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Washington v. North Star Capital Acquisition

September 15, 2008


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


CHARLES P. KOCORAS, District Judge

This matter comes before the court on the motion of Defendant North Star Capital Acquisition, L.L.C. ("North Star") to dismiss Ben Washington ("Washington")'s three-count complaint for failure to state a claim. For the reasons set forth below, the motion is granted.


On May 15, 2008, Washington filed the present three-count complaint. Count I alleges that North Star filed a collection lawsuit in state court notwithstanding a known defense. According to Washington, this constitutes a deceptive collection practice and an unfair collection practice in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692e, 1692e(2), 1692e(5) and 1692e(10), and an unfair collection practice, in violation of 15 U.S.C. § 1692f. As this claim arises under the laws of the United States, its jurisdictional basis is 28 U.S.C. § 1331; Washington also points to 28 U.S.C. § 1337(a), which provides district courts with original jurisdiction over civil actions arising under any federal statute regulating commerce. Count II asserts a violation of the Illinois Collection Agency Act ("ICAA"). Count III is premised upon the Illinois Consumer Fraud Act ("ICFA"). These claims do not raise federal questions; Washington claims that they form part of the same case or controversy as Count I and therefore should be considered through our supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).

In response to Washington's complaint, North Star filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on grounds that the three counts fail to state causes of action upon which relief may be granted.


A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a 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 allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded 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). However, 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).

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


I. The Fair Debt Collection Practice Act Claim

The court must first determine whether the FDCPA applies to North Star before entertaining any of the related claims. At issue is whether the filing of a lawsuit despite a known state law defense is a deceptive collection practice under the FDCPA. 15 U.S.C. §1692 et seq.

A debt collector can be held civilly liable for using: "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692(e). "A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt..." 15 U.S.C. § 1692(f). "Even when viewed from the perspective of the unsophisticated consumer, the filing of a debt collection lawsuit...does not have the natural consequence of harassing, abusing or oppressing the debtor. Any attempt to collect a defaulted debt will be unwanted...but employing the court system...cannot be said to be an abusive tactic under the FDCPA." Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 330-31 (6th Cir. 2006).

North Star cites Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470 (7th Cir. 2007) as controlling authority given Washington's allegations. In Beler, GE Capital Corporation retained Blatt to file a collection suit against plaintiff to recover on her JCPenney debt. Id. at 472. The complaint identified GE Capital Corporation as "GE Capital." Id. Beler subsequently sued Blatt claiming the complaint and supporting affidavit violated Section 1692(e) because the unclear description of ...

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