COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70608 NICHOLAS HODROSKY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION POLO CLUB APARTMENTS, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: Civil appeal from Berea Municipal Court Case No. 95 CVF 016 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ADAM E. CARR, ESQ. MARK I. WACHTER, ESQ. 126 W. Streetsboro St., Suite 4 MAYS, KARBERG & WACHTER Hudson, Ohio 44236 Suite 250, Corporate Circle 30100 Chagrin Blvd. Cleveland, Ohio 44124-5705 - 2 - DYKE, J.: Appellant entered into a lease agreement with Polo Club Apartments for a period of six months, beginning on December 1, 1993. At the time he began his tenancy, appellant noted on an inspection record that the condition of the carpets was good. When he moved out, a few weeks after the official end of the six month tenancy, the apartment manager inspected the carpets and found them to be in fair condition, stained and smelling of cat urine. A carpet company was called in to examine the carpet. It was determined that the carpeting and pad were ruined and had to be replaced at a cost of $847.39. When appellant inquired about the return of his $300.00 deposit, he was informed that the deposit was used to pay for part of the cost of replacing the carpeting. Representatives of Polo Club Apartments informed appellant that he also owed the balance of $547.39. Appellant did not pay this amount and the sum was turned over to a collection agency, appellee Harvey Kay. Kay attempted to collect the amount due by phoning appellant and writing several letters. Appellant retained an attorney and settled the matter with Polo Club Apartments and the entity managing the apartments, Zaremba Management Company. However, appellant pursued unfair debt collection claims under Federal and State law against Kay in a proceeding tried before the bench in the Berea Municipal Court. - 3 - The trial court judge found that Kay is a sole proprietor whose business it is to collect outstanding accounts for certain apartment owners in the Cleveland area. The court found that Kay received authority from the vice president of Zaremba Group Inc., James A. Barnett, to collect the $547.39 debt from appellant. Kay did not have authority to turn the matter over to an attorney, according to the trial court's findings, however the document authorizing Kay to act on behalf of Zaremba and Polo Club stated that he is their agent in representing them in legal actions pertaining to collections. The claims made by appellant state that Kay violated sections of the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 and the Consumer Sales Practices Act, R.C. 1345. The trial court found that Kay's actions did not violate either legislative act and rendered judgment for Kay. Appellant filed a timely notice of appeal with this Court and asserts two assignments of error. I THE TRIAL COURT ERRONEOUSLY DETERMINED THAT THE DEBT COLLECTION ACTIVITIES OF THE APPELLEE HARVEY KAY WERE PERMITTED BY THE FAIR DEBT COLLECTION PRACTICES ACT. Appellant argues that Kay's letters violated the Federal act in five specific instances: 1) Kay threatened suit when he had no authority to file suit; 2) Kay deceptively created a sense of urgency; 3) Kay misrepresented the amount due as $547.39, rather than the $293.00 the trial court determined was due after - 4 - depreciation; 4) Kay used the fictitious name of H.K.H.Kay; and, 5) Kay misrepresented his right to collect interest. These claims are without merit. The trial court properly found that none of these actions violated the Fair Debt Collection Practices Act. Kay sent letters seeking to collect the debt owed for the carpet on letter head with the enlarged initials "HK" in a bold design, followed by "H. Kay" in smaller print. The envelopes had the same design in the return address space. The letters were each signed, "Harvey Kay." The relevant text of the communications sent from Kay to appellant read as follows: To date I have not heard from you regarding some form of payment program toward the outstanding balance due. Unless I hear from you at this time, we will consider turning this over to our attorneys for legal action. At that time you may also be responsible for interest and any other fees to which we are legally entitled, along with the original outstanding balance; this could also affect your credit. I am hopeful that such action will not become necessary. I can be reached in my office any morning around 11:00 AM at 360-0323. Please call me at this time so that we may try to settle the above. (Dated September 23, 1994). Per our phone conversation regarding the above named apartment, enclosed please find a copy of the breakdown showing the outstanding balance due in the amount of $547.39. Our records do not indicate that the carpeting was in poor condition when you took occupancy; however, they do indicate that the carpet had to be replaced when you left. You have informed me that nothing was wrong with the carpeting when you vacated the suite. Our main office is checking into this matter in greater detail. If you will give me a call upon receipt of this correspondence, I will be happy to discuss this with you further. We feel strongly about our public relations image at the Polo Club Apts., and it is our intention to always - 5 - treat our residents in a fair manner. I look forward to talking with you soon. (Dated September 27, 1994) Two subsequent letters were sent to appellant's attorney. The first was a simple cover letter included with a copy of the September 27th letter reproduced above. The second letter explained that the carpet was approximately three years old and was expected to last between 15-20 years with normal wear and tear. The letter reiterated the necessity of replacing the carpet due to the smell of cat urine and the cost of the replacement, less appellant's $300.00 deposit. The Federal Debt Collection Practices Act prohibits the use of false or misleading misrepresentations in the collection of debts, 15 U.S.C. Section 1692e, including the threat to take action which cannot be legally taken, or that is not intended to be taken, and the use of any business name other than the true name of the debt collector's business. Section 1692f prohibits the collection of any amount unless it is expressly authorized by the agreement creating the debt or is permitted by law. Appellant cites to these sections for authority to hold Kay civilly liable for his allegedly abusive debt collection practices. We find that the trial court did not abuse its discretion in the factual findings made, based upon the record which was available for this Court's review. In applying the above cited Federal statute to the facts as found by the trial court, we find that the letters sent to appellant by Kay did not constitute violations. - 6 - The statement, "Unless I hear from you at this time, we will consider turning this over to our attorneys for legal action," does not violate the provision against threatening action which cannot legally be taken or which is not intended to be taken. According to the document attached as an exhibit to the deposition of Zaremba's vice president, Kay had authority to represent Zaremba and Polo Club in legal proceedings relating to the collection of the debt. There was no evidence that Kay would not consider turning the matter over to attorneys if he did not hear from appellant. This statement, by itself, is insufficient to constitute a violation of the act. Upon a review of the communications sent to appellant, we can not find that a sense of urgency is deceptively created by Kay. Of course Kay expresses the need to hear from appellant in a timely manner. Collecting debts for his clients in a timely manner is an important part of Kay's business. How this is deceptive is not explained by appellant. We agree with the trial court's conclusion that any statement suggesting a timely response from appellant does not violate the act. Appellant argues that Kay misrepresented the amount due because he did not take into account the age of the old carpet and depreciate the cost of the new carpet accordingly. The trial court depreciated the cost of the new carpet and found that $293.00 was due rather than $547.39. Kay checked with Polo Club Apartments for a specific breakdown of the carpeting costs and sent documentation - 7 - of the amount to appellant. Kay is not required to use precognition to determine what the trial court will do and adjust the debt accordingly. At the time Kay was attempting to collect on the debt, the debt amounted to $547.39. There was no misrepresentation of the amount due. Appellant's argument that Kay used a fictitious name on his letterhead is without merit. The letterhead clearly shows the name of his business. The Federal provision prohibits the use of a name which is not the true name of the debt collector's business. Appellant never presents evidence that Kay was not using the true name of his business on his letterhead. Finally, Kay never misrepresented his right to collect interest or fees. He wrote in the September 23rd letter that appellant might "also be responsible for interest and any other fees to which we are legally entitled, along with the original balance..." This statement does not constitute a violation of the provision against collecting an amount not permitted under the agreement or by law. Kay specifically states that appellant may be responsible for fees or interest permitted by law. The trial court properly found that no violations of the Federal act were proven by appellant. Appellee Kay was entitled to judgment under the Federal provisions of the Fair Debt Collection Practices Act. Appellant's first assignment of error is overruled. II - 8 - THE TRIAL COURT ERRED IN FAILING TO DETERMINE THAT THE DEBT COLLECTION ACTIVITIES OF THE APPELLEE HARVEY KAY VIOLATED THE CONSUMER SALES PRACTICES ACT. Appellant argues that a violation of the Federal Fair Debt Collection Practices Act constitutes a violation of R.C. Chapter 1345, Consumer Sales Practices. Appellant claims to have cited 35 instances of violations in his trial brief, for which he is entitled to $200.00 each. Appellant's assignment of error is not well taken. Without determining whether the lease agreement falls within the parameters of the Consumer Sales Practices provisions of the Ohio Revised Code, we find that no deceptive conduct was proven by appellant. No evidence was presented to support appellant's claim that appellee Kay committed any "unfair or deceptive act or practice in connection with a consumer transaction," R.C. 1345.02. Appellant's second assignment of error is overruled. The trial court's determination that appellee Kay was not civilly liable for any violations of the Federal Fair Debt Collection Practices Act nor the Ohio Consumer Sales Practices Act is affirmed. - 9 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Berea Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., AND ROCCO, J., CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .