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Corinne E. Walsh, On Behalf of Herself and the Classes Defined Herein v. Arrow Financial Services

January 27, 2012

CORINNE E. WALSH, ON BEHALF OF HERSELF AND THE CLASSES DEFINED HEREIN, PLAINTIFF,
v.
ARROW FINANCIAL SERVICES, LLC, AND BLATT, HASENMILLER, LEIBSKER & MOORE, LLC, DEFENDANTS.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiff Corinne Walsh brought this putative class action against Defendants Arrow Financial Services, LLC, and Blatt, Hasenmiller, Leibsker, & Moore, LLC, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Arrow and Blatt have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The motion is granted, and the case is dismissed with prejudice.

Background

The well-pleaded facts alleged in Walsh's complaint are assumed true on a Rule 12(b)(6) motion. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Also pertinent at the Rule 12(b)(6) stage are exhibits attached to the complaint, see Fed. R. Civ. P. 10(c); Witzke v. Femal, 376 F.3d 744, 749 (7th Cir. 2004), and exhibits attached to the parties' briefs that are "referred to" in the complaint and "central to [the plaintiff's] claim," Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994). See Hecker v. Deere & Co., 556 F.3d 575, 582-83 (7th Cir. 2009) (collecting cases). In addition, orders entered and filings made in this and other courts are subject to judicial notice on a Rule 12(b)(6) motion. See Cancer Found., Inc. v. Cerberus Capital Mgmt. LP, 559 F.3d 671, 676 n.2 (7th Cir. 2009); United States v. Stevens, 500 F.3d 625, 628 n.4 (7th Cir. 2007). To the extent an exhibit or a judicially noticed court document contradicts the complaint's allegations, the exhibit or court document takes precedence. See Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007). The following facts are stated as favorably to Walsh as permitted by the complaint and other materials that may be considered on a Rule 12(b)(6) motion.

Arrow, with Blatt as its counsel, sued Walsh in Illinois state court to collect a $1752.93 debt that Walsh allegedly incurred on a charge account at Washington Mutual. Doc. 1-1. Attached to the state court complaint was an affidavit from Deloris McGee, an "employee/agent" of Arrow, attesting to Walsh's indebtedness. The affidavit averred in relevant part:

The undersigned being duly sworn deposes and states that he/she is an employee/agent of Arrow Financial Services, LLC and has knowledge of the account balance, and is duly authorized to make this affidavit.

Affiant states that the amounts shown below are taken/calculated from the original books and records of the above named plaintiff as well as from information provided to Arrow Financial Services, LLC by WASHINGTON MUTUAL, and based on information and belief, affiant states that the amount due to Arrow Financial Services, LLC by CORINNE WALSH for funds advanced to defendants(s) or paid to another at defendant(s) request, or for goods or services provided to defendant(s) or to another at defendant's request, is the following on the following account(s) as of 03-01-10: CREDITOR/ACCOUNT NUMBER CURRENT BALANCE ARROW FINANCIAL SERVICES, LLC $1,752.93 Affiant states that the amount shown above is true and correct to the best of his/her knowledge. Further affiant sayeth not.

Id. at 4 (emphasis added). Arrow's complaint had no other attachments. Walsh moved to dismiss due to Arrow's failure to comply with Illinois Supreme Court Rule 282(a), which provides that "[i]f the claim is based upon a written instrument, a copy thereof or of so much of it as is relevant must be copied in or attached to the original and all copies of the complaint, unless the plaintiff attaches to the complaint an affidavit stating facts showing that the instrument is unavailable to him." Doc. 19-2. Five days later, the court entered an agreed order granting Arrow's motion to voluntarily dismiss its case without prejudice. Doc. 19-3.

Three days after the dismissal, Walsh (represented by her state court attorney) brought this federal suit. Attached to Walsh's federal complaint is Arrow's state court complaint, including the McGee affidavit. Doc. 1-1. Walsh attempts to articulate two FDCPA claims. The first alleges that Arrow's state court complaint failed to attach the written instrument upon which Walsh's alleged debt was based, as required by Illinois Supreme Court Rule 282(a) and the similarly worded 735 ILCS 5/2-606. Doc. 1 at ¶¶ 2(a), 22-23. The second claim alleges that the McGee affidavit falsely averred that McGee had "sufficient knowledge of the subject account to provide the affidavit" and "sufficient knowledge to claim that the amounts noted in the complaint were taken from original books and records." Id. at ¶ 2(b)-(c). In moving to dismiss, Arrow and Blatt contend that neither claim is viable under the FDCPA.

Discussion

Congress enacted the FDCPA to eliminate abusive debt collection practices, to protect debt collectors who abstain from abusive practices, and to promote consistency in consumer protection litigation. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1608 (2010). Among other things, the FDCPA prohibits a debt collector-a term that encompasses both Arrow and Blatt-from engaging "in any conduct the natural consequence of which is to harass, oppress, or abuse," 15 U.S.C. § 1692d, from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § 1692e, from making a "false representation" regarding "the character, amount, or legal status of any debt," 15 U.S.C. § 1692e(2)(A), and from employing "unfair or unconscionable means to collect or attempt to collect any debt," 15 U.S.C. § 1692f. The statute also requires that "[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall" provide the consumer with a written notice reflecting, among other things, the debt's amount and the creditor's name. 15 U.S.C. § 1692g(a). The FDCPA "is limited to protecting consumers and those who have a special relationship with the consumer . from statements that would mislead these consumers"; its "protections do not extend to communications that could mislead" anybody else, including courts and judges. O'Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 943-44 (7th Cir. 2011).

A. Failure to Attach Written Instrument to State Court Complaint

Walsh's first claim rests on the premise that a debt collector violates the FDCPA by filing a state court complaint that fails to comply with state procedural rules (here, Illinois Supreme Court Rule 282(a) and 735 ILCS 5/2-606) requiring that certain documents be attached to the complaint. Defendants argue that because Illinois law understands credit card debts to be based upon unwritten agreements, Arrow's state court complaint could not have violated procedural rules that presuppose the existence of a written instrument. Doc. 19 at 3. Alternatively, Defendants argue that Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470 (7th Cir. 2007), forecloses the use of FDCPA litigation to enforce purely formal state procedural rules like Illinois Supreme Court Rule 282(a) and 735 ILCS 5/2-606. Doc. 19 at 3-4; see Krawczyk v. Centurion Capital Corp., 2009 WL 395458, at *9-10 (N.D. Ill. Feb. 18, 2009) (dismissing an FDCPA claim resting on the allegation that the debt collector failed to attach the credit card contract to its state court complaint).

In her opposition brief, Walsh focuses exclusively on her second FDCPA claim, altogether ignoring her first claim. Doc. 32. Walsh does not address Arrow's contention that credit card debts are based on unwritten agreements. More significantly, Walsh's brief does not even mention Illinois Supreme Court Rule 282(a) or 735 ILCS 5/2-606, the state provisions whose violation lies at the heart of her first claim. When "presented with a motion to dismiss, the non-moving party must proffer some legal basis to support h[er] cause of action," as federal courts "will not invent legal arguments for litigants." Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir. 1995) (citation omitted); see also Cnty. of McHenry v. Ins. Co. of the W., 438 F.3d 813, 817-18 (7th Cir. 2006) (same). Walsh's failure to reference, let alone defend, her first claim operates as an abandonment of that claim and a forfeiture of any argument opposing dismissal. See Alioto v. Town of Lisbon, 651 F.3d 715, 719 n.1, 721 (7th Cir. 2011) (forfeiture occurs where the "litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss"); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an argument-as the [plaintiffs] have done here-results in waiver."); Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007); Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir. ...


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