The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Robert Hutchins ("Hutchins") filed this putative class action against defendant, Fairbanks Capital Corporation ("Fairbanks"), pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). In Count I, Hutchins brings suit individually and on behalf of a putative class of similarly situated individuals alleging violations of § 1692g of the FDCPA because, in a validation of debt notice sent to Hutchins and other putative class members, Fairbanks (1) did not state the amount of the debt; (2) omitted "unbilled fees or costs, if any, such as attorney's fees," so that there is no correlation between the amount stated and either the total amount of the debt or the "total amount to bring your account current;" and (3) required that any dispute regarding the debt be in writing. In Count II, Hutchins individually alleges violation of § 1692e(11) of the FDCPA because monthly statements sent to him seeking payment of his debt to Fairbanks did not contain the required notice under the FDCPA. In Count III, Hutchins individually alleges violation of §§ 1692; 1692f and 1692f(1) of the FDCPA because Fairbanks assessed late charges while the loan was accelerated. Before the court is Hutchins' motion for summary judgment on liability and Fairbanks' motion to dismiss or, in the alternative, for summary judgment. The court has jurisdiction over the claims pursuant to 15 U.S.C. § 1692k and 28 U.S.C. § 1331. For the reasons set forth below, Hutchins' motion for summary judgment on liability is denied while Fairbanks' motion to dismiss or, in the alterative, for summary judgment is granted.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well-pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002); Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999).
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In the fall of 2001, Hutchins had a residential mortgage that was being serviced by EquiCredit Corporation of America ("EquiCredit"). Servicing of the loan was transferred from EquiCredit to Fairbanks effective September 17, 2001. Two days after the transfer of servicing, Fairbanks sent Hutchins a validation of debt letter which stated as follows,
We recently provided you with a letter advising you
that Fairbanks Capital Corp. ("Fairbanks") has
acquired the servicing rights to your mortgage loan
effective September 17, 2001.
Our records reflect that as of the servicing
transfer date your mortgage payments that were due
from July 01, 2001 forward have not been received. As
of the date of the servicing transfer, the total
amount to bring your account current was $1,586.84
including principal, interest, escrows and applicable
fees. If your payment has been sent, please accept our
Please note that these amounts do not include
unbilled fees or costs, if any, such as attorney's
fees. Please also note that the information regarding
your account is based on information provided to us by
your prior mortgage servicer as of the date of the
Unless you notify us in writing within 30 days after
receiving this notice that you dispute the validity of
this debt, or any portion of the debt, we will assume
that it is valid. If you do notify us in writing
within 30 days that you dispute the debt, or any part
of the debt, we will provide you with verification of
the debt by mail. If you request the name and address
of the original creditor in writing within 30 days
after receiving this notice, we will provide you with
This letter is an attempt to collect a debt and any
information obtained may be used for that purpose.
(Pl. Mot. Summ. 3. Ex. A.) Hutchins alleges that after the letter was sent out, Fairbanks continued to send Hutchins monthly statements seeking payment of the debt and continued to assess late charges subsequent to the acceleration of the loan.
In Count I, Hutchins alleges that Fairbanks violated § 1692g of the FDCPA because the validation notice Fairbanks sent suffered from a number of deficiencies, including that it did not state the full amount of the debt, it omitted unbilled fees or costs and it stated that any dispute had to be in writing. In Count II Hutchins alleges violation of 1692e(11) of the FDCPA because monthly statements Fairbanks sent to Hutchins did not contain the required notice under the FDCPA. Finally, in Count III Hutchins maintains that Fairbanks violated the FDCPA when it assessed late charges against Hutchins after his loan was accelerated.
The threshold issue for the court is whether the FDCPA applies to Fairbanks. By its terms, the FDCPA applies only to "debt collectors." See 15 U.S.C. § 1692b ("Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall. . . ."). A "debt collector" is specifically defined to exclude a number of things, including "any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(iii). Thus, if Hutchins' loan was not in default ...