Peggy Miller v. Javitch, Block & Rathbone

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0136p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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PEGGY MILLER,
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Plaintiff-Appellant,
-
-
No. 08-3336
UNITED STATES OF AMERICA,
Intervenor, ,>
-
-
-
v.
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JAVITCH, BLOCK & RATHBONE; DIANA J. -
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Defendants-Appellees. -
PREHN; BRIAN C. BLOCK,
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N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00828—Michael R. Barrett, District Judge.
Argued: December 3, 2008
Decided and Filed: April 6, 2009
*
Before: COLE and COOK, Circuit Judges; EDMUNDS, District Judge.

_________________

COUNSEL
ARGUED: Stephen R. Felson, LAW OFFICE, Cincinnati, Ohio, for Appellant.
Michael D. Slodov, JAVITCH, BLOCK & RATHBONE, Cleveland, Ohio, for
Appellees. Howard S. Scher, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Intervenor. ON BRIEF: Stephen R. Felson, LAW OFFICE,
Cincinnati, Ohio, Steven C. Shane, STEVEN C. SHANE, ATTORNEY AT LAW,
Bellevue, Kentucky, for Appellant. Michael D. Slodov, JAVITCH, BLOCK &
RATHBONE, Cleveland, Ohio, for Appellees. Howard S. Scher, Michael S. Raab,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.
COOK, J., delivered the opinion of the court, in which EDMUNDS, D. J., joined.
COLE, J. (pp. 13-20), delivered a separate dissenting opinion.

*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District
of Michigan, sitting by designation.

1
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 2

_________________

OPINION
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COOK, Circuit Judge. Peggy Miller filed a putative class action against law firm
Javitch, Block & Rathbone and two of its agents (collectively, “JBR”) under the Fair
Debt Collection Protection Act (“FDCPA”). 15 U.S.C. §§ 1692e et seq. Miller contends
that JBR violated the FDCPA by using false, deceptive, and misleading language in a
debt-collection complaint. The district court first granted judgment on the pleadings on
the falsity claim, and then entered summary judgment in favor of JBR as to the
remaining claims. Miller appeals, and because we agree with the district court that
Miller failed in her burden to raise a genuine issue of fact regarding a statutory violation
by JBR, we affirm.

I.

This case centers on a form debt-collection complaint drafted and used by JBR
in numerous state-court suits, including one filed against Peggy Miller in Scioto County,
Ohio. Miller accrued debt on a credit card issued by Providian National Bank. The bank
sent her monthly statements detailing the charges on her “Providian Visa Card,” and she
paid the statements with checks made out to “Providian.” But after she stopped making
payments—a fact she does not dispute—Providian sold Miller’s debt to Palisades
Collection LLC (“Palisades”). Palisades then hired JBR, and JBR filed the state-court
complaint that prompted this class-action suit.

The state court “COMPLAINT FOR MONEY LOANED” read as follows:

1. Plaintiff acquired, for a valuable consideration, all right, title
and interest in and to the claim set forth below originally owed by
Defedant(s) to ASTA II/PROVIDIAN -03 /NAT
As a result of the assignment, Plaintiff became, and now is, the owner of
funds loaned on account number xxxx-xxxx-xxxx-0736.

2. There is presently due the Plaintiff from the Defendant (s) on
the money loaned on defendant’s charge card debt, the sum of $4,604.56.
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 3

3. Plaintiff notified Defendant (s) of the assignment and
demanded that Defendant (s) pay the balance due on the account, but no
part of the forgoing balance has been paid.
4. Defendant (s) is/are in default on this repayment obligation.
WHEREFORE, Plaintiff prays for judgment against Defendant
(s) in the amount of $4,604.56 with statutory interest from the date of
judgment, costs of this action, and such other and further relief as the
Court deems just and proper under the circumstances.
[signature block omitted]
Miller admits that when she read the complaint, she “pretty much” understood
it. She took the complaint to a lawyer who responded to it by moving for a more definite
statement. JBR then voluntarily dismissed the suit, as large volume collection firms
often do when met with resistance.

Miller then went on the offensive in federal court, suing JBR on behalf of herself
and others similarly situated. She claimed that JBR—a “debt collector” for purposes of
the FDCPA, see Heintz v. Jenkins, 514 U.S. 291, 299 (1995)—violated the FDCPA by
including false, deceptive, and misleading language in its state-court complaint. JBR
answered and moved for a judgment on the pleadings.1 The district court granted the
motion in part, finding that Miller failed to state a claim when she alleged that “for
money loaned” amounted to a false statement. But the court—attentive to how a true
statement may still be misleading—also denied JBR’s motion in part, finding that Miller
stated a claim with respect to four potentially misleading statements: (1) the complaint
was “for money loaned,” (2) Palisades was “the owner of funds loaned on account
number xxxx . . .”; (3) “there is presently due the Plaintiff from the Defendant(s) on the
money loaned on defendant’s charge card debt . . .”; and (4) “Plaintiff acquired, for
valuable consideration, all right, title, and interest in and to the claim set forth below
originally owed by Defendant(s) . . . .”

1
JBR also argued that the FDCPA violates the First Amendment’s Petition Clause. The United
States, as intervenor, defends the FDCPA’s constitutionality. The district court bypassed the constitutional
issues and granted JBR summary judgment on other grounds. We do the same. And because affirming
on the merits affords a more straightforward resolution, we also sidestep JBR’s arguments that Miller
waived certain claims and that the bona-fide-error defense shields JBR from liability.
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 4

The matter never reached a jury. After discovery, the district court examined the
evidence and found nothing to suggest that these four statements qualified as deceptive
or misleading under the FDCPA. Accordingly, the district court granted JBR’s summary
judgment motion. Miller appeals the district court’s judgment on the pleadings and its
summary judgment.

II.

Congress enacted the FDCPA “to eliminate abusive debt collection practices by
debt collectors, to insure that those debts collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The
FDCPA’s relevant sections read:

A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
Without limiting the general application of the foregoing, the following
conduct is a violation of this section:
...
(2) The false representation of—(A) the character, amount, or legal status
of any debt;
...
(10) The use of any false representation or deceptive means to collect or
attempt to collect any debt or to obtain information concerning a
consumer.
...
(12) The false representation or implication that accounts have been
turned over to innocent purchasers for value.
15 U.S.C. § 1692e.

These provisions sweep with “extraordinar[y]” breadth, Frey v. Gangwish, 970
F.2d 1516, 1521 (6th Cir. 1992), and call for “strict liability, . . . meaning that a
consumer may recover statutory damages if the debt collector violates the FDCPA even
if the consumer suffered no actual damages,” Fed. Home Loan Mortgage Corp. v.
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 5

Lamar, 503 F.3d 504, 513 (6th Cir. 2007) (citing 15 U.S.C. § 1692k(a)). This court, in
determining whether a statement qualifies as misleading, employs an objective,
“least-sophisticated-consumer” test. Kistner v. Law Offices of Michael P. Margelefsky
LLC, 518 F.3d 433, 438–39 (6th Cir. 2008). This standard “protects naive consumers
[while] prevent[ing] liability for bizarre or idiosyncratic interpretations of collection
notices by preserving a quotient of reasonableness and presuming a basic level of
understanding and willingness to read with care.” Id. (quoting Lamar, 503 F.3d at
509–10). Stated differently, we “will not ‘countenance lawsuits based on frivolous
misinterpretations or nonsensical interpretations of being led astray.’” Lamar, 503 F.3d
at 514 (quoting Jacobson v. Healthcare Fin. Servs. Inc., 434 F. Supp. 2d 133 (E.D.N.Y.
2006)).

Applying these principles to Miller’s claim, we begin by analyzing the district
court’s judgment on the pleadings, and then consider its summary judgment.

A.

JBR’s state-court complaint characterized Miller’s credit-card debt as a loan.
Miller thinks that description counts as false under the FDCPA. Credit-card debt, so her
argument goes, is actually a merchant’s account receivable, not a loan. The district court
rejected this position in its judgment on the pleadings. Reviewing the issue de novo,
Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 389 (6th Cir. 2007),
we agree with the district court and rely on its well-reasoned analysis:

Typically, credit card debt is one that is considered “an account” where
there is a balance sheet of sorts that lists the purchases made with the
credit card and the payments received by the card issuer. This approach
of calling it a loan is a novel one. Although the Ohio Rules of Civil
Procedure do provide for a complaint for money loaned, the question is
whether or not a claim that has historically been one on an account can
now be plead as one for money loaned. Defendant cites a handful of
cases from other circuits and state courts as well as various other
secondary sources for the proposition that a credit card transaction
equates to a loan by the credit card issuer to the credit card holder.
In In re Mercer, 246 F.3d 391, 406 (5th Cir. 2001), a bankruptcy
discharge case, the Court stated that “. . . by each card-use, [the debtor]
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 6

requested a loan against that line; and by approving each card-use, and
therefore reimbursing the merchant, including an ATM owner, USC [the
credit card issuer] made a loan to her.”
...
Defendants also cite May Co. v. Trusnick, 54 Ohio App.2d 71, 75 (8th
Dist. App. 1977), a statute of limitations case involving the failure of a
debtor [Trusnik] to timely pay for purchases placed on an account at a
retail store [The May Company]. The May Court cited Harris Trust and
Savings Bank v. McCray (1974), 21 Ill. App. 3d 605, 316 N.E. 2d 209.
In Harris Trust the issuer of a bank credit card sued the cardholder to
recover the balance due on the cardholder’s account. Harris Trust argued
that the cause of action arose when the cardholder failed to repay the
bank for funds advanced to the merchant. The Court agreed with Harris
Trust and held “money advanced to a merchant in payment for
merchandise received by the defendant constitutes a loan.” Id. at 608.
The May Court distinguished Harris Trust by stating that, “[i]n the
present case the purchase money was loaned by The May Company, not
by a third party as in Harris Trust, supra.” May Co. v. Trusnik, 54 Ohio
App. 2d at 75. The factual allegations of the underlying state court
collection case are more in line with Harris Trust whereby a credit card
company issued a credit card to Miller who in turn used the credit card
to make purchases at merchant stores.
The Harris Trust Court provided a good summary of the credit card
issuer/holder relationship:
The bank credit card system involves a tripartite
relationship between the issuer bank, the cardholder, and
merchants participating in the system. The issuer bank
establishes an account on behalf of the person to whom
the card is issued, and the two parties enter into an
agreement which governs their relationship. This
agreement provides that the bank will pay for
cardholder’s account the amount of merchandise or
services purchased through the use of the credit card and
will also make cash loans available to the cardholder. It
also states that the cardholder shall be liable to the bank
for advances and payments made by the bank and that the
cardholder’s obligation to pay the bank shall not be
affected or impaired by any dispute, claim or demand by
the cardholder with respect to any merchandise or service
purchased.
Harris Trust & Sav. Bank v. McCray, 21 Ill. App. 3d 605,
607-608 (Ill. App. Ct.1974).
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 7

Based upon the reasoning in Harris Trust, the fact that money was
actually paid by the credit card issuer to merchants on the credit card
holders’ behalf, and Form 5 in the Ohio Rules of Civil Procedure, the
Court finds that the filing of an action for “money loaned” by a credit
card issuer or its successor to recover funds owed from a credit card
holder does not violate the FDCPA.
The district court’s conclusion finds additional support in Miller’s credit-card
agreement with Providian, where she “promise[d] to pay [Providian] when due all
amounts borrowed.” (emphasis added). The record also includes evidence of nine
instances where Miller used her credit card to secure cash advances from automated-
teller machines (“ATMs”). Finally, Miller’s brief to this court concedes that “as a legal
matter the word ‘loan’ may or may not be accurate.” For these reasons, the complaint’s
references to “money loaned” are not actionable here as false statements. The Seventh
Circuit’s decision in Beler v. Blatt, Hanenmiller, Leibsker & Moore, LLC, 480 F.3d 470
(7th Cir. 2007), which addressed a complaint’s “confusing description” of a
credit-card-debt transaction, id. at 472, articulates the problem with Miller’s claim:

[Not] everything a lawyer writes during the course of litigation must be
stated in plain English understandable by unsophisticated consumers.
However desirable that might be, it is not a command to be found in the
FDCPA.
Section 1692e does not require clarity in all writings. What it says is that
“[a] debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
A rule against trickery differs from a command to use plain English and
write at a sixth-grade level. . . . Whatever shorthand appeared in the
complaint—the payments system through which credit-card slips flow is
complex, and even many lawyers don’t grasp all of its details—was
harmless rather than an effort to lead anyone astray. It was the judge, not
[the plaintiff], who had to be able to determine to whom the debt was
owed, for it is the judge (or clerk of court) rather than the defendant who
prepares the judgment specifying the relief to which the prevailing party
is entitled.
Id. at 473 (internal quotation marks omitted).

Like the dissent, we “permit Javitch some leeway for the use of legal terms of art
and other language that might be difficult for the least-sophisticated consumer to
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 8

understand.” Thus, even if JBR could have drafted its complaint using plainer language,
and even if it novelly styled the claim as one “for money loaned,” JBR did not go so far
as to falsely describe Miller’s debt. See Evans v. Midland Funding LLC, 574 F. Supp.
2d 808, 813 (S.D. Ohio 2008) (holding in an FDCPA credit-card debt case “that the
allegations in the state court complaints at issue here were not false insofar as they
sought recovery ‘for money loaned’”).

B.

Turning to the district court’s summary judgment, we conduct a de novo review.
Jones v. Potter, 488 F.3d 397, 402 (6th Cir. 2007). Drawing all inferences in Miller’s
favor, we affirm where no genuine issue exists as to any material fact and where JBR is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Miller argues that the same four statements we cite above from JBR’s complaint
deceive or mislead by wrongly implying that Providian actually transferred funds to her.
The district court, examining the evidence gathered in discovery, determined that Miller
failed to raise a genuine issue of material fact. Addressing the first three statements, the
district court correctly explained:

Plaintiff has presented no affidavits, other than one from Plaintiff’s
counsel, no surveys, no expert opinion, nothing to demonstrate that a
genuine issue of fact exists. In fact, Plaintiff admits that when she first
saw the state court complaint she was not confused. . . . [Additionally,]
the Court notes that the Plaintiff stated in her deposition that she read the
state court complaint, and that she “pretty much” understood it.
Miller v. Javitch, Block & Rathbone, 534 F.Supp. 2d 772, 776-77 (S.D. Ohio 2008).

Miller argues that the district court’s reasoning contravenes Kistner, a case
decided after the district court granted JBR summary judgment. In particular, Miller
focuses on the district court’s comment that “[h]ad the state court complaint stated only
that it was a ‘complaint for money loaned’ [then] this inquiry may very well have turned
out differently.” This observation, Miller asserts, triggers Kistner’s requirement that any
statement susceptible to “more than one reasonable interpretation” raises a genuine issue
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 9

of material fact. 518 F.3d at 441. But Miller’s reliance on Kistner is misplaced because
that case involved a communication containing “conflicting aspects.” Id. at 440. No
such conflict exists here; JBR’s complaint is susceptible to just one reasonable reading.
And contrary to Miller’s suggestion, the district court did not imply otherwise when it
noted that the “inquiry may very well have turned out differently” had other language
been omitted. That comment merely shows that the district court properly assessed the
complaint’s meaning as read in its entirety. See Lamar, 503 F.3d at 510 (observing that
the least-sophisticated-consumer standard assumes that the document at issue “is read
in its entirety, carefully and with some elementary level of understanding”) (quoting In
re Martinez, 266 B.R. 523, 532 (Bankr. S.D. Fla. 2001)). And read as a
whole—referring to a “charge card,” specific account number, and “balance due on the
account”—the complaint did not mislead. Miller, 534 F. Supp. 2d at 777 (“Even the
least sophisticated consumer would be able to know if the account number stated in the
underlying complaint was one that belong[ed] to him or her.”); see also Beler, 480 F.3d
at 474 (commenting that not “everything a lawyer writes during the course of litigation
must be stated in plain English understandable by unsophisticated consumers”). Nor
does the complaint deceive, particularly because Miller does not use that term “in the
traditional sense.” Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 332 (6th Cir.
2006). She “never denied in her complaint that she owed . . . a debt,” and she does not
claim that JBR “misstated or misrepresented the amount that she owed.” Id.

Miller focuses on the complaint’s failure to use the words “credit card.” Even
if including those words would have clarified, omitting them did not impermissibly
mislead. Again, we read the complaint as a whole, see Lamar, 503 F.3d at 510,
conscious of its mention of Miller’s credit-card account number and the “balance due
on the account.” Given those statements, we agree with the district court: “the least
sophisticated consumer, with a careful reading of the entire state court complaint, would
understand that he or she was being sued for the collection of an unpaid credit card
balance.” It bears repeating that she admits having “pretty much” understood the
complaint.
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 10

Nor does the complaint’s reference to a “charge card” render it misleading.
Regardless of how a credit card differs from a charge card, that difference would not
mean so much to the least sophisticated consumer that he or she would be misled by the
use of one term instead of the other. Granted, a lawyer “closely parsing [the complaint]
like a municipal bond offering” may detect some ambiguity or confusion. Jacobson, 434
F. Supp. 2d at 138. But the least-sophisticated-consumer standard is not so exacting.
It does not require reading the complaint with “the astuteness of a ‘Philadelphia
lawyer.’” Jacobson, 434 F. Supp. 2d at 138 (quoting Russell v. Equifax A.R.S., 74 F.3d
30, 34 (2d Cir. 1996)). We read the complaint in its entirety and give it a “common
sense appraisal.” Id. Doing so, we conclude that the complaint would not mislead or
deceive the least-sophisticated consumer.

As for Miller’s interpretation of the fourth potentially misleading
statement—“Plaintiff acquired, for valuable consideration, all right, title and interest in
and to the claim set forth below originally owed by Defendant(s) to ASTA
II/Providian-03/NAT”—we again side with the district court. Miller contends that this
statement violates § 1692(e)(12) by falsely or misleadingly implying that Providian
assigned her debt to an innocent purchaser for value who enjoyed protection under the
holder-in-due-course rule. She insists that this acquired-for-value statement would dupe
the least-sophisticated consumer into thinking that Palisades enjoyed
holder-in-due-course protection. We think not. The statement says nothing about
holders in due course. And no reason exists to think that the least-sophisticated
consumer gives any thought to holders in due course—by definition, the
least-sophisticated consumer lacks any knowledge of the concept. Also, as we and the
dissent agree, “some leeway” must be given for the use of legal terms.

The district court’s analysis, following our decision in Lamar, 503 F.3d at 514,
properly relied on insights from a New York district court to expose the flaw underlying
Miller’s holder-in-due-course position:

Ironically, it appears that it is often the extremely sophisticated consumer
who takes advantage of the civil liability scheme defined by [the
FDCPA], not the individual who has been threatened or misled. The
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 11

cottage industry that has emerged does not bring suits to remedy the
“widespread and serious national problem” of abuse that the Senate
observed in adopting the legislation, 1977 U.S.C.C.A.N. 1695, 1696, nor
to ferret out collection abuse in the form of “obscene or profane
language, threats of violence, telephone calls at unreasonable hours,
misrepresentation of a consumer’s legal rights, disclosing a consumer’s
personal affairs to friends, neighbors, or an employer, obtaining
information about a consumer through false pretense, impersonating
public officials and attorneys, and simulating legal process.” Id. Rather,
the inescapable inference is that the judicially developed standards have
enabled a class of professional plaintiffs.
The statute need not be applied in this manner . . . [A proper]
understanding of the least sophisticated consumer standard points away
from closely parsing a debt collection letter like a municipal bond
offering and towards a common sense appraisal of the [communication].
It is interesting to contemplate the genesis of these suits. The
hypothetical Mr. Least Sophisticated Consumer (“LSC”) makes a $400
purchase. His debt remains unpaid and undisputed. He eventually
receives a collection letter requesting payment of the debt which he
rightfully owes. Mr. LSC, upon receiving a debt collection letter that
contains some minute variation from the statute’s requirements,
immediately exclaims “This clearly runs afoul of the FDCPA!”
and—rather than simply pay what he owes—repairs to his lawyer’s
office to vindicate a perceived “wrong.” “[T]here comes a point where
this Court should not be ignorant as judges of what we know as men.”
Watts v. State of Ind., 338 U.S. 49, 52 (1949).
Jacobson, 434 F. Supp. 2d at 138–39.

We also reject Miller’s claim on materiality grounds. Writing for the Seventh
Circuit, Judge Easterbrook recently observed that “[m]ateriality is an ordinary element
of any federal claim based on a false or misleading statement.” Hahn v. Triumph P’ships
LLC, ___F.3d___, 2009 WL 529562, at *2 (7th Cir. Mar. 4, 2009) (citing Carter v.
United States, 530 U.S. 255 (2000); Neder v. United States, 527 U.S. 1 (1999)). Seeing
no “reason why materiality should not equally be required in an action based on
§ 1692e,” Judge Easterbrook found a statement “false in some technical sense”
immaterial. Id. (quoting Wahl v. Midland Credit Mgmt., Inc., ___F.3d___, 2009 WL
426055, at *3 (7th Cir. Feb. 23, 2009)). “A statement cannot mislead unless it is
material, so a false but non-material statement is not actionable.” Id. We agree. Miller,
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 12

along with the dissent, relies on a too technical reading of the complaint. Appraising the
complaint in a common sense way convinces us that, just as Miller “pretty much”
understood JBR’s language, so too would the least-sophisticated consumer.

III.

We affirm.
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 13

_________________

DISSENT
_________________

COLE, Circuit Judge, dissenting. Because I cannot say with confidence that no
reasonable jury could find this document to be misleading from the perspective of the
least-sophisticated consumer, and because it is potentially misleading in a way that
harms interests the Fair Debt Collection Practices Act (“FDCPA”) was designed to
protect, I believe the proper course is to submit this question to a jury. The first three
sentences of this six-sentence complaint contain literally false statements, and although
this document is an attempt to collect credit-card debt, it never uses the term “credit
card.” I respectfully dissent.

A. The document is confusing on its face

The state-court complaint at issue in this case appeared as follows:

IN THE SCIOTO COUNTY CLERK OF COURTS
SCIOTO COUNTY

Palisades Collection LLC )
Assignee of Providian National Bank )
210 Sylvan Avenue ) CASE NUMBER:
)
Englewood Cliffs, NJ 07632 - )
) JUDGE:
Plaintiff )
vs. )
) COMPLAINT FOR MONEY LOANED
Peggy Miller )
AKA Peggy A. Miller )
1315 9Th St. )
Portsmouth, OH 45662 - )
)
- )
)
Defendant (s) )
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 14

1. Plaintiff acquired, for a valuable consideration, all right, title and interest in
and to the claim set forth below originally owed by Defedant(s) to ASTA
II/PROVIDIAN -03 /NAT
As a result of the assignment, Plaintiff became, and now is, the owner of funds loaned
on account number xxxx-xxxx-xxxx-0736.

2. There is presently due the Plaintiff from the Defendant (s) on the money
loaned on defendant’s charge card debt, the sum of $4,604.56.
3. Plaintiff notified Defendant (s) of the assignment and demanded that
Defendant (s) pay the balance due on the account, but no part of the forgoing balance has
been paid.
4. Defendant (s) is/are in default on this repayment obligation.
WHEREFORE, Plaintiff prays for judgment against Defendant (s) in the amount
of $4,604.56 with statutory interest from the date of judgment, costs of this action, and
such other and further relief as the Court deems just and proper under the circumstances.
[signature block omitted]
(See Joint Appendix 18).

Javitch’s state-court complaint is, without a doubt, confusing. The terms
“complaint for money loaned” seem inconsistent with the reference to a “charge card
debt,” since we do not tend to think of credit card companies as “loaning” us “money.”
Rather, we usually talk in terms of having “credit-card debt” or an “account” with a
credit card company that may be “overdue” or have an “outstanding balance.” To
illustrate the point, consider a bank customer who goes into a bank branch and asks for
some of the money he had “loaned” to the bank—although this would be a technically
correct way of asking to withdraw money from a savings account, it would almost
certainly confuse the teller. Granted, Javitch’s complaint also refers to the “balance due
on the account,” but the “money loaned” language, which is prominently placed in the
caption and repeated within the document, creates confusion and seems to refer to a
traditional, one-time loan from a lender, which, unlike a credit card issuer, loans money
directly to consumers. Furthermore, the reference to “money loaned on defendant’s
charge card debt” (emphasis added) could cause a reader to wonder if the “money
loaned” referred to a separate loan from the “charge card debt,” as in “money loaned on
plaintiff’s house.” In fact, Miller testified that she did not understand the sentence
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 15

containing the “money loaned on defendant’s charge card debt” and that she was
confused by the fact that the document was entitled “Complaint for Money Loaned.”

In addition to being generally confusing, the complaint includes three false
statements, one in each of the first three sentences. First, it refers to Palisades, the debt-
buyer, as the “owner of funds loaned.” Palisades does not and never did own the funds
that were “loaned” by Providian—rather, it owns the debt that formerly belonged to
Providian. This may seem like a fine distinction, but the “owners” of the funds that
Providian “loaned” are the merchants to whom those funds were paid in exchange for
goods and services provided to Mrs. Miller. Second, despite the fact that the complaint
seeks a judgment based on a credit-card debt, the words “credit card” are inexplicably
omitted from the document. Instead, there is a single reference to “charge card debt.”
A “charge card” is not the same as a “credit card.” The latter involves a revolving credit
arrangement in which an outstanding balance may be carried from month to month,
while the former must be paid off in full at the end of each billing cycle. See, e.g.,
Consumer Information, “Credit and Charge Cards,” Federal Reserve Bank of San
Francisco, available at http://www.frbsf.org/publications/consumer/cards.html.
According to Javitch’s brief, Mrs. Miller applied for a Providian “credit card,” so the
statement in the complaint that Mrs. Miller borrowed funds with a “charge card” also
appears to be false.

Third, the complaint refers to a “claim . . . originally owed by Defendant(s) to
ASTA II/PROVIDIAN -03/NAT.” It is incorrect to say that a debtor “owes” a “claim”
to anyone—this is yet another false statement—impressive for a document consisting
of about fifteen lines of text. One could guess that the drafter intended to say that
Palisades owns a claim against the debtor formerly owned by “ASTA II/PROVIDIAN
-03/NAT,” but that is not what the document says. In addition to the fact that the
statement is incorrect, a debtor would almost certainly be confused about what “ASTA
II/PROVIDIAN -03/NAT” actually is. The majority defines this term for its readers as
“Providian,”—a definition that may not be strictly correct—but the state-court complaint
offered no such definition for the benefit of the debtor, and I am quite sure that Mrs.
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 16

Miller, when she entered into a credit card agreement, did not imagine herself to be
dealing with an entity called “ASTA II/PROVIDIAN -03/NAT.” What “ASTA II” and
“-03/NAT” refer to remains a mystery to the debtor and to me (and, apparently, to the
majority).

Also, the “for money loaned” language is arguably false because, in addition to
any amounts paid to merchants on Mrs. Miller’s behalf, the sum sought by Javitch
almost certainly includes a significant amount of penalty fees and penalty interest added
to her account balance before the debt was charged off. See, e.g., Discover Bank v.
Owens, 822 N.E.2d 869 (Ohio Mun. Ct. 2004) (denying on equitable grounds action to
collect credit-card debt primarily composed of late fees and penalty interest, rather than
amounts advanced for purchases). Therefore, while part of the relationship between the
debtor and the credit-card issuer can be described as a series of loans, it is potentially
very misleading to refer to the entire account balance as “money loaned.” And, of
course, the only way to know for sure how much of the “sum of $4,604.56” is actually
“for money loaned” is to examine the accounting required by Ohio Rule of Civil
Procedure 10(D)(1) (see infra).

The majority claims that the literal falsehoods in the complaint may be
overlooked because the least-sophisticated consumer would not be savvy enough to
know that they were false. It is not clear to me that this is an appropriate use of the least-
sophisticated-consumer test, which was primarily intended as a sword for consumers, not
a shield for debt-collectors making false statements. See Kistner v. Law Offices of
Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008) (“[The] test is designed
‘to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.’”
(quoting Fed. Home Loan Morgage Corp. v. Lamar, 503 F.3d 504, 509 (6th Cir. 2007)
(emphasis added)). I acknowledge that an additional purpose of the test is to “‘prevent
liability for bizarre or idiosyncratic interpretations of collection notices,’” id., but the
only thing “bizarre” and “idiosyncratic” in this case is the wording of Javitch’s
complaint. See also Jacobson v. Healthcare Fin. Servs., 516 F.3d 85, 95 (2d Cir. 2008)
(noting that the “mischief” the FDCPA was “designed to address” is that of debt-
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 17

collectors, and “the Act is primarily a consumer protection statute” and reversing the
grant of summary judgment in the district-court decision relied on and quoted at length
by the majority). Even if it is correct that a lender should not be held liable for
immaterial false statements that clearly lack a tendency to mislead, cf. Muha v. Encore
Receivable Mgmt., __ F.3d __, No. 07-3581, 2009 WL 593135, at *3-4 (7th Cir. Mar.
10, 2009), the fact that half of the sentences in this document contain literally false
statements seems to me to weigh in favor of allowing a jury to decide whether the least-
sophisticated-consumer test has been met.

I recognize that the document at issue is not a collection letter; it is a state-court
complaint, which is a legal document. Therefore, I believe that we must permit Javitch
some leeway for the use of legal terms of art and other language that might be difficult
for the least-sophisticated consumer to understand. See, e.g., Beler v. Blatt, Hasenmiller,
Leibsker & Moore, LLC, 480 F.3d 470, 473 (7th Cir. 2007) (stating that if the FDCPA
applies to state-court complaints, it does not require that all language in the complaint
be understandable by unsophisticated consumers). However, we have held that an
affidavit attached to a state-court complaint is a “communication” such that the FDCPA
forbids it from containing misleading statements, see Gionis v. Javitch, Block &
Rathbone, LLP, 238 F. App’x 24, 30 (6th Cir. 2007), and if an affidavit attached to a
complaint is covered by the FDCPA’s prohibition of “false representation[s] [and]
deceptive means” in debt collection, then surely the complaint is covered as well. Id.
(quoting 15 U.S.C. § 1692e(10)); see also Heintz v. Jenkins, 514 U.S. 291, 292 (1995)
(“[FDCPA] applies to a lawyer who ‘regularly,’ through litigation, tries to collect
consumer debts.”). False statements and a consistent effort to misconstrue the nature of
the debt owed cannot be excused by the fact that they are found in a legal document.

B. The confusing language is primarily directed at state judges, not debtors

Unlike most allegedly misleading language challenged under the FDCPA, it
seems likely that the“for money loaned” language was not meant to encourage the debtor
to pay, nor even drafted with the debtor primarily in mind. Cf. Kistner, 518 F.3d at 441
(considering whether letter gave false impression that it was from an attorney, such that
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 18

debtor would have felt more compelled to pay); Gionis, 238 F. App’x at 29 (considering
whether least-sophisticated consumer “would be confused, and reasonably might feel
pressured to immediately pay the debt, even if she disputed its validity, in order to avoid
the possibility of having to also pay [the debt collector’s] attorney fees at some later
date”). Rather, the relevant language is, at least partially, the result of a litigation
strategy designed with state-court judges in mind. Javitch freely admits that it adopted
the “Complaint for Money Loaned” form of pleading in the hope that state trial judges
would deem its credit-card-collection suits exempt from the requirement of Ohio Rule
of Civil Procedure 10(D)(1), which normally applies to such suits. This rule states:
“When any claim or defense is founded on an account or other written instrument, a
copy of the account or written instrument must be attached to the pleading. If the
account or written instrument is not attached, the reason for the omission must be stated
in the pleading.” Apparently, Javitch hopes that by styling its pleading as “for money
loaned” rather than “on an account” and altering the language to make the action sound
more like a suit for a traditional loan of money, it can avoid the burdens imposed by
Rule 10(D)(1). While it seems unlikely that state trial judges will agree, given that the
superficial change in wording does not change the substance of the suit, which remains
a suit for credit-card debt founded both on an account and on a written instrument,
Javitch may pursue this litigation strategy as long as it does not violate the FDCPA in
the process.

C. The fact that the confusing language was not entirely intended to mislead
debtors does not exempt it from the requirements of the FDCPA
The fact that Javitch did not draft the confusing language with the debtor solely
in mind does not change the fact the debtor who receives such a complaint may be
confused by it and may suffer as a result. Nor does it negate the possibility that Javitch
intended the confusing language to mislead the debtor. First, the least-sophisticated
debtor might reasonably believe that the suit is for some kind of traditional loan of
money. If the debtor has not taken out such a loan, or has taken out such a loan but has
disposed of it in some way, she might ignore the suit, resulting in a default judgment
(obviously a desirable outcome for Javitch). Second, if the debtor simply does not
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 19

understand from the document the debt to which it refers, she might be less likely to
contest the suit, again making a default judgment more likely. See also Muha, 2009 WL
593135, at *5 (“Confusing language in a dunning letter can have an intimidating effect
by making the recipient feel that he is in over his head and had better pay up rather than
question the demand for payment.”). Third, the debtor might be led to believe that the
“money loaned” consisting of “the sum of $4,604.56” is a fixed amount that is not
susceptible to the types of defenses a debtor can assert in an action for collection of
credit-card debt, such as contested or improper charges, improper additions of fees after
the debt has been charged off, or other violations of the lending agreement. See Muha,
2009 WL 593135, at *5 (“The intimidating effect may have been magnified by [language
that] might have suggested to an unsophisticated consumer that any right he might have
to challenge the demand for payment had been extinguished . . . .”). Finally, if the
debtor is fooled into thinking this complaint is not for a credit-card debt, she might be
less likely to demand that the court enforce Javitch’s obligation to provide
documentation of her credit-card account under Rule 10(D)(1).

Javitch could have drafted this complaint in a way that made the nature of the suit
clear to the debtor, but, instead, the document is stated in confusing, unnatural language
and contains several false statements about the financial relationships at issue. As the
majority states, Congress wrote the FDCPA to be “extraordinarily broad,” Frey v.
Gangwish, 970 F.2d 1516, 1521 (6th Cir. 1992), and to provide for strict liability. See
15 U.S.C. § 1692k(c). We are bound to analyze whether a debt-collector’s practice is
deceptive, not using our own common sense as experienced jurists, but using the least-
sophisticated-consumer test, which is “designed to ensure that the FDCPA protects all
consumers, the gullible as well as the shrewd.” Kistner, 518 F.3d at 438. Unlike the
majority, I view Javitch’s complaint as one that a reasonable jury could find misleading
to the least-sophisticated consumer. Therefore, I believe that “a jury should determine
whether the [complaint] is deceptive and misleading.” Id. at 441; see also Muha, 2009
WL 593135, at *5 (“The defendant’s letter was not so palpably misleading as to entitle
the plaintiffs to summary judgment, but neither was it so palpably not misleading as to
entitle the defendant to summary judgment.”).
No. 08-3336 Miller v. Javitch, Block & Rathbone, et al. Page 20

Javitch may be able to prove that it did not intend the complaint to mislead Miller
and that the confusing nature of the complaint was a bona fide error. See Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469, 478 (6th Cir. 2008)
(holding that bona fide error defense in15 U.S.C. § 1692k(c) applies to bona fide errors
of law). Similarly, it may be able to prove that its false statements were unintentional
and resulted either from careless drafting or a lack of understanding of the relevant
concepts. However, given the pervasiveness of the confusing language in this document,
I cannot say that Javitch has established its burden to such an extent that there is no
genuine issue of material fact for a jury.

D. Conclusion

For the foregoing reasons, I would reverse the grant of summary judgment and
remand for trial.