503 F.3d 504 (6th Cir. 2007), 06-4335, Federal Home Loan Mortg. Corp. v. Lamar

Docket Nº:06-4335.
Citation:503 F.3d 504
Party Name:FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff-Appellee, Lerner, Sampson & Rothfuss, L.P.A., Defendant-Appellee, Scott Harner; Cleveland Process Service, LLC, Defendants, v. Cynthia G. LAMAR, Defendant-Appellant.
Case Date:September 25, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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503 F.3d 504 (6th Cir. 2007)

FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff-Appellee,

Lerner, Sampson & Rothfuss, L.P.A., Defendant-Appellee,

Scott Harner; Cleveland Process Service, LLC, Defendants,

v.

Cynthia G. LAMAR, Defendant-Appellant.

No. 06-4335.

United States Court of Appeals, Sixth Circuit.

Sept. 25, 2007

Argued: July 26, 2007.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 05-01455-Donald C. Nugent, District Judge.

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[Copyrighted Material Omitted]

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ARGUED:

Thomas A. Barni, Dinn, Hochman, Potter & Levy, Cleveland, Ohio, for Appellant.

Rick D. DeBlasis, Lerner, Sampson & Rothfuss, Cincinnati, Ohio, for Appellees.

ON BRIEF:

Thomas A. Barni, Renee S. Pienta, Dinn, Hochman, Potter & Levy, Cleveland, Ohio, for Appellant.

Rick D. DeBlasis, Lerner, Sampson & Rothfuss, Cincinnati, Ohio, for Appellees.

Before: BATCHELDER and GRIFFIN, Circuit Judges; ACKERMAN, District Judge.[*]

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Cynthia G. Lamar appeals the district court's grant of summary judgment in favor of Lerner, Sampson, & Rothfuss, L.P.A. ("LS&R") on Lamar's claim that LS&R violated the notice provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et. seq., when LS&R included the statutorily-required notice with the summons and complaint it served Lamar. Because LS&R effectively conveyed notice of Lamar's right to dispute the validity of her debt, we AFFIRM the district court.

I. BACKGROUND

On May 17, 2005, Federal Home Loan Mortgage Corporation contacted LS&R to institute mortgage foreclosure proceedings against Lamar. On May 23, 2005, LS&R filed a summons and complaint in foreclosure against Lamar in the Northern District of Ohio. Pursuant to § 1692g of the FDCPA, LS&R included a notice provision located immediately below the case caption and immediately above the complaint. Though not preceded by the caption "Notice," the notice provision was the first substantive text in the complaint. The notice provision stated:

The Summons attached to this Complaint advises you of certain of your rights under state law for responding to this Complaint. Among these rights is your right to serve your Answer upon Lerner, Sampson, & Rothfuss within twenty (20) days. If your name appears in numbered paragraph 1 below, you have additional rights under federal law to request certain information from Lerner,

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Sampson & Rothfuss within thirty (30) days. These time periods run at the same time and start on the day after you receive this Complaint.

The federal Fair Debt Collection Practices Act requires that Lerner, Sampson & Rothfuss provide you with the following information. The amount of the debt, as of May 20, 2005, is $121,289.78. This amount is made up of your principle balance, interest, late charges, and amounts expended by the creditor, such as for taxes and insurance. Because many of these items vary from day to day, the amount due on the day you pay will be greater. Hence, if you pay the amount shown above, an adjustment will be necessary after we receive your check.

The creditor to whom the debt is owed is the plaintiff listed above. Unless, within thirty (30) days of your receipt of this Notice, you notify Lerner, Sampson & Rothfuss that you dispute the validity of this debt or any portion of it, Lerner, Sampson & Rothfuss will assume the debt is valid. Lerner, Sampson & Rothfuss is a debt collector. This is an attempt to collect a debt, and any information obtained will be used for that purpose.

If you notify Lerner, Sampson & Rothfuss in writing within thirty (30) days of the receipt of this Notice that the debt or any portion thereof is disputed, Lerner, Sampson & Rothfuss will obtain a verification of the debt and will mail a copy of that verification to you. If the creditor named as plaintiff above is not the original creditor, and if you make written request to Lerner, Sampson & Rothfuss within thirty (30) days from receipt of this notice, Lerner, Sampson & Rothfuss will provide you with the name and address of the original creditor.

LS & R waited three weeks for confirmation of service from Lamar. On June 14, 2005, LS&R initiated personal service of the summons and complaint through Cleveland Process Service, LLC and Scott Harner.1 The next day, June 15, Lamar received the complaint and summons via certified mail. On June 16, a certified mail return indicating service upon Lamar was filed with the court and the court sent notice to the attorney of record at LS&R. Despite receiving notice that Lamar had been served by certified mail, LS&R failed to inform Harner of successful service, and Harner personally served Lamar with a second, albeit identical, summons and complaint on June 23, 2005. Lamar answered the complaint and filed a third-party complaint against LS&R alleging that LS&R violated the FDCPA and the Ohio Consumer Sales Practices Act ("OCSPA"), Ohio Rev. Code Ann. § 1345.01 et seq. The record is silent as to whether Lamar sought to dispute the debt described in the complaint.

Both Lamar and LS&R moved for summary judgment on Lamar's FDCPA and OCSPA claims. The district court granted summary judgment in favor of LS&R. Lamar noticed a timely appeal.

II. ANALYSIS

We review de novo the district court's grant of summary judgment. Edgar v. JAC Prods., Inc., 443 F.3d 501, 506 (6th Cir. 2006). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "We view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party."

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Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (citing to Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). If, after reviewing the record as a whole, a rational fact finder could not find for the nonmoving party, summary judgment is appropriate. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998). The parties do not dispute the underlying facts, and present only questions of law.2

A. Fair Debt Collection Practices Act

Congress enacted the FDCPA in order "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). "Congress designed the [FDCPA] to 'eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.' " Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988) (quoting S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699).

1. § 1692g--Validation Notice

Section 1692g(a) "requires debt collectors to issue a 'validation notice,' either in the initial communication with a consumer or within five days of that initial communication, that informs the consumer of certain rights including the right to make a written request for verification of the debt and to dispute the validity of the debt." Jacobson v. Healthcare Fin. Servs., Inc., 434 F.Supp.2d 133, 139 (E.D.N.Y. 2006). Section 1692g(a) provides:

(a) Notice of debt; contents. Within five days after the initial communication3 with a consumer in connection

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with the collection of any debt, a debt...

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