On September 17, a district court judge in the Eastern District of Kentucky granted in part and denied in part a defendant debt collector’s motion to dismiss under Rule 12(b)(6) for failure to state a claim. Plaintiff Timothy Flook sued Mason, Schilling & Mason, Co., L.P.A, and one of its attorneys (collectively “MSM”), claiming that a lawsuit filed to collect a medical debt violated the Fair Debt Collection Practices Act and two state statutes because the lawsuit and corresponding communications, which set forth differing debt amounts, were misleading under § 1692e, constituted harassment under § 1692d, and were unfair or unconscionable means to collect a debt under § 1692f. Flook alleged that the same conduct was tantamount to an intrusion upon seclusion and malicious prosecution. Ultimately, the Court concluded that employing the court system to collect a debt did not violate the FDCPA and dismissed Flook’s claim under §§ 1692d and 1692f. The Court, however, was persuaded that the “outward discrepancies” between the debt amount listed in the complaint, verification letter, and account statements could “very well confuse the least sophisticated consumer,” and it denied MSM’s motion in regard to § 1692e.

In February 2018, MSM, on behalf of Southeastern Emergency Physicians (“SEP”), filed a lawsuit against Flook seeking a judgment in the amount of $546.60. In response, Flook asked for verification of the debt. MSM sent a letter stating that $670.73 was owed and enclosed account statements reflecting $0.00 owed to SEP. SEP eventually dismissed the lawsuit with prejudice. Flook, nonetheless, filed a lawsuit claiming violations of the FDCPA.

Of note, and to the benefit of MSM and similar debt collectors, this ruling provides a basis to challenge lawsuits under §§ 1692d and 1692f arising from the filing of a single collection lawsuit. One of Flook’s central complaints related to MSM’s filing of a debt-collection lawsuit, which he claimed constituted abuse under § 1692d and was unconscionable under § 1692f. The Court rejected this argument, stating: “[b]ecause the Sixth Circuit has held that filing a lawsuit is not an abusive tactic under § 1692d of the FDCPA, this Court has trouble rationalizing the same conduct as ‘unfair or unconscionable.’” Accordingly, the Court held that “filing a single collection lawsuit cannot support a claim under § 1692f.” Similarly, the Court ruled that the cost of legal representation does not constitute a “charge” under § 1692f(5).

Regarding Flook’s claim under § 1692e, the Court agreed with Flook that the least sophisticated consumer could be confused by the complaint, verification letter, and monthly statements, all of which provided a different amount due. And while MSM could justify these differences, the Court found it created a factual issue that could not be resolved on a motion to dismiss.

The Court dismissed Flook’s claim for intrusion upon seclusion, holding that “lawsuits necessarily expose parties to the public in one way or another,” but upheld his claim for malicious prosecution. On the latter claim, the Court simply checked to see if each element had been alleged, and in finding that each had been alleged, it denied MSM’s motion to dismiss for this count.