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Thompson v. O'Bryant

April 30, 2008


The opinion of the court was delivered by: Charles P. Kocoras, District Judge


This matter comes before the court on the motion of Defendants GEMB Lending, Inc. ("GEMB"), formerly known as Thor Credit Corporation, Christopher O'Bryant, Jason Crouch, Marlene Hammer, Suzanne McConnell, Diana P. Verdin, Shamrock Recovery Services, Inc., Adesa Indianapolis, Inc., Morgan Russ, and Kathy Hopkins to dismiss Plaintiff Kenneth N. Thompson ("Thompson")'s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendants' motion is granted.


Thompson purchased a recreational vehicle ("RV") in March 2005. The RV was repossessed in March 2006. In December 2006, Thompson filed for bankruptcy under Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 348. The court dismissed Thompson's petition for bankruptcy in June 2007. In July 2007, Thompson prepared a five-count lawsuit, which he had not yet filed, against Defendants and faxed it to them. Just five days later, Thompson filed for bankruptcy a second time. He did not list his potential claims against Defendants on his second bankruptcy petition, which was dismissed in November 2007.

Two weeks after the dismissal of the second bankruptcy petition, Thompson filed his five-count complaint pro se against Defendants in the Circuit Court of Cook County, Illinois. Thompson's complaint contained the following causes of action: Count I- Conversion; Count II- Negligence; Count III- Theft; Count IV- a violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., Count V- a violation of the Retail Installment Sales Act, 815 ILCS 405/25.

In January 2008, GEMB removed Thompson's complaint to this court based on his FDCPA claim. Defendants now seek to dismiss Thompson's complaint pursuant to Rule 12(b)(6).


Rule 12(b)(6) evaluates the legal sufficiency of a plaintiff's complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe all allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pled facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations contained within a complaint must raise a claim for relief "above the speculative level." Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1965 (2007). A pleading need only convey enough information to allow the defendant to understand the gravamen of the complaint. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999).

A complaint's legal sufficiency is not compromised simply because it does not anticipate or otherwise preemptively address potential defenses. Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). If the complaint so unmistakably establishes the presence of a defense that the suit is rendered frivolous, the affected allegations can be dismissed before a responsive pleading is filed. Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002). Otherwise, it is improper to grant a motion to dismiss on the basis that an affirmative defense exists. See Deckard v. General Motors Corp., 307 F.3d 556, 560 (7th Cir. 2002).

With these legal principles in mind, we consider the instant motion.


In support of their motion, Defendants advance two arguments. First, Defendants argue that Thompson should be judicially estopped from bringing suit against Defendants now because he did not list his claims against them in his bankruptcy petitions. Second, Defendants contend that Thompson's complaint should be dismissed because his claims are legally insufficient.

In the context of a bankruptcy proceeding, the doctrine of judicial estoppel prevents a debtor from obtaining an unfair advantage by inconsistently asserting that a cause of action does not exist but later recovering on the same claim after debts have been discharged. See Cannon-Stokes v. Potter, 453 F.3d 446, 447 (7th Cir. 2006). Though there is no exhaustive list of factors that must be present to support the application of the doctrine, one necessary prerequisite is that a party's earlier position must be "clearly inconsistent" with the later stance. Levinson v. United States, 969 F.2d 260, 264 (7th Cir. 1992).

Initially, we note that judicial estoppel is an affirmative defense. Fed. R. Civ. P. 8(c). Consequently, a plaintiff is not required to assert its absence in order to state a legally cognizable claim. See Xechem, 372 F.3d at 901 (7th Cir. 2004). Defendants argue that the complaint, in conjunction with bankruptcy records of which we take judicial notice,*fn1 unmistakably establishes the ...

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