Am I subject to the Fair Debt Collection Practices Act?

page 1 of 2mcglinchey.comThe Bullet Point: Ohio Commercial Law Bulletin Am I subject to the Fair Debt Collection Practices Act?Volume 4, Issue 15August 6, 2020Jim Sandy and Stephanie Hand-CannaneCivil Liability for Criminal ActBuddenberg v. Weisdack, Slip Opinion No. 2020-Ohio-3832 In this case, the Ohio Supreme Court held that a criminal conviction is not a condition precedent to filing a claim under R.C. 2307.60 for a civil cause of action based on injuries sustained due to a criminal act.• The Bullet Point: Pursuant to R.C. 2307.60(A)(1), “anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law * * *.” Previously, there was a split amongst courts as to whether a person had to have been convicted of a criminal act before civil liability was possible under this statute. In analyzing R.C. 2307.60, the Court noted that the fact a person commits criminal actions that may subject the person to prosecution in no way establishes that they will be prosecuted. Moreover, being subjected to prosecution does not mean that the person will in fact be convicted. As succinctly summarized by the Court, the word “conviction” is noticeably absent from R.C. 2307.06(A)(1). Therefore, the Court construed the statute as written according to its plain language, and held that R.C. 2307.60 does not require a criminal conviction as a prerequisite for civil liability. “Debt” under the FDCPANecak v. Select Portfolio Servicing, Inc., S.D.Ohio No. 2:19-cv-3997, 2020 U.S. Dist. LEXIS 133510 (July 27, 2020)In this case, the District Court for the Southern District of Ohio granted a loan servicer’s motion to dismiss, finding that its failed attempt to have its fees taxed as costs did not constitute an attempt to collect a debt in violation of the Fair Debt Collection Practices Act (FDCPA).• The Bullet Point: Under the FDCPA, a “debt collector” means “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. § 1692(a)(6). Fundamentally, a debt collector under the bullet point: ohio commercial law bulletin page 2 of 2mcglinchey.comthe FDCPA is a person attempting to collect debts owed or due to another. As such, a person attempting to collect its own fees or debts it is owed is not a debt collector. Further, under the FDCPA, a “debt” is defined as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes…” 15 U.S.C. § 1692(a)(5). In other words, the FDCPA covers debts that arise out of consensual consumer transactions where parties negotiate or contract for consumer-related goods or services. Conversely, civil litigation is not considered a consumer transaction for purposes of the FDCPA. The court explained that while documents filed in a proceeding to collect on a consumer debt are subject to the FDCPA, an obligation to pay money that arises out of a civil liability is not. Simply put, the issue turns on whether or not the subject proceeding is to collect on a debt. If not, a prevailing party’s motion to the court to collect its own associated costs incurred from litigation is not acting as a “debt collector” and civil litigation costs are not a “debt” under the FDCPA.Foreign SubpoenaByrd v. Lindsay Corp., 9th Dist. Summit No. 29491, 2020-Ohio-3870In this appeal, the Ninth Appellate District affirmed the trial court’s decision, agreeing that the documents requested under the foreign subpoena duces tecum were not relevant to the underlying litigation. • The Bullet Point: R.C. 2319.09 codifies the Uniform Interstate Depositions and Discovery Act (UIDDA) and describes the procedures for an Ohio court to issue a subpoena for discovery originating in a foreign jurisdiction. Pursuant to the UIDDA, a party seeking discovery in Ohio must submit a foreign subpoena to an Ohio clerk of court, who then issues a subpoena for service upon the person to which the foreign subpoena is directed. R.C. 2319.09(C)(2). Although originating in a non-Ohio jurisdiction, the Ohio Rules of Civil Procedure apply to subpoenas issued under the UIDDA. And under the UIDDA, a party from whom discovery is sought may file an application to the court for a protective order or to enforce, quash, or modify a subpoena. R.C. 2319.09(E)/(F). contactJames Sandymember > cleveland T (216) 378-9911 jsandy@mcglinchey.comStephanie Hand-Cannaneassociate > cleveland T (216) 378-4989shandcannane@mcglinchey.comThis material may be considered advertising under certain rules of professional conduct. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other attorneys. McGlinchey Stafford PLLC in AL, FL, LA, MA, MS, NY, OH, TN, TX, and DC. McGlinchey Stafford LLP in CA.[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Buddenberg v. Weisdack, Slip Opinion No. 2020-Ohio-3832.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2020-OHIO-3832 BUDDENBERG v. WEISDACK ET AL. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Buddenberg v. Weisdack, Slip Opinion No. 2020-Ohio-3832.] Civil actions—Civil cause of action pursuant to R.C. 2307.60 for injuries based on a criminal act does not require an underlying criminal conviction—Criminal conviction for intimidation is not a condition precedent to civil claim pursuant to R.C. 2921.03(C). (No. 2018-1209—Submitted November 13, 2019—Decided July 29, 2020.) ON ORDER from the United States District Court for the Northern District of Ohio, Eastern Division, Certifying Questions of State Law, No. 1:18-cv-00522-DAP. _____________________ O’CONNOR, C.J. {¶ 1} This case is before us on the certification of state-law questions by the United States District Court for the Northern District of Ohio, Eastern Division. The federal court asks that we answer the following questions: SUPREME COURT OF OHIO 21. Does [R.C.] 2307.60’s creation of a civil cause of action for injuries based on a “criminal act” require an underlying criminal conviction? 2. Is a criminal conviction a condition precedent to a civil claim pursuant to [R.C.] 2921.03? {¶ 2} We answer the certified state-law questions in the negative. Relevant Background {¶ 3} The federal court provided the following facts and allegations from which the questions of law arise. Respondent, Rebecca Buddenberg, is the plaintiff in the underlying action filed in the United States District Court for the Northern District of Ohio, Eastern Division. She brought a civil-rights action pursuant to federal and Ohio anti-discrimination laws against the petitioners here, including: her former employer, the Geauga County Health District; her former supervisor, Geauga County Health Commissioner Robert K. Weisdack; the Geauga County Health District’s attorney, James Budzik; and certain members of the Geauga County Board of Health. {¶ 4} Relevant here, Buddenberg’s complaint asserts claims for civil liability pursuant to R.C. 2307.60 for alleged violations of three criminal statutes: R.C. 2921.05 (retaliation); R.C. 2921.03 (intimidation); and R.C. 2921.45 (interfering with civil rights). The relevant defendants moved to dismiss those claims, arguing that Buddenberg cannot state a claim for relief because none of the defendants were convicted of the underlying criminal offenses. The federal court denied the motions to dismiss without prejudice, “finding no clear authority on whether a conviction is a condition precedent to civil liability pursuant to [R.C.] 2307.60.” January Term, 2020 3The State Law Questions {¶ 5} Following the denial of their motion to dismiss, the petitioners moved to certify state-law questions to this court. The federal court certified the following questions: 1. Does [R.C.] 2307.60’s creation of a civil cause of action for injuries based on a “criminal act” require an underlying criminal conviction? 2. Is a criminal conviction a condition precedent to a civil claim pursuant to [R.C.] 2921.03? We agreed to answer the questions. 153 Ohio St.3d 1502, 2018-Ohio-4288, 109 N.E.3d 1259. Analysis Does R.C. 2307.60 require an underlying criminal conviction? {¶ 6} In its decision certifying the questions, the federal court noted that this court recently held that R.C. 2307.60 “independently authorizes a civil action for damages caused by criminal acts.” See Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203. The federal court recognized, however, that Jacobson left unanswered what a plaintiff must do to prove a claim under R.C. 2307.60. We are now presented the opportunity to answer whether a plaintiff must prove the existence of an underlying criminal conviction to support his or her claim for civil liability under R.C. 2307.60. {¶ 7} R.C. 2307.60(A)(1) states: Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil SUPREME COURT OF OHIO 4action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or...