UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

VERNICE NEWTON, 

 

Plaintiff, Case No. 2:12-cv-698 

JUDGE SMITH 

 Magistrate Judge Abel 

v. 

 

PORTFOLIO RECOVERY 

ASSOCIATES, LLC, 

 

Defendant. 

OPINION AND ORDER 

 This matter is before the Court on Defendant Portfolio Recovery Associates, LLC’s 

Motion for Summary Judgment (Doc. 16). The motion is fully briefed and ripe for disposition. 

For the reasons that follow, the Court GRANTS Defendant’s motion. 

I. Background 

 This matter arises under the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 

et seq. (“FDCPA”). Defendant is a company that purchases “charged-off”1

 consumer debt and 

attempts to collect the debt by calling the debtor on each account. Using proprietary software, 

Defendant maintains records of all activity on an account, including call logs. The call logs 

record a variety of information, including the account number on which the call was placed, the 

date and time, the duration, and a result code. Certain calls are automatically recorded. 

Information within the system is searchable based on specified parameters. 

In July 2011, Defendant purchased a charged off account in the name of Maureen B. 

 1

 To “charge off” a debt is to treat the account receivable as a loss or expense because 

payment is unlikely. Black’s Law Dictionary (9th ed. 2009). That is, the debt is treated as a 

“bad debt.” Id. 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 1 of 21 PAGEID #: <pageID>
2 

Newton from Capital One Bank (USA), National Association (“Capital One”). At the time of 

the transfer, the end balance on the account (the “Capital One Debt”) was documented as 

$947.68. Maureen Newton is Plaintiff Vernice Newton’s wife. The couple moved to Ohio in 

2002. Prior to that, the couple resided in Nevada and then Texas. Defendant has presented 

evidence that, after purchasing the Capital One Debt, Defendant sent a written notice, dated 

August 29, 2011, to Maureen’s last-known address. The notice contained the language required 

by 15 U.S.C. § 1692g(a)(1-5), and the notice was not returned to Defendant. 

Defendant has produced a call log (the “Newton Call Log”) showing all calls initiated by 

Defendant to the telephone number xxx-xxx-5016 (the “5016 Number”), which is the number 

Plaintiff shares with his wife. The Newton Call Log demonstrates that all 18 calls to the 5016 

Number that were initiated by Defendant occurred between November 23, 2011, and March 7, 

2012. The Newton Call Log also demonstrates that each of these calls was in regard to the 

Capital One Debt, and that of the 18 calls, 10 resulted in Defendant connecting to voicemail or a 

person at the 5016 Number. Defendant has also produced transcripts of four recorded calls to the 

5016 Number in which Plaintiff was the speaker. These calls occurred on January 27, 2012, 

February 8, 2012, February 10, 2012, and March 7, 2012. 

In August 2012, Plaintiff filed a Verified Complaint, alleging that Defendant violated the 

FDCPA. In particular, Plaintiff’s Verified Complaint alleged that Defendant violated 15 U.S.C. 

§§ 1692d, 1692e, 1692f, and 1692g, by repeatedly calling Plaintiff at three different numbers, 

including his mobile telephone number, in reference to a Mastercard credit card debt from 1993, 

failing to advise him that making a payment could restart the statute of limitations, and failing to 

meet its notification obligations in relation to its attempt to collect the Mastercard debt. Plaintiff 

seeks statutory damages and costs and reasonable attorneys’ fees pursuant to 15 U.S.C. § 1692k. 

In March 2013, Defendant filed its Motion for Summary Judgment, which is fully briefed and 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 2 of 21 PAGEID #: <pageID>
3 

ripe for disposition. Defendant also requests attorneys’ fees as a sanction against Plaintiff. 

II. Summary Judgment Standard 

The standard governing summary judgment is set forth in Rule 56 of the Federal Rules of 

Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” 

 Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if 

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, 

however, if the nonmoving party fails to make a showing sufficient to establish the existence of 

an element essential to that party’s case and on which that party will bear the burden of proof at 

trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 

2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Matsushita Electric 

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). 

 When reviewing a summary judgment motion, the Court must view all the facts, evidence 

and any inferences that may permissibly be drawn from the facts, in favor of the nonmoving 

party. Matsushita, 475 U.S. at 587. The Court will ultimately determine whether “the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-53. Moreover, 

the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine 

issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6thCir. 1978). The Court’s 

duty is to determine only whether sufficient evidence has been presented to make the issue of 

fact a proper question for the jury; it does not weigh the evidence, judge the credibility of 

witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249; Weaver v. 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 3 of 21 PAGEID #: <pageID>
4 

Shadoan, 340 F.3d 398, 405 (6thCir. 2003). 

 In responding to a summary judgment motion, the nonmoving party “cannot rely on the 

hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present 

affirmative evidence in order to defeat a properly supported motion for summary judgment.’” 

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6thCir. 1989) (quoting Liberty Lobby, 477 

U.S. at 257). The existence of a mere scintilla of evidence in support of the opposing party’s 

position is insufficient; there must be evidence on which the jury could reasonably find for the 

opposing party. Liberty Lobby, 477 U.S. at 252. The nonmoving party must present “significant 

probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the 

material facts.” Moore v. Phillip Morris Companies, Inc., 8 F.3d 335, 340 (6thCir. 1993). The 

Court may, however, enter summary judgment if it concludes that a fair-minded jury could not 

return a verdict in favor of the nonmoving party based on the presented evidence. Liberty Lobby, 

477 U.S. at 251-52; see also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6thCir. 1994). 

 Moreover, “[t]he trial court no longer has a duty to search the entire record to establish 

that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at 1479-80. That is, the 

nonmoving party has an affirmative duty to direct the court’s attention to those specific portions 

of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 

260 F.3d 654, 665 (6thCir. 2001). 

III. Discussion 

 The purpose of the FDCPA is “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). Thus, Congress enacted the 

FDCPA to address “abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 4 of 21 PAGEID #: <pageID>
5 

1692(a). 

“Courts use the ‘least sophisticated consumer’ standard, an objective test, when assessing 

whether particular conduct violates the FDCPA.” Hartman v. Great Seneca Fin. Corp., 569 F.3d 

606, 611-12 (6th Cir. 2009) (quoting Barany–Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir. 

2008)). Under the least sophisticated consumer test, the issue is whether there is a reasonable 

likelihood that an unsophisticated consumer who is willing to consider carefully the contents of a 

communication might yet be misled by them. Grden v. Leikin Ingber & Winters PC, 643 F.3d 

169, 172 (6th Cir. 2011). This test is designed “to ensure 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). “The least sophisticated debtor standard is 

‘lower than simply examining whether particular language would deceive or mislead a 

reasonable debtor.’” Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999) 

(quoting Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1227 (9th Cir. 1988)). 

Defendant argues that it is entitled to summary judgment on each of Plaintiff’s claims 

under the FDCPA. In response to Defendant’s Motion for Summary Judgment, Plaintiff argues 

that there are genuine issues of material fact as to his claims that Defendant violated 15 U.S.C. 

§§ 1692d, 1692e, and 1692f. Plaintiff does not directly respond to Defendant’s argument that it 

is entitled to summary judgment as to his § 1692g claim. Plaintiff’s claims will be addressed in 

turn. After addressing Plaintiff’s claims, the Court will discuss Defendant’s request for 

attorneys’ fees. 

A. Section 1692d Claim 

Title 15 U.S.C. § 1692d provides that a “debt collector may not engage in any conduct 

the natural consequence of which is to harass, oppress, or abuse any person in connection with 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 5 of 21 PAGEID #: <pageID>
6 

the collection of a debt.” The section lists specific examples of conduct that violates this 

provision, including “[c]ausing a telephone to ring or engaging any person in telephone 

conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the 

called number.” 15 U.S.C. § 1692d(5). 

Plaintiff asserts that he has shown Defendant’s intent to harass him in view of the 

excessive frequency of the telephone calls from Defendant to the 5016 Number, and because 

Defendant continued to call him after he told Defendant that he was unwilling to pay the debt. 

Plaintiff also argues that his harassment claim is not appropriate for dismissal at the summary 

judgment stage because it is closely tied to the underlying circumstances, and, as such, is 

ultimately a decision for the jury to determine. Defendant argues that the Newton Call Log 

cannot reasonably be viewed as demonstrating excessive call frequency, that the evidence that 

Defendant called the 5016 Number after Plaintiff told Defendant that he would not pay on the 

debt does not sufficiently support his claim of harassment, and that this claim can be resolved at 

the summary judgment stage. 

In applying § 1692d, “[c]ourts have followed the Federal Trade Commission’s 

interpretations, finding that the term ‘repeatedly’ means ‘calling with excessive frequency under 

the circumstances,’ and that ‘continuously’ means ‘making a series of calls, one right after the 

other.’ ” Hicks v. America’s Recovery Solutions, LLC, 816 F. Supp. 2d 509, 515 (N.D. Ohio 

2011) (citations omitted). “There is no bright line rule regarding the number of calls which 

creates the inference of intent.” Hicks, 816 F. Supp. 2d at 515. Even so, “Congress has indicated 

its desire for the courts to structure the confines of § 1692d.” Harvey v. Great Seneca Fin. 

Corp., 453 F.3d 324, 330 (6th Cir. 2006) (citing Jeter v. Credit Bureau, 760 F.2d 1168, 1179 

(11th Cir. 1985)). The issue ultimately resolves to whether “the nature of telephone calls, 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 6 of 21 PAGEID #: <pageID>
7 

including their frequency, substance, or the place to which they are made, provides grounds to 

infer a debt collector’s intent to annoy, abuse, or harass without any other evidence of the debt 

collector’s motive in calling.” Durthaler v. Accounts Receivable Mgmt., Inc., 854 F. Supp. 2d 

485, 489 (S.D. Ohio 2012) (Sargus, J.) (quoting Brown v. Hosto & Buchan, PLLC, 748 F. Supp. 

2d 847, 852 (W.D. Tenn. 2010)). 

Although the question of “whether conduct harasses, oppresses, or abuses will 

[ordinarily] be a question for the jury,” dismissal of a § 1692d claim is appropriate “if the facts 

alleged do not have the natural consequence of harassing or abusing a debtor.” Harvey, 453 F.3d 

at 330 (quoting Jeter, 760 F.2d at 1179). For example, in Durthaler, this Court analyzed the 

anti-harassment provision of the FDCPA, and found that while there is no bright-line rule that 

volume of calls can never be sufficient to demonstrate an intent to harass, the 32 calls placed in 

73 days in that case were insufficient, without more, to demonstrate an intent to harass. Id. at 

489. In reaching its conclusion in Durthaler, it was noted that there was no evidence “that the 

calls were made at an inconvenient time or place, that they were made after the Plaintiff 

repeatedly requested that they stop, or that they were made after the Plaintiff informed the 

Defendant that he was represented by counsel or a debt management company.” Id. at 492. 

Thus, even when viewed in favor of the plaintiff, the call frequency found in Durthaler does not, 

in and of itself, have the natural consequence of harassing or abusing a debtor in violation of the 

FDCPA. Accordingly, and contrary to Plaintiff’s argument, summary judgment on a § 1692d 

claim is appropriate if no reasonable jury could conclude that the evidence demonstrates an 

intent to harass. 

Here, Plaintiff suggests that Defendant has violated § 1692d(5) by calling the 5016 

Number excessively in an attempt to collect the Capital One Debt, and he argues that Defendant 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 7 of 21 PAGEID #: <pageID>
8 

acted in a harassing manner because Defendant continued to call the 5016 Number even though 

he told Defendant that he would not pay the debt and that he did not recall the origin or details of 

the debt. These arguments are not persuasive. Plaintiff does not dispute that the evidence shows 

that Defendant only called the 5016 Number 18 times, and never even twice on the same day, 

during a time-frame of approximately four months. (Doc. 16-4). This frequency of calls simply 

does not support an inference of intent to harass. See Durthaler. Furthermore, as in Durthaler, 

there is no evidence that the calls were made at an inconvenient time or place, that they were 

made after Plaintiff repeatedly requested that they stop, or that they were made after Plaintiff 

informed Defendant that he was represented by counsel or a debt management company. 

The Court is unconvinced by Plaintiff’s argument that Defendant harassed him by 

continuing to call despite his statements that he would not pay. In making this argument, 

Plaintiff does not address the fact that Defendant continued to pursue repayment of the debt by 

his wife. In this regard, Plaintiff does not challenge Defendant’s assertion that he shared the 

5016 Number with his wife, and that Defendant was trying to collect the Capital One Debt from 

his wife. The record contains transcripts of four of the answered calls to the 5016 Number, and 

on each of these occurrences Plaintiff answered and Defendant’s representative initially asked to 

speak with Maureen. During three of the four conversations, Plaintiff challenged the basis of 

Plaintiff’s attempt to collect on the Capital One Debt, stating in part that he and his wife “have 

no Capital One account,” that Defendant has “the wrong information,” and that he was “not 

going (inaudible) people call my house and harass me about a 13 year old debt.” (Doc. 16-8, Tr. 

of Mar. 7, 2012 Tele. Conversation; Doc. 16-6, Tr. of Feb. 10, 2012 Tele. Conversation; Doc. 

16-5, Tr. of Jan. 27, 2012 Tele. Conversation). 

The fact that Defendant continued to call the 5016 Number despite Plaintiff’s challenge 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 8 of 21 PAGEID #: <pageID>
9 

to the underlying basis of the debt, and stated unwillingness to pay the debt, does not 

demonstrate an intent to harass, especially in view of the fact that Defendant was primarily 

attempting to obtain payment from Plaintiff’s wife. In this regard, Plaintiff has not shown that 

Defendant had no basis to seek collection from his wife on the Capital One Debt. Furthermore, 

the FDCPA expressly provides that, to be effective, a consumer’s request that a debt collector 

cease further communications must be in writing. See 15 U.S.C. § 1692c(c) (“If a consumer 

notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer 

wishes the debt collector to cease further communication with the consumer, the debt collector 

shall not communicate further with the consumer with respect to such debt, except [for limited 

purposes].”). 

Therefore, Plaintiff’s claim under § 1692d fails as a matter of law. 

B. Section 1692e Claim 

Pursuant to 15 U.S.C. § 1692e, a “debt collector may not use any false, deceptive, or 

misleading representation or means in connection with the collection of any debt.” This section 

contains a list of conduct that constitutes a violation of the section. For example, it is a violation 

for a debt collector to make a “false representation of . . . the character, amount, or legal status of 

any debt,” or to use “any false representation or deceptive means to collect or attempt to collect 

any debt or to obtain information concerning a consumer.” 15 U.S.C. § 1692e(2, 10). Whether 

language used by a debt collector is deceptive or misleading is determined from the perspective 

of the least-sophisticated consumer. See Hartman, supra. That is, “[w]hether a debt collector’s 

actions are false, deceptive, or misleading under § 1692e is based on whether the ‘least 

sophisticated consumer’ would be misled by defendant’s actions.” Wallace v. Washington 

Mutual Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012). The statement must be materially false or 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 9 of 21 PAGEID #: <pageID>
10 

misleading, that is, the statement must be technically false, and one which would tend to mislead 

or confuse the reasonable unsophisticated consumer. Id. at 326–27. The claim under § 1692e 

must not be “based on frivolous misinterpretations or nonsensical interpretations of being led 

astray.” Fed. Home Loan Mortgage Corp. v. Lamar, 503 F.3d 504, 514 (6th Cir. 2007). 

Under § 1692k(c), however, 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.” This bona fide error 

defense applies to mistakes of law as well as to clerical errors. Durthaler, 854 F. Supp. 2d at 493 

(citing Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469, 476 (6th Cir. 

2008)). The Supreme Court has held, however, that the bona fide error defense does not excuse 

“violations resulting from a debt collector’s mistaken interpretation of the legal requirements of 

the FDCPA.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 

(2010). “To qualify for the bona fide error defense, a debt collector must prove by a 

preponderance of the evidence that: (1) the violation was unintentional; (2) the violation was a 

result of a bona fide error; and (3) the debt collector maintained procedures reasonably adapted 

to avoid any such error.” Jerman, at 476–77. 

In the case at bar, Plaintiff argues that one of Defendant’s representatives made false or 

misleading statements in connection with the attempted collection of the Capital One Debt. As 

the sole basis of support for this argument, Plaintiff cites his conversation with Defendant’s 

representative on January 27, 2012 (the “January 27 conversation”). The following is a 

transcript of that conversation: 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 10 of 21 PAGEID #: <pageID>
11 

VN2

: Hello. 

PRA3

: Hi, may I speak with Maureen? 

VN: Who is this? 

PRA: This is Rita. 

. . . 

VN: Where are you from? The pharmacy? 

PRA: No, Sir. I’m calling from Portfolio Recovery Associates. 

. . . 

VN: What is that? 

PRA: I’m handling a personal business matter for Ms. Maureen. 

VN: Hey, baby, listen – Maureen’s my wife. 

PRA: OK. And your name? I’ll be glad to speak with you. 

VN: My name is Vernice. 

. . . 

PRA: OK. Last name Newton as well Sir? 

VN: Yeah. 

PRA: OK. Well, my name is Rita like I said, and I’m calling from Portfolio 

Recovery Associates in regards to the Capital One Visa account that’s been 

forwarded here for collections. 

VN: Nah, baby, we never had no Capital One Visa. 

PRA: OK. Your wife is Maureen B. Newton? 

VN: Yeah. 

. . . 

PRA: Now this account was actually opened in ’99. She paid on it until 2001 

and then she stopped making her payments. She even had – 

VN: (Inaudible) in 2001? 

PRA: Right. She even had this included in her bankruptcy. 

VN: (Inaudible) account that – that’s going on 11 years old. 

PRA: Yes, Sir. She still has a balance. 

VN: And the statute of limitations hasn’t run out on it? 

PRA: She still has a balance due on the account. 

VN: Yeah, I think the statute of limitations hasn’t run out on it? 

PRA: The statute of limitations just means we can’t sue you for it. 

VN: And the statute of limitations means if you can’t sue me for it why would I 

owe a balance? 

PRA: Because you didn’t pay it all. 

. . . 

VN: I’m trying to figure out, you know, that – she didn’t owe any credit card 

from Capital One. 

PRA: Yes, Sir, she even had this in her bankruptcy. 

VN: I had it. 

PRA: OK. 

VN: In my bankruptcy. 

 2

 “VN” refers to Vernice Newton. 

3

 “PRA” refers to a representative of Portfolio Recovery Associates. 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 11 of 21 PAGEID #: <pageID>
12 

PRA: OK. And her name is on it. 

. . . 

PRA: OK. This doesn’t even have your name on it. I mean this – 

VN: Then I don’t know how they got (inaudible) 

PRA: It has Maureen B. Newton on it. 

VN: It got it switched up, you know, that’s what happened. It just got switched 

up. Maureen never had a credit card. She ain’t had a credit card, you understand, 

since the early 90’s. You understand? And that was with – 

PR: OK. This is in ’99 and then paid on until 2001 

VN: OK, if you’re looking at ’99 and 2009 that’s 10. And that’s going on 13 

years ago. You understand. There’s no way I’m going to let you keep calling me, 

harassing me about a debt that is 13 years old. 

PRA: Sir, this account, this account is still owed. 

VN: Hey, if it’s owed or not – 

PRA: (Inaudible) services? 

VN: (Inaudible) what? 

PRA: You used the services. 

VN: I (inaudible) is it owed, all I have to do is call the Attorney General and 

find out how (inaudible) is it owed. 

PRA: OK, well like I say, I mean – 

VN: You know, because I’m not going to allow you to keep on calling me – 

PRA: This is an account that was opened – 

VN: I’m not going (inaudible) people call my house and harass me about a 13 

year old debt. 

PRA: OK, then just take care of it and we won’t have to call you. 

VN: No, I’m not going to take care of no debt, man. I don’t know nothing 

about you. 

PRA: Sir, I don’t know anything about you either. 

VN: (Inaudible) they pass these debts along for people to try to collect on them 

where they can make some commission and all that kind of stuff (inaudible) 

PRA: OK, let me tell you, let me tell you – 

VN: And all that kind of stuff. I ain’t going to have that. 

PRA: I get paid the same whether you pay your account or not. 

VN: You know – 

PRA: It’s not affecting me, it’s affecting you. 

VN: (Inaudible) because you’re getting paid off of somebody else that 

(inaudible) pay it. 

PRA: No, Sir. 

VN: I’m not going to pay you. 

PRA: I’m not asking you to pay me. This is your account. 

VN: (Inaudible) out of my household. 

PRA: This is your wife’s account. 

VN: Hey, her husband, then it’s my debt – we married. We ain’t separated. 

PRA: Correct. So if you don’t want to take care of it then – 

VN: Her debt is my debt. 

PRA: You’re correct. 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 12 of 21 PAGEID #: <pageID>
13 

VN: And as I told you just then you’re not going to get one penny. 

PRA: Alright. Then I’ll go ahead and notate the account that I did speak with 

you. 

VN: Yeah, you go ahead and do that (inaudible) 

PRA: (Inaudible) without payments on the account? 

VN: I already done taken care of (audible). 

PRA: Sir, this is not taken care of. 

VN: This is (inaudible). 

PRA: This is not taken care of, Sir. 

VN: Hey, this is already – well, I tell you what, I bet you don’t get paid! 

PRA: Well, like I said, if you don’t want to take care of your business then that’s 

fine, but that’s on you. 

VN: I’m not going to pay it. It’s not that I don’t want to or can’t, I’m not going 

to pay you! 

PRA: I’m not asking you to pay me, Sir. This is your debt, not mine. You’re 

not paying me you’re paying for something that you used. 

VN: OK, I’m going to pay for something that’s old and wore out? 

PRA: It wasn’t old and wore out whenever you opened the account and used its 

services, Sir. 

VN: Bye, bye. Thank you for your time. Bye, bye. 

(Doc. 16-5, Tr. of Jan. 27, 2012 Tele. Conversation). 

Plaintiff argues that during the January 27 conversation, Defendant’s representative 

repeatedly misrepresented that the Capital One Debt belonged to him and that he was liable to 

pay the debt. Defendant argues that Plaintiff’s claim under § 1692e fails because Defendant 

made no misrepresentation and, even if it had, Plaintiff knew that it was not attempting to collect 

a debt from him. Defendant argues that even the least sophisticated consumer in Plaintiff’s 

position would know that his wife, and not him, was the target of Defendant’s collection efforts. 

Defendant essentially argues that Plaintiff’s claim under § 1692e fails as a matter of law 

because he knew he was not a “consumer” and therefore lacks standing to bring such a claim. In 

support, Defendant cites Kaniewski v. Kaniewski v. National Action Financial Svs., 678 F. Supp. 

2d 541 (E.D. Mich. 2009), and Hill v. Javitch, Block & Rathbone, LLP, 574 F. Supp. 2d 819 

(S.D. Ohio 2008) (Beckwith, C.J.). In Kaniewski, the court reasoned that a plaintiff who knew 

that the defendant was not attempting to collect on a debt owed by him could not sustain an 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 13 of 21 PAGEID #: <pageID>
14 

FDCPA claim under § 1692e as a matter of law. Id. at 546 (citing Kujawa v. Palisades 

Collection, LLC, 614 F. Supp. 2d 788 (E.D. Mich. 2008)). Similarly, in Hill, this Court held that 

the plaintiff failed to state a claim under § 1692f of the FDCPA where he “clearly understood” 

that the communications were not directed at him and “[e]ven the least sophisticated consumer 

would have understood” that the defendant “was not attempting to collect a debt from [the 

plaintiff].” Id. at 826. Thus, even the least sophisticated consumer would not be misled by a 

debt collector if the individual knew that the collection effort was not directed at him or her. 

Defendant alleges that the rationale underlying these cases applies here. 

The case at bar is distinguishable from Kaniewski and Hill; however, the principles 

expressed therein are instructive here. To begin the January 27 conversation, Defendant’s 

representative indicated that she was calling in an attempt to collect on a debt owed by Plaintiff’s 

wife. As the conversation progressed, however, Plaintiff eventually stated that any debt of his 

wife is also a debt of his. Plaintiff did not indicate that he had legally assumed the debt; rather it 

is clear that the basis of his statement was his belief that he has an obligation to help repay any 

debt owed by his wife.4

 Defendant’s representative generally concurred with Plaintiff’s 

statements concerning his obligations in relation to his wife’s debt. Even though Defendant’s 

representative generally agreed with Plaintiff on that point, she repeatedly made statements 

 4

 Under Ohio law, which is where Plaintiff has resided since 2002, one spouse is not 

liable for the debts of the other, absent some other applicable theory of liability. Nesper v. Bank 

of America, No. OT-03-012, 2004 WL 628783 (Ohio Ct. App. Mar. 31, 2004) (citing Ohio Rev. 

Code § 3103.08). In Texas, which is one of the states where Plaintiff resided in prior to 2002, 

“one spouse is not liable for the other’s debt unless the other incurred it as the one’s agent or the 

one failed to support the other and the debt is for necessaries. Tedder v. Gardner Aldrich, LLP, 

11-0767, 2013 WL 2150081 (Tex. May 17, 2013) (citing Section 3.201 of the Texas Family 

Code). Thus, an individual’s obligations, as they relate to his or her spouse’s debt, depend on the 

underlying facts of the debt. Because the underlying facts of the Capital One Debt are unknown, 

it is not clear, based on the state of the evidence, whether Plaintiff was legally obligated to repay 

the Capital One Debt. 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 14 of 21 PAGEID #: <pageID>
15 

emphasizing that she was attempting to collect on a debt owed by Plaintiff’s wife, based on her 

identity as account holder of the Capital One Debt. Ultimately, and based on Plaintiff’s 

assertions, Defendant’s representative indicated that Plaintiff also should repay the Capital One 

Debt, and consequently requested that Plaintiff make a payment as to the debt. Thus, by the 

conclusion of the January 27 conversation, both parties were proceeding with the understanding 

that if Plaintiff’s wife owed the debt, Plaintiff also owed the debt. Based on that understanding, 

Defendant’s representative requested that Plaintiff and/or his wife repay it, referring to them 

collectively as “you”. 

Unlike the Kaniewski and Hill cases, Defendant attempted to collect from Plaintiff. Even 

so, Defendant’s representative’s statements and requests for payment cannot be viewed as an 

attempt to mislead Plaintiff, nor did they in fact mislead him, because they were consistent with 

his own statements, which reasonably reflected a belief that he is at least morally obligated to 

repay any debt of his wife.5 Thus, any misstatement by Defendant’s representative during the 

January 27 conversation, as to the nature of the debt, can be directly attributed to Plaintiff’s 

assertions, and do not demonstrate any intent to deceive. The purpose of the FDCPA is to 

eliminate “abusive, deceptive, and unfair debt collection practices,” not to punish a debt collector 

for statements made during the collection process that are consistent with previously made, and 

facially reasonable, statements of the target consumer or the consumer’s spouse. Therefore, the 

Court resolves that Defendant is not liable for statements made during the January 27 

 5

 Even if an individual has no legal obligation to pay the debt of his or her spouse, 

nothing precludes him or her from voluntarily accepting a moral obligation to repay the spouse’s 

debt. This principle is particularly noteworthy in circumstances where the applicable statute of 

limitations precludes legal action against a debtor, which appears to be the case here, because 

when the debt collector cannot take legal action against a debtor, it may still seek to collect the 

debt by attempting to appeal to the moral compass of the debtor, and by logical extension, a 

debtor’s spouse, who indicates a willingness to repay legitimate debts of the spouse. 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 15 of 21 PAGEID #: <pageID>
16 

conversation because it did not engage in abusive, deceptive, or unfair debt collection practices 

as it relates to its attempt to collect the Capital One Debt. 

Accordingly, Defendant is entitled to summary judgment as it relates to Plaintiff’s § 

1692e claim. 

C. Section 1692f Claim 

Title 15 U.S.C. § 1692f provides that a “debt collector may not use unfair or 

unconscionable means to collect or attempt to collect any debt.” Defendant argues that 

Plaintiff’s § 1692f claim fails because even the least sophisticated consumer in his position 

would know he was not the target of Defendant’s collection attempts, and because Plaintiff has 

not identified any conduct that is not already governed by another FDCPA section. 

As discussed above, Defendant is correct that a plaintiff has no standing to bring a § 

1692f claim when he “clearly understood” that the communications were not directed at him and 

“[e]ven the least sophisticated consumer would have understood” that the defendant “was not 

attempting to collect a debt from [the plaintiff].” Hill, supra. But the facts in the case at bar do 

not establish that Plaintiff understood that Defendant was not attempting to seek payment from 

him for a debt. While the facts support a finding that it was clearly understood that Defendant 

was attempting to collect from Plaintiff’s wife, the evidence also supports a finding that 

Defendant attempted to collect from Plaintiff. Thus, Defendant’s argument that Plaintiff lacks 

standing to bring his § 1692f claim is without merit. 

 The Court, however, agrees with Defendant’s argument that the § 1692f claim fails 

because Plaintiff has not identified any conduct that would not be covered by a different FDCPA 

provision. Section 1692f “serves a backstop function, catching those ‘unfair practices’ which 

somehow manage to slip by §§ 1692d & 1692e.” Edwards v. McCormick, 136 F. Supp. 2d 795, 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 16 of 21 PAGEID #: <pageID>
17 

806 (S.D. Ohio 2001) (Marbley, J.). That is, “§ 1692f allows the court to sanction improper 

conduct that the FDCPA fails to address specifically.” Id. (quoting Adams v. Law Offices of 

Stuckert & Yates, 926 F. Supp. 521, 528 (E.D. Pa. 1996). In support of his § 1692f claim, 

Plaintiff argues that Defendant violated this provision by attempting to collect a debt from him 

that he did not owe, by not disclosing that the debt was barred by the statute of limitations, and 

by not resending a second § 1692g notice to him. 

Because the factual bases of the alleged violations of § 1692f are covered by another 

FDCPA provision, they do not support Plaintiff’s claim under § 1692f. Plaintiff alleges that 

Defendant acted unfairly or unconscionably by attempting to collect the Capital One Debt from 

him. The factual basis of this claim, however, is that Defendant made misrepresentations to him 

as part of the collection attempt. As such, this alleged misconduct is addressed by § 1692e, 

which has been discussed above. 

Similarly, any misconduct as it relates to allegedly not disclosing that the debt is outside 

of the statute of limitations, would be governed by § 1692e, insofar as it is considered a 

misrepresentation of the legal status of the debt. Moreover, filing a complaint to collect a debt 

that has been extinguished by the passage of time violates § 1692e(2), which prohibits false 

representations about the character or legal status of any debt. Deere v. Javitch, Block & 

Rathbone LLP, 413 F. Supp. 2d 886, 891 (S.D. Ohio 2006) (Beckwith, C.J.); see Harvey, 453 

F.3d at 332 (“Although we have never addressed the issue and express no opinion on the 

question, we note that courts in other circuits have held that the filing of a lawsuit to collect a 

debt that is barred by the statute of limitations violates several subsections of 15 U.S.C. § 1692e, 

which prohibits a debt collector from using ‘any false, deceptive, or misleading representation or 

means in connection with the collection of any debt.’”). But in this case, Defendant did not file 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 17 of 21 PAGEID #: <pageID>
18 

an action against Plaintiff, and Plaintiff fails to cite any case law finding that it is “unfair or 

unconscionable” conduct for a debt collector not to disclose whether the statute of limitations 

would prohibit any legal action to collect a particular debt. Contrary to Plaintiff’s suggestion, 

the FDCPA does not place an affirmative duty on a debt collector to disclose to a consumer the 

applicability of the statute of limitations in relation to a debt. See Scheiner v. Portfolio Recovery 

Associates, No. 1:12-cv-518 (S.D. Ohio Nov. 5, 2013) (noting that “[s]ilence regarding the 

expiration of the statute of limitations (especially when plaintiff was already aware the statute 

had expired) is not an actionable false representation of the legal status of a debt.”). Thus, 

Plaintiff’s arguments in relation to the statute of limitations are unpersuasive. 

Lastly, insofar as Plaintiff alleges a violation of § 1692g, such conduct is covered by that 

provision, not § 1692f, and will be discussed below. 

D. Section 1692g Claim

The FDCPA provides that a debt collector must communicate with a consumer in 

connection with the collection of a debt and send the consumer a written notice containing 

information about the debt. See 15 U.S.C. § 1692g. The undisputed evidence shows that, after 

Defendant purchased the Capital One Debt, it sent a written notice pursuant to § 1692g to 

Maureen Newton’s last known address, which was in Abilene, Texas, and that the notice was not 

returned to Defendant in the mail. Plaintiff asserts that Defendant knew or should have known 

that the notice was never received because the 5016 Number has an Ohio area code, Defendant 

sent the § 1692g notice to a Texas address, and Plaintiff indicated that he did not recall the debt. 

While Plaintiff suggests that the notice should have been sent to another address, he does not 

dispute the evidence submitted by Defendant demonstrating that the notice was sent to his wife’s 

last known address and that the notice was not returned. Under these circumstances, there is a 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 18 of 21 PAGEID #: <pageID>
19 

presumption of delivery. See Johnson v. Midland Credit Management Inc., No. 1:05-cv-1094, 

2006 WL 2473004, at *12-13 (N.D. Ohio Aug. 24, 2006). Even though Plaintiff disputed the 

origin of the debt during the January 27 conversation, he did not indicate that his wife did not 

receive the notice. Plaintiff fails to present sufficient evidence that the presumption of delivery 

was rebutted, and that Defendant was aware that the first notice was not delivered. See id.

(“where the debtor rebuts the presumption of delivery by showing the notice was sent to an 

incorrect address and returned as undeliverable, the plain language and purpose of the FDCPA 

requires additional action by the debt collector to send a notice reasonably calculated to reach the 

consumer.”). In other words, Plaintiff simply speculates that Defendant knew or should have 

known that the § 1692g notice was not received. Speculation is not a sufficient basis to 

demonstrate a genuine issue of fact. Based on the evidence, Plaintiff cannot demonstrate a 

violation of § 1692g. 

E. Defendant’s Request for Attorneys’ Fees 

 In the conclusion sections of Defendant’s primary and reply briefs in support of its 

Motion for Summary Judgment, it requests attorneys’ fees as a sanction against Plaintiff pursuant 

to 15 U.S.C. § 1692k(a)(3). Defendant does not, however, fully develop the basis of its request 

for sanctions against Plaintiff. 

Section 1692k(a)(3) provides in part that “[o]n a finding by the court that an action under 

this section was brought in bad faith and for the purpose of harassment, the court may award to 

the defendant attorney’s fees reasonable in relation to the work expended and costs.” Because 

Plaintiff has made non-frivolous arguments in connection with his claims, Defendant is not 

entitled to attorneys’ fees. Although ultimately meritless, Plaintiff did not bring his action in bad 

faith or for the purpose of harassment. Even though Defendant has not demonstrated an 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 19 of 21 PAGEID #: <pageID>
20 

entitlement to attorneys’ fees under § 1692k(a)(3), there is an issue relating to Plaintiff’s 

prosecution of this matter that must be addressed. 

As noted by Defendant, the alleged facts underlying Plaintiff’s claims of misconduct 

have repeatedly changed during the course of this litigation – from the Verified Complaint, to his 

discovery responses, to his deposition, and finally to his response to Defendant’s Motion for 

Summary Judgment. At first glance, it appears that Plaintiff may have been confused about the 

identity of multiple debt collectors in relation to their attempt to collect different debts. In other 

words, Plaintiff may have misidentified another debt collector that was allegedly engaging in 

misconduct and misplaced his blame for that conduct against Defendant. More troubling to the 

Court, however, is Plaintiff’s statements at his deposition indicating that he did not review the 

Verified Complaint, or his responses to Defendant’s first set of interrogatories, despite attesting 

to their veracity, suggesting the possibility that counsel for Plaintiff prepared the documents 

without ensuring that he reviewed them before he attested to their truthfulness. Whether this 

lack of review contributed to the changes in Plaintiff’s factual allegations of misconduct against 

Defendant is unclear, but it is a possibility. While the Court will not impose any sanctions 

relating to this conduct, in part because the reason for its occurrence is unknown, it is compelled 

to instruct counsel for Plaintiff to advise him not to indicate the veracity of statements in a 

document that he has not reviewed. 

IV. Conclusion 

 For the forgoing reasons, the Court GRANTS Defendant’s Motion for Summary 

Judgment (Doc. 51). Defendant is entitled to summary judgment as to all of Plaintiff’s claims 

under the FDCPA. Accordingly, the Clerk shall enter FINAL JUDGMENT in favor of 

Defendant. 

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 20 of 21 PAGEID #: <pageID>
21 

 The Clerk shall remove Document 16 from the Court’s pending motions list. 

 The Clerk shall remove this case from the Court’s pending cases list. 

IT IS SO ORDERED. 

 

 s/ George C. Smith 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT

Case: 2:12-cv-00698-GCS-MRA Doc #: 23 Filed: 01/30/14 Page: 21 of 21 PAGEID #: <pageID>