(June 12, 2017) In Flecha v. Medicredit (Flecha v. MEDICREDIT, INC., Dist. Court, WD Texas 2017), Texas District Court Judge Lee Yeakel has denied a request by Medicredit to dismiss the case on grounds that there is no basis for the Plaintiff’s complaint. The case is allowed to continue. Nina Flecha has alleged, in a class action case, that Medicredit threatened her with litigation to scare her into paying her medical bill, without any real intent to sue, which, if true, would constitute a violation of the Fair Debt Collection Practices Act (FDCPA).


In June 2016, Nina Flecha (“Flecha”) filed a class action suit under the FDCPA alleging that Medicredit had sent her a letter containing a false threat to sue. Flecha argued that since Seton Medical Center Hays (“Seton” is Medicredit’s client and the original creditor on an unpaid $5,166.71 medical bill)  does not sue consumers for medical debts, the collection letter caused an FDCPA violation.  Medicredit filed an instant Motion for Judgment on the Pleadings in the fall of 2016, citing Federal Rule of Civil Procedure 12(c), alleging that Flecha did not have a valid claim for relief under the FDCPA because the collection letter did not contain an explicit threat of litigation.

The court denied Medicredit’s motion, finding that a dismissal would only be appropriate  when/if it is apparent that not even a “significant fraction of the population would be misled” by the contents of a collection letter. A review of the purpose of the FDCPA is offered, reminding us:

15 U.S.C § 1692(e). Section 1692e generally prohibits “false, deceptive, or misleading representation[s] or means in connection with the collection of any debt.” 15 U.S.C. §1692e. The section provides a non-exhaustive list of examples of such conduct, including “[t]he threat to take any action that cannot legally be taken or that is not intended to be taken,” and “[t]he 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(5) and (10). Congress “clearly intended the FDCPA to have a broad remedial scope” and “[t]he FDCPA should therefore be construed liberally in favor of the consumer.” Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 511 (5th Cir. 2016) (quoting Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440, 445 n. 11(5th Cir. 2013)).

Importantly, Seton does not deny Flecha’s claim that it does not sue patients to collect outstanding medical bills. There is also no dispute about the contents of the collection letter in question, which states, in part:

“…a determination must be made with our client as to the disposition of your account…voluntary resolution is doubtful…DO NOT IGNORE THIS NOTICE.” (emphasis in original)

Medicredit argued (relying on Jenkins v. Union Corp., 999 F. Supp. 1120, 1136 (N.D. Ill. 1998) that Flecha has no claim under § 1692e(5) because the letter in question does not outright mention litigation, or imply the pursuit of litigation. However, many courts have established that explicit threat is not required in order to establish a violation of § 1692e(5), and Judge Yeakel noted that the Texas court is not bound by the Jenkins ruling, adding that the “the standard articulated by Jenkins is far from the controlling rule regarding what is necessary to state a § 1692e(5) claim.”

Instead, the court decided that “a plaintiff is permitted to offer evidence at a summary judgment or trial stage to show that indeed the language confuses the unsophisticated consumer.” In the eyes of the judge, at this stage of the case, Flecha has brought a plausible claim that Medicredit violated 15 U.S.C. § 1692e(5) by threatening legal action it had no intention of pursuing. The case will proceed to its next stage.

Written by Berta Alicia Bustamante with InsideARM.com