Duane Montgomery v. HUNTINGTON BANK and SILVER SHADOW RECOVERY, INC.

*The Hono rable Walter Herbert Rice, Chief United States District
Judge for the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0362P (6th Cir.)
File Name: 03a0362p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DUANE MONTGOMERY,
Plaintiff-Appellant,
v.
HUNTINGTON BANK and
SILVER SHADOW RECOVERY,
INC.,
Defendants-Appellees.
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No. 01-1283
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-74323—Anna Diggs Taylor, District Judge.
Submitted: August 8, 2003
Decided and Filed: October 9, 2003
Before: BOGGS, Chief Circuit Judge; SILER, Circuit
Judge; RICE, Chief District Judge.*
2 Montgomery v. Huntington Bank, et al. No. 01-1283
_________________
COUNSEL
ON BRIEF: Daniel E. Best, WELTMAN, WEINBERG &
REIS, Troy, Michigan, Donald R. Dillon, Jr., MOFFETT &
DILLON, Birmingham, Michigan, for Appellees. Duane
Montgomery, Livonia, Michigan, pro se.
_________________
OPINION
_________________
SILER, Circuit Judge. Plaintiff Duane Montgomery,
proceeding pro se, appeals the district court’s judgment
dismissing his claims against Huntington Bank and Silver
Shadow Recovery, Inc. (“Silver Shadow”), filed under the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§ 1692 et seq. He argues that the district court erred in
finding that he was not a party in interest with respect to all
his claims, and that Huntington Bank and Silver Shadow
(collectively, the “Defendants”) were not “debt collectors,” as
that term is defined in the FDCPA. We AFFIRM.
I. BACKGROUND
In 1998, Montgomery’s mother, Helen J. Smith, financed
the purchase of a 1998 BMW by entering into a personal loan
agreement with Huntington Bank. As collateral for the loan,
Huntington Bank took a security interest in the car. As
Montgomery has admitted in his complaint, the BMW in
question was “owned by Helen Smith.” Approximately one
year later, Smith allegedly suffered an injury and was
apparently unable to work. Despite Montgomery’s repeated
contention that his mother was covered by credit disability
insurance that she had purchased as part of the personal loan
agreement to protect her in the event of a disability,
Huntington Bank sought to take possession of the BMW.

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No. 01-1283 Montgomery v. Huntington Bank, et al. 3
1In a document submitted to the district court, Montgomery stated
instead that he “picked up the 1998 BMW from his mother’s home for the
purpo se of delivering the 1998 BM W to the dealership for scheduled
maintenance on the following M onday morning.”
2Mo ntgomery also claims that when he returned home he found the
side and front doors of his house unlocked and op en.
Thus, Huntington Bank retained Silver Shadow to repossess
the vehicle pursuant to the terms of the loan agreement.
In 2000, while Montgomery was away from his home, two
employees of Silver Shadow repossessed Smith’s vehicle,
which was parked in Montgomery’s garage. Upon returning
home, Montgomery discovered his mother’s BMW was
missing and immediately filed a police report with the West
Bloomfield Township Police Department. The police report,
which was attached to the complaint, stated that Montgomery
had borrowed his mother’s BMW in order to transport some
personal items.1 The complaint averred that the vehicle
removed from his home was in fact a “borrowed BMW.” In
the process of repossessing the car, Montgomery asserts that
Huntington Bank and Silver Shadow violated numerous
Michigan laws. For instance, he insists that in order to
repossess the car, Silver Shadow’s employees opened his
locked garage door without permission, and thereby
committed an unlawful breaking and entering.2 He also
contends that Silver Shadow damaged his driveway, two of
his cars that were parked near the BMW, and various other
personal effects, including a laptop computer and a digital
camera; these latter items were also allegedly confiscated and
ultimately returned to Montgomery by Silver Shadow for a
small fee. Silver Shadow, however, would not return the
BMW to Montgomery, who offered to pay any outstanding
towing and storage fees.
Montgomery sued the Defendants in Michigan state court,
alleging various violations of state law. See Montgomery v.
Huntington Bank, 2002 WL 31296642 (Mich. Ct. App. 2002)
4 Montgomery v. Huntington Bank, et al. No. 01-1283
(per curiam) (unpublished opinion). He also filed suit in
federal court, claiming that Huntington Bank and Silver
Shadow violated various provisions of the FDCPA. The
Defendants moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, arguing that Montgomery was not a “consumer”
within the meaning of the statute. Also, the Defendants
moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing that neither Huntington
Bank nor Silver Shadow met the statutory definition of a
“debt collector” under the FDCPA. The district court granted
the motions by dismissing the complaint as to each of the
Defendants. In later ruling on Montgomery’s motion for
relief from judgment, the court determined that due to
“Plaintiff’s failure to make a claim upon which relief can be
granted, to show that he is party in interest in this suit or that
Defendants are ‘debt collectors’ under the Consumer Credit
Protection Act, the disposition of the case will not change in
anyway [sic] upon rehearing or reconsideration.”
II. STANDING
As an initial matter, both Huntington Bank and Silver
Shadow contend that Montgomery lacks standing to pursue
this litigation because he is not a “consumer” as defined by
the FDCPA. As the Defendants see it, it was Smith, not
Montgomery, who entered into the personal loan agreement
with Huntington Bank for the purchase of the BMW, and,
thus, it is Smith who is the real party in interest. Although the
Defendants’ assertion is correct for one of Montgomery’s
claims, the Defendants’ standing analysis--more precisely its
lack thereof--erroneously collapses the entire standing inquiry
under the FDCPA into whether a particular plaintiff is a
“consumer,” completely ignoring that other sections of the
FDCPA are either expressly available, or have been
interpreted to be available, to “any person” aggrieved under
the relevant statutory provision.

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No. 01-1283 Montgomery v. Huntington Bank, et al. 5
3Section 1692k(a) governs who m ay enforce the provisions of the
FDCPA. It provides that “any debt co llector who fails to comply with any
provision of this subchapter with respect to any person is liable to such
person . . . .” 15 U .S.C. § 1 692 k(a). T his enforcement pro vision “is
couched in the broadest possible language.” Wright, 22 F.3d at 649
(internal quotation marks and citation omitted).
Montgomery brought suit under three separate provisions
of the FDCPA: 15 U.S.C. §§ 1692c, 1692d and 1692e. Of
these three sections, relief is limited to “consumers” only
under § 1692c. As we have previously explained, “only a
‘consumer’ has standing to sue for violations under 15 U.S.C.
§ 1692c.” Wright v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647,
649 n.1 (6th Cir. 1994) (en banc). However, § 1692c
“appears to be the most restrictive of the FDCPA’s
provisions. The other provisions are not limited to
‘consumers,’ and thus are broader than § 1692c.” Id. (citation
omitted).
By its express terms, § 1692d provides that “[a] debt
collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.”
(Emphasis added). We have interpreted this to mean that
“any person who has been harmed by a proscribed debt
collection practice under § 1692d . . . [may] sue for damages
under § 1692k(a)(2)(A).” Wright, 22 F.3d at 649 n.1
(paraphrasing the court’s holding in Whatley v. Universal
Collection Bureau, Inc., 525 F. Supp. 1204 (N.D. Ga. 1981)).
Likewise, § 1692e states that “[a] debt collector may not use
any false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. When read in conjunction with § 1692k(a),3 this
means that “any aggrieved party may bring an action under
§ 1692e.” Wright, 22 F.3d at 649-50 (emphasis added).
Accordingly, the Defendants are mistaken to suggest that
Montgomery lacks standing to pursue his claims under
§§ 1692d and 1692e. However, the Defendants are correct
6 Montgomery v. Huntington Bank, et al. No. 01-1283
4According to M ontgo mery, he was “allegedly obligated to a pay a
deb t” because Huntington Bank faxed a letter to Silver Shadow indicating
that “the unit [i.e., the car] was possibly in the possession of a person
known to the bank as Duane Montgomery” and provided his address.
Such awareness or exchange betw een the Defendants, however, says
nothing as to whether Montgomery has, or allegedly has, a legal
obligation to pay a debt in connection with the car.
that he lacks standing under § 1692c, as he is not a consumer
for purposes of the FDCPA.
Under the FDCPA, a “consumer” is defined as “any natural
person obligated or allegedly obligated to pay any debt,” 15
U.S.C. § 1692a(3), or “the consumer’s spouse, parent (if the
consumer is a minor), guardian, executor, or administrator.”
15 U.S.C. § 1692c(d). See also Wright, 22 F.3d at 649 n.1.
In the instant case, Montgomery has admitted in his complaint
that the personal loan agreement authorized Huntington Bank
to “[t]ak[e] possession of the collateral (BMW) . . . [held] in
the name of Helen J. Smith” in the event of breach. His
complaint further states that at the time of the repossession,
the BMW was “owned by Helen Smith” and merely
“borrowed” by him. Nowhere in his complaint does he allege
that he is the legal guardian of his mother or that he is
otherwise obligated or allegedly obligated to pay any debt in
connection with the purchase of the BMW. Also, contrary to
his suggestion, the mere fact that he possessed or borrowed
his mother’s car, and that the Defendants were aware of this
possible arrangement and communicated this information to
one another, does not show that he was responsible or
allegedly responsible for paying any debt stemming from the
purchase of the automobile.4 Accordingly, he fails to meet
the statutory definition of “consumer,” and, hence, lacks
standing under § 1692c.
III. STANDARD OF REVIEW
This court reviews de novo a district court’s grant of a
motion to dismiss under Federal Rule of Civil Procedure

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No. 01-1283 Montgomery v. Huntington Bank, et al. 7
12(b)(6). Merriweather v. City of Memphis, 107 F.3d 396,
398 (6th Cir. 1997). In reviewing a motion to dismiss, we
must “construe the complaint in the light most favorable to
the plaintiff . . . and determine whether the plaintiff
undoubtedly can prove no set of facts in support of the claims
that would entitle relief.” Grindstaff v. Green, 133 F.3d 416,
421 (6th Cir. 1998) (citation omitted). In the process of
applying this standard, we must be cautious to remember that
a pro se complaint must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam). That said, we “need
not accept as true legal conclusions or unwarranted factual
inferences.” Morgan v. Church's Fried Chicken, 829 F.2d 10,
12 (6th Cir. 1987).
IV. ANALYSIS
As a matter of law, liability under §§ 1692d and 1692e can
only attach to those who meet the statutory definition of a
“debt collector.” The Defendants assert that they are not debt
collectors within the meaning of the FDCPA. Thus, as a
threshold matter, we must determine whether either of the
Defendants falls within the FDCPA’s definition of a “debt
collector.”
The FDCPA was enacted to “eliminate abusive debt
collection practices by debt collectors, to insure that those
debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote
consistent State action to protect consumers against debt
collection abuses.” 15 U.S.C. § 1692(e). The statute defines
a “debt collector” 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
8 Montgomery v. Huntington Bank, et al. No. 01-1283
5A debt is “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 ho useho ld purpo ses, whether or not such
obligation has been reduced to judgment.” 15 U.S.C. § 169 2a(5).
owed or due another.”5 15 U.S.C. § 1692a(6). Creditors who
use names other than their own--such as a third-party name--
to collect on their own debts also qualify as debt collectors
under the Act. See id. Exempted from the definition of a debt
collector, however, is
any person collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the
extent such activity . . . (ii) concerns a debt which was
originated by such person . . . [or] (iii) concerns a debt
which was not in default at the time it was obtained by
such person.
15 U.S.C. § 1692a(6)(F)(ii), (iii). Finally, a “creditor” is “any
person who offers or extends credit creating a debt or to
whom a debt is owed . . . .” 15 U.S.C. § 1692a(4). As the
Fifth Circuit has concluded, “[t]he legislative history of
section 1692a(6) indicates conclusively that a debt collector
does not include the consumer’s creditors . . . .” Perry v.
Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985)
(internal quotation marks and citation omitted); see also
Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 106
(6th Cir. 1996) (quoting Perry with approval for this
proposition).
Based on the foregoing, it is clear that under the
circumstances of this case, Huntington Bank is not a “debt
collector” subject to liability under the FDCPA. First,
Huntington Bank falls within the exemption contained in
§ 1692a(6)(F)(ii) because by retaining Silver Shadow to
repossess the BMW that served as collateral for the car loan
to Smith, it was collecting or attempting to collect on a debt
that was owed, due, or asserted to be owed or due, and that

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No. 01-1283 Montgomery v. Huntington Bank, et al. 9
originated with it. See, e.g., Thompson v. Bank One, 137 F.
Supp. 2d 721, 724 (E.D. La. 2001) (finding that “[i]n
collecting on its own debts [through use of a third party or a
subsidiary agent], [the] Bank . . . does not meet the criteria of
a ‘debt collector’ pursuant to [§ 1692a(6)(F) of] the
FDCPA”); Zsamba v. Cmty. Bank, 63 F. Supp. 2d 1294, 1300
(D. Kan. 1999) (finding that a creditor bank collecting on its
own debt falls outside the purview of the FDCPA by virtue of
§ 1692a(6)(F)(ii)); Vitale v. First Fidelity Leasing Group, 35
F. Supp. 2d 78, 81 (D. Conn.) (holding that “[a]lthough there
are allegations to suggest that [the automobile leasing and
financing company] was collecting a debt, the debt was one
owed to it and thus its activities are not covered by the
FDCPA”), aff’d, 166 F.3d 1202 (2d Cir. 1998) (unpublished
opinion). In other words, Huntington Bank was an actual,
original, consumer creditor of Montgomery’s mother
collecting its account, and, as such, was exempted from the
statutory definition of a “debt collector.” To this, the federal
courts are in agreement: A bank that is “a creditor is not a
debt collector for the purposes of the FDCPA and creditors
are not subject to the FDCPA when collecting their accounts.”
Stafford v. Cross Country Bank, 262 F. Supp. 2d 776, 794
(W.D. Ky. 2003) (citations omitted); see, e.g., Russell v.
Standard Fed. Bank, 2000 WL 1923513, at *2 (E.D. Mich.
2000); James v. Ford Motor Credit Co., 842 F. Supp. 1202,
1206-07 (D. Minn. 1994), aff’d, 47 F.3d 961 (8th Cir. 1995);
Meads v. Citicorp Credit Serv., Inc., 686 F. Supp. 330, 333
(S.D. Ga. 1988).
Furthermore, Huntington Bank also does not qualify as a
debt collector because it falls within the provision of
§ 1692a(6)(F)(iii), a “person collecting or attempting to
collect any debt owed or due . . . to the extent such activity
. . . concerns a debt which was not in default at the time it was
obtained by such person.” Under Montgomery’s version of
the facts, at the time Huntington Bank extended a personal
loan to Smith to purchase a car, and thus acquired a “debt,”
the personal loan was not “in default.” In fact, the alleged
default in this case did not occur until over a year after Smith
10 Montgomery v. Huntington Bank, et al. No. 01-1283
6Section 1692a(6) states that “[f]or the purpose of section 1692f(6)
of this title, [the term debt collector] also includes any person who uses
any instrumentality of interstate commerce or the mails in any business
the princip al purp ose o f which is the enforc ement of security interests.”
Section 16 92f(6 ) itself prohibits the fo llowing cond uct:
Taking or threatening to take any nonjudicial action to effect
dispo ssession or disa blement of property if--
(A) there is no present right to possession of the pro perty
claimed as collateral through an enforceable se curity interest;
(B) there is no present intention to take possession of the
entered into the loan agreement with Huntington Bank.
Therefore, Huntington Bank is not a “debt collector” pursuant
to § 1692a(6)(F)(iii). See Wadlington, 76 F.3d at 107 (finding
that a corporation that obtained debts before they were in
default did not fall within the definition of a debt collector).
Accordingly, the district court was correct in dismissing the
FDCPA claims against Huntington Bank.
As a repossession agency, Silver Shadow, likewise, does
not fall within the definition of a “debt collector.”
Montgomery suggests that we give meaning to the term debt
collector as it applies to Silver Shadow by looking at
Michigan statutory law. State law, however, cannot be our
reference point. Rather, to give proper meaning to a federal
statute we must be guided by the plain meaning of the statute,
canons of statutory construction, relevant legislative history,
and other indicia that shed light on the statute’s meaning,
such as judicial precedent and administrative agency
interpretations, which for purposes of the FDCPA, are
interpretations given by the Federal Trade Commission
(“FTC”). See Jordan v. Kent Recovery Serv., Inc., 731 F.
Supp. 652, 656 (D. Del. 1990). In Jordan, the court
undertook a comprehensive analysis to determine whether
those who enforce security interests, such as repossession
agencies, fall outside the ambit of the FDCPA. It held that
“an enforcer of a security interest, such as a repossession
agency, falls outside the ambit of the FDCPA for all purposes,
except for the purposes of § 1692f(6).”6 Id. at 659; see also

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No. 01-1283 Montgomery v. Huntington Bank, et al. 11
property; or
(C) the property is exempt by law from such dispossession or
disab lement.
15 U.S.C. § 16 92f(6).
Seibel v. Society Lease, Inc., 969 F. Supp. 713, 716-17 (M.D.
Fla. 1997) (concluding that except for purposes of § 1692f(6),
a defendant in the business of repossessing vehicles does not
fall within the FDCPA’s definition of debt collector). We
agree.
In Jordan, the court found that although Congress included
within the definition of “debt collectors” those who enforce
security interests, it limited this definition only to the
provisions of § 1692f(6). As the court put it, “[s]uch a
purposeful inclusion for one section of the FDCPA implies
that the term ‘debt collector’ does not include an enforcer of
a security interest for any other section of the FDCPA.” Id.
at 657. The court further indicated that when § 1692f(6) is
read in conjunction with its legislative history, the two
provide “the key to understanding the reason Congress drew
a distinction between a debt collector and an enforcer of a
security interest.” Id.
It went on to find that the FDCPA was enacted in order “to
prevent 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.” Id. at 658 (citation
omitted). In contrast, the court found that the evil sought to
be prevented by proscribing the conduct of debt collectors,
namely, “harassing attempts to collect money which the
debtor does not have due to misfortune,” is not implicated in
the situation of a repossession agency that enforces a “present
right” to a security interest because in the latter context, “an
enforcer of a security interest with a ‘present right’ to a piece
of secured property attempts to retrieve something which
another person possesses but which the holder of the security
interest still owns.” Id. It noted that “[u]nlike the debtor who
12 Montgomery v. Huntington Bank, et al. No. 01-1283
7The court also found helpful an FTC commentary that provided that
Because the FDCPA’s definition of “debt collection” includes
parties whose principal business is enforcing security interests
only for . . . [§ 169 2f(6) ] purp oses, such parties (if they do not
otherwise fall within the definition) are subject only to this
provision and not to the rest of the FDCPA.
Jordan, 731 F. Supp. at 658 (quoting Statements of General Policy or
Interpretation Staff Commentary on the Fair Debt Collection Practices
Act, 53 Fed. Reg. 50097, 50108 (1988) (published Decemb er 13, 1998)).
8W e leave for ano ther da y the question o f whether Montgo mery’s
allegations may have stated a claim under § 15 U.S.C. § 1 692 f(6). See,
e.g., Purkett v. Key Bank USA, N.A., 200 1 W L 50 305 0, at *2-*3 (N.D . Ill.
2001) (unrepo rted).
lacks the money sought, the possessor of secured property
still has control of the property. Any failure to return the
property to the rightful owner occurs not through misfortune
but through a deliberate decision by the present possessor to
avoid returning the property.” Id. It was thus the court’s
view that “the legislative history confirms that Congress
intended an enforcer of a security interest, such as a
repossession agency, to fall outside the ambit of the FDCPA
for all purposes except for the prohibitions described in
§ 1692f(6).”7 Id. (citation omitted). In sum, we likewise
conclude that except for purposes of § 1692f(6), an enforcer
of a security interest, such as a repossession agency, does not
meet the statutory definition of a debt collector under the
FDCPA.
In the case at bar, Montgomery has not alleged any
violation of § 1692f(6).8 Also, other than conclusorily stating
that Silver Shadow is a “debt collector,” he has not alleged
that Silver Shadow is a business whose “principal purpose” is
debt collection, or that it regularly collects or attempts to
collect debts owed to another. His allegations reveal only that
Silver Shadow was seeking recovery of the BMW that was
posted as collateral for the personal loan given to Smith by
Huntington Bank. In fact, Montgomery admits that Silver

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No. 01-1283 Montgomery v. Huntington Bank, et al. 13
9On appeal, Montgomery recites numerous Michigan laws that he
claims the Defendants violated in conne ction with the rep ossession of his
mother’s car. These alleged state law violations were not ruled on by the
district court, nor were they even set forth in the com plaint. Accordingly,
they are not properly before this court on ap peal. See United States v.
Ha rris, 9 F.3d 49 3, 49 9 (6th Cir.1993 ) (“As a general rule, we will not
consider issues not presented to and considered by the district court.”)
(citation omitted).
Also, he briefly suggests that the district court erred in denying his
motion for relief from judgment or for reconsideration because he did not
receive notice regarding the court’s hearing on the Defendants’ motion to
dismiss. The district court considered M ontgomery’s request and
concluded that he failed to show “a palpable defect by which the Court
was misled or that if another hearing is granted, the disposition of the case
will chang e in any way.” The motion for relief from judgment or for
reconsideration was essentially a motion pursuant to Federal Rule of Civil
Procedure 60(b). A district court’s denial of a Rule 60(b) motion is
reviewed for an abuse of discretion. Browder v. D irector, Dep t. of
Corrections, 434 U.S. 257, 263 n.7 (1978). Here, M ontgomery lacks
standing with regard to his § 1692c claim, and the Defendants do not meet
the statutory definition of debt collectors with regard to his §§ 1692d and
169 2e claims. Accord ingly, as a ma tter of law, a new hearing would not
have changed the disposition of the case. The district co urt, therefore, did
not abuse its discretion in denying the motion for rehearing or
reconsideration.
Shadow was simply acting as a repossession agency when it
seized his mother’s BMW. As such, Silver Shadow does not
qualify as a debt collector under §§ 1692d and § 1692e, the
only two claims remaining. Accordingly, the district court
did not err in dismissing the complaint against Silver Shadow
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.9
AFFIRMED.

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