United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE
Patricia Hudson alleges that defendant debt collector
Medicredit, Inc., violated the Fair Debt Collection
Protection Act (FDCPA) during a phone conversation by asking
a question regarding the nature of her legal representation.
The matter is presently before the Court on defendant's
motion for summary judgment. Plaintiff has filed a response
in opposition and the issues are fully briefed. All matters
are pending before the undersigned with the consent of the
parties, pursuant to 28 U.S.C. § 636(c).
received medical treatment from Christian Hospital in 2016.
The hospital subsequently placed the accounts for
plaintiff's treatment with defendant. Plaintiff received
a collection letter from defendant in June 2016. On November
3, 2016, plaintiff called defendant to obtain more
information about the debt and to inform defendant that it
should direct all communications to her attorney. A recording
of that call has been provided to the Court.
outset of the telephone conversation, plaintiff stated that
she was calling because she “received a
statement” and wanted to know if she could “get
verification of this debt.” When asked, plaintiff
provided the account number, her name, and her address so the
proper record could be located. The Medicredit employee, who
gave his name as Archie, told plaintiff that Christian
Hospital had placed three accounts for collection. Plaintiff
then asked whether she could get a “written account
statement from the original creditor.” Archie explained
that she had to contact the hospital directly to get that
information, and offered to provide her the appropriate
contact information. In response, plaintiff stated that
Medicredit should “please just stop calling [her] cell
phone” and “to speak with [her] attorney.”
Archie responded by offering to place her attorney's name
and phone number “in the system so our legal department
can call him up and you won't get any more calls.”
Plaintiff supplied the requested information. Archie then
asked, “Now is that a bankruptcy ma'am or
workman's comp?” Plaintiff responded that those
questions needed to be directed to her attorney. Archie
responded, “No problem, we always ask it, ” and
the call was terminated. Plaintiff testified at deposition
that she thought the question was disrespectful and that her
rights as a consumer had been violated. [Doc. # 28-1 at pp.
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under
Rule 56, a party moving for summary judgment bears the burden
of demonstrating that no genuine issue exists as to any
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party, ” and a fact is
material if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
the moving party discharges this burden, the non-moving party
must set forth specific facts demonstrating that there is a
dispute as to a genuine issue of material fact, not the
“mere existence of some alleged factual dispute.”
Anderson, 477 U.S. at 247. The non-moving party may
not rest upon mere allegations or denials in the pleadings.
Id. at 256. “Factual disputes that are
irrelevant or unnecessary” will not preclude summary
judgment. Id. at 248. The Court must construe all
facts and evidence in the light most favorable to the
non-movant, must refrain from making credibility
determinations and weighing the evidence, and must draw all
legitimate inferences in favor of the non-movant.
Id. at 255.
purpose of the FDCPA is to “eliminate abusive debt
collection practices by debt collectors.” Richmond
v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006)
(quoting 15 U.S.C. § 1692(a) and §
1692k(a)); see also Quinn v. Ocwen Fed. Bank FSB,
470 F.3d 1240, 1246 (8th Cir. 2006) (“The FDCPA is
designed to protect consumers from abusive debt collection
practices and to protect ethical debt collectors from
competitive disadvantage.”) (citations omitted). The
FDCPA provides for strict liability and is to be construed
liberally to protect consumers. Istre v. Miramed Revenue
Grp., LLC, No. 4:14 CV 1380 DDN, 2014 WL 4988201, at *2
(E.D. Mo. Oct. 7, 2014) (citation omitted).
prevail on her claim that defendant violated the FDCPA,
plaintiff must prove that she is a consumer; defendant is a
debt collector; there was an attempt to collect a debt; and
defendant violated, by act or omission, a provision of the
FDCPA. Campbell v. Credit Prot. Ass'n, L.P., No.
4:12CV00289AGF, 2013 WL 1282348, at *4 (E.D. Mo. Mar. 27,
2013) (citing Pace v. Portfolio Recovery Assocs.,
LLC, 872 F.Supp.2d 861, 864 (W.D. Mo. 2012)). A debt
collector who violates the FDCPA is liable for any actual
damages sustained by the plaintiff in addition to statutory
damages of up to $1, 000 and attorney's fees.
Id.;15 U.S.C. § 1692k(a).
claim arises under 15 U.S.C. § 1692c(a)(2), which
provides that “a debt collector may not communicate
with a consumer in connection with the collection of any
debt . . . if the debt collector knows the consumer is
represented by an attorney with respect to such debt . . .
.” § 1692c(a)(2) (emphasis added). Plaintiff
asserts that defendant violated this provision by asking her
whether her attorney represented her in connection with
bankruptcy or workers' compensation claims. Defendant
argues that it is not liable under the FDCPA because its
question was not a “communication in connection with
the collection” of the debt.
cites several cases to support the proposition that, once
notified that a debtor has legal representation, debt
collectors may only ask for the attorney's contact
information before ending the call. In Hanks v. Valarity,
LLC, No. 4:14-CV-01433-JAR, 2015 WL 1886960 (E.D. Mo.
Apr. 24, 2015), the debt collector Valarity placed multiple
calls to plaintiff, despite his requests to cease calling. On
one of these calls, the Valarity representative immediately
terminated the call after plaintiff stated he had retained
counsel. A few days later, a representative again called
plaintiff, at which point he was able to provide his
attorney's contact information. Hanks filed suit,
alleging that Valarity violated four provisions of the
FDCPA.The Court denied Valarity's motion to
dismiss the § 1692c(a)(2) claim, holding that Valarity
was not shielded from liability on the second call because it
could have learned the attorney's contact information
during the first call. Id. at *3. The Court did not
examine the question raised by this case - whether the call
to obtain the attorney's contact information constituted
a communication in connection with the collection of a debt.
In three other cases plaintiff cites, after being informed
that the debtors had retained counsel, the debt collectors
asked them to set up payment plans - conduct that clearly
constitutes an attempt to collect a debt. See Curtis v.
Caine & Weiner Co., Inc., No. 4:15CV1721 CDP, 2016
WL 520987 (E.D. Mo. Feb. 10, 2016) (denying Rule 12(b)(6)
motion); Istre v. Miramed Revenue Grp., LLC, No.
4:14 CV 1380 DDN, 2014 WL 4988201 (E.D. Mo. Oct. 7, 2014)
(denying Rule 12(b)(6) motion); Robin v. Miller &
Steeno, P.C., No. 4:13CV2456 SNLJ, 2014 WL 3734318, at *
2 (E.D. Mo. July 29, 2014) (granting plaintiff's motion
for partial summary judgment).
communications between debtor and debt collector are
“in connection with a debt.” See Gburek v.
Litton Loan Servicing LP, 614 F.3d 380, 384 (7th Cir.
2010) (“Neither this circuit nor any other has
established a bright-line rule for determining whether a
communication from a debt collector was made in connection
with the collection of any debt.”). It is clear that
“the statute does not apply to every
communication between a debt collector and a debtor.”
Id. at 384-85 (emphasis in original). It is equally
true, however, that a communication need not include an
“explicit demand for payment” to be considered
“in connection with the collection” of a debt.
Id. at 385. The Eighth Circuit has joined the Third,
Sixth, and Seventh Circuits in holding that, “for a
communication to be in connection with the collection of a
debt, an animating purpose of the communication must be to
induce payment by the debtor.” McIvor v. Credit
Control Servs., Inc., 773 F.3d 909, 914 (8th Cir. 2014)
(citing Simon v. FIA Card Servs., N.A., 732 F.3d
259, 266-67 (3rd Cir. 2013); Grden v. Leikin Ingber &
Winters PC, 643 F.3d 169, 173 (6th Cir. 2011); and
Gburek, 614 F.3d at 385). “[C]ommunications
that include discussions of the status of payment, offers of
alternatives to default, and requests for financial
information may be part of a dialogue to facilitate
satisfaction of the debt and hence can constitute debt
collection activity.” McLaughlin v. Phelan Hallinan
& Schmieg, LLP, 756 F.3d 240, 245-46 (3rd Cir. 2014)
(citation omitted); see also Gburek, 614 F.3d at 386
(letters proposing debt repayment and settlement options
constituted debt collection activity). By contrast,
“[w]here a communication is clearly informational and
does not demand payment or discuss the specifics of an
underlying debt, it does not violate the FDCPA.”
Goodin v. Bank of Am., N.A., 114 F.Supp.3d 1197,
1205 (M.D. Fla. 2015) (bank's notice that debtor could be
charged fees while their loan was in default status, letter
alerting debtors to existence of a program to avoid
foreclosure, and notice that loan had been referred to
foreclosure “did not ask for or encourage payment and
were not intended to induce payment.”); see also