Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WALKER v. NATIONAL RECOVERY

March 2, 1999

MARGARET WALKER, PLAINTIFF,
v.
NATIONAL RECOVERY, INC., DEFENDANT.



The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Margaret Walker ("Plaintiff") instituted this class action lawsuit against National Recovery, Inc., ("Defendant") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (1998). Defendant now brings a motion to dismiss for failure to state a claim. Fed.R.Civ.P. 12(b)(6).*fn1 For the following reasons the Court holds that the facts as alleged demonstrate that Defendant did not violate the FDCPA and grants Defendant's motion to dismiss.

I. Factual Background

Plaintiff is an individual who resides in Bellwood, Illinois. Defendant is a professional debt collection agency and qualifies as a "debt collector" under the FDCPA. 15 U.S.C. § 1692a(6). In February 1998 Defendant mailed to Plaintiff one of its standard form collection letters (the "dunning letter"). The letter demanded payment of an overdue personal loan made to Plaintiff by Commercial Credit. The letter addressed to Plaintiff states:

  Your past-due account with Commercial Credit has
  been placed with our company for immediate
  collection. Failure to respond may result in further
  collection activity and possible legal action.
  Unless you notify this office in writing within
  thirty (30) days after receiving this notice that you
  dispute the validity of this debt or any portion
  thereof, this office will assume that this debt is
  valid. If you notify this office in writing within
  THIRTY (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 in
  writing within THIRTY (30) days after receiving this
  notice, this office will provide you with the name
  and address of the original creditor, if different
  from the current creditor.
  Please remit PAYMENT IN FULL with this letter to
  the address above or you may pay in person at our
  office. Make payment payable to NATIONAL RECOVERY,
  INC.
  If you have any questions concerning your account
  please contact me at my office.
  Si Ud. necesita ayunda en la traduccion de esta
  carta, por favor llamenos para enviarle una
  traduccion.

Plaintiff alleges that the letter violates the FDCPA because it in effect is a demand for immediate payment which contradicts and overshadows the validation notice required under the FDCPA.

II. Standard of Review

In analyzing Plaintiff's complaint under Rule 12(b)(6), the court must accept as true the allegations in the complaint and the inferences that may be reasonably drawn from them. Fed.R.Civ.P. 12(b)(6); Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992). A motion to dismiss may be granted only if the court concludes that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). A plaintiff's claim can be dismissed if the plaintiff pleads facts which demonstrate that the plaintiff does not have a viable claim. Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994).*fn2

III. The Fair Debt Collection Practices Act

A. § 1692g Requirements

The Fair Debt Collection Practices Act requires a "validation notice" to be present in letters seeking to collect debts:

(a) Notice of debt; contents

  Within five days after the initial communication with
  a consumer in connection with the collection of any
  debt, a debt collector shall, unless the following
  information is contained in the initial communication
  or the consumer has paid the debt, send the consumer
  a written notice containing —

(1) the amount of the debt;

  (2) the name of the creditor to whom the debt is
  owed;
  (3) a statement that unless the consumer, within
  thirty days after receipt of the notice, disputes the
  validity of the debt, or any portion there of, the
  debt will be assumed to be valid by the debt
  collector.
  (4) a statement that if the consumer notifies the
  debt collector in writing within the thirty-day
  period that the debt, or any portion thereof, is
  disputed, the debt collector will obtain verification
  of the debt or a copy of a judgment against the
  consumer and a copy of such verification or judgment
  will be mailed to the consumer by the debt collector;
  and
  (5) a statement that, upon the consumer's written
  request within the thirty-day period, the debt
  collector will provide the consumer with the name and
  address of the original creditor, if different from
  the current creditor.
  (b) If the consumer notifies the debt collector in
  writing within the thirty-day period . . . the debt
  collector shall cease collection of the debt . . .
  until the debt ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.