William C. Lewis v. Acb Business Services, Inc., (96-3093/3498), American Express Travel Related Services Company, Inc. James P. Connors, (96-3498)

Citations: 135 F.3d 389; 39 Fed. R. Serv. 3d 1376; 1998 U.S. App. LEXIS 1325; 1998 WL 31752Docket: 96-3093, 96-3498

Court: Court of Appeals for the Sixth Circuit; January 30, 1998; Federal Appellate Court

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William C. Lewis filed two related lawsuits against ACB Business Services, Inc. and American Express Travel Related Services Company, Inc. stemming from his credit relationship with Amex. Lewis had accrued significant debt on his Amex Gold Card and, after ceasing payments, Amex engaged ACB to collect the outstanding amount. The first lawsuit, initiated in Dayton, Ohio, alleged violations of the Fair Debt Collection Practices Act (FDCPA) and the Ohio Consumer Sales Practices Act (OCSPA) due to ACB's collection efforts, which ultimately resulted in a jury trial that favored ACB following a judgment as a matter of law.

Afterward, Lewis filed a second suit in Cincinnati, claiming that ACB, Amex, and James P. Connors retaliated against him by filing a state court action to recover the debt after he initiated the Dayton case. This suit also alleged violations of the FDCPA, OCSPA, and the Equal Credit Opportunity Act (ECOA). The district court dismissed both lawsuits against the defendants, leading Lewis to appeal.

Key actions in the appeal included ACB's communications with Lewis, particularly a letter sent on June 3, 1993, proposing payment arrangements and a subsequent phone call on July 8, 1994, which Lewis argued violated his request to cease communication. The court ultimately affirmed the lower court's judgments against Lewis, emphasizing his acknowledgment of the debt and the nature of the collection communications.

Lewis was instructed to contact 'M. Hall,' a non-existent alias at ACB, which was used internally to indicate account status. ACB had assigned a specific representative to Lewis's account but made no further contact after sending the letter. Lewis's account was returned to Amex, and only after he initiated a lawsuit in the Dayton case was the account returned to ACB.

Upon returning the account, Amex incorrectly coded it as a new referral, prompting ACB to generate an initial collection letter, which was never sent. However, a brief phone call to Lewis occurred on July 8, 1994, before ACB caught the error. Janet Schohan, ACB's FDCPA compliance officer, stopped further collection activities upon discovering the mistake.

In discovery for the Dayton case, Lewis sought to compel ACB to produce its contract with Amex, claiming it influenced collection actions; however, the court denied this request, deeming it irrelevant to alleged FDCPA or OCSPA violations. Meanwhile, Amex filed a suit against Lewis in state court for unpaid Gold Card dues, represented by Connors, who also represented ACB in the Dayton case.

Lewis subsequently filed a related case in Cincinnati, which was consolidated with the Dayton case at his request. A motion to transfer venue to Cincinnati was denied due to local rules and perceived forum shopping. Lewis later sought to add new claims in the Dayton case, which was granted, leading to the trial date being vacated.

A jury trial occurred in the Dayton case on January 9-10, 1996. The court granted in part and denied in part ACB's motion for judgment as a matter of law after Lewis's evidence presentation, ultimately denying Lewis’s motion and granting ACB’s cross-motion, thereby dismissing all remaining claims against ACB.

Mr. Lewis alleged that Amex, ACB, and Connors retaliated against him through a state court action in response to his lawsuit against ACB, claiming violations of the FDCPA, OCSPA, and ECOA. Amex and ACB filed motions to dismiss, while Connors moved to strike the complaint, which was treated as a motion for summary judgment due to the introduction of external matters. Magistrate Judge Merz recommended granting Connors's motion, determining he was not a debt collector under the law, and suggested dismissing Lewis's remaining claims for failure to state a claim. Additionally, Lewis's motions to strike and change venue were denied. District Judge Spiegel adopted these recommendations.

On appeal, Lewis raised multiple claims of error regarding the district court's decisions, including the dismissal of his FDCPA and ECOA claims, as well as the granting of judgment as a matter of law in favor of ACB. Specific points of contention included the June 3rd collection letter's compliance with 15 U.S.C. 1692c(c) and its alleged violation of 15 U.S.C. 1692e(10) due to the use of a pseudonym. The appellate court emphasized that motions for judgment as a matter of law are reviewed de novo, requiring the evidence to be viewed favorably toward the non-moving party. Lewis argued the June 3rd letter constituted an impermissible communication post-demand, but the court found this interpretation inconsistent with the Act's purpose.

15 U.S.C. § 1692c(c) prohibits debt collectors from communicating with consumers who have sent a written request to cease such communication, except in three specific circumstances. One exception allows collectors to notify consumers of potential remedies typically invoked, as outlined in 15 U.S.C. § 1692c(c)(2). The June 3rd letter from ACB is argued to fall under this exception, as it can be interpreted as a settlement offer related to the debt.

The Fair Debt Collection Practices Act (FDCPA) was enacted to curtail abusive debt collection practices and ensure fair treatment of consumers. Abusive practices include threats, misrepresentation, and unreasonable communication tactics. While the FDCPA aims to eliminate such practices, § 1692c(c) broadly prohibits all forms of communication except under specified exceptions.

Though ACB's June 3rd letter may not initially seem to fit the narrow interpretation of a remedy notice, it is viewed as a legitimate settlement offer that aligns with ACB’s typical practices. Rejecting Lewis's interpretation, which would ban noncoercive settlement offers, would contradict the FDCPA's objectives by forcing debt collectors to pursue litigation for debt resolution. Such a stance would undermine the Act's purpose of promoting peaceful resolutions and could result in unnecessary litigation costs.

The letter, while potentially lacking in clarity regarding its status as a remedy notice, is consistent with the FDCPA, as it does not require comprehensive disclosure of all possible remedies. The record supports that ACB's communication was not abusive and aimed at settling the debt amicably, thereby aligning with the spirit of the legislation.

Lewis's assertion that the Federal Trade Commission's (FTC) statement on 15 U.S.C. § 1692c(c) is determinative is unconvincing. The FTC's advisory opinions have limited precedential value under the Fair Debt Collection Practices Act (FDCPA), as they only warrant deference when their reasoning is persuasive. The FTC's June 3rd letter, which offered Lewis multiple payment options, does not constitute an unlawful demand for payment. The letter's disclaimer stating it is an attempt to collect a debt is compliant with FDCPA requirements, which mandate such language to avoid violations under 15 U.S.C. § 1692e(11). Lewis's concerns about the letter's compliance are unfounded, as failing to include this necessary language would have led to potential legal claims against ACB. 

Furthermore, regarding the use of the pseudonym 'M. Hall,' Lewis contends it violates § 1692e(10) by implying the existence of a real individual, thereby misleading consumers. He argues that the reference suggests personal attention from a non-existent 'Payment Supervisor,' which he claims results in consumers unintentionally revealing sensitive information. However, the court disagrees with this interpretation, finding no deceptive practice in ACB's use of the pseudonym.

The Fair Debt Collection Practices Act (FDCPA) prohibits any false, deceptive, or misleading representations in debt collection, specifically under 15 U.S.C. § 1692e, which includes sixteen subsections outlining prohibited practices. Subsection 1692e(10) targets false representations or deceptive means used to collect a debt or obtain consumer information. Courts assess whether a practice is deceptive based on the perspective of the "least sophisticated consumer." In this case, the use of the alias "M. Hall" by a debt collector was not considered deceptive, akin to a prior case (Johnson v. NCB Collection Services) where the court found that using an alias did not mislead consumers because they were not automatically directed to the individual associated with the alias. It is recognized that a specific representative cannot be available at all times, and thus, no deception arises from a representative not disclosing their true identity. Additionally, the use of aliases serves to protect employees, and there was no demonstrated prejudice or harm to the consumer from the use of the alias. The only disclosure made by the consumer was regarding the status of their account, which did not constitute deceptive information gathering and ensured that the referred agent would refrain from further collection attempts.

Lewis's attempt to compare his case to Bentley is rejected, as the circumstances differ significantly. In Bentley, the Second Circuit identified deceptive practices due to misrepresentations regarding personal attention to an account, which was not the case for Lewis, whose account was assigned to an individual and received actual attention. The absence of a specific alias for the individual does not undermine this distinction.

Regarding the bona fide error defense, ACB successfully demonstrated that its violation of the Fair Debt Collection Practices Act (FDCPA) was unintentional, resulting from a bona fide error, as outlined in 15 U.S.C. 1692k(c). ACB's argument was strengthened by evidence showing that the coding error was made by Amex, not ACB, which had reasonable procedures in place to avoid such errors. ACB's compliance officer promptly identified the mistake, preventing a computer-generated letter from being sent, even though a phone call was made to Lewis due to a misunderstanding of his account status. This misunderstanding does not indicate intent to resume unlawful collection efforts; the intent requirement focuses on the collector's unintentional actions.

Additionally, Lewis's claim that the district court applied an incorrect legal standard in denying his motion to compel ACB to produce the complete contract with Amex is dismissed. He argued that the contract could provide admissible evidence regarding ACB's authority in collection efforts. However, the court found no error in this decision.

The trial court possesses broad discretion over the scope of discovery, as established in Ghandi v. Police Dep't of Detroit, where denial of further discovery is only reversible if it constitutes an abuse of discretion resulting in substantial prejudice. Under the Federal Rules of Civil Procedure, particularly Rule 26(b), discovery is expansive, permitting inquiries that could lead to admissible evidence, but excluding matters not reasonably likely to yield such evidence. Thus, discovery requests related to claims or events deemed irrelevant, such as those that have been stricken or are outside applicable limitations periods, can be properly denied.

Lewis's argument regarding the relevance of requested documents to show ACB's inability to collect from supplemental cardholders was dismissed by the district court as baseless, noting that the claim was outside the pleadings and unfairly prejudicial if amended post-evidence presentation. The district court further found no relevance in the requested documents since Lewis did not dispute the debt owed and the letter from ACB was uncontested, rendering contractual questions between ACB and Amex irrelevant to the claims under the Fair Debt Collection Practices Act (FDCPA) or the Ohio Consumer Sales Practices Act (OCSPA). Statements made at trial regarding the ACB-Amex agreement were deemed non-determinative.

Lastly, Lewis's claim that the district court erred in ruling on ACB's conduct concerning the OCSPA lacked merit. He contended that the court failed to provide specific findings and erred in denying evidence of damages, yet these arguments were found unsubstantiated, and the court's decisions were upheld as not abusive in discretion.

The district court's opinion provided adequate findings of fact and conclusions of law regarding Lewis's claims under the Ohio Consumer Sales Practices Act (OCSPA) and the Fair Debt Collection Practices Act (FDCPA). Although the court did not address each alleged OCSPA violation individually, it sufficiently detailed the actions that were claimed to violate both statutes. Lewis did not present additional evidence for his OCSPA claims and relied solely on the asserted FDCPA violations, which the court determined did not occur. Consequently, the court's analysis of the OCSPA claims was deemed sufficient.

Lewis also argued that the district court erred by not allowing him to present evidence of damages related to his OCSPA claims stemming from a specific collection letter and related actions. He suggested that confusion regarding differing statute of limitations for the OCSPA and FDCPA led to the exclusion of his damage evidence. However, the court clarified that it did not exclude these claims based on the statute of limitations but rather found that Lewis failed to demonstrate any damages directly caused by the collection letter. Additionally, claims regarding contacts with supplemental cardholders and neighbors were ruled as outside the pleadings.

Lewis failed to demonstrate actual damages under both relevant statutes, as detailed by the district court. His claims of mental distress—manifested as headaches, indigestion, and sleep issues—were unsupported by medical evidence, and he admitted to self-medicating without consulting a physician. The debt in question exceeded $14,000, and Lewis had significant pre-existing credit card debt, involving extensive negotiations and multiple lawsuits with American Express. While he suggested that ACB's collection efforts contributed to his distress, he did not provide competent testimony linking his mental suffering specifically to the alleged unlawful actions of ACB, as opposed to the general stress of his financial situation. Lewis's lack of recollection regarding ACB's communications undermined his assertions, and specific discrepancies in his recollections further weakened his claims.

Additionally, Lewis contended that the district court erred in ruling that ACB was not subject to treble damages or statutory damages under Ohio Revised Code 1345.09(B). This provision allows for such damages in cases of deceptive or unconscionable acts determined by a court, provided that the relevant decisions have been made public. Lewis cited two prior cases, Liggins v. May Company and Brown v. Lyons, to argue that ACB should have been aware of the potential for violations of the Ohio Consumer Sales Practices Act (OCSPA). He claimed Liggins indicated that deceptive practices by debt collectors could trigger treble damages, and he believed this precedent applied to ACB’s actions concerning his account.

A supplier is legally obligated to fulfill its duties, avoid making misleading statements, and cannot evade its responsibilities. The court referenced the case Liggins, where a collection agency was found to have engaged in deceptive practices by sending misleading collection notices that mimicked official documents and misrepresented legal actions. In contrast, the actions of ACB were deemed less severe than those in Liggins. The argument presented by Lewis regarding the case Brown was deemed flawed; the court clarified that ACB had not avoided legal obligations nor engaged in misleading behavior. The court also expressed concern that a broad interpretation of Liggins and Brown could lead to unintended legal consequences under the Ohio Consumer Sales Practices Act (OCSPA).

Lewis presented multiple claims of error related to his appeal in the Cincinnati case, including the dismissal of his Equal Credit Opportunity Act (ECOA) claim, summary judgment for Connors based on an affidavit, and mischaracterizations regarding ACB and Amex's roles as creditors under ECOA and debt collectors under the Fair Debt Collection Practices Act (FDCPA). The court found no reversible errors regarding these rulings. Dismissals for failure to state a claim are subject to de novo review, where factual allegations are accepted as true, but legal conclusions or unwarranted inferences are not. The court reiterated that plaintiffs must provide adequate factual support beyond mere legal assertions to meet federal pleading requirements.

A complaint must include direct or inferential allegations regarding all material elements necessary to support a recovery under a viable legal theory, as established in F.Supp. 890, 893 (S.D.Ohio 1991) and referenced from Car Carriers, Inc. v. Ford Motor Co. The case involves Lewis's claim under the Equal Credit Opportunity Act (ECOA) against American Express (Amex), arguing that the district court wrongly concluded Amex did not discriminate against him when it pursued a state lawsuit to recover a debt. Lewis asserts that the action was discriminatory because ACB requested the file from Amex specifically to initiate legal proceedings against him, noting that this was ACB's first instance of hiring an attorney for such a lawsuit in Ohio.

The ECOA prohibits discrimination in credit transactions, making it unlawful for creditors to discriminate against applicants based on their exercise of rights under the Act. The legislative history indicates that the statute aims to prevent retaliatory actions against consumers exercising their rights, acknowledging that some disputes may be frivolous or indicative of an applicant's willingness to fulfill obligations. The Act does not aim to restrict a creditor's ability to assess creditworthiness based on relevant factors.

To establish a prima facie case of retaliation under ECOA, Lewis must demonstrate that (1) he engaged in a protected activity, (2) experienced an adverse credit action, and (3) there is a causal connection between the two. The definition of "adverse action" includes denial or revocation of credit, changes to existing credit terms, or refusal to grant credit as requested, but excludes actions taken against applicants who are delinquent or in default. Lewis failed to meet these criteria, as his claims did not substantiate the existence of discrimination under the ECOA framework.

Lewis's FDCPA claim against ACB is undermined by his inability to demonstrate that he suffered an adverse action as defined under the ECOA, which excludes actions related to account default or delinquency. His complaint merely reflects ACB's legitimate efforts to recover an undisputed debt owed by him, and his allegations of retaliatory motive from Amex are baseless, consisting solely of unsupported inferences. Furthermore, Lewis's argument that ACB and Connors qualify as "creditors" under the Act is insufficient, as he fails to establish their role beyond mere allegations. He contends that they acted as agents or assignees of Amex in the credit transaction; however, the legal definition of "creditor" under the ECOA requires more substantial participation in extending or arranging credit, which Connors does not fulfill.

Lewis's complaint lacks sufficient factual detail to support his claims that Connors regularly extended or arranged for credit, merely presenting a legal conclusion. He fails to demonstrate Connors's status as an assignee of Amex, relying instead on Connors's offer to settle as an indication of credit extension, which does not satisfy the legal definition of a creditor under the Equal Credit Opportunity Act (ECOA). Similarly, ACB is not classified as a creditor since Lewis provides no substantive evidence that ACB regularly extends credit or participates in credit decisions, as the record indicates ACB was collecting a debt established by Amex's credit decision. Even if ACB were deemed a creditor, Lewis's claims would still be invalid, as he has not established any independent ECOA violation by ACB or Amex.

Lewis also contests the district court's dismissal of his Fair Debt Collection Practices Act (FDCPA) claims against ACB, Amex, and Connors, alleging the court made unfounded decisions without permitting discovery. He argues that the court wrongly ruled that Connors is not a debt collector, ACB did not engage in unauthorized legal practice, and Amex is not a debt collector. However, the court found no reversible error. Regarding Connors, Lewis's assertion that further discovery would prove Connors's status as a debt collector is unsubstantiated. The summary judgment process requires the nonmoving party to present specific facts to counter the motion, and Lewis's failure to show a genuine issue for trial supports the summary judgment ruling. Moreover, the denial of his Rule 56(f) motion for additional discovery is reviewed for abuse of discretion, emphasizing that a mere request for additional discovery is insufficient without demonstrating its potential to substantiate the opposition to the summary judgment.

Lewis claimed that Connors violated the Fair Debt Collection Practices Act (FDCPA) by filing a state case as Amex's attorney in retaliation for Lewis's earlier legal actions and by filing in an improper venue. Connors's affidavit indicated he had not acted as a "debt collector" under the FDCPA, as he had never exclusively represented a creditor for debt collection and primarily practiced as a defense attorney. The court found no abuse of discretion in denying Lewis's request for additional discovery time regarding Connors's legal practice, noting Lewis had sufficient opportunities for discovery in the Dayton case, including depositions and cross-examinations. The court also provided an extra 10 days for Lewis to respond to Connors's summary judgment motion. Lewis's motion for additional discovery was deemed insufficient, as his supporting affidavit merely made unsubstantiated claims that Connors was a "debt collector" without evidence. The court concluded that Lewis could have independently gathered information about Connors's practice and did not demonstrate that his claims were meritorious, justifying the denial of his Rule 56(f) motion for further discovery.

Lewis contends that ACB's actions constituted unauthorized practice of law by hiring Mr. Connors on behalf of Amex, thereby placing ACB between Amex and Connors. The Magistrate Judge's Substituted Report states that Connors is not an employee of ACB or Amex but fails to explain the legal implications of this finding. Under agency law, a principal is liable for an agent's actions, regardless of whether the agent is an employee or contractor. Since Connors acted as the agent for both Amex and ACB in a lawsuit against Lewis, ACB is seen as acting on behalf of Amex. Lewis cites several Ohio cases to support his argument that ACB engaged in unauthorized practice, including instances where collection agencies acted independently in legal matters, thus overstepping legal boundaries. However, the court finds Lewis's argument unconvincing and unsupported by factual allegations, noting that the record indicates Connors signed on behalf of Amex, not ACB, and that Lewis did not allege ACB was responsible for paying Connors's fees. 

Additionally, Lewis argues that the district court incorrectly concluded Amex was not a debt collector under the Fair Debt Collection Practices Act (FDCPA). He asserts Amex is liable for its agents' actions if it is aware and approves these actions. It is acknowledged that ACB requested Lewis's account from Amex for the purpose of initiating a lawsuit, implying Amex was informed of ACB's intentions.

Defendant Amex's return of the account to Defendant ACB implies its approval of ACB's retaliatory lawsuit. Amex is not classified as a debt collector under the Fair Debt Collection Practices Act (FDCPA), as its principal purpose is extending credit rather than collecting debts. Actual creditors are generally not subject to the FDCPA unless they collect debts under an assumed name or acquire debts post-default specifically for collection. Amex has not collected debts under an assumed name, thus does not meet the definition of a "debt collector." Furthermore, even if Amex were considered a debt collector, its actions did not violate the FDCPA, as Lewis's claims lack sufficient factual support and do not demonstrate any false or misleading actions by Amex.

Lewis contends that the district court wrongfully dismissed his Ohio Consumer Sales Practices Act (OCSPA) claims, arguing he had no chance to address these claims and that violations of the FDCPA constitute violations of the OCSPA. He suggests that filing lawsuits in a consumer's unrelated county can be deemed an unfair practice under state law. However, the court finds no merit in this claim, determining that Amex does not qualify as a "supplier" under the OCSPA, which excludes financial institutions. As Amex fits the definition of a financial institution, it is not subject to the OCSPA's provisions regarding unfair or deceptive practices.

The dismissal of Ohio Consumer Sales Practices Act (OCSPA) claims against ACB and Connors was deemed proper due to Lewis's failure to provide sufficient specificity regarding ACB's involvement in the state court lawsuit or establish an agency relationship with Connors. The trial court is not obligated to accept unwarranted factual inferences. Connors, while acting as Amex’s attorney, did not regularly file collection suits outside the jurisdiction where the consumer resided or signed the contract, which is a key factor in determining liability under OCSPA, as established in Celebrezze v. United Research, Inc. Lewis's argument regarding the district court’s denial of his motion to reconsider a change of venue was also rejected. He contended that trying the Dayton case separately undermined the consideration of common issues. The district court's decision on venue is reviewed for abuse of discretion, as outlined in 28 U.S.C. 1404(a), which allows for transfer for convenience and justice. Consolidation under Federal Rule of Civil Procedure 42(a) maintains the separate identity of cases, and the court must ensure no prejudice arises from such consolidation. Although a plaintiff's choice of forum is important, it is not the sole determining factor in venue decisions, particularly since Lewis had opted out of magistrate jurisdiction in the Cincinnati case.

Greater consolidation of cases would have harmed the parties involved, as neither had consented to magistrate judge jurisdiction. The court found that Lewis sought consolidation and a venue transfer to evade a perceived unfavorable ruling from Magistrate Judge Merz. Consequently, the district court's decisions to dismiss Lewis's claims in both the Dayton and Cincinnati cases were upheld. Circuit Judge Ryan dissented, arguing that the Fair Debt Collection Practices Act (FDCPA) clearly necessitated reversing the district court's judgment. He criticized the majority's reliance on legislative history and policy considerations, asserting that clear statutory language should guide judicial interpretation without resorting to extrinsic factors. Ryan emphasized that the FDCPA's provisions are unambiguous and impose strict obligations on debt collectors, suggesting that any perceived harshness should be addressed legislatively rather than judicially. The majority acknowledged that the collection letter from ACB to Lewis did not fit within any permitted exceptions outlined in the FDCPA regarding communication post-cease and desist letter.

The majority opinion asserts that the language in ACB's letter, which states "THIS IS AN ATTEMPT TO COLLECT A DEBT," is not a demand for payment but a compliance measure with 15 U.S.C. 1692e(11). This provision mandates that debt collectors must clearly disclose their intent to collect a debt in all communications. However, the opinion suggests that ACB was not required to include this declaration unless the letter was classified as a communication aimed at debt collection rather than as an exception outlined in section 1692c(c). The opinion also incorrectly interprets the letter as a potential settlement offer, despite the letter explicitly stating its purpose to collect a debt and offer payment arrangements. 

The majority's reasoning that the letter could serve as a notification of remedies available to the creditor is challenged, as such a classification would allow debt collectors to circumvent cease and desist notices by framing payment as a "remedy." Testimony from Mark Nakon indicated that the letter was typical for situations without a cease and desist notice and simply aimed to negotiate the debt. The dissent emphasizes that the letter is fundamentally a debt collection attempt, violating section 1692e, and disputes the majority's view that it is less coercive and more beneficial to the debtor than litigation. Additionally, the dissent critiques the majority's failure to recognize a violation due to ACB's use of the alias "M. Hall" in the letter.

The Fair Debt Collection Practices Act (FDCPA) explicitly prohibits the use of false representations or deceptive means in debt collection, as outlined in 15 U.S.C. § 1692e(10). The defendants have acknowledged that "M. Hall" is not a real person, rendering the letter purportedly from "M. Hall," which frequently uses personal pronouns, as a false representation. This misrepresentation was intended to mislead the debtor into believing a specific individual was managing their case, despite the knowledge that this was untrue. Although the harm of this deception may seem minimal, the FDCPA does not allow for exceptions based on perceived harmlessness or traditional practices, and thus compliance with the statute is mandatory.

In the Cincinnati case, the district court ruled that Lewis's claim against Amex, alleging a violation of the Equal Credit Opportunity Act (ECOA) due to retaliatory actions following his exercise of rights under the FDCPA, did not constitute a viable claim under Rule 12(b)(6). The majority opinion upheld this dismissal, asserting Lewis failed to demonstrate an adverse action, as the ECOA does not apply to actions concerning accounts in default or delinquency. However, there is some disagreement regarding whether the burden of proof was properly evaluated; ACB was required to show that Lewis could not prove any set of facts supporting his claim. The ECOA prohibits discrimination against debtors exercising rights under the Consumer Credit Protection Act, and claims are analyzed similarly to Title VII employment retaliation claims. To avoid dismissal, Lewis needed to show he engaged in protected activity, suffered an adverse credit action, and had a causal link between the two. The majority believes he cannot establish that he experienced an adverse action since the ECOA does not cover actions tied to accounts in default.

Lewis's brothers contend that Lewis has merely initiated a legal action to recover a significant, undisputed debt that the consumer refuses to pay. Lewis disputes this, asserting that the Equal Credit Opportunity Act (ECOA) prohibits collection lawsuits against delinquent debtors if those lawsuits are retaliatory. The ECOA's definition of "adverse action" pertains to notice requirements under section 1691(d) rather than defining discrimination under section 1691(a). Specifically, section 1691(a)(3) makes it unlawful to file a collection suit in retaliation for an enforcement action under the Fair Debt Collection Practices Act (FDCPA).

Lewis could potentially demonstrate that American Express (Amex) typically exhibits more leniency toward debtors, arguing that the Columbus collection suit was initiated in retaliation for his filing of the Dayton suit. This situation parallels employment discrimination claims, where an employee's prior work history does not negate a retaliation claim. The district court argued that Lewis had failed to show that other similarly situated debtors were not sued by Amex, but such a demonstration is not a prerequisite for pleading a retaliation claim.

The core issue is not Amex's right to sue for debt collection but whether Lewis can prove that the lawsuit was filed in retaliation for exercising a protected right. Although the burden to establish a causal link may be challenging, under Rule 12(b)(6), the focus is on whether Lewis could present a viable case under any factual scenario. The judgment of the district court should be reversed to allow for a factual determination.

At the time of a collection letter sent on June 3, 1993, Lewis owed Amex $14,429.54 and was also burdened with approximately $50,000 in debts to other creditors. The FDCPA permits a consumer to request in writing that a debt collector cease communication, complicating collection efforts but not mandating a complete halt. Lewis had raised additional FDCPA claims, including a violation related to a collection letter that did not adequately inform him of his rights, which was dismissed due to a statute of limitations issue and lack of demonstrated damages. Another claim concerning attempts to contact his neighbors was also dismissed as outside the pleadings. The account was returned to the collection agency in accordance with a policy that allows for necessary information to defend against lawsuits from disgruntled debtors.

The file was transferred to the New Jersey office due to miscoding. Lewis sought to compel discovery for the remainder of a contract, having already received part of it, and had not previously requested this document in the Cincinnati case. The analysis is supported by the principle that a debt collector may truthfully inform a debtor about available payment plans, aligning with the underlying purpose of the Fair Debt Collection Practices Act (FDCPA). Section 1692e(11), amended in 1996, requires debt collectors to state that communications are from them, but this amendment is irrelevant as ACB was adhering to the previous requirements at the time of correspondence with Lewis. Statements by Mark Nakon and Schohan regarding collection contracts do not impact the legality of ACB's communications under the FDCPA or the Ohio Consumer Sales Practices Act (OCSPA). 

The OCSPA prohibits unfair or deceptive acts by suppliers in consumer transactions, applicable both before and after such transactions, and has been interpreted by Ohio courts to include debt collection practices. The statute of limitations for OCSPA claims is two years, while for FDCPA claims, it is one year. Lewis's complaint details that on October 14, 1994, Amex, through ACB, filed a lawsuit against him in Ohio for an alleged debt. ACB's lawsuit was filed under a collection agreement with Amex, and attorney Connors represented both Amex and ACB in this matter. Additionally, it is claimed that ACB retaliated against Lewis for his federal lawsuit by pursuing the state court action, potentially violating ECOA and FDCPA provisions.

Defendant Amex was aware that the state court lawsuit against Mr. Lewis was retaliatory, stemming from Lewis's federal court lawsuit, constituting a violation of the Equal Credit Opportunity Act (ECOA) section 1691(a)(3), which prohibits discrimination by creditors against applicants based on prohibited criteria. The ECOA also forbids creditors from making statements that would deter reasonable applicants from seeking credit. Lewis's complaint identifies Defendant Connors as a "debt collector" under the Fair Debt Collection Practices Act (FDCPA) section 1692a(6), a "supplier" under the Ohio Consumer Sales Practices Act (OCSPA) section 1345.01(C), and a "creditor" under ECOA section 1691a(e). An exhibit in Lewis’s opposition to the motion to dismiss indicates that defendants offered Lewis consideration for a new credit card, referencing a settlement proposal from Lewis’s attorney which included a reconsideration as a cardholder upon payment of $7,500; however, this offer was never accepted by the defendants. The definition of a debt collector includes any person using interstate commerce to collect debts, which extends to lawyers who regularly engage in debt collection through legal means. The case was dismissed for failure to state a claim, so the affidavits from Connors and Kane, an Amex employee, were not considered; these affidavits clarify that Amex, not ACB, authorized the state court suit and that Connors had no affiliation with ACB outside of this matter. A supplier is defined broadly under Ohio law as anyone involved in consumer transactions, regardless of direct consumer interaction.