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WALKER v. NATIONAL RECOVERY

United States District Court, Northern District of Illinois, Eastern Division


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 collector obtains [such information
  requested].

15 U.S.C. § 1692g.

At issue is whether the dunning letter violates the FDCPA. Specifically, Plaintiff claims that the use of the words "immediate collection" and information as to the consequences of a failure to respond in the first paragraph of the letter, the FDCPA's required validation notice in the second paragraph of the letter, and a request for "PAYMENT IN FULL" in the third paragraph of the letter violates § 1692 of the FDCPA. Plaintiff contends that the additional language overshadows or contradicts the included validation notice and therefore confuses the reader. The Court concludes that as a matter of law the letter does not violate the FDCPA and, consequently, "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). Defendant is entitled to have its motion to dismiss granted.

The FDCPA has been interpreted to not only require the above described notification, but the validation notice also must not be contradicted nor overshadowed by other parts of the letter. Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir. 1997). "Merely including the requisite validation notice in a collection letter is not sufficient to satisfy the FDCPA; the notice must be communicated effectively." Keen v. Omnibus International, Inc., No. 98 C 3947, 1998 WL 485682, at *2 (N.D.Ill. Aug.12, 1998) (citing Swanson v. Southern Oregon Credit Serv., 869 F.2d 1222, 1225 (9th Cir. 1988)). "All Courts of Appeals which have addressed the issue in this case, including this Circuit, have held that, even though the § 1692g(a) information properly is included in a communication from a debt collector to a debtor, the debt collector may not overshadow or contradict that information with other messages sent with the validation notice or within the validation period." Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518 (7th Cir. 1997). Additional communications in the letter may not overshadow the validation notice by obscuring it either visually or via emphatic techniques. Keen, 1998 WL 485682, at *2 (citing Bartlett, 128 F.3d at 500). Furthermore, those additional statements may not be included if they would confuse the debtor regarding the rights disclosed in the validation notice. Keen, 1998 WL 485682, at *2 (citing Swanson, 869 F.2d at 1225). For instance, other communications which contradict the validation notice, in the sense that they are logically inconsistent with it, would be confusing and therefore are not permitted. Keen, 1998 WL 485682, at *2 (citing Bartlett, 128 F.3d at 500). However, words or phrases may not be taken out of the context of the letter to be measured against the requirements of the FDCPA but instead the letter must be viewed in its entirety. Keen, 1998 WL 485682, at *3 (citing Bartlett, 128 F.3d at 501).

B. Unsophisticated Consumer Standard

The standard by which the Court views the letter is one of the unsophisticated consumer. Bartlett, 128 F.3d at 500. "[T]he debt collector may not defeat the statute's purpose by making the required disclosures in a form or within a context in which they are unlikely to be understood by the unsophisticated debtors who are the particular objects of the statute's solicitude." Id. Adopting the unsophisticated consumer standard the Seventh Circuit explained its contours. "We reiterate that an unsophisticated consumer standard protects the consumer who is uninformed, naive, or trusting, yet it admits an objective element of reasonableness. The reasonableness element in turn shields complying debt collectors from liability for unrealistic or peculiar interpretations of collection letters." Gammon v. GC Services Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994). Thus the standard weighs in reasonableness and fairness to debt collectors. While the standard does not require collection letters to be drafted in only the most basic and rudimentary language such that elementary school children could understand them, it also does not allow contradictory and complicated statements that would confuse an unsophisticated consumer. "The unsophisticated consumer is to be protected against confusion whatever form it takes." Bartlett, 128 F.3d at 500.

C. Analysis

There is a wealth of caselaw addressing § 1692g of the FDCPA and both Plaintiff and Defendant cite numerous cases to support their respective positions. The Court concludes that several Seventh Circuit and Northern District of Illinois cases addressing FDCPA violations are sufficiently analogous to persuade the Court that Defendant's dunning letter is in compliance with the FDCPA. Furthermore, the Court concludes that the numerous cases cited by Plaintiff which find violations of the FDCPA are distinguishable from the present case.

  1. The Text of the Letter Is Not Confusing to an
    Unsophisticated Consumer

The first of the factually analogous cases from the Northern District of Illinois is Keen v. Omnibus International, Inc., No. 98 C 3947, 1998 WL 485682 (N.D.Ill. Aug.12, 1998). In Keen the defendant provided the validation notice in the dunning letter. Id. at *1. As in the present case, the majority of the letter was comprised of the requisite notice and the letter did not use "typeface, font, or other graphic techniques to draw attention to any part of the letter." Id. at *2.

Furthermore, Plaintiff's arguments in the present case are similar to those in Keen. Both rest on the use of the word "immediately." In the case at bar, the letter states that the account has been placed with Defendant for "immediate collection." In Keen the defendant requested that the recipient respond "immediately." Id. at *2. The court in Keen, relying on Terran v. Kaplan, 109 F.3d 1428 (9th Cir. 1997), concluded that there was a distinction between requiring immediate contact as opposed to immediate payment. Compare Jenkins v. Union Corp., 999 F. Supp. 1120, 1131-32 (N.D.Ill. 1998) (holding that requesting immediate payment violated FDCPA). The court, relying on Bartlett, concluded that the use of the word "immediate" did not conflict with the statement of plaintiff's rights under the FDCPA. Keen, 1998 WL 485682, at *2-*4 (citing Bartlett v. Heibl, 128 F.3d 497, 501-502 (7th Cir. 1997)). Similarly, the use of the word "immediate" in the present case, that is, stating that the account has been placed with Defendant for "immediate collection," does not conflict with the validation notice. See also Bato v. Associated Creditors Exch., No. 98 C 2791, 1998 WL 749070 (N.D.Ill. Oct.16, 1998) (holding that use of language "immediate collection" in a dunning letter does not communicate a demand for immediate payment or a threat of immediate action and therefore does not violate FDCPA).

Vasquez v. Gertler & Gertler, Ltd., 987 F. Supp. 652, 657 (N.D.Ill. 1997), is also on point. The dunning letter at issue in Vasquez was largely comprised of the validation notice. Id. One long paragraph explained that the plaintiff had a thirty-day period to demand verification in writing and dispute the debt and the letter did not bury, hide, or obscure the notice in any way. Id. The aspect of the letter that was contended to a be a violation of the FDCPA was one sentence that said "[k]indly let me have you immediate attention and cooperation by sending me your payment or contacting me without further delay." Id. The court noted that such a requirement "has never been found to violate section 1692g. The phrase `merely recommends that' Vasquez `look into the matter as soon as possible.'" Id. (citing Gammon v. Belzer, No. 96 C 5936, 1997 WL 189291, at *3 (N.D.Ill. Apr.11, 1997)). The court found that there was no direct contradiction in that no statement in the letter demanded payment or even any other action in less than thirty days and there was no implication that there will be legal action or any other adverse consequence if the plaintiff did not act quickly. Id. The court also found the phrase "by sending me your payment or contacting me without further delay" to be a permissible effort to collect the debt. Vasquez, 987 F. Supp. at 657. Vasquez noted that by requesting payment or contact the letter was just providing the debtor with different options as courses of conduct. Id.

The letter in the present case is similar to that in Vasquez and not as objectionable as that in Keen. From the standpoint of an unsophisticated consumer, the first paragraph of the letter informs the debtor that the account is past due and that the Defendant has been hired to collect the debt. That paragraph goes on to inform the debtor of the consequences of failing to respond. The recipient at this point may be questioning how to respond. The next paragraph answers that question by informing the recipient of several options for response all of which involve a thirty-day time frame. The paragraph consists of the requisite validation notice and includes all information required by § 1692g of the FDCPA. The final paragraph provides the debtor with one more option for response, payment in full, and tells the debtor how and where she might pay. It does not include any threats or time restrictions.

Regarding the use of the word "immediate" in the letter, instead of demanding an immediate response, the letter only stated that the debt had been submitted to the agency for immediate collection. This is just a way of informing the debtor that the agency would go about its debt collection activities. The creditor has every right to continue its debt collection activities until it receives written notice from the debtor, as the court noted in Vasquez. 987 F. Supp. at 657. See also Bartlett v. Heibl, 128 F.3d 497, 501-02 (7th Cir. 1997) (stating that creditor is entitled to file lawsuit against debtor during validation period if that lawsuit is suspended when debtor asks for validation). As compared to Keen, the only response that the letter demands is either written response within the thirty-day validation period or payment within no specified time. Thus, no response is asked for that contradicts Plaintiff's rights under the FDCPA. The only time period the debtor need worry about is the thirty-day time period set forth three times in the second paragraph. The most that can be said of the use of the word "immediate" is that, in the context of the overall letter, it suggests that the collection agency will act promptly but, as in Keen and Vasquez, does not require immediate action by the debtor in order to preserve her rights.

In addition, similar to the letter in Vasquez, the letter in the present case simply informs the debtor of her different options. The second paragraph of the letter provides the debtor with one course of conduct, exercising her right of verification, and the final paragraph provides the debtor with another course of conduct, making payment. Stating that "[f]ailure to respond may result in further collection activity and possible legal action" informs the debtor of the consequences of taking neither course.

Plaintiff cites Gammon v. Belzer, No. 96 C 5936, 1997 WL 189291 (N.D.Ill. Apr.11, 1997), in support of her position; however the Court believes that, to the contrary, Gammon further supports the Court's holding that the mere use of the word "immediate" in a dunning letter does not warrant an automatic finding of a § 1692g violation. In Gammon the letter stated "Your immediate attention to this matter is in your best interest." Id. at *2. Plaintiff points out that the Gammon court concluded that the letter complied with the FDCPA in that it did not "demand that Gammon submit payment or seek validation immediately, or include any other language which would overshadow Gammon's rights under the FDCPA." Id. at *4. Plaintiff argues that the letter in the present case is distinct because it does seek immediate payment. As noted above, the Court concludes that, while the letter seeks payment, it does not demand immediate payment. Consequently, since the language "immediate collection" in the present letter does not go so far as the language in the Gammon letter requesting "immediate attention," it is well within the Gammon holding to conclude that there is no violation in the present case.

2. The Letter Is Not Visually Confusing

Furthermore, the visual presentation did not emphasize a need for the recipient's immediate action. See U.S. v. National Financial Services, Inc., 98 F.3d 131, 139 (4th Cir. 1996) (holding that letter violated FDCPA when validation notice was printed on back of letter in small type and light grey ink while text on front of letter demanded immediate payment and threatened legal action in bold type). The word "immediate" does not appear any differently from the rest of the text. To the contrary, the emphasis is on the thirty-day time period. The word "THIRTY" appears in capital letters twice, thus emphasizing that the debtor has thirty days to respond. In addition, thirty days is the only response time delineated in the letter. While "PAYMENT IN FULL" also appears in capitals and bold face, as the Court has previously noted, no time period is given within which the debtor is told to remit payment. Requesting payment in full in such a manner is a permissible effort to collect the debt and does not overshadow the long paragraph providing the validation notice. Vasquez, 987 F. Supp. at 657.

3. Plaintiff's Cases Are Distinguishable

Plaintiff argues that the present case falls within the holding of Jenkins v. Union Corp., 999 F. Supp. 1120 (N.D.Ill. 1998). Specifically, Plaintiff relies on the court's holding in Jenkins that the first collection letter sent to Plaintiff Terrafino violated the FDCPA. Id. at 1132. Plaintiff is correct in noting that that letter is very similar to the one in the case at hand in that it does not demand immediate payment but refers to "immediate collection." Id. However, the letter at bar is distinguishable from the Jenkins letter in two important respects. First, the Jenkins letter began with the declaration that it was "URGENT," thus creating the overall impression that immediacy of action was needed. Id. In addition, the letter contained a final sentence that "[s]trongly recommend[ed]" that the recipient make contact or payment. Id. The court in Jenkins did not rely simply on the words "immediate collection" for its conclusion that the letter violated § 1692g, but instead specifically relied on the "[s]trong recommend[ation]" along with the reference to "immediate collection" to find that the two "[r]ead together" "are the substantive equivalent of [a] request for immediate payment. . . ." Id. The court then concluded that "viewed as a whole, the letter creates an apparent and unexplained contradiction between its message and the thirty-day validation rights." Id. In that Bartlett dictates that words should not be read out of context and the Jenkins letter contained several significant additions which created the overall impression that the debtor should act hastily, the Court concludes that the present case does not fall within the holding of Jenkins. Although the dunning letter at issue did state "immediate collection" as did the Jenkins letter, the Court finds that contrary to Jenkins, that phrasing used in the context of the overall letter does not create the impression that it is a request for immediate payment.

Finally, the Court finds that the present case is easily distinguishable from the major Seventh Circuit cases which have found violations. Plaintiff argues that the defects in the letter in the present case could be cured in the same manner as the defects in the letter in Bartlett were cured, that is, by including a paragraph which explains how the debtor's § 1692g rights can coexist with the creditor's right to pursue collection and bring legal action. Bartlett v. Heibl, 128 F.3d 497, 502 (7th Cir. 1997). The Seventh Circuit's model letter included such a paragraph which stated:

  The law does not require me to wait until the end of
  the thirty-day period before suing you to collect
  this debt. If, however, you request proof of the debt
  or the name and address of the original creditor
  within the thirty-day period that begins with your
  receipt of this letter, the law requires me to
  suspend my efforts (through litigation or otherwise)
  to collect the debt until I mail the requested
  information to you.

The Court concludes that for two reasons such a paragraph is not legally required in the case at hand. First, the model letter in Bartlett contained a demand for payment within a specific time period. No such demand for payment within a set time period is included in the present letter. Second, the need for the paragraph was created by the conflict between the validation notice and the demand for payment within a time period shorter than thirty days. There is no such conflict in the present letter because the only time restriction included in the letter is the thirty-day period in the validation notice. Consequently, the case before the Court is distinguishable from Bartlett in the same manner that the present case is distinguishable from several other Seventh Circuit cases which have found violations of the FDCPA.

The Seventh Circuit has found, in a number of cases, FDCPA violations to turn on a contradiction between a debtor's rights under the FDCPA and requests for payment in less than thirty days. The Seventh Circuit in Bartlett, 128 F.3d at 500, held that a letter is confusing, and thus in violation of the FDCPA, if it demands payment and threatens legal action within seven days while at the same time informs debtor of the thirty-day validation period, unless it explains that legal action will be stayed pending the requested verification. In Chauncey v. JDR Recovery Corp., 118 F.3d 516 (7th Cir. 1997), the Seventh Circuit stated:

  Defendant argues that the letter contains no
  contradiction because plaintiff is given the same
  amount of time to pay as to contest the debt (i.e.,
  `within thirty (30) days'). But the letter required
  that plaintiff's payment be received within the
  30-day period, thus requiring plaintiff to mail the
  payment prior to the thirtieth day to comply. In
  contrast,

  . . . Mr. Chauncey had the full thirty days to send
  his notification to defendant.

Id. at 519. In Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996), the Seventh Circuit held that even a marginally qualified demand for payment in a short time period is a violation. "We think that telling a debtor he has 30 days to dispute the debt and following that with a statement that `[i]f the above does not apply' you have ten days to pay up or real trouble will start is entirely inconsistent, and a failure to comply, with the FDCPA." Id. Consequently, because there is no demand for payment or even action within a time period that conflicts with Plaintiff's FDCPA rights, the present case does not fall within the prior major Seventh Circuit holdings finding violations of the FDCPA.

IV. Conclusion

The Fair Debt Collection Practices Act § 1692g requires a validation notice to be included in all dunning letters and that this notice not be overshadowed or contradicted by other language included in the letters. The Court concludes that Defendant complied with § 1692g because the letter contains a proper validation notice and when read in its entirety is not confusing to an unsophisticated consumer. Because the Court finds that the facts as pleaded demonstrate that Defendant did not commit a violation of the Fair Debt Collection Practices Act, the Court grants Defendant National Recovery, Inc.'s motion to dismiss against Plaintiff Margaret Walker and directs that the case be dismissed with prejudice and that judgment be entered in favor of Defendant.

SUPPLEMENTAL 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). Following briefing and oral argument, the Court granted Defendant's motion to dismiss. Walker v. National Recovery, Inc., at 780. Plaintiff now moves the Court to reconsider its decision in light of the Seventh Circuit's opinion in Johnson v. Revenue Management Corp., 1999 WL 101583 (7th Cir. 1999) (to be reported at 169 F.3d 1057).*fn1 Having carefully considered the Johnson opinion, the Court denies the Plaintiff's motion for reconsideration.

I. Standard of Review for a Motion for Reconsideration

A proper basis for a motion for reconsideration is a change in law. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). That is the basis upon which Plaintiff's motion for reconsideration is brought before this Court.

II. The Johnson Opinion

Plaintiff contends that the Court's decision in this case granting Defendant's motion to dismiss is contrary to the Seventh Circuit's Johnson decision. At issue in Johnson were two collection letters sent to the two plaintiffs, Johnson and Wollert. Johnson, 169 F.3d at 1059. The Court has determined that its prior decision properly applies the principles set forth in Johnson.

A. Johnson is Distinguishable

The Court concludes that the present case is distinguishable from what the Seventh Circuit found to be at issue in the Johnson case. The letter to Johnson contained a paraphrase of the statutory notice and added the following disputed language:

  If you fail to make prompt payment we will have no
  alternative but to proceed with collection, which may
  include referring this account for legal action or
  reporting this delinquency to the credit bureau.
  Should you wish to discuss this

  matter, contact our office and ask for extension 772.

Id. at 1059.

In Johnson, the district court was reversed because it used "the wrong legal standard." Id. The Seventh Circuit held that the district court in Johnson had committed errors by deciding whether a letter was confusing as a matter of logic. Id. at 1060. The district court also only considered whether the language in the dunning letter "contradicted" or "overshadowed" the statutory notice. This was not the proper test. Id. at 1060. The Seventh Circuit pointed out that the standard is whether a letter is confusing from the perspective of an unsophisticated consumer. Id. The Seventh Circuit reemphasized the three means of inducing confusion laid out in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997): explicit contradiction, overshadowing, or failure to explain an apparent, although not actual, contradiction. Johnson, at 1060. The Seventh Circuit criticized the district court in Johnson for never asking whether the failure to explain an apparent, though not actual, contradiction between the demand for an "immediate" call and the thirty-day statutory notice period made the letter confusing.*fn2

The issues present in the Johnson case are not present in the case at bar. The Court did not treat the question of confusion as a matter of logic but instead viewed it from the perspective of the unsophisticated consumer. See Walker, at 777 ("The Text of the Letter Is Not Confusing to an Unsophisticated Consumer."); id. at 781 ("The Court concludes that Defendant complied with § 1692g because the letter contains a proper validation notice and when read in its entirety is not confusing to an unsophisticated consumer."). The Court addressed all three possible avenues of confusion and concluded, from the perspective of an unsophisticated consumer as opposed to as a matter of logic, that the letter did not include any of those violations. First, no argument was ever made that the Walker letter contained an explicit contradiction. Second, the Court noted that there was no visual overshadowing. Id. at 779-80. Finally, and most importantly, the great bulk of the opinion was spent on explaining why there was no implicit or apparent contradiction that needed explaining, id. at 777-80, the issue that the Seventh Circuit deemed the most important of the three, Johnson, 169 F.3d at 1060. See Walker, at 778 ("[N]o response is asked for that contradicts Plaintiff's rights under the FDCPA."). The Court spent a whole paragraph explaining why language was needed in the Bartlett letter to explain the apparent contradiction but was not needed in the present case.*fn3 Consequently, the Court in the present case did ask whether there was a failure to explain an apparent though not actual contradiction between additional language included in the letter and the thirty-day validation period and, if so, whether it made the letter confusing. Thus the Court did not make the error that the Seventh Circuit found to be critical in Johnson. Johnson, 169 F.3d at 1060. The Court also applied the correct standard of questioning whether a letter is possibly confusing to an unsophisticated consumer instead of focusing just on contradiction and overshadowing, or confusion as a matter of logic.

B. Wollert is Distinguishable

The letter to Wollert contained a paraphrase of the statutory language and added the following disputed language:

  The above account has been placed with our firm for
  payment in full. Call our office immediately upon
  receipt of this letter. Our toll free number is
  1-800-521-3236.

Johnson, 169 F.3d at 1059.

In Wollert, the district court was reversed because the judge "used an inappropriate procedure." Id. at *2. The Seventh Circuit held that the district court effectively dismissed the case on the pleadings under Fed.R.Civ.P. 12(c) by failing to provide plaintiff with the opportunity to argue or augment his position. Id. In the case at bar, the parties fully briefed the issue and participated in oral argument before the decision was rendered. The Court applied the standards for review under Fed.R.Civ.P. 12(b)(6) as clearly stated by the United States Supreme Court and the Seventh Circuit. Walker, at 775. Therefore, Wollert is also distinguishable.

C. Rule 12(b)(6) Is Appropriate Where Letter Is Attached

The Seventh Circuit held that it was inappropriate to dismiss the Johnson case on a Rule 12(b)(6) motion to dismiss. The Seventh Circuit stated that "Rule 12(b)(6) should be employed only when the complaint does not present a legal claim. A contention that a debt-collection notice is confusing is a recognized legal claim; no more is needed to survive a motion under 12(b)(6)." Johnson, at 1059. Plaintiff argues that the Seventh Circuit held that every letter that is challenged creates a question of fact for a jury to decide. This Court disagrees. The opinion states only that "[t]o learn how an unsophisticated reader reacts to a letter, the judge may need to receive evidence." Id. at 1060 (emphasis added). The Court emphasizes that the Seventh Circuit said may, not must. The Court reads this and other language in the Seventh Circuit decision as holding that the Johnson letter presented the possibility of confusion and, when that is a possibility, the question of confusion is one of fact for the jury to decide. However, that is a different case from Walker.

This Court held in its previous decision in Walker that there was no possibility of confusion as a matter of law. In such a situation, since there is no possibility of confusion, there is no question of fact for the jury to decide and dismissal is proper because the plaintiff can prove no set of facts consistent with her allegations that would entitle her to relief. Therefore, the Court concludes that the threshold question of possible confusion is a matter of law. Once a letter is found to be possibly confusing then the jury decides actual confusion.

This is consistent with prior Seventh Circuit cases which have decided as a matter of law whether certain letters violated the FDCPA. See, e.g., Bartlett, 128 F.3d 497; Chauncey v. JDR Recovery Corp., 118 F.3d 516 (7th Cir. 1997). Nothing in the Johnson opinion overrules those cases. To the contrary, the Seventh Circuit explicitly relied on Bartlett. Johnson, 169 West Page 784 F.3d 1057, 1999 WL 101583, at *2. Consistent with these prior holdings, the Johnson decision also cannot be interpreted to mean that a court cannot review a one-page letter attached to the complaint to consider whether relief could be granted under any set of facts. If that were the case, then a court would be required to deny a motion to dismiss even if the safe-harbor letter drafted by the Seventh Circuit in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997) were attached. Certainly, if the Seventh Circuit can draft its own letter and conclude as a matter of law that the letter does not violate the FDCPA, a court can read a one-page letter and make a similar determination. Jang v. A.M. Miller Assoc., 122 F.3d 480 (7th Cir. 1997).

Johnson did not overrule previous Seventh Circuit precedents holding that it is appropriate to grant a motion to dismiss when a plaintiff includes facts in his or her complaint which demonstrate the absence of a viable claim. To the contrary, in Johnson, the Seventh Circuit cited to one of these very cases. See Johnson, at 1059-60 (citing Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998)). Bennett recognized that "litigants may plead themselves out of court by alleging facts that establish defendants' entitlement to prevail." Bennett, 153 F.3d at 519. This is a well established proposition within this Circuit.

  [W]ith immaterial exceptions the Federal Rules of
  Civil Procedure do not require that a complaint
  describe the alleged wrongdoing of which it complains
  with any particularity. But if a plaintiff does plead
  particulars, and they show that he has no claim, then
  he is out of luck-he has pleaded himself out of
  court. He is not saved by having pleaded a legal
  conclusion that if consistent with the facts would
  establish his right to relief, for he has shown that
  it is inconsistent with the facts.

Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994) (citations omitted) quoted in Walker, at 775 n. 2.

While Plaintiff made a contention that the debt-collection letter was confusing, she also went beyond that and included the letter with her pleadings. The contents of that letter showed that Plaintiff had no claim because as a matter of law there was no possibility of the letter being confusing. The fact that Plaintiff pleaded the proper legal conclusion cannot save her because by pleading additional facts, she has shown that the facts are inconsistent with her claim. The contents of her letter disprove her legal claim that the letter is confusing. Consequently, the Court used the Rule 12(b)(6) procedure as the Seventh Circuit has done in other cases. Jang v. A.M. Miller Assoc., 122 F.3d 480 (7th Cir. 1997) (affirming dismissal under Rule 12(b)(6) of FDCPA claim). Gammon v. GC Services, 27 F.3d 1254 (7th Cir. 1994) (examining the contents of a letter in order to determine that reversal of a dismissal was appropriate).

Plaintiff's argument must also fail for practical reasons. Plaintiff's argument would destroy the utility of Rule 12(b)(6) and would require the litigants to engage in expensive discovery and the cumbersome summary judgment process, when no fact questions are presented from the face of the letter. Such an interpretation of Rule 12(b)(6) is simply not consistent with the Supreme Court's standards for Rule 12(b)(6) set forth in Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984), and is not consistent with Rule 1 of the Federal Rules of Civil Procedure which require the rules to "be construed and administered to secure the just, speedy, and inexpensive determination of every action."

III. Conclusion

The Court, after reviewing the Seventh Circuit's opinion in Johnson, concludes that its prior decision is consistent with Johnson. Therefore, Plaintiff's motion for reconsideration is denied.


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