GIONIS v. JAVITCH, 238 Fed.Appx. 24 (6th Cir. 2007)

Sherry Gionis entered into a credit card agreement with Direct Merchants Credit Card Bank ("Direct Merchants"). When she became delinquent in her payments, Direct Merchants hired the law firm of Javitch, Block Rathbone, LLP ("Javitch" or "law firm") to collect the delinquent funds. Javitch's attempts to collect the debt eventually led it to file suit against Gionis in an Ohio state court on November 24, 2003.

No mention of attorney fees appeared in the state court complaint; but Javitch did attach an "Affidavit of Indebtedness Debt Non-Military Contract" ("Affidavit") signed by Erica Vick (a Direct Merchant agent), paragraph 4 of which reads, in part:

The [credit card] agreement specifically provides that Direct Merchant's Credit Card Bank is entitled to recover, tothe extent permitted by applicablelaw, its reasonable attorney's fees and costs incurred in any action to enforce its rights under the agreement.

(JA 20) (emphasis added). Though Ohio law does not permit recovery of attorney fees in connection with any claim involving "personal, family, or household" debt,seeOhio Rev. Code Ann. §1301.21, (which the parties do not dispute), Gionis contends that this language in the Affidavit misleads "the least sophisticated consumer" to think otherwise, and thereby violates the Fair Debt Collection Practices Act ("FDCPA" or "Act"),15 U.S.C. §§ 1692-1692o. In any event, the state court suit against Gionis was settled between the parties.

Gionis then filed her own lawsuit (a class action) against Javitch in federal court. She contended that the law firm violated various provisions of the FDCPA and the Ohio Consumer Sales Practices Act ("OCS-PA"), Ohio Rev. Code Ann. §1345.01,et seq., by attaching the threatening and misleading Affidavit to the state court complaint.

However, the matter never reached a jury. On cross motions for summary judgment, the district court found Javitch (aPage 26"debt collector" under the Act,see Heintz v. Jenkins,514 U.S. 291,294,115 S.Ct. 1489,131 L.Ed.2d 395(1995)) was (1) not protected by witness immunity nor litigation immunity, and (2) liable under two provisions of the Act —15 U.S.C. §§ 1692e(5) and1692e(10) — for attaching the Affidavit to the state court complaint. The district court dismissed Gionis's remaining claims.

Unresolved issues of class certification, notice, and remedies remain pending in the district court. Therefore, Javitch filed this interlocutory appeal (purportedly under the "collateral order doctrine") challenging the district court's denial of its immunity claims. Javitch also petitioned for an interlocutory appeal on the liability issues,see28 U.S.C. § 1292(b), which another panel of this Court granted. The two appeals were later consolidated. Though neither party disputes our jurisdiction to hear these issues, we have "a duty to consider sua sponte whether appellate jurisdiction is properly invoked[,]"Mattingly v. FarmersState Bank,153 F.3d 336,336(6th Cir. 1998), and a recent case,Kelly v. Great Seneca Fin. Corp.,447 F.3d 944(6th Cir. 2006), makes clear that we have no independent jurisdiction over Javitch's immunity claims under the collateral order doctrine.See also Delawder v. Platinum Fin. Servs.Corp.,189 Fed. Appx. 369,371(6th Cir. 2006) (unpublished). But, fortunately for Javitch, the liability issues (which we have already agreed to hear under28 U.S.C. § 1292(b)) "cannot be resolved without addressing" Javitch's claims of immunity.See Chambers v. Ohio Dep't of HumanServs.,145 F.3d 793,797(6th Cir. 1998). That is to say, a favorable finding on the immunity issues may forestall liability under the Act.See Gilda Marx, Inc. v. Wildwood Exercise,Inc.,85 F.3d 675,679(D.C. Cir. 1996). Hence, we may properly invoke pendent appellate jurisdiction over these issues.See Chambers,145 F.3d at 797;Gilda Marx,Inc.,85 F.3d at 679.

Unfortunately for Javitch, neither litigation immunity nor witness immunity shields it from liability under the Act. With respect to litigation immunity, Javitch maintains that "[t]he Right to Petition under the First Amendment has been construed by Courts to affordqualifiedimmunity [to lawyers engaged in litigation]" (JA 38) (emphasis added), and, at the same time, "[l]awyers possess anabsoluteprivilege [under common law] concerning statements they make which are reasonably related to and made in the course of judicial proceedings, and are likewiseabsolutelyimmune from suit for claims which are based on such statements." (JA 54) (emphases added.) Accepting these propositions as true as applied to Javitch would, of course, undercutHeintz v.Jenkins— where the Supreme Court held that "the Act applies to attorneys who `regularly' engage in consumer-debt-collection activity,even when that activityconsists of litigation."514 U.S. at 299,115 S.Ct. 1489(emphasis added);see also15 U.S.C. § 1692a(6). Javitch does not dispute that it "`regularly' engage[s] in consumer-debt-collection activity."See Heintz,514 U.S. at 299,115 S.Ct. 1489. So any discussion of litigation immunity as applied to lawyers in general (those who do not regularly engage in consumer-debt-collection activity) is of no help to Javitch. The Supreme Court has already said that lawyers, in their function as debt collectors, are covered by the Act.

Javitch also contends that "statements contained in[,] and attached to, the state court complaint cannot serve as the basis for a claim here under the [common law] doctrine of absolute witness immunity."Page 27(JA 45.) This assumes that Javitch is a "witness." But it provided no testimony in the Affidavit; only Erica Vick (the Direct Merchant agent) did. Javitch merely attached the Affidavit to the state court complaint, and it points to no authority purporting to extend witness immunity to those who merely attach affidavits.

Even so, we have held that while "testimony presented in the form of an affidavit may be protected under absolute witness immunity,"Todd v. Weltman,434 F.3d 432,439(6th Cir. 2006), the immunity does not extend to "complaining witnesses" — those who help instigate the judicial process by swearing to tell the truth,id.at 444. Vick's Affidavit (as inTodd) was attached to a state court complaint, and thus "set the wheels of government in motion by instigating a legal action."Id.(quotingWyatt v.Cole,504 U.S. 158,164-65,112 S.Ct. 1827,118 L.Ed.2d 504(1992)) (internal quotation marks omitted). So Vick and, especially, Javitch are not entitled to absolute witness immunity. (But Vick, of course, cannot be sued under the Act, for she is not a "debt collector."See§ 1692a(6).) We turn now to the issue of whether summary judgment in Gionis's favor was proper. There are no genuine issues of material fact — no dispute as to what was said, who said it, or where it was said; and none about who attached it to the complaint. All that remains is to apply these "basic facts" to the applicable legal standard.See, e.g., Williams v. Mehra,186 F.3d 685,690(6th Cir. 1999) (en banc) (applying deliberate-indifference standard to facts);Weaver v.Shadoan,340 F.3d 398,406(6th Cir. 2003) (applying the probable-cause standard to facts);Scott v. ClayCounty,205 F.3d 867,877n. 16 (6th Cir. 2000) (same). So review under summary judgment was appropriate,seeFed.R.Civ.P.56(c);Anderson v. Liberty Lobby,514 U.S. 242,248,106 S.Ct. 2505,91 L.Ed.2d 202(1986), and we reviewde novo, see Moore v. Philip Morris Cos.,8 F.3d 335,339(6th Cir. 1993). Hence, the issue: Did Javitch violate § 1692e(5) or § 1692e(10) of the Act when it attached Erica Vick's Affidavit, which mentioned recovering attorney fees "to the extent permitted by applicable law," to the state court complaint?

The purpose of the Act is "to eliminate abusive debt collection practices by debt collectors[.]"15 U.S.C. § 1692(e).¹Section 1692e of the Act states "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." And, "without limiting the general application of the foregoing,"id., § 1692e(5) prohibits a "threat to take any action that cannot legally be taken or that is not intendedPage 28to be taken." Section 1692e(10) similarly prohibits, in relevant part, "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt[.]"

In a strict sense, neither § 1692e(5) nor § 1692e(10) has been violated here. The Affidavit only says Direct Merchant "is entitled to recover,to the extent permitted byapplicable law, its reasonable attorney's fees and costs incurred in any action to enforce its rights under the agreement." (JA 20) (emphasis added). Because the credit card agreement (though not the Affidavit) defines "applicable law" as "federal law, and laws of Arizona," and because the case was filed in Ohio, there was (technically speaking) no "threat to take any action that cannotlegallybe taken," § 1692e(5) (emphasis added), nor "use of anyfalserepresentation ordeceptivemeans to collect" Gionis's debt, § 1692e(10) (emphases added).

But the Act does not require such a sophisticated interpretation. Quite the contrary, in fact: Courts must view any alleged violation through the lens of the "least sophisticated consumer,"see Smith v. Transworld Sys.Inc.,953 F.2d 1025,1029(6th Cir. 1992) — the usual objective legal standard in consumer protection cases,seeClomon v. Jackson,988 F.2d 1314,1318(2d Cir. 1993). "The basic purpose of the least-sophisticated-consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd."Id."This effort is grounded, quite sensibly, in the assumption that consumers of below-average sophistication or intelligence are especially vulnerable to fraudulent schemes."Id.at 1319. The standard thus serves a dual purpose: "it (1) ensures the protection of all consumers, even the naive and the trusting, against deceptive debt collection practices, and (2) protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices."Id.at 1320.

Since Javitch sued in Ohio and the Affidavit leaves the "applicable law" undefined, the least sophisticated consumer (who is both "naive" and "below-average sophistication,"seeid.at 1319) would, without question, conclude the "applicable law" to be Ohio law. (It does not matter that a more sophisticated consumer would have discovered that the "applicable law" is actually "federal law, and laws of Arizona" under the credit card agreement. (JA 167.)) And the phrase "totheextent permitted" suggests (at least to the least sophisticated consumer) thatsomeextent is in fact permitted under Ohio law. "Why else," the consumer would wonder, "would Javitch attach this language to the complaint if Ohio law doesnotpermit attorney fees here?"

Yet the threatening language appeared in a court filing — where one seeks remedies, not make empty threats — and that arguably could be understood by the least sophisticated consumer as an actual "attempt" to collect attorney fees (not a "threat" per se) and thus not actionable under § 1692e(5).See§ 1692e(5) (prohibiting the "threatto take any action that cannot legally be taken" (emphasis added)). After all, "What other reason would the statement appear in a court proceeding if Javitch were notattemptingto collect attorney fees?," the consumer may again ask. A few lower courts, in fact, have refused to find a violation under § 1692e(5) where "[d]efendants did notthreatento take [an unlawful] action, but actually took it by filing the complaint."See, e.g., Delawder v. Platinum Fin. Servs. Corp.,443 F.Supp.2d 942,948(S.D.Ohio 2005) (emphasis in original) and cases cited therein.

But, in this context, "attempts" and "threats" are not necessarily mutually exclusive concepts, for when we keep thePage 29Act's overarching principles in mind — "to eliminate abusive debt collection practices by debt collectors," § 1692(e), and to prevent "false, deceptive, or misleading representation[,]" § 1692e — whether the Affidavit's metaphysical description is more an "attempt" or more a "threat" is essentially wordplay. No semantical recasting alters the intimidating effect on the least sophisticated consumer: that she "would be confused, and reasonably might feel pressured to immediately pay the debt, even if she disputed its validity, in order to avoid the possibility of having to also pay [the debt collector's] attorney fees at some later date."Gionis v.Javitch,405 F.Supp.2d 856,867(S.D.Ohio 2005).

This is so because even if the least sophisticated consumer would view the Affidavit's attorney fees language as an actual "attempt" to collect attorney fees, the attempt would nonetheless embody an ongoing threat that likely higher attorney fees would be assessed so long as the litigation continues — an action that cannot legally be taken in Ohio.See§ 1692e(5). Suppose, on the other hand, the least sophisticated consumer would view the Affidavit's attorney fees language as a simple threat (not an actual attempt) to collect attorney fees at some later date (should Javitch choose to). That threat is likewise one that cannot legally be taken in Ohio.

Javitch's failure to assert the attorney fees language in the complaint's "prayer of relief section does not cure the threat.See Veach v. Sheeks,316 F.3d 690,693(7th Cir. 2003) ("When there are two different accounts of what a debtor actually owes the creditor, that one version is the correct description does not save the other . . . under the unsophisticated debtor standard. . . ."). The least sophisticated consumer would not realize what a trained lawyer would — that a failure to assert a request for attorney fees in a complaint's "prayer of relief generally bars recovery of such relief.SeeOhio Civ. P.R. 8(A). Hence, either way we slice it, an unlawful "threat" to collect attorney fees was made in the Affidavit, violating § 1692e(5), which also amounted to a "false representation or deceptive means to collect or attempt to collect a[] debt[,]" violating § 1692e(10).

Javitch believes that attaching the Affidavit to the complaint would be no different than attaching the entire credit card agreement to the complaint, and that to hold it liable here would "effectively prohibit creditors from including fee-shifting terms in their cardholder agreements, and hamper their efforts to enforce [those] terms." (Appellant's Br. 22.) But this ignores two significant distinctions. Foremost, had Javitch attached the credit card agreement to the complaint, there would be less room to argue that the least sophisticated consumer would feel threatened in the same manner as here since the agreement explicitly defines "applicable law" as "federal law, and laws of Arizona[.]" (JA 167.) The Affidavit does not (conveniently) make this clarification, and such an omission leaves room for the least sophisticated consumer to conclude the "applicable law" to be Ohio law.

There is another distinction. The Affidavit chose to point out the fact that the "agreementspecificallyprovides" for recovery of attorney fees under the applicable law (and, again, does so without mentioning what that "applicable law" is). (JA 20) (emphasis added.) Certainly, this is more threatening than attaching the entire Agreement — where no terms or conditions are "specifically" isolated for the consumer's attention.See Barany-Snyder v. Weiner, No. 06-2111,2007 WL 210411, at *8 (N.D.Ohio Jan.24, 2007) (unpublished) (discussing this distinction). Hence, contrary to Javitch's thinking, our holding does not "prohibit creditors from including fee-shifting terms in their cardholderPage 30agreements, [or] hamper their efforts to enforce terms." (Appellant's Br. 22.)

One more hurdle remains in this matter: Javitch did not utter the statement in the Affidavit; Erica Vick did. Javitch therefore contends that imputing Erica Vick's words onto it would essentially amount to impermissible "vicarious liability." This is not so. Had Vick independently made the threat to Gionis (with no assistance from Javitch), the imposition of liability on Javitch for Vick's threatening words could be classified as "vicarious liability."SeeRestatement (Third) of Torts § 13 (2000). But Javitch did not passively stand by as Vick made the threat. It instead chose to communicate the threatening language to Gionis — in a lawsuit no less. And any consumer, especially the least sophisticated one, could view the very act of doing so as an adoption of Vick's threat — and thus a "threat" within itself.Cf. United States v.Cox,957 F.2d 264,266(6th Cir. 1992) ("A threat is . . . an appearance to the victim.") (internal quotation marks omitted). This is all the more true in Ohio given that Ohio's Civil Procedure Rule 10(c) provides that "[a] copy of any written instrument attached to a pleading is part of the pleading forallpurposes." Ohio Civ. P.R. 10(c) (emphasis added). Hence, to hold Javitch liable foritsownactions does not invoke vicarious liability. Accordingly, we conclude that Javitch made a "threat to take an[] action that cannot legally be taken," in violation of § 1692e(5), which also amounted to "false representation or deceptive means to collect or attempt to collect a[] debt[,]" in violation of § 1692e(10). For these reasons, weAFFIRMthe district court's grant of summary judgment.