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Guevara v. Midland Funding NCC-2 Corp.

June 20, 2008


The opinion of the court was delivered by: Judge Joan B. Gottschall


Before the court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendants, Midland Funding NCC-2 Corp. ("Midland") and Blatt, Hasenmiller, Leibsker & Moore, LLC ("BHLM") (collectively, the "Defendants"). For the reasons stated below, the motion to dismiss is denied.


This case arises from a state court complaint filed against the plaintiff, Maria Guevara ("Guevara"), by the Defendants, who are debt collectors. In May 2007, Midland, represented by BHLM, filed suit in the Circuit Court of Cook County attempting to collect $1,003.37, plus costs, from Guevara.*fn2 In its five paragraph complaint ("Midland's State Court Complaint"), Midland alleged that: Midland was a corporation authorized to do business in Illinois; Guevara had opened a charge account with "Associates"; Guevara failed to make monthly payments as agreed; Midland was the successor in interest of the account stated in the amount of $1003.37. See Compl., Ex. A. Attached to Midland's State Court Complaint was an affidavit, signed by Amy Berschett, an employee of Midland. The affiant averred, in part, that Midland's "predecessor in interest sold and assigned all right, title and interest" to the debt to Midland and that the balance was $1,003.37 as of December 26, 2000. See Compl., Ex. 1 to Ex. A. No other documents were attached to Midland's State Court Complaint. After Guevara filed a motion to dismiss Midland's State Court Complaint, Midland moved to strike its complaint with leave to re-file. The circuit court granted Midland's motion; however, Midland never re-filed the complaint.

Guevara subsequently filed a two-count complaint, in federal court, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). Count I alleges that Midland and BHLM violated § 1692e of the FDCPA, which prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Guevara contends that the following facts alleged in Midland's State Court Complaint are false: (1) Midland was authorized to do business in Illinois; (2) the debt amount; (3) Midland had a right to recover an unspecified amount of interest; (4) an account stated existed; and (5) the suit was filed within the statute of limitations. Count II alleges that Midland and BHLM violated § 1692f of the FDCPA, which prohibits a debt collector from using "unfair or unconscionable means to collect or attempt to collect any debt." Id. § 1692f. Guevara alleges that the following actions are unfair or unconscionable: (1) filing Midland's State Court Complaint without documentary proof of the claims; (2) filing suit when Midland was not licensed in Illinois; (3) asserting an inapplicable theory of recovery, namely the account stated rather than the written contract; (4) claiming a right to recover an unspecified amount of interest on an account stated; and (5) filing beyond the statute of limitations.


Before the court is the Defendants' motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). As a preliminary matter, the court must determine whether its consideration should include exhibits to the Defendants' memorandum in support of their motion to dismiss. See Joint Mem. in Supp. of Defs.' Mot. to Dismiss, Exs. A-B. Citing to Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993), the Defendants contend that the documents are part of the pleadings. In Venture Associates, the court observed that a court could consider documents attached to a motion to dismiss without converting the motion into a motion for summary judgment where documents are "referred to in the plaintiff's complaint and are central to her claim." See id. (distinguishing the mandatory requirements of Federal Rule of Civil Procedure 12(d) from the permissive provisions of Rule 10(c)). The court therefore found that correspondence was part of the pleadings where the plaintiff referred to the documents in her breach of contract complaint and the documents disclosed details that "constitute[d] the core" of the plaintiff's claim including the parties' contractual relationship. See id. at 431-32.

Guevara refers to the motion to dismiss in her complaint. See Compl. ¶ 12. However, unlike the documents in Venture Associates, the content of the motion to dismiss is not central to Guevara's FDCPA claim. Guevara lays out the factual basis of her claim in her complaint and her claim depends on nothing more than the accuracy of allegations in Midland's State Court Complaint. Thus, although the contents of the motion to dismiss may add flesh to the bones of Guevara's complaint, it is by no means the backbone upon which the complaint depends for support. The motion to dismiss, therefore, presents matters outside of the pleadings. Consequently, the court excludes the exhibits and will consider only the parties' briefs in ruling on the Rule 12(b)(6) motion. See Fed. R. Civ. P. 12(d); Venture Assocs. Corp., 987 F.2d at 431.

A. Legal Standard

Rule 12(b)(6) permits a defendant to assert by motion that the plaintiff's claim fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court must accept as true the allegations of the complaint and draw all reasonable inferences in favor of plaintiff. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (internal citation omitted). To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). The allegations must provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964 (2007). The plaintiff need not plead particularized facts, but the factual allegations in the complaint must be sufficient to suggest a right to relief above the speculative level. Id. at 1973-74 & n.14; Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007); Concentra Health Servs., Inc. 496 F.3d at 776 (citing Twombly, 127 S.Ct. at 1965, 1973 n.14).

B. Arguments

1. Whether Plaintiff States A Claim Under The FDCPA Based On Defendant's Alleged Failure To Register As A Business In Illinois

Defendants argue that it is irrelevant that Midland does not have a license to do business in Illinois because either: (1) filing a lawsuit is not "transacting business" within the meaning of the Illinois Business Corporation Act of 1983, 805 Ill. Comp. Stat. 5/1 et seq. ("IBCA"); or, in the alternative, (2) a foreign corporation engaged in interstate commerce does not need to register with the state. Therefore, the argument goes, Midland did not act deceptively or unfairly in claiming that it was "authorized to do business in the State of Illinois" and Guevara cannot state a claim for a violation of the FDCPA based on this statement. Guevara contends that the statement is false and violates § 1692e whether or not an interstate commerce exception applies or the IBCA allows the incidental filing of a lawsuit.*fn3

"No foreign corporation transacting business in [Illinois] without authority to do so is permitted to maintain a civil action in any court of this State, until the corporation obtains that authority." 805 Ill. Comp. Stat. 5/13.70(a). A corporation engaged in "occasional and isolated transactions in Illinois" does not require a certificate of authority. Subway Rests., Inc. v. Riggs, 696 N.E.2d 733, 737 (Ill. App. Ct. 1998). Nor does a corporation that is simply conducting interstate commerce. Id. The Illinois legislature has also established a list of activities that, where conducted by a foreign corporation, "shall not be considered to be transacting business in this State." See 805 Ill. Comp. Stat. 5/13.75. One of these exclusions is "maintaining, defending, or settling any proceeding." See id. 5/13.75(1). The Defendants assert, in part, that this exclusion applies to them. They cite to cases that stand for the (undisputed) proposition that a company that is not required to obtain a business license in Illinois may ...

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