Kimble v. W. Ray Jamieson, P.C.

Filing 25

ORDER granting in part and denying in part 13 Motion for Judgment on the Pleadings; granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim. Signed by Judge Samuel H. Mays, Jr on 2/9/2018. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ALEXANDRIA KIMBLE,
Plaintiff,
v.
W. RAY JAMIESON, P.C.,
Defendant.

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No. 2:17-cv-02187-SHM-tmp

ORDER

Plaintiff brings this action against Defendant for
violations of the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. §§ 1692, et seq.

(ECF No. 1.)

Before the Court is Plaintiff Alexandria Kimble’s May 22,
2017 motion for partial judgment on the pleadings.
13.)

(ECF No.

Defendant Ray Jamieson, P.C. filed a response on June 23,

2017.

(ECF No. 16.)

Plaintiff replied on July 7, 2017.

(ECF

No. 19.)
Also before the Court is Defendant’s October 11, 2017
motion to dismiss, or, in the alternative, motion to compel
arbitration.
2017.

(ECF No. 23.)

(ECF No. 24.)

Plaintiff responded on November 8,

For the following reasons, Plaintiff’s motion for partial
judgment on the pleadings is GRANTED in part and DENIED in
part.

Defendant’s motion to dismiss, or, in the alternative,

motion to compel arbitration is GRANTED in part and DENIED in
part.
I.

Background
On February 2, 2017, Defendant sent Plaintiff a letter

addressing a debt Plaintiff owed J.R.’s Auto Sales, Inc.
¶ 22; Answer, ECF No. 11 ¶ 22 (admitted).)

(Id.

The letter stated,

in relevant part, that:
The debt will be assumed to be valid unless you
notify this office or the creditor in writing of any
dispute concerning this debt or any portion thereof
within thirty (30) days after you receive this
letter.
This office will provide you with the name and
address of the original creditor, if different from
the current creditor, if you request this in writing
within 30 days.
If you do dispute this debt, then this office will
provide verification of the debt to you.
This is a communication from a debt collector.
This is an attempt to collect a debt.
Any
information obtained will be used for that purpose.
(ECF No. 1-1.)
On February 14, 2017, Defendant filed suit in state court
against Plaintiff on behalf of J.R.’s Auto Sales, Inc.
No. 1 ¶ 29; ECF No. 11 ¶ 29; ECF No. 1-2.)

2

(ECF

On March 17, 2017, Plaintiff filed her complaint in this
court against Defendant for violation of 15 U.S.C.
§§ 1692g(a)(3)-(4) and 1692e.

(ECF No. 1 ¶¶ 35-47.)

filed its Answer on May 8, 2017.

Defendant

(ECF No. 11.)

On May 22, 2017, Plaintiff filed her motion for partial
judgment on the pleadings.

(ECF No. 13.)

Defendant filed its

response on June 23, 2017.

(ECF No. 16.)

Plaintiff replied on

July 7, 2017.

(ECF No. 19.)

On October 11, 2017, Defendant filed its motion to
dismiss, or, in the alternative, motion to compel arbitration.
(ECF No. 23.)

Plaintiff responded on November 8, 2017.

(ECF

No. 24.)
II.

Jurisdiction & Choice of Law
The Court has jurisdiction over Plaintiff’s federal-law

claims.

Under 28 U.S.C. §§ 1331, United States district courts

have original jurisdiction “of all civil actions arising under
the Constitution, laws, or treaties of the United States.”

The

complaint alleges that Defendant discriminated and retaliated
against Plaintiff in violation of the FDCPA.

(ECF No. 1 ¶ 2.)

That claim arises under the laws of the United States.

3

III. Standard of Review
A. Judgment on the Pleadings & Motion to Dismiss
“After the pleadings are closed -- but early enough not to
delay trial -- a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c).

The standard governing a motion to

dismiss under Rule 12(b)(6) applies to a motion for judgment on
the pleadings.

Warrior Sports, Inc. v. Nat'l Collegiate

Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010) (citing EEOC
v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 1973)).
“For purposes of a motion for judgment on the pleadings, all
well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly
entitled to judgment.”

JPMorgan Chase Bank, N.A. v. Winget,

510 F.3d 577, 581 (6th Cir. 2007).
To survive a plaintiff's Rule 12(c) motion, a defendant's
pleadings must contain sufficient facts “to ‘state a [defense]
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

Bare allegations without a factual context

do not create defenses that are plausible.

Ctr. for Bio–

Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 374 (6th Cir.
2011).

“The plausibility standard is not akin to a

4

‘probability requirement,’ but it asks for more than a sheer
possibility that [the defendant] has acted [ ]lawfully.”

Id.

(citing Twombly, 550 U.S. at 556).
“A Rule 12(c) motion ‘is granted when no material issue of
fact exists and the party making the motion is entitled to
judgment as a matter of law.’”

JPMorgan, 510 F.3d at 582.

(quoting Paskvan v. City of Cleveland Civil Serv. Comm'n, 946
F.2d 1233, 1235 (6th Cir. 1991)).
B. Fair Debt Collection Practices Act (“FDCPA”) Claims
1. Claim
To state a claim under the FDCPA, a plaintiff must plead
(1) that the money or property subject to collection qualifies
as a “debt” under § 1692a(5); (2) that the entity acting as a
collector qualifies as a “debt collector” under § 1692a(6); and
(3) that the debt collector violated one of the FDCPA's
provisions.

Stamper v. Wilson & Assocs., No. 3:09-cv-270, 2010

WL 1408585, at *3 (E.D. Tenn. Mar. 31, 2010); accord Pearson v.
Specialized Loan Servicing, LLC, No. 1:16-CV-318, 2017 WL
3158791, at *4 (E.D. Tenn. July 24, 2017).
Defendant does not dispute that all three elements are
satisfied.
minimis.

Defendant contends only that its violations were de
(ECF No. 16 at 76; Def’s Mot. to Dismiss, ECF No. 23

5

at 137.)

Defendant asserts four grounds for dismissal: (1)

lack of standing, (2) failure to file a compulsory counterclaim
in state court, (3) required arbitration, and (4) a de minimis
violation.

(ECF No. 16 at 81-88; ECF No. 23 at 142-48.)
2. Section 1692g(a)

The purpose of the FDCPA is “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(e).

The FDCPA fulfills

this purpose in part by requiring a debt collector to provide
the consumer with written notice of the consumer's right to
dispute (“dispute right”) and seek verification of an alleged
debt and to obtain the name and address of the original
creditor within 30 days after receiving notice of the debt from
a debt collector (“verification right”).
and (5), 1692g(b).

Id. §§ 1692g(a)(4)

If a consumer exercises those rights, the

debt collector must “cease collection of the debt” until the
debt collector provides verification of the debt or the name
and address of the original creditor.

Id. § 1692g(b).

Debt

collectors must inform consumers of those rights in a written
notification “[w]ithin five days after the initial

6

communication with a consumer in connection with the collection
of any debt.”

Id. § 1692g(a).

Section 1692g(a) expressly outlines what a written
notification must contain:
(3) a statement that unless the consumer, within
thirty days after receipt of the notice, disputes the
validity of the debt, or any portion thereof, the
debt will be assumed to be valid by the debt
collector;
(4) a statement that if the consumer notifies the
debt collector in writing within the thirty-day
period that the debt, or any portion thereof, is
disputed, the debt collector will obtain verification
of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment
will be mailed to the consumer by the debt collector;
and
(5) a statement that, upon the consumer's written
request within the thirty-day period, the debt
collector will provide the consumer with the name and
address of the original creditor, if different from
the current creditor.
Id. § 1692g(a)(3)-(a)(5).
Both subsections 1692g(a)(4) and (5) impose a writing
requirement on the debtor.

The Sixth Circuit has not addressed

whether § 1692g(a)(3) also imposes a writing requirement, and
circuit courts of appeals are split.

See Mellinger v.

Midwestern Audit Serv., Inc., No. 11-CV-11326, 2012 WL 405008,
at *4 (E.D. Mich. Feb. 8, 2012) (discussing circuit split on
whether subsection (a)(3) imposes a writing requirement).

The

parties agree that § 1692g(a)(3) does not require a writing.
7

(ECF No. 16 at 78 (“The debtor’s notice of the right to dispute
provision in 15 U.S.C. § 1692g(a)(3) is the only subsection of
§ 1692g(a) that does not require a writing.” (emphasis in
original)); Def’s Mot. to Dismiss, ECF No. 23 at 139 (same);
ECF No. 13 at 56.)
IV.

Analysis
Defendant states four grounds for dismissal: (1) Plaintiff

lacks standing given Spokeo, Inc. v. Robins (“Spokeo I”), 136
S. Ct. 1540, 1547 (2016), as revised (May 24, 2016); (2)
Plaintiff must first arbitrate her claims under the contract
between Plaintiff and J.R.’s Auto Sales, Inc.; (3) Plaintiff is
precluded from bringing suit under Federal Rule of Civil
Procedure 13 because she did not bring a compulsory
counterclaim in state court; and (4) Defendant’s violations
were de minimis.

(ECF No. 16 at 81-88; ECF No. 23 at 142-48.)

A. Standing
Defendant argues that Plaintiff lacks standing to bring
claims under §§ 1692g(a)(3)-(4).
at 142.)

(ECF No. 16 at 83; ECF No. 23

Defendant contends that Plaintiff has failed to

establish the “concrete injury” required by Spokeo I.
16 at 83; ECF No. 223 at 144-46.)

8

(ECF No.

Article III of the Constitution limits the jurisdiction of
federal courts to “cases and controversies.”
3, § 2.

U.S. Const. art.

“[T]he core component of standing is an essential and

unchanging part of the case-or-controversy requirement of
Article III.”
560 (1992).
standing.
(2009).

Lujan v. Defenders of Wildlife, 504 U.S. 555,
The plaintiff bears the burden of establishing

Summers v. Earth Island Inst., 555 U.S. 488, 493
To establish standing a “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 I, 136

S. Ct. at 1547 (citing Lujan, 504 U.S. at 560).

An injury in

fact must be both “concrete” and “particularized.”

Id.

“A

‘concrete’ injury must be ‘de facto’; that is, it must actually
exist.”

Id. (citing Black's Law Dictionary 479 (9th ed.

2009)).

“For an injury to be ‘particularized,’ it ‘must affect

the plaintiff in a personal and individual way.’”

Id. (quoting

Lujan, 504 U.S. at 560).
In Spokeo I, the Supreme Court opined that “[a] violation
of one of the [Fair Credit Reporting Act of 1970 (FCRA)]’s
procedural requirements may result in no harm” and is not a
justiciable “concrete and particular” injury.
1550.

Id.

at 1548,

In some circumstances, however, procedural violations

9

that lead to “intangible injuries can nevertheless be
concrete.”

Id. at 1549 (citing injuries to free speech and

free exercise rights).

“[T]he violation of a procedural right

granted by statute can be sufficient in some circumstances to
constitute injury in fact,” and thus a plaintiff “need not
allege any additional harm beyond the one Congress has
identified.”

Id. 1549-50 (emphasis in original) (citing cases

about failure by organizations to publicly disclose certain
information required by statute).

Since Spokeo I, courts have

attempted to identify which statutory procedural violations
require a separate showing of concrete injury and which, by
themselves, manifest a concrete injury.
The Sixth Circuit recently applied Spokeo I to an FDCPA
procedural violation in Lyshe v. Levy, 854 F.3d 855 (6th Cir.
2017).

The court held that a consumer does not suffer an

automatic concrete injury every time the consumer receives
false information during the debt collection process.

Lyshe,

854 F.3d at 860-61.
Lyshe sought damages under the FDCPA because the defendant
debt collector had misrepresented to him that Ohio court rules
require responses to requests for admission be sworn and
notarized.

See id. at 858.

Lyshe did not “allege that he was

misled, that he felt compelled to make a sworn verification or

10

engage a notary, or that he even responded to the challenged
requests.”

Id. at 857.

Lyshe argued, based on the Eleventh

Circuit's decision in Church v. Accretive Health, 654 F. App’x.
990 (11th Cir. 2016), that he had suffered a concrete injury
when the debt collector infringed on his “right not to receive
false information in connection with the collection of a debt.”
Id. at 860.
The Sixth Circuit “decline[d] to follow” Church and held
that a consumer’s receipt of false information about a state
procedural rule, standing alone, does not automatically result
in a concrete injury under Article III.

Id. at 859-62.

The

Sixth Circuit emphasized the Second Circuit’s reasoning in
Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016).
See id. at 861.
The Second Circuit in Strubel stated that “Spokeo [I], and
the cases cited therein . . . instruct that an alleged
procedural violation can by itself manifest concrete injury [1]
where Congress conferred the procedural right to protect a
plaintiff’s concrete interests and [2] where the procedural
violation presents a ‘risk of real harm’ to that concrete
interest.”

Strubel, 842 F.3d at 190 (emphasis added) (quoting

Spokeo I, 136 S.Ct. at 1549).

See also Robins v. Spokeo, Inc.

(“Spokeo II”), 867 F.3d 1108, 1116 (9th Cir. 2017) (citing

11

Strubel) (It is possible that “the statute would have been
violated, but that violation alone would not materially affect
the consumer's protected interests. . . .”).

If the procedural

violation by itself does not present a “material risk of harm”
to the concrete interest Congress sought to protect, the
plaintiff must allege additional, concrete harm arising from
that procedural violation.

See Strubel, 842 F.3d at 190; see

also Spokeo I, 136 S.Ct. at 1544.
Here, Congress established the procedure in § 1692g to
protect consumers’ concrete interests from abusive debt
collection practices.

Mere violation of any particular

procedure, however, does not necessarily present a material
risk of harm to that underlying interest.

Plaintiff’s claims

illustrate this point.
Plaintiff claims Defendant failed to properly notify her
that her dispute right might be oral or written under
§ 1692g(a)(3), and that her verification right must be made in
writing under § 1692g(a)(4).
The portion of the notification to Plaintiff that is
alleged to violate § 1692g(a)(3) reads:
The debt will be assumed to be valid unless you
notify this office or the creditor in writing of any
dispute concerning this debt or any portion thereof

12

within thirty
letter.

(30)

days

after

you

receive

this

(ECF No. 1-1 (emphasis added).)
Although § 1692g(a)(3) does not have a writing
requirement, see supra, failure to properly notify a consumer
under § 1692g(a)(3) that the dispute may be written or oral
does not present a material risk of harm to the consumer
herself.

That is especially true where the debt collector’s

policy is to honor both oral and written disputes.

The

procedural violation does not manifest a concrete injury
because the consumer may not be harmed no matter how she
disputes her debt.

To establish standing for that procedural

violation, Plaintiff must establish a concrete injury arising
from Defendant’s failure to properly notify her that her
dispute right might be oral or written under § 1692g(a)(3).
Determining whether there is a concrete injury requires a
factual inquiry.

In Spokeo I the inquiry focused on whether

the procedural violation -- misstating facts about the
plaintiff’s life -- created an actual harm to, or presented a
material risk of harm to, plaintiff’s concrete interest in
preventing the transmission of inaccurate information about him
in consumer reports.
it did.

On remand, the Ninth Circuit found that

Spokeo II, 867 F.3d at 1117 (“[W]e agree with Robins

that information of this sort (age, marital status, educational
13

background, and employment history) is the type that may be
important to employers or others making use of a consumer
report.”)
Plaintiff has not alleged facts to establish that she
suffered a concrete injury arising from Defendant’s
§ 1692g(a)(3) violation.

Plaintiff’s request for judgment on

the pleadings on that ground is DENIED.

Because Plaintiff’s

complaint fails to establish a concrete injury arising from
Defendant’s § 1692g(a)(3) violation, Plaintiff lacks standing
to bring her claim.

Defendant’s motion to dismiss that claim

based on lack of standing is GRANTED.

That claim is DISMISSED.

Plaintiff has standing to bring her claim under
§ 1692g(a)(4).

Failure to properly notify a consumer under

§ 1692g(a)(4) that the consumer’s right to verification will be
honored only if made in writing presents a material risk of
harm to the consumer.

Congress created the procedural

requirements of the FDCPA to prevent debt collectors from
engaging in collection practices that might confuse or deceive
debtors.

See Wallace v. Washington Mut. Bank, F.A., 683 F.3d

323, 326–27 (6th Cir. 2012); S. REP. 95-382, 1, reprinted in
1977 U.S.C.C.A.N. 1695, 1696 (The FDCPA’s “purpose is to
protect consumers from a host of unfair, harassing, and
deceptive debt collection practices without imposing

14

unnecessary restrictions on ethical debt collectors.”)

There

is a material risk of harm that a consumer might forego her
verification right by disputing the debt orally in reliance on
the debt collector’s procedural violation.

Failure to notify

the consumer of the writing requirement under § 1692g(a)(4) by
itself constitutes a concrete injury.
Here, Defendant’s letter stated that, “[i]f you do dispute
the debt, then this office will provide verification of the
debt to you.”

(ECF No. 16 at 97.)

That statement lacks the

specificity of the statement that “[t]his office will provide
you with the name and address of the original creditor, if
different from the current creditor, if you request this in
writing within 30 days.”

(Id. (emphasis added)).

On its face,

the Defendant’s letter to Plaintiff does not make it clear that
a writing is required to verify the debt.

Defendant’s letter

to Plaintiff violates the procedure set out in § 1692g(a)(4).
See 15 U.S.C. § 1692g(a)(4)(“a statement that if the consumer
notifies the debt collector in writing within the thirty-day
period that the debt, or any portion thereof, is disputed, the
debt collector will obtain verification of the debt or a copy
of a judgment against the consumer and a copy of such
verification or judgment will be mailed to the consumer by the
debt collector”).

That violation itself creates a “material

15

risk of harm” to the concrete interest Congress sought to
protect.

Plaintiff need not allege additional, concrete harm

arising from that procedural violation.
to bring her § 1692g(a)(4) claim.

Plaintiff has standing

Plaintiff’s motion for

partial judgment on the pleadings on that claim is GRANTED.
Defendant’s motion to dismiss that claim is DENIED.
B. Arbitration
Defendant argues that Plaintiff is precluded from bringing
suit against it because the contract between Plaintiff and
J.R.’s Auto Sales, Inc. requires arbitration.
86; ECF No. 23 at 148-50.)

(ECF No. 16 at

Defendant moves to compel

arbitration based on that contract.

(ECF No. 23.)

The Federal Arbitration Act (“FAA”) provides that “on
application of one of the parties” a court may stay the trial
of an action until an arbitration has been had in accordance
with the terms of the parties’ arbitration agreement.
§ 3.

9 U.S.C.

Courts must “‘rigorously enforce’ arbitration agreements

according to their terms.”

Am. Express Co. v. Italian Colors

Rest., 133 S.Ct. 2304, 2309 (2013) (citation omitted).

Before

a court can refer a matter to arbitration, a party must file a
motion requesting a matter be referred to arbitration.
U.S.C. § 6.

9

Even if the Court were to construe Defendant’s

16

response as a motion to compel arbitration, Defendant’s request
would be denied.
J.R.’s Auto Sales, Inc. and Plaintiff entered into a
retail installment contract and security agreement (the
“Contract”) on February 20, 2016.

(Kimble v. J.R.’s Auto

Sales, Inc., 2:17-cv-2100-SHL-egb (W.D. Tenn.), ECF No. 8-1.)
The Contract included an arbitration provision.

(Id. at 26.)

The provision states that:
any claim or dispute in contract, tort, statute or
otherwise between [Plaintiff] and [J.R.’s Auto Sales,
Inc.] or [J.R.’s Auto Sales, Inc.’s] employees,
agents, successors or assigns that arises out of or
relates to [Plaintiff’s] credit application, this
Contract
or
any
resulting
transaction
or
relationship, including those with third parties who
do not sign this Contract, is to be decided by a
neutral binding arbitration.
(Id.)

Defendant was not a party to the Contract.

Defendant

does not argue and the pleadings do not demonstrate that
Defendant is J.R.’s Auto Sales, Inc.’s employee, agent,
successor, or assign for the purposes described in the
arbitration provision.

(See generally, ECF Nos. 16, 23, 23-1.)

The plain language of the arbitration provision does not apply
to Defendant or to Plaintiff’s claims under the FDCPA.
Defendant’s argument that Plaintiff is precluded from bringing
suit against it absent arbitration fails.
to compel arbitration is DENIED.

17

Defendant’s motion

C. Compulsory Counterclaim
Defendant argues that Plaintiff’s claims are barred under
Federal Rule of Civil Procedure 13 (“Rule 13”) because
Plaintiff failed to file them as a compulsory counterclaim in
state court.

(ECF No. 16 at 87-88; ECF No. 23 at 147.)

Rule 13 provides:
A pleading must state as a counterclaim any claim
that -- at the time of its service -- the pleader has
against an opposing party if the claim: (A) arises
out of the transaction or occurrence that is the
subject matter of the opposing party's claim; and (B)
does not require adding another party over whom the
court cannot acquire jurisdiction.
Fed. R. Civ. P. 13.
The state-court action to which Defendant refers is
“J.R.’s Auto Sales, Inc. v. Alexandria Kimble, Docket No
1846304 in the Court of General Sessions of Shelby County,
Tennessee.”

(ECF No. 16 at 87; ECF No. 23 at 147.)

was not a party to that action.

(ECF No. 1-2.)

Defendant

Plaintiff did

not bring her FDCPA claims against Defendant in state court.
She was not required to add Defendant as a party to the state
court proceeding for that purpose.

Rule 13 applies to

counterclaims in federal court, not state court.

Defendant’s

argument that Plaintiff’s claims are barred by Rule 13 fails.
Defendant’s motion to dismiss on that ground is DENIED.

18

D. De Minimis Violation
Defendant argues that the “alleged cited errors in
Defendant's February 2, 2017 notice of debt letter are so minor
or technical, that [Plaintiff] certainly cannot claim she was
deprived of any right to contest the debt.”
ECF No. 23 at 137.)

(ECF No. 16 at 77;

Defendant also argues that any violation

was de minimis because:
Plaintiff’s conduct in this case certainly evidences
that she understood the significance of the notice of
debt letter, understood her rights, responded,
appeared in court and was not confused as to what she
could do and in fact, did do in this case, i.e.,
appear in the General Sessions court, dispute the
debt, and ask for a trial setting.
Based on
Plaintiff's general appearance in State Court, her
statement disputing/contesting the debt, the matter
was continued to March 15, 2017, and set for trial.
Plaintiff certainly cannot claim to be a most
gullible consumer or a least sophisticated consumer.
She had already filed a Federal court case against
the creditor and now she and her counsel seek to
procure a financial reward based upon a statutorily
confused
technicality
without
any
substantive
"cognizable injury" sustained by the plaintiff[.]
(ECF No. 16 at 77; ECF No. 23 at 137-38.)
Those arguments fail.

First, the FDCPA must be enforced

as written, even if the violation is innocent or de minimis.
Brown v. Hosto & Buchan, PLLC, 748 F. Supp. 2d 847, 851 (W.D.
Tenn. 2010); Deere v. Javitch, Block & Rathbone LLP, 413 F.
Supp. 2d 886 (S.D. Ohio 2006).

The FDCPA does provide debt

collectors the opportunity to raise a bona fide error defense.
19

Under the FDCPA, “[a] debt collector may not be held liable in
any action brought under this subchapter if the debt collector
shows by a preponderance of evidence that the violation was not
intentional and resulted from a bona fide error notwithstanding
the maintenance of procedures reasonably adapted to avoid any
such error.”

15 U.S.C. § 1692k(c).

A defendant debt collector

who wishes to raise a bona fide error defense must establish
three elements: “(1) the violation was unintentional; (2) the
violation was a result of a bona fide error; and (3) the debt
collector maintained procedures reasonably adapted to avoid any
such error.”

Jerman v. Carlisle, McNellie, Rini, Kramer &

Ulrich LPA, 538 F.3d 469, 476–77 (6th Cir. 2008), rev'd on
other grounds, 559 U.S. 573, (2010).

Although Defendant

represents the violation was unintentional, it has not alleged
the second and third elements necessary to raise a bona fide
error defense.

Its de minimis violation argument fails.

“In determining whether any particular conduct violates
the FDCPA, the courts have used an objective test based on the
least sophisticated consumer.”

Harvey v. Great Seneca Fin.

Corp., 453 F.3d 324, 329 (6th Cir.2006).

That standard “is

lower than simply examining whether particular language would
deceive or mislead a reasonable debtor” because the “basic
purpose . . . is to ensure that the FDCPA protects all

20

consumers, the gullible as well as the shrewd.”

Fed. Home Loan

Mortg. Corp. v. Lamar, 503 F.3d 504, 509 (6th Cir. 2007).

The

standard also “prevents liability for bizarre or idiosyncratic
interpretations of collection notices by preserving a quotient
of reasonableness and presuming a basic level of understanding
and willingness to read with care.”
citation omitted).

Id. at 510 (internal

“[I]t is well-settled that courts may

properly make the objective determination whether language
effectively conveys a notice of rights to the least
sophisticated debtor.”
quotations omitted).

Lamar, 503 F.3d at 508 n.2 (internal
The Court must determine as a matter of

law whether the notice sent to Plaintiff conveyed the
appropriate disclosures to the least sophisticated consumer,
not whether Plaintiff subjectively understood her rights.
Applying that standard, the notice was inadequate.
violation created a material risk of harm.

Defendant’s

See supra Part

IV.A.
V.

Conclusion
For the foregoing reasons, Plaintiff’s motion for partial

judgment on the pleadings is GRANTED in part and DENIED in
part.

Plaintiff’s motion is GRANTED on Plaintiff’s

§ 1692g(a)(4) claim.

Plaintiff’s motion is DENIED on

Plaintiff’s § 1692g(a)(3) claim.
lack of standing.

That claim is DISMISSED for

Defendant’s motion to dismiss, or, in the
21

alternative, motion to compel arbitration is GRANTED in part
and DENIED in part.

Defendant’s motion to dismiss for

Plaintiff’s failure to file a compulsory counterclaim in state
court is DENIED.

Defendant’s motion to dismiss Plaintiff’s

§ 1692g(a)(4) claim for lack of standing is DENIED.
Defendant’s motion to dismiss Plaintiff’s § 1692g(a)(3) claim
for lack of standing is GRANTED.

Defendant’s motion to compel

arbitration is DENIED.
So ordered this 9th day of February, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE

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