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Hennessey v. Medicredit, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 24, 2018

KATHLEEN HENNESSEY, Plaintiff,
v.
MEDICREDIT, INC., Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Medicredit, Inc.'s Motions to Dismiss. (Docs. 6, 9.) In light of Plaintiff's Amended Complaint, the Court will deny Defendant's first Motion to Dismiss (which was directed at Plaintiff's now-superseded initial complaint) as moot. Before the Court now is Defendant's Motion to Dismiss Plaintiff's Amended Complaint and the exhibits attached thereto. Plaintiff Kathleen Hennessey has filed a memorandum in opposition. (Doc. 11.)

         I. Background

         On August 16, 2017, Defendant sent a letter to Plaintiff asserting that she owed $622.66 in unpaid medical bills. (Doc. 8-1.) Plaintiff retained counsel, who wrote to Defendant on October 16, 2017, to notify it that Plaintiff was represented and that all future correspondence should be directed to counsel. (Doc. 8-2.) Counsel also disputed the validity of the debt and demanded that Defendant “provide a copy of all verification documents so that [counsel] may further assess [the] claimed amount due.” (Id.)

         In response to counsel's October 16 communication, Defendant wrote to Plaintiff a letter that reads, in its entirety, as follows:

We have received your dispute in regards to your account with St. Marys [sic] Hospital - St. Louis and are currently investigating the matter. There is no additional information or action needed from you at this time. If it is determined that additional information is needed, someone will contact you.
If you have any questions or concerns regarding this matter, please feel free to contact our office at 1-800-888-2238. We are ready to assist you from 8:00am to 9:00pm CT Monday to Thursday, 8:00am to 7:00pm CT Friday and 8:00am to 1:00pm CT Saturday.
Thank you for your patience while St. Marys [sic] Hospital - St. Louis reviews your account.

(Doc. 8-4.) Believing that this second letter violated the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692c-g, because it was sent directly to Plaintiff and because it failed to respond to counsel's demand to verify the debt, Plaintiff filed suit. (Docs. 1, 8.) Defendant now moves to dismiss the suit, arguing that the letter was not a collections communication and that the verification demand was untimely. (Docs. 9, 10.)

         II. Legal Standard

         To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 768 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         When testing whether a communication violates the FCPA, the communication “must be viewed through the eyes of an unsophisticated consumer.” Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002) (citing Duffy v. Landberg, 215 F.3d 871, 873 (8th Cir. 2000)); see also Curtis v. Fin. Recovery Servs.., Inc., No. 4:15CV1018 HEA, 2016 WL 1161598, at *3 (E.D. Mo. Mar. 23, 2016) (applying Peters's “unsophisticated consumer” test to alleged violations of § 1692c). The “unsophisticated consumer” test is “designed to protect consumers of below average sophistication or intelligence” as well as to maintain an “objective element of reasonableness.” Id. (citing Gammon v. GC Servs. Ltd. P'ship, 27 F.3d 1254, 1257 (7th Cir. 1994))

         III. Discussion

         The FDCPA prohibits debt collectors from engaging in “abusive, deceptive, and unfair debt collection practices” when they interact with consumers. 15 U.S.C. § 1692(a). Plaintiff alleges that Defendant violated the FDCPA by “[e]ngaging in deceptive and unfair tactics in an effort to collect the debt” in violation of 15 U.S.C. § 1692c-f-specifically by communicating with Plaintiff after learning that she was represented by an attorney-and by “[f]ailing to verify the debt ...


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