Barnes v. Capital One Financial Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

VALERIE Y. BARNES Case No. 1:23-cv-182

Plaintiff, McFarland, J.

Bowman, M.J.

v.

CAPITAL ONE FINANCIAL

CORPORATION, ET AL.,

Defendants

REPORT AND RECOMMENDATION

Proceeding pro se, Plaintiff Valerie Barnes filed suit on March 31, 2023 against

three Defendants: Capital One Financial Corporation (“Capital One”),1 Weltman

Weinberg & Reis Co., LPA (“Weltman”), and Jill A. Keck (“Keck”) based on alleged

violations of the Fair Debt Collection Practices Act and two federal criminal statutes. In

lieu of an answer, Capital One moved to dismiss the complaint for failure to state a claim.

(Doc. 14). Defendants Weltman and Keck similarly moved to dismiss the complaint under

Rule 12(b)(6). (See Docs. 16, 18). The pending motions have been referred to the

undersigned magistrate judge. (Doc. 7). For the reasons below, both motions to dismiss

should be granted.

I. Standard of Review Under 12(b)(6)

The standard of review applicable to a Rule 12(b)(6) motion to dismiss requires

this Court to “construe the complaint in the light most favorable to the nonmoving party,

1Defendant states that Plaintiff has misidentified it as “Capital One Financial Corporation.” It identifies itself

as “Capital One, N.A.” (Doc. 14, PageID 66). In response, Plaintiff asserts that “Capital One Financial

Corporation is a financial institution in which Capital One Bank (USA), National Association is a primary

subsidiary.” (Doc.19, PageID 221). She suggests that together they are a single entity, “Capital One.” (Id.)

accept the well-pled factual allegations as true, and determine whether the moving party

is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Illinois Union

Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). While such determination rests primarily upon

the allegations of the complaint, “matters of public record, orders, items appearing in the

record of the case, and exhibits attached to the complaint, also may be taken into

account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v.

NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)) (emphasis omitted).

Although the pleading standard does not require “‘detailed factual allegations,’ ...

[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements

of a cause of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if

it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting

Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a

claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter ... to ‘state

a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).

Facial plausibility is established “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. “The plausibility of an inference depends on a host of considerations,

including common sense and the strength of competing explanations for the defendant's

conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court holds pro

se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff's Dep't., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir.

April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “‘courts should not have to guess at the nature of the claim

asserted.’” Frengler v. Gen. Motors, 482 F. App'x 975, 976–77 (6th Cir. 2012) (quoting

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). In other words, the court “need not

accept the plaintiff's legal conclusions or unwarranted factual inferences as true.”

Commercial Money Ctr., 508 F.3d at 336.

II. Plaintiff’s Complaint

Plaintiff alleges the existence of federal question jurisdiction under 28 U.S.C.

§1331 based on the Defendants’ alleged violations of several provisions of the Fair Debt

Collection Practices Act (“FDCPA”) and two federal criminal statutes. (Doc. 1, Complaint,

PageID 3). Plaintiff alleges that she held a consumer credit card account with Capital

One. She alleges that between July 26 and August 9, 2021, she sent a “notice of dispute,

debt validation and cease and desist” to Defendant Capital One regarding the debt owed

on that account. (Doc. 1, ¶¶ 1, 3, 5-6, Ex. 1, 2). In response, Capital One marked her

account “in a cease and desist status” but allegedly did not validate the disputed debt.

(Id., ¶4). Instead, Capital One changed or assigned her a new account number, “charge[d]

off, and then closed” the account. (Id., ¶5). Plaintiff alleges that Capital One subsequently

transferred her information to Defendant Weltman for debt collection. (Id., ¶6).

In March of 2022, Defendant Weltman, through Defendant Keck, an attorney

employed by Weltman, filed a civil complaint against Plaintiff in Hamilton County

Municipal Court. Plaintiff describes the state court complaint as an “unauthorized” action

filed “on behalf of” Capital One for the alleged credit card debt of $13,353.15. (Id., ¶¶7-

8). Without elaboration, she asserts that Weltman falsely represented the “character,

amount, or legal status” of her debt and functioned as a debt collector. (Id., ¶9).

The state court granted summary judgment against Ms. Barnes. (Id., ¶¶9-11).

State court records reflect that the Municipal Court also denied her motion for relief from

judgment on December 22, 2022. The state court explained:

[Barnes] argues that because the debt was charged off, she does not owe

the purported debt. The accounting procedure of charging off debt does not

absolve the defendant [Barnes] to pay the $13,365.15. [Barnes] has failed

to demonstrate that she is entitled to relief under Civ. R. 60(B).

(Doc. 18-8, PageID 220). After obtaining judgment, Defendant Weltman proceeded to

garnish Plaintiff’s wages and filed “a lien which may encumber real property Plaintiff has

interest in.” (Doc. 1 at ¶¶12-13; see also id., Ex. 4 and 5). Plaintiff asserts that all three

Defendants’ actions, collectively, violated numerous provisions of the FDCPA. Id., ¶ 14.

In addition, Plaintiff asserts that Defendants violated 18 U.S.C. § 1001 and 18 U.S.C. §

1028(a).

Along with the allegations of Plaintiff’s complaint, this Court takes judicial notice of

the publicly filed documents in the underlying state court debt collection case filed in

Hamilton County Municipal Court. See Capital One Bank USA N.A. v. Barns, Case No.

22CV04471. Both Capital One and Defendants Weltman and Keck have attached multiple

documents from that underlying state court case as exhibits to their respective motions.

(See Doc. 14, Ex. 1-2, Doc. 16, Ex. 1-8)

III. Analysis

No matter how liberally construed, Plaintiff’s complaint fails to state a claim against

any of the Defendants.

A. Capital One is not a Debt Collector Under the FDCPA

Capital One’s motion to dismiss persuasively argues that it is entitled to dismissal

of all FDCPA claims because it is not a “debt collector” subject to the provisions of that

Act. “The FDCPA aims ‘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.’” Cagayat v. United Collection Bureau,

Inc, 952 F.3d 749, 753 (6th Cir. 2020) (quoting 15 U.S.C. §1692(e). §§ 1692(a)-(d)). “To

state a claim under the FDCPA, a plaintiff must show that a defendant violated one of the

substantive provisions of the FDCPA while engaging in debt collection activity.” Clark v.

Lender Processing Services, 562 Fed. Appx. 460, 465-66 (6th Cir. 2014) (additional

citation omitted).

Capital One asserts that it is a “creditor” rather than a “debt collector” under the

FDCPA. A debt collector is defined under the FDCPA 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 owed or due another.” 15 U.S.C.

§1692(a)(6). However, the definition does not include the consumer’s creditors.

Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th Cir. 2003) (quoting Perry v.

Stewart Title Co., 765 F.2d 1197, 1209 (5th Cir. 1985)).

A financial institution like Capital One that issues a credit card on which it seeks to

collect payment is a “creditor” and not a “debt collector” under the FDCPA.

“The term ‘debt collector’ has a particular meaning… it refers only to

persons attempting to collect debts due ‘another.’” MacDermid v. Discover

Fin. Servs., 488 F.3d 721, 735 (6th Cir. 2007); see also Stafford v. Cross

Country Bank, 262 F.Supp.2d 776, 794 (W.D. Ky 2003) (considering it “well-

settled” that “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”).

“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.” Montgomery v. Huntington

Bank, 346 F.3d 693, 699 (6th Cir. 2003) (internal quotation marks omitted).

See also MacDermid, 488 F.3d at 735 (credit card company is not a “debt

collector” for purposes of FDCPA as it is the “very party to whom the debt

is due”); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 411 (6th Cir. 1997)

(American Express not a “debt collector” for purposes of the FDCPA).

Zehala v. American Exp., No. 2:10-cv-848, 2011 WL 4484297, at *3 (S.D. Ohio Sept. 26,

2011); accord, Cooper v. Pressler & Pressler, LLP, 912 F. Supp. 2d 178, 185 (D.N.J.

2012) (dismissing Capital One because it is a creditor not subject to the FDCPA). In

addition, to the extent that Plaintiff is attempting to hold Capital One liable under the

FDCPA for the collection efforts of either Weltman or Keck, her claims fail because the

FDCPA does not allow claims for vicarious liability against those who are not a “debt

collector.” See Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir. 1996);

Haven Tobias v. Eagle, 127 F. Supp. 2d 889, 898 (S.D. Ohio 2001).

In response to Capital One’s motion, Plaintiff offers several confusing and

unpersuasive arguments. As best the undersigned can discern, Plaintiff argues first that

she herself “is the original creditor” on her credit card account, by virtue of her signature

“on the application used for the transaction.” (Doc. 19, PageID 223).2 She cites no

authority for this argument, which the undersigned rejects as nonsensical.

Plaintiff’s second argument suggests that under her interpretation of “federal law”

Defendant Capital One had no legal authority to issue her a credit card in the first

instance. (Id.) Based on that alleged lack of authority, she implies that the credit card

agreement was void ab initio and that Capital One cannot be her creditor. (See id.,

2Plaintiff made similar claims in state court. See, e.g., Doc. 16-5, PageID 143, stating she “is not bound to

the terms in the alleged contract because the defendant, a natural person, is the original creditor and

extended credit to Capital One, a corporation.” The state court also rejected Plaintiff’s arguments.

“Plaintiff was deceived to believe that …Capital One extended credit without the power to

do so pursuant to 12 USC 1431.”) But the banking statute that Plaintiff relies on, 12

U.S.C. § 1431, does not support her unusual interpretation of federal law.

B. No Private Right to Enforce Criminal Statutes

Building on her preceding argument that Capital One lacked legal authority to issue

her a credit card, Plaintiff accuses Capital One of violating 18 U.S.C. §1005, a federal

statute that criminalizes making false entries in the records of a bank with the intent to

defraud. Plaintiff’s complaint contains no factual allegations that hint at the relevance of

Section 1005. But even if she had included such allegations, her claims would be

dismissed because no private right of action exists for an alleged violation of a federal

criminal statute. See, e.g., Am. Postal Workers Union, ALF CIO, Detroit Loc. v. Indep.

Postal Sys. of Am., 481 F.2d 90, 93 (6th Cir. 1973) (“a private right of action is not

maintainable under a criminal statute”); Byrd v. JPMorgan Chase Bank N.A., No. 2:21-

cv-02447, 2022 WL 4368129, at *3 (S.D. Ohio Sept. 21, 2022) (18 U.S.C. § 1005 does

not provide a private right of action). Plaintiff’s contention that Defendants also have

violated 18 U.S.C. §§ 1001 and 1028(a) fails for the same reasons. See Airtrans, Inc. v.

Mead, 389 F.3d 594, 597 n.1 (6th Cir. 2004) (no private right of action under 18 U.S.C.

§1001).

C. Plaintiff’s FDCPA Claims are Time-Barred

All Defendants persuasively argue that Plaintiff’s FDCPA claims against them are

subject to dismissal based on the applicable one-year statute of limitations. Dismissal

under Fed. R. Civ. P. 12(b)(6) based on a statute of limitations defense is appropriate

“when it is apparent from the face of the complaint that the time limit for bringing the claim

has passed.” Hoover v. Langston Equip. Assoc., Inc., 958 F.2d 742, 744 (6th Cir. 1992)

(internal quotation and additional citation omitted). Plaintiff’s allegations against Weltman

and Keck relate to their filing of a state court debt collection action against her on March

9, 2022. The complaint refers to earlier dates in terms of Plaintiff’s alleged notification to

Capital One of her dispute with her debt, but includes no allegations of later misconduct.

Under the FDCPA, all “claims are subject to a one-year statute of limitations.”

Jodway v. Orlans, PC, 759 Fed. Appx. 374, 379 (6th Cir. 2018) (citing 15 U.S.C.

§1692k(d)). The statute of limitations begins to run when the alleged misrepresentation

or violation occurs. See Tyler v. DH Capital Mgmt., 736 F.3d 455 (6th Cir. 2013). Plaintiff

alleges that Defendants violated the FDCPA when they filed the state court lawsuit on

March 9, 2022. But Plaintiff did not file this lawsuit until March 31, 2023 – a date that falls

outside the one-year limitations period. Therefore, all of Plaintiff’s FDCPA claims are time-

barred.

In her response in opposition to dismissal on limitations grounds, Plaintiff argues

that Defendants also violated various criminal code provisions, including 18 U.S.C.

§1005, which “has a statute of limitations of ten (10) years.” (Doc. 19, PageID 223). But

the relevant statute of limitations for her FDCPA claims is not extended by the criminal

code. And for the reasons previously stated, Plaintiff cannot enforce the criminal code.

D. The Lack of Specific Allegations to State Any FDCPA Claim

Plaintiff’s claims against all three Defendants are subject to dismissal for the

reasons discussed above. If those grounds were not sufficient alone for dismissal,

however, Plaintiff’s claims still should be dismissed based on her failure to include

sufficient factual allegations against any Defendant that could support her otherwise

conclusory claims.

Plaintiff generally alleges that all Defendants violated the following FDCPA

provisions: 15 U.S.C. § 1692b(2), 15 U.S.C. § 1692c(a), 15 U.S.C. § 1692d(l), 15 U.S.C.

§ 1692e, 15 U.S.C § 1692f(l), 15 U.S.C § 1692g, 15 U.S.C § 1692i, and 15 U.S.C § 1692j.

In order to state a claim under the FDCPA, a plaintiff must show: “(1) that he is a

‘consumer’ as defined in 15 U.S.C. § 1692a(3); (2) that 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 the FDCPA; and (4) defendant has violated one of the

prohibitions in the FDCPA.” Estep v. Manley Deas Kochalski, LLC, 942 F. Supp. 2d 758,

766 (S.D. Ohio 2013), aff'd, 552 Fed. Appx. 502 (6th Cir. 2014) (additional citation

omitted). The absence of any factor is fatal to a claim under the FDCPA. Whittiker v.

Deutsche Bank Nat. Trust Co., 605 F. Supp. 2d 914, 926 (N.D. Ohio 2009).

For the reasons discussed above, Plaintiff’s claims against Capital One fail

because she cannot show the third factor - that Defendant is a debt collector. While

Weltman and Keck do not dispute that they could fall within the definition of a “debt

collector,”3 Plaintiff still fails to state any claim against them because her complaint

contains no allegations to support the other elements of an FDCPA claim. Instead, the

complaint consists of little more than legal conclusions, with virtually no supporting factual

allegations.

3See generally, Havens-Tobias v. Eagle, 127 F. Supp. 2d 889, 895 (S.D. Ohio 2001). Plaintiff does not

directly allege that Defendant Keck is a debt collector, but does allege that Defendant Weltman “used”

Attorney Keck to assert a claim against Plaintiff on behalf of Capital One. (Doc. 1, ¶ 8).

For instance, with respect to the second factor, Plaintiff fails to allege that the credit

card debt she incurred was a “consumer debt,” that is, one that was incurred “primarily

for personal, family or household purposes.” Evenson v. Palisades Collection, LLC, No.

2:13-CV-1226, 2015 WL 3466936, at *3 (S.D. Ohio June 1, 2015). Courts within the

Southern District of Ohio have found that when a plaintiff does not allege specific facts

establishing that a debt was incurred for personal purposes, the complaint fails to state a

claim under the FDCPA. See Estep, 942 F. Supp. 2d at 766-767 (evidence that plaintiffs

were residing at a residence was insufficient to allege that they incurred a mortgage “to

purchase the property primarily for personal family or household purposes, as opposed

to some other purpose, such as for a business investment.”); Evenson, 2015 WL

3466936, at *3-5 (alleging that a debt was owed to AT&T was insufficient to allege a

consumer debt because phone services can be for business purposes). The Complaint

makes no statement of how or why the credit card debt was incurred, but does allude to

Plaintiff being a “Chief Financial Manager” of an unidentified entity. (Doc. 1, PageID 5).

Even if Barnes made a bare conclusory statement that a debt was incurred for primarily

personal, family, or household purposes, which she has not done, it would be insufficient

to state a claim under the FDCPA. See Garcia v. Primary Fin. Servs., 605 Fed. Appx.

418, 418-19 (5th Cir. 2015) (affirming dismissal of FDCPA claims where plaintiff’s

recitation of statutory language was merely a recital of a cause of action); Piper v. Meade

& Associates, Inc., 282 F. Supp. 3d 905, 912 (D. Md. 2017) (dismissing because plaintiff’s

conclusory statement that a debt was “incurred for personal purposes” does not

sufficiently plead an FDCPA claim); Maleh v. United Collection Bureau, Inc., 287 F. Supp.

3d 265, 271-72 (E.D.N.Y. 2018) (compiling cases holding that “plaintiffs who recite the

statutory definition of ‘debt’ rather than plead facts regarding the debt’s nature have not

adequately pled an FDCPA claim”). Barnes has failed to allege facts to support that she

incurred a debt for personal, family, or household purposes as required by the FDCPA.

Plaintiff’s complaint is also subject to dismissal based on her failure to include other

relevant facts to support her claims. Take the claim that Defendants violated 15 U.S.C. §

1692e. Barnes merely recites the elements of § 1692e(1)(a) (false or misleading

representations), alleging that Weltman “falsely represented the character, amount, or

legal status of Plaintiff’s alleged debt” without including any supporting factual details.

(Doc. 1, ¶ 9). Although a court must construe a pro se complaint liberally, the court is not

required to accept legal conclusions as factual allegations. Iqbal, 556 U.S. at 678;

Twombly, 550 U.S. at 555.

One of Plaintiff’s few factual allegations is that she notified Defendant Capital One

that she disputed the credit card debt. The FDCPA provides that if a consumer notifies

the debt collector in writing within 30 days of receiving the initial communication that the

debt is disputed or requests the name and address of the original creditor, the debt

collector must cease collection of the debt. 15 U.S.C. § 1692g(b). As discussed, Capital

One is a creditor and not a debt collector subject to suit under the FDCPA. And – while

Weltman and Keck may be debt collectors - Plaintiff fails to allege that she ever notified

the debt collector of her dispute, she has failed to state any claim for a violation of 15

U.S.C. § 1692 et seq. See Wolfe v. Bank One Corp., 433 F. Supp. 2d 845 (N.D. Ohio

2005).

As for the alleged violation of § 1692c(a), Plaintiff alleges that without her consent,

Weltman and Keck “initiated communication with Plaintiff through a civil complaint.” (Doc.

1 at ¶ 7). That allegation also fails to state a claim because a complaint is not a

“communication” covered by the FDCPA and therefore cannot violate the consent to

communication requirement in 15 U.S.C. §1692c(a). See 15 U.S.C. § 1692g(d) (“a

communication in the form of a formal pleading in a civil action shall not be treated as an

initial communication for purposes of subsection (a).”). In short, even if this Court infers

that Weltman and Keck are debt collectors who are otherwise subject to the FDCPA,

Plaintiff has failed to include sufficient factual allegations in her complaint to state a claim

that either Defendant engaged in specific conduct that violated any provision of the

FDCPA. See Haven-Tobias, 127 F. Supp. 2d at 896.

E. Rooker-Feldman Doctrine and Preclusion

Both motions to dismiss present two more bases for the dismissal of Plaintiff’s

complaint: a jurisdictional challenge and preclusion under state law.

1. The Rooker-Feldman Jurisdictional Challenge

Defendants argue first that this Court lacks subject matter jurisdiction over

Plaintiff’s claims under the Rooker-Feldman doctrine.4 “The Rooker-Feldman doctrine

prevents a party who loses in state court from appealing that decision to the lower federal

courts. McCormick v. Braverman, 451 F. 3d 382, 396 (6th Cir. 2006). In Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517 (2005), the Supreme

Court cautioned lower courts against overbroad application of the narrow doctrine,

confirming that its application “is confined to cases of the kind from which the doctrine

acquired its name: cases brought by state-court losers complaining of injuries caused by

4The doctrine derives its name from two Supreme Court cases: Dist. Columbia Ct. of Appeals v. Feldman,

460 U.S. 462, 476, 103 S.Ct. 1303 (1983), and Rooker v. Fidelity Tr. Co., 263 U.S. 413, 415-16, 44 S.Ct.

149 (1923)

state-court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments.” Id., 544 U.S. at 284, 125

S.Ct. at 1521-22.

In VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 402 (6th Cir. 2020),

the Sixth Circuit considered the doctrine’s application in an FDCPA case in which the

plaintiffs had alleged that the defendants sought state court writs of garnishment with

higher post-judgment interest than permitted under state law. The writs of garnishment

followed debt-collection actions in state court that the debtors had lost. The federal

defendants argued that Rooker-Feldman barred the plaintiff’s FDCPA claims challenging

the later garnishment proceedings. The Sixth Circuit disagreed, in part because Rooker-

Feldman applies only to a collateral attack on a state court “judgment” and “[a] writ of

garnishment is not a judgment – it is the result of a ministerial process.” Id., 951 F.3d at

402. The court explained that it was the garnishment and not the underlying judgment

that was the source of the injury.

We determine whether Rooker-Feldman bars a claim by looking to the

“source of the injury the plaintiff alleges in the federal complaint.”

McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). If the source

of the plaintiff's injury is the state-court judgment itself, then Rooker-

Feldman applies. Id. “If there is some other source of injury, such as a third

party's actions, then the plaintiff asserts an independent claim.” Lawrence

v. Welch, 531 F.3d 364, 368–69 (6th Cir. 2008) (quoting McCormick, 451

F.3d at 394). “A court cannot determine the source of the injury ‘without

reference to [the plaintiff's] request for relief.’” Berry, 688 F.3d at 299

(alteration in original) (quoting Evans v. Cordray, 424 Fed. Appx. 537, 539

(6th Cir. 2011)).

Id.

A number of cases similarly have held that Rooker-Feldman does not bar FDCPA

claims when the plaintiff alleges a separate injury apart from the state-court judgment.

Like VanderKodde, many of those cases involve allegedly false statements made in

garnishment proceedings used to collect on the underlying state court judgments. When

a plaintiff does not attack the judgment itself, then Rooker-Feldman does not apply. Id.;

accord Van Hoven v. Buckles & Buckles, P.L.C., 947 F.3d 889 (6th Cir. 2020) (FDCPA

claims that challenged debt collector’s improper addition of fees to verified statement in

garnishment proceeding was not barred by Rooker-Feldman); Todd v. Weltman,

Weinberg & Reis Co., 434 F.3d 432, 437 (6th Cir. 2006) (Rooker–Feldman did not deprive

the district court of subject matter jurisdiction over plaintiff's federal FDCPA claim that

defendant failed to investigate whether debtor’s property was exempt before filing a false

affidavit in post-judgment garnishment proceeding).

At least one court has held that Rooker-Feldman also does not bar an independent

claim of fraud in obtaining the state court judgment. Whittiker v. Deutsche Bank Nat. Tr.

Co., 605 F. Supp. 2d 914, 921-22 (N.D. Ohio 2009) (plaintiffs’ FDCPA claims that

defendants made false representation that mortgage debts were owed to trustee were

not barred, because the source of the injury was the allegedly false information provided

by defendants in the underlying foreclosure proceedings to obtain judgments, not the

foreclosure judgments themselves). But the undersigned must respectfully disagree with

the suggestion that any claim filed under the FDCPA is, by definition, an “independent”

federal claim that is not barred by Rooker-Feldman. See, e.g., Karakoudas v. Levy, No.

1:20-cv-395, 2020 WL 4432930, at *2 (N.D. Ohio, July 31, 2020) (citing VanderKodde,

951 at 402-404); Burke v. Lawrence & Lawrence, PLLC, No. 3:15-CV-00861-GNS-CHL,

2018 WL 1440837, at *2 (W.D. Ky., March 22, 2018) (same, discussing cases).

The fact that Exxon Mobil Corp. reigned in the once-overbroad application of

Rooker-Feldman does not mean that it has no application to FDCPA claims at all. Rather,

the Sixth Circuit has made clear that when a plaintiff identifies the state court’s prior

judgment in a debt collection case as the only injury, and seeks relief that would overturn

that judgment, Rooker-Feldman continues to apply. See, e.g., Pletos v. Makower Abatte

Guerra Wegner Vollmer, PLLC, 731 Fed. Appx. 431, 435 (6th Cir. 2018) (holding that

FDCPA and other claims were barred by Rooker-Feldman, rejecting argument that the

lawsuit presented an independent challenge to a third party's actions seeking to collect

on that judgment); Givens v. Homecomings Fin., 278 Fed. Appx. 607, 608-09 (6th Cir.

2008) (Rooker-Feldman barred FDCPA claim that defendants failed to provide debtor

with sufficient verification of his debt and seeking only an injunction to keep defendants

from entering the property at issue).

To determine whether Rooker-Feldman applies here, the undersigned begins by

examining the relief sought by Plaintiff, which includes compensatory damages of

$250,000 for “defamation of my reputation,” punitive damages “in the amount of

$1,3000,000: for predatory lending practices,” and a “[p]ermanent injunction on the

improper garnishment and lien filed on my real property…” (Doc. 1, PageID 5). The relief

sought by Plaintiff suggests that part of her injury may stem from the separate

garnishment proceeding, but that much of it arises from the state court judgment itself.

The allegations of the complaint do little to further illuminate the source of her

injury. Plaintiff alleges that her “reputation has been harmed significantly in regards to the

garnishment filed against me” based on her position as a “Chief Financial Manager” of an

unidentified entity. (Doc. 1, PageID 5). She also alleges that Defendant Weltman “falsely

represented the character, amount, or legal status of Plaintiff’s alleged debt,” but she

includes no factual allegations at all to support that rote legal conclusion.

In her response to Defendants’ motions to dismiss, Plaintiff flatly denies that the

source of her injury is “rooted in the state court judgment,” arguing instead that she

“presents an independent claim of illegal debt collection.” (Doc. 19, PageID 222). But

again, she includes no factual allegations or other explanation of what any Defendant did

to violate the FDCPA, or in what manner the debt collection was “illegal.” Last, in what

the undersigned construes as an allusion to her earlier argument that Capital One had no

legal authority to issue her a credit card, she concludes that her claim of injury “initiated

from the beginning with deception of fraud upon conducting the consumer credit

transaction.” (Doc. 19, PageID 222).

Taken as a whole, most of Plaintiff’s claims (if not all) appear to challenge the state

court judgment itself and therefore are likely barred by Rooker-Feldman. Still, mindful of

the liberality with which this Court must construe Plaintiff’s pro se complaint, and informed

by a general reluctance to apply Rooker-Feldman too broadly, I do not recommend

dismissal of the entirety of Plaintiff’s claims on that basis. See Firestone v. CitiMortgage,

Inc., No. 5:19-cv-1539, 2022 WL 3348622, at *6 (N.D. Ohio, Aug. 12, 2022) (applying

doctrine to the extent that plaintiff alleged injury from court foreclosure rulings, but not to

the extent that plaintiff alleged fraudulent conduct before and during the foreclosure

proceedings where scope of relief sought by plaintiff suggested that claims may not be

“entirely foreclosed by Rooker-Feldman). Instead, I recommend dismissal for failure to

state a claim under Rule 12(b)(6).

2. State Law Preclusion

Defendants’ last argument is that any possible claims are barred by the doctrines

of issue preclusion and claim preclusion, meaning that Plaintiff is foreclosed from re-

litigating claims that were raised in state court, or that could have been raised in the

underlying debt collection case. Plaintiff does not respond to this argument. Although the

undersigned finds Defendants’ unopposed preclusion arguments to be well-taken, there

is no need to discuss them on the merits given the foregoing analysis that Plaintiff’s

complaint should be dismissed in its entirety for multiple other reasons.

IV. Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT Defendants’ motions to

dismiss Plaintiff’s complaint for failure to state a claim under Rule 12(b)(6) (Docs. 14, 18)

be GRANTED, and that this case be closed.

_/s/Stephanie K. Bowman ___

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

VALERIE Y. BARNES Case No. 1:23-cv-182

Plaintiff, McFarland, J.

Bowman, M.J.

v.

CAPITAL ONE FINANCIAL

CORPORATION, ET AL.,

Defendants

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).