In Woodard v. O’Brien, No. 2:18-cv-1523, 2020 U.S. Dist. LEXIS 228608 (S.D. Ohio Dec. 4, 2020), Judge Marbley addressed the standards for an ID theft victim to prove an FDCPA claim.
When determining if an individual is a “consumer” under the FDCPA, the typical inquiry is to ask whether the debt was for “personal, family, or household purposes.” Martin v. Allied Interstate, LLC, 192 F. Supp. 3d 1296, 1306 (S.D. Fla. 2016). A slightly different inquiry is used in cases of identity theft or mistaken identity. As the Sixth Circuit explained in Bridge, “a ‘consumer’ under the FDCPA includes those who are mistakenly alleged to have owed a debt.” Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 362 (6th Cir. 2012) (“A defendant may not retroactively change the status of the plaintiff it has pursued as an alleged debtor.”). To hold otherwise would create an obstacle for plaintiffs that would “contravene both the plain meaning and purpose of the FDCPA.” Id.; see also Byes v. Telecheck Recovery Servs., Inc., No. CIV.A. 94-3182, 1997 U.S. Dist. LEXIS 18892, 1997 WL 736692, at *3 (E.D. La. Nov. 24, 1997). But see Toroussian v. Asset Acceptance, LLC, No. CV 12-03519 DDP (AGRx), 2013 U.S. Dist. LEXIS 145007, 2013 WL 5524831 at *6 (C.D.Cal. Oct. 4, 2013) (granting summary judgment for defendant on FDCPA claim where victim of identity theft did not produce evidence concerning the nature of the charges made with the credit card opened in her name). Moveover, the FDCPA itself defines a “consumer” as “any natural person obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3) (emphasis added). Accordingly, this Court finds there is no set of facts supporting an interpretation that Plaintiff is not a consumer, even accepting the Defendants’ interpretations of events as true.
The District Court found that a check was a “transaction” under the FDCPA.
To constitute a debt under the FDCPA, the obligation must emerge from of a “transaction.” Defendant argues that there is no debt because Plaintiff’s obligation arises out of an identity theft rather than a proper “transaction.” (ECF No. 8 at 3). Plaintiff counters that courts “overwhelmingly agree that an alleged debt founded on passing a bad check is a ‘debt’ triggering protection under the FDCPA.” (ECF No. 10 at 7). As discussed in this Court’s review and denial of Defendant’s Motion to Dismiss, the majority of courts in the Sixth Circuit and elsewhere have determined that debts founded on dishonored or bad checks qualify as “debts” under the FDCPA. Gradisher v. Check Enf’t Unit, Inc., 133 F. Supp. 2d 988, 990 (W.D. Mich. 2001) (“The collection of the amount owed to another because of a bad check is debt collection under the FDCPA.”); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1325 (7th Cir. 1997) (“As long as the transaction creates an obligation to pay, a debt is created. We harbor no doubt that a check evidences the drawer’s obligation to pay for the purchases made with the check, and should the check be dishonored, the payment obligation remains.”); Duffy v. Landberg, 133 F.3d 1120, 1123 (8th Cir.1998) (finding that a dishonored check constitutes an FDCPA debt); Charles v. Lundgren & Assocs., P.C, 119 F.3d 739, 742 (9th Cir. 1997) (same); see also Brown v. Am. Mut. Holdings Inc., No. 1:13-CV-01072-PLM, 2017 U.S. Dist. LEXIS 97385, 2017 WL 2728409, at *5 (W.D. Mich. June 6, 2017), report and recommendation adopted, No. 1:13-CV-1072, 2017 U.S. Dist. LEXIS 97206, 2017 WL 2729098 (W.D. Mich. June 23, 2017) (noting that bringing a suit for fraud in state court is an attempt to collect a “debt” and discussing in depth and approvingly Third Circuit decision that bounced checks do constitute debts within the meaning of the FDCPA). Defendant adds no new caselaw in its response. (ECF No. 28 at 4 (“Rather than restate the law which has already been provided, Defendants reallege and incorporate all of the arguments they made in connection with the filing of the Defendants’ Motion to Dismiss . . . .”)). This Court finds no genuine issue of material fact exists regarding whether the consumer debt at issue emerged from a “transaction.” The transaction created an obligation to pay. As a result, the transaction created a debt.
The Court found that the collection law firm’s continued collection activity after withdrawal of authority from the client violated the FDCPA.
Defendants’ actions, particularly those occurring after November 14, 2017, violated these sections. Defendants violated § 1692e(10) when they misrepresented their identity as Columbus Checkcashers’ debt collector and legal counsel. For similar reasons, Defendants’ filing of the memorandum contra—when Defendants lacked any authority to represent Columbus Checkcashers—violated.§ 1692e(10) because it amounted to taking an action that cannot legally be taken. Put differently, a lawyer cannot file a suit on behalf of a party that is not their client. And, where, as here, a lawyer does so, it amounts to a fundamental misrepresentation under the FDCPA. What is more, Defendants’ misrepresentations were material, as “a statement [that] would tend to mislead or confuse the reasonable unsophisticated consumer.” Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323, 326-327 (6th Cir. 2012). Plaintiff represents that Defendants’ misrepresentation actually affected her, by delaying resolution of her motion, and causing her to be disturbed and worried. Yet another enumerated section is applicable here. Section 1692e(iii) prohibits a false representation or implication that that an individual is an attorney or that any communication is from an attorney. Here, because it is established that Defendants knowingly lacked any authority to file the February 2018 memorandum, the filing was not in any sense “from” an attorney because their putative client, Columbus Checkcashers, did not authorize the filing. . .This Court does not express any opinion whatsoever on the legal merits of the dispute between Mr. O’Brien, his law firm, and PLS, to the extent that these questions are not before the Court. It does, however, take strong issue with the use of Ms. Woodard as a pawn in these business disputes. Continuing to take legal action against Ms. Woodard in this manner arises to an unfair act in violation of the FDCPA. The least sophisticated consumer, if not all consumers, would regard filing an action in county court—using state procedural mechanisms—as an unfair or unconscionable means to collect or attempt to collect the debt. Defendants actions fall comfortably within the sort of prohibited conduct that Congress hoped to proscribe. This is particularly so because Defendants’ February 2018 state-court filing of the memorandum contra against Ms. Woodard appears valid on its face, thus representing to the least sophisticated consumer and the public at large that the creditor had a right to initiate that judgment. The filing of the memorandum contra was thus unfair since it amounted to a misrepresentation both of Defendants’ ability to act on Columbus Checkcashers’ behalf; the filing was also unfair as Defendants sought to recover monetarily not from Ms. Woodard, but from Columbus Checkcashers, their putative client.