Kistner v. Law Offices

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0091p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellant, -
AMANDA KISTNER,
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No. 07-3134
v.
,
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THE LAW OFFICES OF MICHAEL P. MARGELEFSKY, -
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Defendants-Appellees. -
LLC and MICHAEL P. MARGELEFSKY,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 05-07238—Jack Zouhary, District Judge.
Argued: January 31, 2008
Decided and Filed: February 26, 2008
Before: MERRITT, GILMAN, and COOK, Circuit Judges.
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COUNSEL
ARGUED: Stephen R. Felson, Cincinnati, Ohio, for Appellant. David P. Strup, COOPER &
WALINSKI, Toledo, Ohio, for Appellees. ON BRIEF: Stephen R. Felson, Cincinnati, Ohio,
Edward A. Icove, ICOVE LEGAL GROUP, Cleveland, Ohio, Steven C. Shane, Bellevue, Kentucky,
for Appellant. David P. Strup, Brandi L. Doniere, COOPER & WALINSKI, Toledo, Ohio, for
Appellees.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. In January of 2005, Amanda Kistner received a
collection letter from The Law Offices of Michael P. Margelefsky, LLC related to her Cincinnati
Bell account. The letter, printed on The Law Offices of Michael P. Margelefsky letterhead, contains
a block signature declaring that the letter was sent by an “Account Representative.” Kistner
subsequently filed the present lawsuit as a putative class action against The Law Offices of Michael
P. Margelefsky (the Law Offices) and Michael Margelefsky individually, alleging numerous
violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, and the Ohio
Consumer Sales Practices Act (OCSPA), Ohio Rev. Code Ann. § 1345.01.
The district court granted summary judgment both to the Law Offices and to Margelefsky
after concluding that the collection letter did not make any misrepresentations and was not
1
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deceptive. For the reasons set forth below, we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion. Specifically, we conclude
that Margelefsky can be held individually liable as a “debt collector” under the FDCPA and that a
genuine issue of material fact exists as to whether the collection letter was deceptive.
I. BACKGROUND
A. Factual background
Margelefsky individually is the sole member of the Law Offices. Under that name,
Margelefsky operates both a law practice and a debt collection agency. These two businesses
maintain separate addresses, telephone numbers, and bank accounts, even though they are physically
adjacent to each other.
The form collection letter that Kistner received was initially drafted by Margelefsky.
According to Margelefsky, the letter contains all of the language and notices required by the
FDCPA. Thousands of these form letters were mailed by the Law Offices during the two-week
period in which Kistner received her letter.
Printed on letterhead for the “Law offices of Michael P. Margelefsky, LLC,” the letter
contains the address and telephone number for the debt collection agency that operates under that
name. (Formatting in original.) In its entirety, the text of the letter reads as follows:
This letter is to advise you that your account has been referred to this
office.
This communication is from a debt collector. This is an attempt to
collect a debt. Any information obtained will be used for that
purpose.
Unless you notify this office within 30 days after receiving this notice
that you dispute the validity of this debt or any portion thereof, this
office will assume this debt is valid. If you notify this office in
writing within 30 days from receiving this notice that you dispute the
debt or any portion thereof, this office will: obtain verification of the
debt or obtain a copy of a judgment and mail you a copy of such
judgment or verification. If you request of this office in writing
within 30 days after receiving this notice, this office will provide you
with the name and address of the original creditor, if different from
the current creditor.
The letter does not contain an individual’s signature, but contains the following signature
block:
ACCOUNT REPRESENTATIVE
The law offices of
MICHAEL P. MARGELEFSKY, LLC
(Formatting in original.) Finally, attached at the bottom of the letter is a remittance form that
instructs the debtor to make a check or money order payable to “MICHAEL P.
MARGELEFSKY,” and to mail the payment to “THE LAW OFFICES OF MICHAEL P.
MARGELEFSKY, LLC.” (Formatting in original.)
No. 07-3134 Kistner v. The Law Offices of Michael P. Margelefsky et al. Page 3
Margelefsky acknowledged that he did not review the specific letter that was sent to Kistner
before it was mailed. In fact, Margelefsky testified in his deposition that the letter was not even
reviewed by an “Account Representative” before it was mailed.
B. Procedural background
Kistner filed her complaint in June of 2005. In September of 2005, she filed an amended
complaint, alleging that Margelefsky violated six provisions of the FDCPA. Following discovery,
both sides moved for summary judgment. The district court granted the joint motion of the Law
Offices and Margelefsky and denied Kistner’s. This timely appeal followed, with the only issues
being Margelefsky’s individual liability and Kistner’s allegation that the collection letter was
deceptive under 15 U.S.C. § 1692e(3).
II. ANALYSIS
A. Standard of review
We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,
434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In considering a motion for summary judgment, the district court must construe all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B. Margelefsky’s individual liability
We will first address Margelefsky’s argument that he should not be held individually liable
because either (1) he did not have any involvement with the collection notice that was sent to
Kistner, or (2) he is not individually liable for the actions of his law firm, which is established as a
limited liability company (LLC). Margelefsky argues that, notwithstanding any liability that his
debt-collection business might face, he is entitled to be dismissed from the case as an individually
named defendant.
The question of whether an individual member of an LLC that is engaged in debt collection
may be held liable under the FDCPA without piercing the corporate veil is an issue of first
impression in this circuit. Liability under the FDCPA attaches only to a “debt collector,” a term
defined by the Act as
any person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.
15 U.S.C. § 1692a(6). Ohio law precludes personal liability for members of an LLC on the basis
of the LLC’s liability. Ohio Rev. Code Ann. § 1705.48.
Margelefsky cites only one case in support of his argument that his lack of involvement with
the specific notice at issue precludes his individual liability under the FDCPA. In that case, United
States v. ACB Sales & Service, Inc., 590 F. Supp 561 (D. Ariz. 1984), the district court concluded
that the director of a corporate entity “may be held liable only for [FDCPA] violations in which he
materially participates.” Id. at 575. In more recent years, however, the law surrounding this issue
has been developed more fully and a split of authority has emerged.
No. 07-3134 Kistner v. The Law Offices of Michael P. Margelefsky et al. Page 4
On one side of the split, the Seventh Circuit and a few district courts have ruled that a
shareholder, officer, or employee of a corporate debt collector may not be held personally liable
without meeting the requirements necessary to pierce the corporate veil. The leading case for this
proposition is White v. Goodman, 200 F.3d 1016 (7th Cir. 2000), where the Seventh Circuit
concluded that “[t]he Fair Debt Collection Practices Act is not aimed at the shareholders of debt
collectors operating in the corporate form unless some basis is shown for piercing the corporate
veil.” Id. at 1019. Later, in Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057 (7th
Cir. 2000), the Seventh Circuit clarified that “under our holding in White v. Goodman, the extent of
control exercised by an officer or shareholder is irrelevant to determining his liability under the
FDCPA.” Id. at 1059. According to the court in Pettit, officers and shareholders “do not become
‘debt collectors’ simply by working for or owning stock in debt collection companies.” Id. The
Seventh Circuit explained that “the FDCPA has utilized the principle of vicarious liability” and,
“[j]ust as in the Title VII context, the debt collection company answers for its employees’ violations
of the statute.” Id.On the other side of the split are a series of district court decisions concluding that “where
a shareholder, officer, or employee of a corporation is personally involved in the debt collection at
issue, he may be held personally liable as a debt collector without piercing the corporate veil.”
Brumbelow v. Law Offices of Bennett and Deloney, P.C., 372 F. Supp. 2d 615, 618 (D. Utah 2005).
For example, the Eastern District of California has concluded that
[b]y being directly involved in the day-to-day operation of Lundgren & Associates,
including training and managing employees, and reviewing or supervising the review
of all accounts, Lundgren was both directly and indirectly involved in Lundgren &
Associates’ collection of debts. Given the plain language of the FDCPA, defendant
Lundgren is a debt collector within the meaning of the FDCPA and can be held liable
for any acts in which he directly or indirectly attempted to collect debts in violation
of the FDCPA.
Newman v. Checkrite Cal., Inc., 912 F. Supp. 1354, 1372 (E.D. Cal. 1995) (referring to 15 U.S.C.
§ 1692a(6)). In another case, the Eastern District of New York found personal liability in part
because “each employee is himself a ‘debt collector’ within the statutory definition, namely each
is a ‘person’ in a business, ‘the principal purpose of which is the collection of any debts or who
regularly collects or attempts to collect . . . debts owed or due . . . another.’” Teng v. Metro. Retail
Recovery Inc., 851 F. Supp. 61, 67 (E.D.N.Y. 1994) (quoting 15 U.S.C. § 1692a(6)).
The district court in Arizona, subsequent to the ACB Sales & Service, Inc. case from that
district relied on by Margelefsky, has held that personal liability may be found where individual
corporate officers “materially participated in the activities of [a debt collection agency] alleged to
be collection activities.” Brink v. First Credit Res., 57 F. Supp. 2d 848, 862 (D. Ariz. 1999). In
other words, contrary to Margelefsky’s argument that he cannot be personally liable because he did
not participate in sending the specific letter to Kistner, he may be personally liable on the basis of
his participation in the debt collection activities of the LLC more generally.
Most similar to the instant action is the case of Ditty v. CheckRite, Ltd., 973 F. Supp. 1320(D. Utah 1997), in which the district court premised a finding of personal liability on the part of the
sole member of a law firm LLC on the grounds that
as the firm’s sole attorney, developer of the “covenant not to sue” practice, author
of the generic letters utilized by the firm, and supervisor of all of the firm’s
collection activities, Mr. DeLoney was regularly engaged, directly and indirectly, in
the collection of debts.
No. 07-3134 Kistner v. The Law Offices of Michael P. Margelefsky et al. Page 5
Id. at 1336-37. The court in Ditty concluded that the defendant satisfied the FDCPA definition of
“debt collector” and could therefore be held liable without “pierc[ing] the protective veil afforded
[LLCs] under Utah law.” Id. at 1337.
In discussing the Ditty holding, the court in Brumbelow explained that “[t]here is no doubt
that in a generic sense a person who authors collection letters, supervises collection activities, and
is the sole attorney in a debt collection firm is a ‘debt collector’ as defined by the FDCPA.”
Brumbelow, 372 F. Supp. 2d at 618. The court in Brumbelow also articulated a compelling argument
against the Seventh Circuit’s conclusion that the FDCPA employs the same vicarious-liability
principles found in Title VII:
Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment
Act both forbid discrimination by “an employer,” “employment agency,” or “labor
organization.” The Tenth Circuit has squarely held that “[t]he relief granted under
Title VII is against the employer, not individual employees whose actions would
constitute a violation of the Act.” In other words, where the employer under Title
VII is a corporation, it is the corporate entity which is liable for reinstatement, or
backpay, or any other relief awarded, and not the individual decision-maker who
actually engaged in the discriminatory conduct. By contrast, the FDCPA does not
limit liability to business entities or employers. Rather, under the FDCPA, liability
extends to all “debt collectors,” defined as “ any person . . . in any business the
principal purpose of which is the collection of any debts . . . .” The point of this is
simply that it is much easier to read the language of Title VII and conclude that it is
based upon the respondeat superior liability of the employer, especially given the
remedies available under Title VII, than it is to conclude the same thing with the
FDCPA.
372 F. Supp. 2d at 621-22 (citations omitted).
We find the analysis in Brumbelow persuasive. Accordingly, we adopt that analysis and hold
that subjecting the sole member of an LLC to individual liability for violations of the FDCPA will
require proof that the individual is a “debt collector,” but does not require piercing of the corporate
veil.
In the instant action, Margelefsky’s alleged liability is not premised solely on the fact that
he works for, and is the sole member of, the Law Offices. Rather, Margelefsky, like the defendants
in Ditty, was “regularly engaged, directly and indirectly, in the collection of debts.” See Ditty, 973
F. Supp. at 1337. Margelefsky admitted in his deposition that he drafted the form letter that was sent
to Kistner, is one of only two attorneys at the law firm, is the only member of the LLC, and is the
one who negotiates terms with the mailing service provider used in the debt-collection practice. He
also states in his brief that he is involved in the debt collection practice “to oversee compliance with
applicable collection laws and when the intervention by a lawyer becomes necessary.” And while
Margelefsky’s signature does not appear on the collection notice that was sent to Kistner, the
remittance voucher directed Kistner to make her check or money order payable to Margelefsky
individually.
The district court did not analyze Margelefsky’s status as a “debt collector,” but the facts
relating to his involvement in the debt-collection business are undisputed—originating in
Margelefsky’s own deposition testimony. Accordingly, because the determination of whether
Margelefsky is a “debt collector” under the statutory definition is reduced to a pure question of law,
it is unnecessary to remand the issue to the district court. See United Food & Commercial Workers
Union, Local 1099 v. SW Ohio Reg’l Transit Auth., 163 F.3d 341, 361 n.9 (6th Cir. 1998)
(“Although we will generally decline to consider in the first instance issues not considered by the
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district court, we will make an exception ‘where . . . the issue presents only a question of law.’”
(quoting City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d 244, 255 (6th Cir. 1994))). Based on the
foregoing, we conclude that Margelefsky is a “debt collector” as a matter of law and thus subject
to individual liability. See Ditty, 973 F. Supp. at 1336-37.
C. The LLC’s collection letter
This court has not previously had occasion to decide an “attorney letterhead” case under the
FDCPA. Debt collectors are prohibited by the FDCPA from using “any false, deceptive, or
misleading representation or means in connection with the collection of any debt.” 15 U.S.C.
§ 1692e. Specifically at issue in this appeal is 15 U.S.C. § 1692e(3), which prohibits debt collectors
from creating “[t]he false representation or implication that any individual is an attorney or that any
communication is from an attorney.” The statute imposes strict liability for violations. 15 U.S.C.
§ 1692k(a). An exception to strict liability exists only where a debt collector commits a violation
resulting from a “bona fide error.” 15 U.S.C. § 1692k(c).
This court has previously adopted the “least-sophisticated-consumer” test for determining
whether a debt collector’s practice is deceptive. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 400
(6th Cir. 1998) (analyzing an alleged violation of 15 U.S.C. § 1692e(10) under the least-
sophisticated-consumer test). The least-sophisticated-consumer test is objective and is designed “to
ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.” Fed. Home Loan
Mortgage Corp. v. Lamar, 503 F.3d 504, 509 (6th Cir. 2007) (quoting Clomon v. Jackson, 988 F.2d
1314, 1318 (2d Cir. 1993)). “[A]lthough this standard protects naive consumers, it 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.”
Id. at 509-10 (citations and internal quotation marks omitted).
Margelefsky contends that he personally had no involvement in sending the letter to Kistner.
But Kistner asserts that six aspects of the letter objectively signal to the least sophisticated consumer
that the letter is from an attorney, despite Margelefsky’s lack of personal involvement with it: (1) the
letterhead reads “Law offices of Michael P. Margelefsky, LLC,” (2) the letter informs the consumer
that the account “has been referred to this office,” (3) the letter includes a detachable payment
voucher with instructions to “MAKE CHECK OR MONEY ORDER PAYABLE TO MICHAEL
P. MARGELEFSKY,” (4) the payment voucher is to be returned to “THE LAW OFFICES OF
MICHAEL P. MARGELEFSKY, LLC,” (5) there is no disclaimer of attorney involvement in the
letter, and (6) the signature block states “ACCOUNT REPRESENTATIVE, the law offices of
MICHAEL P. MARGELEFSKY, LLC.”
In granting summary judgment to Margelefsky on Kistner’s § 1692e(3) claim, the district
court relied exclusively on the case of Rumpler v. Phillips & Cohen Associates, Ltd., 219 F. Supp.
2d 251 (E.D.N.Y. 2002). The form collection notice in Rumpler was on the company letterhead of
Phillips & Cohen Associates (P & C) and bore a signature line reading “Adam S. Cohen, Esq.,
Executive Vice President.” Id. at 253. Utilizing the least-sophisticated-consumer test, the court
concluded that such a consumer “could not reasonably interpret the Letter as having been issued by
an attorney” because “the Letter in this case is on P & C’s letterhead, which nowhere states either
‘Attorney at Law’ or ‘General Counsel,’ or gives any other indication that it came from an attorney
or a law firm.” Id. at 257. Rather, “[t]he Letter simply recites the name of a debt collection
business.” Id.Rumpler argued, however, that the inclusion of “Esq.” after Cohen’s name indicated that the
letter had been sent by an attorney. Id. The district court rejected Rumpler’s argument because “any
effect in the reader’s mind caused by including ‘Esq.’ after Cohen’s name is blunted by the inclusion
of the phrase ‘Executive Vice President’ immediately below.” Id. In the present case, the district
No. 07-3134 Kistner v. The Law Offices of Michael P. Margelefsky et al. Page 7
court likewise concluded that “any effect in the reader’s mind caused by the letterhead ‘Law Offices
of Michael P. Margelefsky, LLC,’ or any of the other arguments put forth by Plaintiff, is similarly
‘blunted’ by the specific language used in the notice and the fact that it was signed ‘ACCOUNT
REPRESENTATIVE.’”
We respectfully disagree. Contrary to the statement by the district court that the letter in
Rumpler “was on law firm letterhead,” the Rumpler court explicitly said that the letter was “on
P & C’s letterhead, which nowhere states either ‘Attorney at Law’ or ‘General Counsel,’ or gives
any other indication that it came from an attorney or a law firm.” 219 F. Supp. 2d at 257 (emphasis
added). In other words, the least sophisticated consumer looking at the letterhead in Rumpler would
see no indication that the letter had been sent from a law firm. The letter from the LLC, in contrast,
gives repeated indications that it came from a law firm. Specifically, the words “law offices” appear
in the letterhead, the signature block, and on the remittance voucher.
The purpose of the Rumpler court’s discussion of the letterhead was to distinguish the case
from Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993). In Clomon, the attorney in question sent
a series of letters to Clomon on a letterhead that said “P.D. Jackson, G.C., Attorney-at-Law, Offices
of General Counsel.” The letters were also signed, albeit with a “mechanically reproduced facsimile
of the signature,” by “P.D. Jackson, Attorney at Law, General Counsel, NCB Collection Services.”
Jackson was employed part-time as the general counsel for NCB Collection Services, and he was,
in fact, a licensed attorney.
The Clomon court found that, on the basis of Jackson’s letterhead and signature, the letters
would give the least sophisticated consumer “the impression that the letters were communications
from an attorney.” Id. at 1320. In concluding that summary judgment was properly granted to the
plaintiff, the court explained that this impression was false and misleading because the fact that
“Jackson played virtually no day-to-day role in the debt collection process supports the conclusion
that the collection letters were not ‘from’ Jackson in any meaningful sense of that word.” Id.Jackson in fact admitted that
[he] did not review each debtor’s file; he did not determine when particular letters
should be sent; he did not approve the sending of particular letters based upon the
recommendations of others; and he did not see particular letters before they were
sent—indeed, he did not even know the identities of the persons to whom the letters
were issued.
Id.Margelefsky, likewise, admitted in his deposition that he did not review Kistner’s file, did
not determine whether particular letters should be sent, and did not know the identities of the
persons to whom the letters were sent. So if the letter sent to Kistner would give the least
sophisticated consumer “the impression that the letter[] [was a] communication[] from an attorney,”
then that impression was false. See Clomon, 988 F.2d at 1320.
We conclude that Margelefsky and the district court have ascribed too much significance to
the inclusion in the Kistner letter of the phrase “ACCOUNT REPRESENTATIVE.” Unlike the use
of the title “Executive Vice President” in Rumpler, the inclusion of “Account Representative” does
not necessarily blunt “any effect in the reader’s mind caused by” the repeated references to “The
Law Offices of Michael P. Margelefsky” and the payment voucher directing remittance to “Michael
P. Margelefsky.” See Rumpler, 219 F. Supp. 2d at 257. This last fact is especially troubling despite
Margelefsky’s attempt to explain it away in a footnote in his brief as follows:
The notice directs Kistner to return payment to “THE LAW OFFICES OF
MICHAEL P. MARGELEFSKY, LLC” on the return receipt, and shortens the debt
No. 07-3134 Kistner v. The Law Offices of Michael P. Margelefsky et al. Page 8
collection agency’s name in the payment instructions and, for simplification,
instructs Kistner to make checks payable to Michael P. Margelefsky.
But the argument that Margelefsky’s name appears for “simplification” purposes rings hollow
because it is contradicted by Margelefsky’s own deposition testimony, where he states that the
appearance of his name on the payment voucher is a misprint that he did not notice until the
deposition.
We conclude that the impression left by the collection letter in this case falls somewhere in
between the letter in Clomon and the letter in Rumpler. The LLC’s letter is printed on law firm
letterhead, it makes repeated reference to a law firm, and it directs remittance to an individually
named lawyer. But it also explicitly states that it is from a debt collector and is “signed” by an
unnamed “Account Representative.” Based on these conflicting aspects of the letter, we conclude
that the district court erred in granting summary judgment to Margelefsky, but we will not go to the
other extreme either by granting summary judgment to Kistner. Instead, a jury should determine
whether the letter is deceptive and misleading—specifically, whether the letter gives the impression
that it is from an attorney even though it is not.
Further support for remanding the case for trial can be found in another approach for
analyzing claims under the FDCPA. In Clomon, the court noted that “courts have held that
collection notices can be deceptive if they are open to more than one reasonable interpretation, at
least one of which is inaccurate.” 988 F.2d at 1319. In Russell v. Equifax A.R.S., 74 F.3d 30, 34-35
(2d Cir. 1996), the collection notice presented the debtor “with two different and conflicting
statements,” and the court concluded that “[b]ecause the initial collection notice . . . was reasonably
susceptible to an inaccurate reading, it was also deceptive within the meaning of the Act.” The
Third Circuit has also reversed the grant of a motion to dismiss because the plaintiff properly stated
a claim for “false, deceptive, or misleading representation” under 15 U.S.C. § 1692e and because
further proceedings were needed to determine if the inaccurate reading was “‘reasonable’ in light
of the facts of this case.” Brown v. Card Serv. Ctr., 464 F.3d 450, 455 (3d Cir. 2006).
Margelefsky argues that because no court has applied the “more than one reasonable
interpretation” standard to claimed violations of § 1692e(3), the standard is somehow inapplicable
as a matter of law. But there is nothing in Clomon or in any of the cases that have applied the
standard to suggest that it is not equally applicable to subsection three of § 1692e. In fact, § 1692e
prohibits debt collectors from using “any false, deceptive, or misleading representation or means in
connection with the collection of any debt,” and lays out specific violations of the section, including
subsection three, related to attorney communications.
We therefore believe that the “more than one reasonable interpretation” standard is
applicable to the entirety of § 1692e as a useful tool in analyzing the “least-sophisticated-consumer”
test. See Clomon, 988 F.2d at 1319 (discussing the “more than one reasonable interpretation” test
as one of the “variety of ways” in which courts attempt to protect consumers under the least-
sophisticated-consumer standard). Accordingly, the question for the jury becomes whether one can
reasonably conclude that the letter sent to Kistner is susceptible to a reading by the least
sophisticated consumer that it is from an attorney, even though Margelefsky has admitted that he
had no direct role in sending the letter.
D. Kistner’s OCSPA claims
The district court also granted summary judgment to Margelefsky on Kistner’s OCSPA
claims. Judgment on these claims was predicated on the court’s conclusion that the collection letter
“did not make any misrepresentations, nor was it deceptive in any way,” and therefore did not
violate the FDCPA. Kistner presented no independent evidence for her OCSPA claims, and the
No. 07-3134 Kistner v. The Law Offices of Michael P. Margelefsky et al. Page 9
district court therefore saw no reason not to grant summary judgment to Margelefsky on those
claims. Because we have concluded that summary judgment on the FDCPA claims was improperly
granted, Kistner’s OCSPA claims—specifically her claim for injunctive relief under the
statute—must be remanded to the district court for reconsideration.
III. CONCLUSION
In sum, we have determined that Margelefsky is a “debt collector” who may be held
individually liable for any violations of the FDCPA. A genuine issue of material fact, however,
exists as to whether one can reasonably conclude, under the “least-sophisticated-consumer” test, that
the collection letter addressed to Kistner is susceptible to a belief that it is from an attorney. We
therefore REVERSE the judgment of the district court and REMAND the case for further
proceedings consistent with this opinion.