KINNICK v. MED-1 SOLUTIONS, LLC

Filing 75

ORDER ON MOTIONS FOR SUMMARY JUDGMENT - Kinnick's motion for summary judgment [Filing No. 60 ] is denied, and Med-1's motion for summary judgment [Filing No. 64 ] is granted as to Kinnick's claim that Med-1 violated § 1692e(3 ) by sending a collection letter with no meaningful attorney review, but denied as it relates to Kinnick's claim that Med-1 violated § 1692e and §1692c(c) by attempting to collect a debt that was subject to bankruptcy and for which he had demanded that collection communications cease. The Court will provide information in a separate order setting a telephonic status conference to reset case deadlines and finalize a new trial date. See Order for additional information. Signed by Magistrate Judge Tim A. Baker on 6/4/2021. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JASON KINNICK,
Plaintiff,
v.
MED-1 SOLUTIONS, LLC an Indiana limited
liability company,
Defendant.

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No. 1:19-cv-02563-TAB-SEB

ORDER ON MOTIONS FOR SUMMARY JUDGMENT
I.

Introduction
Plaintiff Jason Kinnick and his wife filed a Chapter 7 bankruptcy petition on March 12,

2019. Defendant Med-1 Solutions, LLC sent Kinnick a collection letter on April 25, 2019,
demanding payment of debts allegedly owed to Community Health Network that were included
in Kinnick's bankruptcy. Kinnick sued Med-1 for violating §§ 1692e and 1692c(c) the Fair Debt
Collection Practices Act by attempting to collect a debt that was subject to bankruptcy and for
which he had demanded that collection communications cease. Kinnick also now argues that
Med-1 violated § 1692e(3) because there was no meaningful attorney review of his account prior
to sending the collection letter. Both parties moved for summary judgment. Questions of fact
remain as to whether Kinnick was misled by Med-1's letter or whether Med-1 maintained
reasonable procedures to avoid the error. However, for reasons stated below, Med-1's motion for
summary judgment [Filing No. 64] is granted as to Kinnick's §§ 1692(c)(3) and 1692e(3) claims.
Accordingly, Kinnick's motion for summary judgment [Filing No. 60] is denied, and Med-1's
motion [Filing No. 64] is granted in part and denied in part.

II.

Background1
On February 8, 2019, Kinnick and his wife had their attorney send a notice of attorney

representation to Med-1, to notify Med-1 that they were represented by counsel in connection
with any debts Med-1 was trying to collect from them, and that collection communication should
cease. [Filing No. 61-4, at ECF p. 3.] Med-1 received the February 8, 2019, faxed notice of
attorney representation. [Filing No. 61-2, at ECF p. 3.] On March 12, 2019, Kinnick and his
wife filed a Chapter 7 bankruptcy petition. [Filing No. 1-3.] Among the debts listed on the
petition were various debts allegedly owed for medical services at Community Health Network,
as well as several other debts being collected by Defendant Med-1 at that time, in relation to
Kinnick's wife. [Filing No. 1-3, at ECF p. 3-8.] Both Community Health and Med-1 received
notice of the Kinnicks's bankruptcy petition in March. [Filing No. 1-4; Filing No. 61-2, at ECF
p. 3.] At that time, Med-1 did not have any active accounts for Kinnick. [Filing No. 65-7, at
ECF p. 1-2; Filing No. 65-8, at ECF p. 53-54.]
On April 24, 2019, Med-1 obtained or was assigned for collection two accounts from
Community Health Gallahue Behavioral allegedly owed by Kinnick for services he received
prior to the bankruptcy petition. [Filing No. 61-6, at ECF p. 7-8.] Med-1 allegedly has a policy
to never dun a debtor for a debt that is subject to a bankruptcy. [Filing No. 65-1, at ECF p. 34
("Bankruptcy accounts—cannot work"); Filing No. 65-1, at ECF p. 63 ("If an RP states that they
have filed bankruptcy, we must cease all collection efforts and send the account to the legal
department to verify."); Filing No. 65-3, at ECF p. 1-3 ("NEW Bankruptcy and Deceased Scrub
Procedure" dated 12/16/2014); Filing No. 65-4, at ECF p. 1-3 ("Bankruptcy Process &

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These background facts are either undisputed or assumed as true for the purpose of ruling on
the summary judgment motions.
2

Dispositions Procedure, 4/26/2017").] Med-1 also had a policy to run a bankruptcy scrub before
sending an initial dunning letter. [Filing No. 65-3, at ECF p. 1 ("Purpose: To ensure that all
Med1 bad debt placements are sent to Lexis Nexis for bankruptcy and deceased scrubs, and
return files loaded before letters are requested and sent.").]
However, at some point in early 2019, Med-1 created a new process for certain
Community Health Network debts that "tied together" multiple accounts owed by one debtor to
Community Health, so that one single letter would be sent for all debts owed to the same creditor
at the same time. [Filing No. 65-6, at ECF p. 10-11.] In doing so, Med-1 created a unique set of
automated commands for Community Health Gallahue accounts that contained a programming
mistake, which caused the Gallahue letters to be sent the day before the bankruptcy scrub.
[Filing No. 65-6, at ECF p. 14.] Thus, on April 25, 2019, Med-1 sent a letter to Kinnick signed
by attorney Richard Huston demanding payment of debts allegedly owed to Community Health
that were included in Kinnick's bankruptcy petition. [Filing No. 1-5.] Med-1 ran the bankruptcy
scrub that same day and learned that Kinnick's debts were subject to bankruptcy. [Filing No. 131, at ECF p. 1.] Med-1 subsequently ceased all collection activity for the debt at issue. [Filing
No. 13-1, at ECF p. 1-2.]
Kinnick received Med-1's letter and was angered and concerned that he was receiving
collection letters while he was in the middle of a bankruptcy. [Filing No. 61-1, at ECF p. 19.].
Receipt of the letter impacted Kinnick physically, causing extreme frustration, anxiety,
hopelessness, and dread. [Filing No. 61-1, at ECF p. 22-23.] Kinnick's anxiety continued under
his bankruptcy discharge over a month later, on June 11, 2019. [Filing No. 61-1, at ECF p. 23.]
On June 25, 2019, Kinnick filed his complaint against Med-1 for violating the FDCPA. [Filing
No. 1.] Both Kinnick and Med-1 moved for summary judgment. [Filing No. 60; Filing No. 64.]

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III.

Discussion
In their cross-motions for summary judgment, Kinnick and Med-1 each argue that they

are entitled to summary judgment as a matter of law on Kinnick's FDCPA claims. Kinnick
argues that the uncontroverted evidence shows Med-1's actions—attempting to collect a debt not
owed due to bankruptcy—violated § 1692e and § 1692(c)c of the FDCPA and caused the type of
harm outlawed by Congress's enactment of the FDCPA. [Filing No. 61, at ECF p. 2.] Med-1
argues Kinnick's claims "fail as a matter of law for multiple independent and overlapping
reasons." [Filing No. 66, at ECF p. 4.] Summary judgment is appropriate if "the movant shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a).
This notion applies equally where, as here, opposing parties each move for
summary judgment in their favor pursuant to Rule 56. Indeed, the existence of
cross-motions for summary judgment does not necessarily mean that there are no
genuine issues of material fact. Rather, the process of taking the facts in the light
most favorable to the non-movant, first for one side and then for the other, may
reveal that neither side has enough to prevail without a trial. With cross-motions,
the court's review of the record requires that the court construe all inferences in
favor of the party against whom the motion under consideration is made.
Tyler v. JP Operations, LLC, 342 F. Supp. 3d 837, 842 (S.D. Ind. 2018) (internal citations,
quotation marks, and brackets omitted).
A.

Article III Standing

Before reaching the merits of the parties' underlying arguments, the Court must address
the threshold issue of Article III standing.
Standing is a threshold requirement because it derives from the
Constitution's limit on federal courts' authority to resolve "cases" and
"controversies." The plaintiff, as the party invoking the court's jurisdiction, must
establish the elements of standing: she must prove that she has suffered a concrete
and particularized injury that is both fairly traceable to the challenged conduct and
likely to be redressed by a favorable judicial decision.

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Bazile v. Finance System of Green Bay, Inc., 983 F.3d 274, 278 (7th Cir. 2020) (internal citation
omitted). The Seventh Circuit recently issued a series of decisions that narrowed the
circumstances in which an FDCPA plaintiff has standing to sue. See Larkin v. Finance System of
Green Bay, Inc., 982 F.3d 1060, 1066 (7th Cir. 2020); Brunett v. Convergent Outsourcing, Inc.,
982 F.3d 1067, 1068 (7th Cir. 2020); Gunn v. Thrasher, Buschmann & Voelkel, P.C., 982 F.3d
1069, 1072 (7th Cir. 2020); Bazile, 983 F.3d at 280; Nettles v. Midland Funding, LLC, 983 F.3d
896, 900 (7th Cir. 2020); Spuhler v. State Collection Servs., Inc., 983 F.3d 282, 286 (7th Cir.
2020); Smith v. GC Services Limited Partnership, 986 F.3d 708, 711 (7th Cir. 2021); Pennell v.
Global Trust Management, LLC, 990 F.3d 1041, 1044-45 (7th Cir. 2021); Markakos v.
Medicredit, Inc., No. 20-2351, __ F.3d __, __, 2021 WL 1937267, at *3 (7th Cir. May 14, 2021);
see also Patterson v. Howe, No. 1:16-cv-3364, 2021 WL 1124610, at *1-3 (S.D. Ind. 2021)
(surveying recent cases and granting a motion to reconsider in light of them).
The Court previously addressed similar arguments on standing in this case its October 15,
2019, order denying Med-1's motion to dismiss. Kinnick v. Med-1 Solutions, LLC, No. 1:19-cv2563-TAB-SEB, 410 F. Supp. 3d 939 (S.D. Ind. 2019). At that time, the Court concluded Med1's alleged conduct was more than a bare procedural violation and that Kinnick's complaint
alleged that he personally was misled and negatively impacted by the collection letter. Id. at
943. While at the pleading stage, a plaintiff must only " 'plausibly suggest' each element of
standing, with the court drawing all reasonable inferences in the plaintiff's favor." Bazille, 983
F.3d at 278 (citation omitted). However, mere allegations alone do not stand for long. Id.
Rather, "[t]o demonstrate standing at the summary judgment stage of litigation, the plaintiffs
must set forth by affidavit or other evidence specific facts demonstrating that they have suffered
a concrete and particularized injury that is both fairly traceable to the challenged conduct and

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likely redressable by a judicial decision" Spuhler, 983 F.3d at 284 (internal citations and
quotation marks omitted).
Now, at summary judgment, Med-1 argues Kinnick does not have standing to bring his
claims because Kinnick "did not rely on the alleged FDCPA violations in a way that caused him
to make a detrimental act regarding the debt." [Filing No. 66, at ECF p. 24.] Kinnick maintains
that Med-1's actions "harmed" him because it "destroyed the 'fresh start' Congress intended that
individuals, such as Mr. Kinnick, receive when it enacted the Bankruptcy Code, it made him
doubt the effectiveness of his bankruptcy, his decision to hire his attorney, and it was also a
significant source of tension between him and his wife." [Filing No. 60, at ECF p. 2.]
Mere annoyance or intimidation by the letter is not enough. See, e.g., Gunn, 982 F.3d at
1071-72 ("Many people are annoyed to learn that governmental action may put endangered
species at risk or cut down an old-growth forest. Yet the Supreme Court has held that, to litigate
over such acts in federal court, the plaintiff must show a concrete and particularized loss, not
infuriation or disgust. . . . [T]he Supreme Court has never thought that having one's nose out of
joint and one's dander up creates a case or controversy."). Neither is doubt and confusion. See,
e.g., Brunett, 982 F.3d at 1068 ("A debtor confused by a dunning letter may be injured if she
acts, to her detriment, on that confusion. . . . But the state of confusion is not itself an injury.").
Similarly, the Seventh Circuit clarified in its recent Pennell decision that allegations of
stress, without more, fall short. See Pennell, 990 F.3d at 1045 ("Pennell alleged in her complaint
that Global Trust's dunning letter caused stress and confusion. But we made clear in Brunett that
the state of confusion is not itself an injury. Nor does stress by itself with no physical
manifestation and no qualified medical diagnosis amount to a concrete harm." (Internal citations
and quotation marks omitted)). The Seventh Circuit concluded that Pennell "failed to show that

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receiving Global Trust's dunning letter led her to change her course of action of or put her in
harm's way. Instead, she merely pointed to a statutory violation, which is not enough to establish
standing under Article III." Id. See also Brunett, 982 F.3d at 1069 ("Talk is cheap, but where's
the concrete harm? That's what the Constitution requires, and Brunett does not allege any.").
This Court recently dismissed a plaintiff's claims for lack of injury in fact and lack of
standing in a case with similar allegations as this one. See Pucillo v. National Credit Systems,
Inc., No. 1:19-cv-285-TWP-DML, 2021 WL 1061191, at *4 (S.D. Ind. Mar. 19, 2021). Pucillo
alleged in his amended complaint, using nearly identical language as Kinnick, that the collection
company's actions confused and alarmed him and " 'caused him to believe that his exercise of his
rights, through filing bankruptcy, may have been futile and that he did not have the right to a
fresh start that Congress had granted him under the Bankruptcy Code, as well as his rights under
the FDCPA.' " Id. Chief Judge Pratt concluded: "The Seventh Circuit has been clear that,
without more, confusion, stress, concern, and fear are not enough to support a concrete injury in
FDCPA Section 1692e and Section 1692c cases. This is all that Pucillo has alleged. Therefore,
his, claims must be dismissed because of a lack of injury in fact and lack of standing." Id.
As in Pucillo, the bare allegations in Kinnick's complaint fall short of stating the
necessary allegations of a concrete injury. Kinnick used the same general argument about
fearing he did not have the right to a fresh start, in addition to his claim that the letter made him
doubt the effectiveness of his bankruptcy and that it was a significant source of tension with his
wife. [Filing No. 1, at ECF p. 3.] However, at the summary judgment stage, courts peer beyond
mere complaint allegations. See, e.g., Chicago Wine Co. v. Holcomb, No. 1:19-cv-2785-TWPDML, __ F. Supp. 3d. __, __, 2021 WL 1196175, at *3 (S.D. Ind. Mar. 30, 2021) ("The purpose

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of summary judgment is to pierce the pleadings and to assess the proof in order to see whether
there is a genuine need for trial." (Internal citations and quotation marks omitted)).
In his summary judgment briefing and deposition testimony, Kinnick elaborated on the
harm he allegedly incurred because of Med-1's letter. Kinnick specified that his frustration over
Med-1's letter impacted him physically, interrupting his sleep, causing extreme frustration,
anxiety, hopelessness, and dread. [Filing No. 61, at ECF p. 8.] In support, Kinnick cites to his
deposition testimony, in which he stated that he "panicked" and that the letter gave him a lot of
anxiety. [Filing No. 61-1, at ECF p. 20.] Kinnick stated that it caused him "extreme anxiety"
and that he "had to go to the doctor2 and tell them about it[.]" [Filing No. 61-1, at ECF p. 21.]
Kinnick elaborated:
But, yeah, it caused me stress staying up at night, you know, freaking out that,
you know, my financial future is going to be ruined when I'm trying to get
through a bankruptcy. It made me feel like, you know, is my attorney filing this
stuff right. I panicked. It was definitely panic mode. It was just scary, man.
[Filing No. 61-1, at ECF p. 22.] When asked to describe the panic, Kinnick explained that he felt
dread, anxiousness, nervous, and just felt hopeless. [Filing No. 61-1, at ECF p. 23.]
Furthermore, Kinnick claimed that the letter caused him to experience these issues—
sleeplessness, arguments, and extreme anxiety, frustration, and anger at his bankruptcy

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Kinnick's testimony regarding visiting a doctor is somewhat unclear. He stated he visited a
nurse practitioner before his attorney interrupted and said, "We're going to stipulate that we're
not relying on any medical experts. We're just relying on the deposition testimony today. We're
going to stipulate that we're not going to produce any of that." [Filing No. 61-1, at ECF p. 21.]
A bit later in the deposition transcript, Med-1's counsel tried to clarify Kinnick's statement
regarding whether he discussed feeling dread, nervousness, and anxiousness with medical
providers. [Filing No. 61-1, at ECF p. 23.] Kinnick responded, "I might have mentioned it,
yeah." [Filing No. 61-1, at ECF p. 23.] Counsel then asked, "But am I correct in understanding
that you are not claiming that those medical visits were necessitated by this letter, or those
medical bills should be paid by my client, correct?" [Filing No. 61-1, at ECF p. 23.] Kinnick
replied, "I've been going to the doctor forever. Yeah, it's fine." [Filing No. 61-1, at ECF p. 23.]
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counsel—for over a month, until his debts were ultimately discharged. [Filing No. 61-1, at ECF
p. 22.]
The only evidence Kinnick relies on to support his claim that he experienced concrete
harm from Med-1's letter is his own testimony. To rely on his testimony on emotional distress, it
must be more than merely conclusory. See, e.g., Catalan v. GMAC Mortg. Corp., 629 F.3d 676,
698 (7th Cir. 2011) (finding the plaintiff's testimony on emotional distress sufficient to preclude
summary judgment where "[a]lthough not extensive, the plaintiffs' testimony is not conclusory.
They described their emotional turmoil in reasonable detail and explained what they believe to
be the source of that turmoil."). Cf. Kasten v. LVNV Funding, LLC, No. 19-cv-428, 2021 WL
1102163, at *6 (E.D. Wis. Mar. 23, 2021) ("The Seventh Circuit has found that, absent facts so
inherently degrading that it would be reasonable to infer that a person would suffer emotional
distress from the defendant's actions, a plaintiff whose own testimony is the only proof of
emotional damages must explain the circumstances of his injury in reasonable detail; he cannot
rely on mere conclusory statements." (Internal citation and quotation marks omitted)); Rosen v.
MLO Acquisitions LLC, __ F. Supp. 3d __, __, 2020 WL 7129018, at *5 (N.D. Ind. Dec. 4,
2020) (Rosen's testimony provided detailed, "sufficiently substantial explanation" of Rosen's
distress caused by FDCPA violations to survive the defendant's motion for summary judgment
because testimony included more than just conclusory "buzzwords").
While Kinnick does not provide as detailed testimony as in Kasten, his testimony is not
merely conclusory. Kinnick's testimony regarding his loss of sleep and feeling hopeless and
dread is also more detailed and concrete than the allegations described in Pucillo or the
allegation of a statutory violation with nothing more than stress and confusion in Pennell. Other
courts have explained that allegations of loss of sleep amount to physical manifestations that

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make the allegations of emotional distress real, not abstract, even if not necessarily significant.
See, e.g., Crowder v. Andreu, Palma, Lavin & Solic, PLLC, No. 2:19-cv-820-SPC-NPM, 2021
WL 1338767, at *4 (M.D. Fla. Apr. 9, 2021) ("There must be something from which the Court
can conclude Crowder's alleged injury is real, and not abstract. Any number of facts might do
the trick (e.g., loss of sleep or inability to concentrate). But with just the conclusory statement
that a statutory violation cased an injury, there is no standing." (Internal citations and quotation
marks omitted)); Rivas v. Midland Funding, LLC, 842 Fed. App'x 483, 486 (11th Cir. 2021) (loss
of sleep and extreme stress injuries sufficiently tangible and concrete to confer Article III
standing); Waldrop v. LTS Collections Inc., 2020 WL 6545772, at *3 (D. Ariz. Nov. 6, 2020)
(allegations of fear, anxiety, stress, mental anguish, and loss of sleep, loss of appetite, and
headaches sufficient to establish a concrete injury for purposes of determining damages under
the FDCPA).
Thus, while Kinnick's allegations of harm do not necessarily indicate substantial
emotional harm, his allegations are distinguishable from the recent cases cited above, where
plaintiffs failed to tie the alleged FDCPA violations to any detrimental step or concrete harm.
For these reasons, Kinnick has alleged a sufficiently concrete emotional harm and shown that an
Article III case or controversy exists in order to establish standing for his claims.3

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Kinnick also briefly argues, in his response to Med-1's cross motion for summary judgment
(which also doubles as his reply brief to his own summary judgment motion), that Med-1
intruded on his seclusion or invaded his privacy, citing to Gadelhak v. AT&T Servs., 950 F.3d
458 (7th Cir. 2019), cert. denied, __ S. Ct. __, 2021 WL 1521010 (U.S. Apr. 19, 2021). [Filing
No. 67, at ECF p. 25-26.] However, similar to the plaintiff in Pennell, 990 F.3d at 1045, Kinnick
did not allege an invasion of his privacy rights in his complaint or mention such a claim in his
initial summary judgment motion or brief. Kinnick argues that while he did not use the exact
words "right to privacy," he set forth factual allegations that Med-1 sent him unwanted collection
communications which angered and harmed him, destroying his fresh start, and that all of this
harms necessarily involved an invasion of his privacy. [Filing No. 74, at ECF p. 2.] He further
argues that the Seventh Circuit failed to recognize that the consumer in Pennell had alleged all
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B.

Attempt to collect debt subject to bankruptcy in violation of 15 U.S.C. §
1692e

Kinnick contends that Med-1's letter violated § 1692e the FDCPA as a matter of law,
because the Seventh Circuit has long affirmed that demanding payment of a debt that is no
longer owed, due to bankruptcy, is false and/or deceptive or misleading. [Filing No. 61, at ECF
p. 13.] Under 15 U.S.C. § 1692e, "[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt." In support of
his claim, Kinnick cites Randolph v. IMBS, Inc., 368 F.3d 726, 728-30 (7th Cir. 2004). In
Randolph, the Seventh Circuit stated:
A demand for immediate payment while a debtor is in bankruptcy (or after the
debt's discharge) is "false" in the sense that it asserts that money is due, although,
because of the automatic stay (11 U.S.C. § 362) or the discharge injunction (11
U.S.C. § 524), it is not. A debt collector's false statement is presumptively
wrongful under the Fair Debt Collect Practices Act, see, 15 U.S.C. § 1692e(2)(A),
even if the speaker is ignorant of the truth; but a debt collector that exercises care
to avoid making false statements has a defense under § 1692k(c).
Randolph, 368 F.3d at 728. See also Buckley v. Afni, Inc., 133 F. Supp. 3d 1140, 1150-51 (S.D.
Ind. 2016) ("The test for determining whether there has been a violation is objective, turning on
whether the debt collector's communication would deceive or mislead an unsophisticated, but
reasonable, consumer. The debt collector's subjective intent or belief is not dispositive. § 1692e
applies even when a false representation was unintentional." (Internal citations and quotation
marks omitted)).

the facts to constitute an invasion of privacy and, thus, an injury in fact. [Filing No. 74, at ECF
p. 2.] For a variety of reasons, this argument fails. As in Pennell, Kinnick has raised it too late,
and bringing it up for the first time in his response/reply is insufficient. Id. ("When courts
analyze standing, allegations matter. . . . Pennell did not complain [in her operative complaint]
that her injuries included any perceived invasion of privacy." (Internal citation and quotation
marks omitted)). And the Court decline's Kinnick's invitation to interpret the facts in Pennell
differently than the Seventh Circuit.
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Med-1 argues that it is entitled to judgment as a matter of law on this claim because
Kinnick failed to present extrinsic evidence to prove that the unsophisticated consumer would be
deceived by the letter at issue. [Filing No. 66, at ECF p. 17-18.] Kinnick, however, argues that
the letter in this case falls into the category of a plainly false statement, which requires no
evidentiary support. [Filing No. 67, at ECF p. 20.] In addition, Kinnick contends that his
"unwavering testimony" contrasts with other cases, such as Buckley, since Kinnick believed he
owed the debts and may still have to pay for them because, in his mind, perhaps something went
wrong with his bankruptcy. [Filing No. 67, at ECF p. 22.] Kinnick testified that he felt stress
and freaked out wondering if his financial future would be ruined and made him doubt whether
his attorney "filed this stuff right." [Filing No. 61-1, at ECF p. 22.] However, when viewing the
facts in a light favorable to Med-1, Kinnick stated that he called his attorney immediately
because he "knew" he was not supposed to be receiving the collection letter. [Filing No. 61-1, at
ECF p. 16.] Kinnick testified, "I knew I was in the automatic stay. And I wasn't supposed to be
receiving efforts to collect a debt while I was going through my bankruptcy." [Filing No. 61-1,
at ECF p. 17.] Based on these facts, it is unclear whether Med-1's letter truly deceived or misled
Kinnick. Whether Kinnick was misled by Med-1's letter is a material fact in genuine dispute.
See, e.g., Buckley, 133 F. Supp. 3d at 1152 ("Viewing the evidence in a light favorable to each
party, the Court cannot determine whether Buckley, an unsophisticated consumer, was confused
and misled by Afni's collection letter. Whether Buckley was mislead [sic] by Afni's letter is a
material fact in genuine dispute. Accordingly, Buckley's claim that Afni violated § 1692e is best
suited for trial.").
Alternatively, Med-1 contends that even if it violated the FDCPA, any violation was the
result of a bona fide error. [Filing No. 66, at ECF p. 28-30.] To succeed with a bona fide error

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defense, Med-1 must demonstrate by a preponderance of the evidence that the violation was not
intentional and resulted from a bona fide error notwithstanding the maintenance of reasonable
procedures to prevent the error. See 15 U.S.C. § 1692k(c) ("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.").
Med-1 argues that it maintained reasonable procedures to avoid the error, citing to designated
evidence of various Med-1 policies for how to handle notice of a bankruptcy. [Filing No. 66, at
ECF p. 28-29.] Kinnick disputes Med-1's contention that it had procedures in place reasonably
designed to avoid erroneously sending a collection letter for a debt subject to bankruptcy—which
is exactly what ultimately occurred here. [Filing No. 61, at ECF p. 17.] Kinnick argues that the
procedures described in Med-1's manual [Filing No. 65-1] should be ignored because it "was
clearly dated after Med-1 sent Mr. Kinnick the letter at issue [on April 25, 2019.]" [Filing No.
67, at ECF p. 27.] The manual does not state when it was created but notes it was revised on
October 22, 2019. [Filing No. 65-1.] Med-1 also provided a "Bankruptcy Process and
Dispositions Procedure" dated April 26, 2017, which describes the procedure employees should
take when they receive a bankruptcy notification in the mail or are informed by a debtor that they
have filed bankruptcy. [Filing No. 65-4.] In addition, Med-1 provided a document titled "NEW
Bankruptcy and Deceased Scrub Procedure" dated December 16, 2014, which contains step-bystep instructions on what to do when Med-1 receives a bankruptcy notice. [Filing No. 65-3.]
Genuine issues of material fact remain as to whether Med-1 maintained procedures
reasonably adapted to avoid the error, which precludes summary judgment on this claim. See,
e.g., Keisler v. Encore Receivable Management, Inc., No. 1:06-cv-0912-LJM-WTL, 2008 WL

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1774173, at *6 (S.D. Ind. Apr. 17, 2008) ("With respect to Encore's bona fide error defense, at a
minimum, there is a material question of fact on whether the violation was unintentional and
whether the Encore's procedures were reasonably adapted to avoid any such error."); Wehrheim
v. James M. Secrest, P.C., No. IP 00-1328-C-T/K, 2002 WL 31427515, at *4 (S.D. Ind. Oct. 9,
2002) ("The affidavit and supplemental affidavit establish that Defendant had certain procedures
in place to avoid clerical errors in complaints, but the court cannot find that it has shown as a
matter of law that its procedures were reasonably adapted to avoid such errors. Whether certain
procedures were reasonably adapted to avoid the error at issue seems to be a factual matter
requiring a determination by the trier of fact in all but the rarest of cases. This is not such a
case."). Cf. Hyman v. Tate, 362 F.3d 965, 968 (7th Cir. 2004) (district court found via bench
trial that debt collector had reasonable procedures in place to avoid erroneous collection efforts).
Therefore, for all these reasons, summary judgment is denied as to Kinnick's §1692e claim.
C.

Attempt to collect debt after Kinnick demanded communications cease in
violation of 15 U.S.C. 1692c(c)

Kinnick next argues that Med-1 violated § 1692c(c) of the FDCPA, which prohibits a
debt collector from communicating with a consumer after a direction to cease communications,
and from continuing to demand payment of a debt that the consumer has indicated that they
refuse to pay. Section 1692c(c) provides that if a consumer notifies a debt collector that he
wishes the debt collector cease communications with him, the debt collector "shall not
communicate further with the consumer with respect to such debt." 15 U.S.C. § 1692c(c).
Kinnick claims Med-1 had notice that Kinnick demanded collection communications cease due
to (1) his bankruptcy filing and (2) his earlier debt dispute letter. [Filing No. 61, at ECF p. 14.]
First, Kinnick contends that by filing bankruptcy, he put his creditors—and their debt
collectors—on written notice that he refused to pay his debts. [Filing No. 61, at ECF p. 14.]
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Kinnick's bankruptcy filing was a matter of public record and on his credit reports, and readily
discoverable via a bankruptcy "scrub" system. (Indeed, as noted above, after Med-1 sent the
April 25, 2019, debt collection letter, it performed such a scrub and discovered Kinnick's
bankruptcy.) However, Med-1 notes that the Med-1 debts listed in the Kinnicks' bankruptcy
notice were listed as the debts of Kinnick's wife only, so the bankruptcy notice could not have
provided notice that Kinnick refused to pay a debt. [Filing No. 66, at ECF p. 17.] In addition,
Med-1 argues that even if the bankruptcy petition had listed Med-1 as one of Kinnick's creditors,
the bankruptcy notice does not satisfy the requirements of § 1692c(c), which requires a consumer
to notify the debt collector. [Filing No. 66, at ECF p. 17.] A bankruptcy court is not a
consumer. See, e.g., Shelley v. Ocwen Loan Servicing, LLC, No. 1:13-cv-506-RLY-DKL, 2013
WL 4584649, at *8 (S.D. Ind. Aug. 28, 2013) ("Plaintiffs rely on a notice issued by a bankruptcy
court, which, by the plain language of the statute, is not sufficient to provide notice.").
Second, Kinnick argues Med-1 was already on notice that Kinnick demanded collection
communications cease because his attorney told Med-1 as much in a February 2019 letter prior
to the bankruptcy, which Med-1 received and read. [Filing No. 61, at ECF p. 14.] Med-1,
however, argues that Kinnick's § 1692c(c) claim fails as a matter of law because Med-1 had no
active accounts for Kinnick at the time it received the February 8, 2019, debt dispute letter from
Kinnick's attorney. [Filing No. 66, at ECF p. 15.] Med-1 was not a debt collector with respect to
the Community Health Gallahue debts at the time Kinnick's attorney sent the debt dispute letter,
because it had not yet been assigned those debts. Moreover, § 1692c(c) as written limits the
prohibition to the specific debt at issue. Kinnick could not have requested, with his February
2019 letter, that Med-1 cease communicating with him in respect to a debt that was not assigned

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to it until six weeks later. For these reasons, Med-1's motion for summary judgment is granted
as to Kinnick's § 1692c(c) claim.
D.

Meaningful attorney review

Kinnick also argues that Med-1 violated § 1692e(3) because "the letter sent to Mr.
Kinnick was ostensibly sent by one of Med-1's attorneys, even though there was no meaningful
attorney review of his account prior to sending the attorney collection letter[.]" [Filing No. 60, at
ECF p. 2 (internal citation omitted).] Section 1692e of the FDCPA prohibits a debt collector
from using any false, deceptive, or misleading representation or means in connection with the
collection of any debt, including the false representation or implication that any individual is an
attorney or any communication is from an attorney. See 15 U.S.C. § 1692e(3).
The Court need not address the substantive arguments surrounding this claim, however,
because it fails procedurally. Kinnick has asserted this § 1692e(3) claim for the first time in his
motion for summary judgment. Under Fed. R. Civ. P. 16(b)(4), a party must set forth good cause
to amend a Case Management Plan. Here, the amended CMP required the party with the burden
of proof to file a statement of claims, stating specifically the legal theories upon which those
claims are based, by June 19, 2020. [Filing No. 32, at ECF p. 6.] Moreover, the deadline to
amend the pleadings passed even earlier, on January 27, 2020. [Filing No. 32, at ECF p. 4.] A
§ 1692e(3) claim did not appear in his complaint. [Filing No. 1.] Similarly, Kinnick makes no
mention of this claim in his statement of claims. [Filing No. 50.] And Kinnick has not set forth
good cause to allow an amendment, or raised any credible argument for a constructive
amendment of his complaint. Med-1 would be unduly prejudiced by allowing Kinnick to amend
his complaint and add this claim now, after discovery has closed, Kinnick has been deposed, and

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summary judgment briefing was in progress. Accordingly, Med-1's motion for summary
judgment is granted as to Kinnick's purported §1692e(3) claim.
IV.

Conclusion
For the reasons stated above, Kinnick's motion for summary judgment [Filing No. 60] is

denied, and Med-1's motion for summary judgment [Filing No. 64] is granted as to Kinnick's
claim that Med-1 violated § 1692e(3) by sending a collection letter with no meaningful attorney
review, but denied as it relates to Kinnick's claim that Med-1 violated § 1692e and §1692c(c) by
attempting to collect a debt that was subject to bankruptcy and for which he had demanded that
collection communications cease. The Court will provide information in a separate order setting
a telephonic status conference to reset case deadlines and finalize a new trial date.

Date: 6/4/2021

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution:
All ECF-registered counsel of record via email

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