IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Nora K. Mullen,

Plaintiff

 v.

John S. Compton, Esq. & 

Lois Compton,

Defendants

:

:

:

:

:

:

Civil Action 2:11-cv-01159

Magistrate Judge Abel

DECISION

Plaintiff Nora K. Mullen brings this action against defendant John S. Compton,

Esq.1 for violations of the Fair Debt Collections Practices Act (“FDCPA”) and the Ohio

Consumer Sales Practices Act (“OCSPA”). The amended complaint alleges that

defendant John S. Compton communicated with plaintiff Nora Mullen knowing she

was represented by counsel in violation of 15 U.S.C. § 1692c(a)(2); falsely represented

the amount due on the debt in violation of 15 U.S.C. § 1692e(2)(A); and made a threat of

suit not actually intended in violation of 15 U.S.C. § 1692e(5). The amended complaint

also pleads related Ohio law claims claims under the Ohio Consumer Sales Practices

Act. A bench trial was held on May 6, 2013.

1

At the final pretrial conference, Compton stipulated to the fact that he was liable

for any conduct on the part of Lois Compton. In return, plaintiff dismissed Ms.

Compton from this lawsuit. 

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I. Findings of Fact

In March 2007, plaintiff Nora Mullen entered into a contract with Thompson

Building Associates, Inc. (“Thompson Building”) to have work completed on her

principal residence to repair water damage. The contract provided that $3,991.44 was

due at signing and $3,991.44 due at substantial completion. It further provided that

there would be a finance charge of 1.5% per month added to any unpaid balance over

30 days old. If the account was placed with an attorney for collection, Mullen agreed to

pay reasonable attorney fees and costs incurred. Mullen further agreed to immediately

endorse to Thompson Building any insurance payments received. The original contract

amount was $7,982.88. In March 2007, Mullen paid $3,991.44 on the contract. Plaintiff’s

Ex. 5. On April 16, 2007, in violation of the contract, Mullen cashed a check from her

insurer payable jointly to her and Thompson Building in the amount of $5,4716.73. In

early July 2007, Mullen or her insurance company negotiated a credit on the contract in

the amount of $1,234.43. Id. On July 6, 2007, Thompson Building submitted an invoice

for the remaining contract amount due of $2,757.01. Plaintiff’s Exh. 13. 

On October 15, 2007, Ms. Celeste K. Roper, an employee of Thompson Building

corresponded with plaintiff via email and indicated a balance due of $2,757.01.

Plaintiff’s Exh. 14. On December 12, 2007, Thompson Building wrote Mullen a letter

stating “that a two-party check issued by your insurance company to yourself and

Thompson Building Associates has been cashed. As of the date of this letter we show a

balance still due to Thompson Building Associates of $2,757.01.” Plaintiff’s Exh. 15. 

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On July 17, 2009, Thompson Building provided documents directly to plaintiff’s

counsel, which included the July 6, 2007 invoice. Plaintiff’s Exh. 5, at pp. 3 ff. On July 23,

2010, Reliant Capital Solutions, LLC, (“Reliant”) an agent of Thompson Building,

emailed documents regarding collection of the debt directly to plaintiff’s counsel.

Plaintiff’s Ex. 5, at p. 2.

On December 30, 2010, Reliant Capital Solutions, LLC emailed Lois Compton a

“litigation packet” that may have included an asset report, copy of the the insurance

check Mullen cashed without Thompson Building’s signature, invoices, billing

statements, contract, and signature on certificate of completion. Plaintiff’s Exh. 1. On

January 12, 2011, John S. Compton sent Mullen a letter:

This is to advise that the claim as above indicated [Amount Due: $5760.82]

has been placed with this office for immediate collection. I have been

notified that this account is now in default and that you have been offered

every opportunity to pay this obligation as required by law.

Further, I have been advised you have failed to respond in an appropriate

matter.

Your creditor [Thompson Building Associates] has authorized and

instructed me to file suit against you for the amount due plus costs,

interest and other amounts that may be payable by you as permitted by

law.

This is the final notice you will receive prior to legal action being taken

against you by this office. You should be aware that not only will this

result in costs which would otherwise be avoided by you if payment is

promptly made and also that this may become a part of your credit

record.

 . . .

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SEE REVERSE FOR NOTICE CONCERNING YOUR RIGHTS

Plaintiff’s Exh. 3. The reverse side of the letter contained the following notice:

NOTICE

We will assume this debt to be valid unless we are notified by you

within 30 days after receipt of this notice regarding any dispute of this

debt or any portion thereof you may have. If you notify us in writing

within this 30 day period that the debt, or any portion thereof, is disputed,

we will obtain verification of the debt or a copy of a judgment against you

and a copy of such verification or judgment will be mailed to you. 

If you make a written request within this 30 day period we will

provide you with the name and address of the original creditor if different

from the current creditor. 

We are attempting to collect a debt and any information obtained

by us will be used for that purpose. 

Id.

Nora Mullen testified that she gave birth to her daughter on January 11, 2011.

When she came home from the hospital she read Compton’s snarly and “growly”

January 12, 2011 letter and was upset to discover that she was going to be sued. It was

just she and her newborn daughter trying to figure things out. She believed that the

stated $5,760.82 amount due was a crazy amount because the work was shoddy and

incomplete. Mullen testified that she had kept asking Thompson Building to provide a

breakdown of the work completed. She testified that receiving the letter from Compton

had been very traumatic and stressful for her. She found the situation stressful and

ridiculous. The January 12, 2011 letter was the one and only contact between Compton

and Mullen.

4

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On January 24, 2011, Richard J. Donovan wrote Compton a letter on behalf of

Mullen that: 

• Disputed the debt and demanded verification.

• Asserted that the communication to Mullen violated the FDCPA and

OCSPA because “my representation of Ms. Mullen in this matter is well

known and has been documented” by communications between him

and Thompson Building on October 17 and December 19, 2007 and July

17, 2009.

• Asserted that the stated amount due of $5,760.82 “must appear

specifically unsupported by any express authorization in the agreement

on which Thompson would base the asserted debt.” On July 6, October

12, and December 12, 2007 and July 17, 2009, Thompson Building

asserted the debt was $2,752.01. On July 23, 2010, Reliant Capital

Solutions, LLC (“Reliant”) sought to collect $2,752.01.

Plaintiff’s Ex. 4.

Defendant John S. Compton testified that Reliant, a debt collection agency,

referred Thompson Building to him for the purpose of filing suit. It is his practice to

first send a letter to the debtor to notify the debtor that suit was going to be filed and

provide the debtor an opportunity to contest the debt. Thompson Building was his

client. After receiving Donovan’s January 24, 2011 letter, Compton sought more

information from his client. 

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On January 25, 2011, Reliant sent Compton the information it had sent Donovan

on July 23, 2010. Plaintiff’s Ex. 5. This was the first time he saw those documents. On the

same day, Reliant sent Compton a breakdown of the amount due. The email said that

the total balance was $5,779.02. That included a principal balance of $2,839.73, interest

of $1,419.87, and collection costs of $1,419.87. Plaintiff’s Ex. 7. Still on that same day,

Compton wrote Donovan providing him with the Thomas Building contract and related

documents, the documents recording its attempts to collect the final payment, and the

breakdown of the amount due. Plaintiff’s Ex. 9.

When Donovan did not respond to the January 25 letter, Compton wrote to him

again on April 20, 2011. The letter asked Donovan to contact Compton because "our

client has requested we proceed with legal action if this can not be settled by a payment

arrangement." Plaintiff’s Ex. 11. On June 27, 2011, Reliant asked Compton for a status

update on Mullen. Plaintiff’s Ex. 12. 

Compton had no communication directly with Thompson Building. His only

contact was Reliant, Thomson Building's agent. Compton stated he never investigated

whether the numbers provided by Reliant were accurate. He took his client’s word for

it. 

II. Discussion

I will now consider whether plaintiff has proved by a preponderance of the

evidence each of the essential elements of her claims that Compton (1) communicated

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with Mullen knowing she was represented by counsel; (2) falsely represented the

amount due on the debt; and (3) made a threat of suit not actually intended.

Communication with represented debtor. Section 1692c of Title 15 of the United

States Code states: 

Without the prior consent of the consumer given directly to the debt

collector or the express permission of a court of competent jurisdiction, a

debt collector may not communicate with a consumer in connection with

the collection of any debt–

. . .

(2) if the debt collector knows the consumer is represented by an attorney

with respect to such debt and has knowledge of, or can readily ascertain,

such attorney's name and address, unless the attorney fails to respond

within a reasonable period of time to a communication from the debt

collector or unless the attorney consents to direct communication with the

consumer. . . .

15 U.S.C. § 1692c(a)(2). Generally, courts have required that an attorney have “actual

knowledge” of the fact that a debtor is represented by counsel and have held that a

creditor’s knowledge that a consumer is represented by counsel is not automatically

imputed to the debt collector. Micare v. Foster & Garbus, 132 F. Supp. 2d 77, 80 (N.D.

N.Y. 2001). Despite this general principle, courts have recognized that strict adherence

to the requirement of actual knowledge could permit creditors and debt collectors to

maintain practices that intentionally circumvent the purpose of the FDCPA. Id. at 80-81. 

At trial, plaintiff failed to provide any evidence that defendant was wilfully blind

to the fact that she was represented by counsel. There is no evidence in the record that

Compton knew that she was represented. Given that the statute provides that there is a

violation only when “the debt collector knows the consumer is represented by counsel,”

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I conclude that because plaintiff was required to show actual knowledge on the part of

defendant, defendant is entitled to judgment on Counts one and seven.

Falsely representing the amount of the debt due. Section1692e(2)(A) prohibits

the false representation of “the character, amount, or legal status of any debt.” The

FDCPA further provides: 

A debt collector may not be held liable in any 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.

15 U.S.C.A. § 1692k(c). The bona fide error defense in the FDCPA does not apply to

violations of the FDCPA resulting from a debt collector’s incorrect interpretation of the

legal requirements of the Act. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, et

al.. 559 U.S. 573 (2010). 

Defendant’s January 12 letter asserted that plaintiff owed $5,760.82 and his

January 25 letter asserted that plaintiff owed $5,779.02, which consisted of a principal

balance of $2,839.73, interest in the amount of $1,519.42, and collection costs of

$1,419.87. Plaintiff maintains that defendant explicitly misrepresented the amount of the

asserted debt. Plaintiff argues that Thompson Building had forgone interest in its

previous communications to Mullen, and defendants are not permitted to change the

balance due by inserting interest after the fact. Ms. Compton’s January 25 letter

included a statement of collection costs in the amount of $1,419.87 as part of the total

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demand. Plaintiff maintains that Ohio law2

 prohibits the recovery of attorney’s fees in

the collection of consumer debts, and as a result, defendants misrepresented the amount

of the debt in violation of § 1692(e)(2)(A). 

Compton testified that these figures were provided to him from Thomas

Building through Reliant. Compton also testified that the collection costs do not

represent his attorney fees because this accounts was accepted on a contingency basis. 

Plaintiff asserts that Compton failed to conduct an independent investigation of

the figure provided to him by Reliant to determine the accuracy of the amount asserted.

The Sixth Circuit has held, however, that FDCPA does not require an independent

investigation of the debt referred for collection. Smith v. Transworld Systems, Inc., 953

F.2d 1025, 1032 (6th Cir 1992). In Smith, the plaintiff owed Ryder Truck Rental, Inc. 

$446.21. Smith submitted $446.21 to Ryder, but Ryder inadvertently referred the

account to the defendant, Transworld Systems, Inc. for collection. The referral form

issued by Ryder to Transworld incorrectly stated the balance due was $456.21. At issue

was the $10.00 discrepancy between the amount Smith actually owed Ryder and the

amount Transworld sought to collect from him. The Sixth Circuit held that because

Transworld employed procedures reasonably adapted to prevent errors in amounts

2

In her motion for summary judgment, plaintiff argues that section 1301.21 of the

Ohio Revised Code prohibits the recovery of attorney fees in the collection of consumer

debts. Section 1301.21 was recodified as section 1319.02. Specifically, Ohio Revised Code

§ 1319.02(C) provides: "A commitment to pay attorneys' fees is enforceable under this

section only if the total amount owed on the contract of indebtedness at the time the

contract was entered into exceeds one hundred thousand dollars."

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referred for collection, Transworld reasonably relied on the accuracy of the $456.21

figure and the resulting mistake was bona fide error under 15 U.S.C. § 1692(k)(c). 

Despite plaintiff’s assertions, under Sixth Circuit case law, defendant was not

required to perform an independent investigation of the figures provided by his client.

Compton was not required to have a breakdown of what the debt was comprised of

prior to communicating that amount to plaintiff. Compton testified that he provided the

figure given to him by Reliant. 

Plaintiff’s argument assumes that Compton misrepresented the amount due on

the debt, but she offers no evidence to support that assertion. An essential element of a

claim under 15 U.S.C. § 1692(e)(2)(A) is that the amount shown on the communication

attempting to collect the debt was false. Sanchez v. United Collection Bureau, Inc., 649

F.Supp.2d 1374, 1380 (N.D. Ga. 2009). Plaintiff has offered no evidence from which a

trier of fact could conclude by a preponderance that Compton made a false

representation of "the character, amount, or legal status" of the debt alleged owed

Thompson Building. The fact that Thompson Building only attempted to collect

$2,757.01 does not bar it from seeking other contractual damages if it initiates suit. The

contract called for 18% per annum interest as well as reasonable attorney fees and costs

incurred if the debt was placed with an attorney for collection. Plaintiff offered no

evidence of what the interest on the alleged debt would have been as of January 2011,

nor did she offer any evidence of Thompson Building's costs incurred (other than

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attorney fees) collecting the debt as of the time it authorized Compton to file suit on the

debt. I conclude that plaintiff has failed to prove a claim under 15 U.S.C. § 1692(e)(2)(A).

Threatening suit not actually intended. Section 1692e of title 15 of the United

States Code states:

A debt collector may not use any false, deceptive, or misleading

representation or means in connection with the collection of any debt.

Without limiting the general application of the foregoing, the following

conduct is a violation of this section:

. . .

(5) The threat to take any action that cannot legally be taken or that is not

intended to be taken. . . . 

15 U.S.C.A. § 1692e (5). Plaintiff alleges that Compton threatened imminent legal action

that he did not intend to take. Mr. Compton’s January 12, 2011 letter stated, “[t]his is the

final notice you will receive prior to legal action being taken against you by this office.”

Exhibit 3. Plaintiff’s counsel responded to Mr. Compton’s letter on January 24, 2011,

which requested validation of the asserted debt. Exhibit 10. Ms. Compton responded to

Mr. Donovan’s letter on January 25, 2011. Exhibit 9. On April 20, 2011, Ms. Compton

wrote a second letter to plaintiff’s counsel indicating that she had received no response

to her earlier letter. Exhibit 11. An April 22, 2011 email from Reliant instructed

defendant to “hold off” on any further legal action. 

At trial, plaintiff did not offer any evidence that defendant threatened legal

action that he did not intend to take. Rather, plaintiff’s exhibits demonstrate that this

case was referred to defendant for the purposes of filing suit. Compton testified that

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prior to filing a suit, his practice was to send the debtor a letter confirming the amount

due and owing. He maintained that his system worked as it was intended to. When

plaintiff demanded verification of the amount, he sought additional information from

his client and provided it to Mullen. There is no evidence before the Court suggesting

that Compton did not intend to file suit immediately when he first sent his letter to

plaintiff. As a result, Compton is entitled to judgment with respect to Counts three and

nine.

IV. Conclusion

The Clerk of Court is DIRECTED to enter JUDGMENT for defendant.

s/Mark R. Abel 

United States Magistrate Judge

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