Norma Lee v. Javitch , Block & Rathbone Llp

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0102p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
NORMA LEE ,
Plaintiff-Appellee,
v.
J AVITCH , BLOCK & RATHBONE LLP,
Defendant-Appellant,
UNITED STATES OF AMERICA ,
Intervenor.
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No. 08-4485
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00585—Sandra S. Beckwith, District Judge.
Argued: October 15, 2009
Decided and Filed: April 13, 2010
Before: MARTIN, ROGERS, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael D. Slodov, JAVITCH, BLOCK & RATHBONE LLP, Cleveland,
Ohio, for Appellant. Stephen R. Felson, LAW OFFICE, Cincinnati, Ohio, for Appellee.
Howard S. Scher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Intervenor. ON BRIEF: Michael D. Slodov, JAVITCH, BLOCK & RATHBONE
LLP, Cleveland, Ohio, for Appellant. Stephen R. Felson, LAW OFFICE, Cincinnati,
Ohio, Steven C. Shane, STEVEN C. SHANE, ATTORNEY AT LAW, Bellevue,
Kentucky, for Appellee. Howard S. Scher, Michael S. Raab, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Javitch, Block & Rathbone (JB&R) represented a
client who attempted to collect a credit card debt from Norma Lee. After obtaining a
1

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default judgment in state court against Lee, JB&R attorney Victor Javitch filed for a
non-wage garnishment of Lee’s bank account. To do so, Javitch signed and filed a
required affidavit stating that he had a “reasonable basis to believe that [Lee’s Bank]
may have property, other than personal earnings, of [Lee] that is not exempt under the
laws of this state or the United States.” The state court initially garnished the money
from Lee’s bank accounts, but the court later returned the money after Lee proved that
the account contained only Social Security disability payments, which are exempt funds.
Lee then sued JB&R, contending that Javitch did not have the reasonable basis claimed
in the affidavit, and thus that his signing and filing of the affidavit violated the Fair Debt
Collection Practices Act and the Ohio Consumer Sales Practices Act. Because Lee did
not establish at trial that reasonableness demanded any additional investigation of Lee’s
bank accounts, she did not prove that Javitch’s affidavit was false. Lee is therefore not
entitled to relief.
JB&R represented Midland Funding, LLC (Midland) in its attempts to collect a
$2,795.75 credit card debt originally owed on an Aspire Visa. In February, 2006,
Midland provided information to JB&R indicating that the debt was owed by Norma Lee
and that Lee resided on Birchridge Drive in Cincinnati, Ohio. On February 16, JB&R
sent a validation notice as required by 15 U.S.C. § 1692g(a) to the Birchridge Drive
address, but JB&R did not receive any response. Before February 16, Lee had moved
from Birchridge Drive to Landis Lane, but JB&R did not have notice of her move. In
February and early March, JB&R Recovery Specialist Frank Stefanelli assessed whether
the debt was collectible. Following JB&R procedures, Stefanelli determined the
following: First, Lee was below retirement age, so it was less likely that she was
receiving Social Security retirement payments. Second, the zip code containing the
Birchridge Drive address had a median income of $43,588, so it was more likely that Lee
would be capable of repaying the debt. Third, Lee was not listed as a property owner
in the county containing the Birchridge Drive address. Fourth, Lee’s credit report listed
no medical debts, which might have been an indication that Lee was receiving disability
payments, and the report neither indicated that the Midland debt was disputed nor
contained any suggestions that Lee had been the victim of identity theft. Additionally,

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1The statute has since been amended to omit the “reasonable basis” requirement. See Ohio Rev.
Code § 2716.11.
JB&R called Lee multiple times during this period, but she neither answered the phone
nor returned JB&R’s voice mails. Lee testified at trial that she had never received any
of these calls. Stefanelli concluded that this information indicated that the debt was
collectible, and on March 8, he recommended to his superiors that JB&R file a
collections suit against Lee. JB&R filed suit against Lee on April 11, 2006, in Ohio
municipal court and obtained a default judgment for $2,795.75. On July 12, JB&R filed
for a non-wage garnishment of Lee’s bank account in the same Ohio municipal court.
Attached to the filing was an affidavit, signed by JB&R attorney Victor Javitch, which
stated,
The affiant has a reasonable basis to believe that the person named in the
affidavit as the garnishee may have property, other than personal
earnings, of the judgment debtor that is not exempt under the laws of this
state or the United States. The property is described as money, property
or credits.
This affidavit was required by the then-current version of Ohio Revised Code § 2716.11
to file for a non-wage garnishment.1 Javitch had not conducted any investigation into
Lee’s account before signing the affidavit; instead, he had relied on the investigation
done by JB&R staff. Javitch testified at trial that on some days he might sign as many
as thirty or forty non-wage garnishment affidavits of this type. On July 17, the state
court issued an order of garnishment to Lee’s bank. The bank debited a total of $493.22
from Lee’s checking and savings accounts and remitted that amount to the court on July
18.
Lee was notified of the garnishment by letter from her bank. She did not
recognize the name of the creditor, Midland, and she was surprised because she had not
received any written notice of the debt at the Landis Lane address. At the time, Lee’s
only source of income was Social Security disability payments, which she received
because complications from breast cancer surgery had greatly reduced the functionality
of one of her arms. The garnishment of all of the money in her bank accounts resulted

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in the bouncing of some of Lee’s checks. Lee testified at trial that she had been assessed
$195.26 in fees because of the bounced checks. Lee’s inability to access her bank
accounts also increased her stress levels and adversely affected her health by, among
other things, exacerbating her diabetes and leading to a bladder infection. Lee did not
have access to any funds until August 10, when the money from her bank accounts was
restored after the state court determined that all of the money in her accounts had been
received as Social Security disability payments.
Lee sued JB&R in federal court on September 5, 2006, alleging that JB&R had
violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e & 1692f,
and the Ohio Consumer Sales Practices Act (OCSPA), Ohio Rev. Code §§ 1345.02 &
1345.03, by filing an affidavit that was false. Specifically, Lee alleged that Javitch did
not have the reasonable basis alleged in his affidavit when he signed that document.
After denying cross-motions for summary judgment, the district court held a five-day
jury trial between January 15 and 24, 2008. A jury determined that, when Javitch signed
the affidavit, he did not have “a reasonable basis to believe that Plaintiff’s bank account
may have contained funds, other than personal earnings, that were not legally exempted
from garnishment”; that the signing of the affidavit therefore violated the FDCPA and
the OSCPA; and that Lee was entitled to $49,603 in damages. The district court denied
JB&R’s renewed motion for judgment as a matter of law. Post-trial motions reduced the
damage award to $35,595.26, but the district court also awarded Lee attorneys’ fees of
$125,315.30. JB&R now appeals, arguing primarily that the affidavit was true and thus
that Lee is not entitled to relief under either the FDCPA or the OSCPA.
In the particular circumstances of this case, the dispositive question is whether,
as a matter of Ohio law, Javitch had a reasonable basis to believe that Lee’s bank
account may have contained funds, other than personal earnings, that were not legally
exempted from garnishment. Indeed, under the district court’s instructions to the jury,

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2This is because JB&R did not violate either the FDCPA or the OSCPA if the affidavit signed
by Javitch was true, and the contested part of the affidavit stated that Javitch had a “reasonable basis to
believe that [Lee’s Bank] may have property, other than personal earnings, of [Lee] that is not exempt
under the laws of this state or the United States.” JB&R cannot be held liable for filing an affidavit with
language required by Ohio law, so long as the affidavit was not false. Such a truthful affidavit is neither
a “false, deceptive, or misleading representation” in violation of 15 U.S.C. § 1692e nor an “unfair or
unconscionable means” in violation of 15 U.S.C. § 1692f. Filing a truthful affidavit is similarly neither
an “unfair or deceptive act or practice” in violation of Ohio Rev. Code § 1345.02 nor an “unconscionable
act” in violation of Ohio Rev. Code § 1345.03.
3The testimony at trial indicated that there were only four ways to collect information relevant
to the contents of a debtor’s bank account. JB&R attempted to use three of these ways: talking to the
debtor, examining public records, and ordering a credit report. At trial, the discussion of the fourth
method—post-judgment discovery—focused on subpoenaing bank records, and this opinion mirrors that
focus. Trial testimony also stated that discovery could be served directly to the debtor, but that this form
of discovery was ineffective because debtors typically did not respond. JB&R’s expert testified that 1-2%
of all debtors responded to post-judgment discovery and that the response rate was even lower among those
debtors who, like Lee, had not returned phone calls. The expert’s firm had abandoned the service of
discovery directly upon debtors because of these low response rates.
4At oral argument, Lee also suggested that the jury may have concluded that JB&R never called
Lee, and thus that their investigation was unreasonable on this ground as well. The trial testimony does
not support this inference. JB&R introduced business records showing that they had placed more than fifty
calls to a number Lee admitted was her phone number during the relevant period. JB&R records also
if Javitch signed the affidavit with a reasonable basis to believe that Lee’s account may
have contained nonexempt funds, judgment would be entirely for the defendants.2
We are loath to overturn a jury verdict regarding whether conduct is reasonable,
and will reverse such a verdict “only if in viewing the evidence in the light most
favorable to the non-moving party, . . . reasonable minds could come to but one
conclusion, in favor of the moving party.” Ford v. County of Grand Traverse, 535 F.3d
483, 494 (6th Cir. 2008) (quoting Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003)).
Even applying that standard, however, reasonable minds could only come to the
conclusion that Javitch had a reasonable basis to believe that Lee’s bank account may
have contained funds, other than personal earnings, that were not legally exempted from
garnishment. The standard imposed by the former Ohio Revised Code § 2716.11
requires only that the signing attorney conduct a reasonable investigation. Any
conclusion that Javitch’s investigation was unreasonable therefore requires a conclusion
that additional investigation was possible and, under the circumstances, compelled by
that reasonableness standard.3 Lee argues on appeal, as her counsel argued before the
jury, only one additional investigative step that Javitch could have taken: subpoenaing
Lee’s bank records from her bank.4 At trial, there was conflicting testimony regarding

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showed that the firm had left Lee a number of voice mail messages. Lee’s response was not to dispute that
the calls had taken place, but she instead testified that she had not received the calls and that she had not
checked her voice mailbox.
whether subpoenaing Lee’s bank records would have been legally possible. Lee called
no witnesses on this question. JB&R expert Randy Slovin testified that, while he was
not certain, he believed that it would be possible to subpoena bank records prior to a
non-wage garnishment. He testified that it was unclear under current Ohio case law
whether such subpoenas were legally allowable, and he noted that many law firms
believed that such subpoenas were not allowable. Slovin also stated that, in his twenty-
four years of practicing law, he had never heard anyone even suggest using a subpoena
to obtain bank records in the context of filing for a non-wage garnishment. Javitch
testified at trial that he did not believe that JB&R had the legal ability to subpoena Lee’s
bank records. Javitch, who was at the time of trial in his forty-sixth year of practicing
law, also testified that he had never seen a subpoena issued to a bank prior to a non-wage
garnishment, nor had he heard anyone even suggest that such a subpoena was necessary
before a non-wage garnishment could be issued. JB&R attorney James Rathbone stated
that, in his twenty-eight years of legal experience, he had never heard anyone suggest
that subpoenaing bank records was necessary before filing for a non-wage garnishment
order.
Given the unanimous testimony that issuing a bank subpoena in the context of
filing for a non-wage garnishment was of uncertain legality and the absence of evidence
that it had ever been done previously, reasonableness did not demand that Javitch issue
such a subpoena before signing the affidavit. Ohio tort law defines negligence as the
failure to conduct oneself as would “a reasonably prudent man in like circumstances;”
and excludes from the definition of negligence “failing to take extraordinary measures
which hindsight demonstrates would have been helpful.” See Bender v. First Church of
the Nazarene, 571 N.E.2d 475, 477 (Ohio Ct. App. 1989) (citation omitted).
Reasonableness thus demands ordinary rather than extraordinary efforts, and establishing
a reasonable basis to believe a given fact does not demand unprecedented investigation
in a common situation. Similar standards prevail under Federal Rule of Civil

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5Silverman concerned Federal Rule of Bankruptcy Procedure 9011. Silverman, 98 F.3d at 930.
Because of the similarity of Bankruptcy Procedure Rule 9011 and Civil Procedure Rule 11, Silverman
applied this circuit’s Rule 11 jurisprudence. Id.
Procedure 11, which contains a reasonable inquiry requirement analogous to the
“reasonable basis” requirement imposed by the former Ohio Revised Code § 2716.11.
This court has held that “[t]he determination of whether an attorney conducted
‘reasonable inquiry’ is judged by objective norms of what reasonable attorneys would
have done.” Silverman v. Mut. Trust Life Ins. Co. (In re Big Rapids Mall Assocs.), 98
F.3d 926, 930 (6th Cir. 1996).5 The evidence does not support a conclusion that
reasonable attorneys would have subpoenaed Lee’s bank records, as there was no
evidence that any attorney, reasonable or unreasonable, had ever issued a subpoena in
an analogous situation. Thus, because Lee did not establish that a reasonable attorney
would have conducted additional investigation, JB&R was entitled to judgment as a
matter of law.
This conclusion is consistent with the text of former Ohio Revised Code
§ 2716.11. That provision required only that the affiant have “a reasonable basis to
believe” that Lee’s bank “may have” nonexempt property of Lee’s. The “may have”
language indicates that this requirement was not meant to require that the signing
attorney have specific evidence about whether the property at issue was exempt with
respect to every exemption provided by Ohio or federal law. Rather, the requirement
must be that the attorney seeking the garnishment must investigate reasonably available
information and ensure that none of that information includes a clear suggestion that the
debtor’s bank account contains exempt funds. This was the general procedure followed
by JB&R, and the only question presented by Lee was whether subpoenaed bank records
fell within the category of reasonably available information. In light of the testimony
that such subpoenas were not clearly legal, and absent any testimony that anyone had
ever issued such a subpoena in a similar circumstance, reasonableness did not demand
that Javitch subpoena Lee’s records before signing the affidavit. The only reasonable
conclusion is that the affidavit was true.

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For these reasons, we REVERSE the judgment of the district court and
REMAND this case for further proceedings consistent with this opinion.

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