McLain v. Head Mercantile Co., Inc.

Filing 39

RULING AND ORDER granting in part and denying in part 16 Motion for Summary Judgment. Signed by Judge John W. deGravelles on 08/28/2017. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BARBARA McLAIN, on behalf of herself
and all others similarly situated
CIVIL ACTION
VERSUS
NO. 16-780-JWD-RLB
HEAD MERCANTILE CO., INC.
d/b/a THE HMC GROUP
a/k/a THE SOS GROUP

RULING AND ORDER
I.

Introduction
This matter comes before the Court on Defendant The Head Mercantile Co., Inc. d/b/a

The HMC Group a/k/a The SOS Group’s (“Defendant”) Motion to Dismiss or for Summary
Judgment. (Doc. 16.) Plaintiff Barbara McLain, on behalf of herself and others similarly situated
(“Plaintiff”), filed an opposition in which she addressed the motion to dismiss on the merits, and
argued that Defendant’s motion for summary judgment was premature. (Doc. 27.) Defendant
filed a reply brief arguing that its Rule 56 motion is ripe for consideration and addressing the
merits of Plaintiff’s opposition. (Doc. 30.) After conducting limited discovery responsive to the
issues raised on summary judgment, and with leave of Court (see Doc. 36), Plaintiff filed a
supplemental opposition responding on the merits to the summary judgment motion. (Doc. 37.)
Defendant subsequently filed a supplemental reply brief. (Doc. 38.) After careful consideration
of the law, facts, and arguments of the parties, for the reasons set forth below, Defendant’s
motion to dismiss is DENIED AS MOOT and its motion for summary judgment is GRANTED
IN PART and DENIED IN PART.
II.

Background
1

Defendant is an Ohio corporation doing business as a debt collection agency. (Docs. 16 at
1; 16-1 at 1.) On or around June 9, 2014, Defendant registered with the Louisiana Secretary of
State’s office to do business in Louisiana under the name “The HMC Group” and provided its
correct domicile and Ohio mailing address. (Docs. 16 at 1—2; 16-1 at 1.) On or about December
8, 2016, Defendant updated its registration with the Louisiana Secretary of State’s office to
reflect its new “doing business as” name: “The SOS Group,” and once again provided the same
Ohio domicile mailing address. (Docs. 16 at 2; 16-1 at 1—2, 5—7.)
Plaintiff is a Louisiana resident who claims that she is “allegedly obligated to pay a debt
owed or due, or asserted to be owed or due a creditor other than Defendant.” (Doc. 1 at 3.)
Specifically, Plaintiff’s debt arose out of medical services she received from Ochsner Health
System (“Ochsner”) between August 12, 2015 and February 4, 2016. (Docs. 16 at 2; 16-1 at 2.)
Each time Plaintiff sought medical services at Ochsner, she signed documentation that contained
the following provision:
Acceptance of Financial Responsibility: I agree that in consideration of the
services and supplies that have been or will be furnished to the patient, I am
hereby obligated to pay all charges made for or the account of the patient
according to the standard rates (in effect at the time the services and supplies are
delivered) established by Ochsner, including its Patient Financial Assistance
Policy to the extent it is applicable. I understand that I am responsible for all
charges, or portions thereof, not covered by insurance or other sources…
(Docs. 16 at 2; 16-1 at 9; 37-1 at 3.)
Ochsner employed Defendant’s services to collect outstanding debts from its patients,
including Plaintiff. In connection with her debt, Defendant sent Plaintiff a letter dated March 30,
2016, in which Defendant identified itself as “The SOS Group fka The HMC Group.” (Docs. 1 at
4; 1-1 at 2.) Plaintiff received a second letter from Defendant dated July 20, 2016; this letter also
reflected that it was from “The SOS Group fka The HMC Group”. (Docs. 1 at 4; 1-2 at 2.)

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Specifically, as evidenced by the letters attached as exhibits to Plaintiff’s complaint, these letters
identify the sender as “The SOS Group” in the body of the letter, but include the “The SOS
Group fka The HMC Group” language in the top left corner of the letter. (Docs. 1-1 at 2; 1-2 at
2.) The address under both headings is the same, and reflects Defendant’s proper Ohio domicile
address. (Docs. 1-1 at 2; 1-2 at 2.) In her complaint, filed November 22, 2016, Plaintiff avers that
a “query of the Louisiana Secretary of State’s website does not produce any business filings
under ‘The SOS Group.’… [or] under ‘The SOS Group fka The HMC Group.’”1 (Doc. 1 at 4.)
In both the March 30, 2016 and July 20, 2016 letters, Defendant offers various options
through which the recipient debtor may pay his or her debt, including an option to pay online or
via a toll-free number to pay either by credit/debit card or via check by phone. (Docs. 1 at 5; 1-1
at 2; 1-2 at 2.) The letters further state that “[a] $2.00 convenience fee applies to checks by
phone.” (Docs. 1-1 at 2; 1-2 at 2.) They direct the debtor to make checks payable to “The SOS
Group.” (Docs. 1 at 5; 1-1 at 2; 1-2 at 2.)
Plaintiff argues that the letter, which improperly identifies Defendant as “The SOS
Group” and which imposes $2.00 convenience fee associated with payment of checks by phone,
violates various provisions of the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §
1692 et seq., which “Congress enacted [] to ‘eliminate abusive debt collection practices, to
ensure that debt collectors who abstain from such practices are not competitively disadvantaged,
and to promote consistent state action to protect consumers’”. (Doc. 1 at 2 (quoting Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010) (citing 15 U.S.C. §
1692(e)).) Plaintiff maintains that these letters are based upon a form or template that Defendant
sends as its initial communication to a consumer in connection with its collection of a debt. (Id.

1

As noted above, Defendant did not update its registration until December 2016—after the filing of the complaint—
to reflect its d/b/a name of “The SOS Group.” (Docs. 16 at 2; 16-1 at 1—2, 5—7.)

3

at 5.) She avers that Defendant has used this form letter to send collection notices to at least forty
(40) individuals in Louisiana within the one year preceding the filing of the complaint. (Id. at 6.)
Plaintiff seeks to represent the following class of individuals: “All persons in the State of
Louisiana to whom Defendant sent, within one year before the date of this complaint and in
connection with the collection of a debt, a collection letter based upon the Template.” (Id.)
In her complaint, Plaintiff alleges that Defendant violated six provisions of the FDPCA:
first, that Defendant violated Section 1692e(2)(B) “by falsely representing that it could legally
charge a $2.00 fee for payments made by check over the telephone and for falsely representing
that it was entitled to collect the Debt from Plaintiff when they are not licensed in the state as
required under Louisiana state law.” (Id. at 9.)
Second, she argues that Defendant violated Section 1692e(5) when it “threaten[ed] to
take an action against Plaintiff that cannot be legally taken or that was not actually intended to be
taken, including by taking a $2.00 fee for payments made by check over the telephone and for
attempting to collect the Debt from Plaintiff when they are not licensed” in Louisiana, as
required by law. (Id. at 10.)
Third, Plaintiff claims that Defendant violated Section 1692e(10) “by using false,
deceptive, or misleading representations or means to collect or attempt to collect a debt,”
including by the use of a name not registered with the Secretary of State and by “attempting to
collect a $2.00 fee for payments made by check over the telephone which they are not entitled to
charge”. (Id. at 11.)
Fourth, Plaintiff avers that Defendant violated Section 1962e(14), which “forbids the ‘use
of any business, company, or organization name other than the true name of the debt collector’s
business, company or organization’” because it “attempt[ed] to collect under the business name

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‘The SOS Group’ when this name is not registered with the Louisiana Secretary of State as
required by state law and is a name other than the true name of the debt collector’s business,
company, or organization.” (Id. at 13.)
Fifth, Plaintiff argues that Defendant violated Section 1692f, which prohibits a debt
collector from employing “unfair or unconscionable means to collect or attempt to collect any
debt” because Defendant “engag[ed] in unfair or unconscionable means to collect or attempt to
collect any debt from Plaintiff by attempting to collect a debt without complying with
Louisiana’s registration requirements.” (Doc. 1 at 14—15 (citing 15 U.S.C. § 1692f) (internal
quotation marks omitted)).)
Lastly, in her sixth cause of action, Plaintiff avers that Defendant violated Section
1692f(1) “by attempting to collect an amount from Plaintiff that is not expressly authorized by
the agreement creating the debt nor permitted by law, including by attempting to collect a $2.00”
convenience fee for checks by phone “when, upon information and belief, Defendant is not
expressly authorized or permitted by law to charge that amount.” (Id. at 16.)
III.

Discussion
a. Standard
i. Rule 12(b)(6)

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must
accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551
U.S. 89, 94 (2007). “Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court
expounded upon the Twombly standard, explaining that “[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

5

plausible on its face.’ “Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). “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. It follows that “where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the
pleader is entitled to relief.’ Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Assessing the certainty
of facts supporting a plaintiff’s claim, “the court is permitted to look at evidence in the record
beyond simply those facts alleged in the complaint and its proper attachments.” Ambraco, Inc. v.
Bossclip B.V., 570 F.3d 233, 238) (5th Cir. 2009)).
ii. Rule 56
“The court shall grant summary judgment if the movant shows that 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). If the mover bears his burden of showing that there is no genuine issue of fact, “its
opponent must do more than simply show that there is some metaphysical doubt as to the
material facts ... [T]he nonmoving party must come forward with ‘specific facts showing that
there is a genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587 (1986) (internal citations omitted). The non-mover's burden is not satisfied by
“conclusory allegations, by unsubstantiated assertions, or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations
omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co., 475 U.S. at
587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
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evidence in the record is such that a reasonable jury drawing all inferences in
favor of the nonmoving party could arrive at a verdict in that party's favor, the
court must deny the motion.
Int’l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
b. Parties’ Arguments
i. Defendant’s Motion to Dismiss or for Summary Judgment (Doc. 16)
Defendant argues it is entitled to dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6) or, alternatively, to summary judgment pursuant to Rule 56. In broad strokes, the crux
of Defendant’s argument is as follows:
Plaintiff is attempting to expand the scope of the Fair Debt Collection Practices
Act, 15 U.S.C. §1692, et seq. Plaintiff’s complaint does not allege actionable
misconduct by Defendant. She claims she and purported class members were
damaged, not from “collection” efforts or deceptive practices, but because: (a) a
mistaken belief that under Louisiana law, SOS must be “licensed” (which it is
not) and “registered” (which it is) and (b) because SOS offered her a voluntary
option, which she never accepted or even responded to, i.e, to make payments via
a “check by phone” in exchange for a $2.00 “convenience fee,” a practice which
is lawful under Louisiana law.
(Doc. 16 at 1 (emphasis original).) It notes that Plaintiff “never visited, called or spoke with
anyone at SOS”, nor did she answer a telephone call from SOS, nor did she communicate with
SOS in writing. (Id. at 2—3.) Plaintiff did not make payment to SOS by credit card or check, nor
did she authorize any check by phone payment to Defendant; she never incurred or paid the
$2.00 convenience fee or pay any other fee of any kind to Defendant. (Id. at 3; Doc. 16-3 at 7
(citing, e.g., Szczurek v. Professional Mgmt., Inc., 627 Fed. App'x. 57 (3d Cir. 2015); Benali v.
AFNI, Inc., 15-3605, 2017 WL 39558 (D. N.J. Jan. 4, 2017)).) Accordingly, Defendant insists
that Plaintiff has not adequately alleged an injury sufficient to confer Article III standing to bring
suit against it, either individually or on behalf of a putative class. (Doc. 16 at 3.) It insists that its
letter did not create the “risk of confusion, deception, or misleading anyone because both the

7

collection notices correctly state SOS’s registered Louisiana name and correct Ohio address.”
(Id.) It further argues that Plaintiff’s claims arising out of the convenience fee are misguided and
“are based on nothing more than ‘hyper-technical’ mistaken claims of falsehoods and bare
statutory violations” which do not confer standing in this Court. (Id.)
Alternatively, Defendant argues that if the Court finds Plaintiff has standing in this
matter, it is nonetheless entitled to dismissal or summary judgment because all of her claims are
based upon a nonexistent licensing requirement and a misunderstanding of Louisiana’s
registration requirement. (Id.) Defendant explains that the former Louisiana Collection Agency
Regulation Act, La. R.S. 9:3576.1 et seq., which required entities to obtain a license before
acting as a collection agency, was repealed in its entirety on August 15, 2003 through La. Acts.
2003, No. 638, § 1. (Id.) Since August 2003, Louisiana has not required its collection agencies to
be licensed; rather, they need only register with the Secretary of State. (Id.) Accordingly,
Defendant avers that Plaintiff’s claims arising out of SOS’s failure to obtain a license fail as a
matter of law. (Id.)
Next, Defendant argues that Plaintiff’s claims arising out of Defendant allegedly using a
name that is not registered with the Louisiana Secretary of State is misguided. It insists that it
complied with La. R.S. 9:3534.1B, “which simply requires that the collection agency ‘register’
with the Secretary of State. [Defendant] properly registered to do business in Louisiana in 2014
under the name ‘The HMC Group.’” (Id. at 3—4.) Defendant insists it complied with the statute
because both collection letters sent to Plaintiff “correctly identify Defendant as ‘The SOS Group
fka The HMC Group,’ at the correct Ohio address.” (Id. at 4 (emphasis original).) It further
alleges that “[t]here was no risk of confusion, deception, or misleading anyone, because
Defendant’s true business name and original Louisiana d.b.a. name were properly registered

8

when it mailed the collection notices at issue” and accordingly, Plaintiff’s claims concerning the
licensing and registration requirements must fail. (Id.)
Defendant also argues that Plaintiff’s claims that arise out of the $2.00 convenience fee
fail as a matter of law for three reasons; first, Plaintiff never paid the fee; second, such fees are
lawful in Louisiana; and third, Plaintiff’s contract with Ochsner provided for such fees, and she
agreed to accept responsibility for same by signing the contract. (Id. (citing Alexandria Emp't
Serv., Inc. v. Box, 282 So. 2d 776, 779 (La. App. 3 Cir. 1973); State v. Moss, 48,289 (La. App. 2
Cir. 2013), 127 So. 3d 979, 983; New Orleans & N. R. Co. v. La. Pub. Serv. Com., 164 So. 2d
300, 310 (1964); La. R.S. § 40:1322 B, § 47:532.1, and § 49:316.1.) With respect to the contract
argument, Defendant points to language in Plaintiff’s contract that states, “I understand that I am
responsible for all charges, or portions thereof, not covered by insurance or other sources.” (Doc.
16 at 4 (citing 16-1 at 2, 9).) Because the “check-by-phone convenience fee is a ‘charge… not
covered by insurance or other sources…,” for which Plaintiff accepted contractual
responsibility,” such contract defeats Plaintiff’s claim. (Id.) Additionally, Defendant insists the
imposition of a convenience fee for a check by phone is a lawful practice under Louisiana law,
which does not prohibit collection agencies from imposing such fees. (Id.) It points to the fact
that several Louisiana statutes explicitly authorize state agencies and attorneys to collect similar
fees, and therefore, the collection of such fees by a collection agency is tacitly endorsed by
Louisiana law. (Doc. 16-3 at 15 (citing La. R.S. § 40:1322 B, § 47:532.1, §49:316.1; La. State
Bar Association Rules of Professional Conduct Committee PUBLIC Opinion 12-RPCC-0191
(November 29, 2012)).)
In sum, Defendant insists that nothing in the collection notices it sent to Plaintiff was
inaccurate or misleading, to her or the “hypothetical unsophisticated consumer” and that all of

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her claims are premised upon erroneous factual or legal notions. (Id. at 5; Doc. 16-3 at 7 (citing
Hrivnak v. NCO Portfolio Mgmt., 994 F. Supp. 2d 889, 900 (N.D. Ohio 2014)).) It avers that
Plaintiff has suffered no concrete injury, and thus lacks Article III standing to sue, and even if
she had such standing, she has failed to state a claim upon which relief can be granted. (Id.)
Accordingly, it insists that her claims must be dismissed or disposed of via summary judgment.
ii. Plaintiff’s Opposition (Doc. 27)
Plaintiff prefaces her opposition by characterizing the case as follows:
[t]his case is about a consumer who received a collection letter that attempted to
collect an additional “convenience fee” not allowed by the contract or by law, and
was sent by a debt collector who failed to clearly convey its identity. Defendant’s
collection letters would, therefore, leave the least sophisticated consumer
guessing about important information regarding her debt.
(Doc. 27 at 1.)
In her initial opposition, Plaintiff argues that Defendant’s motion for summary judgment
is premature and that she needs time to conduct discovery before the Court should consider the
evidence attached to Defendant’s motion (namely, the contract between Plaintiff and Ochsner).2
(Id. at 4.) She attaches a Rule 56(d) declaration authored by Plaintiff’s counsel that sets forth the
reasons for the delay and requests additional time to conduct discovery before reaching the
merits of Defendant’s summary judgment. (See Doc. 27-1.)
Turning to the merits of Defendant’s motion under Rule 12(b)(6), Plaintiff insists that she
has Article III standing because she has suffered an injury in fact. (Doc. 27 at 6.) Specifically,
under the FDCPA, “Plaintiff has a legally protected interest in avoiding misleading or unfair
attempts to collect the debt.” (Id. (citing 15 U.S.C. §§ 1692e, 1692f).) She argues that Congress

2

However, as discussed below, in her supplemental memorandum in opposition, Plaintiff states that she has
received a copy of the contract through discovery and addresses Defendant’s motion for summary judgment on the
merits. (See Doc. 37.)

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enacted the FDCPA precisely to protect consumers from the misleading collection notices that
she received, and that the FDCPA’s protections are broad and far-reaching to ensure debt
collectors cannot use “false, misleading, or unfair practices in connection with the collection, or
attempted collection, of any debt.” (Id. at 7 (citing 15 U.S.C. §§ 1692e, 1692f).) She avers that
Defendant’s notice, which contained an optional $2.00 convenience fee that it was not permitted
to impose, is the exact type of harm the FDCPA was enacted to prevent. (Id.) She insists her
injury was both concrete (the receipt of the collection notices that violate the FDCPA) and
particularized (it happened to her; it “is not hypothetical or generalized”). (Id. at 7—8.) Plaintiff
cites a litany of cases in which courts have found that Plaintiffs alleging similar FDCPA
violations have standing to bring such claims. (Id. at 8 (citing In re Robinson, 554 B.R. 800,
809–10 (Bankr. W.D. La. 2016); Sayles v. Advanced Recovery Sys., Inc., 14-911, 2016 WL
4522822, at *2 (S.D. Miss. Aug. 26, 2016); Dunham v. Portfolio Recovery Associates, LLC, 663
F.3d 997, 1002 (8th Cir. 2011); Graf v. Pinnacle Asset Grp., LLC, 14-1822, 2015 WL 632180, at
*2 (D. Minn. Feb. 12, 2015); Baker v. G. C. Servs. Corp., 677 F.2d 775, 777 (9th Cir. 1982)).)
Plaintiff insists that the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct.
1540 (2016) did not overrule four decades of FDCPA caselaw that found plaintiffs with similar
claims to those at issue here had standing. (Id. at 9.) She claims that “Spokeo specifically pointed
to misleading communications as an example of injuries-in-fact that create standing” and notes
that Spokeo cited Havens Realty Corp. v. Coleman, 455 U.S. 363, 364 (1982) in support of the
proposition that “the deprivation of a right not to be ‘the object of a misrepresentation made
unlawful’ by a statute satisfies the injury-in-fact requirement. (Id. at 9—10 (citing Spokeo, 136 S.
Ct. at 1553 (citing Havens)).) She insists that under this jurisprudence, one who “has been the
object of a prohibited misrepresentation has ‘suffered injury in precisely the form the statute was

11

intended to guard against, and therefore has standing to maintain a damages claim.’” (Id. at 10.)
Furthermore, Plaintiff notes that post-Spokeo cases arising under the FDCPA have
“overwhelmingly” concluded that the Plaintiff had standing to bring such claims. (Id. at 10—11
(citing, e.g., Church v. Accretive Health, Inc., 15-15708, 654 Fed. App’x 990 (11th Cir. 2016);
Saenz v. Buckeye Check Cashing of Illinois, 16-6052, 2016 WL 5080747 at *2 (N.D. Ill. Sept.
20, 2016); Masson v. Pioneer Credit Recovery, Inc., 16-1887, 2017WL 819099, at *3 (E.D. La.
Mar. 2, 2017); In re Robinson, 554 B.R. 800, 809–10 (Bankr. W.D. La. 2016); Sayles, 14–911,
2016 WL 4522822, at *2–3).)
Plaintiff argues that the FDCPA is a strict liability statute that is “liberally construed in
favor of the consumer” and that jurisprudence directs the Court to evaluate her claims under the
“least sophisticated consumer” standard. (Id. at 12—13 (quoting Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (internal citation omitted)).) Turning to the individual claims, Plaintiff avers
that Defendant violated Section 1692f(1) by attempting to collect an amount not expressly
authorized by the contract giving rise to the debt or otherwise permitted by state law. (Id. at 13.)
She argues that “as permitted by law” under the FDCPA necessarily means an affirmative
authorization and that the Court cannot infer tacit endorsement by the state as a result of silence
on the matter. (Id. at 14 (citation omitted).) She cites a host of district court cases that have
concluded the attempt to collect a convenience fee when not explicitly authorized by the contract
or by state law constitutes a violation of Section 1692f(1). (Id. (citing Weast v. Rockport Fin.,
LLC, 115 F. Supp. 3d 1018, 1019 (E.D. Mo. July 17, 2015); Quinteros v. MBI Assocs.,
Inc., 999 F. Supp. 2d 434, 436 (E.D.N.Y. 2014); Shami v. Nat’l Enter. Sys., 09–722, 2010 WL
3824151 at *2–4 (E.D.N.Y. Sept. 23, 2010).
Moreover, she argues that the fact that the convenience fee is imposed in only one of the

12

multiple options for payment does not absolve Defendant of liability under the statute because it
has no bearing on the issue “that Defendant attempted to collect a fee it was not legally entitled
to collect.” Plaintiff distinguishes the cases Defendant relies upon in its motion, arguing that the
cases that “allowed a convenience fee did so on the basis that the debt collector was passing
through an expense that was charged by an independent entity.” (Id. at 15 (citing Lewis v. ACB
Bus. Servs., Inc., 911 F. Supp. 290, 293 (S.D. Ohio 1996)).) She argues such is not the case here,
nor has Defendant alleged such circumstances here. (Id.) Simply stated, the collection letter
Defendant sent Plaintiff included a $2.00 convenience fee to pay via check by phone; such fee
was not expressly authorized by law or by contract, and therefore it violates Section 1692f(1).
(See id. at 16.) She notes that Defendant has cited no law or jurisprudence that would allow it—
as a private entity debt collector— to impose such fee. (Id.)
Plaintiff also argues that the fact she did not actually pay the convenience fee is of no
consequence because the statute prohibits both actual collection and attempts to collect such fees.
(Id. at 17 (citation omitted.) She notes this is consistent with the language of the FDCPA itself,
because Section 1692f “states that the specifically enumerated sections do not ‘limit[] the general
application’ against the use of ‘unfair or unconscionable means to collect or attempt to collect
any debt.’” (Id. at 17—18 (citing 15 U.S.C. § 1692f (emphasis added by Plaintiff)).) Thus, to
interpret Section 1692f(1) to apply only to actual collection of fees would run afoul of the plain
language of the statute.
Next, turning to Plaintiff’s claims arising under Section 1692e, Plaintiff argues that
Defendant’s actions violate this provision, which prohibits “the use of ‘any false, deceptive, or
misleading representation or means in connection with the collection of any debt.’” (Id. at 18
(citing 15 U.S.C § 1692e).) She argues that jurisprudence has interpreted this provision broadly

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and that it is intended to reach and prevent all abusive debt collection practices that would tend
to mislead or deceive a consumer. (Id. (citation omitted).) She notes that under subsection
1692e(2)(B), a debt collector may not utilize false representations to collect otherwise lawful
fees. (Id.) Additionally, subsection 1692e(5) prohibits a debt collector from making any threats
to take any action that cannot legally be taken or not intended to be taken, and that under both
subsections, an attempt to collect constitutes a violation of the FDCPA. (Id.)
Plaintiff also avers that “Defendant violated the FDCPA by attempting to collect under a
name it was not registered under at the time it sent collection letters to Plaintiff.” She concedes
that she inadvertently referenced a “licensing requirement” but that she nonetheless cited the
proper and current statute that states that “[a]ny collection agency or debt collector doing
business in this state shall register with the secretary of state.” (Id. at 19 (citing Doc. 1 and La.
R.S. § 9:3534.1B).) She notes that at the time Defendant sent her the collection notices, it had not
yet changed its name with the Secretary of State, and only did so after the filing of the instant
suit on December 8, 2016. (Id. (citing Doc. 16 at 1).) The notices identified Defendant as “The
SOS Group fka The HMC Group” in one part of the letter and as “The SOS Group” in another
part of the same letter (albeit on the same page). She claims that in light of Defendant’s failure to
register, the notice itself violated Section 1692e(5) because it “threaten[ed] to collect a debt from
Plaintiff without being properly registered with the Secretary of State[.]” (Id. at 20.) Her
argument proceeds that because Defendant did not properly register with the Secretary of State
as “The SOS Group,” it was not authorized to act as a debt collector under that name, and
therefore the collection notices, which she construes to be a threat to collect a debt, violated
Section 1692e(5) and La. R.S. 9:3534.1B. (Id.)
Moreover, Plaintiff alleges that using a name other than its registered name violated

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Section 1692e(14), which “forbids the ‘use of any business, company, or organization name
other than the true name of the debt collector’s business, company, or organization.’” (Id. at
20—21 (citing Hartman v. Meridian Financial Services, Inc., 191 F. Supp. 2d 1031, 1045 (W.D.
Wis. 2002)).) Plaintiff notes that the FDCPA does not define what an entity’s “true name” is, but
asserts that jurisprudence has interpreted this requirement to mean a name that is not “false,
deceptive, or misleading.” (Id. at 21 (citing Mahan v. Retrieval-Masters Credit Bureau, Inc., 777
F. Supp. 2d 1293, 1298–99 (S.D. Ala. 2011)).) She insists that “the least sophisticated consumer
could be misled by the use of any name other than the debt collector’s actual corporate name or
its registered trade name.” (Id.)
She argues that against this backdrop, the March 30, 2016 and July 20, 2016 letters,
which include the names “The SOS Group” and “The SOS Group fka The HMC Group” are
misleading to the least sophisticated consumer because it was not until December 2016 that
Defendant registered the name “The SOS Group” with the Secretary of State. (Id.) Thus,
suggesting that Defendant was “formerly known as The HMC Group” is misleading because at
the time it was sending these notices, it was not formerly known as The HMC Group; it was
then-presently and solely known as The HMC Group. Plaintiff avers that the legislative purpose
behind Section 1692e(14) “is to ensure that the consumer can identify the collection agency so
that the consumer may research and gain greater information about the entity they are receiving
collection letters from” so as to allow the consumer to do her due diligence on the entity. (Id. at
22.) She argues that due to Defendant’s failure to properly register the name “The SOS Group”
with the Secretary of State, the least sophisticated consumer will be left wondering about
Defendant’s identity and would be unable to ascertain whether Defendant is a legitimate
collection agency, thus rendering its failure to register a violation of Section 1692e(14). (Id.)

15

In a similar argument, Plaintiff asserts that Defendant’s failure to register the name “The
SOS Group” also violated Sections 1692e(10) and 1692f “because using a name other than the
one it is registered under is false, misleading, and unfair.” (Id.) Plaintiff argues that under La.
R.S. § 9:3534.1B, a collection agency doing business in Louisiana must register with the
Secretary of State; the purpose of this statute is to uphold the strictures of the FDCPA in
Louisiana. (Id. at 23.) She further argues that aside from protecting consumers, another aim of
the FDCPA is to protect collection agencies who do comply with the statute and corresponding
state statutes from being competitively disadvantaged by other entities refusal to adhere to the
strictures of the statute and their attempts at unfair and illegal collection methods. (Id.)
Plaintiff claims that Defendant agrees with her that the purpose of registration statutes “is
to enable regulators and consumers alike to easily locate collection agency [sic] should the need
arise.” (Id. (citing Doc. 16-3 at 11).) She claims that using a name other than the one registered
with the Secretary of State obfuscates this purpose. (Id. at 24.) By representing that Defendant
was “fka The HMC Group,” Plaintiff insists that the least sophisticated consumer would be
unable to locate Defendant. (Id.) Therefore, she insists the use of a name other than that which
was registered with the Louisiana Secretary of State is unfair, misleading, and deceptive and thus
violative of Sections 1692e(10) and 1692f. (Id.)
To shore up her prior arguments, Plaintiff insists that Defendant’s misrepresentations, as
outlined above, are “material” under the FDCPA. (Id.) She claims a misrepresentation is
“material” if it has the ability to influence a consumer’s decision. (Id. (quoting Gomez v.
Niemann & Heyer, L.L.P., 16-119, 2016 WL 3562148, at *4 (W.D. Tex. June 24, 2016) (internal
citations omitted)).) She argues that “[c]ourts have stated that the materiality standard is more
like a ‘corollary’ to the least sophisticated consumer standard and that where ‘a statement would

16

not mislead the unsophisticated consumer, it does not violate the [Act]—even if it is false in
some technical sense.’” (Id. at 24—25 (quoting Donohue v. Quick Collect, Inc., 592 F.3d 1027,
1033–34 (9th Cir. 2010) (internal citation omitted)).) She asserts that the materiality standard,
like the least sophisticated consumer standard, must be evaluated on an objective basis and that
to ask whether the misrepresentation was material to a specific plaintiff impermissibly conflates
the objectivity requirement with a subjective inquiry. (Id. at 25 (citing, e.g., Gorman v. Messerli
& Kramer, P.A., 15-1890, 2016 WL 755618, at *5 (D. Minn. Feb. 25, 2016)).)
Here, Plaintiff claims that Defendant’s material misrepresentations are twofold: the first
occurred when it represented to consumers that it could lawfully collect a convenience fee for
checks made via telephone. (Id.) The second material misrepresentation relates to Defendant’s
represented name on the collection notices (“The SOS Group” or “The SOS Group fka The
HMC Group”). (Id.) She argues that these misrepresentations “would—and did—impact a
consumer’s decision making with regard to their debt.” (Id.) Therefore, such misrepresentations
are material because they would affect the least sophisticated consumer’s decision making with
respect to how to pay his or her debt. (Id. at 26.)
iii. Defendant’s Reply (Doc. 30)
As a procedural matter, Defendant argues that Plaintiff has waived her right to a Rule
56(f) delay by responding on the merits, and thus the Court should consider (and grant) its
motion for summary judgment. (Doc. 30 at 2.) It argues that Plaintiff’s rationale for seeking a
delay in ruling on summary judgment—that she needs a copy of the actual contract she executed
with Ochsner—is insufficient to meet the standard meriting such delay in this Circuit. (Id. (citing
e.g., Wade v. Brennan, 13-5422, 2015 WL 3849310 (E.D. La. June 22, 2015), aff’d, 647 Fed.
App’x 412 (5th Cir. 2016)).) This is because under Louisiana law, hospitals are statutorily

17

obligated to produce a patient’s billing records to her upon her request; when the grounds for the
delay are reasonably ascertainable to a plaintiff, she is not entitled to such delay. (Id.)
Next, turning to the threshold issue of standing, Defendant reiterates that Plaintiff lacks
Article III standing to sue under the specific factual circumstances alleged in this case. (Id. at 4.)
It argues that this Court “and others [must] properly decide standing issues based on pleaded
facts, not arguments of counsel, plausibly demonstrating a concrete injury.” (Id. (citing, e.g.,
Meyers v. Nicolet Rest. of De Pere, 843 F.3d 724 (7th Cir. 2016); Accent Title, LLC v. Ocwen
Loan Servicing, LLC, 2015 U.S. Dist. LEXIS 80648, at *6 (M.D. La. June 22, 2015)).)
Defendant cites Landrum v. Blackbird Ent., LLC, 214 F. Supp. 3d 566 (S.D. Tex. 2016) and
Abercrombie v. Rogers, Carter & Payne, LLC, 15-2214, 2016 WL 8201965 (W.D. La. Nov. 22,
2016), report and recommendation adopted in 2017 WL 489426 (W.D. La. Feb. 5, 2017), which
it claims are the only two post-Spokeo cases from within the Fifth Circuit that have considered
Article III injury in the context of the FDCPA. (Id. at 5.) It claims that both cases were dismissed
for lack of standing based upon the exact same “bare statutory violations” Plaintiff alleges here,
and thus this Court should follow the logic of Landrum and Abercrombie and dismiss Plaintiff’s
claims for lack of standing. (Id.) It further argues that Lee v. Verizon Communications, Inc., 837
F.3d 523 (5th Cir. 2016), although arising under a violation of ERISA, provides guiding
language that the Court must follow here. (Id. at 4—5.) It argues that Lee stands for the farreaching proposition that a violation of a statutory right cannot confer standing because the
violation “did not establish a concrete harm where there was no allegation of a real risk that
[plaintiff's] defined-benefit-plan payments would be affected’”. (Id. at 4 (quoting Lee, 837 F.3d
at 530).) It argues all of the cases by Plaintiff are either: nonbinding from other circuits, preSpokeo cases, and Fifth Circuit cases “predating or not mentioning the contrary [Fifth] Circuit

18

teachings in Lee[.]”
Furthermore, Defendant notes that the majority of Plaintiff’s cited cases were decided on
a 12(b)(6) motion where the court had to accept the factual allegations in the complaint as true.
(Id. at 5—6.) In light of Defendant’s earlier arguments that Plaintiff is not entitled to a Rule 56(f)
delay, it insists that its motion for summary judgment is ripe and the Court should not delay in its
consideration of same. Therefore, the allegations in Plaintiff’s complaint should no longer be
accepted as true. (Id. at 6.) Defendant claims that Plaintiff has admitted that she never paid the
convenience fee, never interacted with Defendant, and thus she has not demonstrated that she
suffered “any concrete, actual, or imminent threat of injury.” (Id.)
Reaching the merits of Plaintiff’s claims, Defendant first argues it is entitled to summary
judgment on her claims arising out of the $2.00 convenience fee. (Id. at 7.) It notes that the $2.00
convenience fee was never subsumed in the debt owed to Ochsner; at all times, it represented the
total amount Plaintiff owed to Ochsner as a freestanding number, and then, separate and distinct
from the debt owed, it offered several ways to pay the debt, one which included a $2.00
convenience fee should the consumer desire to pay via check by phone. (Id.) There was nothing
misleading or deceptive about the notice; it never attempted to conceal the fee or roll it into the
debt owed to Ochsner. (Id.) Defendant notes that Plaintiff’s opposition failed to address the
litany of cases that Defendant cites that have held that such fees, when presented in a similar
manner to that which is at issue here, are lawful. (Id. (citing, e.g., Benali v. AFNI, Inc., 15-3605,
2017 WL 39558 (D. N.J. Jan. 4, 2017). It argues that Plaintiff, like in Benali, has not even
alleged that she suffered actual or threatened harm; she does not aver that she was confused by
the notices, in fact she paid all debts directly to Ochsner; moreover, she failed to allege “that she
even had a telephone or a checking account, without which she could not even attempt a ‘check

19

by phone’ payment.” (Id. at 8.) Thus, any alleged harm here is entirely “conjectural or
hypothetical[.]” (Id.)
Defendant asserts that this Court looks to Louisiana law to determine what constitutes a
false, misleading, or unfair practice. (Id. at 9 (citing Duplessie v. Riddle, 14-442, 2016 WL
2993182 (M.D. La. May 23, 2016). It asserts that convenience fees are entirely lawful under
Louisiana law, and asserts that while the power to do so is expressly provided for by statute with
respect to governmental agencies, such statutory authorization is not required here “because
governmental entities only possess the powers conferred upon them by statute. Louisiana private
individual and corporate citizens such as the parties to this litigation, on the other hand, need no
statutory authority to contract to exercise their constitutional right to voluntarily contract with
respect to any lawful subject matter.” (Id.) Further, it insists that even the least sophisticated
consumer would understand that the $2.00 convenience fee is contingent upon the payment of
check by phone, and insists the letter was not misleading or deceptive, or would it induce
Plaintiff (or the least sophisticated consumer) “to collect a fee not yet demanded, incurred, or
owed.” (Id.) It avers that the offering of several options of payment, where only one incurs a
convenience fee, “is clearly an ‘available non-abusive collection method’ which Congress
intend[ed] to preserve and not circumscribe by enacting the FDCPA.” (Id. (citing 15 U.S.C.
§1692(b)).)
With respect to Plaintiff’s claims arising out of Defendant’s use of the name “The SOS
Group” or “The SOS Group fka The HMC Group,” Defendant notes that all notices sent to
Plaintiff reflect the proper and registered mailing address, and that they provided a toll-free
telephone number to reach its representatives. (Id. at 10.) Therefore, according to Defendant,
there was nothing misleading or deceptive about the way it portrayed its name because “[s]tate

20

regulators have never questioned SOS’s registered d.b.a.’s.” (Id.) Defendant argues that while
“true name” is not defined in the FDCPA, the Supreme Court has “opined that this provision is
intended to prohibit use of names that are false, deceptive, or misleading.” (Id. at 11 (citing
Sheriff v. Gillie, 136 S. Ct. 1594, 1600-1602 (2016)).) The FDCPA does not, however, proscribe
other available non-abusive collection methods, which is what Defendant insists it employed in
its collection notices to Plaintiff. (Id.)
Defendant encourages the Court to borrow the FTC’s position on the issue, which “is that
a debt collector’s ‘true name’ encompasses not only its formal corporate name, but also the name
under which it usually transacts business.” (Id. at 12.) Against this backdrop, Defendant argues
its “true names” include “not only its formal corporate name (Head Mercantile Co., Inc.) but also
the name under which it originally registered in Louisiana (Head Mercantile Co., Inc. d.b.a. The
HMC Group) and its current, updated registered name (Head Mercantile Co., Inc. d.b.a. the SOS
Group).” (Id.) Defendant calls Plaintiff’s claim that a consumer would be unable to identify and
locate Defendant based upon the misrepresentations in the notice relating to its name is
“disingenuous, at best.” (Id.) It notes that despite the later addition of “The SOS Group” to its
registered name, at all times, its Ohio address and toll free number have remained unchanged,
and therefore, Plaintiff and others who received the collection notice would have been able to
easily identify Defendant. (Id.)
Turning to Plaintiff’s argument regarding the materiality of Defendant’s alleged
misrepresentations, Defendant concedes that the least sophisticated consumer is the proper
standard against which the Court must evaluate Plaintiff’s claims. However, it insists that this
standard “is not one ‘tied to the very last rung on the [intelligence or] sophistication ladder.’” (Id.
at 13 (quoting Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004)

21

(internal quotation marks and citation omitted)).) Thus, collection letters that lack any
misrepresentation or false or deceptive language in connection with the collection of the debt are
not actionable in the Fifth Circuit or any other jurisdiction. (Id. (citing e.g., Peter v. GC Servs.
L.P., 310 F.3d 344, 350 (5th Cir. 2002)).) Defendant reiterates the fact that the collection notice
never incorporated the convenience fee into the total debt owed, which always reflected the
balance the consumer owed to the third party (here, Ochsner), and that the $2.00 convenience fee
was clearly a separate and optional charge connected to one of the several forms of payment
offered in the notice. (Id. at 14.) In sum, Defendant avers that “[P]laintiff’s own acts and
omissions corroborate that there nothing materially misleading to a hypothetical unsophisticated
consumer in either notice.” (Id. at 15.)
iv. Plaintiff’s Supplemental Opposition (Doc. 37)
In her supplemental memorandum in opposition, Plaintiff represents that she obtained the
document she requested through discovery (i.e. the actual contract she executed with Ochsner, as
opposed to the pro forma Ochsner contract Defendant attached to its motion for summary
judgment), and is prepared to address the merits of Defendant’s Rule 56 motion for summary
judgment. (Doc. 37 at 1.) She reiterates her argument that Defendant has failed to cite to any
jurisprudential or statutory authority to allow it—a private collection agency; not a government
agency, not a lawyer—to charge a convenience fee under Louisiana law. (Id. at 2.)
Additionally, now that she has had opportunity to review the contract between her and
Ochsner, Plaintiff avers that the contract does not expressly authorize the imposition of the
convenience fee. (Id.) Accordingly, with no express provision in law or in the contract, Plaintiff
insists that the imposition of the convenience fee violates the FDCPA and that “Defendant is not
entitled to summary judgment on Plaintiff’s claims that Defendant violated 15 U.S.C. §§

22

1692f(1), 1692e(2)(B), 1692e(5), and 1692e(10).” (Id. (citing, e.g., Weast, 115 F. Supp. 3d at
1022).) Specifically, she cites the provision of the contract that provides for her acceptance of
financial responsibility and notes that it “bind[s] Plaintiff only to charges made for the ‘services
and supplies’ that Plaintiff, as a ‘patient’ of the hospital, receives[.]” (Id. (citing Doc. 37-1 at 3).)
She argues that this provision of the contract speaks solely to the charges imposed by the original
creditor, Ochsner, and is silent on charges arising out of Defendant’s debt collections. (Id. at 3.)
She maintains that a plain reading of the contract clearly indicates that the “services and
supplies” referenced therein relate solely to the services and supplies Ochsner provides her as a
patient. (Id.) She insists this is insufficient to entitle Defendant to summary judgment on her
claims, as judgment would only be appropriate in the face of express authorization in the contract
that the debt collection agency is permitted to charge a convenience fee in connection with the
collection of the debt. (Id.) In the absence of such express authorization, she avers that her claims
must survive summary judgment. (Id.)
v. Defendant’s Supplemental Reply (Doc. 38)
Defendant attempts to construe Plaintiff’s silence regarding the name registration claims
in her supplemental opposition as a tacit concession that the claims are meritless. (Doc. 38 at 1.)
Moreover, with respect to all claims, Defendant reasserts its position that Plaintiff has failed to
demonstrate “an injury in fact that is concrete and actual or imminent”, and therefore it is entitled
to summary judgment on her claims against it. (Id. (citing Abbott v. BP Expl. & Prod., Inc., 851
F.3d 384, 388 (5th Cir.2017)).) In support, Defendant argues:
Ms. McLain postulates that HMC violated the FDCPA merely by stating that ‘a
$2.00 convenience fee applies to checks by phone’ among other no-cost payment
method options in two dunning notices, which she utterly ignored. Nowhere are
we told how this caused her actual or potential real-world harm. This omission
prompts the same rhetorical question posed, and mandates the same answer
voiced by the Seventh Circuit in Meyers v. Nicolet Rest. of De Pere, LLC, [843
23

F.3d 724, 728–29 (7th Cir.2016), cert. denied, 137 S. Ct. 2267 (U.S. 2017),]
namely, ‘[t]his case asks whether the violation of a statute, completely divorced
from any potential real-world harm, is sufficient to satisfy Article III's injury-infact requirement. We hold that it is not.’ The Fifth Circuit, [Verizon Commc'ns,
837 F.3d at 530] this Court, [Abercrombie, 2016 WL 8201965, at *4 and *13 n.4;
see also Accent Title, LLC v. Ocwen Loan Servicing, LLC, 2015 U.S. Dist. LEXIS
80648, at *6 (M.D. La. June 22, 2015),] other Fifth Circuit district courts, [Dyson
v. Sky Chefs, Inc., 2017 WL 2618946, at *3-7 (N.D. Tex. June 16, 2017);
Landrum v. Blackbird Enterprises, LLC, 214 F.Supp.3d 566, 570 (S.D.
Tex.2016),] and others[see, e.g., Gubala v. Time Warner Cable, Inc., 846 F.3d
909, 2017 U.S. App. LEXIS 1058, 2017 WL 243343, at *4
(7th Cir. Jan. 20, 2017); Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 583
(6th Cir. 2016),] all agree. Ms. McLain’s FDCPA claims are conceptual,
theoretical and completely divorced from any proof of any actual or potential realworld harm. Thus, she lacks Article III standing.
(Id. at 1—2.)
Defendant avers that in Louisiana checks by phone are technically known as “remotelycreated checks”, and that they are not only lawful, but endorsed as beneficial to consumers and
debt collectors alike. (Id. at 3.) It insists that these fees are not abusive to consumers, and to
prohibit them would serve to disadvantage Defendant. (Id.) It argues that private citizens and
businesses are constitutionally guaranteed the right to contract with one another for a lawful
purpose; therefore, entities such as Defendant are free to offer a voluntary convenience fee that
the debtor may choose to accept or reject. (Id. at 3—4.)
Next, Defendant contends that when Plaintiff signed the contract with Ochsner, she
“expressly agreed with Ochsner and Defendant that she was responsible for ‘all charges, or
portions thereof, not covered by insurance or other sources.’” (Id. at 4.) It notes that on at least
four occasions, Plaintiff entered into agreements with Ochsner (attached to Defendant’s reply as
“Exhibit A”; Doc. 38-1), which rendered Ochsner Plaintiff’s statutory creditor. (Id.) It insists that
the contracts between Plaintiff and Ochsner obligated Plaintiff to pay whatever debts she
incurred as a consequence of the medical services provided by Ochsner, irrespective of whether

24

that debt is owed to Ochsner directly, or to a third party debt collector on behalf of Ochsner (i.e.
Defendant). (Id.) It insists the convenience fee is lawful under Louisiana law because “[a]
referral to a collection agency creates a collection assignment relationship. Under such an
arrangement, the collection agency steps into the shoes of and acquires the rights of the creditor,
even though the creditor retains equitable ownership of the underlying account.” (Id. at 5 (citing
Telerecovery of La, Inc. v. Major, 98-1191 (La. App. 1 Cir. 5/18/99), 734 So. 2d 947, 948, writ
denied, 99-2293 (La. 11/12/99) 750 So. 2d 196; Gibbs v. Giering, 183 So. 2d 459, 461-62 (La.
App. 3 Cir. 1966).)
In sum, Defendant insists that its “purely optional convenience fee offer was, therefore,
not a ‘false, deceptive or []misleading’ act as contemplated by §1692e(2)(B).” (Id. at 5.) It
further argues that its “lawful offer is neither a [‘]threat to take action that cannot legally be
taken’ as contemplated by §1692e(5) or a ‘use of any false representation or deceptive means to
collect or attempt to collect any debt….’ according to §1692e(10).” (Id.)
c. Analysis3
i. Article III Standing4
The issue of standing presents a “threshold jurisdictional question” in any suit filed in
federal district court. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998). The
requirement that a party have standing to bring suit flows from Article III of the Constitution,
which limits the scope of the federal judicial power to the adjudication of “cases” or

3

Given that Defendant has filed both a 12(b)(6) motion to dismiss and a Rule 56 motion for summary judgment, the
Court will deviate between these two standards. To the extent that a claim may be disposed of via the 12(b)(6)
standard, the Court will dismiss accordingly. If a claim survives the 12(b)(6) standard, the Court will also evaluate it
under the lens of Rule 56 to ensure full treatment on the merits of both of Defendant’s motions.
4
Although challenges to Article III standing are typically brought through a 12(b)(1) motion for lack of subject
matter jurisdiction, the Court declines to dwell on the inartful styling of the motion and reaches the substance of
Defendant’s contentions. see Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011)
(internal citation omitted) (“Unlike a dismissal for lack of constitutional standing, which should be granted under
Rule 12(b)(1), a dismissal for lack of prudential or statutory standing is properly granted under Rule 12(b)(6).”).

25

“controversies.” U.S. CONST. art. III, § 2. Standing consists of three elements: (1) the plaintiff
must have suffered an “injury-in-fact,” which is an invasion of a legally protected interest that is
“concrete and particularized” and “actual or imminent”; (2) the injury must be “fairly traceable”
to the challenged conduct of the defendant; and (3) it must be likely that plaintiff's injury will be
redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016)
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). As the party invoking federal
jurisdiction, the plaintiff bears the burden of establishing each element of standing. Spokeo, 136
S. Ct. 1540 at 1547. To carry this burden, the plaintiff must support each element with the
“manner and degree of evidence required at the successive stages of litigation.” Lujan, 504 U.S.
at 561.
As the most recent statement from the Supreme Court on the issue of standing in relation
to the concrete injury requirement, Spokeo, a case dealing with standing under the Fair Credit
Reporting Act (“FCRA”), guides this Court’s analysis in the instant matter. However, at the
outset, it is important to note that Spokeo did not rule on what does or does not constitute a
concrete injury, even in the context of the FCRA; it simply held that to have standing, a plaintiff
must allege an injury that is both concrete and particularized. 136 S. Ct. at 1548. To that end, a
“particular” injury is one that “affect[s] the plaintiff in a personal and individual way” and the
“concrete” requirement requires the injury to be “de facto,” in other words, it must actually exist,
and not be hypothetical or conjectural. Id. at 1548. Nonetheless, “concrete” is not “necessarily
synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to recognize [the
Court has] confirmed in many [ ] previous cases that intangible injuries can nevertheless be
concrete.” Id. at 1549 (citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009); Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)).

26

Furthermore, Spokeo held that a plaintiff must allege a concrete and particularized injury
that goes beyond a “bare procedural violation, divorced from any concrete harm” in the context
of the FCRA because a “violation of one of the FCRA’s procedural requirements may result in no
harm.” Id. at 1550. This is particularly important to the issue before the Court because the FCRA
significantly differs from the FDCPA in ways that make a meaningful difference in whether a
bare procedural violation of the statute—without more—gives rise to a “concrete” injury.5 In
spite of its language limiting the instances in which a procedural violation could constitute a
concrete injury, even Spokeo recognized that such violation of a procedural right granted by
statute “can be sufficient in some circumstances to constitute injury in fact” and in such
instances, “a plaintiff need not allege any additional harm beyond the one identified by
Congress.” 136 S. Ct. at 1544 (emphasis original); see also LaVigne v. First Cmty. Bancshares,
Inc., 215 F. Supp. 3d 1138, 1143 (D.N.M. 2016) (discussing Spokeo).
The Fair Debt Collection Practices Act was enacted “to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA is
intended “to protect consumers who have been victimized by unscrupulous debt collectors,
regardless of whether a valid debt actually exists.” Baker v. G. C. Servs. Corp., 677 F.2d 775,

5

As summarized by the Western District, it is important to understand why certain elements of Spokeo do not
necessarily translate well outside the context of the FCRA because:
[i]n Spokeo, the Supreme Court observed that, by enacting the Fair Credit Reporting Act
(“FCRA”), Congress clearly sought to curb the dissemination of false information by adopting
procedures to decrease the risk. Spokeo, supra. However, a violation of one of the FCRA's
procedural requirements may result in no harm. Id. The Court gave two examples: 1) a consumer
agency that fails to provide required notice to a user, but the information is entirely accurate, and
2) a consumer reporting agency provides inaccurate information such as an incorrect zip code,
that, without more, proves difficult to imagine how it could work any concrete harm. Id.
Abercrombie v. Rogers, Carter & Payne, LLC, 15-2214, 2016 WL 8201965, at *3 (W.D. La. Nov. 22,
2016).

27

777 (9th Cir. 1982); see also Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 392 (5th
Cir. 2002) (“Congress, through the FDCPA, has legislatively expressed a strong public policy
disfavoring dishonest, abusive, and unfair consumer debt collection practices, and clearly
intended the FDCPA to have a broad remedial scope.”).
In the post-Spokeo world, courts have consistently found that plaintiffs bringing claims
similar to Plaintiff’s under the FDCPA have Article III standing. The Fifth Circuit has had only
one occasion to consider the issue of standing under the FDCPA in the post-Spokeo context, and
although a different provision of the statute was at issue there, the Court held that the district
court properly found that the plaintiff had Article III standing. Sayles v. Advanced Recovery Sys.,
Inc., 865 F.3d 246, 16-60640, 2017 WL 2872343, at *3 (5th Cir. July 6, 2017). Similarly, district
courts around Louisiana have denied Rule 12(b)(1) motions based upon insufficient Article III
injury in the context of FDCPA violations under the Spokeo standard, see Reed v. Receivable
Recovery Servs., LLC, 16-12666, 2017 WL 1399597, at *13 (E.D. La. Apr. 19, 2017), and held
that there is Article III “standing when a Plaintiff received collection letters allegedly in violation
of the FDCPA.” Masson v. Pioneer Credit Recovery, Inc., 16-1887, 2017 WL 819099, at *3
(E.D. La. Mar. 2, 2017) (citing Tourgeman v. Collins Fin. Servs., 755 F.3d 1109, 1116 (9th Cir.
2014)); but see Abercrombie v. Rogers, Carter & Payne, LLC, 15-2214, 2016 WL 8201965
(W.D. La. Nov. 22, 2016) (finding no Article III injury for a claim arising out of an alleged
misstatement of the debtor’s rights under the FDCPA where the plaintiff never alleged that he
could suffer harm as a result of the alleged misstatements).
This is consistent with other courts that have found Article III standing arising out of
violations of the FDCPA. See Tourgeman, 755 F.3d 1109, 1116 (9th Cir. 2014) (“the violation of
[the] right not to be the target of misleading debt collection communications … constitutes a

28

cognizable injury under Article III); Thomas v. John A. Youderian Jr., LLC, 232 F. Supp. 3d 656,
671 (D. N.J. 2017) (“Deprivation of the right to be free from false or deceptive debt collection
information, with the attendant risk of economic injury, is an interest recognized by the
[FDCPA], and one reasonably rooted in the traditions of the common law. Under Spokeo, it may
give rise to Article III standing.”); Hayes v. Convergent Healthcare Recoveries, Inc., 14-1467,
2016 WL 5867818, at *4 (C.D. Ill. Oct. 7, 2016)(“a violation of the right under § 1692e to be
free from false or misleading representations from debt collectors creates a harm, or risk of harm,
sufficient to meet the requirement of concreteness.”); Quinn v. Specialized Loan Servicing, LLC,
16-2021, 2016 WL 4264967, at *4 (N.D. Ill. Aug. 11, 2016)(citing cases rejecting challenges to
standing based on Spokeo in FDCPA cases); Weast v. Rockport Fin., LLC, 115 F. Supp. 3d 1018,
1021 (E.D. Mo. 2015) (“The FDCPA is a broad remedial statute and its terms are to be applied in
a ‘liberal manner’”; to establish FDCPA violation, a plaintiff need only show: “(1) plaintiff has
been the object of collection activity arising from a consumer debt; (2) the defendant attempting
to collect the debt qualifies as a debt collector under the Act; and (3) the defendant has engaged
in a prohibited act[.]”).
The Court finds these cases persuasive. As explained by the Eastern District,
[a] lthough the Court may conceive of an instance in which an allegation of a bare
violation of the FDCPA's procedural disclosure requirements may not support
standing, [see Abercrombie, 2016 WL 8201965] where, as here, the plaintiff
alleges that he has been victimized by harassment and false or misleading debt
collection communications, he seeks to vindicate his substantive right to be free
from debt collector abuse, which sufficiently alleges a concrete and particularized
injury-in-fact. [Plaintiff]'s alleged injury is more than a bare procedural violation;
it is the type of concrete injury Congress sought to eradicate in enacting the
FDCPA. [Plaintiff] has Article III standing. [Defendant]'s motion to dismiss for
lack of standing must be denied.
Reed, 2017 WL 1399597 at *6 (internal footnotes omitted).
In this case, Plaintiff has alleged sufficient injury to confer standing: she received a debt
29

collection that she alleges to be in violation of the FDCPA in two material respects: first, that it
was deceptive and misleading because it failed to clearly identify the sender, and second, that it
charged a voluntary convenience fee in connection with one method of collection of payment
when the collection of same was not authorized by law or contract. When weighed against the
backdrop of the legislative purpose of the FDCPA, it is clear that the harm alleged is the exact
type of harm Congress intended to prevent. Accordingly, Plaintiff has standing to bring her
claims, and insofar as Defendant’s motion to dismiss seeks dismissal of Plaintiff’s claims on the
basis that she lacks standing, the motion is denied.
ii. Plaintiff’s claims under 15 U.S.C. § 1692e
When evaluating a claim under this subsection or any other subsection of 15 U.S.C. §
1692, courts “must evaluate any potential deception in the letter under an unsophisticated or least
sophisticated consumer standard.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004)) (internal quotations
omitted). The Court must “assume that the plaintiff-debtor is neither shrewd nor experienced in
dealing with creditors.” Id. “At the same time we do not consider the debtor as tied to the very
last rung on the intelligence or sophistication ladder.” Goswami, 377 F.3d at 495. The purpose of
this standard is to protect “all consumers, including the inexperienced, the untrained and the
credulous, from deceptive debt collection practices” and to protect “debt collectors against
liability for bizarre or idiosyncratic consumer interpretations of collection materials.” Kay, 577
F.3d at 603.
In general, section 1692e, titled “False or misleading representations” makes it unlawful
for a debt collector to “use any false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C. § 1692e. Section 1692e “bars debt

30

collectors from deceiving or misleading consumers; it does not protect consumers from fearing
the actual consequences of their debts.” Sheriff v. Gillie, 136 S. Ct. 1594, 1603 (2016). Thus, “to
determine whether a statement is misleading normally ‘requires consideration of the legal
sophistication of its audience.’” Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1413 (2017)
(citing Bates v. State Bar of Ariz., 433 U.S. 350, 383 n. 37 (1977)).
1. Count One: 15 U.S.C. § 1692e(2)(B)
Section 1692e(2)(B) makes it unlawful for a debt collector to falsely represent “any
services rendered or compensation which may be lawfully received by any debt collector for the
collection of a debt.” 15 U.S.C. § 1692e(2)(B). Plaintiff alleges that Defendant violated Section
1692e(2)(B) by “falsely representing that it could legally charge a $2.00 convenience fee for
payments made by check over the telephone and for falsely representing that it was entitled to
collect the Debt from Plaintiff when they are not licensed in the state as required under Louisiana
state law.”6 (Doc. 1 at 9.) Thus, Plaintiff essentially alleges two independent bases to support her
Section 1692e(2)(B): (1) the imposition of a $2.00 convenience fee not expressly authorized by
state law or the contract giving rise to the debt violates this provision, and (2) the failure to
comply with the state of Louisiana’s registration requirements renders Defendant unable to
lawfully act as a debt collector whatsoever within the state. The Court will address each of these
in turn.
a. The convenience fee claim
First, with respect to Plaintiff’s claim arising out of the $2.00 convenience fee, Defendant
avers it is lawful because 1) Plaintiff never paid the fee; 2) such fees are lawful under Louisiana
law, as suggested by various statutes conferring authority upon governmental agencies to impose

6

Plaintiff admits in briefing that Louisiana does not impose a licensing requirement, but rather a registration
requirement.

31

convenience fees in connection with collection of debts; and 3) Plaintiff’s contract with Ochsner
provided that she would accept responsibility for payment of all fees not covered by insurance.
As an initial matter, Defendant’s contention that Plaintiff never paid the fee is inapposite
to the claim because that is not the critical inquiry; “rather, the question is whether the
Convenience Fee language ‘violates the statute because it falsely implies that Defendant is
entitled to collect the processing fee in the first place.’” Thomas v. John A. Youderian Jr., LLC,
232 F. Supp. 3d 656, 678 (D. N.J. 2017) (quoting Quinteros v. MBI Assocs., Inc., 999 F. Supp.
2d 434, 439 (E.D.N.Y. 2014)). This is consistent with other courts interpreting the statute, which
have held that in order to establish a violation under the FDCPA, a plaintiff must only
demonstrate the following: (1) that she has been the object of collection activity arising from a
consumer debt; (2) the defendant attempting to collect the debt is a “debt collector” as defined by
the FDCPA; (3) the defendant has engaged in an act prohibited by the FDCPA. Weast, 115 F.
Supp. 3d at 1021. To state an actionable claim under the FDCPA, a plaintiff need not allege that
she actually made payment on the fee or that she actually believed and relied upon the
misrepresentations that constitute the violation. See Tourgeman, 755 F.3d at 1116. Accordingly,
the fact that Plaintiff did not actually pay the convenience fee does not, in and of itself, entitle to
Defendant to relief under either the 12(b)(6) or Rule 56 standard.
Next, Defendant claims that the imposition of such fees is lawful under Louisiana law.
However, Defendant fails to cite any support—jurisprudential or otherwise—for the proposition
that it, a private debt collection entity, is authorized under Louisiana law to charge and collect a
convenience fee for specific methods of payment. While it cites statutory authority for lawyers to
collect legal fees and for government entities to collect convenience fees under Louisiana law,
and somehow suggests that these statutes (or the lack of prohibitory statutes) ipso facto apply to

32

it as a private entity, this argument does not hold water.7 The canon of expressio unius est
exclusio alterius is particularly instructive here.8 “This canon holds that ‘expressing one item of
a commonly associated group or series excludes another left unmentioned.’” Coastal
Conservation Ass’n v. U.S. Dep’t of Commerce, 846 F.3d 99, 106 (5th Cir. 2017) (quoting
United States v. Vonn, 535 U.S. 55, 65 (2002)). The Court believes that the legislature was wellversed in the FDCPA when it enacted state laws regulating private debt collection agencies, and
if it had wished to confer the right to impose convenience fees upon them, it would have done so
through the passage of unambiguous legislation. That it declined to do so militates in favor of
denial of both of Defendant’s motions on this point.
Finally, with respect to Defendant’s contention that the imposition of the convenience fee
is expressly authorized under the contract between Plaintiff and Ochsner, this argument is
similarly unavailing. The contract contained the following provision:
G. Acceptance of Financial Responsibility:
I agree that in consideration of the services and supplies that have been or will be
furnished to the patient, I am hereby obligated to pay all charges made for or on
the account of the patient according to the standard rates (in effect at the time the
services and supplies are delivered) established by Ochsner, including its Patient
Financial Assistance Policy to the extent it is applicable, I understand that I am
responsible for all charges, or portions thereof, not covered by insurance or other
sources. Patient refunds will be distributed only after balances at all Ochsner
facilities are paid.
(Docs. 16-1 at 9; 37-1 at 3.) As evidenced by a plain reading of the contract, it does not expressly
envision the imposition of a convenience fee; it does not even mention the possibility that one
might be incurred with certain forms of payment of the debt. This is insufficient as a matter of

7
By that logic, a private person could also seek to collect state taxes because a Louisiana statute vests a government
agency with the power to collect state taxes.
8
The canon is only applicable where “it is fair to suppose that Congress considered the unnamed possibility and
meant to say no to it.” Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013) (quoting Barnhart v. Peabody
Coal Co., 537 U.S. 149, 168 (2003)). The Court finds that such is the case here, and the canon is properly applied to
Defendant’s contentions on this issue.

33

law to entitle Defendant to lawfully impose such fees under the FDCPA. See, e.g., Tuttle v.
Equifax Check, 190 F.3d 9, 13 (2d Cir. 1999) (“If state law neither affirmatively permits nor
expressly prohibits services charges, a service charge can be imposed only if the customer
expressly agrees to it in the contract.”); see also Pollice v. Nat’l Tax Funding, L.P., 225 F.3d
379, 408 (3d Cir. 2000) (quoting Tuttle). In reaching the same conclusion, the Second Circuit in
Tuttle relied upon the following language promulgated by the Federal Trade Commission Staff
Commentary on the FDCPA, which provides:
A debt collector may attempt to collect a fee or charge in addition to the debt if
either (a) the charge is expressly provided for in the contract creating the debt and
the charge is not prohibited by state law, or (B) the contract is silent but the
charge is otherwise expressly permitted by state law. Conversely, a debt collector
may not collect an additional amount if either (A) state law expressly prohibits
collection of the amount or (B) the contract does not provide for collection of the
amount and state law is silent.
Statements of Gen. Policy of Interpretation Staff Commentary on the F.D.C.P.A., 53 Fed. Reg.
50,097-02, 50,108 (1988) (emphasis added).
Accordingly, the Court denies both of Defendant’s motions on this claim.
b. The registration and licensing claim
Under Louisiana law, “[a]ny collection agency or debt collector doing business in this
state shall register with the secretary of state. The secretary of state shall promulgate rules and
regulations necessary to provide for the registration required by this Section.” La. R.S.
9:3534.1(B) (emphasis added). The former statute, La. R.S. 9:3576.1 et seq., which required
collection agencies doing business in Louisiana to be licensed to conduct such business, was
repealed in its entirety on August 15, 2003 through La. Acts. 2003, No. 638, § 1. Plaintiff cites
no support for her allegation that Defendant must be licensed to conduct debt collection services
in the state. In fact, she concedes in her opposition to Defendant’s motions that she incorrectly

34

referenced a “licensing requirement” when she intended to mean a “registration requirement.”
(Doc. 27 at 19, n.1.)
Defendant attached to its motion the original registration filing it submitted to the
Secretary of State dated June 4, 2014. (Doc. 16-1 at 6.) It also attached the December 8, 2016
amendment to its registration which reflects that on that date, Defendant changed its registered
name with the Secretary of State from “The Head Mercantile Co., Inc. d/b/a The HMC Group” to
reflect its d/b/a name of “The SOS Group.” (Id. at 5—7.) Accordingly, at all relevant times,
Defendant was properly registered to do business as a collection agency within the state of
Louisiana. While the use of a previously unregistered d/b/a name (“The SOS Group”) may give
rise to liability under another provision of the statute, Plaintiff cannot maintain a claim under
Section 1692e(2)(B) that Defendant falsely represented that it could lawfully do business within
the state.
Because the Court must consider documents outside the pleadings, it will dispose of this
claim via summary judgment. In other words, looking at all the evidence under a totality of the
circumstances, there is no genuine issue of material fact, as it was clear that the use of the “The
SOS Group fka The HMC Group” on the collection notice does not equate to a false
representation as to Defendant’s right to collect a debt under Louisiana law under Section
1692e(2)(B), because Defendant was legally registered and thus entitled to act as a collection
agency in Louisiana. Accordingly, Defendant is entitled to summary judgment on this claim.
2. Count Two: 15 U.S.C. § 1692e(5)
Section 1692e(5) proscribes debt collectors from “threat[ening] to take any action that
cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). Plaintiff’s
argument under this subsection is premised on her arguments under Sections 1692e(2)(B) and

35

1692f(1), because she claims that the collection notices, in and of themselves, threaten to take
action that is not lawful under Louisiana law because Defendant failed to properly register with
the Secretary of State and thus cannot lawfully operate as a collection agency under the name
“The SOS Group” or “The SOS Group fka The HMC Group.”
The Court has conducted an independent analysis of the collection notices and finds no
language suggesting that Defendant threatened to take any illegal action. In light of the Court’s
ruling on Section 1692e(2)(B), supra, and the absence of any other suggestively threatening
language in the collection notices, the Court finds that this claim can be properly disposed via
summary judgment. Accordingly, insofar as its motion seeks summary judgment of Plaintiff’s
claim under this subsection, the motion is granted.9
3. Count Three: 15 U.S.C. § 1692e(10)
Section 1692e(10) makes it unlawful for a debt collector to make “use of any false
representation or deceptive means to collect or attempt to collect any debt or obtain information
concerning a consumer.” Plaintiff contends that the use of the name “The SOS Group” or “The
SOS Group fka The HMC Group” violates this subsection “because using a name other than the
one it is registered under is false, misleading, and unfair.” (Doc. 27 at 21.) She insists this was a
material misrepresentation that would mislead the least sophisticated consumer, and thus is
actionable under Section 1692e(10). Defendant responds that its collection notices could not be
misleading because they reflect its proper registered mailing address, a current telephone number
at which to reach its representatives, and reflected that the SOS Group is “fka The HMC Group.”
The debt collector's representations must be analyzed by considering them from the

9

Although the Court did not need to look outside the pleadings to dispose of this complaint, and therefore could
have granted the 12(b)(6) motion without reaching the Rule 56 motion, because disposition of this claim is
necessarily tied to the Court’s ruling on the 1692e(2)(B) claim, which required the Court to consider matters outside
the pleadings, this claim too is properly disposed of on summary judgment.

36

perspective of a consumer with below-average sophistication or intelligence. Taylor v. Perrin,
Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997). The least sophisticated
consumer standard is an objective one; in other words, this specific plaintiff need not prove that
she was actually confused or misled, only that the proverbial least sophisticated consumer would
be so misled. Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d 98, 103 (1st Cir. 2014)
(“[T]he FDCPA does not require that a plaintiff actually be confused.”). Whether the least
sophisticated consumer would be misled by a particular communication is an issue of law
properly resolved on a 12(6)(6) motion. Thomas, 232 F. Supp. 3d at 672 (citation omitted).
Section 1692e also contains a materiality requirement, but it “is simply a corollary of the
well-established ‘least sophisticated debtor’ standard.” Jensen v. Pressler & Pressler, 791 F.3d
413, 418 (3d Cir. 2015). “[A] statement in a communication is material if it is capable of
influencing the decision of the least sophisticated debtor.” Id. at 420–21. This is a low hurdle to
meet. See Thomas, 232 F. Supp. 3d at 672. “[T]he materiality requirement, correctly applied,
effectuates the purpose of the FDCPA by precluding only claims based on hypertechnical
misstatements under § 1692e that would not affect the actions of even the least sophisticated
debtor.” Id. at 422.
Here, the central inquiry before the Court is whether the least sophisticated consumer
would be misled by receipt of a letter that states in one part “The SOS Group” and on the same
page, “The SOS Group fka The HMC Group” and that directs checks to be made out to “The
SOS Group” when the only name under which Defendant was registered to do business in
Louisiana at the time it sent these letters was “The HMC Group.” The Court concludes that the
least sophisticated consumer receiving Defendant’s collection notice could be deceived or misled
as to its true identity. Indeed, the letter directs the consumer to “Make Checks Payable To: The

37

SOS Group” and identifies the sender’s address in two locations on the same page, one which
reads simply “The SOS Group” and one which reads “The SOS Group fka The HMC Group.”
(Docs. 16-1 at 9; 37-1 at 3.) However, at the time Plaintiff received the collection notices,
Defendant was only registered to do business in Louisiana as “The HMC Group.” This could
create confusion in the mind of the least sophisticated consumer. The Court does not presume
that the unsophisticated consumer would understand the meaning of “fka” or that s/he would
understand that The SOS Group and The HMC Group are one and the same. While the Court
recognizes that Defendant uses the same address under both names on the notice, it finds there is
a genuine issue as to material fact as to whether that alleviates the confusion the duplicitous
names could cause in the mind of the unsophisticated consumer.
The Court holds that under a 12(b)(6) standard, Plaintiff has stated a plausible claim for
relief under Section 1692e(10). Further, the Court holds that a genuine issue of material facts
exists so as to preclude summary judgment. Accordingly, insofar as Defendant’s motions seek
dismissal or summary judgment on this claim, the motions are denied.
4. Count Four: 15 U.S.C. § 1692e(14)
Under subsection 1692e(14) “[t]he use of any business, company, or organization name
other than the true name of the debt collector's business, company, or organization” is a false,
deceptive or misleading practice that violates the statute. 15 U.S.C. § 1692e(14). The term “true
name” is not defined in the FDCPA. However, courts have opined that this provision is intended
to prohibit use of names that are false, deceptive or misleading. The U.S. Supreme Court recently
addressed the issue, stating “[a]lthough the FDCPA does not say what a ‘true name’ is, its import
is straightforward: A debt collector may not lie about his institutional affiliation.” Sheriff v.
Gillie, 136 S. Ct. 1594, 1602 (2016). Furthermore, as a New Jersey District court describes:

38

The Federal Trade Commission has interpreted the provision to mean that a debt
collector “may use its full business name, the name under which it usually
transacts business, or a commonly-used acronym. When the collector uses
multiple names in its various affairs, it does not violate [§ 1692e(14)] if it
consistently uses the same name when dealing with a particular customer.” Staff
Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097–02,
50,107 (Dec. 13, 1988). Alternatively, at least one court has held that a business's
true name includes the name in which it has a license to conduct business under
state law. See Kizer v. Am. Credit & Collection, No. B–90–78, 1990 WL 317475,
at *6 (D. Conn. Dec. 17, 1990). Despite the ambiguity at the periphery of analysis
of what is a true name, § 1692e(14) at its core clearly prohibits the use of a name
that is neither the collector's actual corporate name nor its trade name, licensed or
otherwise. See Peter v. GC Servs. L.P., 310 F.3d 344, 352 (5th Cir. 2002)
(holding debt collector's use of “United States Department of Education” on
outside envelope violated § 1692e(14)).
Boyko v. Am. Int'l Grp., Inc., 08-2214, 2009 WL 5194431, at *6-7 (D. N.J. Dec. 23, 2009). The
Boyko court also recognized that “[g]iven however that the purpose of the provision is to prevent
fraud and misleading representations, and given that Congress used an exacting term like ‘true
name,’ the Court is convinced that § 1692e(14) requires debt collectors to use a precise, official
name when conducting debt collection activities.” Id. at *7.
The only reported case from the Fifth Circuit interpreting Section 1692e(14) is Peter v.
GC Servs. L.P., 310 F.3d 344 (5th Cir. 2002). There, the Court held that the defendant violated
1692e(14) by using the United States Department of Education’s name and address in the upper
left hand corner of the envelope in which it sent its collection letter. Id. at 352. “By using the
department as the return addressee, GC Services represented the sender of the mail as the
Department of Education, when in fact it was GC Services.” Id. The Court reasoned:
Section 1692e was enacted against a backdrop of cases in which courts held that
communications designed to create a false sense of urgency were deceptive. See,
e.g., Trans World Accounts, Inc. v. FTC, 594 F.2d 212, 215 (9th Cir. 1979)
(deceptive to make communications appear to be a telegram which heightened
sense of urgency). Post–FDCPA courts have read the language of § 1692e as
encompassing this concern. Rosa v. Gaynor, 784 F. Supp. 1, 5 (D. Conn. 1989)
(placing collection letter on attorney's letterhead deceptive where letter is not
from attorney because it creates a false sense of urgency). By making the letter
39

appear to come from the United States Department of Education, Defendants
created a false sense of urgency as to the letter's contents through a practice
specifically prohibited in § e(14).
Id.
This case presents a much closer call than the names at issue in any of the
abovementioned cases. Nevertheless, for the following reasons, the Court concludes that the
claim is sufficient to withstand both Defendant’s motions to dismiss and for summary judgment.
A violation of the FDCPA “need not be deliberate, reckless, or even negligent to trigger
liability—it need only be false… In other words, the FDCPA recognizes a strict liability
approach.” Barlow v. Safety Nat. Cas. Corp., 11-236, 2012 WL 1965417, at *7 (M.D. La. May
31, 2012) (internal quotation marks and citations omitted).
Against this backdrop, it is clear that the use of the name “The SOS Group,” even when
stated in connection with “fka The HMC Group” violates the statute. Defendant did not register
with the Secretary of State to do business in Louisiana as “The SOS Group” until long after
Plaintiff had received the collection notices and filed the instant suit. This is not a bare
hypertechnical violation; this is a clear violation in the sense that Defendant represented itself as
“The SOS Group” when it had not registered the name in the state. While it is true that at all
times, Defendant’s collection notice provided an accurate address and telephone number, and did
in one location state the name “fka The HMC Group,” this alone does not eliminate the genuine
issue of material fact as to whether the least sophisticated consumer would be deceived or misled
as to Defendant’s identity based upon the language presented in Defendant’s letter. Accordingly,
Defendant’s motions are denied.
iii. Plaintiff’s claims under 15 U.S.C. § 1692f
Section 1692f is a catchall provision states that “[a] debt collector may not use unfair or

40

unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. The
subsections provide a nonexclusive list of proscribed conduct under the statute, including “[t]he
collection of any amount (including any interest, fee, charge, or expense incidental to the
principal obligation) unless such amount is expressly authorized by the agreement creating the
debt or permitted by law.” 15 U.S.C. § 1692f(1). In the context of convenience fees, the only
relevant inquiry under Section 1692f(1) is whether the amount collected (or attempted to be
collected) was expressly authorized by law or by the contract creating the debt; this inquiry does
not hinge upon the comprehension of the least sophisticated consumer. See Thomas, 233 F. Supp.
3d at 675 (citing Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir. 2011);
Simon v. FIA Card Servs., N.A., 732 F.3d 259, 269–70 (3d Cir. 2013)).
Although the catchall provision of 1692f specifically notes that both actual collection and
collection attempts are proscribed by statute, subsection 1692f(1) refers only to the collection of
any amounts not authorized by contract or by law. See 15 U.S.C. §§ 1692f and f(1). However,
the Court finds that the catchall provision is intended to encompass the nonexclusive list of
enumerated offenses in its subsections, and that the “attempt” language of 1692f also applies to
1692f(1). Thus, Defendant’s motion regarding this subsection is denied. This conclusion is
consistent with jurisprudence addressing this exact issue. See, e.g., Diaz v. Kubler Corp., 785
F.3d 1326, 1328 (9th Cir. 2015) (“[T]he [FDCPA] prohibits debt collectors from trying to collect
any amount that is not ‘expressly authorized by the agreement creating the debt or permitted by
law.’ 15 U.S.C. § 1692f(1).”); McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d
939, 949 (9th Cir. 2011) (“Section 1692f(1) prohibits the use of ‘unfair or unconscionable means
to collect or attempt to collect any debt[.]’”); Miller v. Wilpoff & Abramson, L.L.P., 321 F.3d
292, 308 (2d Cir. 2003) (“plaintiff’s cause of action under § 1692f(1) requires a showing that

41

defendants attempted to collect an amount not expressly permitted either by the agreement
creating the debt or by law.”); Thomas, 232 F. Supp. 3d at 676—77 (“Section 1692f(1) is one of
a number of nonexclusive examples of conduct that violates the more general proscription of
1692f, which outlaws attempts.”); Shami, 914 F. Supp. 2d at 357 (“The fact that subsection (1) of
§ 1692f does not specify that it includes both collections of and attempts to collect unauthorized
incidental fees does not limit the general provision of the statute that includes attempts to collect.
Courts in this circuit and others have continued to resolve cases involving § 1692f(1) where no
actual collection appears to have taken place, instead focusing on the communication seeking
payment itself.”); B-Real, LLC v. Rogers, 405 B.R. 428, 433 (M.D. La. 2009) (“Section 1692f(1)
prohibits a debt collector from seeking to collect on any amount ‘unless…permitted by law.’”);
McAdams v. Citifinancial Mortg. Co., Inc. of New York, 06-27 and 06-636, 2008 WL 577559, at
*2 n.6 (M.D. La. Mar. 3, 2008) (reading Section 1692f and 1692f(1) in tandem to apply the
“attempt” language of 1692f to 1692f(1)); Jackson v. Adcock, 03-3369, 2004 WL 1900484, at *5
n.27 (E.D. La. Aug. 23 2004) (same).
1. Counts Five and Six: 15 U.S.C. § 1692f and 15 U.S.C. §
1692f(1)
Under Section 1692f(1), a debt collector may not use unfair or unconscionable means to
collect or attempt to collect “any amount (including interest, fee, charge, or expense incidental to
the principal obligation) unless such amount is expressly authorized by the agreement creating
the debt or permitted by law.” 15 U.S.C. § 1692f(1) (emphasis added). As discussed above in
connection with Plaintiff’s claim under Section 1692e(2)(B), the convenience fee at issue here
was not expressly authorized by the contract creating the debt or by Louisiana law.
Consistent with jurisprudence interpreting both provisions, a convenience fee that

42

supports a claim under Section 1692e(2)(B) “naturally supports a claim under Section 1692[f(1)]
as well.” Thomas, 232 F. Supp. 3d at 679 (citing Quinteros, 999 F. Supp. 2d at 440; Shami v.
Nat’l Enter. Sys., 09-722, 2010 WL 3824151, at *4 (E.D.N.Y. Sept. 23, 2010)(“if it is
determined that the Collection Letter violates § 1692f(1) by representing that the transaction fees
are permissible[,] Defendant would also be in violation of § 1692e(2)”); Wittman v. CB1, Inc.,
15-105, 2016 WL 3093427, at *4 (D. Mont. June 1, 2016) (“Plaintiffs concede that [their
1692e(2)] claim depends on the survival of Plaintiffs[’] section 1692f(1) claim.”); Acosta v.
Credit Bureau of Napa Cty., No. 14 C 8198, 2015 WL 1943244, at *4 (N.D. Ill. Apr. 29, 2015)
(“If the debt collection letter violates Section 1692f(1) by representing that the processing fee is
permissible, then Defendant also would be in violation of Section 1692e.”).
Accordingly, because the Court found Plaintiff has stated a valid cause of action that
withstands both the 12(b)(6) and Rule 56 motions with respect to her Section 1692e(2)(B) claim
arising out of the convenience fees, Defendant’s motions insofar as they relate to Plaintiff’s
Section 1692f and 1692f(1) claim must necessarily be denied.
IV.

Conclusion

For the foregoing reasons, IT IS ORDERED that Defendant’s Motion to Dismiss is
DENIED AS MOOT;
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART;
IT IS FURTHER ORDERED that with respect to Plaintiff’s claims under 15 U.S.C. §
1692e(2)(B), the motion is GRANTED with respect to the licensing and registration claim and
DENED with respect to the convenience fee claim;
IT IS FURTHER ORDERED that with respect to Plaintiff’s claim under 15 U.S.C. §

43

1692e(5), the motion is GRANTED;
IT IS FURTHER ORDERED that with respect to Plaintiff’s claim under 15 U.S.C. §
1692e(10), the motion is DENIED;
IT IS FURTHER ORDERED that with respect to Plaintiff’s claim under 15 U.S.C. §
1692e(14), the motion is DENIED;
IT IS FURTHER ORDERED that with respect to Plaintiff’s claim under 15 U.S.C. §
1692f, the motion is DENIED;
IT IS FURTHER ORDERED that with respect to Plaintiff’s claim under 15 U.S.C. §
1692f(1), the motion is DENIED.
Signed in Baton Rouge, Louisiana, on August 28, 2017.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

44