Phyllis Clark v. Main Street Acquisition Corp.

Filing

OPINION filed : we AFFIRM the district court's grant of summary judgment, decision not for publication. John M. Rogers, Circuit Judge; David W. McKeague, Authoring Circuit Judge and Helene N. White, Circuit Judge.

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0069n.06
Case No. 13-3763
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
PHYLLIS CLARK,
Plaintiff-Appellant,
v.
MAIN STREET ACQUISITION CORP.,
Defendant-Appellee.

)
)
)
)
)
)
)
)
)

Jan 27, 2014
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT
FOR
THE
SOUTHERN DISTRICT OF
OHIO
OPINION

BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.
McKeague, Circuit Judge. This case involves a debt-collection action under the Fair
Debt Collection Practices Act.

Defendant-Appellee Main Street Acquisition Corporation

provided an employee’s affidavit to the alleged debtor, Plaintiff-Appellant Clark, affirming
based upon “personal knowledge” and “business records” that Clark owed $1,429.24 and costs.
Clark argues on appeal that (1) the demand for costs before they had been awarded by a court
and (2) the employee’s representation that he had “personal knowledge” of Clark’s alleged debt,
when he in fact relied on records originally created by a third party, violated the Fair Debt
Collection Practices Act. The district court granted summary judgment to Main Street and for
the following reasons we AFFIRM.

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 2

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
I.
In 2006, Plaintiff-Appellant Phyllis Clark (“Clark”) opened a credit-card account with
Household Bank (“Household”). When Clark later allegedly defaulted, Household sold the
account and the right to claim the balance owed to Main Street Acquisition Corp. (“Main
Street”). Main Street in turn hired Slovin & Associates Co., L.P.A. (“Slovin”) to recover the
debt. Slovin informed Clark by letter that she owed Main Street $1,439.26 for her outstanding
balance with Household. Clark responded with a letter requesting proof that she owed the debt,
and Slovin sent her a packet of information to verify the debt. This packet included a cover letter
from Slovin, again indicating the balance due; an affidavit from Jason Harrison, assistant vice
president of Main Street, in support of the claim (“Harrison affidavit”); a banking statement from
Household; a bill of sale indicating that Main Street had purchased the Household account; and
approximately a dozen other pages of account statements and transaction summaries.
The primary sources of contention in the present litigation are three statements from
Jason Harrison’s affidavit. First, Harrison affirmed that he had “personal knowledge of the facts
stated herein and they are true and correct.” Id. at Page ID # 320 (emphasis added). Second,
Harrison attested to the following:
[T]he facts recited herein are based upon the electronic business records of the
account in question, which are part of Plaintiff’s regular business records. These
records are kept by Plaintiff in the regular course of business, and it was the
regular course of business of Plaintiff for an employee or representative of
Plaintiff, with knowledge of the fact or event recorded, to make the record or to
transmit information thereof to be included in such record, and the record was
made at or near the time or reasonably soon thereafter.
Id. Third, after indicating that Main Street had acquired the account from Household, Harrison
indicated “[t]he balance due and owing to Plaintiff by Defendant on the Account is $1,429.24,

-2-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 3

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
plus interest at the legal rate per annum from June 30, 2010 and costs.” Id. at Page ID # 321
(emphasis added).
After settlement negotiations failed, Slovin filed a collection action in Crittenden County,
Kentucky on September 19, 2011, requesting as relief the outstanding balance and costs. Slovin
attached as an exhibit to the complaint the same packet provided to Clark, including the Harrison
affidavit. The record before us does not indicate the outcome of the Crittenden collection action.
Clark subsequently filed a class-action complaint against Main Street and Slovin in the United
States District Court for the Southern District of Ohio on May 25, 2012, and she later stipulated
to the dismissal of Slovin as a party. On August 16, 2012, Clark filed an amended complaint
against Main Street alleging, among other claims, that the corporation had violated the Fair Debt
Collection Practices Act (“the Act”) by the “intentional filing of false affidavits for the purpose
of obtaining judgments against debtors in collection law suits and coercing debtors.” R. 13,
Amended Comp., Page ID # 54.
Main Street moved for summary judgment and the district court granted the motion on
May 24, 2013. As to the claim that the term “costs” was deceptive and unfair, the district court
determined that even if the term referred to “court costs,” which was unclear, the word choice
was immaterial and would not have influenced a consumer’s decision to pay a debt. Id. at Page
ID # 727. As to the second claim that Harrison had falsely represented his personal knowledge
of the facts in the affidavit, the district court held that an “affiant’s assertion, by itself, that he has
personal knowledge based on business records is not a violation of the FDCPA,” and that even if
this representation was poorly worded, it was not a material violation. R. 33, Order Grant.
Summ. J., Page ID # 723, 725. Clark appeals the grant of summary judgment.

-3-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 4

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
II.
A. Standard of Review
Determinations of summary judgment are reviewed de novo. See Minadeo v. ICI Paints,
398 F.3d 751, 756 (6th Cir. 2005). This “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.” Fed. R. Civ. P. 56(a). Once the party seeking summary judgment
has demonstrated the basis for the motion, the adverse party “must set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). A genuine issue of material fact exists if, when the facts are viewed in the light most
favorable to the nonmoving party, “there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party.” Id. at 252. “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Id. (internal citations omitted).
Clark argues on appeal that (1) the demand for “costs” violated the Act and (2) Harrison’s
representation that he had “personal knowledge” of the facts violated the Act. We respond to
each argument in turn.
B. Use of the Term “Costs”
We first address whether the use of the term “costs” violates the Act. The Fair Debt
Collection Practices Act, codified at 15 U.S.C. § 1692, was passed 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. At its core,
the Act bars “conduct the natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.” 15 U.S.C. § 1692d.

-4-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 5

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
i.

15 U.S.C. § 1692e; 15 U.S.C. § 1692e(2)(A); 15 U.S.C. § 1692e(10)

In his affidavit to verify the alleged debt owed by Clark, Harrison attested that “[t]he
balance due and owing to Plaintiff by Defendant on the Account is $1,429.24, plus interest at the
legal rate per annum from June 30, 2010 and costs.” R. 24-6, Slovin Resp., Page ID # 321
(emphasis added). The Harrison affidavit was later attached to the Crittenden Complaint as an
exhibit, and in the prayer for relief, the Crittenden complaint also requested “costs,” as allowed
by Kentucky law.
Clark believes the reference to “costs,” which had not at the time been awarded by a
court or otherwise incurred, violates 15 U.S.C. § 1692e, 15 U.S.C. § 1692e(2)(A), and
15 U.S.C. § 1692e(10).




15 U.S.C. § 1692e provides “[a] debt collector may not use any false,
deceptive, or misleading representation or means in connection with the
collection of any debt.”
15 U.S.C. § 1692e(2)(A) prohibits a party from making a “false
representation” of the “amount” of any debt.
15 U.S.C. § 1692e(10) prohibits a party from using “false representation
or deceptive means to collect or attempt to collect any debt or to obtain
information concerning a consumer.”

The claim that Main Street violated each of these provisions offers variations of the same theme.
These statutory provisions prohibit a party from making a false representation in connection with
a debt, as to the amount of a debt, or to collect a debt.
To assess whether a debt collector’s actions are deceptive or unfair, “courts apply an
objective test based on the understanding of the least sophisticated consumer.” Harvey v. Great
Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006) (internal citation and quotation marks
omitted). The underlying goal is to protect the “gullible as well as the shrewd.” Kistner v. Law
Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008). “[A]lthough this
standard protects naive consumers, it also prevents liability for bizarre or idiosyncratic
-5-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 6

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
interpretations of collection notices by preserving a quotient of reasonableness and presuming a
basic level of understanding and willingness to read with care.” Id. at 438–39.
Kentucky Law permits costs to be awarded “as of course to the prevailing party unless
the court otherwise directs.” Ky. R. Civ. P. 54.04. Thus, the affidavit correctly described
Kentucky law when it referred to costs. Obviously, as the district court notes, the costs had not
yet been awarded by a court, but neither had interest or the principal amounts, and certainly no
argument has been presented that the request for those amounts as “due and owing” was unfair,
false, or deceptive. It is “reasonable for a consumer to assume that a case headed to court might
involve ‘costs”’ that had yet to be determined. R. 33, Order Grant. Summ. J., Page ID # 727.
See also Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir. 2009) (indicating that
a complaint which requested a specific debt amount and “costs of this action” did not falsely
describe the amount of debt owed or violate the Act.)1 Accordingly, the simple request for costs
in an unstated amount, where such costs are permitted by state law to the prevailing party, is not
a false representation and does not violate 15 U.S.C. § 1692e, 15 U.S.C. § 1692e(2)(A), or 15
U.S.C. § 1692e(10).

1

We are unpersuaded by Clark’s reliance upon two cases from the Seventh Circuit. In Shula v.
Lawent, 359 F.3d 489, 492–93 (7th Cir. 2004), the debt collector demanded $52.73 for court
costs after the debtor had already paid his debt in full and after the case had been dismissed for
abandonment, making it impossible for the court to have actually awarded costs. And in Veech
v. Sheeks, 316 F.3d 690, 692 (7th Cir. 2003), a collection agent sent a letter to an alleged
guarantor of a debtor incorrectly stating the amount of the debt by holding the guarantor liable
for legal penalties that had not yet been awarded. Both cases stand for the simple proposition
that a party cannot include unawarded penalties or specific costs in the “remaining principal
balance” of a claimed debt and thereby mislead a debtor. These issues are not at play here.
-6-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 7

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
ii.

15 U.S.C. § 1692f

We now turn to the 15 U.S.C. § 1692f and f(1) claims. 2 15 U.S.C. § 1692f
prohibits the “use [of] unfair or unconscionable means to collect or attempt to collect any
debt” and f(1) specifically proscribes “[t]he collection of any amount (including any
interest, fee, charge, or expense incidental to the principal obligation) unless such amount
is expressly authorized by the agreement creating the debt or permitted by law.”
15 U.S.C. § 1692f(1) (emphasis added).

We have not discovered, nor has Clark

identified, a factually similar case, let alone a controlling case, where a court has held that
a reference to “costs” in an affidavit or in a state complaint violates § 1692f or f(1). 3
Moreover, as indicated in the prior section, Kentucky law allows prevailing parties to
request “costs.” See also, R. 25, Mem. Opp. Mot. Summ. J., Page ID # 515, n.7 (“Ms.
Clark does not allege that including a request for court costs in the prayer of the
collection complaint is improper, of course.”). Therefore, Main Street’s request for costs
was in fact “permitted by law.” 15 U.S.C. § 1692f(1).
Alternatively, the district court determined as an “undisputed fact” that the
“Cardmember Agreement provided that the account user would pay ‘court costs . . . and
other collection costs related to the default to the extent permitted by law . . . .’” R. 33,
2

Main Street contends that Clark did not raise and therefore waived his § 1692f, f(1) claims.
While there might be some basis to the waiver argument, we need not address this concern as we
have determined that neither claim has merit.
3
All of the cases that Clark cites, with the exception of Barany-Snyder v. Weiner, 539 F.3d 327
(6th Cir. 2008), involved attempts by debt collectors to collect specific amounts of “costs” or
“attorney fees” rather than indeterminate costs like in the present case. See McCollough v.
Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 949 (9th Cir. 2011) (requesting $481.68 in
attorney fees); Allen ex rel. Martin v. La Salle Bank, N.A., 629 F.3d 364, 368–69 (3rd Cir. 2010)
(requesting $910 in attorney fees); Shula, 359 F.3d at 490–91 (demanding $53.74 in court
costs). And Barany-Snyder is inapplicable as the court determined that there had not been an
attempt to collect attorney’s fees, and, therefore, there was no f(1) violation. Barany-Snyder,
539 F.3d at 336.
-7-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 8

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
Order Grant. Summ. J., Page ID # 721 (citing R. 24-11, Pls’ Res., Page ID # 414), and
that “the Plaintiff has failed to present any evidence that she did not agree to pay such
costs.” Id. at 727. Clark argues that the Cardmember Agreement was “generic” and has
not been authenticated, but provides no contrary evidence. Thus, the record indicates that
costs were also “expressly authorized by the agreement creating the debt.” 15 U.S.C. §
1692f(1). Under these circumstances, the request for costs does not constitute an “unfair
or unconscionable” means to attempt to collect a debt and does not violate 15 U.S.C. §
1692f or f(1).
C. “Personal Knowledge”
Clark next argues that Harrison’s representation that he had “personal knowledge” of the
business records detailing the charges and payments constituted a material violation of the Act.
Specifically, Clark takes issue with Harrison’s assertion that he had “personal knowledge of the
facts stated herein,” R. 24-6, Slovin Resp., Page ID # 320, and his statement that:
[T]he facts recited herein are based upon the electronic business records of the
account in question, which are part of Plaintiff’s regular business records. These
records are kept by Plaintiff in the regular course of business, and it was the
regular course of business of Plaintiff for an employee or representative of
Plaintiff, with knowledge of the fact or event recorded, to make the record or to
transmit information thereof to be included in such record, and the record was
made at or near the time or reasonably soon thereafter.
Id. at 320. According to Clark, these representations are false because Harrison did not have
personal knowledge of the data—Main Street acquired the data from the original lender rather
than creating the data itself—and because Harrison did not make the record. We disagree.
Harrison’s claim of personal knowledge referred to Main Street’s business records, which
included the original lender’s records. Such a statement is permitted by the Act.

-8-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 9

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
As the district court correctly concluded, Harrison’s statements are not inaccurate or
misleading. Harrison accessed and reviewed Main Street’s records regarding the account at issue
and based his affidavit on these files. Thus, his statement that the “facts recited herein are based
upon the electronic business records” was truthful, as was his statement that he had “personal
knowledge.” R. 24-6, Slovin Resp., Page ID # 320. Harrison had “personal knowledge” of the
Main Street records.
Even if we assume that Harrison’s statement was misleading, the representation was still
not material. The least sophisticated consumer understands that lenders and debt collectors will
by necessity have to rely on business records that they may not have personally created,
especially in an age of automated, computerized transactions. This is why multiple courts,
including this circuit, have determined that an affiant’s statement of “personal knowledge”
regarding a record originally generated by a third party that the attesting party has subsequently
reviewed does not violate the Act. See, e.g., Myers v. Asset Acceptance, LLC, Case No. 10-4220,
472 F. App’x 395 (6th Cir. July 3, 2012) (holding that an affidavit attesting to have “personal
knowledge” of the facts of a debt did not violate the Act); Manlapaz v. Unifund CCR Partners,
Case No. 08 C 6524, 2009 WL 3015166, *5 (N.D. Ill. Sept. 15, 2009) (“the falsity of [the
affiant’s] statement that she had personal knowledge of facts that she gleaned from a review of
business records is a technicality which would not mislead the unsophisticated consumer.”);
Jenkins v. Centurion Capital Corp., Case No. 07 C 3838, 2009 WL 3414248, *3 (N.D. Ill. Oct.
20, 2009) (holding that affidavits based on knowledge of record-keeping practices did not violate
the Act).
As Harrison had “personal knowledge” of the records, consistent with this circuit’s
precedent, Harrison’s statements were neither misleading nor deceptive.

-9-

Case: 13-3763

Document: 006111946383

Filed: 01/27/2014

Page: 10

Case No. 13-3763
Clark v. Main Street Acquisition Corp.
III.

CONCLUSION

For the aforementioned reasons, we AFFIRM the district court’s grant of summary
judgment.

- 10 -