RANKIN BY AND THROUGH ANTROBUS v. RESURGENT CAPITAL SERVICES (2025)

OPINION & ORDER

This matter is before the Court on the cross-motions for summary judgment filed by Defendants Resurgent Capital Services, L.P., LVNV Funding, LLC, and Credit Control, LLC, (Doc. 25), and Plaintiff Matthew Rankin, (Doc. 35).¹ Rankin also seeks to strike certain affirmative defenses. (Id.). The motions are fully briefed, and the issue is now ripe for review.

I. BACKGROUND

Matthew Rankin, a developmentally disabled adult proceeding through a guardian ad litem, brings this action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Rev. Code § 1345.01, et seq. In September 2020, Rankin received a copy of his credit report and discovered an outstanding balance on an account that he did not recognize. (Doc. 35, PageID 825-26). Because the account had been charged off to LVNV and assigned to Resurgent, Rankin wrote to them on December 5 with a request to verify the debt in detail and otherwise cease all other communication with him, including any attempts to collect the debt. (Id., PageID 882-84). Resurgent responded by mail on December 30, explaining that it managed the account for LVNV; the letter included an account summary report and non-itemized statement from Credit One Bank that reflected a past-due balance of $641.91. (Doc. 25, PageID 257-58). It did not include any of the additional details that Rankin had requested.

According to Rankin, Resurgent then sent him two more letters on January 27, 2021, containing “precisely the same phrasing and enclosures that Resurgent sent on December 30.” (Doc. 35, PageID 808). In response, on February 5, Rankin replied with a letter “demanding that Resurgent Capital Services immediately cease and desist all contact.” (Id., PageID 938). The record shows that Resurgent's internal system classified the letter as a “CEASE & DESIST.” (Id., PageID 866). Resurgent responded on February 17 with a letter that it characterizes as “merely informational,” after which it referred the account to third-party Credit Control. (Doc. 25, PageID 216).

On April 5, 2021, after receiving a collection letter from Credit Control, Rankin responded to both Resurgent and Credit Control, again demanding that they cease contact and informing them that their continued contact with him “caused a great deal of unnecessary grief, exacerbated [his] medical issues, caused [him] great stress, and elevated [his] anxiety.” (Doc. 35, PageID 950). Although Credit Control ceased all contact with Rankin, Resurgent mailed him two additional letters containing the same documents it had previously sent him. (Id., PageID 952-55, 958). Rankin then informed Resurgent that he had retained legal counsel, and this action followed several months later.

The parties now move for summary judgment. Defendants argue that Rankin is “objectively wrong about material facts and relies on misguided interpretations of law.” (Doc. 25, PageID 213). To that end, they contend that they were legally required to respond to Rankin's letters, and his claims cannot succeed in the first place because he lacks standing, he cannot satisfy necessary elements of the FDCPA and OCSPA, and his FDCPA claims are barred by the statute of limitations. Rankin asserts that Defendants engaged in practices that were “unfair, deceptive, and unconscionable,” and that they failed “to properly verify the debt using the account statements in their possession.” (Doc. 35, PageID 807). He further argues that “[t]he affirmative defenses raised by Defendants are unsupported by any factual or legal basis and should be stricken.” (Id.).

II. LEGAL STANDARDS

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (noting that a fact is “material” only when its resolution affects the outcome of an action, and a dispute is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”). The Court views the evidence and draws all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)

If the moving party has satisfied its initial burden of showing the absence of a genuine issue of material fact, the nonmoving party may not rest on the mere allegations in the pleadings, but must instead put forth specific facts showing that there is a genuine issue for trial. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This standard of review remains the same for reviewing cross-motions for summary judgment. Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435, 441-42 (6th Cir. 2021); see Harris v. City of Saginaw, 62 F.4th 1028, 1032-33 (6th Cir. 2023) (“In review of the defendant's motion, we accept the plaintiff's view of the facts as true and draw all reasonable inferences in favor of the plaintiff;” whereas “in review of the plaintiff's motion, we accept the defendant's view of the facts as true and draw all reasonable inferences in favor of the defendant.”).

The FDCPA was created to protect consumers from “abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). In broad terms, it “regulates communications with debtors, 15 U.S.C. §§ 1692c, 1692g; stops harassing actions, id. § 1692d; prohibits false of misleading claims, id. § 1692e; and limits unfair collection methods, id. § 1692f.” Bates v. Green Farms Condo. Ass'n, 958 F.3d 470, 477 (6th Cir. 2020). In order to put forth a viable claim under the FDCPA, a plaintiff must show four things: “(1) Plaintiff is a ‘consumer’ as defined in Section 1692a(3); (2) the ‘debt’ arises out of a transaction which is ‘primarily for personal, family, or household purposes’; (3) Defendant is a ‘debt collector’ as defined in Section 1692a(6); and (4) Defendant has violated one of the prohibitions in the FDCPA.” Chapman v. Yost, 2:24-cv-1865, 2024 WL 1714710, at *2, 2024 U.S. Dist. LEXIS 72743, at *4 (S.D. Ohio Apr. 22, 2024) (quoting Martin v. PHH Mortg. Corp., No. 2:23-cv-159, 2023 WL 5241546, at *2, 2023 U.S. Dist. LEXIS 143032, at *3-4 (S.D. Ohio Aug. 15, 2023)).

In a similar vein, the OCSPA “prohibits unfair or deceptive acts and unconscionable acts or practices by suppliers in consumer transactions whether they occur before, during, or after the transaction.” Mayernik v. CertainTeed LLC, 476 F.Supp.3d 625, 634 (S.D. Ohio 2020) (quoting Anderson v. Barclay's Capital Real Estate, Inc., 136 Ohio St.3d 31, 989 N.E.2d 997, 999 (2013)). “Both the FDCPA and the OCSPA are remedial statutes, intended to reach a broad range of conduct.” Taylor v. First Resolution Inv. Corp., 148 Ohio St.3d 627, 72 N.E.3d 573, 598 (2016). “Various violations of the FDCPA constitute a violation of the OCSPA. The purpose of both acts is to prohibit both unfair and deceptive acts.” Id. at 598-99 (cleaned up).

III. ANALYSIS

Defendants contend that summary judgment must be granted in their favor because (1) Rankin “suffered no harm, and thus, he lacks standing”; (2) Rankin cannot put forth evidence sufficient to establish claims under the FDCPA and OCSPA; and (3) Rankin's FDCPA claim is barred by the statute of limitations. (Doc. 25, PageID 213-14). Rankin asserts that summary judgment in his favor is appropriate because Defendants had no basis to send him additional communications and “had no excuse for failing to properly verify the debt using the account statements in their possession.” (Doc. 35, PageID 807). To that end, Rankin also asks the Court to strike Defendants’ affirmative defendants because they “are unsupported by any factual or legal basis.” (Id.).

a. Standing

As a threshold matter, Defendants argue that Rankin lacks standing to pursue his claims. “To establish standing, plaintiffs bear the burden of showing (1) a concrete and particularized injury-in-fact which (2) is traceable to the defendant's conduct and (3) can be redressed by a favorable judicial decision.” Dickson v. Direct Energy, LP, 69 F.4th 338, 343 (6th Cir. 2023). Relevant here, “Article III standing requires a concrete injury even in the context of a statutory violation,” Spokeo, Inc. v. Robins, 578 U.S. 330, 341, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), but “Congress's decision to create a statutory cause of action may ‘elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law,’ so long as those injuries ‘exist’ in the real world,” Dickson, 69 F.4th at 343 (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 425-26, 141 S.Ct. 2190, 210 L.Ed.2d 568 (2021)).

Although Defendants first focus on factual questions surrounding Rankin's claims of emotional distress in order to argue that he has not experienced a cognizable injury, they also attempt to draw a distinction between the unwanted letters in this case and unwanted phone calls that the Sixth Circuit has previously deemed “injury enough” for standing purposes in FDCPA cases.² See Ward v. NPAS, Inc., 63 F.4th 576, 581 (6th Cir. 2023). But the Court does not give credence to that distinction.

The Sixth Circuit in Ward looked to the common law tort of intrusion upon seclusion, which “generally requires a plaintiff to demonstrate that a defendant intentionally intruded, physically or otherwise, upon the solitude or seclusion of another or his privacy affairs or concerns.” Id. at 580 (cleaned up). “Because the intrusion caused by unwanted phone calls bears a ‘close relationship’ to the kind of harm that the common law sought to protect,” and standing in this context requires “a harm with a close relationship ‘in degree, not kind’ to common law harms,” the Sixth Circuit held that a single unwanted phone call qualifies as a concrete injury for FDCPA standing purposes. Id. at 581 (quoting Gadelhak v. AT&T Servs., 950 F.3d 458, 462-63 (7th Cir. 2020)).

Notably, the Sixth Circuit did not distinguish phone calls and letters in Ward. And as for the district court opinion that Defendants rely upon for the proposition that “receiving a letter with undisputedly accurate information does not constitute an offensive intrusion sufficient to show standing,” (Doc. 45, PageID 1408), the Ninth Circuit reversed the district court and remanded the matter because “[c]ourts have consistently found that the harm caused by unwanted communications bears a close relationship to intrusion upon seclusion,” and there exists “no meaningful difference in this context between making a phone call and sending a letter,” Six v. IQ Data Int'l, Inc., 129 F.4th 630, 634 (9th Cir. 2025). The Court agrees and applies that reasoning here.

As for traceability and redressability, there is clearly “a causal connection between the injury and the conduct complained of,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), because Defendants’ letters caused the intrusion on Rankin's privacy, and “the relief sought under the FDCPA ․ would redress the intrusion,” Six, 129 F.4th at 636. Thus, Defendants’ factual attack on jurisdiction is without merit and Rankin has standing to pursue his claims.

b. FDCPA Liability

i. Statute of Limitations

Defendants first argue that this action is barred by the FDCPA's one-year statute of limitations because the original complaint was filed by Bruce Rankin, who they claim did not have the legal authority to file suit on his brother's behalf. However, Federal Rule of Civil Procedure 17 provides that when a real party in interest ratifies, joins, or is substituted into an action within a reasonable time after an objection, “the action proceeds as if it had been originally commenced by the real party in interest.” Fed. R. Civ. P. 17(a)(3). “In such cases, the ‘stepping in’ of the real party in interest ‘relates back to the time when the original party’ filed the action.” Ceres Protein, LLC v. Thompson Mech. & Design, 3:14-cv-491, 2016 WL 6090966, at *7, 2016 U.S. Dist. LEXIS 143765, at *20 (W.D. Ky. Oct. 17, 2016) (quoting Corbin v. Blankenburg, 39 F.3d 650, 654 (6th Cir. 1994) (en banc)).

Here, the Court appointed a guardian ad litem to file an amended complaint and act in Rankin's legal interest for the duration of these proceedings. (See Doc. 19). Because this action was initially brought within the applicable limitations period and Rankin is considered to have ratified it upon the filing of the amended complaint, “the amendment ․ relates back to the time suit was originally filed and the action need not be dismissed as time barred.” Ratner v. Sioux Natural Gas Corp., 770 F.2d 512, 520 (5th Cir. 1985) (quoting Hess v. Eddy, 689 F.2d 977, 981 (11th Cir. 1982)). Thus, Rankin's FDCPA claim is not barred by the statute of limitations.

ii. Liability as to Credit Control

Although Rankin does not move for summary judgment as to the liability of Credit Control, he responds to that component of Defendants’ motion by asserting that questions of fact still exist over whether Credit Control “knew or should have known that a cease request was already in place” when it sent a letter. (Doc. 40, PageID 1203). That assertion, without more, is insufficient. See, e.g., Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

The record reflects that Credit Control sent Rankin a letter on March 23, 2021. The letter, which stated that LVNV placed the account with Credit Control for collection, undisputedly qualifies as an attempt to collect a debt. (Doc. 25, PageID 264). On April 5, 2021, Rankin sent a cease request to Credit Control, in addition to another cease request to Resurgent with instructions to notify Credit Control or any future assignees. (Id., PageID 265-66). According to summary judgment evidence and the deposition testimony of Credit Control's CEO, the company received a copy of the cease request on April 15, at which point it changed the status of Rankin's account. (Id., PageID 270). The CEO clarified that when an account's status is changed to reflect a cease request, “no calls can be made on it, no letters can be sent, it is completely shut down.” (Id.). Indeed, Credit Control itself had no further contact with Rankin.

Rankin does not present evidence that Credit Control was aware of the prior cease requests, either directly or through case files provided by Resurgent or LVNV. Even drawing all reasonable inferences in Rankin's favor, the Court can find no issue of material fact on this question nor can it impute liability to Credit Control based only on conclusory allegations. Therefore, the Court will grant summary judgment in favor of Credit Control on the question of liability.

iii. Debt Under the FDCPA

Defendants next contend that they are entitled to summary judgment because Rankin cannot show evidence of a “debt,” as it is defined by the FDCPA. Defendants point specifically to deposition testimony in which Rankin answered “I don't know” when asked whether he knew “what anybody was actually buying” with the Credit One account. (Doc. 25, PageID 223). Consequently, Defendants argue, there can be no FDCPA claim. Rankin counters that “[t]here is no indicia the alleged debt is business-related,” and “[t]he transactions involved personal, not business, purposes.” (Doc. 35, PageID 812).

“Courts typically look to the intended use or purpose behind the debt incurred to determine whether the debt was for ‘personal, family, or household purposes.’ ” Woodard v. O'Brien, 415 F.Supp.3d 794, 799 (S.D. Ohio 2019) (quoting Martin v. Allied Interstate, LLC, 192 F.Supp.3d 1296, 1306 (S.D. Fla. 2016)). But things are complicated here by Rankin's assertion that the account in question was fraudulently opened by his late mother, without his consent. In such cases, “a victim of identity theft ․ should present evidence of the identity theft or mistaken identity along with some evidence showing that the debt is consumer in nature.” Martin, 192 F.Supp.3d at 1306.

Proving a debt to be consumer in nature can be accomplished in a number of ways, including showing that the alleged FDCPA violations are not “attempts to collect damages resulting from alleged tortious conduct,” Jamison v. Lippman, No. 22-3310, 2023 WL 3194906, at *2, 2023 U.S. App. LEXIS 2145, at *4-5 (6th Cir. Jan. 26, 2023), or that the debt at issue is from a consumer account, as opposed to a business account, Oppenheim v. I.C. Sys., 627 F.3d 833, 838-39 (11th Cir. 2010). This is not an unorthodox approach, nor does it impermissibly shift a burden onto defendants:

The account in question was a consumer credit card account opened in Plaintiff's name. Although Plaintiff lacks knowledge as to the nature and purpose of the charges accrued on the account, the balance on that account nonetheless must be deemed an alleged obligation for personal, family, or household purposes. To hold otherwise would defy common sense, as it would allow debt collectors to utilize unfair collection tactics against already vulnerable individuals — that is, those who have been subject to identity theft. Accordingly, the Court finds that, where the consumer lacks knowledge of the exact nature of the charges on an account due to alleged identity theft—as is the case here—the alleged obligation on a consumer account will nonetheless constitute a “debt” for purposes of the FDCPA analysis.

Collins v. Portfolio Recovery Assocs., LLC, No. 2:12-cv-138, 2013 WL 9805805, at *4, 2013 U.S. Dist. LEXIS 162624, at *14-15 (E.D. Tenn. June 7, 2013); see also Davis v. Midland Funding, Ltd. Liab. Co., 41 F.Supp.3d 919, 925 (E.D. Cal. 2014) (“It would be absurd to hold that a plaintiff who is subject to debt collection efforts for an obligation that he does not owe is ineligible for the FDCPA's protections simply because he cannot characterize the nature of that obligation.”).

Among the summary judgment evidence tendered by Rankin is a credit card agreement from Credit One Bank that (1) directs accountholders to consult the Consumer Financial Protection Bureau for additional information; (2) references the referral of account information to consumer reporting agencies; and (3) sets forth a provision that any arbitration shall be conducted “under the AAA's Consumer Arbitration Rules.” (Doc. 39, PageID 1161-74). This, coupled with the fact that the account in question is a consumer account in Rankin's name, leads the Court to a conclusion that the obligation at issue constitutes consumer debt under the FDCPA.

iv. Identity of Respondent

Though Defendants characterize Rankin's deposition testimony as containing admissions that “all of the letters which were sent to Defendants were sent by his brother, Bruce, and not by Plaintiff himself,” (Doc. 45, PageID 1402), they omit key context. When asked by Defense counsel whether Bruce typically interacts with people on his behalf and with his permission, Rankin responded affirmatively. (Doc. 26, PageID 309). Rankin also responded affirmatively when Defense counsel specifically asked, “[s]o like in this case [Bruce] would have interacted with the defendants on your behalf, right?” (Id.). Ultimately, Rankin swore to the following: “Bruce helped me to type up the letters that I sent to Defendants, and that I produced in this case. He also helped me to get them mailed to Defendants. Those letters were from me even though my brother helped me to type them up and mail them.” (Doc. 35, PageID 828).

v. 15 U.S.C. § 1692c(c)

Under the FDCPA:

If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—

(1) to advise the consumer that the debt collector's further efforts are being terminated;

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt.

15 U.S.C. § 1692c(c). It is this provision to which Rankin looks when asserting that “Defendants indisputably received four letters that explicitly instructed Defendants to cease contacting [him] and nothing else. Still, debt collection communications continued.” (Doc. 35, PageID 814-15).

Defendants provide that “[a]n apparent contradiction is created where a debtor disputes a debt (requiring a debt collection to respond) and simultaneously demands cessation of communication (which would prohibit a response).” (Doc. 45, PageID 1402). Defendants thus look to a 2009 advisory opinion in which the Federal Trade Commission concluded that debt collectors do not violate the FDCPA “if the consumer directly disputes information after sending a written ‘cease communication’ to the collector,” and the debt collector replies with a communication intended solely to state either “(1) the results of the investigation or (2) the collector's belief that the communication is frivolous or irrelevant.” (Doc. 25, PageID 284).

This argument is not persuasive to the Court for two main reasons. First, the FTC was not tasked with rulemaking or issuing advisory opinions related to the FDCPA at any time during the events leading to this lawsuit. And second, even assuming if the advisory opinion controlled, Defendants’ subsequent letters to Rankin included language that went beyond the scope of any allowable exception, including instructions for payment and notices of an attempt to collect debt. (See, e.g., Doc. 40, PageID 1319, 1326). Thus, Resurgent and LVNV violated § 1692c(c) as a matter of law because “a letter containing a demand for payment and a statement that it is seeking to collect the debt exceeds simply verifying the debt.” Vazzano v. Receivable Mgmt. Servs., LLC, 621 F.Supp.3d 700, 713 (N.D. Tex. 2022).

vi. 15 U.S.C. § 1692g(b)

The FDCPA also provides that:

If the consumer notifies the debt collector in writing ․ that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

15 U.S.C. § 1692g(b). This subsection is intended “to provide the consumer with notice of how and when the debt was originally incurred or other sufficient notice from which the consumer could sufficiently dispute the payment obligation.” Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785-86 (6th Cir. 2014). Verification need not be extensive, but “should provide the date and nature of the transaction that led to the debt, such as a purchase on a particular date․” Id. at 786.

Rankin argues that the verification sent on December 30, 2020, was inadequate for the purposes of the FDCPA because “Defendants failed to give any notice of how or when the transactions occurred, as [he] requested, leaving him with no information to sufficiently dispute this alleged debt.” (Doc. 35, PageID 816). Defendants counter that the account summary and Credit One account statement they sent to Rankin constituted sufficient verification because the documents identified such information as the name and address of the borrower, names and addresses of the original and current creditors, last digits of the account number, account origination and charge-off dates, balance at both the time of charge-off and the time of acquisition, and the date of last payment. (Doc. 25, PageID 229).

Defendants argue that Haddad is factually distinguishable from this matter because that was a case in which “a debt collector failed to verify a specific charge that was specifically disputed by the debtor,” and Rankin “did not make a specific dispute.” (Doc. 45, PageID 1404-05). A review of the summary judgment evidence shows that the Credit One statement Defendants sent Rankin includes a summary that details balance, fees, and interest. (Id., PageID 257). The account summary report generated by Defendants contains some additional details, such as the account origination date and charge-off date. (Id., PageID 258).

Although a debt collector may not necessarily be required to address every request contained in a consumer's request for validation, “the cases reflect that an itemized accounting detailing the transactions in an account that have led to the debt is often the best means of accomplishing that objective.” Haddad, 758 F.3d at 785. The statement here does not tell Rankin what he allegedly charged to the account, nor does it say where or when the charges occurred. This fact stands out to the Court, particularly because Defendants were in possession of itemized account statements at the time Rankin requested verification, (see Doc. 34, PageID 631), and nevertheless neglected to include those statements in their communications.

Ultimately, the question is whether Resurgent and LVNV properly verified the alleged debt to a degree that the “least sophisticated consumer” could sufficiently dispute the payment obligation. See Gionis v. Javitch, Block & Rathbone, LLP, 238 F. App'x 24, 28 (6th Cir. 2007). Viewing the evidence before the Court, that threshold was not met; Rankin is therefore entitled to summary judgment on this claim as to Resurgent and LVNV.

c. OCSPA Liability

Defendants argue that they are entitled to summary judgment on Rankin's OCSPA claim because Rankin “cannot introduce evidence showing that Defendants are ‘supplier[s]’ engaged in a ‘consumer transaction.’ ” (Doc. 25, PageID 230). However, the Ohio Supreme Court has spoken to this issue clearly, holding that debt collectors constitute “suppliers” within the meaning of the OCSPA, because they “solicit” consumers “in an effort to effect the recovery of [their] debt or the resolution of it.” Taylor, 72 N.E.3d at 600. Moreover, because the Court has already found that the obligation at issue was consumer-oriented, Defendants are incorrect that there is no “consumer transaction” here which is regulated by the OCSPA. See Midland Funding LLC v. Brent, 644 F.Supp.2d 961, 977 (N.D. Ohio 2009) (finding that “the act of collecting a debt is considered a consumer transaction for the purposes of the OCSPA.”).

Having established the viability of his OCSPA claim, Rankin alleges that he is entitled to damages for the following: (1) each of the seven collection letters Resurgent and LVNV sent after receiving his “cease requests”; (2) taking advantage of his inability to protect his own interests due to a physical or mental infirmity, in violation of Ohio Rev. Code § 1345.03(B)(1); (3) depriving him of information in their possession regarding the underlying purchases; (4) Resurgent's assignment of his debt to CC after having already received a cease request; (5) Defendants’ failure to inform CC of the cease request, or in the alternative, CC's failure to review files before commencing collections; and (6) unfair and deceptive communications following the cease request, which were not permissible under any exception. (Doc. 35, PageID 818-19).

Defendants mischaracterize the OCSPA by saying that it “has no specific requirements concerning debt collection,” and otherwise fail to meaningfully address whether any of the alleged violations are cognizable under state law. Although true that FDCPA violations are not necessarily per se violations of the OCSPA, federal violations may be actionable if they involve unfair or deceptive practices under Ohio law. See Ohio Rev. Code § 1345.02. For the reasons articulated above, the Court finds no issue of material fact as to whether Resurgent and LVNV are liable for unfair or deceptive practices under the OCSPA, including whether they engaged in practices deemed “unconscionable” by having “knowingly taken advantage of the inability of the consumer to protect the consumer's interests because of the consumer's physical or mental infirmities․” Ohio Rev. Code § 1345.03(B)(1). Thus, Rankin is entitled to summary judgment on this question.

d. Affirmative Defenses

Rankin contends that each of Defendants’ affirmative defenses fail, and therefore moves to strike them. Having already found no merit in Defendants’ arguments regarding standing, jurisdiction, and the applicable statute of limitations, the Court strikes those affirmative defenses. And separate from the fact that Defendants likely waived any reliance on arbitration by acting “inconsistently with reliance on an arbitration agreement,” Doe v. Coliseum, Inc., No. 2:20-CV-10845, 2024 WL 4369883, at *7, 2024 U.S. Dist. LEXIS 178910, at *16 (E.D. Mich. Sep. 30, 2024) (quoting Doe v. Piriano, No. 3:22-CV-560, 2024 WL 1421253, at *10, 2024 U.S. Dist. LEXIS 60394, at *25-26 (M.D. Tenn. Apr. 2, 2024)), Defendants now concede that Rankin himself is not bound by any arbitration clause. That leaves only bona fide error.

As for a bona fide error defense, a debt collector may escape liability for an FDCPA violation if it “shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. 1692k(c). “Accordingly, a defendant debt collector who wishes to raise a bona fide error defense must prove three elements: ‘(1) the violation was unintentional; (2) the violation was a result of a bona fide error; and (3) the debt collector maintained procedures reasonably adapted to avoid any such error.’ ” Verburg v. Weltman, Weinberg & Reis Co., L.P.A., 295 F.Supp.3d 771, 773 (W.D. Mich. 2018) (quoting Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469, 476-77 (6th Cir. 2008)).³

Although Defendants argue that bona fide error defenses are “available” to them, they proceed by merely asserting that Rankin “gives no analysis of those statutes and cites no statutes or case law,” and “has not demonstrated that there was a violation of law.” But “[t]he bona fide error defense is an affirmative defense on which the debt collector bears the burden of proof,” and Defendants cannot now shift that burden. Montgomery v. Shermeta, 885 F.Supp.2d 849, 857 (W.D. Mich. 2012) (emphasis added). Defendants provide absolutely no evidence “that the procedures in place [to avoid FDCPA violations] are extensive and were adhered to,” and thus fail to meet their burden. See Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 614 (6th Cir. 2009) (holding that debt collectors must present specific evidence in order to show “that the violation was unintentional or that they employ procedures meant to avoid mistakes of law that could cause FDCPA violations”).

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment, (Doc. 25), is GRANTED in part, only as to liability for Credit Control; the motion is otherwise DENIED. Rankin's motion to strike affirmative defenses and for summary judgment as to liability for Resurgent and LVNV, (Doc. 35), is GRANTED. The parties are INSTRUCTED to confer and file, within twenty-one (21) days of this order, a joint proposed calendar for briefing on the question of damages.

IT IS SO ORDERED.

FOOTNOTES

1.   Rankin does not move for summary judgment on his claims against Credit Control because “questions of fact exist as to the claims against CC.” (Doc. 35, PageID 805 n.1).

2.   The Court pauses to note that “the FDCPA permits recovery of actual damages for emotional distress, including humiliation, embarrassment, mental anguish, and emotional distress,” Whaley v. Asset Mgmt. Servs. Grp., LLC, No. 2:16-CV-375, 2016 WL 6134169, at *1, 2016 U.S. Dist. LEXIS 146202, at *2 (S.D. Ohio Oct. 21, 2016), and a plaintiff's testimony may be sufficient on its own to establish emotional distress if accompanied by a reasonable and sufficient explanation of the surrounding circumstances, Smith v. LexisNexis Screening Solutions, Inc., 837 F.3d 604, 611 (6th Cir. 2016). However, because Rankin is able to establish standing on other grounds, the Court reserves judgment as to the question of damages for emotional distress.

3.   Ohio law permits a similar bona fide error defense to OCSPA violations. See Ohio Rev. Code § 1345.11.

Michael R. Barrett, United States District Judge