amex”). Company, lated Services Inc. money a substantial sum of Lewis owes I charges
Amex for on his made Gold Card. stopped making payment, After he Amex dispute up Lewis does not that he ran (“ACB”) Services, hired ACB Business Inc. thousands of dollars in his Amex to collect on the debt. These events led to during Gold Card 1992.1 Amex hired ACB lawsuits, filing by of three two Lewis and to collect this debt. Prior commence- appeal one Amex. At issue in this are the efforts, ment of ACB’s collection Lewis had two suits filed Lewis. Because these suits negotiated with Amex over the debt and related, closely are we deal with both this upset became when the account was referred opinion. suit first was filed collection. Ohio, District of Divi- Southern Western (“the case”). Dayton sion at In this began February ACB’s collection efforts suit, alleged that ACB’s collection ef- 1, 1993, 1993. On March Lewis sent a letter Fair forts violated the Debt Collection Prac- ACB, requesting that ACB cease commu- (“FDCPA”) tices Act and the Ohio Consumer nications in accordance with 15 U.S.C. (“OCSPA”). jury Aet A Sales Practices trial appeal 1692c.2 At issue on this are two held, at the was conclusion of all the contacts ACB made after Lewis sent evidence, granted the court motion for ACB’s letter: a letter ACB sent to Lewis on judgment as a matter of law. 3, 1993, telephone placed June call *7 8,1994.3 by July ACB to Lewis on filed, Dayton After the ease been had Amex sued Lewis in court to state recover unpaid balance on the Gold Card. Lewis 3, A. The June 1993 letter
then filed suit in the District Southern Ohio, (“the 3, 1993, at Western Division Cincinnati On June ACB sent letter to case”). action, Cincinnati In this part: second Lewis. The letter states in relevant 3, 1993, 1. At the time June collection letter uses facts relevant to these claims to advance sent, $14,429.54. arguments appeal, briefly was Lewis owed Amex thatAt some of his on we set time, heavily same Lewis was also in debt to alleged forth those claims. Lewis that ACB vio- other debt collectors and creditors in the amount lated the FDCPA when it sent a collection letter $50,000. approximately 23, 1993, February which asked Lewis to call writing ACB but did not mention in the letter the notify 2. FDCPA The allows a consumer to a debt spelled on the reverse side that out the consum- writing collector that he "wishes the debt rights, including right er's to obtain verifica- collector to cease further with communication 1692g. § tion of the debt U.S.C. under 15 This 1692c(c). the consumer.” 15 U.S.C. This by claim was dismissed the district court because makes collection efforts more difficult for the by one-year it was barred statute of limita- However, debt collector. the Act re- does not proved damages tions and because Lewis had no quire a debt collector to cease all collection ef- proximately by alleged caused violation. 1692c(c)(l)-(3); forts. See 15 U.S.C. see also Lewis also claimed that ACB violated the FDCPA 398-400, infra. Holly neighbors when it tried to contact his holder, Phillips, supplemental regarding card 3. Lewis advanced several other claims of FDCPA claims, however, by violations. These are not at the debt. This claim was dismissed the dis- Nonetheless, appeal. being pleadings. issue on because Lewis trict court as outside the that “M. Hall” was name BEEN TRANS- dence showed HAS ACCOUNT YOUR regard- employees FINAL used ACB alert its MY FOR TO OFFICE FERRED ing the status of the account. evidence REVIEW. showed, however, specific repre- also CASES, OF I A PERCENTAGE IN to Lewis’s assigned had been ac- sentative ARRANGE- PAYMENT THAT FIND attempted ACB no further contact count. BEEN OF- MAY NOT HAVE MENTS letter, relating to this and after the letter AFFILIATED OF- BY OUR FERED sent, been returned ac- had ACB PROVIDE YOU IN ORDER TO FICE. It Lewis initi- count to Amex. was not until TO PAY AN OPPORTUNITY WITH Dayton in the case that the account ated suit DEBT, ONE PLEASE SELECT THIS was returned ACB.4 AR- PAYMENT THE OF FOLLOWING PAY- ENCLOSE RANGEMENTS AND 1Q9U 8, July telephone call B. The MENT, ME WITH A OR PROVIDE I CONTACT WHERE CAN NUMBER ACB, Amex returned the account When TERMS. TO DISCUSS YOU a new miscoded the account as refer- Amex Thus, ral, reopening. ap- rather than a ARRANGE- IMPORTANT THAT IT IS peared computer system in ACB’s as a new POS- BE MADE AS SOON AS MENTS miscoding, an account. Based on this initial SIBLE. Al- generated collection letter was ACB. QUESTIONS sent, RE- though IF YOU HAVE ANY the letter never initial was PLANS, call, lasting approximately THE PAYMENT one min- GARDING contact ute, ME July ME A CALL OR PROVIDE was made to Lewis on GIVE I A NUMBER WHERE CAN caught WITH the mistake was ACB. before YOUR CONVE- CONTACT YOU. FOR Schohan, FDCPA Janet one of ACB’s com- NIENCE, I CAN ARRANGE FOR YOU officers, pliance discovered ACB’s mistake VISA PAY YOUR USING TO ACCOUNT arriving after at work in Phoenix. She was MASTERCARD. AND/OR sent, stop being letter from but able M. HALL CONTACT: placed telephone already call been had PAYMENT SUPERVISOR because of the three hour time difference (800) 767-5971 Jersey between the Phoenix and New of- error, A AN ATTEMPT TO COLLECT fices.5 When Schohan learned THIS IS immediately OB- all collection ac- DEBT. ANY INFORMATION she terminated tivity FOR THAT and ACB took no further action on the TAINED WILL BE USED account. PURPOSE. MAY BE BALANCE YOUR ACCOUNT case, discovery During in the Lew- DUE PERIODICALLY INCREASED TO compel produce is moved “the ACCRUED IN- THE ADDITION OF Amex,” of its balance contract because TEREST OR OTHER CHARGES AS claimed that it collection controlled ACB’s *8 IN AGREEMENT PROVIDED YOUR with account.6 respect activities to his The
WITH YOUR CREDITOR. request, finding the court denied contract between and Amex had no Although the letter indicates Lewis ACB Hall,” person to the ACB’s contact “M. no such relevance issue of whether col- should Hall” FDCPA or at Nor the alias “M. lection efforts violated the the existed ACB. was person evi- assigned one there. The OCSPA.7 discovery only compel in accor- 6. Lewis moved to 4. The account was returned to ACB policy already and dance with a ACB Amex between of the because he had a balance contract pursuant to ACB to which accounts are returned portion possession. in his contract against disgruntled when a debtor files lawsuit necessary it so that ACB has the information to requested discovery of this 7. Lewis never docu- defend the suit. ment in the Cincinnati case. Jersey 5. The file had been sent to New office miscoding. because of the
Meanwhile, 14, 1994, granted on October cross-motion, before ACB’s eliminating thus case, all Dayton remaining allegations against trial Amex filed suit ACB. against County Lewis Franklin Common case, In the Cincinnati Mr. alleged (“the action”) Pleas Court state court to re- Amex, ACB, and Connors had used the unpaid cover the balance on the Gold Card. state court action to against retaliate him represented Amex is that case Con- because he had filed suit ACB. He nors, attorney who is also ACB’s trial in the claimed that when brought Amex the state case, Dayton it, attorney as well as the trial court Connors, and action as well as ACB and FDCPA, OCSPA, violated the defendant the Cincinnati ease. As a and the Equal (“ECOA”). Opportunity Credit court, Act suing result of Amex Lewis in state Amex and ACB moved to dismiss 27, Lewis’s Lewis filed the Cincinnati ease on March complaint and Connors moved to strike the shortly originally before the trial was complaint against him. parties Because the place Dayton scheduled to take in the ease. presented matters pleadings, outside the The two eases were consolidated at Lewis’s Connors’s motion was treated as one for request. He then tried to have venue of both summary judgment. hearing After argu- eases Cincinnati. Dayton transferred from ment, Magistrate Judge report Merz filed a eases, trial The court consolidated the but and regarding recommendation the various request declined change Lewis’s for of venue. motions. He recommended that Connors’s Dayton case therefore remained before motion for summary judgment granted be Magistrate Judge purposes, Merz for all ground that Connors was not a debt parties having agreed plenary magistrate collector as a matter of magistrate law. The judge jurisdiction in that pursuant ease to 28 judge also recommended that Lewis’s re- 636(e), U.S.C. and the Cincinnati ease re- maining claims be dismissed for failure to on Magistrate Judge mained Merz’s docket addition, state a claim. In he denied Lewis’s (since pretrial purposes only for Lewis had motions to strike and for a change in venue. specifically plenary magistrate declined Judge Spiegel adopted District magis- case). judge jurisdiction in that The district judge’s report trate and recommendations. attempt court cited Lewis’s at shop- forum appeal, On Lewis raises numerous claims ping and the hearing district’s local rule for case, of error. In Dayton argues consolidated cases in the venue in which the (1) the district granting court erred in ACB’s first case is refusing filed as reasons for judgment motion for as a matter of law on change in venue. claims; (2) denying FDCPA discovery agreement Lewis also of an bring made motion to between Amex new (3) ACB; granting ACB’s Dayton just claims in the motion for case before the judgment as a matter of law on Lewis’s supposed trial was to start. He contended OCSPA claims. In the Cincinnati case he that the new necessary claims were because (1) claims that the district court erred they arose after Amex had returned his ac- (2) claim; dismissing his granting ECOA July count to ACB on 1994. The district summary judgment Connors’s motion for granted court Lewis’s motion to amend the (3) solely affidavit; based on his finding that complaint Dayton and vacated the case trial illegally interpose did not itself between 8,May date set sought 1995. ACB re- (4) Amex; finding Connors and that Amex is order, consideration but its motion not a debt collector as defined was denied. FDCPA; dismissing prejudice Lew- juryA trial in the claims; case was held on is’s OCSPA denying his mo- *9 10, 1996, January 9 Magistrate and before declining tion to reconsider its decision to Judge Merz. At the conclusion of Lewis’s transfer venue back to Cincinnati. We ad- proof, granted part presented. the court in dress the issues in the and order denied part ACB’s judg- Fed.R.Civ.P. 50 motion for II a ment as matter of law. At the conclusion evidence, of all the the court denied Lewis’s Lewis raises three claims of error judgment motion for as a matter of granting law and district court’s order ACB’s motion 1692c(c) § provides “[i]f that as a of law on Lewis’s 15 U.S.C. judgment matter for (1) in writing consumer notifies a debt collector in the case: that claims FDCPA the consumer ... wishes a debt collector that was a further collection letter the June 3rd further communication with the to cease con- of 15 U.S.C. violation communication sumer, not communi- the debt collector shall 1692c(c); collection that the June 3rd § respect with cate further the consumer with pseudonym “M. Hall” was letter’s use however, statute, permits to such debt.” 1692e(10); § and of 15 a violation U.S.C. to the collector further communication make prove to fide error failed the bona that ACB consumer three limited cir- with the under July tele- respect 8th with defense cumstances. One of those circumstances al- phone call. notify the consum- lows the debt collector “to may a matter that the debt collector or creditor judgment Motions for as er specified are invoke remedies which ordinari- are reviewed novo. We do not of law de evidence, credibility ly invoked such debt collector credi- weigh the evaluate 1692c(e)(2). § witnesses, tor.” 15 U.S.C. We believe judgment or substitute our own of that June 3rd letter fits within Rather, jury. court that of the must 1692c(c)(2). § most favorable light the evidence view party non-moving party give to the Congress FDCPA enacted the all See of reasonable inferences. the benefit practices “eliminate abusive debt collection City Rapids, 23 v. Grand F.3d O’Brien of collectors, by debt to insure that those debt (6th Cir.1994). 990, affirm We must using collectors who refrain from abusive if we that “there district court are convinced practices competitive not debt collection are proof complete pleading or is a absence of ly disadvantaged, promote and to consistent cause an or issues material to the issue protect State action consumers where there are no controverted action or 1692(e). § collection 15 U.S.C. abuses.” upon fact reasonable men issues of which Congress intended the Act to eliminate un Ibid, (internal quotation omit could differ.” practices, fair debt-collection such late- ted). calls, telephone representations, night false embarrassing communications. The A. 3rd letter as a reme- The June collection Report justified legisla the need for Senate
dy by stating: tion forms, many abuse Collection takes includ- argues first the district profane ing language, obscene or threats of holding letter to court erred the June 3rd violence, telephone at calls unreasonable permissible communication under 15 be hours, misrepresentation of a consumer’s 1692c(c)(2), § though sent after U.S.C. even per- legal rights, disclosing a consumer’s desist, a notice his demand because is friends, neighbors, sonal affairs an ordinarily in specified potential remedies employer, obtaining information about a He argues voked ACB. Federal imper- through pretense, consumer false general Trade Commission’s statement sonating public attorneys, officials and FDCPA, policy on the which indicates process. simulating legal response collector’s to a ‘cease commu “debt 382, Rep. Cong., No. 1st Sen. 95th Sess. may notice from the consumer not nication’ (1977), reprinted in 1977 U.S.C.C.A.N. for payment, include a demand but is limited 1696. statutory exceptions,” 53 to the three Fed. (Dec. 13, 1988), disposi Reg. Congress appears to have While intended prac- language in act to collection tive because the letter indicates eliminate abusive 1692c(c) tices, language payment that it is a demand for couched as a is broader: remedy. argument only may states collector While Lewis’s not it not that a debt merit, wholly agree payment following without cannot make a we demand for 1692c(c) letter, interpretation prohib- his because such cease-communication but also interpretation contrary kind other than would be its communication of falling exceptions. purpose of the Act. within the three those
399 Thus, glance, at first ACB’s June 3rd letter debt collector any specific invoke type of appear Rather, does fall within the literal remedy. it allows the debt collector 1692e(e)(2) § remedy. terms of as a notice of notify the consumer of remedies it normal- letter, however, A close look at the shows ly invokes. The record in clearly this case type that the letter can be construed as a just demonstrates that ACB did that.8 normally settlement offer and that ACB in- Additionally, unpersuaded we are remedy. a vokes such We believe that such argument Lewis’s the Federal Trade a construction is warranted. 1692c(e) § Commission’s statement on is dis- interpretation We believe positive. Initially note prece we the limited 1692e(e)(2), prohibit which would collectors pronouncements dential value of FTC re sending from noneoercive settlement offers garding light in FDCPA of the restricted remedy, “plainly as a at variance with the scope power of its under the Act. FTC advi policy legislation of the as a whole.” United sory opinions regarding the FDCPA are enti Ass’ns, Trucking States v. American 310 only tled to deference to the extent that their 534, 543, 1059, 1064, 60 U.S. S.Ct. 84 L.Ed. logic persuasive. Pressley Capital See v. (1940). To hold that a debt collector Serv., 922, Credit & Collection 760 F.2d payment options part cannot offer as of an (9th Cir.1985); n. 2& Citicorp Fox v. Credit debt, outstanding possi- effort to resolve an Servs., Inc., (9th 1507, 15 F.3d 1513 n. 4 bly litigation, without would force honest Cir.1994); Abramson, Wolpoff Dutton v. & seeking peaceful debt collectors a resolution (3d Cir.1993). F.3d important, More of the debt to file in suit order to advance however, nothing we find policy the FTC’s efforts to something resolve the that is debt — statement that is posi inconsistent with our clearly at language pur- odds FDCPA, simply tion. The June 3rd letter pose gave Nothing did its opportunity pay “an though June 3rd letter can be construed debt” [the] abu- practice. payment plans. sive collection It various simply offered to We therefore do not litigation. settle Lewis’s debt without it impermissible Allow- view as an pay demand for ing debt collectors to send such a letter is not ment. only consistent with may the Act but also We note that the mere fact that the result in resolution of the debt without re- letter states at the bottom that it “is an sorting litigation, saving parties in- all attempt to collect a debt” does not transform delay litiga-
volved the needless cost and
pay
the letter into an unlawful demand for
exemplified by
very
tion as is
ease. And
contrary,
ment. On the
a
such
statement is
certainly
protec-
it is
less coercive and more
required by the FDCPA. See 15 U.S.C.
tive of the interests of the debtor. More-
1692e(ll) (1987) (“the
failure to disclose
over, while ACB’s letter could have more
clearly in all communications made to collect
clearly expressed its character as a notice of
a
or to
obtain information about a con
normally
remedy
a
invoked
had it included
sumer,
attempting
that the debt collector is
typically
remedies,
other
invoked
such as
lawsuit,
filing
to collect a debt and that
nothing
information
the statute re-
quires
give
purpose”
that the letter
all
obtained will be used for that
is a
notice of
of the
FDCPA)
added).9
normally
(emphasis
remedies
invoked
debt collec- violation
tors,
require
and the
does not
statute
that a Given the fervor with which Lewis seeks to
that,
purpose
8. Our conclusion is bolstered
the fact
of statute as inferred from the text of the
legitimately
whole).
since debt collector
can tell debt-
statute as a
.a
ordinarily
or that it
sues or recommends suit as a
remedy,
certainly
purpose
it is
within the
1692e(l 1)
9. Section
was amended in 1996.
It
Act
to allow debt collector to make a truthful
provides
subsequent
now
communica-
payment plans
statement that various
are avail-
tions with the consumer the debt collector need
Trucking
able.
United States v. American
Cf.
only state that the communication
is from debt
Ass’ns,
534, 543-44,
310 U.S.
60 S.Ct.
amendment, however,
collector. The
is not rele-
1063-64,
(1940) (courts' power
protect
rights
his
under
false,
misleading representation
deceptive,
this commu-
or
tainly
have called foul had
would
necessary lan-
included this
the collection of
nication not
means in connection with
example,
recently
a
we
decided
guage.
§
For
1692e. Section
any
15 U.S.C.
debt.”
represented
also
plaintiff,
subsections,
a
case which
broken into sixteen
1692e is
attorney, appealed
an award of
from
prohib
provide a non-exhaustive list
which
case,
plaintiff
In that
the
attorney fees.
1692e(10),at issue
practices. Subsection
ited
by a collection
that a letter sent
suggested
case,
use
specifically prohibits “[t]he
in this
that
language
include
failed to
agency that
deceptive
representation or
false
attempting
collect a
is
the “debt collector
attempt
to collect
means to collect
any information obtained
...
[and that]
debt
concerning a
to obtain information
debt or
a
purpose” gave
that
rise to
be used for
will
determining
a
In
whether
debt
consumer.”
1692e(ll)
Lee v. Thomas &
violation. See
practice
deceptive within the
collector’s
is
(6th Cir.1997).
Thomas,
tended to resume
Sanders,
340, 351,
98 S.Ct.
Inc. v.
U.S.
in Lewis’s
Inherent
tion of the FDCPA.
(1978).
2389-90,
How-
IV dently, provide did not additional assignment final error evidence to sustain simply those claims. He is that the ease district court erred relied on the asserted violations of the finding that ACB’s conduct did not violate support FDCPA to his OCSPA claims. Giv- 1345.02(A) §§ Ohio Rev.Code en that correctly the district court deter- *14 1345.03(A).11 argues He that the district mined that no FDCPA violation had oc- court in granting curred, erred ACB’s motion for we believe that the district court’s judgment as a matter of law on his OCSPA opinion sufficiently addresses Lewis’s OCS- (1) claims that the district court failed to PA claims. specific findings forth
set
of fact and conclu-
law;
sions of
the district court erred in
provide
B. Failure to
an opportunity for
denying
opportunity
present
him the
to
evi-
present
Lewis
damages
to
evidence of
damages concerning
of
dence
his OCSPA
concerning the OCSPA violations
violations; and
the district court con-
application
prior
strued the
of
to
decisions
Next,
argues
Lewis
that the district
narrowly.
his OCSPA violations too
Once
failing
provide
court erred in
to
him the
again,
argu-
we find no merit
in Lewis’s
opportunity
present
concerning
evidence
ments.
damages
his actual
regarding his claim that
letter,
February
the
23rd collection
which
A. Failure
the district court to set
of
forth
writing
failed to inform the reader of the
specific findings
and conclusions
offact
side,
attempts
the reverse
to contact a
lawof
cardholder,
supplemental
phone
and the
calls
correctly
debt,
neighbors regarding
While Lewis
notes that the
his
violated the
opinion
court’s
regarding
argues
his
claims
damage
OCSPA
OCSPA. He
evi
go through
alleged
does not
each
“likely
violation
dence was
excluded”
because
confu
point by point,
regarding
we believe that
the court’s
sion
the different statute of limita
opinion provides
findings
sufficient
of fact
tions for the OCSPA and the FDCPA.12 He
support
and conclusions of law to
its decision.
also contends that
the district court “com
fully
pounded
The district court
by finding
detailed the actions
the error
at
[his]
alleged
tempts
prove
damages
to have violated the FDCPA and the
actual
...
failed
1345.03(A)
points
by
provides
10.
supplier
statement made Mark
Section
"[n]o
request
practice
Nakon in which he said that the
for the
shall commit an unconscionable act or
file to be returned to ACB after Lewis had
filed
connection with a consumer
transaction.
practice by
lawsuit was the result of the collection contract
Such an unconscionable act or
supplier
between Amex and ACB. The second statement
violates this section whether it occurs
before,
appears
by
during,
abe
statement made
Schohan that
after the
transaction." Al-
though
expressly
contract controls ACB’s collection activities.
the OCSPA does not
address
practices,
ap-
These statements do not bear on whether the
debt collection
Ohio courts have
July
phone
plied
practices.
June
Liggins
3rd letter or the
8th
call violated
the OCSPA to such
See
Co.,
81.,
May
the FDCPAor OCSPA.
v.
44 Ohio Mise.
F.Supp. 893 of a creditor’s look at the effects either direct infer plaint [should] ... must contain material creditor’s motives allegations respecting practices all the as well as the ential ... recovery in transactions [and] under some conduct individual elements to sustain Ibid, (quoting Car legal theory.” judicial Car constructions of anti-discrimination viable Co., 1101, riers, 745 F.2d field ... are legislation employment v. Ford Motor in the Inc. (7th denied, Cir.1984), guides application 470 U.S. in cert. to serve as 1106 intended (1985)). 1758, Act, especially respect L.Ed.2d 821 to the of th[e] S.Ct. proof.” Id. at 406.
allocations of burdens of against Amex claim A. Lewis’s ECOA history suggests re Because the court erred argues that the district using viewing ECOA claims discrimination had not finding that Amex discriminated burden allocation the same framework filed the state suit to against him when it cases, adapt the system found in Title we VII debt, of 15 U.S.C. in violation recover on the used in retalia allocation framework burden 1691(a)(3). He claims that ACB had re- to Lewis’s employment tion-based claims from Amex quested the file back Thus, claim. in order for Lewis ECOA filing the state court “express purpose of retaliation, prima case of he make out facie Lewis,” thereby discrimi- against action Mr. (1) allege sufficient to show that must facts Appellant’s Brief at 15. nating against him. activity; statutorily protected engaged he in a claims, fact,” against “the lawsuit “In action; credit suffered an adverse the first time Defendant ACB had was [him] exists between the two. a causal connection attorney to file suit on behalf of ever hired Dep’t Health See Johnson v. United States unper- at 16. We are Amex Ohio.” Id. (6th Servs., F.3d Cir. and Human argument. suaded 1994). simply to make such Lewis is unable showing. prohibits The ECOA discrimination unlaw of credit: “It shall be the extension action” as: The ECOA defines “adverse ful for creditor to discriminate credit, change a denial or revocation any aspect respect to of a applicant, with arrange- existing the terms of an credit applicant ... because the credit transaction ment, grant or a refusal to credit sub- any right good has in faith exercised under substantially stantially amount or on 1691(a)(3). chapter.” 15 U.S.C. requested. the terms Such term does history Act indicates that legislative credit include a refusal extend additional *17 1691(a)(3) retaliatory § was “intended to bar existing arrangement under an credit against appli or terminations credit denials applicant delinquent where the or other- any rights their under cants who exercise default, wise in or where such additional part Act of the Consumer Credit Protection previously credit would exceed a estab- qualification recog ... ‘good [also] faith’ limit. lished credit nizes[, however,] may applicants that some 1691(d)(6). § It not in- 15 U.S.C. also does disputes engage in or nuisance frivolous “[a]ny relating action or forbearance clude to willingness which reflect on their honor do with inac- to an account taken in connection Equal Opportunity obligations.” their Credit tivity, default, delinquency or to that ac- 94-239, No. Act Amendments of Pub.L. 202.2(c)(2)(ii)(emphasis § count.” C.F.R. 403, 407. The Act was 1976 U.S.C.C.A.N. added). only prohibit determina intended to credit claim Although to Lewis filed an FDCPA tions based on “characteristics unrelated case, against Dayton he is unable never intended to ACB the creditworthiness.” It was action a ration to show that he suffered an adverse right eliminate a to make “creditor’s “any not cover ac- applicant’s credit worthi because the ECOA does al decision about an Thus, relating taken in con- tion ... to an account ness.” Id. at 404-05. an ECOA viola with_default[ delinquency.” or by simply alleging ] tion nection cannot be shown 202.2(e)(2)(ii). complaint § Lewis’s attempting collect on the 12 C.F.R. creditor is to taking a Rather, nothing than a creditor determining debt. the exis- shows more “[i]n edly by Mr. Lewis to necessary to recover thousands of dol- owed Defendant Amex action by undisputed [ACB the consumer was ‘continued’ and Connors].... lars in debt Thus, certainly Amex is entitled Defendants ACB and Connors are refuses to honor. circumstance, they agents are such a creditors of De- to sue Lewis under attempt argue to otherwise amounts fendant Amex who ‘continued’ the credit Lewis’s transaction, transferees, legal assignees, than conclusions or or nothing to more bare subrogees factual inferences.13 of Amex’ credit transaction with and unwarranted Appellant’s Mr. Lewis.” Brief at 17-18. complaint also fails to show caus- Further, argues that a al connection between the suit and who, person “also includes a [creditor him in His against Amex’s suit state court. business, ordinary regularly course of retaliatory attempts showing at motive on applicants prospective applicants refers or again noth- part of Amex once amount to creditors, or selects or offers to select factual infer- ing more than unwarranted request may creditors to whom for credit insuffi- legal ences and conclusions that are allegedly be made.” The debt owed cient to state a claim of retaliation. To allow Mr. Lewis to Defendant Amex was re- a claim to be stated time a consumer ferred defendants ACB and Connors or makes an unwarranted factual inference Defendant Amex for consideration of fur- legal conclusion of retaliation re- bare fact, ther In credit. Defendants ACB and seeking sponse legal a creditor’s action payment arrangements Connors solicited undisputed of an debt would be to resolution regarding alleged- with Mr. the debt part create an incentive on the of consumer Lewis, ly owed Mr. which constitutes a against claim creditors file ECOA credit transaction under the ECOA. pay unwilling time the is unable or debtor certainly on the debt. The ECOA was never Id. at 18.
intended to act as a shield for consumers Act, Under the the term “creditor” is de- refusing pay their debts. extends, “any person regularly fined as who renews, credit; any person or continues who finding B. court that ACB and The district extension, regularly arranges for the renew- ” are not “creditors Connors al, credit; any assignee or continuation of argues original participates of an who in the Next Lewis that the district creditor extend, renew, by finding decision to or continue cred- court erred that ACB and Con 1691a(e). meaning it.” 15 The term also are not “creditors” within the U.S.C. nors transferee, by simply alleging assignee, “a creditor’s of the Act. He claims that includes participates in they subrogee “creditors” he has met his who the decision are Further, he claims that “ACB and whether or not to extend credit.” C.F.R. burden. purposes §§ alleg- And for 202.414 Connors are creditors because 202.2©. provides part: complaint in relevant 13. Lewis’s 14, 1994, 24. Defendant ACB filed the state court law- 17. On October Defendant Amex having purportedly suit in for Mr. Lewis filed filed in the Court of Common retaliation Ohio, Pleas, County, Franklin case number 94 lawsuit Defendant this federal court ACB, *18 against 1691(a)(3), 10-7274 Mr. Lewis. The state CVH violating ECOA section alleges Mr. owes a debt court case Lewis 1692e(5), FDCPA section and OCSPA sections to Defendant Amex. 1345.02-1345.03. directly file 18. Defendant Amex did not Rather, state court lawsuit. Defendant ACB Amex knew that the state court 26. Defendant filed the court lawsuit on behalf of Defen- state against made in retalia- lawsuit Mr. Lewis was dant Amex. Defendant ACB filed the state Mr. Lewis’ federal court lawsuit and tion for pursuant assignment con- court lawsuit to an 1691(a)(3). thereby violated ECOAsection by agreement a between De- trolled collection ACB and Defendant Amex. fendant provision provides that creditor "[a] 14. That Defendant Connors filed the state court 19. against applicant on a shall not discriminate an attorney purportedly Defen- lawsuit as the aspect prohibited regarding any a basis of credit dant Amex. transaction.” attorney 20. Defendant Connors also was lawsuit for Defendant ACB in the federal court brought by Mr. Lewis. and, above, 202.5(a)15 per- as discussed Lewis has also includes a ECOA “the term business, Amex, who, ordinary against of to an ECOA claim in the course failed state son ap- applicants prospective agent or any against claim ACB as an regularly refers so ECOA creditors, transferee, or offers to plicants subrogee” or selects of “assignee, to or or' requests for credit to whom select creditors Amex must also fail. Ibid.
may be made.” clearly not a “creditor” within is Connors VI face, its Lewis’s meaning of the Act. On Next, argues Lewis that the district court nothing more than a bare complaint contains dismissing his FDCPA claims erred attempt to show that in an legal conclusion ACB, Amex, ar- and Connors. He extended, renewed, or regularly Connors court, gues allow- “[without district arranged for regularly or continued credit forward, any discovery go ... makes ing to renewal, extension, or continuation disjointed legal findings three factual and provide complaint also does not credit.16 The (1) concerning the FDCPA: defendant Con- assignee an show how Connors is facts to collector, a Defendant nors is not debt best, appears suggest Lewis to Amex. At interpose ACB did not itself defen- between offered to settle that because Connors Amex, constituting dants Connors and case, extended an offer he has some sense law, practice unauthorized Defen- certainly This to Lewis.17 is of credit Appel- Amex is not a debt collector.” dant a enough to make someone creditor under Again, no lant’s Brief at 19-20. we find Otherwise, attorney a the act. an would be reversible error. anytime the attor- creditor under the ECOA ney to settle a ease. offered A collector within the as debt Connors not a is also “creditor” ACB meaning the FDCPA meaning Again, Lewis within the act. First, argues that the district provide anything more than has failed to in granting court erred Connors’s motion for regu that ACB legal bare conclusion to show summary judgment, holding that Connors extends, renews, larly credit or or continues argues was not a debt collector. Lewis any way in the participates that ACB simply the district court relied on Connors’s Rather, the record decision extend credit. affidavit and that he should have been al simply attempting to shows that ACB was discovery pursuant his lowed continue on a that resulted from Amex’s collect 56(f) discovery Rule motion such Additionally, because even decision to extend credit. act, would have shown that Connors is a debt were ACB a “creditor” under by This any collector as defined the FDCPA18 claim would fail. He has failed state argument is independently claim that violated the without merit. provision provides for Amex to "[a]
15. That
creditor
settlement was
reconsider
statement,
$7,500
any
immediately
or written
shall not make
advertising
oral
"as a card holder
after the
otherwise,
applicants
pro-
or
paid.”
accepted
This settlement offer was never
spective
discourage
applicants
that would
by defendants.
prohibited
person
basis a reasonable
from mak-
ing
pursuing
application."
18.A debt collector is defined as:
simply provides
complaint
16. Lewis’s
that “De-
any person
any instrumentality of
who uses
is a 'debt collector’ as defined
fendant Connors
interstate commerce or the mails in
busi-
1692a(6),
'supplier'
de-
FDCPA section
principal purpose
which
ness the
1345.01(C),
fined OCSPAsection
and a 'credi-
debts,
regularly
collection of
or who
col-
1691a(e).”
Joint
tor' as defined ECOAsection
collect, directly
attempts
lects or
or indirect-
¶19,
Appendix
10.
at
ly, debts owed or due
to be owed or
or asserted
*19
due another....
17. Lewis claims that an exhibit to his memoran-
1692a(6).
Supreme
15 U.S.C.
The
Court has
opposition
dum
to dis-
in
to defendants’ motion
applies
lawyers
held that the FDCPA
to
who
complaint
miss his
shows that defendants offered
"regularly” try
payment
to obtain
of consumer
give
to
new credit
him "consideration for a
through legal proceedings.
v. Jen-
debts
kins,
appears
Heintz
card.”
letter which
to be
to
Lewis
291, 296-98,
1489, 1492,
U.S.
115
referring
attorney
514
S.Ct.
sent
his own
is
letter
(1995).
offering
L.Ed.2d
to settle the case. One of the terms of
395
(directing
summary judgment
appro-
U.S.C.
1692i
where a debt collec-
for
A motion
consumer).
may bring
against
an action
tor
pleadings, depositions, answers
priate “if the
file,
interrogatories, and admissions
to
that,
proves
Connors’s affidavit
al
affidavits,
any,
if
together with the
show
though he has been involved
cases where
as to
material
genuine
is no
issue
there
money damages
alleged
and
debts are dis
party is
to
moving
that the
entitled
fact and
brought any
puted, he has never
action ex
Emmons v.
judgment as a matter of law.”
clusively
of a
on behalf
creditor client with
(6th
McLaughlin, 874 F.2d
Cir.
debt,
purpose
collecting
a consumer
1989).
his initial
the movant has met
Once
practice
that he has never had a
which con
demonstrating the absence of
burden of
sisted of debt collection on behalf of credi
fact,
nonmoving
of material
genuine issue
tors,
overwhelming portion
party
specific
“must set forth
facts
then
practice
attorney.
his
has been as a defense
genuine issue for
showing that
there is a
affidavit,
from
This
without evidence
Lewis
56(e).
nonmoving
If the
trial.” Fed.R.Civ.P.
creating
regarding
an issue of material fact
showing,
such a
party is unable to make
practice,
Connors’s
establishes that he is not
Em-
summary judgment
appropriate.
a “debt collector” under
FDCPA because
mons,
motion will enable
to rebut the motion
discovery
that “[defendants
asserts
ditional
Emmons,
summary judgment.
874 F.2d
witnesses are
exclusive control”
and their
at 356.
56(f)
evidence,
Rule
motion
nothing
supporting
provide
affidavit
Lewis’s claims
Connors were
support
allegations to
by filing the state more than bare
he violated the FDCPA
(the
Emmons,
411 collecting lector’ does not include a creditor support of his claim by Lewis cited cases long employee acting as the re- his own debts so practice of law ACB of unauthorized of the does not indicate respon- firm on behalf creditor minimum that the be quire at a employee person. works for a third attorney’s that the payment of the fees.19 sible not be deemed a ‘debt The creditor will long employee acts ‘in the debt collector within the collector’ so as the Amex as a C. by informing the name of the creditor’ debtor meaning the FDCPA of collecting employee as an that she is the debt argues also the district Lewis creditor.”). Amex never at- of the Because that Amex reasoning” found court “without tempted to collect the debt under an as- argues a debt collector. He could not be debt, name in order to collect the it sumed the FDCPA “for Amex is liable under not fall within the definition of a “debt does agents of its of which the collection actions the Act. collector” under approves”: is aware and dispute Moreover, is no that Defendant There even were Amex a debt back from requested collector, Mr. Lewis’ account not violate the its actions did express purpose Amex for the complaint nothing Defendant does FDCPA. Lewis’s filing the state court lawsuit on behalf legal conclusions and more than assert bare Amex. A fair inference must be unsupported Defendant to show that factual inferences that, when Defendant ACB commu- made in retaliation for Amex’s actions were done Amex, Defendant Defendant nicated with case. And he having filed the request, reason for the nothing ACB stated the show that alleged has that would “false, on notice of De- placing decep Defendant Amex were somehow Amex’s actions tive, actions. ACB’s intended Since misleading” required fendant or the account to Defendant Amex returned All Amex has done is either sue FDCPAl. ACB, inference legitimate Defendant the reasonable Lewis to collect on a debt ap- that Defendant Amex legitimate must be made hire ACB to collect on a debt. retaliatory proved Defendant ACB’s Congress has outlawed neither.
lawsuit. VII omitted). (citations at 27-28 Appellant’s Brief Next, argues that the district assertion, is not Contrary to Lewis’s Amex summarily dismissing his court erred purposes FDCPA. collector for of the no argues claims. He that he had OCSPA and the Although it uses interstate commerce of his opportunity to the substance address debts, “principal purpose” collect its mails to so required was not to do OCSPA claims and collection of debts.” 15 U.S.C. is not “the pleading requirements of the fed under the 1692a(6). Rather, primarily in the Amex is violation eral rules and credit, is not extending which business More is a violation of the OCSPA. FDCPA entity into a debt collector enough to turn over, has because the OCSPA he claims error Citicorp Act. See Meads v. Credit under the independent “its own reach”: (S.D.Ga. Inc., Servs., F.Supp. 333 case, retaliatory 1988) (“actual law- In this Defendants’ extenders of creditors—the an unfair or found to be assignees—generally are suit could be or bona fide credit practice under state act or ... the credi- unconscionable subject [unless] to the Act Indeed, practice filing of law- under an law. attempts tor to collect the debt county than a consumer’s name, in a other if was as- suits the creditor assumed violate already found to OCSPA. specific has been after default for the signed the debt supplier— collection”); Connors is Kempf v. Fa- Since Defendant purpose of pursuant Co., if debt collector F.Supp. [a] even he is not Barr mous (E.D.Mo.1988) (“The Defendants since col- to the FDCPA—-and definition of ‘debt responsible authorized for and and not ACB was was dismissed for failure to 19. Because this case Furthermore, claim, filing court suit. of the state we not address the affidavits of state a do way Kane, they is in no associat- employee. that Connors an Amex indicate Connors or either affidavits, however, case. ed ACB outside of this that Amex make clear These VIII suppliers are and vicari- Amex and ACB *22 agents, actions of their ously liable for the Finally, argues that the dis unfair, applies Defendants’ the OCSPA it motion to trict court erred when denied his deceptive, and unconscionable collection previous reject order reconsider the court’s activities. argues ing change a of venue. He omitted). (citations Appellant’s at 30 Brief trying separately, the case consolida in this claim of error either. We find no merit only tion of the cases became one of name having rests on Amex’s this claim Because any com and “nullified of the consideration] Columbus, key in suit in state court filed argues issues of law and fact.” He mon finding liability under OCSPA is whether given his choice of forum should have been “supplier” meaning of Amex is a within the thus, great weight, and he should have been suppli- simply Amex is not a and OCSPA change allowed to the venue back to Cincin meaning the Act. While the er within the of argument again nati. is without in “supplier”20 term the OCSPA broader merit. collector” in the than the term “debt
FDCPA,
specifically excludes “fi-
the OCSPA
change
A district court’s denial of
intangi-
nancial institutions”
“dealers in
and
venue is reviewed for abuse of discretion.
1345.01(A).
§
bles.”
At a
Ohio Rev.Code
Philip Carey Mfg.
Taylor,
See
v.
286 F.2d
minimum,
a
(6th
Amex fits within the definition of
denied,
782,
Cir.),
948,
784
cert.
366 U.S.
money
as it lends
when
(1961).
“financial institution”
1903,
81
6
1242
S.Ct.
L.Ed.2d
it
Ohio
extends
See
Rev.Code
credit.
1404(a)provides
§
28 U.S.C.
“[f]or
5725.01(A).
witnesses,
parties
of the
in
convenience
dismissal of OCSPA claims
justice,
may
the interest of
a district court
proper
were
ACB and Connors
any
transfer
civil
action
other district
well. Lewis has failed to state a claim with
might
or division where it
have been
specificity
indepen
sufficient
to show ACB’s
brought.”
may
aAnd
ease
be consolidated
filing of
dent involvement in the
the state
involving
question
actions
a common
“[w]hen
relationship
agency
court lawsuit or the
be
pending
law or fact are
before the court.”
respect
tween ACB
Connors with
to that
42(a).
consolidating
Fed.R.Civ.P.
When
a
stated,
previously
suit. As
the trial court
case,
joint
“may
a district court
order a
accept
factual
need
as true unwarranted
hearing or trial of
or all the matters in
filed the law
inferences. And while Connors
actions; may
in
it
all
issue
order
attorney, nothing alleged sug
suit as Amex’s
consolidated;
may
actions
such
make
gests
regularly
that Connors
files collection
concerning proceedings
orders
therein as
jurisdiction
in
suits as a matter of choice
may
unnecessary
tend to avoid
costs or de-
other than where the consumer resides or
lay.” Ibid.
signed
question.
in
the contract
See Cele-
Research,
Inc.,
brezze v. United
19 Ohio
Cases consolidated under Rule
(1984) (it
49,
42(a), however,
App.3d
separate identity.
482
1260
their
N.E.2d
was
retain
Co.,
deceptive
Aerojet
unfair or
practice
consumer sales
Patton v.
Ordnance
765 F.2d
(6th Cir.1985).
604,
“supplier”
although
in violation of
for a
state law
And
“con
regularly
permitted
file
as a
collection suits
matter
as a matter of conve
solidation
administration,
jurisdiction
economy
choice
other than where
nience and
[it]
cause,
signed
merge
single
consumer
or
contract in
does not
the suits into
resided
question). Key
finding
change
rights
parties,
to a
liabili
of the
or make
OCSPA
ty in
“suppli
parties
parties
Celebrezzewas the fact that the
are
in one
those who
suit
Co.,
ers” in
regularly
Ry.
that case
sued
another.”
Johnson v.
consumers
Manhattan
advantage
distant forum in order to take
of 289
about of the fact, the the provisions As a matter of IX painfully, might some think statute are so reasons, the foregoing For the district clear, im- annoyingly, nitpickingly, even dismissing orders Lewis’s claims court’s pose unambiguous upon even such burdens Dayton the case defendants both collectors, that it is somewhat ethical debt ease AFFIRMED. and Cincinnati are majority opinion the understandable interpretation would and construc- resort RYAN, dissenting. Judge, Circuit of the effects of the tion soften some harsh plain of the language the Fair I believe statute. (FDCPA), 15 Collection Practices Act Debt seemingly benign This chronicles case 1692-1692o, requires us reverse U.S.C. appar- collection efforts an ethical judgment of court. I also the the district ently reputable company at an directed misapplied the stan- think the district court infuriating unappealing and even deadbeat deciding under motions Fed. dards intend Certainly, Congress did not debtor. 12(b)(6) Therefore, I must and 56. R.Civ.P. proscribe legitimate collection of respectfully dissent. debt, undisputed it is but our business said, Congress not what determine what I. harsh, If this probably intended. statute is The Case inflexible, hypertechnieal, unforgiving, and collectors, and unfairly to debt FDCPA, burdensome finding In no violation of prohibited sweeps if it into the ambit of its legislative opinion heavily on majority relies practices acts of the virtuous and history and other devices that are decisional alike, legisla- problem one for employed legislative vicious properly when a enact- correction, judicial “interpretation.” obscure, ambiguous, tive vague, ment is inher- majority opinion acknowledges The the letter was indeed another “communica- sweeping language debt,” the broad and tion!] made to collect a rather than effectively forbids communica- FDCPA types one of the except- three of notifications by a to a tions collector debtor the after- ed from the bar of the statute section letter, 1692c(c)(l)-(3). math of debtor’s cease and desist subject exceptions. to three narrow puzzling explanation In addition to its exceptions are that three the debt collector point, majority opinion also mistak- may: enly concludes that ACB’s letter “can be (1) ... advise the consumer that type construed of settlement offer” and being debt collector’s further efforts are can be read as a notification to “the consum- terminated; er!, 1692e(c)(2),] under section that the debt notify ... the consumer that may collector or specified creditor invoke may speci- collector or creditor invoke ordinarily remedies which are invoked ordinarily fied remedies which are invoked such debt collector or creditor.” That “con- *24 creditor; by such debt collector or or warranted,” majority opinion struction is the applicable, notify where ... the con- concludes, despite that the text of the letter sumer that the debt collector or creditor never uses the term “remedy,” explicitly de- specified remedy. intends to invoke a clares that the letter AN “IS ATTEMPT TO 1692c(c)(l)-(3). § 15 U.S.C. DEBT,” COLLECT A and offers “AN OP- PORTUNITY TO PAY DEBT” THIS majority opinion acknowledges The that through “ONE THE OF FOLLOWING the 3 June collection letter ACB sent to PAYMENT ARRANGEMENTS.” literally Lewis does not fall within one of and, fact, exceptions the three as a matter of 1692c(c)(2) plain language The of section explicitly states “THIS IS AN ATTEMPT permits a notify debt collector to a consumer But, according TO A DEBT.” COLLECT to action may the debt collector unilateral majority the opinion, plain unambig- and consumer, suit, take filing such as uous language interpreted “can not be as a issuing prejudgment garnishment, a or in- payment” demand for because the statement voking such other “remedies” as are “ordi- in the letter that “THIS IS AN ATTEMPT 1692c(c)(2). narily § invoked.” 15 U.S.C. A TO COLLECT A DEBT” was in included declaring letter that “THIS IS AN AT- merely comply letter with 15 U.S.C. TEMPT TO A COLLECT DEBT” and offer- 1692e(ll), § amended, which has since been ing payment plans so, doing plainly for is and part and which read relevant that “the obviously not a notifying letter the debtor clearly failure to disclose in all communica- that may specified the “creditor invoke reme- tions ... that the debt attempting collector is added). were, (emphasis dies.” Id. If it to collect a debt and information collector, despite then a debt a receiving obtained will purpose” be used for that is a debtor, cease and desist notice from the violation of the But FDCPA. subsection 11 never be contacting would barred from a reads: notify consumer to him payment or her that Except provided as otherwise for com- “remedy” of the debt would problem. acquire munications to location information Witness Mark Nakon testified that the letter title, under section 1692b of this the failure Lewis is similar to letters used ACB in clearly to disclose in all communications situations where notice to cease further com- made to collect a debt or to obtain informa- munications has not been received. Indeed consumer, tion about a that the debt collec- nothing the letter is attempt more than an tor attempting to collect a debt and that bargain debt, regarding his and is “ any information obtained will be used exactly says what it attempt it is: ... an purpose. collect a debt.” The observations in the ma- 1692e(ll) added). § 15 U.S.C. (emphasis jority opinion that “the letter can be con- Therefore, there was no type need for ACB to strued as of settlement offer” and comply with 11 by declaring section that its should not be “construed as an abusive col- attempt debt,” letter “is an practice”; to collect a “may unless lection it result in reso-
415 Columbus, litiga- case resorting to state-court collection the debt without lution of tion”; certainly less and “is coercive rights Amex violated Lewis’s under the interests of the debt- protective of more (ECOA), Act Equal Opportunity Credit litigation, costly time-consuming or” than 1691-1691f, § an ac- U.S.C. does state entirely point. beside the of course are 12(b)(6). claim tionable under Fed.R.Civ.P. the invoca- is not a mere notification of letter alleged that suit was collection invoked; ordinarily it is remedies tion of his exercising filed in retaliation for his letter, is, says it just as collection majority rights under the FDCPA. The plain lan- a violation its issuance was opinion correctly holds court that the district of section 1692e. guage claim “he dismissed Lewis’s ECOA because Likewise, majori- I from must dissent is unable to show that he suffered an adverse of section ty’s recognize refusal violation action because the ECOA does not cover alias of the “M. Hall” 1692e ACB’s use ... ‘[a]ny relating action account taken Although the use the June letter. ... connection with or delin- default[ ] harmless, plain language seems alias ” (Citing quency.’ C.F.R. prohibits any false FDCPA use of “[t]he 202.2(c)(2)(ii).) disagree. I deceptive collect representation or means to attempt any debt to obtain to collect unnecessary It to review the well- here concerning a information consumer.” jurisprudence of this circuit describ- settled 1692e(10). have The defendants U.S.C. heavy upon party who ing the cast burden “M. person is no such admitted there on the seeks dismissal of a claimant’s lawsuit Thus, letter, purports to which Hall.” *25 12(b)(6). say Rule It that basis of suffices by person “M. Hall” have been sent a named obligation here was to show that Lew- ACB’s “me,” “I,” pronouns and which utilizes in prove support no of facts of his is could set times, “false “my” eight a is a and total Eagle Saglioccolo retaliation claims. v. Ins. deceptive representation” it was that and (6th Cir.1997) Co., (quoting 112 F.3d 228 lan- by person a named “M. Hall.” The sent Gibson, 41, 45-46, Conley v. 78 S.Ct. 355 U.S. name of the and the use of the guage letter (1957)). 101-02, designed Hall” were to induce the debtor L.Ed.2d 80 The bur- “M. named specific onerous, that a individual judgment to believe my in ACB has den is case, handling the “M. Hall” was debtor’s it. not carried arrange- making him in and would assist The ECOA makes it unlawful for cred debt, payment for of the when ACB ments has against a debtor who itor to discriminate knew, that was not true. any right under the Consumer exercised Concededly difficult to see the harm it is 1691- Protection Act. See U.S.C. Credit deception, this but the particular caused 1691f; majority opin 202. The C.F.R. Pt. deception unambiguously proscribes FDCPA a correctly that claim of this ion observes form, only in not circumstances analyzed the burden allocation sort is under might a debt collector or court which for Title retalia framework VII established justifies the In all think that the end means. employment Consequently, to tion in claims. events, does, suggest, using a as ACB that 12(b)(6) always Lewis was proper name” is because it has a dismissal motion “desk survive (1) way, that harm has that no been done in a required plead engaged that he instance, in this does to have resulted shown activity; an statutorily protected suffered lan- compliance plain with not excuse action; a and that there is adverse credit statute; justify this of the nor does it guage 1 and 2. John connection between See causal “equitable” in applying court basketball’s Dep’t Health and v. United States son of “no harm no foul.” maxim (6th Cir.1994). Servs., 45, 47 30 F.3d Human is colleagues “unable My think II. showing” primarily because make such The Cincinnati Case that he prove unable they think will be “the ECOA action since suffered adverse allega- that The district court held suit, relating ... to an ‘[a]ny cover action filing does not tion in the Cincinnati majori- with - There are other conclusions in the taken in connection de account ty I My opinion disagree, with which I but delinquency.’” brothers be those ] fault serious, have no nothing discussed are most pleaded that Lewis has more lieve purpose by elucidating useful be served a lawful will taking “action to than creditor the rest. undisputed of dollars recover thousands refuses to the consumer honor.” judgment I dis- would reverse trict court case to be decided allow respectfully disagree I the ECOA by the trier of the evidence. fact on proscribe not collection suits
does defaulting suits debtors if such are filed for
retaliatory purposes. place,
In the is clear first an “adverse
ECOA’s definition of action” constitutes
does determine what discrimi- 1691(a), purposes for section
nation but require actions
rather determines what no- 1691(d). compliance tice section Sec- under COMPANY; PEABODY COAL Old 1691(a)(3) plainly tion makes unlawful col- Republic Company, Insurance suit filed in for an lection retaliation FDCPA Petitioners, enforcement action. Whether could fact persuading succeed finder that the v. retaliatory pur- suit was for Columbus filed Director, WHITE; Carl Office of Workers’ possible, It
poses is another matter. Compensation Programs, United States example, prove that Lewis could that Amex Department Labor, Respondents. usually patient more debtors and that 96-4242. No. only subjected to Lewis was the Columbus he filed collection suit because Appeals, United Court of States very similar, suit. Lewis’s claim would be. Sixth Circuit. *26 example, employment for to an discrimina- alleging filing tion suit retaliation Argued Oct. 1997. charge complaining an EEOC where em- Feb. Decided 1998. poor history. ployee has a work The district court reasoned that Lewis had pleaded similarly the existence situat- debtors who not been sued
ed had Amex.
But it necessary plead is not order to plead
retaliation claim that Lewis even more necessary prima
facts than are to establish a ease of unlawful retaliation.
facie not, question majority
The appar-
ently is, thinks it ACB has the right whether debt; clearly
to sue to collect on a it has. question prove is whether can
that the suit to collect on debt was filed exercising protected
in retaliation for his may It
right. well be that could not
prove necessary pre- causal connection charge, yet on a
vail retaliation under Rule
12(b)(6), inquiry concerns whether Lewis
could establish his ease under set of me, possible
facts. To that it is clear could do so.