Kelvin Hardin v. Finkelstein, Kern, Steinberg & Cunningham, P.c.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0531n.06
Case No. 16-6542
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KELVIN HARDIN,
Plaintiff-Appellant,
v.
FINKELSTEIN, KERN, STEINBERG &
CUNNINGHAM, P.C.,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
Before: SILER, SUTTON, and WHITE, Circuit Judges.
SILER, Circuit Judge. Kelvin Hardin appeals from the district court’s grant of
Defendant’s motion to dismiss on grounds of failure to state a claim. Hardin asserts that
Defendant Finkelstein, Kern, Steinberg & Cunningham, P.C. (“FKSC”) violated the Fair Debt
Collection Practices Act (“FDCPA”), specifically 15 U.S.C. § 1692e(11),1 by failing to disclose
that certain communications came from a debt collector. He identifies four state-court
documents that, in his view, require a particular disclosure about debt collection: (1) FKSC’s
motion to set aside an agreed judgment, (2) order to set aside an agreed judgment, (3) default
judgment, and (4) judgment lien. We affirm the district court’s judgment because the court
filings and motion are not actionable communications as defined under § 1692e(11).
1Although Hardin alleged other violations of the FDCPA, he appeals only the district
court’s judgment as to alleged violations § 1692e(11).

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I
In October 2014, FKSC filed a collection action on behalf of Cavalry Investments, LLC
(“Cavalry”) against Hardin in Tennessee Circuit Court.2 At a court hearing, Hardin agreed to a
judgment entered against him, stipulating that he would pay $200.00 per month for three months,
beginning in November 2014, toward the full debt of $15,680.86. Hardin also agreed to contact
FKSC and arrange a payment plan to satisfy the full amount. After noticing that the court
documents reflected a total judgment of only $600, FKSC moved to correct the judgment
amount. Because Hardin had already left the courtroom, the court advised FKSC to file a written
motion to set aside the judgment, after which the court would correct the matter at a later
hearing.
FKSC sent Hardin a letter, both requesting to discuss the erroneous judgment and
inquiring about a payment plan for the full amount of $15,680.86. FKSC received no response
from Hardin so FKSC sent another letter to Hardin, informing him of a hearing on setting aside
the judgment scheduled for March 2015.
After receiving no response, FKSC filed a motion to set aside the judgment in the
Jefferson County General Sessions Court and purportedly sent Hardin a copy of the motion as
well as the proposed order. Hardin did not respond and failed to make the monthly payments
stipulated in the prior judgment. In December 2014, that court set aside the judgment. At the
hearing in March 2015, the court entered a default judgment for FKSC in the amount of
“$15,680.86, plus interest at the rate of 5.25%.” FKSC then secured a judgment lien by filing the
judgment with the Jefferson County Register of Deeds.
2FKSC does not contest that Hardin has sufficiently alleged facts supporting a conclusion
that FKSC is a debt collector as defined under the FDCPA. See 15 U.S.C. § 1692a(6).

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In May 2015, FKSC sent Hardin a collection letter, informing him that a judgment lien
had been registered with the county. Each of these letters contained the required disclosure.
Both Hardin’s employer and credit union began garnishing his funds. Hardin responded to the
letter, representing that he never received a copy of the motion to set aside judgment, order
setting aside judgment, default judgment, or judgment lien.
Hardin sued FKSC in state court, alleging, among other claims, that the default judgment
should be set aside as void for lack of subject-matter jurisdiction and for damages and restitution
under state law and the FDCPA. Hardin asserted that certain documents failed to disclose FKSC
as a debt collector, thereby violating its disclosure obligations under 15 U.S.C. § 1692e(11).
Hardin identified only four documents as actionable communications: (1) motion to set aside an
agreed judgment, (2) order to set aside an agreed judgment, (3) default judgment, and
(4) judgment lien.
On removal to federal court, FKSC moved to dismiss on the basis of failure to state a
claim. The district court granted the motion on grounds that all asserted documents were exempt
from the disclosure requirement because they were “formal pleading[s] made in connection with
a legal action” under § 1692e(11).
II
We review de novo a grant of a motion to dismiss for failure to state a claim. See Top
Flight Entm’t, Ltd. v. Schuette, 729 F.3d 623, 630 (6th Cir. 2013); Fed. R. Civ. P. 12(b)(6). To
avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted). Statutory interpretation is a question of law reviewed de novo. Roberts v. Hamer,
655 F.3d 578, 582 (6th Cir. 2011). We may affirm the dismissal of claims on alternative grounds

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supported by the record. See Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 428–29
(6th Cir. 2016).
III
Hardin asserts that FKSC’s motion in the state court, the state court’s own adjudicative
actions, and the act of securing a judgment lien through registration with county records all
constitute communications from a debt collector to a consumer. Those actions, says Hardin,
must contain the disclosures prescribed in 15 U.S.C. § 1692e(11).
Although the district court dismissed on the grounds that the asserted documents were
“formal pleadings” exempt from the disclosure requirements of § 1692e(11), we affirm on the
alternative basis that Hardin failed to allege actionable communications between a debt collector
and consumer. City Mgmt. Corp v. U.S. Chem. Co., 43 F.3d 244, 251 (6th Cir. 1994) (citation
omitted). A debt collector violates 15 U.S.C. § 1692e(11) when it fails to identify itself as a debt
collector when communicating with the consumer:
The failure to disclose in the initial written communication with the consumer and
in addition, if the initial communication with the consumer is oral, in that initial
oral communication, that the debt collector is attempting to collect a debt and that
any information obtained will be used for that purpose, and the failure to disclose
in subsequent communications that the communication is from a debt collector,
except that this paragraph shall not apply to a formal pleading made in connection
with a legal action.
15 U.S.C. § 1692e(11) (emphasis added).3 The FDCPA defines “communication” as the
“conveying of information regarding a debt directly or indirectly to any person through any
medium.” § 1692a(2)(emphasis added). A “debt collector” means “any person who uses any
3By its terms, 15 U.S.C. § 1692e(11) qualifies “initial communication[s]” as “with the
consumer,” while referencing “subsequent communications” without the consumer qualifier.
Even assuming a distinction exists between actionable initial and subsequent communications,
Hardin failed to demonstrate how the asserted documents constituted communications from a
debt collector as defined under the FDCPA.

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instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.” § 1692a(6) (emphasis
added). The Dictionary Act defines a person as “corporations, companies, associations, firms . . .
as well as individuals.” 1 U.S.C. § 1.
The order to set aside an agreed judgment, default judgment, and judgment lien cannot
constitute communications between the FKSC and Hardin for purposes of triggering the
FDCPA’s disclosure requirements. The listed orders and entries were issued by the court
(a nonperson)—not the FKSC. See id. The adjudicative process cannot be construed as
communications from the debt collector to the debtor.
As for FKSC’s motion to set aside the judgment, it is likewise outside the ambit of
protection under the FDCPA because Hardin claims that he never received the motion. Thus, the
motion cannot be deemed a “communication with the consumer.”
AFFIRMED.

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