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March 31, 2003


The opinion of the court was delivered by: Ruben Castillo, United States District Court


Plaintiff Michelle Sherman sued Defendant Financial Credit LLC, alleging that Defendant's debt collection letter contained false, deceptive or misleading information in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Defendant now moves to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted. For the following reasons, Defendant's motion is denied. (R. 8-1.)


In an attempt to collect on Sherman's allegedly delinquent Sally's health club membership, Defendant sent Sherman a collection letter. The text of the letter states, m pertinent part:


Our records indicate you are gainfully employed at BAHAMA BREEZE.
Our efforts to arrange a mutually acceptable repayment schedule have been unsuccessful. If we do not receive a response from you within the next ten (10) days, our next step will be to refer your account for legal review.
If this matter is reduced to Judgment, the amount owed will be increased by court costs. After the Judgment is entered, we will be authorized by law, to institute garnishment or execution against your wages or non-exempt property.
(R. 1, Compl., Ex. A, Collection Letter) (emphasis added). Plaintiff sued, claiming that the highlighted language impermissibly suggests that Defendant will use its knowledge of an employer in a detrimental manner, perhaps to intimidate or embarrass debtors into responding to the letters. (Id. at ¶ 12.) Presently before the Court is Defendant's Rule 12(b)(6) motion to dismiss.


In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we treat the complaint allegations as true, and view all well-pleaded facts and inferences drawn therefrom in the light most favorable to the plaintiff. Marshall-Mosby v. Corp. Receivables, Inc., 205 F.3d 323, 325 (7th Cir. 2000). A Rule 12(b)(6) motion should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would ultimately entitle her to relief. Id.

Plaintiff alleges in her complaint that the language in Defendant's debt collection letter violates the FDCPA's prohibition against "any false, deceptive, or misleading representation or means in connection with the collection of any debt" because by informing Plaintiff that Defendant is aware of her place of employment, Defendant hints that it may contact her employer or otherwise use that information in an improper manner. 15 U.S.C. § 1692e; see also 15 U.S.C. § 1692e(10) (prohibiting "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt. . . .").*fn1

The FDCPA was designed to "protect consumers from abusive, deceptive, and unfair debt collection practices. . . . In the most general terms, the FDCPA prohibits a debt collector from using certain enumerated collection methods in its effort to collect a debt from a consumer." Jenkins v. Heintz, 124 F.3d 824, 828 (7th Cir. 1997) (internal citations and quotations omitted). We evaluate FDCPA claims from the perspective of the "unsophisticated consumer." See Gammon v. GC Servs. Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994). This standard attempts to "protect[] the consumer who is uninformed, naive, or trusting" but at the same time "admits an objective element of reasonableness" that "shields complying debt collectors from liability for unrealistic or peculiar interpretations of collections letters." Id. For purposes of a motion to dismiss, we do not determine whether the consumer actually was confused by the

letter, the objective reasonableness of the consumer's belief, or the intent of the defendant's statement. Such questions are issues of fact that must be decided in a motion for summary judgment. Walker v. Nat'l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999) (holding that confusion is a question of fact rather than a question of law, so plaintiffs are entitled to present evidence showing the dunning letter to be confusing in the eyes of the unsophisticated consumer); Johnson v. Recovery Mgmt., Inc., 169 F.3d 1057, 1059 (7th Cir. 1999).

Applying the "unsophisticated consumer" standard in the context of a motion of dismiss merely requires us to determine whether, under any set of facts, an unsophisticated consumer could find the statement in the collection letter deceptive or misleading. See Miller v. Knepper & Moga. P.C., No. 99 C 3183, 1999 WL 977079, *3-4 (N.D. Ill. Oct. 22, 1999). Defendant, relying on Herbert v. Wexler & Wexler, 1995 WL 535107, argues that the case must be dismissed because "[t]he FDCPA does not prevent a debt collector from merely identifying the place of a consumer's employment in a debt collection letter." (R. 14, Def.'s Reply at 2.) But we believe that the claims in Wexler are distinguishable from the instant case and thus preclude us from granting the motion to dismiss on the same grounds. In Wexler, the court granted a Rule 12(b)(6) motion to dismiss because the statements contained in the debt collection letter simply "inform[ed] Plaintiff that Defendants and their client are aware that Plaintitf is employed and capable of paying the debt" and thus did not "implicitly, let alone explicitly, threaten communication with Plaintiff's employer" in violation of 15 U.S.C. § 1692c(b) and 1692e(5). However, as mentioned in note 1, supra, Plaintiff does not allege that Defendant's reference to her employer constituted an explicit or implicit threat to take an impermissible action under § § 1692c(b) and 1692e(5). Instead, Plaintiffs allege a more subtle violation of the FDCPA — namely, that by mentioning Sherman's employer in the letter, Defendant is sending a deceptive or misleading signal that it will somehow use that ...

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