[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
__________________________________COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
MARCH 30, 2010
No. 08-16031 JOHN LEY
__________________________________ CLERK
D.C. Docket No. 06-01216-CV-T-23-TBM
JOSEPH LEBLANC,
Plaintiff-Appellee,
versus
UNIFUND CCR PARTNERS,
ZB LIMITED PARTNERS,
CREDIT CARD RECEIVABLES FUND,
Defendants -Appellants.
___________________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________________
(March 30, 2010)
Before MARCUS and HILL, Circuit Judges, and VOORHEES,* District Judge.
_________________________
*Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
PER CURIAM:
Unifund CCR Partners, G.P., and its general partners, Credit Card
Receivables Fund, Inc., and ZB Limited Partners, appeal the partial grant of
summary judgment in favor of Plaintiff Joseph Leblanc (“LeBlanc”). LeBlanc
brought suit against Unifund CCR Partners, G.P. (“Unifund”), Credit Card
Receivables Fund, Inc., and ZB Limited Partners for violating both the federal Fair
Debt Collection Practices Act, 15 U.S.C. §1692, and the Florida Consumer
Collection Practices Act, FLA . STAT . Chapter 559. Although Unifund was largely
successful in defending LeBlanc’s claims, the district court found in favor of
LeBlanc on his federal claims under Sections 1692e(5) and 1692f. For the reasons
set forth herein, we reverse the district court’s summary judgment order and
remand Plaintiff’s causes of action pursuant to 15 U.S.C. §§1692e(5) and 1692f
for consideration by a jury.
I.
Joseph LeBlanc is a resident of Tampa, Florida, and a “consumer” within
the meaning of the federal Fair Debt Collection Practices Act (“FDCPA”) and the
Florida Consumer Collection Practices Act (“FCCPA”).1 The debt sought to be
1
Pursuant to both the FDCPA and the FCCPA, “consumer” is defined as “any natural person obligated
or allegedly obligated to pay any debt.” 15 U.S.C. §1692a(3); FLA . STAT . §559.55(2) (including
“debtor” in the same definition).
2
collected is a “consumer debt” within the meaning of the acts.2 (Am.Compl. ¶2)
Unifund is a general partnership organization incorporated under the laws of Ohio
and is in the business of purchasing and collecting consumer debt. As such,
Unifund is a “debt collector” for purposes of the FDCPA.3 Credit Card
Receivables Fund, Inc. (“CCRF”) and ZB Limited Partners (“ZB”) are Unifund’s
general partners. Aside from the entities’ relationship with Unifund, CCRF and
ZB are not directly involved in the debt collection activity being challenged.
None of the defendants were registered as “consumer collection agencies” with the
State of Florida.4
In or around February 2003, LeBlanc quit making payments towards a credit
card account he had with Bank One, Delaware (“Bank One”). (LeBlanc Dep. at
17) Effective August 24, 2004, Unifund purchased LeBlanc’s charged off credit
2
The FCCPA defines “debt” or “consumer debt” as “any obligation or alleged obligation of a consumer
to pay money arising out of a transaction in which the money, property, insurance, or services which are
the subject of the transaction are primarily for personal, family, or household purposes, whether or not
such obligation has been reduced to judgment.” FLA . STAT . §559.55(1). Under the FDCPA, “debt” has
the exact same definition. See 15 U.S.C. §1692a(5).
3
A “debt collector” is defined by the FDCPA as “any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection of any debts.” 15
U.S.C. §1692a.
4
“Consumer collection agency” refers to “any debt collector or business entity engaged in the business of
soliciting consumer debts for collection or of collecting consumer debts, which debt collector or business
is not expressly exempted as set forth in §559.553(4).” FLA . STAT . §559.55(7).
3
card account from Bank One.5 Bank One was owned by JP Morgan Chase or one
of its subsidiaries. Unifund received all of its information on the LeBlanc account
from Bank One, including a statement reflecting a balance due of $11,535.94 and
interest at an annual percentage rate of 19.99%.
On or about November 8, 2005, LeBlanc received a letter from Unifund
informing him Unifund had purchased LeBlanc’s charged off debt from Bank One.
(Pl.’s Summ. J. Br. Exibit B) The letter sent to LeBlanc purported to be from
Unifund’s “Legal Department.” The letter referenced the account number as:
“4417129736239563 NAT.ASSC.OF RLTORS(LOGO)PLAT,” identified the
account’s inception date as “02/10/2002," explained that interest had been
accruing since the account “was charged off on 9/30/2003," and averred that the
credit card account had “a current balance of $17,216.12.” As required by statute,
the letter advised LeBlanc that he had thirty days to dispute the debt or it would be
assumed valid. See 15 U.S.C. §1692g. The letter included the following express
warnings:
“If we are unable to resolve this issue within 35 days we may
refer this matter to an attorney in your area for legal
consideration. If suit is filed and if judgment is rendered
against you, we will collect payment utilizing all methods
5
The act of charging off a debt refers to a mechanism whereby creditors determine that a debt is unlikely
to be repaid by the borrower and, therefore, cannot be collected. As a result, the loan is written off and
deemed a loss of principal and interest. However, the charged off debt is not forgiven. As in the instant
case, the charged off debt may then be sold to a collection agency for further efforts toward satisfaction.
4
legally available to us, subject to your rights below.”
***
“This communication is from a debt collector. This is an
attempt to collect a debt and any information obtained will be
used for that purpose.”
Although LeBlanc later testified in his deposition that certain aspects of the
letter were incorrect, LeBlanc never took any steps to contact Unifund or dispute
the crux of the letter. Unifund made no additional effort to contact LeBlanc and
filed suit in state court, presumably alleging LeBlanc’s contractual obligation to
satisfy the debt.6
LeBlanc initiated the instant federal cause of action alleging multiple
violations of the FDCPA and FCCPA. Cross-motions for summary judgment were
filed. The district court granted Unifund’s motion on all of the FCCPA claims and
granted LeBlanc partial summary judgment under two provisions of the FDCPA,
specifically §§1692e(5) and 1692f. The district court opined that Unifund violated
the FDCPA because Unifund failed to register as an “out-of-state consumer
collection agency” with the State of Florida, as required by the FCCPA. The
district court held that Unifund could not legally sue Leblanc to collect the debt
without first registering with Florida’s Office of Financial Regulation as required
by Section 559.553 of the FCCPA. Because the court also viewed the dunning
6
The record on appeal does not inform us about the result of the state court litigation.
5
letter7 as a threat to take legal action, it held that Unifund violated the FDCPA for
“threat[ening] to take action that could not legally be taken” and for using “unfair
or unconscionable means to collect a debt.” 15 U.S.C. §§1692e(5) and 1692f.
In order to avoid the expense of trial, the parties stipulated that LeBlanc’s
actual and statutory damages were $2,000. Final Judgment was entered on
October 8, 2008. Unifund’s timely appeal followed.8
II.
We review de novo the district court’s grant of summary judgment. See
Boim v. Fulton County Sch. Dist., 494 F.3d 978, 982 (11th Cir. 2007).
Under Fed. R. Civ. P. 56(c), summary judgment is “appropriate only when
the court, viewing the record as a whole and in the light most favorable to the
nonmoving party, determines that there exists “no genuine issue of material fact
and that the moving party is entitled to a judgment as a matter of law.” FED . R.
CIV . P. 56(c); Clemmons v. Dougherty County, Ga., 684 F.2d 1365, 1368 (11th
Cir. 1982).
Once the moving party satisfies its burden, the burden of persuasion shifts
7
Since “dunning” means “to make persistent demands upon [another] for payment,” a “dunning letter”
may be considered as simply another name for a letter of collection. See “dunning.” Merriam-Webster
Online Dictionary. 2010. 25 January 2010
8
LeBlanc did not cross-appeal.
6
to the non-moving party to establish the existence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is material if,
“under the applicable substantive law, it might affect the outcome of the case.”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). The
non-moving party must set forth, by affidavit or other appropriate means, specific
facts showing a genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex, 477
U.S. at 323-24. The court will not weigh the evidence or make findings of fact;
instead the court’s role is to determine if there is sufficient evidence upon which a
reasonable juror could find for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
III.
A. Cognizability of FDCPA Action for Violation of FCCPA
As a matter of first impression in our Circuit, we consider whether a federal
cause of action pursuant to Section 1692e of the FDCPA for threatening to take an
action that cannot legally be taken is cognizable when premised upon failure to
register as a consumer collection agency as required by state law, namely, Section
559.553 of the FCCPA.9 (See discussion, infra, Section “III,B,iii”) Determining
9
In terms of taking an action that could not legally be taken, the theory is that if a debt collector cannot
bring suit for whatever reason, it should not represent to the consumer, even implicitly, that it will sue.
See Gaetano v. Payco of Wisc. Inc., 774 F.Supp. 1404, 1414 (D. Conn. 1990) (quoting Commentary, 53
Fed. Reg. 50106, col. 1 (1998)). In other words, a consumer collection agency that fails to comply with
state consumer protection laws - yet proceeds to engage in the business of consumer debt collection
7
whether LeBlanc has pled a federal cause of action for violating state law provides
an opportunity to consider the objectives of the FDCPA and the FCCPA, as well
as the interplay between these state and federal statutes. In light of the statutes’
congruent purposes, we affirm the district court on this issue and now hold that
violation of the FCCPA may support a federal cause of action under the FDCPA.
In enacting the FDCPA, Congress sought “to eliminate abusive debt
collection practices by debt collectors, to insure that those debt 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); Brown v. Budget Rent-A-Car Syss.,
Inc., 119 F.3d 922, 924 (11th Cir.1997) (per curiam). Accordingly, the FDCPA
prohibits debt collectors from using “any false, deceptive, or misleading
representation or means in connection with the collection of any debt” as well as
within the state - cannot threaten the consumer with litigation where its own noncompliance would
prohibit it from initiating legal action in the state.
The federal district courts which have analyzed this issue within the context of the FDCPA and the
respective state consumer protection registration or licensing statutes have all held that violation of state
law may support a federal cause of action under the FDCPA. See, e.g., Sibley v. Firstcollect, Inc., 913
F.Supp. 469, 471 (M.D. La. 1995); Russey v. Rankin, 911 F.Supp. 1449, 1459 (D. N.M. 1995)
(attempting to collect a debt without first registering as a debt collector as required by New Mexico
statute violates the FDCPA); Kuhn v. Account Control Tech., Inc., 865 F.Supp 1443, 1451-52 (D. Nev.
1994) (finding failure to register as a debt collector under Nevada law violated 15 U.S.C. §1692f );
Gaetano v. Payco of Wisc. Inc., 774 F.Supp. 1404, 1414-15 n.8 (D. Conn. 1990) (finding failure to
register as a debt collector in Connecticut violated the FDCPA because not registering “deprived the
plaintiff of her right as a consumer debtor residing within the state to have the defendant’s qualifications
as a collection agency reviewed by state authorities.”)
8
the use of “unfair or unconscionable” means of collection. 15 U.S.C. §§ 1692(e)
and 1692f. The FDCPA does not ordinarily require proof of intentional violation
and, as a result, is described by some as a strict liability statute. See 15 U.S.C.
§1692k; Ellis v. Solomon and Solomon, P.C., 591 F.3d 130, 135 (2nd Cir.2010).
Available remedies under the FDCPA include actual damages, the potential for
additional damages up to $1,000 subject to the Court’s discretion, and reasonable
costs and attorney’s fees. 15 U.S.C. §1692k(a)(1)-(3).
Similarly, the FCCPA, Florida’s consumer protection statute, was enacted as
a means of regulating the activities of consumer collection agencies within the
state. “The FCCPA is a laudable legislative attempt to curb what the legislature
evidently found to be a series of abuses in the area of debtor-creditor relations.”
10A FLA. JUR.2D CONSUMER § 138 (2010). The FCCPA also defines and
protects an individual’s right to privacy with regards to consumer collections
practices in the state. See generally, Laughlin v. Household Bank, Ltd., 969 So.2d
509 (Fla. Dist.Ct. App. 1st Dist. 2007).
Under the FCCPA, “no person shall engage in business in this state as a
consumer collection agency . . . without first registering in accordance with this
part [Sections 559.553 and 559.555] . . . and thereafter maintaining a valid
9
registration.”.10 FLA . STAT . §559.553(1) and (2). Section 559.553 of the FCCPA
does not itself provide a private right of action. FLA . STAT . §559.72 (identifying
types of FCCPA violations that give rise to a private cause of action and omitting
§559.553). Despite the unavailability of a state cause of action, Section 559.785
of the FCCPA provides that it is a misdemeanor for “any person not exempt from
registering . . . to engage in collecting consumer debts in this state without first
registering.” FLA . STAT . §559.785.
In terms of the relationship between the FDCPA and state consumer
protection laws like the FCCPA, the FDCPA does not “annul, alter, affect, or
exempt” any person or entity subject to its provisions from complying with the
10
In order to register as a consumer collection agency under the FCCPA, the debt collector must pay a
registration fee and provide certain information to the state. See FLA . STAT . §559.555(1) and (2). The
registration must be renewed annually. Id. §559.555(3). More specifically:
(1) The registrant shall pay to the office a registration fee in the amount of $200. All
amounts collected shall be deposited by the office to the credit of the Regulatory Trust
Fund of the office.
(2) Each registrant shall provide to the office the business name or trade name, the
current mailing address, the current business location which constitutes its principal
place of business, and the full name of each individual who is a principal of the
registrant. “Principal of a registrant” means the registrant's owners if a partnership or
sole proprietorship, corporate officers, corporate directors other than directors of a not-
for-profit corporation organized pursuant to chapter 617 and Florida resident agent if a
corporate registrant. The registration information shall include a statement clearly
identifying and explaining any occasion on which any professional license or state
registration held by the registrant, by any principal of the registrant, or by any business
entity in which any principal of the registrant was the owner of 10 percent or more of
such business, was the subject of any suspension or revocation.
FLA . STAT . §559.555.
10
laws of any State with respect to debt collection practices, except to the extent that
those laws are inconsistent with the FDCPA.11 See 15 U.S.C. §1692n; see also
Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 611 (6th Cir.2009) (describing
the FDCPA as “extraordinarily broad”). This is entirely consistent with the
FCCPA, which expressly provides:
Nothing in this part shall be construed to limit or restrict the
continued applicability of the federal Fair Debt Collection
Practices Act to consumer collection practices in this state.
This part is in addition to the requirements and regulations of
the federal act. In the event of any inconsistency between any
provision of this part and any provision of the federal act, the
provision which is more protective of the consumer or debtor
shall prevail.
FLA . STAT . §559.552 (emphasis added). The FCCPA also makes clear that its
remedies are “cumulative to other sanctions and enforcement provisions” for any
violation by an out-of-state consumer debt collector. FLA . STAT . §559.565.
Relevant to the question presented here, the FDCPA and FCCPA have
certain parallels. For instance, Section 559.72(9) of the FCCPA prohibits a debt
collector from “asserting the existence of [a] legal right when such person knows
that the right does not exist.”12 See FLA . STAT . §559.72(9); compare 15 U.S.C.
11
One authority explains that the FDCPA “establishes minimum boundaries for unlawful debt collection,
leaving intact state laws which provide higher levels of consumer protection from collection activity.”
104 AM. JUR. Proof of Facts 3d 1, § 5 (2009) (citing Piper v. Portnoff Law Assocs., 396 F.3d 227, 236 n.
11 (3rd Cir.2005)).
12
In contrast to the FDCPA, Section 559.72(9) of the FCCPA requires a plaintiff to demonstrate that the
debt collector defendant possessed actual knowledge that the threatened means of enforcing the debt was
11
§1692e(5). At least one federal district court has held that no state cause of action
exists under §559.72(9) of the FCCPA for failure to comply with the registration
requirement of §559.553. See Conner v. BCC Fin. Mgt. Servs., Inc., 489
F.Supp.2d 1358, 1361-62 (S.D.Fla.2007). Unifund contends that because an
analogous provision of the FCCPA does not itself support a private right of action
for failure to register, then to premise a federal cause of action upon the same
conduct and legal theory would undermine or circumvent the state’s consumer
protection scheme. We disagree.
The FCCPA unequivocally states its goal – to provide the consumer with
the most protection possible under either the state or federal statute. See FLA .
STAT . §559.552 (“In the event of any inconsistency ... the provision which is more
protective of the consumer or debtor shall prevail.”) Further, the fact that the
FCCPA deemed its remedies cumulative reveals that the Florida legislature
contemplated dual enforcement – that an “out-of-state debt collector” could quite
possibly be subject to the sanctions and enforcement provisions of both of the
various states or the FDCPA. Finally, we attribute significant weight to Florida’s
chosen means of enforcement. The Florida legislature’s determination that a debt
collector’s failure to register under FLA . STAT . §559.555 and subsequent pursuit of
unavailable. See McCorriston v. L.W.T., Inc., 536 F.Supp.2d 1268, 1279 (M.D.Fla.2008) (internal
citations omitted); Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1361-63 (S.D.Fla.2000).
12
unauthorized debt collection activity is a misdemeanor criminal act demonstrates
the seriousness with which the State of Florida intends to address violations of the
FCCPA. Unifund’s argument to the contrary is not persuasive. We therefore hold
that a violation of the FCCPA for failure to register may, in fact, support a federal
cause of action under Section 1692e(5) of the FDCPA for threatening to take an
action it could not legally take.
As explained herein, we do not hold that all debt collector actions in
violation of state law constitute per se violations of the FDCPA. Rather, the
conduct or communication at issue must also violate the relevant provision of the
FDCPA.13 See Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1099-1101 (9th Cir.
1996); Ferguson v. Credit Mgmt. Control, Inc., 140 F.Supp.2d 1293, 1302 (M.D.
Fla. 2001). “The FDCPA was designed to provide basic, overarching rules for
debt collection activities; it was not meant to convert every violation of a state
debt collection law into a federal violation. Only those collection activities that
use “any false, deceptive, or misleading representation or means,” including “[t]he
threat to take any action that cannot legally be taken” under state law, will also
constitute FDCPA violations.” Carlson v. First Revenue Assurance, 359 F.3d
1015, 1018 (8th Cir.2004); see generally, Beler v. Blatt, Hasenmiller, Leibsker &
13
With a written communication, liability will depend in large part on the particular language chosen by
the author.
13
Moore, LLC, 480 F.3d 470, 474 (7th Cir.2007) (Section 1692f “creates its own
rules (or authorizes courts ...to do so); it does not so much as hint at being an
enforcement mechanism for other rules of state and federal law.”)
We turn now to the merits of LeBlanc’s §1692e(5) claim.
B. Section 1692e(5)
Section 1692e of the FDCPA prohibits debt collectors from using “any
false, deceptive, or misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. §1692e; Sparks v. Phillips & Cohen Assocs.,
Ltd., 641 F.Supp.2d 1234, (6th Cir.2008) (explaining the “gist of §1692e” as a
requirement that any “aspect of a debt collector’s communication - whether
explicit or implied - [that] has the purpose or effect of making a debtor more
likely to respond ...” is, in fact, true.) More specifically, within the non-
exhaustive list of potential violations of Section 1692e, Subsection 1692e(5)
prohibits a debt collector from “threatening to take action that cannot legally be
taken or that is not intended to be taken.”14 15 U.S.C. §1692e(5).
As an initial matter, Unifund is subject to the FDCPA. It is undisputed
that Unifund is a “debt collector” seeking to recover from LeBlanc on an
14
For purposes of clarification, we distinguish the two different means of establishing the second part of
the §1692e(5) analysis by explaining that whether the action threatened is “one which could be legally
taken” is a separate inquiry altogether from the inquiry regarding the debt collector’s “threat to take any
action ... not intended to be taken.”
14
outstanding “consumer debt.” In addition, in light of the state court lawsuit
Unifund brought to recover on the debt, we summarily reject Unifund’s contention
that it has not engaged in “collection activity” with regards to LeBlanc.15 As a
result, our focus is on whether Unifund engaged in any practice prohibited by the
FDCPA.
The next issue then is whether, under the FDCPA, Unifund’s dunning letter
constitutes a threat to take action which could not legally be taken – namely, to
commence legal proceedings. Our framework for analysis is two-fold. First, we
consider whether the language of the letter constitutes a threat for purposes of
§1692e(5). See Jeter v. Credit Bureau Inc., 760 F.2d 1168, 1176 (11th Cir. 1985).
If so, we consider whether the action threatened is one which could be legally
taken. Id.
For reasons explained herein, we hold that in the analysis of the debt
collection practices at issue here, first and foremost, the question whether
Unifund’s dunning letter to Leblanc constitutes a threat for purposes of §1692e(5)
presents a genuine issue of material fact that precludes judgment as a matter of
15
The FDCPA does not expressly define “collection activity.” However, the Supreme Court has held
that initiation of legal proceedings by a creditor can constitute a debt collection activity. Heintz v.
Jenkins, 514 U.S. 291, 293-96 (1995) (quoting BLACK’S LAW DICTIONARY 263 (6th ed.1990) which
states that “To collect a debt or claim is to obtain payment or liquidation of it, either by personal
solication or legal proceedings.”); but see Trent v. Mortgage Elec. Registration Sys., Inc., 618 F.Supp.2d
1356 (M.D.Fla.2007) (initiation of foreclosure suit by a secured creditor is not a debt collection practice
barred by the FCCPA), aff’d, 288 Fed. Appx. 571 (11th Cir.2008).
15
law.
i. The “Least -Sophisticated Consumer” Standard
We employ the “least-sophisticated consumer” standard to evaluate whether
a debt collector’s communication violates §1692e of the FDCPA.16 Jeter, 760
F.2d at 1175-77. In adopting the “least-sophisticated consumer” standard, we
took into account the purposes of the FDCPA, the general jurisprudence
concerning §5 of The Federal Trade Commission Act (“FTC” Act),17 and the prior
FTC enforcement in the debt collection area. Jeter, 760 F.2d at 1174. Because we
thought the FDCPA sought to grant consumers more protection, we viewed the
FDCPA as an expansion of the protections provided by previously existing federal
legislation and regulation. Id. Accordingly, we rejected the “reasonable
consumer” standard in favor of the “least-sophisticated consumer” standard:
Because we believe that Congress intended the standard
under the FDCPA to be the same as that enunciated in
the relevant FTC cases ... and because we believe that
the FDCPA’s purpose of protecting consumers is best
16
In Jeter, we introduced our discussion of the legal standard as “the legal standard applicable generally
to claims of false, deceptive, or misleading representations under 15 U.S.C. §1692e.” Jeter, 760 F.2d at
1172 (emphasis provided). Nonetheless, the Jeter panel considered application of the “threatening to
take action ... not intended to be taken” portion of §1692e(5). For obvious reasons, application of the
“least-sophisticated consumer” standard was not required in that the relevant intent - whether the debt
collector truly intends to take the threatened action - is evaluated from the perspective of the debt
collector as opposed to the debtor. Id. at 1175.
17
Section 5 of the FTC Act declares unlawful “unfair or deceptive acts or practices in commerce.” 15
U.S.C. §45(a)(1).
16
served by a definition of ‘deceive’ that looks to the
tendency of language to mislead the least sophisticated
recipients of a debt collector’s letters ..., we adopt the
Exposition Press standard of least sophisticated
consumer ....
Jeter, 760 F.2d at 1175; Exposition Press, Inc. v. FTC, 295 F.2d 869 (2nd
Cir.1961).
The “least-sophisticated consumer” standard is consistent with basic
consumer-protection principles. Jeter, 760 F.2d at 1172-75(internal citations
omitted); Clomon v. Jackson, 988 F.2d 1314, 1318 (2d. Cir. 1993) (“The basic
purpose of the ‘least-sophisticated consumer’ standard is to ensure that the
FDCPA protects all consumers, the gullible as well as the shrewd.”) As we
discussed the FTC Act and its jurisprudence in Jeter, we noted:
That law was not “made for the protection of experts, but
for the public - that vast multitude which includes the
ignorant, the unthinking, and the credulous ...” and [t]he
fact that a false statement may be obviously false to
those who are trained and experienced does not change
its character, nor take away its power to deceive others
less experienced. There is no duty resting upon a citizen
to suspect the honesty of those with whom he transacts
business. Laws are made to protect the trusting as well
as the suspicious.
Jeter, 760 F.2d at 1172-73 (quoting in part Fed. Trade Comm’n v. Standard Educ.
Society, 302 U.S. 112, 116 (1937)); see also Clomon, 988 F.2d at 1318; United
17
States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir.1996).
“‘The least sophisticated consumer’ can be presumed to possess a
rudimentary amount of information about the world and a willingness to read a
collection notice with some care.” Clomon, 988 F.2d at 1319. However, the test
has an objective component in that “[w]hile protecting naive consumers, the
standard also prevents liability for bizarre or idiosyncratic interpretations of
collection notices by preserving a quotient of reasonableness ....” Nat’l Fin.
Servs., Inc., 98 F.3d at 136 (citing Clomon, 988 F.2d at 1319); Barany-Snyder v.
Weiner, 539 F.3d 327, 333 (6th Cir.2008) (“least-sophisticated consumer” standard
is an objective test); Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85 (2nd
Cir.2008) (same).
ii. Determining The Threshold Issue Under Section 1692e(5) –
Whether Unifund’s Letter Constitutes A Threat – Is For The
Jury
Determining whether Unifund’s letter could reasonably be perceived as a
“threat to take legal action” under the “least- sophisticated consumer” standard in
the circumstances of this case is best left to jury decision. In the summary
judgment context, the burden of persuasion is on Leblanc to prove that no
reasonable jury, viewing the letter through the eyes of a “least-sophisticated
18
consumer,” and making all reasonable inferences in Unifund’s favor, could find
that the letter was merely informative as opposed to threatening.18 In this case, if
the dunning letter, read as a whole, is not construed as a threat to take legal action,
LeBlanc’s FDCPA claim under §1692e(5) fails regardless of the registration issue.
The FDCPA does not define what constitutes a “threat.” Black’s Law
Dictionary defines “threat” as “a communicated intent to inflict harm or loss on
another or another’s property . . . [or] an indication of an approaching menace
[such as] the threat of bankruptcy.” BLACK’S LAW DICTIONARY 1489-90 (7th
ed. 1999); United States v. Silva, 443 F.3d 795, 797-98 (11th Cir. 2006) (where a
term is not defined within statute analysis begins with term’s plain and
unambiguous meaning). Additionally, before enactment of the FDCPA, “[t]he
FTC and the federal courts [] consistently held that it is a deceptive practice to
falsely represent that unpaid debts would be referred to a lawyer for immediate
legal action.” Jeter, 760 F.2d at 1173 (internal citations omitted). Indeed, in a
different context, we explained that a reasonable jury could find “potentially
18
Examples of how the “least-sophisticated consumer” standard has been applied by other courts to
protect consumers are discussed in Clomon, supra. The types or categories of collections notices
recognized as violations of the FDCPA in other cases include generally: 1) notices that contain language
that “overshadows” or “contradicts” other language that informs consumers of their rights; 2) notices that
mislead by employing formats or typefaces which tend to obscure important information that appears in
the notice; and 3) notices that deceive by being open to more than one reasonable interpretation, at least
one of which is inaccurate. Clomon, 988 F.2d at 1319 (internal citations omitted). Here, LeBlanc
contends that the letter was, in fact, a threat to take an action it could not legally take and, therefore, was
inaccurate.
19
deceptive or false use of threats to recommend legal action” as violative of
§1692e(5). Id. at 1179 (discussing the substantive differences between Sections
1692e(5) and (10) and 1692d of the FDCPA).
In this case, the parties heartily disagree about the nature of the letter, more
particularly, whether the letter is in any way threatening. The first paragraph of
the dunning letter explains that Unifund purchased LeBlanc’s charged off debt and
provides the particulars of the debt it seeks to collect upon. The second paragraph
includes the critical language:
“If we are unable to resolve this issue within 35 days we
may refer this matter to an attorney in your area for legal
consideration. If suit is filed and if judgment is rendered
against you, we will collect payment utilizing all
methods legally available to us, subject to your rights
below.”
(Exhibit B) (emphasis added) The third paragraph directs LeBlanc to a website
that may be used to “resolve” his account. Special instructions for making
payment (i.e., how, where, when, etc.) are included. The next paragraph contains
the “validation of debt” notice and procedures for disputing the debt required by
statute. See generally, 15 U.S.C §1692g. Then the letter is expressly identified as
a “communication [] from a debt collector” and LeBlanc is told:
“This is an attempt to collect a debt and any information
20
obtained will be used for that purpose.”
The final paragraph reads, “Please feel free to contact us ...” and provides a
telephone number and a website. As already noted, the letter is from Unifund’s
“Legal Department.” At the very bottom of the letter, an asterisk directs the
consumer to see the reverse side for “important information regarding [his]
rights.”19
In our view, reasonable jurors applying the “least-sophisticated consumer”
standard could disagree as to the inferences to be drawn from Unifund’s letter to
LeBlanc. The letter clearly serves to inform the consumer-debtor. The letter
conveys a significant amount of information to the recipient, requests action or
response from the debtor, and uses the word “please” throughout. In terms of
consequences, it reads: “If we are unable to resolve this issue within 35 days we
may refer this matter to an attorney in your area for legal consideration.” Read
literally, the letter merely advises that legal action is possible, that it is possible for
Unifund to refer the matter to an attorney for consideration, that a lawsuit is only
one possible outcome or result. Moreover, while there is no express statement
regarding what is meant by “resolve,” the fact that this option is set apart from the
19
The back of the letter includes a Privacy Statement and additional contact information for inquiries or
feedback concerning Unifund’s Privacy Policy.
21
mechanics of making payment tends to show that something less than immediate
payment in full may be acceptable. A least-sophisticated consumer could read the
letter as offering at least two options for responding. Taking the most literal
reading, a reasonable juror could find the dunning letter was more informative
than threatening and did not threaten imminent legal action.
However, a reasonable juror applying the “least-sophisticated consumer”
standard could also view this letter as either an overt or thinly-veiled threat of suit.
(See Summ.J. Order at 19.) Unifund mistakenly relies on the use of conditional
language such as “if” and “may” in an effort to safeguard the letter from being
construed as “threatening.” Despite the conditional language, a reasonable juror
could read the dunning letter as intimating that a lawsuit will follow immediately
after the end of the 35 day “grace” period. More significantly, in the event of suit,
the tone of the letter shifts to more forceful language – “If suit is filed and if
judgment is rendered against you, we will collect payment utilizing all methods
legally available to us ....” This portion of the letter supports a reasonable
inference that Unifund is threatening LeBlanc with legal action, that it is
Unifund’s intent to deprive LeBlanc of his personal property. Finally, although
not determinative, another hint or suggestion of intimidation is that the letter is
22
sent from Unifund’s “Legal Department.”20 See, e.g., Rosenau v. Unifund Corp. ,
539 F.3d 218, 224 (3d Cir. 2008) (analyzing identical language and discussing
different inferences that could be drawn from fact that collection letter is sent from
“Legal Department,” including inference that an attorney is already involved).21
In Jeter we explained that where the parties reasonably disagree on the
proper inferences that can be drawn from the debt collector’s letter, resolution is
for the trier of fact - not for the court on summary judgment. See Jeter, 760 F.2d at
1176. For these reasons, this issue is one best submitted to the finder of fact.22
iii. As An Unregistered “Out-of-State Consumer Debt Collector”
Unifund Could Not Legally Bring Suit Against LeBlanc Within
The State of Florida
We now consider the second part of the §1692e(5) analysis, namely,
whether Unifund, in its letter, threatened action which could not legally be taken.
Determining whether Unifund could legally initiate a lawsuit against LeBlanc
20
LeBlanc’s independent Section 1692e(3) claim – which prohibits “false representation or implication
that ... any communication is from an attorney” – questioned Unifund’s inclusion of “Legal Department”
in the letter but was dismissed at summary judgment. (Summ. J. Order at 12-13.) Notwithstanding
summary judgment of the §1692e(3) claim at the district court level, it is appropriate to consider this
assertion as one of several factors that may influence whether a “least-sophisticated consumer” could
find the letter threatening.
21
(Summ. J. Order at 14.)
22
Upon remand, should this factual question be decided in favor of Unifund, the remaining §1692e(5)
issues may become moot.
23
implicates the underlying Florida state statute allegedly violated by Unifund. See
FLA . STAT . §559.553.
The FCCPA requires consumer collection agencies to register as such in
accordance with §559.555 before engaging in debt collection activity within the
state. FLA . STAT . §559.553. Unifund argues that it is not subject to the FCCPA’s
registration requirement as an “out-of-state consumer debt collector” for various
reasons. We disagree. An “out-of-state consumer debt collector” is defined by the
FCCPA as:
any person whose business activities in this state involve
both collecting or attempting to collect consumer debt
from debtors located in this state by means of interstate
communication originating from outside this state and
soliciting consumer debt accounts for collection from
creditors who have a business presence in this state. For
purposes of this subsection, a creditor has a business
presence in this state if either the creditor or an affiliate
or subsidiary of the creditor has an office in this state.
FLA . STAT . §559.55(8). Thus, pursuant to the statutory definition, the business
activities of an “out-of-state consumer debt collector” must involve both
“collecting or attempting to collect consumer debt ...” and “soliciting consumer
debt accounts for collection from creditors who have a business presence within
[Florida].” Id. Consistent with the definition, the FCCPA exempts from
24
registration “[a]ny out-of-state consumer debt collector who does not solicit
consumer debt accounts for collection from credit grantors who have a business
presence [within Florida].” See FLA . STAT . §559.553(4)(h) (emphasis added).
Unifund’s business activities clearly involve “collecting or attempting to
collect consumer debt” from debtors located within Florida by means of interstate
communication originating from outside of the state. The dunning letter sent by
Unifund to Leblanc expressly states its purpose as an attempt to collect a debt. In
addition, the letter originated from outside the State of Florida and was sent via
interstate communication, namely, the U.S. Mails.23
Although Unifund claims that it does not engage in “soliciting consumer
debt accounts,” the record evidence supports the opposite conclusion.24 (See,
supra, Section “III,B,iii”) Though the statute does not define “soliciting,” the
term “solicitation” is defined as “[t]he act or an instance of requesting or seeking
to obtain something; a request or petition” or “an attempt or effort to gain
23
The letter appears to have been sent from the State of Michigan. A post office box in Linden, Michigan
is included at the top left-hand corner even though a Cincinnati, Ohio address identified within the body
of the letter as a Unifund address for making payment is also included.
24
Indeed, the district court found Defendants’ claim on this point to be “disingenuous in light of the
undisputed facts ....” (Summ.J.Order at 16)
25
business.” BLACK’S LAW DICTIONARY 1398 (7th ed. 1999). Unifund, as a
debt collector, requests or seeks new clients from other creditors and then attempts
to gain business by acquiring charged off consumer debt accounts. See
McCorriston v. L.W.T., Inc., 536 F.Supp.2d 1268, 1278 (M.D.Fla.2008)
(reasonable to infer that debt collector is in the business of “soliciting consumer
debts for collection”). Accordingly, we find that Unifund “solicits” consumer debt
accounts.25
To the extent Unifund represents that it does not itself have an office or
business presence in Florida, the fact remains that Bank One, the original creditor
and owner of LeBlanc’s debt, is an affiliate of JP Morgan Chase. Under the
statute, “a creditor has a business presence in this state if either the creditor or an
affiliate or subsidiary of the creditor has an office in this state.” FLA . STAT .
§559.55(8) (emphasis added). JP Morgan Chase has 290 offices in Florida.26
Because at least one Bank One affiliate has an office in Florida, Unifund qualifies
as an “out-of-state debt collector” within the meaning of the FCCPA.
Finally, requiring Unifund to register as a debt collector before filing a
25
W e reject Unifund’s argument that the mere purchase of an account does not involve any solicitation.
26
ank One “merged without assistance” into Chase Bank, USA, National Association on October 1, 2004. Chase
Bank, USA is an affiliate of JPMorgan Chase & Co. JPMorgan Chase & Co. maintains 290 offices in Florida. See,
e.g., publically available information found at the FDIC website: http://www2.fdic.gov/idasp.main.asp.
26
lawsuit aimed at collecting a debt does not violate Unifund’s Constitutional right
of access to the courts. Article I, Section 21 of the Florida Constitution, provides
as follows: “Access to courts. – The courts shall be open to every person for
redress of any injury, and justice shall be administered without sale, denial or
delay.” Legislatures may however “impose[] a reasonable condition precedent to
filing a claim.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1097
(Fla. 2005). Here, the FCCPA’s registration requirement does not deny Unifund
access to the courts. The FCCPA merely requires that it register as a debt
collector with the State of Florida before it may “engage in collection activities.”
The registration process is not overly burdensome, rigorous, or costly. Therefore,
requiring Unifund to register with the State of Florida before filing a lawsuit is a
reasonable condition precedent to filing a claim.
iv. The Question of Bona Fide Error Is Not Properly Before This Court
Unifund contends that even if registration was, in fact, required under the
Florida statute, it is entitled to a “bona fide error” defense and therefore not
automatically liable under the FDCPA. The bona fide error defense is found in 15
U.S.C. §1692k(c):
A debt collector may not be held liable in any
27
action brought under this subchapter if the debt collector
shows by a preponderance of evidence that the violation
was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.
See McCorriston, 536 F.Supp.2d at 1274, 1278; Heintz, 514 U.S. at 295-96
(liability under FDCPA not automatic even though debt collector is unsuccessful
in collection proceedings).
According to Unifund, there was little guidance available in November
2005, when Unifund sent its letter to LeBlanc. At that time, there was one state
appellate opinion discussing the registration requirement under the FCCPA.
Florida’s Second District Court of Appeals had opined that registration was not
necessary before initiating collection activities. See Welch v. Fla. W. Coast, Inc.,
816 So.2d 711, 713 (Fla.Dist.Ct.App.2002).27
Unifund raised the bona fide error defense in its Answer & Affirmative
Defenses filing as its Twelfth Affirmative Defense, but did not mention the
doctrine (or the statutory provision on which it relies) within its summary
27
The Welch opinion preceded the FCCPA’s 2003 amendments, including the addition of Section
559.785, making certain acts of non-compliance a misdemeanor criminal offense of the first degree. To
the extent Welch was authoritative in 2005, it seems that any debt collector familiar with the 2003
amendments might have chosen a more cautious course of action and simply registered before engaging
in the debt collection business within Florida.
28
judgment memoranda.28 Because applicability of the bona fide error defense was
not presented to the district court at summary judgment, and consequently not
addressed by the district court in the appealable final order, it is not properly
before this Court on appeal.
“This Court has repeatedly held that an issue not raised in the district court
and raised for the first time in an appeal will not be considered by this court.”
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004)
(internal quotations and citations omitted); see also Midrash Sephardi, Inc. v.
Town of Surfside, 366 F.3d 1214, 1222 n. 8 (11th Cir.2004) (“The district court
was not presented with and did not resolve [the legal question]. Therefore, we will
not consider this argument on appeal.”) The purpose for the rule is this:
“[W]e review claims of judicial error in the trial
courts. If we were to regularly address questions -
particularly fact-bound issues - that districts court never
had a chance to examine, we would not only waste our
resources, but also deviate from the essential nature,
purpose, and competence of an appellate court.”
Access Now, Inc., 385 F.3d at 1331. In other words, as explained on prior
28
In its Twelfth Affirmative Defense, Unifund states: “To the extent that any violation of the FDCPA
and the FCCPA took place, said violation was not intentional and resulted from a bona fide error that
occurred notwithstanding the maintenance of procedures reasonably adopted to avoid such errors, and
thus creates an exception barring any claim under the FDCPA and the FCCPA.” (Def.’s Answer &
Affirmative Defenses at 9)
29
occasions, “We cannot allow Plaintiff to argue a different case from the case . . .
presented to the district court.” Id. (quoting Irving v. Mazda Motor Corp., 136
F.3d 764, 769 (11th Cir.1998)).
C. Section 1692f
LeBlanc was also successful in the district court on his Section 1692f claim.
Section 1692f of the FDCPA prohibits a debt collector from “using unfair or
unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. §1692f.
The FDCPA identifies various ways in which a debt collector might violate
§1692f, but also explains that the examples within the subsections are not intended
to limit general application of the “unfair or unconscionable” means prohibition.
See 15 U.S.C. §1692f(1)-(8). LeBlanc initially alleged that Unifund sought to
collect an amount not “expressly authorized by the agreement creating the debt or
otherwise permitted by law.”29 15 U.S.C. §1692f(1). However, this theory was
abandoned below as LeBlanc was unable to produce any evidence in support of
his claim that the credit card debt (balance or interest rate) was incorrect.
After electing to forego any challenge concerning the amount of his debt
obligation, LeBlanc relied instead on Unifund’s non-compliance with §559.553 as
29
Subsection 1692f(1) prohibits “[t]he collection of any amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by law.”
30
the alleged “unfair or unconscionable” means. The district court held that because
Unifund was, in fact, required to register as an “out-of-state consumer debt
collector” per Florida law before threatening legal action, it was “compelled to
conclude that, at a minimum, Unifund used unfair means in an effort to attempt
to collect the debt.”30 (Summ. J. Order at 22) (emphasis added). In other words,
the lower court based its decision regarding Unifund’s liability under §1692f on its
§1692e(5) findings. Because we find LeBlanc’s §1692f claim dependent in part
upon his success under §1692e(5), remand is required.31 However, in the interest
of providing the trial court with the necessary guidance, we address the pertinent
legal arguments raised on appeal.
Aside from the examples of violations provided within Section 1692f, the
FDCPA does not purport to define what is meant by “unfair” or “unconscionable.”
See Beler, 480 F.3d at 474 (With respect to Section 1692f, “[t]he phrase ‘unfair or
unconscionable’ is as vague as they come.”) The plain meaning of “unfair” is
30
The district court cited the Kuhn and Gaetano decisions as persuasive authority. See Kuhn, 865
F.Supp. at 1452 (failure of debt collector to comply with state’s licensing requirement deprived consumer
of her right to have the state authorities review debt collector’s qualifications as collection agency);
Gaetano, 774 F.Supp. at 1415.
31
If a jury were ultimately to conclude that the letter could not reasonably have been viewed by a “least-
sophisticated consumer” as a “threat to take an action that cannot legally be taken,” it’s doubtful the
letter could be perceived as “unfair” or “unconscionable.”
31
“marked by injustice, partiality, or deception.”32 Significantly, in Jeter, we noted
in dictum that in the FTC context, “[a]n act or practice is deceptive or unfair ... if it
has the tendency or capacity to deceive.” Jeter, 760 F.2d at 1172. The term
“unconscionable” means “having no conscience”; “unscrupulous”; “showing no
regard for conscience”; “affronting the sense of justice, decency, or
reasonableness.” BLACK’S LAW DICTIONARY 1526 (7th ed. 1999).
Unifund suggests that failure to register under §559.555 of the FCCPA
cannot sustain the cause of action since it does not constitute a “means” for
purposes of LeBlanc’s §1692f claim. “Means” is defined as “a method, a course of
action, or an instrument by which an act can be accomplished or an end achieved.”
AMERICAN HERITAGE DICTIONARY 1116 (3d ed. 1992). The proper
inquiry is not whether failure to register constitutes a “means,” but whether
Unifund’s failure to register makes the chosen means “unfair or unconscionable.”
Here, it is the letter sent by Unifund to Leblanc that is the designated “means” of
attempting to collect a consumer debt. Therefore, Unifund’s lack of registration
with the State of Florida is an appropriate consideration in deciding whether
Unifund’s “means” of collection were “unfair or unconscionable.”
32
See “unfair.” Merriam-Webster Online Dictionary. 2010. 11 February 2010
32
LeBlanc’s Section 1692f claim should also be viewed through the lens of
the “least-sophisticated consumer.” We addressed multiple FDCPA claims in
Jeter including claims asserted under §§1692e(5), (10), and 1692d. While we
explained that the same standard should be applied under the FDCPA as with its
predecessor, the FTC, we did not adopt the “least-sophisticated consumer”
standard for all purposes. Because fairness and unconscionability necessarily
include inquiry regarding deceptiveness, and because this inquiry is less
dependent upon the individual debtor’s circumstances than the “means” employed
by the debt collector and the debtor’s reaction to said means, we deem LeBlanc’s
§1692f claim more akin to §1692e than §1692d. Accordingly, consistent with the
other circuits that have decided the issue, we hereby adopt the “least-sophisticated
consumer” standard for §1692f analyses.33 See, e.g., Hartman, 569 F.3d at 611-12
33
For purposes of §1692d, we adapted the “least-sophisticated consumer” standard in order to take into
account factors other than a debtor’s level of sophistication. Jeter, 760 F.2d at 1179. Section 1692d of
the FDCPA encompasses “conduct the natural consequences of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.” 15 U.S.C. §1692d. In keeping with the aims of the
FDCPA, and the type of language that may offend or abuse, we recognized “[t]hat every individual,
whether or not he owes the debt, has a right to be treated in a reasonable or civil manner.” Jeter, 760
F.2d at 1178 (quoting 123 Cong. Rec. 10241 (1977)). We explained:
Whether a consumer is more or less likely to be harassed, oppressed, or abused by
certain debt collection practices does not relate solely to the consumer’s relative
sophistication; rather, such susceptibility might be affected by other circumstances of the
consumer or by the relationship between the consumer and the debt collection agency.
For example, a very intelligent and sophisticated consumer might well be susceptible to
harassment, oppression, or abuse because he is poor (i.e., has limited access to the legal
system), is on probation, or is otherwise at the mercy of a power relationship. Although
the standard enunciated [with respect to 1692e] is not precisely applicable here, we
believe that the consumer protective purposes of the FDCPA require us to adopt an
analogous standard for violations of §1692d. Thus, we hold that claims under §1692d
33
(applying least-sophisticated consumer” standard to claims under §§1692e,
1692e(10), and 1692f); Wade, 87 F.3d at 1099-1100 (applying “least -
sophisticated consumer” standard to claims under §§1692e(10) and 1692f).
Finally, as with our evaluation of §1692e(5), whether Unifund’s letter
constitutes an “unfair or unconscionable means to ... attempt to collect a debt” for
purposes of §1692f presents a jury question.
D. Unifund’s General Partners ZB and CCR Are At Least Jointly
and Severally Liable for any Judgment Rendered Against
Unifund Regardless of Whether They Violated the FDCPA or
Their Status as Debt Collectors
Unifund also appeals the district court’s finding that its general partners are
also liable under the FDCPA. While the issue of general partner liability under the
FDCPA has never been decided in our Circuit, other circuit courts have found that
partners of a debt collector limited partnership may be held vicariously liable for
the partnership’s conduct. See Berlin v. Litton Loan Servicing, LP, No. 8:06-cv-
760-T-24, 2006 WL 1992410, at *2 (M.D.Fla. July 14, 2006)(citing Police v. Nat’l
should be viewed from the perspective of a consumer whose circumstances makes him
relatively more susceptible to harassment, oppression, or abuse.
Jeter, 760 F.2d at 1179 (“[d]eception or falsehood alone ... is wholly different from the conduct
condemned in (1) through (6) of §1692d).
34
Tax Funding, L.P., 225 F.3d 379, 405 (3d Cir. 2000); Miller v. McCalla, Raymer,
Padrick, Cobb, Nichols, and Clark, L.L.C., 214 F.3d 872, 876 (7th Cir. 2000)).
There is no dispute that ZB and CCR are general partners of Unifund.
The district court correctly noted that Florida’s law of partnerships provides
that the law of the “jurisdiction in which a partnership has its chief executive
office governs relations among partners and between partners and a partnership.”
FLA . STAT . §620.8106(1). Because Unifund is an Ohio corporation, Ohio law
governs general partner liability. Under Ohio law, “where loss or injury is caused
to any person . . . or any penalty is incurred, by any wrongful act or omission of
any partner acting in the ordinary court of the business . . . the partnership is liable
therefore to the same extent as the partner so acting or omitting to act.” OHIO REV .
CODE ANN . §1775.12; See Wayne Smith Constr. Co., Inc. v. Wolman, Duberstein
& Thompson, 604 N.E.2d 157, 161 (Ohio 1992). While ZB and CCR may not be
debt collectors under the FDCPA, that fact is immaterial because they are general
partners of Unifund.34 Thus, ZB or CCR are liable “to the same extent” as
Unifund regardless of whether or not ZB or CCR are debt collectors, and whether
or not the ZB or CCR entities violated the FDCPA.
IV.
34
ZB and CCR conceded below that their liability could stem from general partnership law. (Summ. J.
Order at 4 n. 5)
35
For all these reasons, the district court’s grant of partial summary judgment
in favor of LeBlanc as to his claims pursuant to 15 U.S.C. §§1692e(5) and 1692f
is REVERSED and REMANDED for further proceedings consistent with this
opinion.
36