Gause v. Med. Bus. Consultants, Inc., Case No.: 8:18-cv-1726-EAK-AAS

• Decision Date: 09 December 2019
• Docket Number: Case No.: 8:18-cv-1726-EAK-AAS
• Parties: BRANDON GAUSE, Plaintiff, v. MEDICAL BUSINESS CONSULTANTS, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

BRANDON GAUSE, Plaintiff, v. MEDICAL BUSINESS CONSULTANTS, INC., Defendant.

Case No.: 8:18-cv-1726-EAK-AAS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

December 9, 2019

ORDER

Plaintiff Brandon Gause, on behalf of himself and a putative class of approximately 1,000 other individuals, sues Defendant Medical Business Consultants, Inc. ("MBC") for alleged violations of the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. §§ 559.55, et seq., and the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. (Doc. 1). He also seeks declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq. Id. MBC moves to dismiss or, alternatively, for judgment on the pleadings. (Doc. 23). Gause opposes. (Doc. 27). The Court will grant in part and deny in part the motion.

I.

Gause is a natural person and a Florida resident. (Doc. 1 at ¶10). MBC is a Florida corporation that provides debt collection services to physicians and other medical service providers in Florida. Id. at ¶¶2, 11.

On January 3, 2018, MBC sent Gause a one-page collection letter (the "Letter") in an attempt to collect a $1,610.55 debt Gause incurred after receiving personal medical services from Florida Cardiology Associates. (Doc. 1-1). The Letter is from MBC's "Settlement Division" and is addressed to Gause at a Port Richey, Florida address. Id. The Letter reads:

We have been retained by [Florida Cardiology Associates] to settle this account. Please send payment in full in the enclosed envelope.

If you feel that this is not a valid debt CONTACT US IMMEDIATELY AT (***) ***-****. If you fail to contact us we will have no choice but to assume that this is a VALID and JUST DEBT.

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you the name and address of the original creditor, if different from the current creditor.

Id. (capitalization in original, redaction added). The Letter is signed by "Your Representative, LISA SMITH" and lists the same telephone number provided in the body of the Letter. Id. (capitalization in original). In the bottom left corner of the Letter is a space for Gause to provide his debit or credit card payment information. Id. In the bottom right corner of the Letter are two text boxes stacked atop one another. Id. The first text box reads:

We report to multiple Credit Bureaus bi-

weekly. This delinquent balance could

prevent you from obtaining credit when

you need it in the future.

Id. (bolding in original). The second reads:

What to Do When You Receive a Collection

Notice

Don't Get Angry

Let Us Help

Your account was

referred to us by

someone that values

your business.

Our staff is

experienced in credit

and collections. They

are ready to assist you

if you will let them.

This is not intended to be legal advice

Id. (bolding and italics in original). The Letter concludes, "THIS IS A COMMUNICATION FROM A DEBT COLLECTOR." Id. (capitalization and bolding in original).

The complaint alleges MBC sent nearly identical collection letters to approximately 1,000 other individuals in the state of Florida during the putative class period. (Doc. 1 at ¶16).

II.

Gause initiated this litigation by filing a three-count, class action complaint with the Court on July 18, 2018. (Doc. 1). Count I alleges MBC violated section 559.72 of the FCCPA because MBC, through the Letter, asserted the existence of a legal right it knew it didn't have by (i) stating it would assume the debt was "valid" and "just" if Gause didn't contact MBC "immediately" and (ii) implicitly threatening to report the debt to multiple credit bureaus bi-weekly. Id. at ¶¶37-46. Count II alleges MBC violated the FDCPA inthree distinct respects: first, that MBC violated section 1692g because the Letter's demand for immediate action and implicit threat to report the debt overshadowed Gause's statutory right to dispute and verify the debt within thirty days; second, that MBC violated section 1692e because the Letter's implicit threats to report the debt were false; and third, that, alternatively, MBC violated section 1692f because the Letter, as a whole, amounted to an unfair and unconscionable means to collect a debt. Id. at ¶¶47-55. Count III alleges Gause is entitled to (i) a declaratory judgment declaring that MBC's conduct violated the FCCPA and the FDCPA and (ii) an injunction enjoining MBC from collecting or attempting to collect debts using communications like those contained in the Letter. Id. at ¶¶56-66.

MBC answered the complaint on August 13, 2018. (Doc. 9). MBC admits it's engaged in the business of collecting debts for physicians and other medical service providers in Florida, and that it's a "debt collector" as that term is defined by both the FCCPA and the FDCPA. Id. at ¶11. MBC also admits it sent Gause the Letter in an attempt to collect the debt he owed to Florida Cardiology Associates, and that the debt qualifies as a "consumer debt" under both the FCCPA and the FDCPA. Id. at ¶¶26, 28. MBC denies the remainder of Gause's allegations and asserts a single affirmative defense (failure to state a claim). See generally id.

MBC filed the instant motion on April 19, 2019. (Doc. 23). MBC moves pursuant to Rule 12(b)(1), Fed. R. Civ. P., for the entry of an order dismissing the action for lack of subject matter jurisdiction. Id. at 4-7. As grounds, MBC argues Gause cannot establish he suffered a "concrete injury" as required by the Supreme Court in Spokeo, Inc. v. Robins,136 S. Ct. 1540 (2016), and that Gause therefore lacks standing to sue. Id. Alternatively, MBC moves pursuant to Rule 12(c), Fed. R. Civ. P., for the entry of an order granting judgment on the pleadings in MBC's favor and against Gause on each of his claims. Id. at 7-16. As grounds, MBC argues the complaint, as a matter of law, fails to plausibly allege violations of either the FCCPA or the FDCPA. Id. at 7-15. And because the complaint fails to plausibly allege violations of either statute, says MBC, there's likewise no legal basis for the entry of a declaratory judgment in Gause's favor. Id. at 15-16.

Gause responded in opposition to the motion on June 3, 2019. (Doc. 27). With respect to standing, Gause contends MBC's violations of the FCCPA and the FDCPA did, in fact, result in "concrete" injuries to Gause because the violations posed "a real risk of harm" to Gause's "statutorily recognized interests." Id. at 7-12. With respect to MBC's alternative request for judgment on the pleadings, Gause contends the complaint plausibly alleges violations of the FCCPA and the FDCPA, as well as Gause's entitlement to the entry of a declaratory judgment in his favor and against MBC. Id. at 12-20.

The motion is fully briefed and ripe for the Court's determination.

III.

First, the Court will provide pertinent background on the FCCPA and the FDCPA. Next, the Court will address whether Gause has standing to sue. Finally, the Court will address whether MBC is entitled to judgment on the pleadings.

A.

As a result of increased abuse by consumer debt collectors and the lack of any meaningful common law tort remedies, in the late-1960s and early-1970s, state legislatures began to recognize the need for consumer protection legislation in the area of debt collection. And by the late-1970s, most states had enacted consumer protection laws aimed at preventing abusive debt collection practices. See H.R. Rep. No. 95-131 at 3 (1977) (noting that thirty-seven states and the District of Columbia had laws regulating debt collectors.) For its part, Florida enacted the FCCPA in 1972 "as a means of regulating the activities of consumer collection agencies within the state." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (per curiam). The purpose of the FCCPA "is to deter bad collection practices," and "to protect Florida consumers from illegal [and] unscrupulous practices of debt collectors and other persons." Brook v. Chase Bank USA, N.A., 566 F. App'x 787, 790 (11th Cir. 2014) (per curiam) (citation omitted). See also Harris v. Beneficial Fin. Co. of Jacksonville, 338 So.2d 196, 200-01 (Fla. 1976) (describing the FCCPA as "a laudable legislative attempt to curb what the Legislature evidently found to be a series of abuses in the area of debtor-creditor relations"). Relevant here, section 559.72 of the FCCPA prohibits a debt collector, in attempting to collect a debt, from "asserting the existence of [a] legal right when such person knows that the right does not exist." Fla. Stat. § 559.72(9).

But abusive debt collection wasn't just a state issue. In the late-1970s, Congress began to recognize abusive debt collection as "a widespread and serious national problem"as well. S. Rep. No. 95-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N 1695, 1696. Congress found:

There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

. . .

Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

15 U.S.C. § 1692(a)-(b). As a result, Congress enacted the FDCPA in 1978. Like the FCCPA and other states' laws regulating consumer debt collection practices, the purpose of the FDCPA "is to protect consumers from a host of unfair, harassing, and deceptive debt collection practices," S. Rep. No. 95-382, at 1 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696, and "to...