UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Samuel Kowouto,                    Case No. 22-cv-2655 (SRN/DLM)         

          Plaintiff,                                                     

v.                                          ORDER                        

Jellum Law, P.A.,                                                        

          Defendant.                                                     


Ryan D. Peterson, Consumer Attorneys, PLC, 6600 France Avenue, Suite 602, Edina, 
MN 55435, and Thomas J. Lyons, Jr., Consumer Justice Center P.A., 367 Commerce 
Court, Vadnais Heights, MN 55127, for the Plaintiff.                     

Kiralyn Locke, Michael A. Klutho, and Patrick D. Newman, Bassford Remele PA, 100 
South Fifth Street, Suite 1500, Minneapolis, MN 55402, for the Defendant. 


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on the Motion for Summary Judgment [Doc. No. 49] 
filed by Defendant Jellum Law, P.A. (“Jellum Law”). Based on a review of the files, 
submissions, and proceedings herein, and for the reasons stated below, the Court denies 
the Motion.                                                               
I.   BACKGROUND                                                           
    A.   Facts                                                           
         1.   The Lease Agreement                                        
    The  Plaintiff,  Samuel  Kowouto,  entered  into  a  Renewal  Residential  Rental 
Agreement (the “Lease”) with his landlord, IH3 Property Minnesota L.P. (“Invitation 
Homes”), on September 8, 2021. (Cremona Decl. Ex. 2 [Doc. No. 53] at 5.) The Lease term 
commenced on October 24, 2021, and expired on October 23, 2022. (Id.) The Lease 
includes an attorneys’ fees provision, which provides that:               

    In any legal action brought by either party to enforce the terms of this Lease, 
    the prevailing party is entitled [sic] costs incurred in connection with such 
    action, including reasonable attorneys’ fees, expenses, and other costs of 
    collection;  provided,  however,  that  such  amount  shall  not  exceed  Five 
    Hundred Dollars ($500).                                              

(Id. at 22–23 ¶ 47.)                                                      
         2.   The Eviction Action Against Mr. Kowouto                    
    On April 25, 2022, Jellum Law filed an unlawful detainer complaint for residential 
property (“Eviction Complaint”) on behalf of Invitation Homes against Mr. Kowouto and 
his co-tenants in Minnesota state district court. (Id. at 1–3.) The matter was captioned IH3 
Property Minnesota, L.P., a Delaware limited partnership, d/b/a Invitation Homes v. 
Samuel Kowouto et al., and assigned the state court file number 27-CV-HC-22-1668. (Id.) 
The Eviction Complaint alleged that Mr. Kowouto and his co-tenants owed Invitation 
Homes two months of rent, along with late fees, rental insurance premiums, and unpaid 
utilities.  (Id. at  2 ¶ 10.) Accordingly, it alleged that the tenants  unlawfully retained 
possession of the property, and demanded their eviction along with the costs of filing and 
serving the action. (Id. at 3 ¶ 14.)                                      
    The final paragraph of the Eviction Complaint alleged that “Landlord, pursuant to 
the terms of the Lease, is also entitled to payment of all attorneys’ fees incurred by 
Landlord.” (Id. at 3 ¶ 15.)                                               
    The language in the Eviction Complaint was apparently drafted using a standard 
template, that Jellum Law generated to facilitate its filing of eviction proceedings on behalf 
of Invitation Homes. (Cremona Decl. at 2 ¶ 6; Peterson Decl. Ex. A [Doc. No. 61] at 

105:16–106:6; Lenss Decl. [Doc. No. 54] at 2 ¶ 9.) That template was developed some 
years before, when Invitation Homes included in all of its leases a provision for attorneys’ 
fees that was uncapped. (Peterson Decl. Ex. A at 67:12–19.) In 2019, however, Invitation 
Homes changed that standard lease provision to limit all fees and costs to $500. (Id.)  
    On May 23, 2022, at approximately 11:00 a.m., the Eviction Complaint was served 

on Mr. Kowouto. (Cremona Decl. Ex. 3.) He took the document to his friend’s house in St. 
Paul, where they reviewed it together. (Locke Decl. Ex. 3 [Doc. No. 52] at 27:3–14.) After 
their review, he decided to call an attorney, Mr. Ryan Peterson of Peterson Legal, PLLC, 
and made an appointment to meet with him. (Id. 28:10–23.) The parties have stipulated 
that Mr. Kowouto first retained Mr. Peterson in the eviction matter on May 23, 2022. 

(Locke Decl. Ex. 4 at 1 ¶ 1.)                                             
    Thereafter,  Mr.  Peterson,  on  behalf  of  Mr.  Kowouto,  contacted  Ms.  Lindsay 
Cremona, one of Jellum Law’s attorneys, in an effort to resolve the eviction matter. (See 
Cremona Decl. Ex. 4.) In an email sent on May 31, 2022, Mr. Peterson addressed his 
concerns about the discrepancy between the Lease and the Eviction Complaint with regard 

to attorneys’ fees:                                                       
    My clients are currently considering an offer, but I’m hoping you can clarify 
    something for me as it may help in their deliberations:              

    In paragraph 15 of your complaint, it states that your client is ‘entitled to 
    payment  of  all  attorney’s  fees  incurred’  (emphasis  added).  However, 
    paragraph 47 of the lease seems to cap those fees at $500.00. These seem to 
    be in conflict. Is there something I’m missing?                      

(Id. at 2.) Ms. Cremona responded the same day that “Invitation Homes would assess $500 
of legal fees plus costs against the ledger.” (Id. at 1.) Mr. Peterson then attempted to clarify 
again: “Okay, but just to be clear: if Plaintiff prevails, my clients will not be responsible 
for all your client’s attorney fees, correct?” (Id.) Ms. Cremona responded that “[t]he tenants 
would be responsible for all legal fees that are to be assessed against the ledger. Per the 
lease, the ledger would only be charged $500 plus costs.” (Id.)           
    The parties were able to settle the eviction matter out-of-court on June 1, 2022. (See 
Cremona Decl. Ex. 5.)                                                     
         3.   Jellum Law’s Eviction Practice                             

    On April 25, 2022, when the underlying eviction action was filed, Jellum Law 
employed two attorneys in its litigation practice. (Peterson Decl. Ex. A at 22:10–15.) The 
litigation group focused on banking law, and typically advertised to clients that “when a 
loan goes south, we’re there to step in and assist with the servicing issues or collection 
issues that [a]ffect that loan.” (Id. at 16:16–24.) Specifically, the firm’s litigation practice 
focused on SBA lending, and the majority of these loans were commercial loans. (Id. at 

17:1–2.) In addition, the litigation team, in 2022, represented clients in eviction work, 
foreclosures by publication, consumer collection matters, and landlord/tenant matters. (Id. 
at 23:1–22.) Jellum Law also represented its commercial clients in bankruptcy proceedings, 
including consumer bankruptcy proceedings. (Id. at 32:1–24.) Jellum Law trains all new 
employees on compliance with the FDCPA, and Ms. Cremona was trained on the FDCPA 
when she joined the firm. (Id. at 92:12–21.)                              
    Jellum Law had been representing landlord clients in residential eviction actions for 

nonpayment of rent since at least 2012–2013. (Id. at 33:3–12.) Invitation Homes was their 
primary client in residential eviction actions. (Id. at 24:6–8.) Jellum Law also represented 
other large landlord clients for whom it performed eviction actions. (Id. at 38:16, 39:5.) 
Although it has represented clients in commercial eviction matters, the overwhelming 
majority  of  eviction  actions  commenced  by  Jellum  Law  in  and  around  2022  were 

residential. (Id. at 26:4–18.)                                            
    In 2022, Ms. Cremona was responsible for the entirety of the litigation team’s 
eviction work. (Id. at 6:22, 28:6–29:7.) One paralegal was primarily assigned to eviction 
matters as well. (Id. at 52:7; Lenss Decl. at 2 ¶ 7.)                     
    The firm had a step-by-step procedure for the assigned attorney and paralegal to 

follow when working on an eviction matter, and template forms to use to streamline the 
work. (Peterson Decl. Ex. A at 7:23–14:22; Cremona Decl. Ex. 1.) The procedure included 
various screening searches that the paralegal would perform initially after opening an 
eviction file. (Cremona Decl. Ex. 1 at 1 ¶ 3.) Within two days of receiving a request, the 
paralegal would draft an eviction complaint, based on the template. (Id. at 1 ¶ 4) The 

paralegal was directed to mark the lease for filing as an exhibit to the complaint. (Id.) The 
attorney then reviewed the complaint, provided any necessary revisions, and signed it, and 
upon receipt of the signed complaint, the paralegal attached the lease and filed it. (Id. at 1–
2 ¶¶ 5–7.) Typically, the process took approximately one hour of paralegal work and 30 
minutes of attorney review. (Peterson Decl. Ex. A at 14:24–15:7.)         
    Jellum Law has a specific template for actions initiated on behalf of Invitation 

Homes. (Id. at 56:16–18.) The firm has specific templates created for eviction actions 
brought on behalf of other landlord clients as well. (Id. at 56:18–21.)   
    From the beginning of 2019 to the end of 2023, Jellum Law represented landlords 
in 349 non-expunged eviction proceedings for non-payment of rent in Minnesota state 
district courts. (Peterson Decl. Ex. B.) There were many fewer proceedings from March of 

2020 through early 2022 due to the COVID-19 pandemic and related eviction moratoriums. 
(Id.; Peterson Decl. Ex. A at 61:9–21.) Apart from the pandemic years, the firm typically 
represented landlord clients in approximately 100 eviction actions per year. (Peterson Decl. 
Ex. A at 96:9–23.)                                                        
    To the best of Ms. Cremona’s knowledge, Jellum Law has never conducted a formal 

audit to ensure its employees’ compliance with its written procedures for eviction matters. 
(Id. at 87:18–88:5.) Jellum Law’s litigation group has regular meetings, at least once a 
week, in which the attorneys discuss any need to revise or review documents or procedures, 
monthly meetings at which policies and procedures may be addressed, and annual reviews 
during which the firm invites feedback from its employees on its templates and forms. (Id. 

at 83:17–85:9.) The firm does not have any records of these meetings, and no one attending 
the meetings is expected to take notes or minutes. (Id. at 86:18–87:17.)  
    Ms. Cremona agreed in her deposition testimony that, in approximately 30 eviction 
actions filed on behalf of Invitation Homes, including the one against Mr. Kowouto, Jellum 
Law filed a complaint seeking all attorneys’ fees incurred, despite an underlying lease 
capping fees and costs at $500. (Id. at 88:10–20.)                        
    B.   Procedural Posture                                              

    On September 9, 2022, Mr. Kowouto filed this putative class action against Jellum 
Law  in  state  court,  alleging  violations  of  the  Fair  Debt  Collection  Practices  Act 
(“FDCPA”), 

 et seq. (Notice of Removal Ex. A (“Compl.”) [Doc. No. 1].) 
Specifically, Mr. Kowouto alleges that “the averment [in the Eviction Complaint] that 
landlord was entitled to ‘all attorneys’ fees incurred’ was false, misleading, and sought an 

amount  allowed  by  neither  law  or  contract,”  and  thereby  violated  15  U.S.C. 
§§ 1692e(2)(A), 1692e(10), and 1692f(1). (Compl. ¶ 28.)                   
    Jellum Law removed the action to this Court and filed a motion to dismiss for failure 
to state a claim. On May 12, 2023, this Court, the Honorable Wilhelmina M. Wright,1 
denied Jellum Law’s motion. (Order on Motion to Dismiss [Doc. No. 21].) In its Order, the 

Court  held  that  the  FDCPA  applies  to  eviction  actions  like  the  one  underlying  the 
Complaint as a matter of law, and that factual issues precluded dismissal. (Id.) 
    The litigation proceeded, and Jellum Law now moves for summary judgment [Doc. 
No. 49]. It argues that it is entitled to summary judgment on four grounds: (1) that Jellum 
Law is not a “debt collector” within the meaning of the FDCPA and thus cannot be held 
liable under the statute; (2) that the FDCPA does not impose liability for a “good faith 

prayer for relief” pled in a complaint; (3) that a competent, non-specialist attorney would 

1    The case was reassigned to the undersigned on December 13, 2023, due to Judge 
Wright’s retirement [Doc. No. 47].                                        
not have been deceived by the error alleged in this case; and (4) that Jellum Law has proven 
that the error in this case was bona fide, and accordingly is shielded from liability under 
the FDCPA.                                                                

II.  DISCUSSION                                                           
    A.   Legal Standards                                                 
    “Summary judgment is proper only if there is no genuine issue as to any material 
fact and the moving party is entitled to judgment as a matter of law.” Avenoso v. Reliance 
Standard Life Ins. Co., 

 (8th Cir. 2021); see Fed. R. Civ. P. 56.  When 
considering a motion for summary judgment, the Court does not weigh the evidence, make 

credibility determinations, or attempt to discern the truth of any factual issue. Avenoso, 

 (quoting Great Plains Real Est. Dev., L.L.C. v. Union Cent. Life Ins., 

 (8th Cir. 2008)). “Although the district court must determine whether 
there is a genuine issue as to any material fact, this is a legal determination.” 

 “Where 
the record taken as a whole could lead a rational trier of fact to find for the nonmoving 

party, there is a genuine issue for trial” and summary judgment must be denied. Walsh v. 
Alpha & Omega USA, Inc., 

 (8th Cir. 2022). The Court views the 
evidence in the light most favorable to the nonmoving party, and gives the nonmoving 
party the benefit of all reasonable inferences. Brands Int’l Corp. v. Reach Cos., LLC, 

 (8th Cir. 2024).                                           

    B.   Jellum Law’s Status as a Debt Collector                         
    Jellum Law first argues that Mr. Kowouto has failed to establish that the law firm is 
a “debt collector” subject to liability under the FDCPA. The Eighth Circuit has explained 
that if the defendant “is not a debt collector for purposes of the FDCPA, the statute does 
not apply,” and an award of summary judgment to the defendant is appropriate. Volden v. 
Innovative Fin. Sys., Inc., 

 (8th Cir. 2006). A person or entity “who 

regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted 
to be owed or due another,” is a debt collector under the statute. 15 U.S.C. § 1692a(6). 
         1.   The Law                                                    
    Neither the Supreme Court, nor the Eighth Circuit, has specifically addressed the 
circumstances under which a lawyer or law firm meets the definition of “debt collector” 

under the FDCPA. See Crandall v. Miller & Stevens, P.A., No. 20-cv-1793 (ECT/LIB), 

, at *4 (D. Minn. Oct. 6, 2021). There is a consensus, however, among 
courts who have addressed the issue that the Second Circuit’s analysis in Goldstein v. 
Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 

 (2d Cir. 2004), is 
persuasive. See Crandall, 

, at *4 (describing the broad reliance on 

Goldstein in every circuit to have addressed the issue).                  
    In Goldstein, the district court granted summary judgment to a defendant law firm 
after finding that debt collection activities accounted for only a small proportion of the law 
firm’s business. The Second Circuit, vacating the decision of the district court, held that 
the focus of the FDCPA analysis should be on the regularity of the firm’s debt collection 
activity, not whether debt collection comprises a firm’s principal source of business. In 

evaluating the issue, the court identified five illustrative, non-dispositive factors for a court 
to consider:                                                              
    (1) The absolute number of debt collection communications issued, and/or 
      collection-related litigation matters pursued, over the relevant period(s); 

    (2) The  frequency  of  such  communications  and/or  litigation  activity, 
      including whether any patterns of such activity are discernable;   

    (3) Whether the entity has personnel specifically assigned to work on debt 
      collection activity;                                               

    (4) Whether the entity has systems or contractors in place to facilitate such 
      activity; and                                                      

    (5) Whether the activity is undertaken in connection with ongoing client 
      relationships with entities that have retained the lawyer or firm to assist 
      in the collection of outstanding consumer debt obligations.        

Goldstein, 374 F.3d at 62–63. The court further explained:                
    Facts relating to the role debt collection work plays in the practice as a whole 
    should also be considered to the extent they bear on the question of regularity 
    of debt collection activity (debt collection constituting 1% of the overall 
    work or revenues of a very large entity may, for instance, suggest regularity, 
    whereas such work constituting 1% of an individual lawyer's practice might 
    not). Whether the law practice seeks debt collection business by marketing 
    itself as having debt collection expertise may also be an indicator of the 
    regularity of collection as a part of the practice.                  

.                                                                
         2.   Application of the Goldstein Factors                       
    As to factor (1), the number of collection-related litigation matters pursued—i.e., 
eviction actions—supports a finding that collection-related litigation is a regular area of 
practice for the law firm.2 Public records collected by Mr. Kowouto reflect hundreds of 

2    To the extent Jellum Law argues again that an eviction action is not debt collection 
activity engaged in by the firm, its argument is foreclosed by this Court’s prior ruling that 
an eviction action under Minnesota law is debt collection activity for purposes of the 
FDCPA. (Order on Motion to Dismiss at 4.) Jellum Law has not presented any good reason 
eviction actions commenced by Jellum Law over a five-year period, despite a pause in the 
firm’s eviction practice during the height of the intervening COVID-19 pandemic. Of those 
actions, 240 were filed between the start of the class period (October 21, 2021) and the end 

of 2023. See Goldstein, 

 (finding that 145 collection notices sent over the 
course of a year was evidence of regularity). Ms. Cremona also acknowledged that Jellum 
Law engages in other types of debt collection activity in addition to pursuing eviction 
actions. (Peterson Decl. Ex. A at 23:12–14, 31:15–33:25.)                 
    Evidence in the record also suggests that this is a regular practice area for the firm. 

In 2019, the firm pursued 89 eviction actions for non-payment of rent. In 2022 it pursued 
98 such actions, and in 2023 it pursued 141 such actions. (Peterson Decl. Ex. B.) From 
January 1, 2020 through March 20, 2020, it pursued 18 eviction actions, a pace that would 
have resulted in 82 such actions over the course of the year, had there been no pandemic. 
(Id.) Ms. Cremona also testified that the firm typically handles approximately 100 eviction 

actions per year. (Peterson Decl. Ex. A. at 96:10–24.)                    
    The record also shows that Ms. Cremona handled all of the eviction matters for the 
firm in 2022, and a paralegal was assigned to work on those matters with her. Further, the 
firm had a specific policy in place to facilitate the handling of eviction actions. This 
evidence supports a finding that the firm regularly engages in this practice area. Compare 

Crandall, 

, at *8 (a law firm’s general litigation procedure, used across 
practice areas, is insufficient to support a finding that the firm regularly engages in debt 

for the Court to revisit its prior rulings in this case, and it will not do so. See In re Tri-State 
Financial, LLC, 

 (8th Cir. 2018).                        
collection), with Lord v. Senex Law, P.C., No. 7:20-cv-541, 

, at *7 (W.D. 
Va. May 30, 2023) (having a system designed specifically to facilitate eviction matters 
suggests that eviction is a regular practice area for a firm).            

    Finally,  the  record  reflects  that  most  of  Jellum  Law’s  eviction  matters  are 
undertaken on behalf of Invitation Homes. The firm’s eviction policy and procedure names 
Invitation Homes as the presumed client, and identifies the employees of Invitation Homes 
who will likely serve as the primary contacts in any eviction litigation. (Cremona Decl. 
Ex. 1.) See Goldstein, 

 (where a majority of the notices sent appeared to be 

on  behalf  of  a  single  client,  the  client’s  relationship  with  the  firm  was  evidence  of 
regularity).                                                              
    Jellum Law responds that no reasonable trier of fact could find that eviction actions 
are one of its regular practice areas, because there is no evidence as to what percentage of 
its overall practice is made up of eviction matters. It argues that, without comparators, the 

raw number of debt collection matters litigated is meaningless. However, in Goldstein, the 
Second Circuit emphasized the distinction between “regularity” and “principal purpose.” 

. The Fifth Circuit has similarly addressed this issue:          
    Clearly,  Congress  must  have  intended  the  ‘principal  purpose’  prong  of 
    § 1692a(6) to differ from the ‘regularly’ prong. See Jarecki v. Searle & Co., 
    

, 307–08, 

, 

 (1961) (noting 
    that we may not adopt a forced reading of a statute that renders one part a 
    mere redundancy). Thus, a person may regularly render  debt collection 
    services, even if these services are not a principal purpose of his business. 
    Indeed, if the volume of a person's debt collection services is great enough, 
    it is irrelevant that these services only amount to a small fraction of his total 
    business activity; the person still renders them ‘regularly.’        
Garrett v. Derbes, 

 (5th Cir. 1997) (finding a rational factfinder could 
conclude that a lawyer whose collection work encompassed over 600 demand letters, but 
represented  only  0.5  percent  of  his  practice  during  the  relevant  nine-month  period, 

regularly engaged in debt collection). The Court further notes that in this case, the firm’s 
collection practice is apparently significant enough that all employees are trained on 
FDCPA compliance when they join the firm. (Peterson Decl. Ex. A at 92:12–21.) 
    Jellum Law’s argument that it never advertises itself as a firm specializing in debt 
collection activity is similarly unavailing. Ms. Cremona testified that it advertises itself as 

a firm with expertise in financial institution law, and is able to handle situations that may 
arise when a loan goes south, including helping with collection matters. (Id. at 16:20–24.) 
There appears to be a genuine issue of material fact in dispute as to whether the firm holds 
itself out as having debt collection expertise.                           
    In light of the evidence as a whole, the Court finds that genuine issues of material 

fact in dispute preclude a finding that Jellum Law is not a debt collector as a matter of law.  
    C.   FDCPA Liability for Jellum Law’s Prayer for Relief              
    Jellum Law next argues that the Eviction Complaint’s demand for attorneys’ fees 
was a good faith prayer for relief directed to a court, and as such is immune from FDCPA 
liability. A “communication” subject to the FDCPA, as defined by the statute, means “the 
conveying of information regarding a debt directly or indirectly to any person through any 

medium.” 15 U.S.C. § 1692a(2). The Eighth Circuit has held that whether such a prayer 
for relief violates the FDCPA must be determined on a case-by-case basis. Smith v. Stewart, 
Zlimen & Jungers, Ltd., 

 (8th Cir. 2021).                
    In this case, the evidence shows a clear discrepancy between the prayer for relief in 
the Eviction Complaint, and the terms of the Lease. The Eviction Complaint falsely asserts 
entitlement to all attorneys’ fees incurred through litigation over Mr. Kowouto’s debt, 

allegedly “pursuant to the terms of the Lease,” despite the undisputed fact that the terms of 
the Lease limit any award of attorneys’ fees to $500.                     
    The Eighth Circuit has previously affirmed a district court’s grant of summary 
judgment  to  an  FDCPA  plaintiff,  on  the  issue  of  whether  a  communication’s 
misrepresentation as to a debt collector’s entitlement to costs and fees violated the FDCPA. 

Kojetin  v.  C  U  Recovery,  Inc.,  

  (8th  Cir.  2000).  In  Kojetin,  the 
communication at issue stated that the consumer was obligated to pay a collection agency’s 
full  fee—15%  of  the  principal  due—despite  the  underlying  agreement  between  the 
consumer and the loan issuer permitting recovery only of the actual costs associated with 
collection. Because the communication misrepresented the terms of the agreement by 

charging a percentage-based fee rather than actual collection costs, the Eighth Circuit held 
that it violated the FDCPA. Id. at *1.                                    
    This Court has previously applied the reasoning in Kojetin to hold that a complaint 
demanding contingency-based attorneys’ fees in a state court collection action, where the 
underlying contract only required the consumer to pay reasonable attorneys’ fees and 

collection expenses actually incurred, violated the FDCPA. Munoz v. Pipestone Financial, 
LLC, 

 (D. Minn. 2007) (Ericksen, J.) (granting partial summary 
judgment to the plaintiff).                                               
    In  this  case,  like  in  Kojetin  and  Munoz,  the  communication  at  issue  falsely 
misrepresented the amount of debt owed. Jellum Law does not dispute that the Eviction 
Complaint misrepresented the terms of the Lease, and does not assert any legal basis for 

its demand for attorneys’ fees other than the Lease itself. The Court finds that a reasonable 
trier of fact could find that such a misrepresentation is false, deceptive, or misleading, in 
violation of § 1692e, and could likewise find the misrepresentation to be evidence of an 
unfair or unconscionable means to collect a debt in violation of § 1692f. 
    Jellum Law, in response, cites to three Eighth Circuit decisions holding that a law 

firm debt collector does not violate the FDCPA by merely articulating a good faith legal 
position in a representation to a court. See Smith, 

; Haney v. Portfolio 
Recovery Assocs., 

 (8th Cir. 2016); Hemmingsen v. Messerli & Kramer, 
P.A., 

 (8th Cir. 2012). The Court finds these cases inapposite to the facts 
before it. In each of the cases cited by Jellum Law, the Eighth Circuit considered FDCPA 

claims premised on collection actions that were ultimately not meritorious due to either: 
(1) a lack of sufficient, credible evidence, or; (2) a non-prevailing legal argument. There 
was no genuine issue of material fact, in any of the three cases, as to whether the law firms 
pursued the collection actions in good faith.                             
    Moreover, in each case, the court emphasized that whether a law firm violates the 

FDCPA, through a communication in a legal filing, depends on the specific circumstances 
of the communication at issue. For example, “a claim that the defendant debt collector 
lawyer routinely files collection complaints containing intentionally false assertions of the 
amount owed, serves the complaints on unrepresented consumers, and then dismisses any 
complaint that is not defaulted,” would likely establish a violation of the FDCPA. Smith, 

.                                                          
    Here, the demand for attorneys’ fees in the Eviction Complaint was false, not 

because it lacked sufficient evidentiary support or misinterpreted some aspect of the law, 
but because it misrepresented an express term in the underlying Lease in a manner that 
overstated Mr. Kowouto’s potential liability. And the record contains evidence that such a 
false misrepresentation may have been made in 30 other such eviction actions.  This 
situation is closer to the hypothetical described in Smith, and the circumstances considered 

in Kojetin and Munoz, than to the benign conduct before the courts in Smith, Hemmingsen, 
and Haney. The Court finds that the discrepancy in this case raises a genuine issue of 
material fact as to whether the demand for attorneys’ fees in the Eviction Complaint was 
made in good faith, and accordingly denies summary judgment on this basis. 
    Jellum Law next argues that, even if the prayer for relief falsely misrepresented the 

extent of any attorneys’ fees to which it was entitled, there is no genuine issue of material 
fact in dispute as to whether a competent, non-specialist attorney would have been deceived 
by that demand. Mr. Kowouto responds that Jellum Law fails to correctly frame the issue 
under  the  law.  Rather,  he  argues,  the  proper  standard  is  whether  an  objective, 
unsophisticated consumer would have been deceived by the misleading demand. 

    The Eighth Circuit assesses FDCPA claims “objectively through the eyes of an 
unsophisticated consumer.” Powers v. Credit Management Servs, Inc., 

 
(8th Cir. 2015). This standard applies to claims challenging communications made directly 
to consumers, including collection complaints served on consumers not yet represented by 
counsel, because such complaints “can have the same ability to mislead and confuse as 
prelitigation collection letters.” 

 at 573–74. The standard applies to communications 
made to any consumer regardless of their actual sophistication or circumstances. See Coyne 

v.  Midland  Funding  LLC,  

  (8th  Cir.  2018)  (applying  the 
unsophisticated consumer standard to a consumer who is also a licensed attorney). 
    On the other hand, “where an attorney is interposed as an intermediary between a 
debt collector and a consumer,” the Eighth Circuit presumes the attorney will protect the 
consumer from fraudulent or harassing behavior. Powers, 

. Accordingly, 

when false or misleading communications are made to a represented party, they will only 
violate the FDCPA if they would be likely to deceive a competent, non-specialist lawyer. 

                                                                       
    In this case, it is undisputed that Mr. Kowouto was not represented when he was 
personally served the Eviction Complaint, although he was represented shortly thereafter. 

Regardless, the Court finds that it need not determine which standard applies, because the 
record contains ample evidence to find that both an unsophisticated consumer and a 
competent, non-specialist attorney could be misled by the false misrepresentation made in 
the Eviction Complaint. See Demarais v. Gurstel Chargo, P.A., 

 (8th Cir. 
2017) (declining to determine the applicable standard after finding it reasonable to infer 

that a competent, non-specialist attorney could have been deceived by a false threat of 
litigation); Evory v. RJM Acquisitions Funding L.L.C., 

 (7th Cir. 2007) 
(observing  that  while  a  lawyer  is  less  likely  to  be  deceived  or  misled  than  an 
unsophisticated consumer, a false claim as to the amount of debt a consumer owes “may 
be as difficult for a lawyer to see through as a consumer”).              
    Jellum Law’s demand for attorneys’ fees in the Eviction Complaint was false—it 

stated affirmatively that, under the terms of the Lease, Mr. Kowouto would be liable for all 
attorneys’ fees incurred in litigation over the debt alleged, when in fact the Lease limited 
his liability for costs and fees to $500. A reasonable trier of fact could find that a competent, 
non-specialist attorney could be misled by such a false statement in a court filing. Here, 
the  record  makes  clear  that  Mr.  Peterson—who  Jellum  Law  agrees  competently 

represented Mr. Kowouto—was in fact confused by the discrepancy between the Eviction 
Complaint and the Lease, and had to seek clarification from Ms. Cremona twice before the 
parties entered settlement negotiations. (Cremona Decl. Ex. 4.)           
    Jellum  Law  finally  argues  that,  regardless  of  the  standard  applied,  the  false 
communication was not material. Under Eighth Circuit precedent, a false statement that 

would not contribute to a consumer’s decision-making regarding the debt is considered 
immaterial and is accordingly not actionable under the FDCPA. See Hill v. Accounts 
Receivable Servs., LLC, 

 (8th Cir. 2018). However, the Eighth Circuit 
has held that, as a matter of law, a misrepresentation as to the amount of a debt, or an 
attempt to collect a debt not owed, is a material violation of both §§ 1692e and 1692f. 

Coyne, 

.                                                  
    Here,  the  Eviction  Complaint,  by  misrepresenting  the  consumer’s  potential 
exposure to unlimited attorneys’ fees, was a material misrepresentation of the amount of 
the debt owed. See Kalebaugh v. Berman & Rabin, P.A., 

 
(D. Kan. 2014) (citing cases and holding that letters falsely stating that a consumer may 
owe attorneys’ fees misrepresented the amount of debt owed); Coyne, 

. 
Because a reasonable trier of fact could find that Jellum Law’s false misrepresentation in 

the Eviction Complaint was material and could deceive either an unsophisticated consumer 
or a competent, non-specialist attorney, there is a genuine issue of disputed material fact 
that precludes summary judgment.                                          
    D.   Jellum Law’s Bona Fide Error Defense                            
    Finally,  Jellum  Law  asserts  an  affirmative  bona  fide  error  defense  under  the 

FDCPA, and argues that it has proven that defense as a matter of law.     
    The FDCPA provides that:                                             
    A debt collector may not be held liable in any action brought under this 
    subchapter if the debt collector shows by a preponderance of evidence that 
    the  violation  was  not  intentional  and  resulted  from  a  bona  fide  error 
    notwithstanding the maintenance of procedures reasonably adapted to avoid 
    any such error.                                                      

15 U.S.C. § 1692k(c).                                                     
    To establish the bona fide error defense, a debt collector must prove by a 
    preponderance of the evidence that its FDCPA violation was unintentional 
    and was caused by an objectively bona fide error (i.e., one that is plausible 
    and reasonable) made despite the use of procedures reasonably adapted to 
    prevent that specific error.                                         

Wilhelm v. Credico, Inc., 

 (8th Cir. 2008). As several courts, including 
this one, have recognized, “the exception is a narrow one.” Micks v. Grustel Law Firm, 
P.C., 

 (D. Minn. 2019) (Tostrud, J.) (citing cases). To prevail on 
a bona fide error defense, a defendant must come forward with evidence showing: 
    (1) Its FDCPA violations were not intentional;                       
    (2) It made an error;                                                
    (3) The error was reasonable;                                        
    (4) It maintained procedures reasonably adapted to prevent the error; and 

    (5) The alleged FDCPA violations “resulted from” the identified error. 

 “A failure as to any one of these elements is dispositive.” 

       
    In this case, Mr. Kowouto contests only the fourth element: whether Jellum Law 
maintained procedures reasonably adapted to prevent the error. Under this element, the 
Court must consider whether the debt collector maintained—i.e., actually employed or 

implemented—procedures to avoid errors, and whether the procedures were reasonably 
adapted to avoid the specific error at issue. Wilhelm 

; see also Reichart v. 
National Credit Systems, Inc., 

 (9th Cir. 2008). The Eighth Circuit has 
stressed  that  the  question  of  whether  an  FDCPA  defendant  employed  procedures 
reasonably adapted to avoid the error that occurred “is a fact-intensive inquiry.” Wilhelm, 

.                                                          
    The Eleventh Circuit, citing to Wilhelm, reversed a lower court’s grant of summary 
judgment on the issue of the debt collector’s bona fide error defense, where the record did 
not reflect any internal procedures employed by the debt collector “to compare, even 
briefly,” interest charges permitted by the consumer’s contract with the creditor versus the 

interest placed on the consumer’s ledger. Owen v. I.C. System, Inc., 

 
(11th Cir. 2011). The Owen court found that the error in the case before it, a discrepancy 
between the consumer’s contract with the creditor and the amount charged in the account 
statement, was readily discernable on the face of the documents available to the debt 
collector. On that record, the court found that the debt collector had failed to prove, as a 
matter of law, that it employed procedures reasonably adapted to avoid the error that 
occurred. 

 at 1275–77.                                                 

    Mr. Kowouto argues that the evidence in the record is devoid of any procedures 
initiated by Jellum Law that are specific to preventing the error that occurred. For instance, 
there is no evidence in the record of any procedure requiring Jellum Law attorneys to 
compare eviction complaints to the terms of the underlying lease, to regularly review 
template complaints for accuracy, or to communicate regularly with landlord clients about 

changes to their lease terms. Whether the more general policies and procedures to which 
Ms. Cremona did testify satisfy this affirmative defense is a fact issue to be determined by 
the jury.                                                                 
    The record is clear that this false misrepresentation was made in at least 30 eviction 
complaints,  and  that  the  discrepancy  between  Jellum  Law’s  template  complaint  and 

Invitation Homes’ standard lease terms was not discovered for at least three years. The 
Court finds that a reasonable trier of fact could find that Jellum Law did not maintain 
procedures reasonably adapted to prevent the error that occurred. Accordingly, this genuine 
issue of material fact in dispute precludes summary judgment.             
III.  ORDER                                                               
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that the Motion for Summary Judgment [Doc. No. 49] filed by 

Defendant Jellum Law, P.A. is DENIED.                                     

IT IS SO ORDERED.                                                         



Dated: September 23, 2024            /s/ Susan Richard Nelson             
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge         

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Samuel Kowouto,                    Case No. 22-cv-2655 (SRN/DLM)         

          Plaintiff,                                                     

v.                                          ORDER                        

Jellum Law, P.A.,                                                        

          Defendant.                                                     


Ryan D. Peterson, Consumer Attorneys, PLC, 6600 France Avenue, Suite 602, Edina, 
MN 55435, and Thomas J. Lyons, Jr., Consumer Justice Center P.A., 367 Commerce 
Court, Vadnais Heights, MN 55127, for the Plaintiff.                     

Kiralyn Locke, Michael A. Klutho, and Patrick D. Newman, Bassford Remele PA, 100 
South Fifth Street, Suite 1500, Minneapolis, MN 55402, for the Defendant. 


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on the Motion for Summary Judgment [Doc. No. 49] 
filed by Defendant Jellum Law, P.A. (“Jellum Law”). Based on a review of the files, 
submissions, and proceedings herein, and for the reasons stated below, the Court denies 
the Motion.                                                               
I.   BACKGROUND                                                           
    A.   Facts                                                           
         1.   The Lease Agreement                                        
    The  Plaintiff,  Samuel  Kowouto,  entered  into  a  Renewal  Residential  Rental 
Agreement (the “Lease”) with his landlord, IH3 Property Minnesota L.P. (“Invitation 
Homes”), on September 8, 2021. (Cremona Decl. Ex. 2 [Doc. No. 53] at 5.) The Lease term 
commenced on October 24, 2021, and expired on October 23, 2022. (Id.) The Lease 
includes an attorneys’ fees provision, which provides that:               

    In any legal action brought by either party to enforce the terms of this Lease, 
    the prevailing party is entitled [sic] costs incurred in connection with such 
    action, including reasonable attorneys’ fees, expenses, and other costs of 
    collection;  provided,  however,  that  such  amount  shall  not  exceed  Five 
    Hundred Dollars ($500).                                              

(Id. at 22–23 ¶ 47.)                                                      
         2.   The Eviction Action Against Mr. Kowouto                    
    On April 25, 2022, Jellum Law filed an unlawful detainer complaint for residential 
property (“Eviction Complaint”) on behalf of Invitation Homes against Mr. Kowouto and 
his co-tenants in Minnesota state district court. (Id. at 1–3.) The matter was captioned IH3 
Property Minnesota, L.P., a Delaware limited partnership, d/b/a Invitation Homes v. 
Samuel Kowouto et al., and assigned the state court file number 27-CV-HC-22-1668. (Id.) 
The Eviction Complaint alleged that Mr. Kowouto and his co-tenants owed Invitation 
Homes two months of rent, along with late fees, rental insurance premiums, and unpaid 
utilities.  (Id. at  2 ¶ 10.) Accordingly, it alleged that the tenants  unlawfully retained 
possession of the property, and demanded their eviction along with the costs of filing and 
serving the action. (Id. at 3 ¶ 14.)                                      
    The final paragraph of the Eviction Complaint alleged that “Landlord, pursuant to 
the terms of the Lease, is also entitled to payment of all attorneys’ fees incurred by 
Landlord.” (Id. at 3 ¶ 15.)                                               
    The language in the Eviction Complaint was apparently drafted using a standard 
template, that Jellum Law generated to facilitate its filing of eviction proceedings on behalf 
of Invitation Homes. (Cremona Decl. at 2 ¶ 6; Peterson Decl. Ex. A [Doc. No. 61] at 

105:16–106:6; Lenss Decl. [Doc. No. 54] at 2 ¶ 9.) That template was developed some 
years before, when Invitation Homes included in all of its leases a provision for attorneys’ 
fees that was uncapped. (Peterson Decl. Ex. A at 67:12–19.) In 2019, however, Invitation 
Homes changed that standard lease provision to limit all fees and costs to $500. (Id.)  
    On May 23, 2022, at approximately 11:00 a.m., the Eviction Complaint was served 

on Mr. Kowouto. (Cremona Decl. Ex. 3.) He took the document to his friend’s house in St. 
Paul, where they reviewed it together. (Locke Decl. Ex. 3 [Doc. No. 52] at 27:3–14.) After 
their review, he decided to call an attorney, Mr. Ryan Peterson of Peterson Legal, PLLC, 
and made an appointment to meet with him. (Id. 28:10–23.) The parties have stipulated 
that Mr. Kowouto first retained Mr. Peterson in the eviction matter on May 23, 2022. 

(Locke Decl. Ex. 4 at 1 ¶ 1.)                                             
    Thereafter,  Mr.  Peterson,  on  behalf  of  Mr.  Kowouto,  contacted  Ms.  Lindsay 
Cremona, one of Jellum Law’s attorneys, in an effort to resolve the eviction matter. (See 
Cremona Decl. Ex. 4.) In an email sent on May 31, 2022, Mr. Peterson addressed his 
concerns about the discrepancy between the Lease and the Eviction Complaint with regard 

to attorneys’ fees:                                                       
    My clients are currently considering an offer, but I’m hoping you can clarify 
    something for me as it may help in their deliberations:              

    In paragraph 15 of your complaint, it states that your client is ‘entitled to 
    payment  of  all  attorney’s  fees  incurred’  (emphasis  added).  However, 
    paragraph 47 of the lease seems to cap those fees at $500.00. These seem to 
    be in conflict. Is there something I’m missing?                      

(Id. at 2.) Ms. Cremona responded the same day that “Invitation Homes would assess $500 
of legal fees plus costs against the ledger.” (Id. at 1.) Mr. Peterson then attempted to clarify 
again: “Okay, but just to be clear: if Plaintiff prevails, my clients will not be responsible 
for all your client’s attorney fees, correct?” (Id.) Ms. Cremona responded that “[t]he tenants 
would be responsible for all legal fees that are to be assessed against the ledger. Per the 
lease, the ledger would only be charged $500 plus costs.” (Id.)           
    The parties were able to settle the eviction matter out-of-court on June 1, 2022. (See 
Cremona Decl. Ex. 5.)                                                     
         3.   Jellum Law’s Eviction Practice                             

    On April 25, 2022, when the underlying eviction action was filed, Jellum Law 
employed two attorneys in its litigation practice. (Peterson Decl. Ex. A at 22:10–15.) The 
litigation group focused on banking law, and typically advertised to clients that “when a 
loan goes south, we’re there to step in and assist with the servicing issues or collection 
issues that [a]ffect that loan.” (Id. at 16:16–24.) Specifically, the firm’s litigation practice 
focused on SBA lending, and the majority of these loans were commercial loans. (Id. at 

17:1–2.) In addition, the litigation team, in 2022, represented clients in eviction work, 
foreclosures by publication, consumer collection matters, and landlord/tenant matters. (Id. 
at 23:1–22.) Jellum Law also represented its commercial clients in bankruptcy proceedings, 
including consumer bankruptcy proceedings. (Id. at 32:1–24.) Jellum Law trains all new 
employees on compliance with the FDCPA, and Ms. Cremona was trained on the FDCPA 
when she joined the firm. (Id. at 92:12–21.)                              
    Jellum Law had been representing landlord clients in residential eviction actions for 

nonpayment of rent since at least 2012–2013. (Id. at 33:3–12.) Invitation Homes was their 
primary client in residential eviction actions. (Id. at 24:6–8.) Jellum Law also represented 
other large landlord clients for whom it performed eviction actions. (Id. at 38:16, 39:5.) 
Although it has represented clients in commercial eviction matters, the overwhelming 
majority  of  eviction  actions  commenced  by  Jellum  Law  in  and  around  2022  were 

residential. (Id. at 26:4–18.)                                            
    In 2022, Ms. Cremona was responsible for the entirety of the litigation team’s 
eviction work. (Id. at 6:22, 28:6–29:7.) One paralegal was primarily assigned to eviction 
matters as well. (Id. at 52:7; Lenss Decl. at 2 ¶ 7.)                     
    The firm had a step-by-step procedure for the assigned attorney and paralegal to 

follow when working on an eviction matter, and template forms to use to streamline the 
work. (Peterson Decl. Ex. A at 7:23–14:22; Cremona Decl. Ex. 1.) The procedure included 
various screening searches that the paralegal would perform initially after opening an 
eviction file. (Cremona Decl. Ex. 1 at 1 ¶ 3.) Within two days of receiving a request, the 
paralegal would draft an eviction complaint, based on the template. (Id. at 1 ¶ 4) The 

paralegal was directed to mark the lease for filing as an exhibit to the complaint. (Id.) The 
attorney then reviewed the complaint, provided any necessary revisions, and signed it, and 
upon receipt of the signed complaint, the paralegal attached the lease and filed it. (Id. at 1–
2 ¶¶ 5–7.) Typically, the process took approximately one hour of paralegal work and 30 
minutes of attorney review. (Peterson Decl. Ex. A at 14:24–15:7.)         
    Jellum Law has a specific template for actions initiated on behalf of Invitation 

Homes. (Id. at 56:16–18.) The firm has specific templates created for eviction actions 
brought on behalf of other landlord clients as well. (Id. at 56:18–21.)   
    From the beginning of 2019 to the end of 2023, Jellum Law represented landlords 
in 349 non-expunged eviction proceedings for non-payment of rent in Minnesota state 
district courts. (Peterson Decl. Ex. B.) There were many fewer proceedings from March of 

2020 through early 2022 due to the COVID-19 pandemic and related eviction moratoriums. 
(Id.; Peterson Decl. Ex. A at 61:9–21.) Apart from the pandemic years, the firm typically 
represented landlord clients in approximately 100 eviction actions per year. (Peterson Decl. 
Ex. A at 96:9–23.)                                                        
    To the best of Ms. Cremona’s knowledge, Jellum Law has never conducted a formal 

audit to ensure its employees’ compliance with its written procedures for eviction matters. 
(Id. at 87:18–88:5.) Jellum Law’s litigation group has regular meetings, at least once a 
week, in which the attorneys discuss any need to revise or review documents or procedures, 
monthly meetings at which policies and procedures may be addressed, and annual reviews 
during which the firm invites feedback from its employees on its templates and forms. (Id. 

at 83:17–85:9.) The firm does not have any records of these meetings, and no one attending 
the meetings is expected to take notes or minutes. (Id. at 86:18–87:17.)  
    Ms. Cremona agreed in her deposition testimony that, in approximately 30 eviction 
actions filed on behalf of Invitation Homes, including the one against Mr. Kowouto, Jellum 
Law filed a complaint seeking all attorneys’ fees incurred, despite an underlying lease 
capping fees and costs at $500. (Id. at 88:10–20.)                        
    B.   Procedural Posture                                              

    On September 9, 2022, Mr. Kowouto filed this putative class action against Jellum 
Law  in  state  court,  alleging  violations  of  the  Fair  Debt  Collection  Practices  Act 
(“FDCPA”), 

 et seq. (Notice of Removal Ex. A (“Compl.”) [Doc. No. 1].) 
Specifically, Mr. Kowouto alleges that “the averment [in the Eviction Complaint] that 
landlord was entitled to ‘all attorneys’ fees incurred’ was false, misleading, and sought an 

amount  allowed  by  neither  law  or  contract,”  and  thereby  violated  15  U.S.C. 
§§ 1692e(2)(A), 1692e(10), and 1692f(1). (Compl. ¶ 28.)                   
    Jellum Law removed the action to this Court and filed a motion to dismiss for failure 
to state a claim. On May 12, 2023, this Court, the Honorable Wilhelmina M. Wright,1 
denied Jellum Law’s motion. (Order on Motion to Dismiss [Doc. No. 21].) In its Order, the 

Court  held  that  the  FDCPA  applies  to  eviction  actions  like  the  one  underlying  the 
Complaint as a matter of law, and that factual issues precluded dismissal. (Id.) 
    The litigation proceeded, and Jellum Law now moves for summary judgment [Doc. 
No. 49]. It argues that it is entitled to summary judgment on four grounds: (1) that Jellum 
Law is not a “debt collector” within the meaning of the FDCPA and thus cannot be held 
liable under the statute; (2) that the FDCPA does not impose liability for a “good faith 

prayer for relief” pled in a complaint; (3) that a competent, non-specialist attorney would 

1    The case was reassigned to the undersigned on December 13, 2023, due to Judge 
Wright’s retirement [Doc. No. 47].                                        
not have been deceived by the error alleged in this case; and (4) that Jellum Law has proven 
that the error in this case was bona fide, and accordingly is shielded from liability under 
the FDCPA.                                                                

II.  DISCUSSION                                                           
    A.   Legal Standards                                                 
    “Summary judgment is proper only if there is no genuine issue as to any material 
fact and the moving party is entitled to judgment as a matter of law.” Avenoso v. Reliance 
Standard Life Ins. Co., 

 (8th Cir. 2021); see Fed. R. Civ. P. 56.  When 
considering a motion for summary judgment, the Court does not weigh the evidence, make 

credibility determinations, or attempt to discern the truth of any factual issue. Avenoso, 

 (quoting Great Plains Real Est. Dev., L.L.C. v. Union Cent. Life Ins., 

 (8th Cir. 2008)). “Although the district court must determine whether 
there is a genuine issue as to any material fact, this is a legal determination.” 

 “Where 
the record taken as a whole could lead a rational trier of fact to find for the nonmoving 

party, there is a genuine issue for trial” and summary judgment must be denied. Walsh v. 
Alpha & Omega USA, Inc., 

 (8th Cir. 2022). The Court views the 
evidence in the light most favorable to the nonmoving party, and gives the nonmoving 
party the benefit of all reasonable inferences. Brands Int’l Corp. v. Reach Cos., LLC, 

 (8th Cir. 2024).                                           

    B.   Jellum Law’s Status as a Debt Collector                         
    Jellum Law first argues that Mr. Kowouto has failed to establish that the law firm is 
a “debt collector” subject to liability under the FDCPA. The Eighth Circuit has explained 
that if the defendant “is not a debt collector for purposes of the FDCPA, the statute does 
not apply,” and an award of summary judgment to the defendant is appropriate. Volden v. 
Innovative Fin. Sys., Inc., 

 (8th Cir. 2006). A person or entity “who 

regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted 
to be owed or due another,” is a debt collector under the statute. 15 U.S.C. § 1692a(6). 
         1.   The Law                                                    
    Neither the Supreme Court, nor the Eighth Circuit, has specifically addressed the 
circumstances under which a lawyer or law firm meets the definition of “debt collector” 

under the FDCPA. See Crandall v. Miller & Stevens, P.A., No. 20-cv-1793 (ECT/LIB), 

, at *4 (D. Minn. Oct. 6, 2021). There is a consensus, however, among 
courts who have addressed the issue that the Second Circuit’s analysis in Goldstein v. 
Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 

 (2d Cir. 2004), is 
persuasive. See Crandall, 

, at *4 (describing the broad reliance on 

Goldstein in every circuit to have addressed the issue).                  
    In Goldstein, the district court granted summary judgment to a defendant law firm 
after finding that debt collection activities accounted for only a small proportion of the law 
firm’s business. The Second Circuit, vacating the decision of the district court, held that 
the focus of the FDCPA analysis should be on the regularity of the firm’s debt collection 
activity, not whether debt collection comprises a firm’s principal source of business. In 

evaluating the issue, the court identified five illustrative, non-dispositive factors for a court 
to consider:                                                              
    (1) The absolute number of debt collection communications issued, and/or 
      collection-related litigation matters pursued, over the relevant period(s); 

    (2) The  frequency  of  such  communications  and/or  litigation  activity, 
      including whether any patterns of such activity are discernable;   

    (3) Whether the entity has personnel specifically assigned to work on debt 
      collection activity;                                               

    (4) Whether the entity has systems or contractors in place to facilitate such 
      activity; and                                                      

    (5) Whether the activity is undertaken in connection with ongoing client 
      relationships with entities that have retained the lawyer or firm to assist 
      in the collection of outstanding consumer debt obligations.        

Goldstein, 374 F.3d at 62–63. The court further explained:                
    Facts relating to the role debt collection work plays in the practice as a whole 
    should also be considered to the extent they bear on the question of regularity 
    of debt collection activity (debt collection constituting 1% of the overall 
    work or revenues of a very large entity may, for instance, suggest regularity, 
    whereas such work constituting 1% of an individual lawyer's practice might 
    not). Whether the law practice seeks debt collection business by marketing 
    itself as having debt collection expertise may also be an indicator of the 
    regularity of collection as a part of the practice.                  

.                                                                
         2.   Application of the Goldstein Factors                       
    As to factor (1), the number of collection-related litigation matters pursued—i.e., 
eviction actions—supports a finding that collection-related litigation is a regular area of 
practice for the law firm.2 Public records collected by Mr. Kowouto reflect hundreds of 

2    To the extent Jellum Law argues again that an eviction action is not debt collection 
activity engaged in by the firm, its argument is foreclosed by this Court’s prior ruling that 
an eviction action under Minnesota law is debt collection activity for purposes of the 
FDCPA. (Order on Motion to Dismiss at 4.) Jellum Law has not presented any good reason 
eviction actions commenced by Jellum Law over a five-year period, despite a pause in the 
firm’s eviction practice during the height of the intervening COVID-19 pandemic. Of those 
actions, 240 were filed between the start of the class period (October 21, 2021) and the end 

of 2023. See Goldstein, 

 (finding that 145 collection notices sent over the 
course of a year was evidence of regularity). Ms. Cremona also acknowledged that Jellum 
Law engages in other types of debt collection activity in addition to pursuing eviction 
actions. (Peterson Decl. Ex. A at 23:12–14, 31:15–33:25.)                 
    Evidence in the record also suggests that this is a regular practice area for the firm. 

In 2019, the firm pursued 89 eviction actions for non-payment of rent. In 2022 it pursued 
98 such actions, and in 2023 it pursued 141 such actions. (Peterson Decl. Ex. B.) From 
January 1, 2020 through March 20, 2020, it pursued 18 eviction actions, a pace that would 
have resulted in 82 such actions over the course of the year, had there been no pandemic. 
(Id.) Ms. Cremona also testified that the firm typically handles approximately 100 eviction 

actions per year. (Peterson Decl. Ex. A. at 96:10–24.)                    
    The record also shows that Ms. Cremona handled all of the eviction matters for the 
firm in 2022, and a paralegal was assigned to work on those matters with her. Further, the 
firm had a specific policy in place to facilitate the handling of eviction actions. This 
evidence supports a finding that the firm regularly engages in this practice area. Compare 

Crandall, 

, at *8 (a law firm’s general litigation procedure, used across 
practice areas, is insufficient to support a finding that the firm regularly engages in debt 

for the Court to revisit its prior rulings in this case, and it will not do so. See In re Tri-State 
Financial, LLC, 

 (8th Cir. 2018).                        
collection), with Lord v. Senex Law, P.C., No. 7:20-cv-541, 

, at *7 (W.D. 
Va. May 30, 2023) (having a system designed specifically to facilitate eviction matters 
suggests that eviction is a regular practice area for a firm).            

    Finally,  the  record  reflects  that  most  of  Jellum  Law’s  eviction  matters  are 
undertaken on behalf of Invitation Homes. The firm’s eviction policy and procedure names 
Invitation Homes as the presumed client, and identifies the employees of Invitation Homes 
who will likely serve as the primary contacts in any eviction litigation. (Cremona Decl. 
Ex. 1.) See Goldstein, 

 (where a majority of the notices sent appeared to be 

on  behalf  of  a  single  client,  the  client’s  relationship  with  the  firm  was  evidence  of 
regularity).                                                              
    Jellum Law responds that no reasonable trier of fact could find that eviction actions 
are one of its regular practice areas, because there is no evidence as to what percentage of 
its overall practice is made up of eviction matters. It argues that, without comparators, the 

raw number of debt collection matters litigated is meaningless. However, in Goldstein, the 
Second Circuit emphasized the distinction between “regularity” and “principal purpose.” 

. The Fifth Circuit has similarly addressed this issue:          
    Clearly,  Congress  must  have  intended  the  ‘principal  purpose’  prong  of 
    § 1692a(6) to differ from the ‘regularly’ prong. See Jarecki v. Searle & Co., 
    

, 307–08, 

, 

 (1961) (noting 
    that we may not adopt a forced reading of a statute that renders one part a 
    mere redundancy). Thus, a person may regularly render  debt collection 
    services, even if these services are not a principal purpose of his business. 
    Indeed, if the volume of a person's debt collection services is great enough, 
    it is irrelevant that these services only amount to a small fraction of his total 
    business activity; the person still renders them ‘regularly.’        
Garrett v. Derbes, 

 (5th Cir. 1997) (finding a rational factfinder could 
conclude that a lawyer whose collection work encompassed over 600 demand letters, but 
represented  only  0.5  percent  of  his  practice  during  the  relevant  nine-month  period, 

regularly engaged in debt collection). The Court further notes that in this case, the firm’s 
collection practice is apparently significant enough that all employees are trained on 
FDCPA compliance when they join the firm. (Peterson Decl. Ex. A at 92:12–21.) 
    Jellum Law’s argument that it never advertises itself as a firm specializing in debt 
collection activity is similarly unavailing. Ms. Cremona testified that it advertises itself as 

a firm with expertise in financial institution law, and is able to handle situations that may 
arise when a loan goes south, including helping with collection matters. (Id. at 16:20–24.) 
There appears to be a genuine issue of material fact in dispute as to whether the firm holds 
itself out as having debt collection expertise.                           
    In light of the evidence as a whole, the Court finds that genuine issues of material 

fact in dispute preclude a finding that Jellum Law is not a debt collector as a matter of law.  
    C.   FDCPA Liability for Jellum Law’s Prayer for Relief              
    Jellum Law next argues that the Eviction Complaint’s demand for attorneys’ fees 
was a good faith prayer for relief directed to a court, and as such is immune from FDCPA 
liability. A “communication” subject to the FDCPA, as defined by the statute, means “the 
conveying of information regarding a debt directly or indirectly to any person through any 

medium.” 15 U.S.C. § 1692a(2). The Eighth Circuit has held that whether such a prayer 
for relief violates the FDCPA must be determined on a case-by-case basis. Smith v. Stewart, 
Zlimen & Jungers, Ltd., 

 (8th Cir. 2021).                
    In this case, the evidence shows a clear discrepancy between the prayer for relief in 
the Eviction Complaint, and the terms of the Lease. The Eviction Complaint falsely asserts 
entitlement to all attorneys’ fees incurred through litigation over Mr. Kowouto’s debt, 

allegedly “pursuant to the terms of the Lease,” despite the undisputed fact that the terms of 
the Lease limit any award of attorneys’ fees to $500.                     
    The Eighth Circuit has previously affirmed a district court’s grant of summary 
judgment  to  an  FDCPA  plaintiff,  on  the  issue  of  whether  a  communication’s 
misrepresentation as to a debt collector’s entitlement to costs and fees violated the FDCPA. 

Kojetin  v.  C  U  Recovery,  Inc.,  

  (8th  Cir.  2000).  In  Kojetin,  the 
communication at issue stated that the consumer was obligated to pay a collection agency’s 
full  fee—15%  of  the  principal  due—despite  the  underlying  agreement  between  the 
consumer and the loan issuer permitting recovery only of the actual costs associated with 
collection. Because the communication misrepresented the terms of the agreement by 

charging a percentage-based fee rather than actual collection costs, the Eighth Circuit held 
that it violated the FDCPA. Id. at *1.                                    
    This Court has previously applied the reasoning in Kojetin to hold that a complaint 
demanding contingency-based attorneys’ fees in a state court collection action, where the 
underlying contract only required the consumer to pay reasonable attorneys’ fees and 

collection expenses actually incurred, violated the FDCPA. Munoz v. Pipestone Financial, 
LLC, 

 (D. Minn. 2007) (Ericksen, J.) (granting partial summary 
judgment to the plaintiff).                                               
    In  this  case,  like  in  Kojetin  and  Munoz,  the  communication  at  issue  falsely 
misrepresented the amount of debt owed. Jellum Law does not dispute that the Eviction 
Complaint misrepresented the terms of the Lease, and does not assert any legal basis for 

its demand for attorneys’ fees other than the Lease itself. The Court finds that a reasonable 
trier of fact could find that such a misrepresentation is false, deceptive, or misleading, in 
violation of § 1692e, and could likewise find the misrepresentation to be evidence of an 
unfair or unconscionable means to collect a debt in violation of § 1692f. 
    Jellum Law, in response, cites to three Eighth Circuit decisions holding that a law 

firm debt collector does not violate the FDCPA by merely articulating a good faith legal 
position in a representation to a court. See Smith, 

; Haney v. Portfolio 
Recovery Assocs., 

 (8th Cir. 2016); Hemmingsen v. Messerli & Kramer, 
P.A., 

 (8th Cir. 2012). The Court finds these cases inapposite to the facts 
before it. In each of the cases cited by Jellum Law, the Eighth Circuit considered FDCPA 

claims premised on collection actions that were ultimately not meritorious due to either: 
(1) a lack of sufficient, credible evidence, or; (2) a non-prevailing legal argument. There 
was no genuine issue of material fact, in any of the three cases, as to whether the law firms 
pursued the collection actions in good faith.                             
    Moreover, in each case, the court emphasized that whether a law firm violates the 

FDCPA, through a communication in a legal filing, depends on the specific circumstances 
of the communication at issue. For example, “a claim that the defendant debt collector 
lawyer routinely files collection complaints containing intentionally false assertions of the 
amount owed, serves the complaints on unrepresented consumers, and then dismisses any 
complaint that is not defaulted,” would likely establish a violation of the FDCPA. Smith, 

.                                                          
    Here, the demand for attorneys’ fees in the Eviction Complaint was false, not 

because it lacked sufficient evidentiary support or misinterpreted some aspect of the law, 
but because it misrepresented an express term in the underlying Lease in a manner that 
overstated Mr. Kowouto’s potential liability. And the record contains evidence that such a 
false misrepresentation may have been made in 30 other such eviction actions.  This 
situation is closer to the hypothetical described in Smith, and the circumstances considered 

in Kojetin and Munoz, than to the benign conduct before the courts in Smith, Hemmingsen, 
and Haney. The Court finds that the discrepancy in this case raises a genuine issue of 
material fact as to whether the demand for attorneys’ fees in the Eviction Complaint was 
made in good faith, and accordingly denies summary judgment on this basis. 
    Jellum Law next argues that, even if the prayer for relief falsely misrepresented the 

extent of any attorneys’ fees to which it was entitled, there is no genuine issue of material 
fact in dispute as to whether a competent, non-specialist attorney would have been deceived 
by that demand. Mr. Kowouto responds that Jellum Law fails to correctly frame the issue 
under  the  law.  Rather,  he  argues,  the  proper  standard  is  whether  an  objective, 
unsophisticated consumer would have been deceived by the misleading demand. 

    The Eighth Circuit assesses FDCPA claims “objectively through the eyes of an 
unsophisticated consumer.” Powers v. Credit Management Servs, Inc., 

 
(8th Cir. 2015). This standard applies to claims challenging communications made directly 
to consumers, including collection complaints served on consumers not yet represented by 
counsel, because such complaints “can have the same ability to mislead and confuse as 
prelitigation collection letters.” 

 at 573–74. The standard applies to communications 
made to any consumer regardless of their actual sophistication or circumstances. See Coyne 

v.  Midland  Funding  LLC,  

  (8th  Cir.  2018)  (applying  the 
unsophisticated consumer standard to a consumer who is also a licensed attorney). 
    On the other hand, “where an attorney is interposed as an intermediary between a 
debt collector and a consumer,” the Eighth Circuit presumes the attorney will protect the 
consumer from fraudulent or harassing behavior. Powers, 

. Accordingly, 

when false or misleading communications are made to a represented party, they will only 
violate the FDCPA if they would be likely to deceive a competent, non-specialist lawyer. 

                                                                       
    In this case, it is undisputed that Mr. Kowouto was not represented when he was 
personally served the Eviction Complaint, although he was represented shortly thereafter. 

Regardless, the Court finds that it need not determine which standard applies, because the 
record contains ample evidence to find that both an unsophisticated consumer and a 
competent, non-specialist attorney could be misled by the false misrepresentation made in 
the Eviction Complaint. See Demarais v. Gurstel Chargo, P.A., 

 (8th Cir. 
2017) (declining to determine the applicable standard after finding it reasonable to infer 

that a competent, non-specialist attorney could have been deceived by a false threat of 
litigation); Evory v. RJM Acquisitions Funding L.L.C., 

 (7th Cir. 2007) 
(observing  that  while  a  lawyer  is  less  likely  to  be  deceived  or  misled  than  an 
unsophisticated consumer, a false claim as to the amount of debt a consumer owes “may 
be as difficult for a lawyer to see through as a consumer”).              
    Jellum Law’s demand for attorneys’ fees in the Eviction Complaint was false—it 

stated affirmatively that, under the terms of the Lease, Mr. Kowouto would be liable for all 
attorneys’ fees incurred in litigation over the debt alleged, when in fact the Lease limited 
his liability for costs and fees to $500. A reasonable trier of fact could find that a competent, 
non-specialist attorney could be misled by such a false statement in a court filing. Here, 
the  record  makes  clear  that  Mr.  Peterson—who  Jellum  Law  agrees  competently 

represented Mr. Kowouto—was in fact confused by the discrepancy between the Eviction 
Complaint and the Lease, and had to seek clarification from Ms. Cremona twice before the 
parties entered settlement negotiations. (Cremona Decl. Ex. 4.)           
    Jellum  Law  finally  argues  that,  regardless  of  the  standard  applied,  the  false 
communication was not material. Under Eighth Circuit precedent, a false statement that 

would not contribute to a consumer’s decision-making regarding the debt is considered 
immaterial and is accordingly not actionable under the FDCPA. See Hill v. Accounts 
Receivable Servs., LLC, 

 (8th Cir. 2018). However, the Eighth Circuit 
has held that, as a matter of law, a misrepresentation as to the amount of a debt, or an 
attempt to collect a debt not owed, is a material violation of both §§ 1692e and 1692f. 

Coyne, 

.                                                  
    Here,  the  Eviction  Complaint,  by  misrepresenting  the  consumer’s  potential 
exposure to unlimited attorneys’ fees, was a material misrepresentation of the amount of 
the debt owed. See Kalebaugh v. Berman & Rabin, P.A., 

 
(D. Kan. 2014) (citing cases and holding that letters falsely stating that a consumer may 
owe attorneys’ fees misrepresented the amount of debt owed); Coyne, 

. 
Because a reasonable trier of fact could find that Jellum Law’s false misrepresentation in 

the Eviction Complaint was material and could deceive either an unsophisticated consumer 
or a competent, non-specialist attorney, there is a genuine issue of disputed material fact 
that precludes summary judgment.                                          
    D.   Jellum Law’s Bona Fide Error Defense                            
    Finally,  Jellum  Law  asserts  an  affirmative  bona  fide  error  defense  under  the 

FDCPA, and argues that it has proven that defense as a matter of law.     
    The FDCPA provides that:                                             
    A debt collector may not be held liable in any action brought under this 
    subchapter if the debt collector shows by a preponderance of evidence that 
    the  violation  was  not  intentional  and  resulted  from  a  bona  fide  error 
    notwithstanding the maintenance of procedures reasonably adapted to avoid 
    any such error.                                                      

15 U.S.C. § 1692k(c).                                                     
    To establish the bona fide error defense, a debt collector must prove by a 
    preponderance of the evidence that its FDCPA violation was unintentional 
    and was caused by an objectively bona fide error (i.e., one that is plausible 
    and reasonable) made despite the use of procedures reasonably adapted to 
    prevent that specific error.                                         

Wilhelm v. Credico, Inc., 

 (8th Cir. 2008). As several courts, including 
this one, have recognized, “the exception is a narrow one.” Micks v. Grustel Law Firm, 
P.C., 

 (D. Minn. 2019) (Tostrud, J.) (citing cases). To prevail on 
a bona fide error defense, a defendant must come forward with evidence showing: 
    (1) Its FDCPA violations were not intentional;                       
    (2) It made an error;                                                
    (3) The error was reasonable;                                        
    (4) It maintained procedures reasonably adapted to prevent the error; and 

    (5) The alleged FDCPA violations “resulted from” the identified error. 

 “A failure as to any one of these elements is dispositive.” 

       
    In this case, Mr. Kowouto contests only the fourth element: whether Jellum Law 
maintained procedures reasonably adapted to prevent the error. Under this element, the 
Court must consider whether the debt collector maintained—i.e., actually employed or 

implemented—procedures to avoid errors, and whether the procedures were reasonably 
adapted to avoid the specific error at issue. Wilhelm 

; see also Reichart v. 
National Credit Systems, Inc., 

 (9th Cir. 2008). The Eighth Circuit has 
stressed  that  the  question  of  whether  an  FDCPA  defendant  employed  procedures 
reasonably adapted to avoid the error that occurred “is a fact-intensive inquiry.” Wilhelm, 

.                                                          
    The Eleventh Circuit, citing to Wilhelm, reversed a lower court’s grant of summary 
judgment on the issue of the debt collector’s bona fide error defense, where the record did 
not reflect any internal procedures employed by the debt collector “to compare, even 
briefly,” interest charges permitted by the consumer’s contract with the creditor versus the 

interest placed on the consumer’s ledger. Owen v. I.C. System, Inc., 

 
(11th Cir. 2011). The Owen court found that the error in the case before it, a discrepancy 
between the consumer’s contract with the creditor and the amount charged in the account 
statement, was readily discernable on the face of the documents available to the debt 
collector. On that record, the court found that the debt collector had failed to prove, as a 
matter of law, that it employed procedures reasonably adapted to avoid the error that 
occurred. 

 at 1275–77.                                                 

    Mr. Kowouto argues that the evidence in the record is devoid of any procedures 
initiated by Jellum Law that are specific to preventing the error that occurred. For instance, 
there is no evidence in the record of any procedure requiring Jellum Law attorneys to 
compare eviction complaints to the terms of the underlying lease, to regularly review 
template complaints for accuracy, or to communicate regularly with landlord clients about 

changes to their lease terms. Whether the more general policies and procedures to which 
Ms. Cremona did testify satisfy this affirmative defense is a fact issue to be determined by 
the jury.                                                                 
    The record is clear that this false misrepresentation was made in at least 30 eviction 
complaints,  and  that  the  discrepancy  between  Jellum  Law’s  template  complaint  and 

Invitation Homes’ standard lease terms was not discovered for at least three years. The 
Court finds that a reasonable trier of fact could find that Jellum Law did not maintain 
procedures reasonably adapted to prevent the error that occurred. Accordingly, this genuine 
issue of material fact in dispute precludes summary judgment.             
III.  ORDER                                                               
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that the Motion for Summary Judgment [Doc. No. 49] filed by 

Defendant Jellum Law, P.A. is DENIED.                                     

IT IS SO ORDERED.                                                         



Dated: September 23, 2024            /s/ Susan Richard Nelson             
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge