Harvey v. Great Seneca Fin

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0229p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
WENDELYN HARVEY,
-
-
-
No. 05-3970
v.
,
>
GREAT SENECA FINANCIAL CORPORATION et al., -
Defendants-Appellees. -
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 05-00047—Susan J. Dlott, District Judge.
Argued: June 1, 2006
Decided and Filed: July 6, 2006
Before: GILMAN and GRIFFIN, Circuit Judges; DUGGAN, District Judge.*
_________________
COUNSEL
ARGUED: Stephen R. Felson, Cincinnati, Ohio, for Appellant. Michael D. Slodov, JAVITCH,
BLOCK, & RATHBONE, Cleveland, Ohio, for Appellees. ON BRIEF: Stephen R. Felson,
Cincinnati, Ohio, Steven C. Shane, Bellevue, Kentucky, for Appellant. Michael D. Slodov,
JAVITCH, BLOCK, & RATHBONE, Cleveland, Ohio, for Appellees.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. This is a lawsuit brought under the Fair Debt
Collection Practices Act (FDCPA) against a debt collector, Great Seneca Financial Corporation
(Seneca), and its law firm, Javitch, Block & Rathbone, L.L.P. (Javitch). Wendelyn Harvey claimed
that Seneca and Javitch violated both the FDCPA and the Ohio Consumer Sales Practices Act
(OCSPA) by filing “a lawsuit to collect a purported debt without the means of proving the existence
of the debt, the amount of the debt, or that Seneca owned the debt.” Seneca and Javitch raised a
number of defenses to Harvey’s suit, including the failure to state a claim, the protection provided
by the First Amendment, and the Noerr-Pennington doctrine. The district court held that Harvey’s
allegations failed to state a claim under the FDCPA. It then declined to exercise supplemental
*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 2
jurisdiction over Harvey’s OCSPA claim once her federal claim had been dismissed. For the
reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
In January of 2004, Javitch filed a “Complaint for Money” to collect a debt that Harvey
allegedly owed Seneca. The complaint alleged that Harvey owed Seneca a total of $12,765.72 on
two separate accounts. Seneca claimed that “[a]lthough due demand has been made, [Harvey] has
failed to liquidate the balance due and owing.” Attached to the complaint were two exhibits that
listed the account number, the balance, and the statement closing date for each account.
Based on Seneca’s Complaint for Money, Harvey filed suit in January of 2005, alleging
violations of both the FDCPA and the OCSPA. Harvey’s factual allegations were sparse. She
alleged that after being served with the Complaint for Money, she “filed a responsive pleading and
sought discovery from [Seneca and Javitch] concerning the ownership of debts in question, the
origination of those debts, and the amount of those debts. When [Seneca and Javitch] refused to
provide responses, . . . Harvey filed a motion to compel, at which point [Seneca and Javitch]
dismissed the complaint.” She therefore claimed that Seneca and Javitch filed “a lawsuit to collect
a purported debt without the means of proving the existence of the debt, the amount of the debt, or
that Seneca owned the debt.”
Harvey contended in her complaint that Seneca’s filing of a state-court collection action
knowing that it “had no documentation” to prove the debt constituted a deceptive, unfair, and
unconscionable debt-collection practice. She specifically cited violations of 15 U.S.C. § 1692d,
which prohibits conduct that has the consequence of harassing, oppressing, and abusing a debtor,
and 15 U.S.C. § 1692e(10), which forbids using deceptive means to collect a debt.
Seneca and Javitch responded to Harvey’s complaint by filing a motion to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They argued that (1) a lack of available
documentation at the time the Complaint for Money was filed is not actionable under the FDCPA,
(2) the filing of the Complaint for Money is protected by the common law doctrine of immunity
during judicial proceedings, the First Amendment, and the Noerr-Pennington doctrine (which
protects litigants who seek redress of wrongs through judicial proceedings), and (3) the district court
should decline to exercise jurisdiction over Harvey’s OCSPA claims. Seneca and Javitch attached
to their motion to dismiss the record of their debt-collection action, which included the docket sheet,
the Complaint for Money, Harvey’s answer to the complaint, Harvey’s request for the production
of documents, Seneca’s motion for an extension of time to respond to the production of documents,
Harvey’s motion to compel production, and Seneca’s dismissal of the case.
The district court granted Seneca and Javitch’s motion to dismiss for failure to state a claim
and therefore did not reach the merits of their other defenses. It held that Seneca and Javitch had
not engaged in deceptive behavior, and that the filing of a complaint without the supporting
documentation in hand did not constitute harassment under the FDCPA. After dismissing Harvey’s
FDCPA claims, the district court declined to exercise jurisdiction over Harvey’s remaining state-law
claim under the OCSPA.
On appeal, Harvey asserts that, if permitted, she can prove the following facts, which she
argues constitute a claim under the FDCPA:
1. Seneca purchases extremely old, defaulted debt in batches of as many as one
million accounts at a time, for which it pays pennies on the dollar.
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 3
2. This type of debt is transferred electronically; the seller does not provide
paperwork which would be considered satisfactory evidence of the debt if
submitted to a court.
3. When printed out, the electronic evidence of the sale consists of one line per
debtor containing the debtor’s name, account number, and alleged
indebtedness, without any information about the original contract, the
debtor’s payments, or the assignment or sale of the account.
4. Seneca never obtained from the original debtor, or from an assignee of the
original debtor, any payment history or other documentary proof
demonstrating the amount of the debt allegedly owed by Ms. Harvey. The
same is true for documentation of the original agreement (including the
interest rate) and for documentation of the chain of ownership of the alleged
debt. This is common practice in the industry because of the time and cost
of obtaining such documentation.
5. Seneca-Javitch routinely files state-court collection actions with no more
evidence in hand of the debt in question than the single line described above.
6. The default rate on such lawsuits is at least ninety percent; once a default
judgment is entered the debtor’s chances of overturning it are miniscule.
Thus, in the vast majority of cases, Seneca-Javitch can proceed to
garnishment regardless of whether it could have proved its case in disputed
litigation.
7. On the rare occasion when a debtor obtains an attorney and that attorney
requests proof of the debt, the amount of the debt and/or Seneca’s ownership
of the debt, as happened here . . . , Seneca-Javitch routinely dismisses its
collection action. This decision is based upon a cost-benefit analysis which
is built into the price of purchasing these debts.
II. ANALYSIS
A. Standard of review
We review de novo the district court’s dismissal of a complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Morrison v. Marsh & McLennan Cos., 439
F.3d 295, 299 (6th Cir. 2006). “A dismissal of a complaint may be affirmed if it appears that
the non-movant can prove no set of facts in support of her claim that would entitle her to
relief. While reviewing courts construe the complaint in the light most favorable to the
plaintiff, and accept all factual allegations as true, a court is not required to accept as true
unwarranted legal conclusions and/or factual allegations.” Id. at 300 (citations omitted).
B. Harvey’s complaint
Before we can consider whether Harvey’s complaint survives the defendants’ motion
to dismiss, we must first determine the extent of her allegations. Harvey’s complaint alleges
that Seneca and Javitch filed a Complaint for Money without the means of proving that
Harvey actually owed a debt to Seneca in the specified amount. Because Harvey’s complaint
uses imprecise language, we must decide whether Harvey intended to allege that (1) Seneca
and Javitch filed the complaint without having on hand at the time of filing the means to
prove the complaint, or (2) Seneca and Javitch filed the complaint without the means of ever
being able to obtain sufficient proof of the debt-collection action.
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 4
Although reasonable inferences drawn from the allegations must be accepted, Evans-
Marshall v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir. 2005), we need not accept “unwarranted
factual inferences.” Perry v. Am. Tobacco Co., 324 F.3d 845, 848 (6th Cir. 2003). A
common-sense reading of Harvey’s complaint convinces us that she alleged only that, at the
time of filing, Seneca and Javitch did not have the means of proving their debt-collection
claim. This reading of the complaint comports with the district court’s understanding, which
was not challenged by Harvey. In addition, Harvey clarified her theory of the case in her
appellate brief, which states that Seneca chooses not to acquire the documentation needed to
prove its debt-collection claims “because of the time and cost of obtaining such
documentation,” not that it is incapable of doing so. The conclusion that Seneca and Javitch
had no means of ever proving their claim would therefore be both an unreasonable extension
and a strained reading of Harvey’s allegation that Seneca and Javitch filed “a lawsuit to
collect a purported debt without the means of proving the existence of the debt, the amount
of the debt, or that Seneca owned the debt.”
C. Harvey’s unpled allegations
We must next consider whether Harvey’s unpled allegations, which she asserts for the
first time in her brief on appeal, are properly before us. On appeal, Harvey argues that she
can prove that Seneca and Javitch routinely file unsubstantiated debt-collection suits in the
hope of obtaining default judgments. She also contends that, in the event that a debtor
contests Seneca and Javitch’s debt-collection action, they will dismiss the suit based on a
cost-benefit calculation, which weighs the cost of obtaining proof of their claim against the
expected judgment.
These factual allegations first presented by Harvey on appeal are significantly
different than those contained in Harvey’s complaint. These new allegations assert the
elements of (1) improper motive, (2) pattern and practice, and (3) inadequate investigation
of the debt before filing the lawsuit. None of the new factual allegations are even vaguely
alluded to in Harvey’s complaint.
Although a motion to dismiss should be granted only if the plaintiff can prove no set
of facts which would entitle her to relief, this court should not assume facts that were not
pled. See HMS Property Mgmt. Group v. Miller, Nos. 94-3668, 94-3669, 1995 U.S. App.
LEXIS 35116, at *7 (6th Cir. Oct. 31, 1995) (unpublished) (citing Assoc. Gen. Contractors
v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983), for the proposition that “it is
not proper to assume facts that a plaintiff has not plead [sic]”). See also In re DeLorean
Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993) (“[A] complaint must contain either direct
or inferential allegations respecting all the material elements to sustain a recovery under some
viable legal theory.”) (citations and quotation marks omitted) (emphasis in original). The
appropriate method for adding new factual allegations to a complaint is not via an appellate
brief, but by filing an amended complaint. See Sanders v. Barrett, 2005 U.S. App. LEXIS
22496, at *6-7 (11th Cir. Oct. 17, 2005) (unpublished) (“For the first time on appeal, Sanders
alleges new facts in an attempt to state a claim against Barrett under § 1983 . . . . Sanders
could have amended his complaint before the district court dismissed his action against
Barrett, but failed to do so.”) (citations and quotation marks omitted); see also Fed. R. Civ.
P. 15 (allowing a party leave to amend his or her complaint “when justice so requires”).
Harvey did not seek to amend her complaint to include the factual scenario she now
presents on appeal. Because she was represented by counsel, she is not entitled to the less
stringent pleading standard that applies to pro se litigants. See Montgomery v. Huntington
Bank, 346 F.3d 693, 698 (6th Cir. 2003) (holding that a “pro se complaint must be held to less
stringent standards than formal pleadings drafted by lawyers”) (quotation marks omitted).
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 5
We will therefore disregard the new set of facts alleged for the first time on appeal
that Harvey argues she can prove at trial. Allowing Harvey to present a new theory of her
case on appeal that was not alleged below would permit her two bites at the apple, a practice
that would be very disruptive of orderly trial procedure. See DeBardeleben v. Cummings, 453
F.2d 320, 324-25 (5th Cir. 1972) (holding that a defendant may not “breathe new juridical life
into a moribund issue” by asserting on appeal “an entirely new theory of the case, never
presented to the District Court”). We will therefore consider only those facts alleged in her
complaint and the reasonable inferences that can be drawn from those facts. See Evans-
Marshall, 428 F.3d at 228.
D. FDCPA claims
Congress enacted the FDCPA in order to eliminate “the use of abusive, deceptive, and
unfair debt collection practices by many debt collectors.” 15 U.S.C. § 1692(a). The statute
is very broad, and was intended to remedy “what it considered to be a widespread problem.”
Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir. 1992). “When interpreting the FDCPA, we
begin with the language of the statute itself . . . .” Schroyer v. Frankel, 197 F.3d 1170, 1174
(6th Cir. 1999).
In her complaint, Harvey alleges that Seneca and Javitch violated two provisions of
the FDCPA: 15 U.S.C. § 1692d, which prohibits “any conduct the natural consequence of
which is to harass, oppress, or abuse any person in connection with the collection of a debt,”
and 15 U.S.C. § 1692e(10), which prohibits the “use of any false representation or deceptive
means to collect or attempt to collect any debt or to obtain information concerning a
consumer.” In determining whether any particular conduct violates the FDCPA, the courts
have used an objective test based on the least sophisticated consumer. See Smith v.
Transworld Sys., Inc., 953 F.2d 1025, 1029 (6th Cir. 1992) (holding that the contents of a
collection letter were not misleading, even under the “least sophisticated consumer”
standard). The district court concluded that Harvey had not alleged a violation of either of
the FDCPA provisions on which she relies. We agree for the reasons set forth below.
1. Harassment under 15 U.S.C. § 1692d
The FDCPA prohibits “conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d.
This provision of the FDCPA lists nonexclusive examples of the type of conduct prohibited
by the Act as follows:
(1) The use or threat of use of violence or other criminal means to harm the
physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence
of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts,
except to a consumer reporting agency . . . .
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone
conversation repeatedly or continuously with intent to annoy, abuse, or
harass any person at the called number.
(6) Except as provided in [15 USCS § 1692b], the placement of telephone calls
without meaningful disclosure of the caller’s identity.
The district court dismissed Harvey’s claim under § 1692d because the “filing of a lawsuit
is not the kind of conduct that was intended to be covered by section 1692d.” Although
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 6
nonexhaustive, the examples of oppressive conduct listed in § 1692d concern tactics intended to
embarrass, upset, or frighten a debtor. They are likely to cause the “‘suffering and anguish’ which
occur when a debt collector attempts to collect money which the debtor, through no fault of his own,
does not have.” Montgomery, 346 F.3d at 700 (citation omitted). These tactics are not comparable
to the single filing of a debt-collection lawsuit.
Harvey argues, however, that the question of whether the filing of a debt-collection lawsuit
without adequate proof can constitute harassment should be submitted to a jury. In support, she cites
the unpublished case of Broadnax v. Greene Credit Service, No. 95-3829, 1997 U.S. App. Lexis 776,
at *10-11 (6th Cir. Jan. 15, 1997), which held that a jury could find abusive or dishonest a debt-
collector’s false accusation and initiation of a criminal complaint alleging that the target debtor had
fraudulently negotiated a bad check. Broadnax, however, is not a precedentially binding decision
and is readily distinguishable from the present case because the debt collector in Broadnax filed a
false criminal complaint intended to substantially disrupt the debtor’s life and imperil his liberty in
order to coerce him into paying a debt. In contrast, the allegations at issue in the present case do not
concern coercion, scare tactics, or fraud, but involve the simple filing of a lawsuit, which is an
authorized method of collecting a debt.
Cases from other courts of appeals bolster the conclusion that, although the question of
“whether conduct harasses, oppresses, or abuses will [ordinarily] be a question for the jury, . . . .
Congress has indicated its desire for the courts to structure the confines of § 1692d.” Jeter v. Credit
Bureau, 760 F.2d 1168, 1179 (11th Cir. 1985). Courts have therefore dismissed claims filed pursuant
to § 1692d as a matter of law if the facts alleged do not have the natural consequence of harassing
or abusing a debtor. Id. (affirming summary judgment for a debt collector because the notice in
question did not create a “tone of intimidation” that the FDCPA proscribes as a matter of law); Kerr
v. Dubowsky, 71 F. App’x 656, 657 (9th Cir. 2003) (unpublished) (holding that “the district court
properly dismissed Kerr’s 15 U.S.C. § 1692d claim because his complaint alleged that Dubowsky’s
May 2001 call was ‘unwanted’ but failed to allege facts that it was intended to ‘harass, oppress, or
abuse’”).
Even when viewed from the perspective of an unsophisticated consumer, the filing of a debt-
collection lawsuit without the immediate means of proving the debt does not have the natural
consequence of harassing, abusing, or oppressing a debtor. Any attempt to collect a defaulted debt
will be unwanted by a debtor, but employing the court system in the way alleged by Harvey cannot
be said to be an abusive tactic under the FDCPA. See Watkins v. Peterson Enters., 57 F. Supp. 2d
1102, 1109 (E.D. Wa. 1999) (holding that the serving of writs of garnishment that overstated the debt
by including costs and fees associated with prior unsuccessful writs was not an abusive practice
because the types of behavior described in 15 U.S.C. § 1692d “are a far cry from that at issue”). We
therefore find no error in the district court’s dismissal of Harvey’s claim under 15 U.S.C. § 1692d.
2. Deceptive practices under 15 U.S.C.§ 1692e(10)
The other FDCPA provision relied upon by Harvey is § 1692e, which prohibits deceptive
practices in debt collection. To determine “whether a debt collector’s practice is deceptive within
the meaning of the Act, courts apply an objective test based on the understanding of the ‘least
sophisticated consumer.’” Lewis v. ACB Bus. Servs., 135 F.3d 389, 400 (6th Cir. 1998) (holding that
a debt-collector’s use of a pseudonym that references a fictional collection agent is not a deceptive
practice). Examples of conduct that other courts of appeals have deemed deceptive include
impersonating a public official, Goswami v. American Collections Enterprise, 395 F.3d 225, 226 (5th
Cir. 2004), falsely representing that unpaid debts will be referred to an attorney, United States v.
National Financial Services, 98 F.3d 131, 138-39 (4th Cir. 1996), and misrepresenting the amount
of the debt owed, Kojetin v. C U Recovery, Inc., 212 F.3d 1318 (8th Cir. 2000).
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 7
In holding that Seneca and Javitch’s filing of a lawsuit without the immediate means of
proving the debt owed did not constitute a deceptive practice, the district court distinguished the case
of Delawder v. Platinum Financial Services Corp., No. C-1-04-680, 2005 U.S. Dist. LEXIS 40139
(S.D. Ohio March 1, 2005). The district court in Delawder upheld claims under 15 U.S.C.
§ 1692e(10) in a case where the debt collector allegedly attached a false affidavit to an
unsubstantiated debt-collection claim. Id. at *14-15. Because Harvey did “not allege that [Seneca
and Javitch] attached a false document to the . . . complaint, nor even that [their] claims regarding
the debt were false,” the district court in the present case held that Harvey did not state a claim under
15 U.S.C. § 1692e(10).
Other cases that have considered factual scenarios similar to the one addressed here have
adopted the reasoning and result of the district court in the present case. In Deere v. Javitch, Block,
and Rathbone, L.L.P., 413 F. Supp. 2d 886, 890 (S.D. Ohio 2006), for example, a case that the district
court described as bearing a “striking resemblance to the complaint” in the present case, the court
reasoned that
filing a lawsuit supported by the client’s affidavit attesting to the existence and
amount of a debt . . . is not a false representation about the character or legal status
of a debt, nor is it unfair or unconscionable. A defendant in any lawsuit is entitled to
request more information or details about a plaintiff's claim, either through formal
pleadings challenging a complaint, or through discovery. Deere does not allege that
anything in the state court complaint was false, or that the complaint was baseless.
She essentially alleges that more of a paper trail should have been in the lawyers’
hands or attached to the complaint. The FDCPA imposes no such obligation.
Id. at 891; see also Davis v. NCO Portfolio Mgmt., Inc., No. 1:05-CV-734, 2006 U.S. Dist. LEXIS
7133, at *4-10 (S.D. Ohio February 7, 2006) (unpublished) (“Davis does not allege that anything
contained in the state court complaint filed against her was false. Davis does not admit or deny the
existence of any underlying debt . . . .”) (emphasis in original).
The reasons cited in these other cases for dismissing claims under 15 U.S.C. § 1692e apply
equally to the complaint at issue in the present case. Harvey never denied in her complaint that she
owed Seneca a debt, nor did she claim that Seneca and Javitch misstated or misrepresented the
amount that she owed. Her allegations against Seneca and Javitch therefore do not allege that Seneca
and Javitch made “false representations” or used means that were “deceptive” in the traditional sense.
See 15 U.S.C. § 1692e(10). Harvey argues, however, that Seneca and Javitch’s conduct is “analogous
to suing on a time-barred debt, a practice uniformly held to violate the FDCPA” even though it does
not involve affirmative misrepresentations. Just as an unsophisticated and unrepresented debtor
would not challenge a time-barred lawsuit on limitations grounds, Harvey contends that an
unsophisticated debtor would not have the knowledge or resources to realize that Seneca and Javitch
did not possess the documents to prove their claim. According to Harvey, there is “no difference
between the two situations.”
Although we have never addressed the issue and express no opinion on the question, we note
that courts in other circuits have held that the filing of a lawsuit to collect a debt that is barred by the
statute of limitations violates several subsections of 15 U.S.C. § 1692e, which prohibits a debt
collector from using “any false, deceptive, or misleading representation or means in connection with
the collection of any debt.” The Eighth Circuit in Freyermuth v. Credit Bureau Services, Inc., 248
F.3d 767, 771 (8th Cir. 2001), for example, held that a debt collector violates the FDCPA when it
threatens or pursues litigation “to collect on a potentially time-barred debt that is otherwise valid.”
Several district courts have also concluded that the filing of a lawsuit to collect a time-barred debt
is deceptive to the unsophisticated consumer. See, e.g., Goins v. JBC & Assoc., 352 F. Supp. 2d 262
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 8
(D. Conn. 2005); Shorty v. Capital One Bank, 90 F. Supp. 2d 1330 (D.N.M. 2000); Kimber v. Fed.
Fin. Corp., 668 F. Supp. 1480 (M.D. Ala. 1987).
These district courts have employed varying rationales for concluding that the filing of time-
barred lawsuits violates the FDCPA. In Goins, for example, the district court held that the threat to
file suit on a time-barred debt constitutes a “misleading representation” because attorneys must
represent to the court that they have undertaken a reasonable inquiry into whether claims brought are
warranted by existing law under Rule 11 of the Federal Rules of Civil Procedure. Goins, 352 F.
Supp. 2d at 272. Because sanctions “would be appropriate if an attorney knowingly filed suit on an
undisputedly time-barred claim,” a letter threatening suit on such a claim “threaten[s] litigation where
such suit would be improper.” Id. The district court in Kimber similarly held that letters threatening
to sue on a time-barred claim are “fraudulent” because a debt collector cannot “legally prevail in such
a lawsuit.” 668 F. Supp. at 1489. As explained by the district court,
it is obvious to the court that by employing the tactics it did, FFC played upon and
benefitted from the probability of creating a deception. Honest disclosure of the
legal unenforceability of the collection action due to the time lapsed since the debt
was incurred would have foiled FFC’s efforts to collect on the debt. So instead, the
corporation implicitly misrepresented to Kimber the status of the debt, and thereby
misled her as to the viability of legal action to collect.
Id. (reasoning that unsophisticated “consumers would unwittingly acquiesce” to a time-barred lawsuit
instead of defending against it).
Harvey argues that these cases illustrate by analogy that a lawsuit filed without the immediate
means of proving the existence, amount, or true owner of the debt is deceptive. We respectfully
disagree. Seneca and Javitch did not implicitly represent by filing the Complaint for Money that they
had in hand the means to prove Seneca’s claims. Rule 11 of the Federal Rules of Civil Procedure
does not require attorneys to ensure that their client can prove its case before filing. Instead, the Rule
mandates only that “the allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.” Fed. R. Civ. Proc. 11(B)(3). Harvey did not allege in her
complaint that Seneca and Javitch failed to undertake a reasonable investigation into whether or not
Harvey’s debt existed; rather, she essentially focused on the contention that Seneca and Javitch did
not presently possess the means of proving that debt.
In addition, a number of the cases holding that the filing of a time-barred claim is a deceptive
practice under the FDCPA rely on 15 U.S.C. § 1692e(2), which prohibits “the false representation
of . . . the character, amount, or legal status of any debt.” See Shorty, 90 F. Supp. 2d at 1331
(“Common sense dictates that whether a debt is time-barred is directly related to the legal status of
that debt . . . [because] a debt cannot be pursued in court . . . [if] it is time-barred . . . .”) On the other
hand, a debt may be properly pursued in court, even if the debt collector does not yet possess
adequate proof of its claim. Seneca and Javitch’s alleged actions, therefore, did not misrepresent the
legal character of the debt owed.
A holding that Harvey’s allegations as stated in her complaint are sufficient to establish
deceptive means of collecting a debt under 15 U.S.C. § 1692e(10) would in our opinion unjustifiably
extend the rationales of the “time-barred” cases, none of which have yet been endorsed by this circuit.
We therefore hold that Harvey’s complaint does not state a cause of action under 15 U.S.C.
§ 1692e(10).
No. 05-3970 Harvey v. Great Seneca Financial Corp. et al. Page 9
E. Remaining matters
We wish to reiterate that we are not passing on the viability of the facts alleged by Harvey for
the first time on appeal. We are limited by law to reviewing only the sufficiency of Harvey’s
complaint. In addition, we do not need to address Seneca and Javitch’s remaining defenses because
we are affirming the district court’s disposition under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.