On March 12, 2015, the Sixth Circuit Court of Appeals reversed a lower court’s decision to grant a motion for judgment on the pleadings in a putative class action alleging that a collection law firm violated the Fair Debt Collection Practices Act (FDCPA) by seeking attorneys’ fees from a consumer who defaulted on a credit card account. The decision turned on the issue of which state law governed the credit card dispute – Utah or Ohio.

Ohio, the plaintiff’s residence, does not enforce provisions for the collection of attorney’s fees in consumer contracts, but Utah, the state designated in the credit card agreement’s choice-of-law clause, does. The plaintiff claimed that Ohio law governed, barring the fees, and that the defendants’ state court complaint was therefore a false or misleading representation or an unfair practice in violation of the FDCPA.  He argued that the Utah choice-of-law provision should be disregarded because it was unilaterally chosen by the bank.

The Sixth Circuit ultimately ruled in the plaintiff’s favor, finding that the record did not contain enough evidence to determine which state would have a greater material interest in the determination of the issue. The Court explained:

A complete analysis of these factors would have revealed just how little information was in the record.  Again, the ultimate creation of the contract plausibly occurred in Ohio, and it is not clear where the performance of the contract occurred. It is plausible that many of the relevant contacts will relate more closely to Ohio, such that Ohio law would apply absent the choice-of-law provision, but any certainty on the issue would be premature.

On remand, the Sixth Circuit advised the lower court to either request that Wise provide answers to many of the unresolved questions about the dispute or conduct limited discovery into the contacts of each state to the credit card agreement.

The opinion in Wise v. Zwicker & Associates PC, et al., No. 14-3278 can be found here.

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Photo of H. Scott Kelly H. Scott Kelly

Scott is a consumer data and privacy specialist. He regularly defends against data breach lawsuits and class action claims asserted under federal and state consumer-protection statutes (FCRA, FDCPA, TCPA, UCC, UDAAP, RICO). Scott represents companies on an array of data privacy issues, including

Scott is a consumer data and privacy specialist. He regularly defends against data breach lawsuits and class action claims asserted under federal and state consumer-protection statutes (FCRA, FDCPA, TCPA, UCC, UDAAP, RICO). Scott represents companies on an array of data privacy issues, including background screening, consumer reporting, data breaches, ransomware attacks, and related regulatory investigations by the Consumer Financial Protection Bureau (CFPB), Federal Trade Commission (FTC), and state attorneys general.

Photo of Michael E. Lacy Michael E. Lacy

Michael heads the firm’s Consumer Financial Services practice, and handles class actions and high-stakes consumer litigation on a nationwide basis. He represents banks, mortgage servicers, debt buyers and collectors, and lenders against claims under consumer protection statutes, including the FCRA, TCPA, RESPA, RICO,

Michael heads the firm’s Consumer Financial Services practice, and handles class actions and high-stakes consumer litigation on a nationwide basis. He represents banks, mortgage servicers, debt buyers and collectors, and lenders against claims under consumer protection statutes, including the FCRA, TCPA, RESPA, RICO, and state UDAP laws. He has significant experience litigating and trying corporate governance disputes, including shareholder derivative claims, corporate dissolution cases, and corporate divorce matters. Michael also represents public utility companies in litigation and regulatory matters, including condemnation and land use cases.