McMullen v. McHughes Law Firm, 2015 Ark. 15

Background

Precision Analytics assigned a decades-old credit-card debt originally in Owen McMullen’s name to McHughes Law Firm, which sued Lillie McMullen on November 16, 2012 to collect the debt.
Lillie McMullen denied owing or using the card, defended against Precision’s suit, and that suit was dismissed by the trial court on August 28, 2013.
After dismissal, McMullen sued McHughes in state court alleging violations of the FDCPA and AFDCPA, and state-law claims for invasion of privacy and malicious prosecution; she sought statutory damages, emotional damages, and attorney’s fees.
McHughes moved to dismiss under Rule 12(b)(6), attaching documents (account records, complaint, affidavit) asserting probable cause to sue; the circuit court dismissed McMullen’s second amended complaint and denied reconsideration.
On appeal, the Arkansas Supreme Court reviewed whether McMullen pleaded sufficient facts to state FDCPA/AFDCPA claims or viable state tort claims, emphasizing Rule 8’s requirement that complaints allege facts, not conclusions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FDCPA/AFDCPA claims based on filing a suit and related statements were adequately pleaded	McMullen: filing the suit and asserting the debt after inadequate investigation and for improper amount violated FDCPA/AFDCPA (false representations; unfair practices)	McHughes: as a debt-collection law firm it may litigate claims; McMullen failed to plead facts showing false statements, improper amount, or that FDCPA duties were breached	Held: Dismissed — complaint contains conclusory allegations without factual detail; plaintiff failed to plead facts showing FDCPA violations
Whether dismissal of the underlying debt suit establishes falsity/probable cause absence	McMullen: dismissal proves statements were false and no probable cause existed	McHughes: affidavit and records provided facts supporting probable cause; dismissal does not automatically prove FDCPA/state-law violations	Held: Dismissed — dismissal alone does not establish statutory violation or satisfy pleading requirements; plaintiff failed to plead background facts showing lack of probable cause
Whether state-law invasion-of-privacy claims (intrusion/public disclosure) were pleaded sufficiently	McMullen: public disclosure and intrusion occurred when McHughes publicized and sued on a baseless debt	McHughes: plaintiff alleges the facts were false rather than private facts; no specific offensive disclosures pleaded; attorneys immune absent fraud/intentional misrepresentation	Held: Dismissed — plaintiff did not allege highly offensive intrusion or specific public disclosures; cannot plead public-disclosure claim by alleging disclosed facts were false
Whether malicious-prosecution claim was pleaded sufficiently	McMullen: McHughes continued suit despite knowing lack of merit, showing malice and lack of probable cause	McHughes: had probable cause based on client affidavit and account records; plaintiff failed to plead facts showing malice or the basis for lack of probable cause	Held: Dismissed — plaintiff failed to plead facts on probable cause, malice, or supporting background; mere dismissal is insufficient to state claim

Key Cases Cited

Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (2010) (FDCPA’s purpose to eliminate abusive debt collection practices)
Heintz v. Jenkins, 514 U.S. 291 (1995) (attorneys who regularly collect consumer debt are debt collectors under the FDCPA)
Born v. Hosto & Buchan, PLLC, 372 S.W.3d 324 (Ark. 2010) (limits on attorney liability for litigation activity; analysis of attorney immunity statute)
Scottsdale Ins. Co. v. Morrowland Valley Co., LLC, 411 S.W.3d 184 (Ark. 2012) (summary-judgment standard and appellate review framing)
Biedenharn v. Thicksten, 206 S.W.3d 837 (Ark. 2005) (Rule 12(b)(6) review treating complaint facts as true)
Dodrill v. Arkansas Democrat Co., 590 S.W.2d 840 (Ark. 1979) (adoption of Restatement approach to invasion-of-privacy torts)