Singleton et al v. Mossman et al (JRG2)

Filing 47

MEMORANDUM OPINION AND ORDER: To the extent that the motion to dismiss, [Doc. 25], and the motion for judgment on the pleadings, [Doc. 36], move to dismiss the Amended Complaint, the motions are GRANTED. In sum, all claims alleged in the Amended Complaint, [Doc. 6 in 2:15-CV-290], are DISMISSED. Neither of the dispositive motions discussed dismissal of the state law claim of invasion of privacy or the FDCPA violations for improper communication with a third-party alleged in t he complaint filed in 2:15-CV-287. [Doc. 1-1]. To the extent that the dispositive motions address these allegations, it is with nothing more than a cursory statement, if at all, and the motions are DENIED. The allegations made in the complaint, [Doc. 1-1], for invasion of privacy and improper communication with a third-party in violation of the FDCPA are the only remaining claims in either of these consolidated cases. Signed by District Judge J Ronnie Greer on 12/14/2016. Associated Cases: 2:15-cv-00287-JRG-MCLC, 2:15-cv-00290-JRG-MCLC (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

JASON SINGLETON and
SCHERRY SINGLETON,

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Plaintiffs,
v.
HOSPITAL OF MORRISTOWN, et al.,
Defendants.

Nos. 2:15-CV-287; 2:15-CV-290

MEMORANDUM OPINION AND ORDER
This Fair Debt Collection Practices Act, (“FDCPA”) 15 U.S.C. § 1692 et seq., case is
before the court to address two motions to dismiss the complaints. Defendants Hospital of
Morristown, Inc., d/b/a Lakeway Regional Hospital (“Lakeway”) and Professional Account
Services, Inc. (“PASI”) filed a motion to dismiss the plaintiffs’ complaint, [Doc. 25].1 The
plaintiffs have responded, [Doc. 28], and the defendants have replied, [Doc. 29]. Defendant
Michael Mossman (“Mossman”) filed a motion for judgment on the pleadings,2 [Doc. 36]. The
plaintiffs have responded to the motion for judgment on the pleadings, [Doc. 44], and Mossman
has replied, [Doc. 46]. The matters are ripe for review.
I. FACTS
The plaintiffs filed two suits in state court against the defendants related to the
defendants’ attempts to collect debts.3 The plaintiffs have alleged FDCPA violations and various
1

Documents cited as [Doc. __] refer to documents in case number 2:15-CV-287 unless otherwise noted.
Mossman’s motion for judgment on the pleadings makes almost identical arguments for dismissal as the motion to
dismiss. Unless otherwise noted, the Court will refer to the defendants’ motions collectively when describing the
arguments.
3
In case number 2:15-CV-287, the plaintiffs sued Michael Mossman and Jane Doe in state court. The defendants
removed the matter to this Court. [Doc. 1]. In case number 2:15-CV-290, the plaintiffs sued Michael Mossman and
Mossman removed the matter to this Court. [Doc. 1 in 2:15-CV-290]. The plaintiffs then filed an Amended
2

1

state law claims. The complaints allege that the plaintiffs incurred debts to Lakeway for medical
services provided to the plaintiffs. [Complaint, Doc. 1-1 ¶ 8]. After the plaintiffs defaulted on
the debts, Lakeway “assigned the debts to PASI” for collection, and PASI hired defendant
Michael Mossman (“Mossman”) to attempt to collect the debts from plaintiffs. [Amended
Complaint. ¶ 12] 4. A debt collection suit was filed in state court against the plaintiffs using a
state court civil summons and sworn affidavit of account. The plaintiffs allege on information
and belief that “an employee of Mossman prepared the civil summonses” and “an employee or
agent of PASI” signed the sworn affidavit. [Id. ¶¶ 15, 15].
The sworn affidavit of account submitted with the civil summons states that the plaintiffs
“owe the sum of $6701.68” on five accounts listed. [Exhibit 6-1]. The civil summons and filed
in state court against both plaintiffs stated that “the balance due and owing on a Sworn Account
hereto the Court shown in the amount of $6,701.68, together with a reasonable Attorney Fee,
plus post judgment interest at the legal rate, civil process fees in the amount of $35.00, less any
payments credited and the costs of this cause.” [Id. ¶ 18, Exhibit 6-1]. A default judgment was
entered in the amount of $6,364.48, “plus interest at the rate of 5.25% and cost of suit.” [Id. ¶
21, Exhibit 6-1].
Following entry of the default judgment, a wage garnishment was issued against Mr.
Singleton by the Hamblen County Court Clerk on January 15, 2015. [Doc. 1-1, ¶ 19, Exhibit 62]. On September 3, 2015, Mr. Singleton talked with the Clerk’s office to stay the garnishment
and proposed a payment plan. [Id. ¶ 20]. While Mr. Singleton was in the office, the Clerk called

Complaint to bring claims against PASI and Lakeway in 2:15-CV-290. [Doc. 6 in 2:15-CV-290]. The cases were
then consolidated and 2:15-CV-287 was designated as the lead case. [Doc. 8].
4
“Amended Complaint” refers to Document 6 in Case Number 2:15-CV-290, filed before these cases were
consolidated. The Amended Complaint supplanted the complaint removed from state court in case 2:15-CV-290.
Therefore, all allegations made in case 2:15-CV-290 are contained in the Amended Complaint and the Court will
only refer to allegations contained in the Amended Complaint regarding case 2:15-CV-290.

2

Mossman’s office and spoke with a Jane Doe about the proposed payment plan. [Id. ¶ 22]. The
plaintiffs allege that Jane Doe informed the Clerk’s office that the “Plaintiffs had two other debts
with Defendant Mossman’s office they were attempting to collect and that Plaintiffs needed to
contact Defendant Mossman’s office about those debts, and the deputy clerk relayed this
communication to Plaintiffs.” [Id. ¶ 22]. The plaintiffs allege that Doe did not have the required
consent to communicate with the clerk, a third party, in regard to the collection of debts. [Id. ¶
32].
The plaintiffs filed these lawsuits alleging FDCPA violations and state law claims for
improper entry of default judgments, unjust enrichment, and invasion of privacy. The complaint
alleges that by communicating with the clerk about collection of a debt without consent the
defendants committed FDCPA violations and a state law claim of invasion of privacy. [Id. ¶¶
33-34]. The amended complaint alleges the default judgments entered against the plaintiffs are
void because the defendants were not properly served and asks the Court to set aside the default
judgments. [Amended Complaint ¶ 34]. The plaintiffs also allege that the defendants have been
unjustly enriched by the payments made on the void judgments and ask the Court to order
restitution to the plaintiffs in the amount of the payments and pre-judgment interest. [Id. ¶¶ 3740]. Finally, the plaintiffs allege violations of the FDCPA occurred by “attempting to collect
debts the plaintiffs do not owe,” [Id. ¶ 46]; failing “to include § 1692e(11) language in
subsequent communications,” [Id. ¶ 52]; failing “to send a written notice containing amount of
the debt and required notices within five days after the initial communication,” [Id. ¶ 54]; and
“requesting different amounts” on the civil summons and sworn affidavit, [Id. ¶ 56].
II. STANDARD OF REVIEW

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Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) eliminates a pleading or
portion thereof that fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). Moreover, Federal Rule of Civil Procedure 8(a)(2) requires the complaint to contain a
“short plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A motion to dismiss under Rule 12(b)(6) requires the Court to construe the allegations
in the complaint in the light most favorable to the plaintiff and accept all the complaint’s factual
allegations as true. Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990). The
Court may not grant a motion to dismiss based upon a disbelief of a complaint’s factual
allegations. Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The Court must liberally
construe the complaint in favor of the party opposing the motion. Miller v. Currie, 50 F.3d 373,
377 (6th Cir. 1995). However, the plaintiff must allege facts that, if accepted as true, are
sufficient “to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007), and to “state a claim to relief that is plausible on its face.” Id. at 570;
see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “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.” Ashcroft, 556 U.S. at 678. Moreover, this Court
need not “‘accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550
U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft, 556 U.S. at
678. Lastly, this Court may consider documents central to the plaintiff’s claims to which the
complaint refers and incorporates as exhibits. Amini v. Oberlin College, 259 F.3d 493, 502 (6th
Cir. 2001).
A motion to dismiss pursuant to Rule 12(b)(1) for lack of jurisdiction may be either an
attack on the face of the complaint or on the factual basis of jurisdiction. Golden v. Gorno Bros.,

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Inc., 410 F.3d 879, 881 (6th Cir. 2005). A factual attack challenges the existence of jurisdiction,
apart from the pleadings. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1334
(citing Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 890 (3d Cir. 1977)).
When a factual issue exists in a Rule 12(b)(1) motion, the district court is “free to weigh the
evidence and satisfy itself as the existence of its power to hear the case.” Id. (citing Mortensen,
549 F.2d at 890-91). The court is “empowered to resolve factual disputes” arising out of a Rule
12(b)(1) challenge to subject matter jurisdiction. Id. (citing Rogers v. Stratton Industries, Inc.,
798 F.2d 913, 915 (6th Cir. 1986)).
Rule 12(c) states that “after the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A motion for
judgment on the pleadings is subject to the same standard of review as a motion for dismissal
under Rule 12(b)(6). Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d
692, 697 (6th Cir. 2005). A motion to dismiss under Rule 12(b)(6) requires the Court to construe
the allegations in the complaint in the light most favorable to the plaintiff and accept all the
complaint’s factual allegations as true. Meador v. Cabinet for Human Res., 902 F.2d 474, 475
(6th Cir. 1990). The Court may not grant a motion to dismiss based upon a disbelief of a
complaint’s factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The
Court must liberally construe the complaint in favor of the party opposing the motion. Miller v.
Currie, 50 F.3d 373, 377 (6th Cir. 1995). However, the plaintiff must allege facts that, if
accepted as true, are sufficient “to raise a right to relief above the speculative level,” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court may consider documents central to the
plaintiff’s claims to which the complaint refers and incorporates as exhibits. Amini v. Oberlin
College, 259 F.3d 493, 502 (6th Cir. 2001).

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III. ANALYSIS
1. Rooker-Feldman Doctrine
The defendants argue that the Court lacks subject matter jurisdiction over the plaintiffs’
state law and FDCPA claims in the Amended Complaint under the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine arises out of two Supreme Court cases, Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983). The Supreme Court clarified the Rooker-Feldman doctrine stating that application of the
doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobile Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284
(2005). Both plaintiffs in Rooker and Feldman requested the district court to “overturn an
injurious state-court judgment” but only the Supreme Court has jurisdiction to review a state
court’s judgment. Id. at 292.
The court must look at the source of the plaintiff’s injury alleged in the federal complaint
to determine whether a claim is one that attacks a state court judgment, and thus is within the
Rooker-Feldman scope, or an independent claim over which a district court may assert
jurisdiction. McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). “If the source of the
injury is the state court decision, then the Rooker–Feldman doctrine would prevent the district
court from asserting jurisdiction. If there is some other source of injury, such as a third party's
actions, then the plaintiff asserts an independent claim.” Id. For a claim to fall within the
Rooker-Feldman doctrine’s scope, “the source of the injury must be from the state court
judgment itself; a claim alleging another source of injury is an independent claim.” Id. at 394.

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a. State Court Claims to Set Aside Default Judgment, Unjust Enrichment,
Actual Damages, and Punitive Damages
The plaintiffs allege that the default judgment entered against them should be set aside as
“void” because the plaintiffs were not properly served. [Amended Complaint ¶ 24-32]. Further,
the plaintiffs allege the defendants were unjustly enriched by the payments made on the allegedly
void judgments, including the wage garnishment. [Id. ¶ 36-44]. The Court is hard-pressed to
find an instance where the Rooker-Feldman doctrine would more clearly apply. The plaintiffs in
these suits are clearly “state-court losers complaining of injuries caused by state-court
judgments” that were entered before these proceedings were commenced.

The first claim

specifically requests this Court to “set aside” and declare the state court default judgments
“void”; thereby specifically asking this Court to review and reject the state court judgments. In
the second claim requesting restitution for payments made pursuant to the judgments, the “source
of the injury” is clearly the default judgments in state court. For the Court to find the plaintiffs’
claims of improper service actionable would require the Court to specifically review the state
court’s determination that service was proper before it entered the default judgment.
In their response, the plaintiffs argue that the Court has jurisdiction to hear these state law
claims and to grant the relief requested, setting aside the state court default judgments and
restitution of monies paid on the judgments. The plaintiffs cite a Sixth Circuit case holding that
an exception to the general rule prohibiting district court review of a state court judgment exists
and a district court “may entertain a collateral attack on a state court judgment which is alleged
to have been procured through fraud, deception, accident, or mistake.” Sun Valley Foods Co. v.
Detroit Marine Terminals, Inc., 801 F.2d 186, 189 (6th Cir. 1986) (quoting Resolute Insurance
Co. v. North Carolina, 397 F.2d 586, 589 (4th Cir. 1968)). However, nowhere in the plaintiffs’
amended complaint do they allege that the default judgments resulted from any mistake of the
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state court or fraud by the defendants. The plaintiffs fail to account for the fact that the
exception stated in Sun Valley Foods “focuses on situations involving the improper procurement
of the judgment, i.e., where the state court winner deceived the Court into a wrong decree.”
International Christian Music Ministry Inc. v. Ocwen Federal Bank, FSB, 289 Fed. App’x 63, 65
(6th Cir. 2008) (internal citations omitted). The exception does not extend to mere judicial errors
committed by the state court. Id. (citing Resolute Insurance Co., 397 F.2d at 589). The plaintiffs
have failed to allege any mistake or fraud in the complaints in regard to entry of the default
judgments. Instead, their response to the motion to dismiss merely argues that the state court
committed a judicial error, which is not covered by the exception discussed in Sun Valley Foods,
and couched the error as a “mistake.”
The plaintiffs also allege that the defendants are liable for actual damages in the amount
of $6,994.74 plus accrued interest that were incurred “as a direct result of the wrongful
garnishment against Mr. Singleton’s wages.” [Amended Complaint ¶¶ 41-42]. The plaintiffs
further allege that the defendants are liable for punitive damages in the amount of $10,000 “for
its willful and wrongful conduct, gross negligence and reckless disregard in wrongfully
garnishing Mr. Singleton’s wages as a result of a void default judgment.” [Id. ¶ 44]. Both of
these claims and the relief requested are the “direct result[s]” of the plaintiffs’ claims to set aside
the state court default judgments and for unjust enrichment. These do not appear to be separate
claims of state law violations but instead are the relief requested by the plaintiffs if the
defendants were found liable for claims to set aside the default judgment and unjust enrichment.
Additionally, the actual damages alleged, repossession of a car because the plaintiffs could not
make the payment due to the garnishment, is alleging a direct injury caused by entry of the state
court judgments.

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In their response to the motion to dismiss, the plaintiffs argue that the Court should not
dismiss their state law claims for lack of subject matter jurisdiction where the defendants
removed the state court action to federal court. However, the plaintiffs did not assert their state
court claims regarding the “void” default judgments or unjust enrichment until the Amended
Complaint, filed in this Court on November 30, 2016, almost 30 days after the state court action
had been removed from federal court. [Amended Complaint, Doc. 6 in 2:15-CV-290]. At the
time the defendants removed the complaint for case 2:15-CV-290 to this Court, the only claims
alleged before the state court were for FDCPA violations of “requesting different amounts” and
failure to include particular notices in debt collection communications. [Doc. 1-1 in 2:15-CV290]. No claims regarding “void” default judgments, unjust enrichment, or FDCPA violation for
collection of debt not actually owed were alleged in the state court complaint removed to this
Court. [Id.] In the companion case removed to this Court, the only state law claim alleged in the
complaint is a claim of invasion of privacy, which was not discussed in either motion.
[Complaint, Doc. 1 in 2:15-CV-287].
These state law claims have not alleged any independent injury but instead ask this court
to review and reject the state court judgments as void. The Court finds that the plaintiffs’ state
law claims to set aside the default judgments and for unjust enrichment fall within the RookerFeldman doctrine, which deprives this Court of jurisdiction over those claims. Additionally,
because the Court cannot consider these state court claims, the requested relief for those claims,
actual damages and punitive damages, cannot be considered in this matter. The state court
claims in the Amended Complaint, [Doc. 6 in 2:15-CV-290], Count One requesting the court
“set aside” the “void” default judgments, Count Two asking the Court to order restitution for
payments made pursuant to those judgments and wage garnishment, Count Three for actual

9

damages, and Count Four for punitive damages, are hereby DISMISSED.

Count One is

DISMISSED WITH PREJUDICE. Counts Two, Three and Four are DISMISSED WITHOUT
PREJUDICE.
b. FDCPA Violation of “Attempting to Collect Debts Plaintiffs Do Not Owe”
The plaintiffs allege in the Amended Complaint that “[d]ue to her disability, Mrs.
Singleton has medical coverage under Medicare for her medical services she received from
Lakeway, which Plaintiffs believe the evidence will show the reason for the reduction in the
amount of the default judgment from the amount originally demanded by Defendants in the
collection lawsuit.” [Amended Complaint ¶ 45]. The plaintiffs then allege the defendants
violated the FDCPA by attempting to collect debts that the plaintiffs do not actually owe because
Medicare should have paid for the services rendered. [Id. ¶ 46]. To the extent that the plaintiffs
assert that they do not owe the debt underlying the state court default judgments, that claim falls
within the Rooker-Feldman doctrine and is not properly before this Court. To sustain such a
claim would require the Court to exercise appellate review of the state court judgment, which
found the plaintiffs owed the underlying debt to Lakeway. The plaintiffs in this claim are
directly challenging the underlying debt, not the collection efforts. The FDCPA claim of the
amended complaint premised on finding that the plaintiffs do not owe the underlying debt is
DISMISSED WITH PREJUDICE.
2. FDCPA Violations
The FDCPA was passed to eliminate “abusive, deceptive, and unfair debt collection
practices.” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting 15 U.S.C. §
1692(a)). The Sixth Circuit has noted that the act is “extraordinarily broad” and must be enforced
as written, even when eminently sensible exceptions are proposed in the face of an innocent

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and/or de minimis violation. See Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir. 1992). While
§ 1692e lists a number of examples of false or misleading representations, the text of the statute
itself indicates that the examples are not meant to limit its prohibition on the use of false,
deceptive or misleading representations in connection with the collection of a debt. 15 U.S.C. §
1692e. Likewise, § 1692f contains the same language, making clear that the examples set forth
therein do not “limit[ ] the general application” of its prohibition on the use of unfair or
unconscionable means to collect or attempt to collect any debt. 15 U.S.C. § 1692f. The Seventh
Circuit has observed that the phrase “unfair or unconscionable” used in § 1692f “is as vague as
they come.” Beler v. Blatt, Hasenmiller, Leibsker & Moore, 480 F.3d 470, 474 (7th Cir. 2007).
The plaintiffs allege the defendants violated § 1692c(b) which states,
Except as provided in section 1692b of this title, without the prior
consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment judicial remedy,
a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer,
his attorney, a consumer reporting agency if otherwise permitted
by law, the creditor, the attorney of the creditor, or the attorney of
the debt collector.
15 U.S.C. § 1692c(b). Section 1692b imposes certain restrictions on a debt collector speaking
with third-parties about a consumer’s debt except to acquire location information about the
consumer. The plaintiffs allege the defendants’ actions in collection with the debt constituted
harassment or abuse in connection with the collection of a debt in violation of 15 U.S.C. §
1692d.
Here, the plaintiffs also allege violations of § 1692e and the following specific
enumerated provisions:

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A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.
...
(2) The false representation of-(A) the character, amount, or legal status of any
debt;
(B) any services rendered or compensation which
may be lawfully received by any debt collector for the
collection of a debt
...
(5) The threat to take any action that cannot legally be
taken or that is not intended to be taken.
...
(8) Communicating or threatening to communicate to any
person credit information which is known or which should be
known to be false, including the failure to communicate that a
disputed debt is disputed.
...
(10) The use of any false representation or deceptive means
to collect or attempt to collect any debt or to obtain information
concerning a consumer.
15 U.S.C. § 1692e. The plaintiff additionally alleges that the defendants violated § 1692f which
prohibits “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. §
1692f.

That section provides a non-exhaustive list of specific examples that constitute a

violation of the section. Id.
In assessing whether particular conduct violates the FDCPA, courts apply “the least
sophisticated consumer” test to objectively determine whether that consumer would be misled.
Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006); Smith v. Transworld
Systems, Inc., 953 F.2d 1025, 1029 (6th Cir. 1992). The least sophisticated consumer test is
designed “to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.”
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Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008)
(quotations and citation omitted).
a. “Requesting Different Amounts”
The plaintiffs allege the defendants violated the FDCPA by “requesting different amounts
in the civil summons and sworn affidavit.” [Amended Complaint, ¶ 55]. In their response to the
motion to dismiss, the plaintiffs argue that this FDCPA violation occurred when the defendants
requested “different amounts in different communications that result in conflicting statements as
to the amount owed.” [Doc. 28 p. 22]. The defendants argue that the plaintiffs have failed to
state a claim under the FDCPA for this alleged violation because the principal amounts requested
in the affidavit and the civil summons are consistent. Additionally, the defendants argue that the
reference to attorney fees in the civil summons but not the affidavit is not false or misleading
under the FDCPA.
The civil summons states the plaintiffs owe the “amount of $6701.68, together with a
reasonable Attorney fee, plus post Judgment interest at the legal rate, civil process fees in the
amount of $35.00, less any payments credited and the cost of this cause.” [Exhibit. 6-1]. The
sworn affidavit of account states that the plaintiffs owe “the sum of $6701.68” on five accounts
listed. [Id.] The plaintiffs argue this request implies that plaintiffs are going to “owe more than
the amount demanded,” with the only support for the collection lawsuit being a sworn affidavit
that makes no mention of attorney fees.
This Court and other courts in the Eastern District of Tennessee have held that where the
summons and affidavit contain consistent principal amounts, such communications are not false
or misleading under the FDCPA, even where the summons also requests attorney fees and costs
that are not discussed in the affidavit. See White v. Sherman Financial Group, LLC, 984 F.

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Supp. 2d 841, 849 (E.D.Tenn. Nov. 4, 2013) (holding that the summons and affidavit are not
inconsistent where the principal amount listed on both documents is the same but the affidavit
does not mention court costs and the civil summons requests costs authorized by statute); see
also Smith v. LVNV Funding, LLC, No. 2:11-CV-379, 2014 WL 3810633, at *16-17, (E.D.Tenn.
Aug. 1, 2014) The reasoning applied in White and Smith applies the same here. Where the
principal amounts are the same, the summons and affidavit are not “different” or “inconsistent.”
The plaintiffs have not presented any facts or argument that distinguish this case from Smith or
White.
The plaintiffs also state that the “different” requests constitute a “false representation” of
the amount of the debt. There is nothing alleged in the complaint to indicate that the amount
requested or the civil summons is a “false representation” of the debt or the ability to collect
attorney fees or interest. The plaintiffs have not even alleged that the defendants were not
entitled to collect interest or attorney fees. Instead, the allegations and argument center solely on
the “inconsistent amounts” in the affidavit and summons. Additionally, the plaintiffs have failed
to allege how requesting attorney fees in the state court is not permitted by law. Tennessee
adheres to the “American rule” for award of attorney fees. John Kohl & Co. v. Dearborn &
Ewing, 977 S.W.2d 528, 534 (Tenn. 1998); Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d
336, 338 (Tenn. 1985). This rule states that a party in a civil action may recover attorney’s fees
only if: (1) a contractual or statutory provision creates a right to recover attorney fees; or (2)
some other recognized exception to the American rule applies, allowing for recovery of such fees
in a particular case. Taylor, 158 S.W.3d at 359; John Kohl, 977 S.W.2d at 534. The plaintiffs
have not alleged that the defendants were not legally able to collect attorney fees nor have they
alleged that there was no agreement permitting collection of fees. An allegation of failing to

14

present a contract for attorney fees at the state court level does not sufficiently allege a threat to
take an action not allowed by law.
Finally, the plaintiffs’ response to the motion for judgment on the pleadings argues that
the failure to provide a specific amount of attorney fees in the civil summons is somehow
misleading or deceptive. The Court finds this argument unpersuasive. The plaintiffs have failed
to make any factual allegation as to why failing to include a specific attorney fee amount is
misleading or deceptive for the consumer. Without a factual allegation asserting how requesting
a “reasonable Attorney fee” was misleading, confusing, or deceptive, the plaintiffs have failed to
state an FDCPA violation. Additionally, the amount of attorney fees to be collected may not be
determined at the time the civil summons is created because the defendants may not be aware of
the amount of time or expense that will be expended on the collection efforts.
Therefore, to the extent that the plaintiffs have alleged FDCPA violations based on
“requesting different amounts” where the affidavit and summons state the same principal
amount, the plaintiffs have failed to state a claim and the motion to dismiss and motion for
judgment on the pleadings are GRANTED. The FDCPA violation alleged in the Amended
Complaint based on “requesting different amounts” is DISMISSED WITH PREJUDICE.
b. “Failure to include § 1692e(11) language in subsequent communications”
and “failure to send a written notice containing amount of the debt and
required notices within five days after the initial communication.
The plaintiffs indicate that they do not oppose granting dismissal of the remaining
FDCPA claims alleged in the Amended Complaint. “Based on this Court’s earlier rulings that a
civil summons and affidavit both constitute formal pleadings in General Sessions Court,
Plaintiffs do not contest the motion for judgment on the pleadings as to these claims. See Doc. 6,
Page ID # 40-42, ¶¶ 47-54.” [Doc. 44 p. 17 n. 2]. The FDCPA claims indicated by the plaintiffs

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are “failure to include § 1692e(11) language in subsequent communications” and “failure to send
a written notice containing amount of the debt and required notices within five days after the
initial communication” in violation of § 1692e(11). [Amended Complaint, ¶¶ 47-54]. Therefore,
these FDCPA claims are DISSMISED WITH PREJUDICE.
IV. CONCLUSION
The defendants moved the court to dismiss the state law claims discussed in the Amended
Complaint under the Rooker-Feldman doctrine and to dismiss the FDCPA claims of the
Amended Complaint for failing to state a claim for which relief may be granted. To the extent
that the motion to dismiss, [Doc. 25], and the motion for judgment on the pleadings, [Doc. 36],
move to dismiss the Amended Complaint, the motions are GRANTED. For the reasons stated
above, pursuant to the Rooker-Feldman doctrine, Counts One through Four of the Amended
Complaint, [Doc. 6 in 2:15-CV-290], asking the Court to set aside state court default judgments,
a claim of unjust enrichment, and claims for actual and punitive damages are hereby
DISMISSED, Count One WITH PREJUDICE and Counts Two through Four WITHOUT
PREJUDICE. The plaintiffs’ FDCPA claim in the Amended Complaint based on the defendants’
attempts to collect debts no owed is hereby DISMISSED WITH PREJUDICE pursuant to the
Rooker-Feldman Doctrine. The plaintiffs have consented to the dismissal of the FDCPA claims
in the Amended Complaint for failing to include particular language in the communications and
failing to send written notice, which are hereby DISMISSED WITH PREJUDICE. Finally, the
plaintiffs’ FDCPA claim for “requesting different amounts” in the Amended Complaint is
DISMISSED WITH PREJUDICE for failure to state a claim. In sum, all claims alleged in the
Amended Complaint, [Doc. 6 in 2:15-CV-290], are DISMISSED.

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The motion to dismiss and the motion for judgment on the pleadings discuss only the
state law claims and FDCPA violations discussed in this opinion. Neither of the dispositive
motions discussed dismissal of the state law claim of invasion of privacy or the FDCPA
violations for improper communication with a third-party alleged in the complaint filed in 2:15CV-287. [Doc. 1-1]. To the extent that the dispositive motions address these allegations, it is
with nothing more than a cursory statement, if at all, and the motions are DENIED. The
allegations made in the complaint, [Doc. 1-1], for invasion of privacy and improper
communication with a third-party in violation of the FDCPA are the only remaining claims in
either of these consolidated cases.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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