Michael v. Javitch, Block & Rathbone, LLP

• Decision Date: 15 November 2011
• Docket Number: Case No. 1:11 CV 926.
• Parties: Melissa MICHAEL, Plaintiff, v. JAVITCH, BLOCK & RATHBONE, LLP, Defendant.
• Court: U.S. District Court — Northern District of Ohio

825 F.Supp.2d 913

Melissa MICHAEL, Plaintiff,

v.JAVITCH, BLOCK & RATHBONE, LLP, Defendant.

Case No. 1:11 CV 926.

United States District Court, N.D. Ohio, Eastern Division.

Nov. 15, 2011.

James P. Sammon, Thomas J. Connick, Dubyak Connick Thompson & Bloom, Cleveland, OH, for Plaintiff.

Michael D. Slodov, Javitch, Block & Rathbone, Cleveland, OH, for Defendant.

MEMORANDUM OPINION

DONALD C. NUGENT, District Judge.

This matter is before the Court on the Motion for Judgment on the Pleadings filed by Defendant, Javitch, Block & Rathbone, LLC, on September 21, 2011. (Docket # 26.) On September 9, 2011, Plaintiff, Melissa Michael, filed her First Amended Complaint (Docket # 22) against Defendant, asserting violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. and State law. Plaintiff alleges that the letter Defendant sent her regarding an outstanding credit balance failed to conform to the law and constitutes an unfair debt collection practice. Plaintiff brought her Complaint on behalf of herself, and others similarly situated.

Plaintiff filed her Brief in Opposition to Defendant's Motion for Judgment on the Pleadings on October 21, 2011. (Docket # 30.) Defendant filed its Reply Brief on October 26, 2011. (Docket # 32.) ¹

Factual Background

On or about May 12, 2010, Citibank placed a credit card debt allegedly owed by Plaintiff for collection with Defendant. On May 18, 2010, as required by 15 U.S.C. § 1692g, Defendant sent Plaintiff a letter, which reads as follows:

* * * RE: File No–RCD J35549 nyh

Creditor—Citibank (South Dakota), N.A.

THE HOME DEPOT

Balance Due-$2,725.00

We represent the above creditor concerning the above balance due, which was placed with us for collection.

Although we are a law firm, at this time, no attorney has evaluated your case, or made any recommendations regarding the validity of the creditor's claims, or personally reviewed the circumstances of your account. If making a payment, payment should be made payable to the creditor listed above.

To discuss this matter, please contact:

Michael Collins

at (800) 837–4601 (toll free) weekdays during business hours.

Unless you, within thirty days after receipt of this notice, dispute the validity of this debt, or any portion thereof, the debt will be assumed to be valid by us. If you notify us in writing within the thirty-day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt and a copy of such verification will be mailed to you by us. Upon your written request within the thirty-day period, we will provide you with the name and address of the original creditor, if different from the current creditor. We as a debt collector are attempting to collect a debt and any information obtained will be used for that purpose.

Our request that you contact us by telephone does not affect the requirement under federal law that to obtain verification of the debt, you are required to timely notify us of a dispute in writing.

Sincerely,

Javitch, Block & Rathbone LLP

Plaintiff alleges that prior to May 18, 2010, the date of Defendant's letter, she negotiated a payment plan with CitiBank, by which she would pay $50 per month toward her total debt of $2,775.00. The terms and conditions of this agreement were memorialized in a letter from CitiBank to Plaintiff, dated May 12, 2010. There is no allegation in the Complaint that Defendant knew of this agreement prior to sending its letter to Plaintiff.

Plaintiff does not allege that she timely disputed the validity of the debt or requested verification of the debt.

Defendant filed suit against Plaintiff in the South Euclid Municipal Court, Case No. 10CVF490 on or about June 28, 2010. Counsel for Plaintiff, Mr. Connick, entered his appearance in that case on or about July 20, 2010. On August 6, 2010, Mr. Connick sent Defendant a letter explaining Plaintiff's repayment arrangement. On August 16, 2010, Mr. Connick spoke with the attorney handling the South Euclid Municipal Court case, who then conferred with Citibank. On August 27, 2010, Defendant dismissed the South Euclid Municipal Court case without prejudice by Notice of Voluntary Dismissal.

Plaintiff filed her First Amended Complaint on September 9, 2011 (Docket # 22). In Count I, Plaintiff alleges numerous violations of the FDCPA, and states that she raises her claims on behalf of herself and four sub-classes. Specifically, Plaintiff states the following:

Defendant violated the FDCPA by falsely representing the character, amount or legal status of debt. (Complaint at Paragraph 73.)

Defendant violated the FDCPA by falsely misrepresenting and/or using of a business, company, or organization name other than the true name of the Defendant's business, company, or organization. (Complaint at Paragraph 74.)

Defendant violated the FDCPA by wrongfully attempting to collect a non-defaulted debt subject to a pay back agreement. (Complaint at Paragraph 75.)

Defendant violated the FDCPA by failing to advise unrepresented consumers, such as Plaintiff, that they could take no legal action against them. (Complaint at Paragraph 76.)

Defendant violated the FDCPA by using the authority and credibility created by its letterhead to collect debt and/or convey the threat of suit, without any meaningful review of the consumer's account. (Complaint at Paragraph 77.)

Defendant violated the FDCPA by using its position and title as attorneys in order to add a false sense of heightened urgency and intimidation to its collection practices, without any meaningful attorney review of the consumer's account. (Complaint at Paragraph 78.)

Defendant violated the FDCPA by mailing a letter that would confuse the “lease sophisticated consumer” about his/her rights. (Complaint at Paragraph 79.)

The absence of attorney evaluation violates Section 1692e(3) of the FDCPA, which prohibits the “false representation or implication that any individual is an attorney or that any communication is from an attorney.” (Complaint at Paragraph 80.)

Defendant violated the FDCPA by mailing a letter that implied that an attorney, acting as an attorney was involved in collecting Plaintiff's debt. (Complaint at Paragraph 81.)

Defendant violated the FDCPA by making a letter that failed to disclose that the contact person was a paralegal—and not an attorney—thus conveying the “least sophisticated consumer” that an attorney had reviewed their file and determined that he/she was a candidate for legal action. (Complaint at Paragraph 82.)

Defendant violated the FDCPA by mailing a letter that was false and misleading in that it raised the specter of potential legal action by using its law firm title to collect a debt when the firm was not acting in its legal capacity when it sent the letters. (Complaint at Paragraph 83.)

Defendant violated the FDCPA by mailing a letter with an alleged (and insufficient) disclaimer that failed to clarify to the “least sophisticated consumer” that the law firm, despite overshadowing representations in the letter, was acting solely as a debt collector. (Complaint at Paragraph 84.)

In Count 2, Plaintiff alleges a State law claim for false light invasion of privacy. Plaintiff states that the lawsuit filed against her by Defendant in the South Euclid Municipal Court placed her in a false light in the public record because she was not in default of her debt.

Standard of Review

The Sixth Circuit reviews motions for judgment on the pleadings under Fed.R.Civ.P. 12(c) under the de novo standard applicable to motions to dismiss under Rule 12(b)(6). See Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 n. 1 (6th Cir.1988). Correspondingly, the standard of review used by a district court to rule on a motion for judgment on the pleadings is the same as the standard used to rule on Rule 12(b)(6) motions. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a defendant to test the legal sufficiency of a complaint without being subject to discovery. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir.2003). In evaluating a motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, accept its factual allegations as true, and draw reasonable inferences in favorable of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007). The court will not, however, accept conclusions of law or unwarranted inferences cast in the form of factual allegations. See Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir.2000).

In order to survive a motion to dismiss, a complaint must provide the grounds of the entitlement to relief, which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citation omitted); see Association of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir.2007) (recognizing that the Supreme Court “disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)”). Accordingly, the claims set forth in a complaint must be plausible, rather than conceivable. See Twombly, 127 S.Ct. at 1974.

On a motion brought under Rule 12(b)(6), the court's inquiry is limited to the content of the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint may also be taken into account. See Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001). It is with this standard in mind that the instant Motion must be decided

Discussion

Congress enacted the FDCPA in order ...