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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

CINCINNATI

ALYSSA PORTNOY, et al

Plaintiffs,

v.

NATIONAL CREDIT SYSTEMS, INC.,

Defendant.

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Case No. 1:17-CV-00834-MRB

JUDGE MICHAEL R. BARRETT

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER [DOC. 89] TO 

PROHIBIT NATIONAL CREDIT SYSTEMS, INC. FROM TRANSFERRING ASSETS

NOW COMES Defendant NATIONAL CREDIT SYSTEMS, INC. (hereinafter referred to 

as “NCS”), by counsel, and hereby respond in opposition to Plaintiffs’ Motion seeking an Order

[Doc. 89] Prohibiting NCS from Transferring Assets (hereinafter, the “Motion”), and in support 

thereof, rely upon the facts and law as set forth herein. 

I. Introduction

Without factual support by affidavit or otherwise, and without citation to relevant law, 

Plaintiffs seek the extraordinary relief set forth in their Motion. That relief appears to be an 

injunction (though it was not labeled as such). Plaintiffs have no reason to believe that NCS poses 

a risk to itself, the Plaintiffs, the putative class, or anyone else. Other than pure speculation, 

Plaintiffs offered no evidence of actual risk. 

II. Procedural Background

Plaintiffs filed this case in November of 2017, and it was removed to this Court in 

December of 2017. See ECF Doc. # 1-2. The initial complaint contained Plaintiffs’ class 

allegations. See id. Defendant National Credit Systems, Inc. (“NCS”) filed its timely answer on 

December 20, 2017. See ECF Doc. # 7.
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Then, on February 7, 2020, following discovery and a full briefing on the merits, this Court 

granted (a) Defendant Williamsburg of Cincinnati’s motion for summary judgment as to 

Plaintiffs’ complaint and its own counterclaim (ECF Doc. # 42), (b) Defendant David Donnett’s 

motion for summary judgment as to the third-party complaint (ECF Doc. # 43), and (c) NCS’s 

motion for summary judgment. See ECF Doc. # 61. Plaintiff appealed this Court’s ruling on 

March 3, 2020. ECF 63. On appeal, this Court’s ruling was affirmed with the exception of the 

FDCPA claim as to NCS, and though the court of appeals stopped short of stating that NCS 

violated the law, it did remand the case for further proceedings in accordance with the clear 

instructions and guidance set forth in the opinion.1 See Alyssa Portnoy, et al v. National Credit 

Systems, Inc., et al, C.A. 6 Case No. 20-3271.

Now, more than three and a half years after the Plaintiffs filed their case, and before they 

have even sought certification, Plaintiffs seek to prohibit NCS from “transferring any of its 

business assets, including money, from its possession during the pendency of the lawsuit”.2See 

Motion, pg. 1, Pg. ID 686.

III.Plaintiffs have not set forth sufficient facts, evidence, or law which would support the 

order that the Plaintiffs have demanded.

Plaintiffs’ Motion relies upon Ohio Rev. Code Chapter 1336 as authority that “prohibits a 

1 Violations of the Fair Debt Collection Practices Act (“FDCPA”) permits damages of “up to 

$1,000.00’’. See 15 U.S.C. 1692(k)(a)(2)(A). In a class action under the FDCPA, a certified class 

can recover the lesser of $500,000.00 or 1 percent of the net worth of the debt collector. 15 U.S.C. 

1692(k)(a)(2)(A). The FDCPA also permits the recovery of attorneys’ fees. NCS continues to 

deny all liability and damages.

2 Such an unbridled request without justification or limitation is clearly made solely for the 

purposes to harass the Defendant, NCS. Moreover, in seeking to prohibit NCS from transferring 

anything, including money, would effectively be a request to turn over ownership of its business 

to Plaintiffs. To be clear – this is what the Portnoys are advocating for if the Portnoys are 

advocating that NCS cannot as much as transfer money – money to make payroll, pay vendors, or 

transfers within the regular course of business.
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debtor from transferring its assets to avoid attachment from a creditor” and further going on to 

state that “NCS is not beyond any such behavior”. See Motion, pg. 2, Pg. ID 687. However, 

Chapter 1336 is the Ohio statute for fraudulent transfers, and there is no fraudulent transfer. 

“Where fraud lies at the core of the action, Rule 9(b) applies.” Id. And, “in actions alleging 

conspiracy to defraud or conceal, the particularity requirements of Rule 9(b) must be met.” Id.; 

see also Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 990 (9th Cit. 2005) (holding 

that where the object of the alleged civil conspiracy is fraudulent, Rule 9(b) requires plaintiffs to 

plead with particularity). “Even where allegations are based on information and belief, supporting 

facts on which the belief is founded must be set forth in the complaint.” Hayduk, 775 F.2d at 444. 

This is so “even when the fraud relates to matters peculiarly within the knowledge of the opposing 

party.” Id.

Critically, Plaintiffs have not alleged any facts which would support their request to 

effectively halt their business operations and “hand the keys to the castle” to the Plaintiffs. 

Stunningly, this request is not supported by case law, and is instead tied merely to a singular 

reference to the Ohio Revised Code. 

Moreover, even if Plaintiffs had pled fraudulent transfer, it is unlikely that the Plaintiffs

would be unable to meet their burden of proof, as Ohio has adopted the Uniform Fraud Transfer 

Act. Here, Plaintiffs have not alleged that NCS has transferred any assets, much less that NCS 

has transferred any assets with an improper purpose. Very clearly and very plainly, Plaintiffs have 

not and cannot meet their burden on their extraordinary Motion to “halt” all of NCS’s business 

operations. NCS should be awarded its costs and fees for having to respond to such a frivolous 

and baseless motion. 
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IV. Similarly, Plaintiffs are not entitled to an injunction.

Fed. R. Civ. Proc. 65(a) grants the Court the power to issue a preliminary injunction. The 

Sixth Circuit has specified which elements must be considered and “carefully balanced” when

deciding to issue or withhold a preliminary injunction. These elements are: (1) Whether the 

movant has shown a strong or substantial likelihood or probability of success on the merits; (2) 

Whether the movant has shown irreparable injury; (3) Whether the preliminary injunction could 

harm third parties; (4) Whether the public interest would be served by issuing the preliminary 

injunction. Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F. 2nd 1261, 1263 (6th Cir.

1985)(citing Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 264 (6th Cir. 1977)). 

In this case, Plaintiffs have not attempted to address any of these elements. Plaintiffs have 

not posited a single argument that there is in a merit to any of their claims. Furthermore, NCS 

denies that Plaintiffs have a likelihood of success on the merits. Even if NCS had violated the 

FDCPA, the FDCPA exculpates creditors for bona fide errors. See 15 U.S.C. 1692k, particularly 

when a debt collector relies upon a creditor’s representation of an amount owed. 

Moreover, Plaintiffs have not addressed the remaining three factors – irreparable injury, 

harm to third parties, and public interest. NCS submits that there would be no harm to any of these 

classes of persons if Plaintiffs’ Motion was denied, and Plaintiffs’ have not alleged otherwise. 

Specifically, there have been no allegations that that (1) NCS is foreign with no ties to the United 

States, (2) NCS hides its assets in foreign nations, or (3) that NCS has wrongfully or fraudulently 

concealed or moved its assets. Additionally, in class action cases, as mentioned supra, damages 

are limited to 1% of a debt collectors’ net worth or $500,000.00 – which ever is less. As such, 

damages would be subject to this cap in this matter, and Plaintiffs, Defendant, third parties, and 

the public, all have a certain level of protection based upon that fact.
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Therefore, even though Plaintiffs have not brought a motion under Fed. R. Civ. P. 65, it is 

clear that no injunctive relief is available to Plaintiffs even if they had filed an appropriate motion. 

As such, under Frisch's Restaurant, Inc., supra, Plaintiffs cannot and have not met their burden, 

and their Motion must be denied. 

CONCLUSION

The Motion was ill conceived from the beginning and was brought with the purpose to 

harass NCS and to protract litigation proceedings. The Motion is not founded upon fact or law

and must be denied.

Respectfully Submitted, 

/s/ Katrina M. DeMarte

Katrina M. DeMarte (MI Bar No. P81476; 

CO Bar No. 43135)

DEMARTE LAW, PLLC

39555 Orchard Hill Place; PMB 6338

Novi, MI 48375

Tel. 313-509-7047

katrina@demartelaw.com

Counsel for Defendant

/s/Boyd W. Gentry

Boyd W. Gentry (0071057)

Law Office of Boyd W. Gentry, LLC

4031 Colonel Glenn Highway

First Floor

Beavercreek, Ohio 45431

Tel. 937.839.2881

Fax 800.839.5843

bgentry@boydgentrylaw.com

Counsel for Defendant
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CERTIFICATE OF SERVICE

I hereby certify that on April 23, 2021, a true and correct copy of the above and foregoing 

document was sent by Electronic service by the Court’s CM/ECF system to all attorneys of record. 

/s/Boyd Gentry

Boyd Gentry (0071057)