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Rice v. Midland Credit Management, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 20, 2013

LINDA RICE, Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC., MIDLAND FUNDING, LLC, and ENCORE CAPITAL GROUP, INC formerly known as MCM CAPITAL GROUP, INC., Defendants

Page 1041

For Linda Rice, on behalf of plaintiff and the class defined below, Plaintiff: Cassandra P. Miller, Cathleen M. Combs, James O. Latturner, Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Midland Credit Management, Inc., Midland Funding, LLC, Encore Capital Group, Inc., formerly known as MCM Capital Group, Inc., Defendants: David M Schultz, LEAD ATTORNEY, Hinshaw & Culbertson, Chicago, IL; Jennifer W. Weller, Hinshaw & Culbertson LLC, Chicago, IL.

Page 1042

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge.

For the reasons stated below, Defendants' motion to dismiss [20] is granted. Plaintiff's motion for class certification [41] is denied as moot. Additionally, Plaintiff's motion for leave to file a sur-reply [26] is granted; the Court considered Plaintiff's sur-reply [26] and Defendants' objection to Plaintiff's sur-reply [29] in deciding Defendants' motion to dismiss. Finally, in view of the granting of Defendants' motion to dismiss, Plaintiff's motion for leave to conduct deposition of expert witness [56] is denied. This case is set for status hearing on April 3, 2013, at 10:00 a.m.

I. Background

Plaintiff Linda Rice alleges that beginning in April 2011 Defendants sent her a series of letters to collect on a debt. The letters offer Plaintiff a way to " resolve this obligation with a plan that fits your particular situation" and an opportunity to " settle your account" with monthly payment plans that discount the alleged debt. The last payment on the alleged debt was on January 19, 2006. The statute of limitations on a credit card bill in Illinois, where Plaintiff resides, is five years. Nothing in the letters sent to Plaintiff disclosed that the debt was barred by the statute of limitations in Illinois or disclosed the date of the transactions that gave rise to the alleged debt.

Plaintiff alleges that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692e, 1692e(2), 1692e(10), and 1692f by sending her letters claiming a right to collect a time-barred debt. Defendants have moved to dismiss [20].

II. Legal Standard

The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth v. HSBC Bank Nevada, NA, 507 F.3d 614, 618 (7th Cir. 2007). To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing " a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given " fair notice of what the * * * claim is and the grounds upon which it rests." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief

Page 1043

above the " speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). " A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555). However, " [s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th ...


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