United States District Court, N.D. Illinois
February 26, 2004.
MARY E. SHANAHAN, Plaintiff,
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. § 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
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.
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