The opinion of the court was delivered by: Virginia M. Kendall United States District Court Judge Northern District of Illinois
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Lavonia Gaddy ("Gaddy") sued Defendant Arthur S. Wulf ("Wulf") alleging he violated the Fair Debt Collection Practices Act (the "FDCPA" or the "Act"), 15 U.S.C § 1692 et seq (Count I), committed fraud (Count II), assault (Count III), and intentional infliction of emotional distress ("IIED") (Count IV), and violated the Illinois Forcible Entry and Detainer Act (the "Illinois Act") (Count V) when he attempted to collect rent from Gaddy, his tenant. Wulf moves to dismiss Gaddy's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) claiming he is not a "debt collector" under the FDCPA. For the following reasons, the Court dismisses Count I for failure to state a claim because Wulf is not a "debt collector" as defined by the FDCPA.
The following facts are taken from Gaddy's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). Sometime before January 2009, Gaddy entered into an agreement with Wulf to rent a single-family residence that he owned. (R. 1, Compl. ¶ 4.) Gaddy defaulted on her rent, filed for Chapter 13 Bankruptcy, but remained in the home. (Id. ¶¶ 7-8.) Several months after Gaddy defaulted on her rent, Wulf began contacting her trying to collect payment. On July 1, 2009, Wulf called Gaddy at home and told her that if she did not move out of the house by July 4, 2009 he would evict her. (Id. ¶¶ 9-11.) Wulf called Gaddy again on July 9, 2009 and demanded that she move out of the house and pay him $15,000. (Id. ¶ 13.) During the same phone call, Wulf threatened to call or visit Gaddy's employer to embarrass her and cause her to lose her job, to bring the matter to court for "an unreasonable and extended time,"and to ruin her credit. (Id.) After the July 9th call, Gaddy called the police because Wulf's threats made her fear for her safety and the safety of her children. (Id. ¶ 14.) On July 12, 2009, Wulf went to Gaddy's home again and demanded that Gaddy pay him $15,000. (Id. ¶¶ 15-16.) He also demanded that she sign a handwritten wage garnishment letter and a promissory note which Gaddy refused to do. (Id. ¶ 16.) During this incident, Wulf verbally abused Gaddy and her daughters, refusing to leave until Gaddy threatened to call the police. (Id. ¶ 17.)
Meanwhile, Gaddy had retained a bankruptcy attorney, a fact she made clear to Wulf during his July 12 visit. (Id. ¶ 18.) On July 15, 2009, Gaddy's attorney moved for an extension of time to allow Wulf to file a claim for past due rent with the bankruptcy court, which was granted. (Id. ¶¶ 19-20.) On July 18, 2009, Wulf again went to his property where Gaddy remained in spite of not paying him rent. Wulf entered the residence without her permission and verbally abused, assaulted, and threatened Gaddy's daughters. (Id. ¶¶ 21-23.) Fearing for their safety, Gaddy's daughters called the police who came to the home and instructed Wulf to leave. (Id. ¶¶ 23, 25-26.)
On August 17, 2009, Gaddy's bankruptcy attorney faxed Wulf a copy of the bankruptcy court's order extending the time Wulf had to file a claim for past due rent. (Id. ¶ 27.) After receiving the bankruptcy order, Wulf called Gaddy at work and then mailed a letter written on his law office letterhead to Gaddy at work. (Id. ¶¶ 28-29.) In the letter, Wulf wrote that he had not received rent from Gaddy for the last twelve months and that he would accept payments of $100 each week from her salary. (Id. ¶ 30.) If she did not comply, Wulf wrote, he would "take other legal action" against her and her family. (Id.) Wulf also accused Gaddy of fraud. (Id.) That same day, Wulf mailed a letter to Gaddy's employer. (Id. ¶ 31.) This letter was also on his law office letterhead, but in this letter, Wulf addressed Gaddy's employer as if he was Gaddy's landlord's lawyer. (Id. ¶ 32.) In relevant part, the letter stated the following:
I believe you have an employee named Lavonia Gaddy. She was formerly a tenant of a client of mine, and was behind in her rent for many months. She did not leave any forwarding information, so I have no way to get information to her. If she still works at your hotel, please give her the enclosed sealed letter. If she does not work at your hotel, let me know.
Until recently she was paying on her rent with a payroll deduction from Renaissance. She told me she would continue to make those payments at $100 a week, until her obligation was paid off. You have all of the applicable information in your system. Please forward this letter to your accounting department, and find out why those payments have ceased. Ms. Gaddy reaffirmed this just last week, so it should be in operation now. (Id. ¶ 32.) Gaddy had not agreed to a wage garnishment arrangement. (Id. ¶ 36.)
On August 21, 2009, Wulf sent another letter on his law office letterhead, this time to Gaddy's bankruptcy attorney. (Id. ¶ 37.) In this letter, Wulf denied "communicat[ing] with anyone once [he] was informed that Ms. Gaddy had filed [for bankruptcy under] Chapter 13," and he stated that Gaddy had "reaffirmed her obligation to [him] subsequent to filing her [bankruptcy] Petition." (Id. ¶ 38.) Since August 25, 2009, Wulf has called Gaddy's place of employment a number of times despite being told by both Gaddy and her employer that her employer prohibits such communications. (Id. ¶¶ 41-42.) During Wulf's calls to Gaddy's place of employment, Wulf "has been abusive, harassing, has yelled," and has threatened Gaddy and others. (Id. ¶ 44.)
Gaddy sued Wulf, alleging multiple violations of the FDCPA and state law claims for fraud, assault, IIED, and violations of the Illinois Act. Wulf now moves to dismiss Gaddy's Complaint pursuant to Rule 12(b)(1), arguing that because he is not a "debt collector" under the FDCPA, this Court does not have subject matter jurisdiction over Gaddy's claim. Wulf also contends that he should receive attorneys fees because Gaddy's FDCPA claim was not filed in good faith.
As an initial matter, the Court considers whether Wulf's Motion to Dismiss for lack of subject matter jurisdiction is properly labeled. Although such a motion may not be the appropriate vehicle for attacking the Complaint, the label is less important than the attack itself, which at its heart is questioning the applicability of the FDCPA. As such, it is appropriate to analyze Wulf's Motion pursuant to the 12(b)(6) standard. See Health Cost Controls v. Skinner, 44 F.3d 535, 538 (7th Cir. 1995) ("This Court ordinarily may modify a dismissal for lack of jurisdiction and convert it to a dismissal on the merits if warranted."); Peckmann v. Thompson, 966 F.2d 295, 297 (7th Cir. 1992) ("If a defendant's Rule 12(b)(1) motion is an indirect attack on the merits of the plaintiff's claim, the court may treat the motion as if it were a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted."); see also, ...