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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-834

Judge Michael R. Barrett

Defendant’s Motion To Dismiss for Lack of 

Jurisdiction under Fed. R. Civ. P. 12(b)(1)

NOW COMES Defendant National Credit Systems, Inc. (“NCS”) and moves this 

Court to dismiss the remaining claim in this case for lack of jurisdiction under Fed. R. Civ.

P. 12(b)(1). It is important to note that following the Sixth Circuit’s November, 2020, 

ruling there is only one claim remaining in this case: the FDCPA claim against NCS. 

This motion raises one dispositive issue:

To have standing, a plaintiff must allege a concrete and particularized injury. Spokeo 

v. Robins, 136 S.Ct. 1540 (2016). Here, Plaintiffs admittedly have no damages: they 

lost no money/property, nor did they suffer harm to their privacy or reputations. Do 

Plaintiffs have standing? The Answer is “no”. Consequently, there is no 

jurisdiction to hear the FDCPA claim.

For this reason, NCS moves this Court to dismiss the remaining claim for lack of 

jurisdiction.

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

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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

/s/Leslie C. Bender

Leslie C Bender (003227)

Clark Hill PLC

1001 Pennsylvania Avenue, NW

Suite 1300 South

Washington, DC 20004

LBender@ClarkHill.com

Counsel for Defendant

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MEMORANDUM

PROCEDURAL HISTORY

This case has a long history, but Plaintiff’s lack of damages has never been the focal 

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

December of 2017. See ECF Doc. # 1-2. Defendant National Credit Systems, Inc. (“NCS”) 

filed its timely answer on December 20, 2017. See ECF Doc. # 7. Almost immediately, on

January 31, 2018, Plaintiffs filed a motion for summary judgment, effectively abandoning 

the class allegations. See ECF Doc. # 13, 30, and 31. This Court denied Plaintiffs’ motion 

for summary judgment and granted NCS’s motion for summary judgment. See ECF Doc. 

# 61. 

On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of 

all claims, except one: Plaintiffs’ claim under the Fair Debt Collection Practices Act. 

Alyssa Portnoy, et al v. National Credit Systems, Inc., et al, C.A. 6 Case No. 20-3271. At 

no time did this Court or the Court of Appeals address Plaintiff’s lack of damages or 

standing.

FACTUAL BACKGROUND

On August 10, 2016, Plaintiffs entered into a one-year residential lease with former 

Defendant Williamsburg of Cincinnati for an apartment. See ECF Doc. # 66, Page ID # 

543. The terms of the lease were set to automatically renew to create a month-to-month 

tenancy unless, per the lease’s terms, either party gave 60 days’ notice to terminate the 

lease or an intent to move out. See id. Upon moving out, “Plaintiffs agree that they did 

not provide 60 days’ notice of intent to move out, and, in fact, they provided just 23 days’ 

notice.” See id at Page ID # 544. On appeal, the Sixth Circuit interpreted the lease contract 

and found that: 

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Plaintiffs gave their notice of termination on July 27, 2017, which was 23 

days before August 20, 2017, when the lease renewed on a month-to-month 

basis, but more than 30 days before the next periodic rental date on 

September 20, 2017. Therefore, they effectively ended the tenancy on 

September 19, 2017, and are only responsible for rent through that date. 

Given that Williamsburg notified Plaintiffs that the rent for the month-tomonth lease would be $898, Plaintiffs agreed to a $1.95 move out charge 

and a monthly rate of $63.76 for utilities, and Williamsburg retained the 

$200 security deposit, Plaintiffs owed Williamsburg $763.71 when the 

periodic rental term ended.

See id. at Page ID # 550 (C.A. 6, Case No. 20-3271).

After Alyssa Portnoy moved out of the apartment, Williamsburg sent her a letter 

stating that she owed $937.52 under the lease. See Exhibit 3 to Complaint, Page ID # 101.

A few days later, attorney Michael Portnoy sent a letter to Williamsburg challenging the 

balance owed. See Exhibit 4 to Complaint, Page ID # 103. Williamsburg then referred the 

account to NCS for servicing. Complaint ¶ 18, Page ID # 62.

Plaintiffs now claim that NCS violated the FDCPA by seeking the same amount 

($937.52) as sought by Williamsburg. Id. There is no allegation nor evidence showing 

that NCS added any amount to the balance calculated and sought by Williamsburg.

Q. So Williamsburg had calculated $937.52 and NCS repeated that exact 

amount with the same move-out statement; right?

A. Yes.

Darlene Portnoy Depo., p. 82, lines 1-4.

NO INJURY

Plaintiffs admit that they have no damages (no loss of money, no loss of damage or 

property, no mental or physical health treatment, and no harm in any way). Darlene 

Portnoy Depo., pp. 83, 86-87; Alyssa Portnoy Depo., p. 54, p. 70, line 23, p. 75, lines 12-

21. NCS’s alleged conduct of repeating the same balance as sought by Williamsburg did 

not cause injury.

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Q. And so this balance of $937.52 that was alleged in Exhibit G, did that 

cause you any other type of difficulty or harm?

A. In what way?

Q. In any way.

A. No.

Alyssa Portnoy Depo., p. 54, lines 16-21. Similarly, Plaintiff Darlene Portnoy admitted 

that NCS did nothing to injure her.

Q Did National Credit Systems do anything to you?

A Do anything to me?

Q Right.

A No. I mean, they tried to collect a debt.

Q How did they try to collect it?

A You know, I don't recall. I have not reviewed all the documents with 

regard to the first -- when the original complaint was filed.

Darlene Portnoy Depo., p. 83, lines 14-21. Plaintiffs had no telephone communications 

with NCS, and neither Plaintiff sent written correspondence to NCS. Alyssa Portnoy 

Depo., p. 80, line 24- p. 81, line 2 and p. 34, line 16 through p. 35, line 1; Darlene Portnoy 

Depo., p. 107, lines 8-10 and p. 92, lines 7-10. 

Plaintiffs did not lose any money or property. Darlene Portnoy Depo., p. 86, lines 

16-22; Alyssa Portnoy Depo., p. 54, lines 16-21. Neither Plaintiff paid anything toward 

the balance.

1 Nothing here caused injury to either of the Plaintiffs. Alyssa Portnoy Depo., 

p. 54, lines 12-21.

Q. Are you claiming that in this case that you suffered some damages?

A. I don't know. I don't know the answer to that question and I don't want 

to give you something that sounds good but isn't correct.

Alyssa Portnoy Depo., p. 71, lines 6-10.

Plaintiffs do not claim any type of emotional or psychological harm.

1 There is an outstanding judgment against Plaintiffs. Doc.70.

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Q. Are you going to ask a jury to give you some award of damages, assuming 

the case gets to a jury, that would compensate you for any like health 

treatment or mental health or physical health treatment?

A. No.

Q. Is there any mental or physical health issue in your life that you would 

relate to this case or the facts underlying this case?

A. No.

Q. Have you spoken about this case or the facts underlying this case to any 

doctor or counselor?

A. No.

Alyssa Portnoy Depo., p. 75, lines 12-25. The only time Darlene Portnoy was “upset” was 

when she learned that the Court of Appeals held that she owed $763.71. Darlene Portnoy 

Depo., p. 73, line 10.

Even though the Court of Appeals concluded that Williamsburg was entitled to 

seek $763.71 (instead of $937.52 as originally sought by Williamsburg), the $173.61

difference was immaterial to Plaintiffs. It would have made no difference to Plaintiffs if 

Williamsburg had only sought $763.71 as awarded in the judgment. Darlene Portnoy 

Depo., p. 86, line 23 – p. 87, line 4; Alyssa Portnoy Depo., p.51, line 22-p.52, line 4.

Plaintiffs did not rely on any statement made by NCS. For example, Plaintiffs did 

not pay the delinquent balance to Williamsburg and did not pay the delinquent balance 

to NCS. Moreover, to date the Plaintiffs have not paid the Williamsburg judgment.

Plaintiffs did not and still do not prioritize this account over other obligations. Finally, 

neither Plaintiff paid money to their counsel. Darlene Portnoy, Depo. p. 107, lines 14-17. 

Alyssa Portnoy put it this way:

Q. Are you concerned that you might owe money for legal fees at the end of 

this?

A. No.

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Q. Why not?

A. Because I'm his only kid. Honestly.

Alyssa Portnoy Depo., pp. 77-78.

LAW & ANALYSIS

This motion makes a factual attack on jurisdiction.

Attacks on subject matter jurisdiction may be either facial attacks 

or factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 

1994). A facial attack challenges the legal sufficiency of the allegations of 

the complaint, and "goes to the question of whether the plaintiff has alleged 

a basis for subject matter jurisdiction, and the court takes the allegations 

of the complaint as true for purposes of Rule 12(b)(1) analysis." Cartwright 

v. Garner, No. 12-6314, 2014 WL 1978242, at *6 (6th Cir. 2014) (citation 

omitted). If those allegations establish federal claims, then jurisdiction 

exists. Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 

330 (6th Cir. 2007) (discussing Rule 12(b)(1) facial attacks). In contrast, 

a factual attack challenges the factual existence of subject matter 

jurisdiction, rather than the legal sufficiency of the allegations. Ritchie, 15 

F.3d at 598.

Martinez v. Mayorkas, No. 1:13cv485, at *3-4 (S.D. Ohio Sep. 30, 2014).

A. Plaintiffs cannot carry their burden on any of the three elements of 

standing.

“Not all disputes have a home in federal court.” Buchholz v. Meyer Njus Tanick, PA,

946 F.3d 855, 860 (6th Cir. 2020). The FDCPA claim must be dismissed under Rule 

12(b)(1) because the Court lacks subject matter jurisdiction as Plaintiffs do not have 

standing. See Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008) (“lack of 

standing” implicates “subject matter jurisdiction”). 

The plaintiff must have (1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and (3) that is likely 

to be redressed by a favorable judicial decision. 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Each Plaintiff carries the burden of 

establishing those three elements, and they cannot do so here. Buchholz, 946 F.3d at 861. 

“Article III standing requires a concrete injury even in the context of a statutory 

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violation.” TransUnion LLC v. Ramirez, --- U.S. ---, Case No. 20-297, 2021 WL 2599472, 

at *8 (June 25, 2021).

“Injury-in-fact is a constitutional requirement, and it is settled that Congress 

cannot erase Article III's standing requirements by statutorily granting the right to sue to 

a plaintiff who would not otherwise have standing.” Spokeo, 136 S.Ct. at 1547-48 (internal 

quotations and alterations omitted). The existence of a federal “cause of action does not 

affect the Article III standing analysis.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1620

(2020). Rather, “Article III requires a concrete injury even in the context of a statutory 

violation.” Id. at 1620-21, quoting Spokeo, 136 S.Ct. at 1549.

“A concrete injury must be de facto; that is, it must actually exist.” Spokeo, 136 S.

Ct. at 1548 (quotations omitted). It is not enough for the alleged violations to simply be 

capable of causing injury; rather, the conduct which the Plaintiff challenges must go 

beyond conjecture or speculation – it must actually injure a plaintiff as supported in the 

record. Frank v. Autovest, LLC, 961 F.3d 1185, 1189 (D.C. Cir. 2020). Not every violation 

of law causes an injury-in-fact sufficient to confer Article III standing. Trichell v. Midland

Credit Management, Inc., 964 F.3d 990, 997 (11th Cir. 2020). Cooper v. Atl. Credit & Fin. 

Inc., 822 F. App'x 951, 954 (11th Cir. 2020) (conjectural harms such as confusion over a 

collection letter, without more, is “insufficient to confer standing.”).2 The allegation of 

bare procedural violation cannot establish an injury in fact to satisfy plaintiff's standing 

under Article III. Spokeo at 1550. See also Kale v ProCollect, Inc., --F.Supp.3d --, 2021 

WL 2784556 (W.D. Tenn. July 2, 2021).

2 The Complaint makes no reference to actual damages, except with reference to damages 

“exceeding $25,000.00”, a generic phrase often used in Ohio’s state courts. ECF 1. 

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The standing inquiry ensures that the courts stay within their role for resolving 

cases or controversies – ensuring that federal courts have created a threshold below which 

simple allegations of harm do not satisfy the “concreteness” element required to meet 

Article III standing. Buchholz clarifies the standard and determined that to sufficiently 

confer Article III standing, a federal court must look to two alternative sources, depending 

on the alleged breach of law. First, a court looks to “whether an alleged intangible harm

has a close relationship to a harm that has traditionally been regarded as providing a basis

for a lawsuit in English or American courts.” Buchholz, 949 F.3d at 862. If the alleged 

injury is not one redressed by the common law, a court may determine whether Congress, 

in enacting a federal statute, has “identified and elevated” the violation of the statute to a 

“concrete injury.” Id. at 863. However, Congress does not have the authority under the 

Constitution “to enact an injury into existence, using its lawmaking power to transform 

something that is not remotely harmful into something that is.” Hagy v. Demers &

Adams, 882 F.3d 616, 622 (6th Cir. 2018). Rather, the “harm” Congress seeks to redress 

must exist “in the real world.” Id.

Here, Plaintiffs have not alleged a scintilla of factual information suggesting they

suffered actual damages or injury-in-fact. Spokeo, 136 S. Ct. at 1550. Even a strict liability 

statute does not make up for a plaintiff’s failure to chronicle actual damages or injury in 

fact. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979); Valley Forge 

Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 487 

n. 24 (1982); 15 U.S.C. § 1691k. Additionally, allegations concerning the injury and 

standing are viewed under the “plausibility” standard set forth in Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009). Lardas v. Grcic, 847 F.3d 561, 565 (7th Cir. 2017).

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In the landmark opinion issued this year, the United States Supreme Court 

clarified the Article III Standing requirements by partially reversing certification on a 

class action where there was not a concrete injury. TransUnion LLC v. Ramirez, No. 20-

297, 2021 WL 2599472, at *11 (U.S. S. Ct. June 25, 2021). Specifically, in Ramirez, the 

defendant (Trans Union) maintained a database of consumers for public access, which 

had been updated with incorrect and defamatory information – naming the class 

members as potential terrorists, drug traffickers, or serious criminals. Approximately 2/3 

of the class did not have their information disseminated. The Court found that those 

persons could not be class members as they suffered no harm. TransUnion LLC v.

Ramirez, No. 20-297, 2021 WL 2599472, at *11 (U.S. S. Ct. June 25, 2021). 

The Seventh Circuit recently dismissed an FDCPA case for lack of jurisdiction 

where the plaintiff failed to show harm. Nettles v. Midland Funding LLC, 983 F.3d 896, 

898 (7th Cir. 2020). In Nettles, a debt collector sent a letter stating a balance $104 higher 

than the debtor owed under a prior consent judgment. Id. The debtor sued alleging that 

“the collection letter was false, misleading, or otherwise unfair or unconscionable in 

violation of §§ 1692e and 1692f of the FDCPA.” Id., at 898. The Seventh Circuit found 

that although the collection letter “overstated the amount of [the] debt . . . [the debtor]

does not allege that the statutory violations harmed her in any way or created any 

appreciable risk of harm to her.” Id., at 900. The debtor admitted that the collection letter 

“didn't affect her at all and that her only injury is receipt of a noncompliant collection 

letter.” Id., at 900. See also Pennell v. Glob. Tr. Mgmt., LLC, 990 F.3d 1041, 1045 (7th 

Cir. March 11, 2021, reh. req. denied April 12, 2021)

Here, Plaintiffs’ alleged injury is solely and simply the mere fact that their attorney

(Michael Portnoy) received a response letter from NCS which indicated that 

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Williamsburg was seeking $937.52. (Letter filed at ECF Doc. #88-1). 3 ECF 66, 70. 

Plaintiffs already knew that so, NCS added nothing new to the equation. Plaintiffs’ 

Complaint and deposition testimony do not establish “actual” injury. Plaintiffs have not 

paid any amount to Williamsburg or NCS.

Moreover, even assuming, arguendo, Plaintiffs had pled an injury-in-fact, they 

cannot trace an injury to NCS. This is particularly troubling since each Plaintiff seeks to 

be a “potential class representative,” and “must demonstrate individual standing vis-à-

vis [a particular] defendant; [s]he cannot acquire such standing merely by virtue of 

bringing a class action.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 

1998); see also Brown v. Nationwide Life Ins. Co., No. 2:17-CV-558, 2019 WL 4543538, 

at *3 (S.D. Ohio Sept. 19, 2019) (a “class representative” must have “a cause of action 

against each defendant”) (citation omitted); 1 Newberg on Class Actions 2:5 (5th ed.).

(1)Plaintiffs’ formulaic pleadings

Plaintiffs’ pleadings thus far have been inconsistent and lacking any factual detail 

regarding actions taken by either Darlene Portnoy or Alyssa Portnoy – which is to say that 

they merely recapitulate the actions of their counsel, Mr. Michael Portnoy. However, the 

dockets in these matters largely consist of a regurgitation of a stream of consciousness 

from Plaintiffs’ counsel, and do not consist of any formalized discovery request, 

3 The Sixth Circuit Court of Appeals reduced the original judgment by $173.61. However, 

Plaintiffs have not alleged that NCS or Williamsburg had actual knowledge that the amount owed 

by the Plaintiffs was false, nor can Williamsburg’s knowledge be imputed to NCS. To the contrary, 

the law is clear that a creditor's knowledge cannot be imputed to a debt collector. See Randolph v

IMBS, Inc., supra; see also Schmitt v. FMA Alliance, 398 F.3d 995 (8th Cir. 2005); Messick v.

Messerli & Kramer, P.A., 2016 WL 1180169 (D. Minn. Mar. 25, 2016); Lynch v. Nelson Watson

& Associates, LLC, 2011 WL 2472588 (D. Kan. June 21, 2011); Hennington v. American Exp.

Co., 2010 WL 1329003 (S.D. Miss. Mar. 29, 2010); Bianchi v. The Bureaus, Inc., 2008 WL

597587 (N.D. Ill. Feb. 27, 2008).

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traditional pleadings, affidavits, documents, verified complaints, or other such 

documents that a traditional litigation attorney might expect to see during their course of 

dealings in a lawsuit. ECF Doc. 117 and 117-1.

If anything, the record consists of bald-faced assertions that NCS violated the law, 

with no allegations of facts, little by way of legal theory, and nothing by way of proffered 

evidence. ECF 2, 81. As set forth in Iqbal, infra, Complaints are reviewed under the 

“plausibility” standard when determining if sufficient allegations have been properly pled 

by a Plaintiff to put a Defendant on notice of the charges brought against it – essentially, 

that a Complaint must consist of more than a “formulaic recitation of the elements of a 

cause of action or naked assertion devoid of further factual enhancement.” Ashcroft v. 

Iqbal, 556 U.S. at 678 (internal citations omitted).

When taking the plausibility standards set forth in Iqbal regarding notice pleading

into consideration under a damages analysis, and considering the facts in the light most 

favorable to Plaintiffs, this Honorable Court is not required to accept as true any 

unsupported legal conclusions, legal conclusions couched as factual allegations, or 

conclusory factual allegations devoid of any reference to actual events. Where a pleading 

merely offers labels and conclusions – such as Plaintiffs’ formulaic recitation in this 

matter – it is not only insufficient to state a plausible claim for relief under Article III, the 

defect is incurable, and Plaintiffs’ case is ripe for dismissal.

Plaintiffs’ FDCPA claim falls far from traditional FDCPA claims. Plaintiffs have 

not contended that NCS acted with a misleading or unfair method, nor did Plaintiffs rely

on NCS to their detriment. In fact, Plaintiffs do not even have communications to, from, 

or with NCS. Plaintiffs’ responses to interrogatory #1 (Attached hereto as Exhibits A and 

B)

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(2) Plaintiffs did not suffer an injury-in-fact.

Here, Plaintiffs lack standing because they did not suffer an injury-in-fact in the 

“flesh-and-blood or dollars-and-cents” sense of the terms. Huff v. TeleCheck Services,

Inc., 923 F.3d 458, 463 (6th Cir. 2019). Darlene Portnoy Depo., pp. 86-87; Alyssa 

Portnoy Depo., p. 54, p. 70, line 23, p. 75, lines 12-21. Neither Plaintiff meets the burden 

of showing injury-in-fact. Each Plaintiff refused to testify as to whether they paid their 

counsel4 anything. Plaintiffs admit that they have no injury (no loss of money, no loss of 

damage or property, no mental or physical health treatment, and no harm in any way).

Darlene Portnoy Depo., pp. 83, 86-87; Alyssa Portnoy Depo., p. 54, p. 70, line 23, p. 75, 

lines 12-21.

Plaintiffs never paid money to Williamsburg or NCS, regardless of whether the

amount owed was $937.52 as awarded to Williamsburg at the district court level, or the 

reduced amount of $763.71 as awarded by the court of appeals. As such, Plaintiffs cannot 

assert that there was some type of harm – whether tangible or intangible – that they 

suffered from their counsel’s mere receipt of a letter from NCS.

Moreover, an allegedly mistaken “belief” is not an injury which could be redressed 

under the common law and therefore is not a “concrete injury” under the first test outlined 

in Buchholz. See Trichell v. Midland Credit Mgmt, Inc., 964 F.3d 990 (11th Cir. 2020) 

(noting that although the underlying claim was one of “misrepresentation,” a common 

law tort, the plaintiffs did not allege “justifiable reliance or actual damages,” meaning no 

injury from misrepresentation and therefore no standing); see also Cooper v. Atlantic

Credit and Finance, Inc., 822 Fed. App'x. 951, 954 (11th Cir. 2020) (merely alleging 

4 Plaintiffs’ counsel is Michael Portnoy. Mr. Portnoy is married to Plaintiff Darlene Portnoy and 

is the father of Plaintiff Alyssa Portnoy. 

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FDCPA violation insufficient to create intangible harm where allegations of confusion, 

with a particularized injury, do not satisfy standing); Pennell v. Global Trust Mgmt., LLC,

990 F.3d 1041 (7th Cir. 2021) (rejecting “stress and confusion” as an injury). 

Plaintiffs did not rely on NCS’s representation that Williamsburg was seeking 

$937.52. In bypassing this critical element, Plaintiffs cut cords to relationship to harms 

that are traditionally remediable in English and American Courts. See Bucholz, supra.

Plaintiffs do not have a concrete injury under the first Buchholz prong because there was

no detrimental reliance (or other injury) that could have been redressed under common

law. “[G]eneral emotional ‘harm,’ no matter how deeply felt, cannot suffice for injury-infact for standing purposes.” Bucholz, at 861, 864-865, citing Humane Society of United

States v. Babbitt, 46 F.3d 93, 98 (D.C. Cir. 1995); Hein v. Freedom From Religion Found.,

Inc., 551 U.S. 587, 619-620 (2007). 

Plaintiffs cannot meet the second potential source of a “concrete injury” identified 

in Buchholz. In Lyshe v. Levy, 854 F.3d 855 (6th Cir. 2017), the Sixth Circuit held that 

Congress did not create a “concrete harm” based on the mere receipt of misleading or 

false information. The plaintiff in Lyshe received discovery in a state court case from the 

defendant debt-collector that misrepresented the terms under which the discovery had to 

be answered. Like the Plaintiffs, the Lyshe-plaintiff alleged that this was a violation of the 

FDCPA's prohibition on using false or misleading information in connection with an 

effort to collect a debt. 

The Lyshe plaintiff contended that “the FDCPA created a concrete harm –

receiving false information in connection with debt collection activities – that he suffered 

when [the debt collector] made misstatements” in connection with its effort to collect a 

debt. Lyshe, 854 F.3d at 859. The Lyshe court held, “[t]his view of the law is 

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untenable” and that mere factual misrepresentations were “not the type of harm the 

FDCPA was designed to prevent,” and, even if it were, the plaintiff did not allege that he 

acted on the misinformation. Id. Courts require FDCPA plaintiffs to show that they took 

some action or forewent some action because of the alleged violation. See Frank v.

Autovest, LLC, 961 F.3d 1185, 1188 (D.C. Cir. 2020) (Explaining that “[n]othing in the 

FDCPA suggests that every violation of the provisions implicated here--no matter how 

immaterial the infraction--creates a cognizable injury.”); Adams v. Skagit Bonded

Collectors, LLC, 836 F. App'x 544, 547 (9th Cir. 2020) (“Adams has not alleged actual 

harm or a material risk of harm to the interests protected by the FDCPA. Nothing in the 

Complaint suggests he took or forewent any action because of the allegedly misleading 

statements in the letters.”)

Similarly, the plaintiff in Buchholz argued that the receipt of misleading or false 

information in and of itself in an FDCPA case constituted a “concrete injury” sufficient to 

confer standing. The Sixth Circuit disagreed and found that, to sustain Article III 

standing, harm has to flow from the alleged violation. Buchholz, 946 F.3d at 870. In 

Buchholz, the Court did not see any “harm to come from that violation” and “[w]e are at

a loss for how [the defendant's] letters caused any harm.” Id.

(3) No injury can be “traceable” to the conduct of NCS, and 

Plaintiffs are incapable of curing this defect.

Defendant anticipates that Plaintiffs will seek leave to amend their Complaint to 

allege some type of damage. But such an amendment would be futile as Plaintiffs have 

already testified that they suffered no injury. Nonetheless, for the sake of completeness, 

to the extent that Plaintiffs could allege some type of injury, there is no injury “traceable” 

to the conduct of NCS. Williamsburg, the creditor, calculated the balance and sought it 

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directly from Plaintiffs. Moreover, even if Williamsburg and NCS had only sought the 

amount allowed by the court of appeals ($763.71), as opposed to $937.52, it would have 

made no difference to Plaintiffs. Darlene Portnoy Depo., pp. 86-87; Alyssa Portnoy 

Depo., p.51, line 22-p.52, line 4.

Here, each Plaintiff is a “potential class representative,” and “must demonstrate 

individual standing vis-à-vis [a particular] defendant; [meaning, s]he cannot acquire 

such standing merely by virtue of bringing a class action.” Fallick v. Nationwide Mut. Ins.

Co., 162 F.3d 410, 423 (6th Cir. 1998); see also Brown v. Nationwide Life Ins. Co., No. 

2:17-CV-558, 2019 WL 4543538, at *3 (S.D. Ohio Sept. 19, 2019) (a “class representative” 

must have “a cause of action against each defendant”) (citation omitted); 1 Newberg on 

Class Actions 2:5 (5th ed.).

Moreover, [a]ny injury that [the Plaintiffs] conceivably suffered was . . . selfinflicted, which means that it was not ‘fairly traceable to the challenged conduct of [NCS]”, 

but rather to the Plaintiffs or their counsel – who knowingly entered into a contract which 

required a 60-day notice to terminate, rather than a 30-day notice to terminate. See Butt

v. FD Holdings, LLC, 799 F. App'x 350, 353 (6th Cir. 2020) (quoting Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016)); see also Buchholz, 946 F.3d at 866.

5

5

In order to establish a prima facie case for an FDCPA violation, viewing all communications 

under the “least sophisticated consumer” standard, and in a manner protecting debt collectors from 

unreasonable interpretations, the Plaintiffs would need to prove the following: (1) that they are a 

natural persons who were harmed by violations of the FDCPA; (2) the “debt” arose out of a 

transaction entered into primarily for personal, family, or household purposes, 15 U.S.C. §

1692a(5); (3) that NCS’s collection of the debt is as a “debt collector” within the meaning of 15

U.S.C. § 1692a(6); and (4) that NCS violated, by act or omission, a provision of the 

FDCPA. Whittiker v. Deutsche Bank Nat. Trust Co., 605 F. Supp. 2d 914, 938-39 (N.D. Ohio

2009), citing Duncan v. Citibank, 2006 WL 4063022, at *5 (D. N.M. 2006), Grimard v. Palmer, et

al., 2007 WL 2287831, at *2 (E.D. Mich. 2007); Clomon v. Jackson, 988 F.2d 1314.

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Plaintiffs do not allege that NCS made any statements that created any intangible 

harms that would otherwise be actionable as recognized by the Sixth Circuit. The Plaintiffs 

do not even attempt to allege that they paid the debt after receipt of the letter. Rather, 

Plaintiffs continue to punt the ball, even now, stating that they do not know where to mail 

the check to – such a delay tactic is clearly a belabored attempt at gamesmanship and 

should be recognized by this Honorable Court as nothing more than the same. ECF 70, 

75, 76, 81, 82, 83, 85, 86, 88, 89, 90, 91, 94, 95, 99, 100, 101, 104, 106, 107, 109, 110, 111, 

112, 113.

Furthermore, to the extent that the Plaintiffs intend to argue that mere emotional 

distress over delinquent bills constitutes a concrete “injury-in-fact” - “confusion” and 

“anxiety” are not injuries. Garland v. Orlans PC, No. 18-11561, 2020 WL 2542036, at *7 

(E.D. Mich. May 19, 2020), aff'd on other grounds, 999 F.3d 432 (6th Cir. 2021) (finding 

that a “state of confusion” is not an injury, and bare allegations of anxiety are not concrete 

injuries where future harm is not impending where harm is not traceable to defendant).

A feeling of anxiety or fear of being sued is not a concrete harm. 

Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855 (6th Cir. 2020). Fear of future harm 

without imminency is not sufficient to establish concrete injury to confer Article III 

standing. Shepherd v. Debt Recovery Sols. of Ohio, Inc., No. 3:20-CV-520, 2021 WL 

1578073, at *2 (N.D. Ohio Apr. 22, 2021). 6 Thus, Plaintiffs cannot meet the second 

element of standing.

6 The risk-of-harm analysis applies only in suits seeking injunctive relief. TransUnion LLC v. 

Ramirez, ––– S. Ct. ––––, 2021 WL 2599472, at *12-*13(June 25, 2021). It cannot be used to 

establish standing in a suit for damages. Id. Here, the FDCPA does not permit injunctive relief, 

so the “risk-of-harm” analysis does not apply.

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(4) There is no injury to be redressed by a favorable judicial 

decision.

Plaintiff Darlene Portnoy said it best when she testified that the prayer for damages 

in her complaint was merely the result of her counsel’s desire.

Q. [The Complaint] alleges that plaintiffs have been damaged in amount 

exceeding $25,000.

A. Yes.

Q. How did you calculate that?

A. With my counsel's guidance.

Darlene Portnoy Depo., p. 86.

Again, if Williamsburg and NCS had only sought the amount awarded by this Court 

($763.71), as opposed to $937.52, it would have made no difference. Darlene Portnoy 

Depo., pp. 86-87. Alyssa Portnoy Depo., p. 51, line 22-p.52, line 4. Ultimately, this 

lawsuit will have no effect on Plaintiffs. There can be no redressable decision which could 

bear any outcome on their life’s circumstance – save for an attorneys’ fee award – which, 

ultimately, appears to be the true motive behind this case. It is not the purpose of the 

FDCPA to determine whether Plaintiffs owed $937.52 as sought by Williamsburg’s 

counterclaim or $763.71 as awarded by the court of appeals. 

Thus, there is no injury that could be redressed by an award of damages. Like the 

first two, Plaintiffs fail this third element.

CONCLUSION

Plaintiffs’ deposition testimony demonstrates that Plaintiffs lack Article III 

standing. Plaintiffs have no injury-in-fact, no “cognizable harm”, nothing traceable to 

NCS, and there is nothing to be redressed. This case should be dismissed.

Respectfully Submitted,

/s/Katrina M. DeMarte

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19

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

/s/Leslie C. Bender

Leslie C Bender (003227)

Clark Hill PLC

1001 Pennsylvania Avenue, NW

Suite 1300 South

Washington, DC 20004

LBender@ClarkHill.com

Counsel for Defendant

CERTIFICATE OF SERVICE

I certify that I electronically served a copy of the foregoing via the Clerk of Court’s 

CM/ECF system on September 9, 2021, which will provide notice to all counsel of 

record.

/s/Boyd W. Gentry

Boyd W. Gentry (0071057)

Case: 1:17-cv-00834-MRB Doc #: 120 Filed: 09/09/21 Page: 19 of 19 PAGEID #: 1106