In Thompson v. Renner, No. 21-1366, 2022 U.S. App. LEXIS 11706, at *10-12 (6th Cir. Apr. 28, 2022), the Court of Appeals for the 6th Circuit found that a garnishment application to a state court was a communication under under 15 U.S.C. § 1692e(5)

But even without state-specific rules regarding affirmative representations, filing a garnishment request without reasonable belief that the court has jurisdiction to grant it may be sufficient to violate the FDCPA. “Court filings can be a threat under the FDCPA. . . . The fact that the threat appears in a lawsuit or other court filing does not diminish the threatening nature of the communication for purposes of the FDCPA.” Currier, 762 F.3d at 535; see also Stratton, 770 F.3d at 450 (noting that a garnishment request is litigation in pursuit of a debt and is therefore regulated by the FDCPA). It is well-established that taking, or threatening to take, an action impermissible under state law may be sufficient to violate the FDCPA. Stratton, 770 F.3d at 445 (“Under Kentucky law a party has no right to statutory interest if it has waived the right to collect contractual interest. And any attempt to collect statutory interest when it is ‘not permitted by law’ violates the FDCPA.”); Currier, 762 F.3d at 535-36 (concluding that filing a judgment lien against a debtor’s home that was invalid under Kentucky law is “a threat to take an action that cannot legally be taken” because of “the intimidating effect on the least sophisticated consumer: that she would be confused, and reasonably might feel pressured to immediately pay the debt, even if she disputed its validity in order to avoid the implied consequences of the lien”) (internal quotation marks omitted). Thus, filing a garnishment request without reasonable grounds for jurisdiction may be sufficient to violate the FDCPA’s prohibition on “us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt” because it constitutes “[t]he threat to take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5).  Velo/Renner point to this court’s statement in Currier that Congress did not intend to “turn every violation of state law into a violation of the FDCPA.” Appellants’ Br. at 13 (quoting Currier, 762 F.3d at 537). True. But in concluding that debt collectors violated the FDCPA by filing a judgment lien on a debtor’s home that was invalid under state law, Currier went on to explain:  “[While] Congress did not turn every violation of state law into a violation of the FDCPA[,] . . . that does not mean that a violation of state law can never also be a violation of the FDCPA. The proper question in the context of an FDCPA claim is whether the plaintiff alleged an action that falls within the broad range of conduct prohibited by the Act. The legality of the action taken under state law may be relevant, as it is in this case. If the judgment lien [filed against the debtor’s home] had been valid under state law for the month that [the debt collector] held it, we could not say that it was an unfair debt collection practice even though it was coercive in nature. But the same action becomes unfair [within the meaning of the FDCPA] when accomplished by using a state mechanism that does not authorize it.” 762 F.3d at 537 (internal citation omitted) (emphasis added). Thus, even without regard to whether Velo/Renner made “affirmative misrepresentations” in their Garnishment Request, the Garnishment Request could itself be “an action . . . accomplished by using a state mechanism that does not authorize it.” Id. Or put in the FDCPA’s own terms, filing the Garnishment Request could constitute a “threat to take any action that cannot legally be taken.” 15 U.S.C. § 1692e(5).

The Court also explained further the “ipso facto” rule of representations made by counsel to a court that ultimately are proven wrong or incorrect.

Other circuits have suggested a similar line. Legal contentions must be objectively baseless, not just later proved wrong, to be actionable under the Act. See, e.g., Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814, 819 (8th Cir. 2012) (“[I]t was not false or misleading to submit a client affidavit and legal memorandum arguing [defendant’s] legal position” even though “a state court judge rejected the contention.”); Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297-1300 (11th Cir. 2015) (“It would be passing odd to find that allegations that a state court filing asserted a legal position contrary to that of the consumer were sufficient to state a claim under § 1692e.”); see also Hill, 888 F.3d at 346-47 (rejecting liability under § 1692f for seeking improper interest on a debt, because the proper amount of interest “ha[d] not been decided by the [state] supreme court” and the text of the state statute “did not prohibit” defendant’s request). On the other side of the line, suing on a time-barred debt is objectively baseless, and unsurprisingly subject to liability in many circuits. See Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1079 (7th Cir. 2013) (collecting cases). So is filing a writ of garnishment against a debtor current on his payments. See Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1517 (9th Cir. 1994); cf. BE&K Constr. Co. v. NLRB, 536 U.S. 516, 532-33, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (2002) (“For even if a suit could be seen as a kind of provable statement, the fact that it loses does not mean it is false.”); Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983) (“Just as false statements are not immunized by the First Amendment right to freedom of speech . . . baseless litigation is not immunized by the First Amendment right to petition.”).

The Court of Appeals reversed and remanded, however, because the debt collector did not have a chance to explain itself as to its filing with respect to the garnishment request and to meet the standard of whether it’s application was baseless or was merely a mistake.