Barany-Snyder v. Weiner, 07-3244.

• Citation: 539 F.3d 327
• Decision Date: 22 August 2008
• Docket Number: No. 07-3244.,07-3244.
• Parties: Michelle K. BARANY-SNYDER, Plaintiff-Appellant, v. Keith D. WEINER; Keith D. Weiner & Associates Co., L.P.A.; and Scott W. Paris, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

539 F.3d 327

Michelle K. BARANY-SNYDER, Plaintiff-Appellant, v. Keith D. WEINER; Keith D. Weiner & Associates Co., L.P.A.; and Scott W. Paris, Defendants-Appellees.

No. 07-3244.

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2008.

Decided and Filed: August 22, 2008.

ARGUED:

Blake O. Brewer, Blake Owen Brewer Company, Independence, Ohio, for Appellant. David Kerwin Frank, Mazanec, Raskin, Ryder & Keller Co., Columbus, Ohio, for Appellees.

ON BRIEF:

Blake O. Brewer, Blake Owen Brewer Company, Independence, Ohio, Stephen R. Felson, Law Office, Cincinnati, Ohio, for Appellant. David Kerwin Frank, Mazanec, Raskin, Ryder & Keller Co., Columbus, Ohio, for Appellees.

Before: GIBBONS and SUTTON, Circuit Judges; ACKERMAN, District Judge.^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

This case arises out of a state court debt collection action brought by defendants-appellants Keith D. Weiner, Keith D. Weiner & Associates Co., L.P.A., and Scott W. Paris (collectively, "defendants") against plaintiff-appellant Michelle K. Barany-Snyder. Barany-Snyder alleges that defendants engaged in improper debt collection in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and seeks to represent a class of similarly situated individuals. Pursuant to Federal Rule of Civil Procedure 12(c), the district court granted judgment on the pleadings in favor of defendants, and Barany-Snyder now appeals. Defendants, in turn, assert that they are entitled to immunity from suit, and they further argue that the statute of limitations bars at least part of Barany-Snyder's FDCPA claims.

For the following reasons, we affirm the judgment of the district court.

I.

Keith D. Weiner and Scott W. Paris are debt-collection attorneys who practice on behalf of Keith D. Weiner & Associates, L.P.A., a law firm. On July 1, 2003, defendants filed a lawsuit against Barany-Snyder in Berea Municipal Court, Cuyahoga County, Ohio, seeking to recover $8,146.53, plus interest at the rate of 16% per annum and costs. Attached to the complaint ("Berea Complaint") was a two-page "Revolving Credit Agreement" upon which the claim was based. Pursuant to the Credit Agreement, Baldwin-Wallace College extended credit to Barany-Snyder, a student at the college, for the payment of fees imposed by the college. Significantly, the Credit Agreement contained the following attorney's fees provision:

I/We understand that upon default of any, or all of the terms and conditions of this credit agreement and upon proper service of a NOTICE OF DEFAULT by the College, all signers immediately become, at the option of the college, liable for attorney fees and/or actual or reasonable collection costs which may be added to the Total Amount Due.

The complaint itself, however, did not seek attorney's fees. On November 21, 2003, the Berea Municipal Court entered judgment in favor of the college in the amount of $8,146.53, plus interest at the rate of 16% per annum from October 4, 2002, and court costs. The court did not award the college attorney's fees, however, as the college did not seek or request such an award.

On April 5, 2004, Barany-Snyder filed a Chapter 7 bankruptcy petition in the Northern District of Ohio, which resulted in a stay of the state court proceedings. On May 22, 2006, following the conclusion of bankruptcy court proceedings, defendants filed a motion to lift the stay in Berea Municipal Court. Barany-Snyder obtained counsel and opposed the motion. On June 9, 2006, defendants filed a document entitled "Judgment Creditor's Response to Judgment Debtor's Response to Motion to Lift Stay" ("Berea Reply Brief"), to which a copy of the Credit Agreement was attached. Barany-Snyder then moved to reopen her bankruptcy case, and the bankruptcy court ultimately discharged the debt in question on May 2, 2007.

On August 31, 2006, Barany-Snyder filed a class action complaint against defendants in the United States District Court for the Northern District of Ohio and subsequently filed an amended complaint on October 20, 2006. The amended complaint alleged that defendants violated a number of provisions of FDCPA, as well as the Ohio Consumer Sales Practices Act ("OCSPA"), Ohio Rev.Code § 1345.01 et seq. Essentially, the complaint asserted that because Ohio law prohibits creditors from recovering attorney's fees in connection with the collection of a consumer debt, defendants violated provisions of the FDCPA and the OCSPA when they attached the Credit Agreement—which contained an attorney's fees provision—to the Berea Complaint and to the Berea Reply Brief.

Defendants filed a Rule 12(c) motion for judgment on the pleadings. In an opinion and order issued on January 24, 2007, the district court concluded that Barany-Snyder failed to state a claim under 15 U.S.C. §§ 1692e(2)(A), (2)(B), (5), (10), and 1692f(1). Additionally, the district court rejected defendants' claim of litigation immunity and declined to exercise supplemental jurisdiction over Barany-Snyder's OCSPA claim.

Barany-Snyder filed this timely appeal on February 12, 2007. Defendants filed a cross-appeal, ostensibly from the district court's determination that they were not entitled to immunity from suit. Upon a motion filed by Barany-Snyder, a panel of this court dismissed the cross-appeal, as the district court had entered a judgment in defendants' favor.

II.

On appeal, defendants have raised, albeit obliquely, a statute of limitations defense to Barany-Snyder's FDCPA claims. This cursory argument has been waived, for "[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) (citation and quotation marks omitted). Nor was this issue adequately presented to the trial court. While defendants asserted a general statute of limitations defense in their answer, this defense was not raised in defendants' motion for judgment on the pleadings. Defendants did raise the statute of limitations issue briefly in their reply brief below, but the district court did not address the issue—an apt decision, given that this court has noted that "[r]aising [an] issue for the first time in a reply brief [in the district court] does not suffice" to preserve the argument for appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008) (quoting Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed.Cir.2002)). We thus need not consider this argument. "Issues that are not squarely presented to the trial court are considered waived and may not be raised on appeal." Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996).

III.

We review a district court's grant of judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) de novo, just as we review a Rule 12(b)(6) motion to dismiss. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.2007); Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007). Accordingly, "we construe the complaint in the light most favorable to the nonmoving party, accept the well-pled factual allegations as true, and determine whether the moving party is entitled to judgment as a matter of law." Commercial Money Ctr., 508 F.3d at 336. Although our decision rests primarily upon the allegations of the complaint, "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint[] also may be taken into account." Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)) (emphasis omitted). The court "need not accept the plaintiff's legal conclusions or unwarranted factual inferences as true." Commercial Money Ctr., 508 F.3d at 336. To withstand a Rule 12(c) motion for judgment on the pleadings, "a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory." Id.

IV.

Barany-Snyder claims that defendants violated 15 U.S.C. §§ 1692e(2)(A), (2)(B), (5), (10), and 1692f(1) by attaching the Credit Agreement to the Berea Complaint and the Berea Reply Brief. As noted above, Ohio law prohibits creditors from recovering attorney's fees in connection with the collection of a consumer debt. See Ohio Rev.Code § 1301.21; Gionis v. Javitch, Block & Rathbone, LLP, 238 Fed. Appx. 24, 25 (6th Cir.2007).¹ Thus, Barany-Snyder contends, the attachment of the Credit Agreement—which stated that, upon default, "all signers immediately become, at the option of the college, liable for attorney fees and/or actual or reasonable collection costs"—violated certain provisions of the FDCPA prohibiting false, deceptive, or misleading representations in connection with the collection of a debt.

As noted above, Congress enacted the FDCPA to eliminate "abusive, deceptive, and unfair debt collection practices." 15 U.S.C. § 1692(a). "When interpreting the FDCPA, we begin with the language of the statute itself." Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir. 1999). As this court has noted, the FDCPA is "extraordinarily broad," crafted in response to what Congress perceived to be a widespread problem. Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir.1992). Courts use the "least sophisticated consumer" standard, an objective test, when assessing whether particular conduct violates the FDCPA. Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006). This standard ensures "that the FDCPA protects all consumers, the gullible as well as the shrewd." Kistner v. Law Offices of Michael P. Margelefsky, LLC., 518 F.3d 433, 438 (6th Cir.2008) (quotation marks and citations omitted). Nonetheless, the standard "also prevents 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...