RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0102p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

NORMA LEE,

Plaintiff-Appellee,

v.

JAVITCH, BLOCK & RATHBONE LLP,

Defendant-Appellant,

UNITED STATES OF AMERICA,

Intervenor.

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No. 08-4485

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 06-00585—Sandra S. Beckwith, District Judge.

Argued: October 15, 2009

Decided and Filed: April 13, 2010 

Before: MARTIN, ROGERS, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Michael D. Slodov, JAVITCH, BLOCK & RATHBONE LLP, Cleveland,

Ohio, for Appellant. Stephen R. Felson, LAW OFFICE, Cincinnati, Ohio, for Appellee.

Howard S. Scher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Intervenor. ON BRIEF: Michael D. Slodov, JAVITCH, BLOCK & RATHBONE

LLP, Cleveland, Ohio, for Appellant. Stephen R. Felson, LAW OFFICE, Cincinnati,

Ohio, Steven C. Shane, STEVEN C. SHANE, ATTORNEY AT LAW, Bellevue,

Kentucky, for Appellee. Howard S. Scher, Michael S. Raab, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. 

_________________

OPINION

_________________

ROGERS, Circuit Judge. Javitch, Block & Rathbone (JB&R) represented a

client who attempted to collect a credit card debt from Norma Lee. After obtaining a

1
No. 08-4485 Lee v. Javitch, Block & Rathbone LLP Page 2

default judgment in state court against Lee, JB&R attorney Victor Javitch filed for a

non-wage garnishment of Lee’s bank account. To do so, Javitch signed and filed a

required affidavit stating that he had a “reasonable basis to believe that [Lee’s Bank]

may have property, other than personal earnings, of [Lee] that is not exempt under the

laws of this state or the United States.” The state court initially garnished the money

from Lee’s bank accounts, but the court later returned the money after Lee proved that

the account contained only Social Security disability payments, which are exempt funds.

Lee then sued JB&R, contending that Javitch did not have the reasonable basis claimed

in the affidavit, and thus that his signing and filing of the affidavit violated the Fair Debt

Collection Practices Act and the Ohio Consumer Sales Practices Act. Because Lee did

not establish at trial that reasonableness demanded any additional investigation of Lee’s

bank accounts, she did not prove that Javitch’s affidavit was false. Lee is therefore not

entitled to relief.

JB&R represented Midland Funding, LLC (Midland) in its attempts to collect a

$2,795.75 credit card debt originally owed on an Aspire Visa. In February, 2006,

Midland provided information to JB&R indicating that the debt was owed by Norma Lee

and that Lee resided on Birchridge Drive in Cincinnati, Ohio. On February 16, JB&R

sent a validation notice as required by 15 U.S.C. § 1692g(a) to the Birchridge Drive

address, but JB&R did not receive any response. Before February 16, Lee had moved

from Birchridge Drive to Landis Lane, but JB&R did not have notice of her move. In

February and early March, JB&R Recovery Specialist Frank Stefanelli assessed whether

the debt was collectible. Following JB&R procedures, Stefanelli determined the

following: First, Lee was below retirement age, so it was less likely that she was

receiving Social Security retirement payments. Second, the zip code containing the

Birchridge Drive address had a median income of $43,588, so it was more likely that Lee

would be capable of repaying the debt. Third, Lee was not listed as a property owner

in the county containing the Birchridge Drive address. Fourth, Lee’s credit report listed

no medical debts, which might have been an indication that Lee was receiving disability

payments, and the report neither indicated that the Midland debt was disputed nor

contained any suggestions that Lee had been the victim of identity theft. Additionally,
No. 08-4485 Lee v. Javitch, Block & Rathbone LLP Page 3

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The statute has since been amended to omit the “reasonable basis” requirement. See Ohio Rev.

Code § 2716.11.

JB&R called Lee multiple times during this period, but she neither answered the phone

nor returned JB&R’s voice mails. Lee testified at trial that she had never received any

of these calls. Stefanelli concluded that this information indicated that the debt was

collectible, and on March 8, he recommended to his superiors that JB&R file a

collections suit against Lee. JB&R filed suit against Lee on April 11, 2006, in Ohio

municipal court and obtained a default judgment for $2,795.75. On July 12, JB&R filed

for a non-wage garnishment of Lee’s bank account in the same Ohio municipal court.

Attached to the filing was an affidavit, signed by JB&R attorney Victor Javitch, which

stated,

The affiant has a reasonable basis to believe that the person named in the

affidavit as the garnishee may have property, other than personal

earnings, of the judgment debtor that is not exempt under the laws of this

state or the United States. The property is described as money, property

or credits.

This affidavit was required by the then-current version of Ohio Revised Code § 2716.11

to file for a non-wage garnishment.1 Javitch had not conducted any investigation into

Lee’s account before signing the affidavit; instead, he had relied on the investigation

done by JB&R staff. Javitch testified at trial that on some days he might sign as many

as thirty or forty non-wage garnishment affidavits of this type. On July 17, the state

court issued an order of garnishment to Lee’s bank. The bank debited a total of $493.22

from Lee’s checking and savings accounts and remitted that amount to the court on July

18.

Lee was notified of the garnishment by letter from her bank. She did not

recognize the name of the creditor, Midland, and she was surprised because she had not

received any written notice of the debt at the Landis Lane address. At the time, Lee’s

only source of income was Social Security disability payments, which she received

because complications from breast cancer surgery had greatly reduced the functionality

of one of her arms. The garnishment of all of the money in her bank accounts resulted
No. 08-4485 Lee v. Javitch, Block & Rathbone LLP Page 4

in the bouncing of some of Lee’s checks. Lee testified at trial that she had been assessed

$195.26 in fees because of the bounced checks. Lee’s inability to access her bank

accounts also increased her stress levels and adversely affected her health by, among

other things, exacerbating her diabetes and leading to a bladder infection. Lee did not

have access to any funds until August 10, when the money from her bank accounts was

restored after the state court determined that all of the money in her accounts had been

received as Social Security disability payments.

Lee sued JB&R in federal court on September 5, 2006, alleging that JB&R had

violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e & 1692f,

and the Ohio Consumer Sales Practices Act (OCSPA), Ohio Rev. Code §§ 1345.02 &

1345.03, by filing an affidavit that was false. Specifically, Lee alleged that Javitch did

not have the reasonable basis alleged in his affidavit when he signed that document.

After denying cross-motions for summary judgment, the district court held a five-day

jury trial between January 15 and 24, 2008. A jury determined that, when Javitch signed

the affidavit, he did not have “a reasonable basis to believe that Plaintiff’s bank account

may have contained funds, other than personal earnings, that were not legally exempted

from garnishment”; that the signing of the affidavit therefore violated the FDCPA and

the OSCPA; and that Lee was entitled to $49,603 in damages. The district court denied

JB&R’s renewed motion for judgment as a matter of law. Post-trial motions reduced the

damage award to $35,595.26, but the district court also awarded Lee attorneys’ fees of

$125,315.30. JB&R now appeals, arguing primarily that the affidavit was true and thus

that Lee is not entitled to relief under either the FDCPA or the OSCPA.

In the particular circumstances of this case, the dispositive question is whether,

as a matter of Ohio law, Javitch had a reasonable basis to believe that Lee’s bank

account may have contained funds, other than personal earnings, that were not legally

exempted from garnishment. Indeed, under the district court’s instructions to the jury,
No. 08-4485 Lee v. Javitch, Block & Rathbone LLP Page 5

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This is because JB&R did not violate either the FDCPA or the OSCPA if the affidavit signed

by Javitch was true, and the contested part of the affidavit stated that Javitch had a “reasonable basis to

believe that [Lee’s Bank] may have property, other than personal earnings, of [Lee] that is not exempt

under the laws of this state or the United States.” JB&R cannot be held liable for filing an affidavit with

language required by Ohio law, so long as the affidavit was not false. Such a truthful affidavit is neither

a “false, deceptive, or misleading representation” in violation of 15 U.S.C. § 1692e nor an “unfair or

unconscionable means” in violation of 15 U.S.C. § 1692f. Filing a truthful affidavit is similarly neither

an “unfair or deceptive act or practice” in violation of Ohio Rev. Code § 1345.02 nor an “unconscionable

act” in violation of Ohio Rev. Code § 1345.03.

3

The testimony at trial indicated that there were only four ways to collect information relevant

to the contents of a debtor’s bank account. JB&R attempted to use three of these ways: talking to the

debtor, examining public records, and ordering a credit report. At trial, the discussion of the fourth

method—post-judgment discovery—focused on subpoenaing bank records, and this opinion mirrors that

focus. Trial testimony also stated that discovery could be served directly to the debtor, but that this form

of discovery was ineffective because debtors typically did not respond. JB&R’s expert testified that 1-2%

of all debtors responded to post-judgment discovery and that the response rate was even lower among those

debtors who, like Lee, had not returned phone calls. The expert’s firm had abandoned the service of

discovery directly upon debtors because of these low response rates.

4

At oral argument, Lee also suggested that the jury may have concluded that JB&R never called

Lee, and thus that their investigation was unreasonable on this ground as well. The trial testimony does

not support this inference. JB&R introduced business records showing that they had placed more than fifty

calls to a number Lee admitted was her phone number during the relevant period. JB&R records also

if Javitch signed the affidavit with a reasonable basis to believe that Lee’s account may

have contained nonexempt funds, judgment would be entirely for the defendants.2

We are loath to overturn a jury verdict regarding whether conduct is reasonable,

and will reverse such a verdict “only if in viewing the evidence in the light most

favorable to the non-moving party, . . . reasonable minds could come to but one

conclusion, in favor of the moving party.” Ford v. County of Grand Traverse, 535 F.3d

483, 494 (6th Cir. 2008) (quoting Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003)).

Even applying that standard, however, reasonable minds could only come to the

conclusion that Javitch had a reasonable basis to believe that Lee’s bank account may

have contained funds, other than personal earnings, that were not legally exempted from

garnishment. The standard imposed by the former Ohio Revised Code § 2716.11

requires only that the signing attorney conduct a reasonable investigation. Any

conclusion that Javitch’s investigation was unreasonable therefore requires a conclusion

that additional investigation was possible and, under the circumstances, compelled by

that reasonableness standard.3

 Lee argues on appeal, as her counsel argued before the

jury, only one additional investigative step that Javitch could have taken: subpoenaing

Lee’s bank records from her bank.4 At trial, there was conflicting testimony regarding
No. 08-4485 Lee v. Javitch, Block & Rathbone LLP Page 6

showed that the firm had left Lee a number of voice mail messages. Lee’s response was not to dispute that

the calls had taken place, but she instead testified that she had not received the calls and that she had not

checked her voice mailbox.

whether subpoenaing Lee’s bank records would have been legally possible. Lee called

no witnesses on this question. JB&R expert Randy Slovin testified that, while he was

not certain, he believed that it would be possible to subpoena bank records prior to a

non-wage garnishment. He testified that it was unclear under current Ohio case law

whether such subpoenas were legally allowable, and he noted that many law firms

believed that such subpoenas were not allowable. Slovin also stated that, in his twentyfour years of practicing law, he had never heard anyone even suggest using a subpoena

to obtain bank records in the context of filing for a non-wage garnishment. Javitch

testified at trial that he did not believe that JB&R had the legal ability to subpoena Lee’s

bank records. Javitch, who was at the time of trial in his forty-sixth year of practicing

law, also testified that he had never seen a subpoena issued to a bank prior to a non-wage

garnishment, nor had he heard anyone even suggest that such a subpoena was necessary

before a non-wage garnishment could be issued. JB&R attorney James Rathbone stated

that, in his twenty-eight years of legal experience, he had never heard anyone suggest

that subpoenaing bank records was necessary before filing for a non-wage garnishment

order.

Given the unanimous testimony that issuing a bank subpoena in the context of

filing for a non-wage garnishment was of uncertain legality and the absence of evidence

that it had ever been done previously, reasonableness did not demand that Javitch issue

such a subpoena before signing the affidavit. Ohio tort law defines negligence as the

failure to conduct oneself as would “a reasonably prudent man in like circumstances;”

and excludes from the definition of negligence “failing to take extraordinary measures

which hindsight demonstrates would have been helpful.” See Bender v. First Church of

the Nazarene, 571 N.E.2d 475, 477 (Ohio Ct. App. 1989) (citation omitted).

Reasonableness thus demands ordinary rather than extraordinary efforts, and establishing

a reasonable basis to believe a given fact does not demand unprecedented investigation

in a common situation. Similar standards prevail under Federal Rule of Civil
No. 08-4485 Lee v. Javitch, Block & Rathbone LLP Page 7

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Silverman concerned Federal Rule of Bankruptcy Procedure 9011. Silverman, 98 F.3d at 930.

Because of the similarity of Bankruptcy Procedure Rule 9011 and Civil Procedure Rule 11, Silverman

applied this circuit’s Rule 11 jurisprudence. Id.

Procedure 11, which contains a reasonable inquiry requirement analogous to the

“reasonable basis” requirement imposed by the former Ohio Revised Code § 2716.11.

This court has held that “[t]he determination of whether an attorney conducted

‘reasonable inquiry’ is judged by objective norms of what reasonable attorneys would

have done.” Silverman v. Mut. Trust Life Ins. Co. (In re Big Rapids Mall Assocs.), 98

F.3d 926, 930 (6th Cir. 1996).5 The evidence does not support a conclusion that

reasonable attorneys would have subpoenaed Lee’s bank records, as there was no

evidence that any attorney, reasonable or unreasonable, had ever issued a subpoena in

an analogous situation. Thus, because Lee did not establish that a reasonable attorney

would have conducted additional investigation, JB&R was entitled to judgment as a

matter of law.

This conclusion is consistent with the text of former Ohio Revised Code

§ 2716.11. That provision required only that the affiant have “a reasonable basis to

believe” that Lee’s bank “may have” nonexempt property of Lee’s. The “may have”

language indicates that this requirement was not meant to require that the signing

attorney have specific evidence about whether the property at issue was exempt with

respect to every exemption provided by Ohio or federal law. Rather, the requirement

must be that the attorney seeking the garnishment must investigate reasonably available

information and ensure that none of that information includes a clear suggestion that the

debtor’s bank account contains exempt funds. This was the general procedure followed

by JB&R, and the only question presented by Lee was whether subpoenaed bank records

fell within the category of reasonably available information. In light of the testimony

that such subpoenas were not clearly legal, and absent any testimony that anyone had

ever issued such a subpoena in a similar circumstance, reasonableness did not demand

that Javitch subpoena Lee’s records before signing the affidavit. The only reasonable

conclusion is that the affidavit was true.
No. 08-4485 Lee v. Javitch, Block & Rathbone LLP Page 8

For these reasons, we REVERSE the judgment of the district court and

REMAND this case for further proceedings consistent with this opinion.