NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0181n.06 No. 10-1152 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BERYL L I

N GAMB Y; HAROL D GAMB Y, P laintif fs-App ellants,

v. EQUI FAXI

NFO RMATI ON SERVI CES L L C et al., Defendan ts, FI RST NATI ONAL

BA NK, of Omaha, Defendan t-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

O P I N I O N

Before: M OORE an d COLE , Circuit Judges; BECKWITH, Senior DistrictJudge. * KA REN NELSO N MOORE, Circuit Judge. In 2006, Plaintiffs-Appellants Har old O. and Be ry llin Gamby filed suit ag ainst sever al entities, including Def endant- App e ll e e F ir st National Ba nk of Omaha (“F NB O” or “the Ba nk”), alleg ing viola t i o n s o f the Fa ir Debt Collection Practice s Act (“F DCPA”), the Fa ir Credit R eporting Act (“F CRA”), and the M ichig an C ollection Practice s Act (“MCPA”). Their claims ar o se out of FNB O’s attempts to collect pay ment on a debt incurre d because of their son Har old J

. Gamby ’s unauthorized use of the FNB O cre dit-car d acc ount. This

The Honor able Sandr a S. Be ckwith, Senior United States District Judge f or the Southern * District of Ohio, sitting by desig nation.No. 10-1152

Gamby e t al. v. Equifax Information Service s LL C et al.

ap p ea l ch al leng es only the district court’s dispositi on of the Gamby s’ claims under the MCPA ag ainst FNB O. The district court g rante d a decla ratory judgme nt in favor of the Gamby s on the issue of their liability for the debt but denied judgme nt as a matter of law on the Gamby s’ MCPA claims alleg ing that FNB O made false or misleading statements rela ting to that de bt. Be cause the MCPA is a strict liabilit y s t atut e, those ruling s wer e fundame ntally inconsistent. The district court’s deter mination that the Gamby s did not owe the debt establishes that the Bank’s earlier statements to the contra

ry wer e false. As a result , we m u s t RE VERSE the district court’s order denying judgme nt as a matter

of law a nd REMAND for pr ocee dings c onsistent with thi s opinion. I. BACKG ROUND The Gamby s filed suit ag ainst FNB O on Marc h 9, 2006 for alleg ed violations arising from 1 the Ba nk’s debt-c ollection eff

orts on cre dit-car d debt that the Gamby s claimed did no t b elong to them. The complaint included claims under fede ral and state debt-c ollection statutes, including the FDCPA, the FCRA, and the MCPA, as well as a reque st for a decla ratory judgme nt specify

ing that the Gamby s wer e not le g ally responsible for the amount owed. O n J une 9, 2009, the district c ourt denied both par

ties’ motions for summary judgme nt, and the ca se proc eede d to a jury trial. During trial, the p ar t i es es t ab lished the foll owing fac ts. The Gamby s opened a j oint Flee t

cre dit-car d acc ount in September 2001. I n late 2002, the car d was repor ted as lost or stolen and the Gamby s rec eived a new acc ount number. At about the same time and for rea sons neither party could

The complaint also included a number of other defe ndants that are no longe r parties to the 1 case and ar e ther efor e not discussed in this opinion. 2No. 10-1152

Gamby e t al. v. Equifax Information Service s LL C et al. explain, the statements associate d with the new acc ount number beg an g oing to a Sterling Heig hts, Michig an address t hat belonged to the Gamby s’ s on, Har old J

. Gamby

. The G am b y s nonetheless continued to pay the acc ount until April 2003, when Mrs. Gamby notified a Flee t repr esenta tive via telephone tha t she intended to close it and se nt Flee t a $49.79 che ck mar ked “f inal.” During the same pe riod in which Mrs. Gamby soug ht to close the Flee t a ccount, Flee t sold that acc ount, along wi t h a larg e portfolio of ot hers, to FNB O. All of t he accounts—including the Gamby s’ acc ount—were desig nated “open and active.” R. 319 (Tria l Tr. vol. I V, at 32, J uly 1, 2009). After the account was converted from Flee t to FNB O t hat s ummer, FNBO sent new cards to Har old and Be ry llin Gamby at the Sterling Heig hts addre ss that h ad b ee n listed in the Flee t

rec ords. Purchase s and ca sh advanc es re sumed shortly there afte r. 2 Upon rea ching a balanc e of $12,247.40 in S eptember 2004, the FNB O acc ount went into defa ult, and FNB O repr esenta tives b ega n calling the Gamby s seeking pay ment. Those calls continued despite the Gamby s’ repe ated written and oral statements disputing their owner ship of the

acc ount and notify ing t h e Ba nk that the balanc e belong ed to their son. Acc ording to the Ba nk, howeve r, the Gamby s’ son had never applied for a cre dit-car d acc ount. FNB O there fore continued to seek pay

ment from the Gamby s based on its b el ief that the Gamby s’ Flee t acc ount had never closed a nd, corr esponding ly , that the balanc e belong ed to them.

The Gamby s dispute having rec eived the car ds and asser t that a car d was instead issued to 2 their son af

ter F NB O unilatera lly

reope ned the a ccount.

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J ust befor e jury deliberation, the Gamby s moved for judgme nt as a matter of law on their state and fede ral claims and for a decla ratory judgme nt that they did not owe FNB O any debt. The court de nied judg ment as a ma tter of law , but gr anted the de clar atory judgme nt, stating: [O] bviou s l y t h i s m atter was disputed and whether or not the $12,000 is owing by these p ar t i es, the parties testified that the $12,000 was their son’s unauthorized char g e. There ’s r ea l l y b ee n n o disputed evidenc e . . . but that the s on char g ed thi s $12,000. So the Court will issue a decla ratory judgme nt that the Gamby s do not owe the $12,000, which is not being soug ht in this case in any event. R. 323 (Tria l Tr. vol. VI , at 13–14, J uly 6, 2009). I n a subsequent written order, t he dis trict court stated that over the course of the trial “[FNB O] offe red no evidenc e that [t h e Gamby s] owed the debt; rathe r, t he evidence s h owed that the us e of the FNBO cre dit car d by [t he Gamby s’] son was unauthorized.” R. 273 (Orde r Granting Decl. J

. at 2). At trial, however , the di strict court refused to permit the Gamby s to i n fo rm the j ury of t he court’s judgme nt that the Gamby s did not owe the debt. As a result, FNB O co n t i n u ed t o argue to the jury that the Gamby s wer e responsible for the char g es. T h e jury returne d a verdic t ag ainst the Gamby s on all counts. The Gamby s then filed a

rene wed motion for judg ment as a matter of law, which the di strict court ag ain denied. The c ourt

rea soned that “[a]lt houg h it beca me clea r during trial that Gamby s did not owe th e d ebt, that conclusion was not clea

r when FNB O repor

ted the debt. There fore , the Court de clines to f ind a s a matter of law that the statements wer e untrue when made.” R

. 2 9 0 (O p . and Orde r at 7). The Gamby s filed this appea l and challeng e only the district court’s denial of judgme nt as a matter of law on the MCPA claim ag ainst FNB O.

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II. ANALYSIS “We review a district court’ s denial of ‘a renew ed mot ion for judgment as a matter of l aw de novo .’” Tisdal e v. Fed. Express Corp. , 415 F.3d 516, 527 (6th Cir. 2005) (quoting Barnes v. City of Cincinnati , 401 F.3d 729, 736 (6th Cir. 2005)). “Judgment as a matter of law is appropr iate when ‘viewing the evidenc e in the light most favor able to the non-moving party , there is no g enuine issue of materia l fac t for the jury , and rea sonable minds could come to but one conclusion in favor of the moving pa

rty .’” Id. (quoting Noble v. Brinke r Int’l, Inc. , 391 F.3d 715, 720 ( 6th Cir. 2004)). Gene rally speaking , “[ t ]he Michig an C ollection Practice s Act prohibit s abusive collection eff orts
. . . with respe ct to obliga tions arising out of a ‘purc hase made primarily for persona l, family , or household purposes.’ ” Levant v. Am . Honda Fin. Corp. , 356 F. Supp. 2d 776, 782 (E.D. Mich. 2005) (quoting M I C H . C O M P . L A W S § 445.251(a) ). Two provisions of the MCPA are at issue in this

case . First, the Ga

mby s arg ue that F NB O violated § 445.252(e) , which st ates in rele vant part that

a “re g ulated person shall not
. . . [m ]ak[ e] an inacc urate , misleading , untrue, or dece ptive statement

or claim in a communication to collect a debt

. . . .” M I C H . C O M P . L A W S § 445.252(e)

. Second, they claim that the Ba

nk violated § 445.252(f) (ii) by “[m] isrepre senting in a communication with a debtor

. . . [t ]he leg al rig hts of the cre ditor or debtor.” Id. § 445.252(f) (ii). Acc ording to the Gamby s, the 3

There is no dispute that both the Gamby s and FNB O fall u n d er the MCPA’s terms. The 3 statute define s the term “debtor ” as “a natura l person obligated or allegedly obligated to pay a debt.” M I C H . C O M P . L A W S § 445.251(d) (empha sis added)

. A “re g ulated person” encompa sses “a person whose collection activities are confine d and are direc tly rela ted to the operation of a business other than that of a collection ag ency including

. . . a state or fede rally char tere d bank when collecting its own claim.” Id. § 445.251(g )(ii). 5No. 10-1152

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district court’s decla

ratory judgme nt finding no evidenc e t h at they owed any debt to FNB O “nec essar ily resolved the objective untruth of FNBO ’s statements to the Gamby s,” there by demonstrating all elements neede d to rec over under the MCPA. Appellant Br

. at 12. Specifica lly , the Gamby s argue that beca use they never owed the cre d it-car d debt, FNB O’s communications reg arding their obliga tion to pay it wer e nece ssarily false and misleading in violation of subsection (e)

. Relatedly , the Gamby s also arg ue that the underly

ing falsity of the communications constituted a misrepr esenta tion their leg al rig hts in viol ation of subsec tion (f). I n response to these arguments, FNB O maintains that beca use the Gamby s’ names wer e on the acc ount, they wer e leg ally responsible for the debt until the district court deter mined otherwise. FNB O further argues, without citation, that for its statements to have been untrue or misleading , they “must [have been] dece ptive at the time the statement [was] made, not in retrospe ct afte r a court deter mines the leg al rig hts of the parties.” Appellee Br

. at 12. Alt h o u gh FN BO cr iticiz es the Gamby s for failing to produce examples of specific false or misleadin g s t at em en ts, it does not dispute the Gamby s’ asser tions that it soug ht to collect the cr edit-ca rd debt fr om them. The Gamby s, on the other hand, point to a number of alleg edly misleading or false statements by FNB O, most of which are supported only by trial testimony rec ounting telephone conver sations between the parties. Mrs. Gamby , for example, testified that FNB O’s response to the Gamby s’ constant attempts to dispute owner ship of the acc ount was to simply to inform her that “You just g ot to pay . This is y our acc ount, y ou’ve g ot to pay it.” R. 315 (Tria l Tr. vol. I I , at 118, J une 29, 2009);

see also id. at 122–23 (testify ing that a Ba nk repr esenta tive seeking to collect on the acc ount told her

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Gamby e t al. v. Equifax Information Service s LL C et al. “Well, y our name is on the acc ount. You have to pay it. This is y our acc o u n t
. ”); id. at 132 (testify ing that the Ba

nk was “ca lling our home all the time” seeking pay ment). The Gamby s also

4 point to an Aug ust 10, 2005 letter from F NB O, which state s: I f this acc ount is not y our acc ount, then a police report shou ld have been filed claim ing ID theft/Frau d

. Your s o n h as admitted that this is his acc ount, which m ea n s this is a civil matter betwee n y our son and y ou. The only way to have t h i s remove d from y our credit burea u is to pre s s ch arge s ag ainst y our son, at t hat poi nt we will them [si c] remove any derog atory information from y ou and Har old Gamby Sr’s cre dit burea

u and place it on y our son, Har old Gamby J r’s. [si c] cre dit burea u. I f y ou do decide ag ainst pressing char g es then there is nothing t h at we can do to rec tify this and we will continue to collec t from y ou. R. 229 (Pl.’s Resp. to FNB O’s Mot. for Summ. J ., Ex . 9). The succe ss of the Gamby s’ MCPA claim hinge s on their contention that the statute imposes strict liability on banks that v i o l at e t h e statute’s terms. Michig an courts have not addre ssed the question whether the MCPA imposes strict liability on entities seeking to collect from a debtor, and it is one of first impression in this court. To interpre t the terms of the statute, we beg in with its plain lang uage. See People v. Gahan , 571 N.W.2d 503, 506 (Mich. 1997) (“I t is the primary rule of statutory construction that the plain languag e of the statute be e nforc ed.”)

. I nitially , neither § 445.225(e) nor § 445.225(f) contains any intent or knowledge element. The absenc e of such a require ment strong ly implie s t hat an entity need not intend to eng ag e in

Notably , the B ank’s r ecor ds, about which a Ba nk repr esenta tive testified at trial, basica lly 4 support Mrs. Gamby ’s testimony reg arding the B ank’s a ttempts at collectingthe cr edit-ca rd debt. See, e.g. , R. 315 (Tria l Tr. vol. I I , at 92–93, J une 29, 2009) (discussing rec ords indicating that “I [t he collector ] said they are responsible parties.

. . . [I ]t is y our acc ount and [FNBO ] will g o to an outside collection ag ency

when a full six months past due”).

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abusive collection pra ct i ce s t o violate the MCPA. L ending further support for this rea ding, the statute contains a da

mag es provision that rea ches even nonwilful violations, which ag ain sug g ests that even unwi t t i n g ac t ors may fall within its terms. M I C H . C O M P . L A W S § 445.257(2). Those statutory damag es, howeve r, are minimal—tot aling only the g reater of $50 or the amount of actua l damag es. Id. Presumably , this allows the state t o compensa te i nnocent consumers by placing the risk of err or on cre ditors while avoiding overly harsh penalties for g ood-fa ith but mistaken attempts at collec ting pa st-due debts. A para ll el fe d era l statute, the FDCPA, provides further g uidance

. Fe dera l courts have 5 broadly rec og nized the FDCPA as a stric t-liability statute. See Turner v

. J.V.D.B. & Assocs., Inc. , 330 F.3d 991, 995 (7th Cir. 2003) (obser ving that “§ 1692e applies even when a false repr esenta tion

was unintentional” (interna l quotation marks omitted)); Clark v. Capital Credit & Collection Servs., Inc. , 460 F.3d 1162, 1176 ( 9th Cir. 2006) (noting that “intent is only rele vant to the deter mination of damag es”)

. Unlike the MCPA, howeve r, the FDCPA contains an aff irmative defe nse that allows debt collec tors to show that their vi olation was unintentional and r esulted fr om a bona- fide e rror . See 15 U.S.C. § 1692k(c)

. I n light of the MCPA’s plain lang uag e and its simil arity to the FDCPA,

we must rea d the omission of an analog ous bona-f ide- er ro r d efense in the state statute to signify Michig an’s intent to avoid absolving debt collec tors of liability , even f or unintentional mistakes.

Th e FD C P A co n t ains lang uag e that is very simil ar to that found in the MCPA. Section 5 1692e, for example, states t hat “[ a] debt collector may not use any false, dece ptive, or m isleading repr esenta tion or means in conne ction with the collection of a ny debt.” 15 U.S.C. § 1692e. 8No. 10-1152

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Moreove r, even under th e F D CP A , o uts id e o f th e rela tively narr ow bona-f ide err or exception, a good-f aith err or st ill g ives rise to liability ; indeed, a single ac t s eeking pay ment from the wrong individual has been sufficie nt to constitute a violation. See, e.g. , Turner , 330 F.3d at 995 (indicating that a cr ed i t o r may have violated § 1692e despite its lack of knowledg e that the collection letter improperly soug ht pay

ment of a debt alre ady discharg ed in bankruptc y ); Chiverton v. Fed. Fin. Grp., Inc. , 399 F. Supp. 2d 96, 101 (D. Conn. 2005) (d et er m i ning that a debt collector made a false repr esenta tion in violation of the FDCPA by seeking to collect on a debt that no longe r exis ted); Owens v. Howe , No. 1 : 0 4 -C V- 1 52, 2004 U.S. Dist. L EXI S 22728, at *34–36 (N.D. Ind. Nov. 8, 2004) (unpublished orde r) ( holding that a cre ditor’s act of sending a collection letter to t he wr ong person violated the FDCPA provision prohibiting f alse re prese ntations). Take n toge ther, the plain lang uag e of the M C P A and the case s interpre ting the FDCPA demonstrate that it is immaterial whether FNB O knew its statements wer e false or misleading at the time it soug ht pa

y ment from the Gamby s for the cre dit-car d debt. Be cause the district c ourt found “no evidenc e” that the Gamby s owed the debt, FNB O’s undisputed statements that the Gamby s wer e responsible for paying it wer e false. Even if the sta tements wer e base d on the Bank’s reasona ble 6 belief at the time it soug ht pay ment from the Gamby s, that belief does not alter the underly ing falsity

o f i t s statements reg arding the debt. Although this same result may not have occur red absent t h e

T h e Ba nk’s s tatements t hat t he account belonge d to the Gamby s, on the ot her hand, wer e 6 not false and misleading , as it appea rs the acc ount was never proper ly closed and did likely belong to them. The Ba

nk does not dispu t e, h o we v er , that its repr esenta tives went further , and actua lly indicated that the G amby s were leg ally responsible for

the debt. 9No. 10-1152

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decl aratory judgme nt—particular ly in light of potentially signific ant fac tual questions as to the Gamby s’ knowledg e and authorization of their son’s activities—FN BO ’s failure to contest the issue resolves the MCPA liability question ag ainst it a nd entitles the Gamby s to judg ment as a matter of law under § 445.252(e)

. Thus, on rema nd, the district court need only consider whether FNB O had 7 the intent ne cessa

ry to w arr ant the enhanc ed damag es imposed for wilful violations of the MCPA, which m ay include civil fines, attorney ’s fee s, and court costs. See M I C H . C O M P . L A W S § 445.257(2). III. CONCLUSION For the rea sons discussed above, we conclude that the district court err ed in d en y i n g the Gamby s’ motion for judg ment as a ma tter of law

under the MCPA. W e ther efor e REVERSE the district court’s orde r and REMAND the ca se for rehe aring on the issue of damag es.

Be cause we deter

mine the Ba

nk to be liable under § 445.252(e) , we need not decide whether 7 FNB O’s sta t em en t s als o qualified as misrepre sentations of the Gamby s’ rig hts as debtors under § 445.252(f)

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