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Wisniewski v. Asset Acceptance Capital Corp.

January 29, 2009


The opinion of the court was delivered by: Judge Joan H. Lefkow


Plaintiff Joan Wisniewski has filed a four-count complaint alleging that defendants Asset Acceptance Capital Corp., Asset Acceptance, LLC, Sanjay S. Jutla, and Allen Gunn (collectively, "defendants") violated the Fair Debt Collection Practices Act ("FDCPA") (Count I) and the Illinois Collection Agency Act ("ICAA") (Count II) by continuously harassing her about a credit card debt that was allegedly discharged as the result of a 2005 dismissal order from the Circuit Court of Cook County.*fn1 Wisniewski further alleges that defendants engaged in a civil conspiracy to refile the lawsuit previously dismissed for want of prosecution, knowing that it was without merit and intentionally concealing from the court the existence of the previously filed lawsuit (Count III). She also alleges that defendants' lawsuit amounted to malicious prosecution for these same reasons (Count IV). Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendants' motion [#13] will be granted in part and denied in part.


A motion to dismiss under Rule 12(b)(6) challenges the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a motion to dismiss, the court accepts as true all well-pleaded facts alleged in the complaint and draws all reasonable inferences from those facts in favor of the plaintiff. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). In order to survive a motion under Rule 12(b)(6), the complaint must provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776--77 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.E.2d 929 (2007)). The allegations in the complaint must also be "enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965.


According to the complaint, at some point prior to December 30, 2004, Asset Acceptance Capital Corp. purchased Wisniewski's charged-off consumer debt from Providian Bank. It assigned Wisniewski's file to its subsidiary, Asset Acceptance, LLC, to recover the value of the debt from her. On December 30, 2004, Asset Acceptance, LLC filed suit in the Circuit Court of Cook County to recover the full value of that debt, $2,306.00. On February 10, 2005, Wisniewski submitted a motion to dismiss the suit pursuant to the Illinois Code of Civil Procedure, 735 Ill. Comp. Stat. 5/2-619(a)) ("§ 2-619"). Asset Acceptance, LLC never filed a response to the motion to dismiss, electing instead to stand on its complaint. The Circuit Court of Cook County thereafter granted Wisniewski's motion to dismiss and entered a dismissal order on April 14, 2005.

Wisniewski alleges that shortly after this first dismissal, she began to receive persistent telephone calls from defendants Asset Acceptance, LLC and Asset Acceptance Capital Corp. that were intended coerce her into paying the debt previously litigated. Wisniewski characterizes these telephone calls as part of a "non stop campaign of harassment . . . designed and calculated to harass, abuse, and coerce" her into paying the amount previously owed, despite defendants' knowledge that the debt had been legally discharged. Compl. ¶ 20. Phone calls and mailings from Asset Acceptance, LLC allegedly persisted throughout the summer of 2005, all demanding that Wisniewski pay off the debt, now identified as $2,312.30, and sometimes offering compromise settlements in lower amounts.

On August 20, 2005, defendants Gunn and Jutla, acting in their capacity as the in-house attorneys for Asset Acceptance, LLC, filed a second suit in the Municipal Division of the Circuit Court of Cook County seeking to recover the same debt from Wisniewski as had been sought in the lawsuit filed on December 30, 2004. Wisniewski alleges that defendants filed this second lawsuit without disclosing that it was a refiled lawsuit, and portrayed it as an original suit. Wisniewski received summons for this suit on February 20, 2006 and subsequently filed her appearance and jury demand in the case. A status hearing was set for April 10, 2006, but Asset Acceptance did not appear, and this suit too was dismissed for want of prosecution. Wisniewski alleges that after the second lawsuit was dismissed, Asset Acceptance, LLC's employees continued to call her on a weekly basis demanding payment of the debt.

On June 28, 2006, Jutla, acting as Asset Acceptance's in-house attorney, submitted a motion to correct the record as to the April 10, 2006 dismissal order. The judge hearing the motion denied it, finding it to be a motion to vacate the dismissal for want of prosecution and, as such, untimely filed outside of the 30-day period required under the Illinois Code of Civil Procedure, 735 Ill. Comp. Stat. 5/2-1401. On September 27, 2006, Jutla presented the court with a motion to dismiss without prejudice the already dismissed suit filed on August 20, 2005. Wisniewski alleges that Jutla intentionally presented this motion in a different courtroom than that in which the June 28, 2006 motion had been argued and did so without notice to Wisniewski or her attorney. The Cook County court granted this motion on September 27, 2006, unaware of the fraud alleged herein. Wisniewski alleges that the harassing telephone calls continue.


I. Whether the April 14, 2005 Order Was a Dismissal on the Merits

In Counts I and II, Wisniewski alleges that defendants violated the FDCPA and the ICAA by making false representations about the character and legal status of the alleged debt and by engaging in a pattern of harassment and abusive communications in an attempt to collect the debt. Defendants assert that the April 14, 2005 court order was a dismissal without prejudice, entitling them to relitigate their suit against Wisniewski for recovery of the debt. They argue that because all of Wisniewski's claims hinge on the incorrect notion that the April 14, 2005 order was a final adjudication on the merits, dismissal is warranted. While the court agrees with defendants as to the procedural posture of the first state lawsuit, such a finding does not require dismissal of all of Wisniewski's claims because not all are premised on the finality of the April 14, 2005 order.

Defendants argue that the April 14, 2005 court order was not an adjudication on the merits and that their second suit for recovery of the debt therefore did not violate the FDCPA or the ICAA. On February 10, 2005, Wisniewski brought a motion to dismiss Asset Acceptance, LLC's suit for recovery pursuant to 735 Ill. Comp. Stat. 5/2-619(a)2 and 9, arguing that Asset Acceptance had failed to attach a copy of the Cardholder or Customer Agreement as required by 735 Ill. Comp. Stat. 5/2-606. A motion to dismiss brought under § 2-619 seeks an "[i]nvoluntary dismissal based on certain defects or defenses." 735 Ill. Comp. Stat. 5/2-619. The effects of an involuntary dismissal are governed by Illinois Supreme Court Rule 273, which provides that "[u]nless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action . . . operates as an adjudication upon the merits." Ill. Sup. Ct. R. 273.

In the first state case, Judge Thomas M. Donnelly of the First Municipal District of the Circuit Court of Cook County signed an order of dismissal which read, in relevant part, "[T]he motion to Dismiss as to Defendant Joan Wisniewski is granted w/out prej. pursuant to 2-606 w/both parties to bear their respective costs." Defs.' Mem., Ex. A. This court interprets that language to mean that Wisniewski 's motion to dismiss was ...

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