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Simpson v. Safeguard Properties, LLC

United States District Court, Seventh Circuit

June 12, 2013

LUCILLE SIMPSON, on behalf of herself and a class of others similarlysituated, Plaintiff,


JOAN B. GOTTSCHALL, District Judge.

Plaintiff Lucille Simpson filed a complaint against Safeguard Properties, L.L.C. ("Safeguard") alleging a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). Now before the court is Safeguard's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the court denies the motion.


Simpson has a residential mortgage loan with Midland Mortgage Company ("Midland Mortgage"). Simpson received a document from Midland Mortgage (the "notice of default") dated January 10, 2012, stating that Simpson's note and security instrument were in default. The notice of default instructed Simpson that to cure the default, she must pay $4, 824.37, the total delinquency amount. The notice of default also listed a telephone number at which Midland Mortgage loan counselors could be reached. Simpson attached the notice of default as an exhibit to her complaint.

Simpson also attached to the complaint five notes that were left on the door of her home between October 8, 2012, and February 1, 2013. All five notes were identical, and the front of each one read, "IMPORTANT INFORMATION ENCLOSED[.]" The reverse side of each note included the following instructions: "IMPORTANT[, ]" "PLEASE CALL[, ]" "PLEASE BE READY TO GIVE YOUR ACCOUNT NUMBER[, ]" and "WE ARE EXPECTING YOUR CALL TODAY." A phone number was handwritten in a space provided on each note, the same number as the one Midland Mortgage listed for its loan counselors in the notice of default.

In response to the notes, Simpson filed a lawsuit, on behalf of herself and a putative class, alleging that a Safeguard representative left each note while performing "field agent" services for Midland Mortgage and, in so doing, violated three provisions of the FDCPA. Safeguard contends that the complaint alleges facts that preclude Simpson from proving two essential elements in her claim, and that the complaint should therefore be dismissed.


To survive a Rule 12(b)(6) motion to dismiss, a plaintiff's "complaint must contain sufficient factual matter... to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). A claim is plausible on its face when the complaint's factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though the court treats all well-pleaded facts as true and draws all reasonable factual inferences in the plaintiff's favor, Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009), the plaintiff may not rely on conclusory statements, Iqbal, 556 U.S. at 678.


Congress enacted the FDCPA, in part, to "eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e). Among other things, the FDCPA regulates communications with consumers in connection with the collection of any debt, prohibiting deceptive practices by and requiring certain disclosures from debt collectors. Id. §§ 1692e and 1692g. Section 1692k makes "any debt collector who fails to comply with any provision of [the FDCPA] with respect to any person... liable to such person." At issue here is whether Simpson has sufficiently pleaded that Safeguard is a debt collector and that the notes left on Simpson's door were communications made in connection with the collection of a debt.

A. "Debt Collector" Under the FDCPA

Safeguard first argues that the complaint does not state a claim to which Simpson could be entitled to relief because the factual allegations establish that Safeguard is not a "debt collector" as defined by the FDCPA. The FDCPA defines "debt collector" as:

any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

Id. § 1692a(6). Simpson's allegation that "Safeguard is a debt collector as defined by the FDCPA" is a legal conclusion that is not entitled to the presumption of truth. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To meet the pleading standard, the well-pleaded facts in Simpson's complaint and the reasonable inferences drawn from them ...

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