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SHANAHAN v. PORICK

United States District Court, N.D. Illinois


February 26, 2004.

MARY E. SHANAHAN, Plaintiff,
v.
DENNIS B. PORICK, Defendant

The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Mary E. Shanahan, filed suit against Defendant, Dennis B. Porick, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. ยง 1692 et seq. ("FDCPA") based on alleged violations of the Illinois Consumer Installment Loan Act ("ICILA") and/or the Illinois Sales Finance Agency Act ("ISFAA"). Presently pending before the Court is the Defendant's Motion to Dismiss.

A reading of the Complaint supports the following summary of the alleged operative conduct of the parties.

  Asset Acceptance, LLC acquired Shanahan's debts after the original creditor charged off the debts. Asset Acceptance is in the business of buying bad debts allegedly owed by consumers. Asset Acceptance is not chartered or regulated as a bank, savings and loan association, or credit union and does not hold a license under the ICILA or ISFAA.

  Porick, an attorney for Asset Acceptance, attempted to collect from Shanahan two old credit card debts from Citibank and Providian, plus interest on such debts at 20% and 15% for the period after Asset Acceptance acquired the debts.

  In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any Page 2 reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000) (Marshall-Mosby). Aplaintiff is not required to plead the facts or the elements of a claim, with the exceptions found in Federal Rule of Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). A filing under Federal Rules of Civil Procedure should be "short and plain," and it suffices if it notifies the defendant of the principal events. Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003). Dismissal is warranted only if "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The simplified notice pleading requirement relies upon liberal discovery and summary judgment motions to define disputed issues and facts and to dispose of unmeritorious claims. Swierkiewicz, 534 U.S. at 513.

  Porick argues that Shanahan's Complaint should be dismissed because the Illinois Interest Act does not apply and because Shanahan fails to plead her agreements or the agreed interest with Citibank and Providian. Shanahan counters that the Illinois Interest Act applies and that Porick's violation of the Act constitutes a violation of the FDCPA. Shanahan's Complaint sufficiently pleads that the interest rate charged by Porick violated the Illinois Interest Act, and such violation constitutes a violation of the FDCPA.

  Porick's, as well as Shanahan's, legal arguments are more properly decided after discovery. For the above reasons, Defendant's Motion to Dismiss is denied.

20040226

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