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Fooks v. Mason

United States District Court, E.D. Kentucky, Central Division, Lexington

September 17, 2019

MASON, SCHILLING & MASON, CO., L.P.A., et al., Defendants,



         This matter is before the Court on Defendants Mason, Schilling & Mason and Rachel Jill Mason-Mendelsohn's Motion to Dismiss. [R. 17.] Plaintiff Timothy Fooks alleges the Defendants violated portions of the Fair Debt Collection Practices Act in attempting to collect a debt from him. [R. 1.] Mr. Fooks also asserts two state law tort claims arising out of the same conduct. Id. Defendants have moved for dismissal of all claims pursuant to Rule 12(b)(6). For the following reasons, Defendants' Motion is GRANTED IN PART.


         This matter arises out of a state court debt collection action.[1] On February 22, 2018, attorney Rachel Jill Mason-Mendelsohn of the firm Mason, Schilling & Mason filed suit against Timothy Fooks on behalf of client Southeastern Emergency Physicians in Nicholas County District Court. The complaint alleged that Mr. Fooks incurred, and later defaulted on, charges related to medical services at SEP. SEP sought a judgment of $546.60. Upon service of the complaint, Mr. Fooks wrote to Ms. Mason-Mendelsohn asking for verification of the debt. Shortly thereafter, Mr. Fooks received a letter from Ms. Mason-Mendelson which stated that the amount owed was $670.73, and which included account statements from SEP that Mr. Fooks contends reflect $0.00 owed to SEP. Mr. Fooks filed a general denial in state court on March 19, 2018. On August 1, 2018, SEP voluntarily dismissed its action against Mr. Fooks with prejudice.

         Now, Mr. Fooks brings this lawsuit against the attorney who represented SEP in the state court action, Ms. Rachel Jill Mason-Mendelsohn, and her employer, Mason, Schilling & Mason. Mr. Fooks alleges that, by filing the debt collection lawsuit against him, the Defendants have violated certain portions of the Fair Debt Collection Practices Act and committed the state law torts of intrusion upon seclusion and malicious prosecution.



         A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a plaintiff's complaint. In reviewing a Rule 12(b)(6) motion, the Court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all inferences in favor of the plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). The Court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). The Supreme Court explained that in order “[t]o survive a motion to dismiss, 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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). See also Courier v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir. 2009).


         The Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., was enacted to eliminate “the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.” It is “extraordinarily broad.” Currier v. First Resolution Inv. Corp., 762 F.3d 529, 533 (6th Cir. 2014) (quoting Barany-Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir. 2008). Thus, the FDCPA “prohibits a wide array of specific conduct, ” as well as “in general terms, any harassing, unfair, or deceptive debt collection practice.” S. Rep. No. 95-382, at 4.

         Mr. Fooks' Complaint alleges various violations of the FDCPA by the Defendants. Specifically, Mr. Fooks seeks relief under §§ 1692e, 1692d, and 1692f. [R. 1 at 6.] The Sixth Circuit has adopted the “least-sophisticated-consumer” test for identifying conduct that violates the FDCPA. Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 439 (6th Cir. 2008). This is an objective standard designed “to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.” Id. (internal citations omitted). If Mr. Fooks' claims under the FDCPA are to survive Defendants' Motion to Dismiss, Mr. Fooks must have plead facts that allow this Court to infer Defendants' conduct could mislead the least sophisticated consumer.


         Pursuant to § 1692e, “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Whether an action is false, deceptive, or misleading “is based on whether the ‘least sophisticated consumer' would be misled[.]” Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012) (citing Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006)). A statement must also be materially false or misleading to violate Section 1692e. Id. at 327 (“. . . in addition to being technically false, a statement would tend to mislead or confuse the ...

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