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WALKER v. NATIONAL RECOVERY
March 2, 1999
MARGARET WALKER, PLAINTIFF,
NATIONAL RECOVERY, INC., DEFENDANT.
The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
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,
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
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.
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
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
(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
(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;
(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 ...
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