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McLaughlin v. LVNV Funding, LLC

United States District Court, N.D. Illinois

September 6, 2013

JOANN MCLAUGHLIN, Plaintiff,
v.
LVNV FUNDING, LLC, and RESURGENT CAPITAL SERVICES, L.P., Defendants

For Joann McLaughlin, Plaintiff: Cathleen M. Combs, James O. Latturner, Tiffany Nicole Hardy, Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For LVNV Funding, LLC, Defendant: David M Schultz, LEAD ATTORNEY, Hinshaw & Culbertson, Chicago, IL; Nabil G. Foster, LEAD ATTORNEY, Katherine Hannah Tresley, Hinshaw & Culbertson Llp, Chicago, IL.

For Resurgent Capital Services L.P., Defendant: Nabil G. Foster, LEAD ATTORNEY, Hinshaw & Culbertson Llp, Chicago, IL.

OPINION

Page 797

MEMORANDUM OPINION AND ORDER

Sharon Johnson Coleman, U.S. District Judge.

Plaintiff Joann McLaughlin filed a three count Complaint against LVNV Funding, LLC, and Resurgent Capital Services, L.P., (collectively " defendants" ) alleging violations

Page 798

of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (" FDCPA" ), the Illinois Collection Agency Act, 225 Ill. Comp. Stat. 425/1 et seq. (" ICAA" ), and § 2 of the Illinois Consumer Fraud Act, 815 Ill. Comp. Stat. 505/2 (" ICFA" ). Defendants move to dismiss counts II and III for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated herein, the motion is granted.

Background

Plaintiff, Joann McLaughlin, maintained an HSBC credit card for personal, family, or household purposes. Defendant, LVNV Funding, LLC, hired Protocol Recovery Service to collect an alleged consumer debt from McLaughlin. On October 29, 2012, counsel for McLaughlin notified Protocol Recovery Service that she has representation and that she disputes the debt. McLaughlin alleges that notice to Protocol Recovery Service of her representation and dispute of the debt is notice to LVNV.

McLaughlin also alleges that on or about November 26, 2012, Brachfeld Law Group, P.C., sent McLaughlin a letter on behalf of LVNV (attached as Ex. D to the 1st Amend. Compl., Dkt. #27), seeking to collect the same alleged debt. McLaughlin was annoyed at the direct communication. According to the Complaint, LVNV Funding, LLC, and Resurgent Capital Services L.P., have engaged in a pattern and practice of contacting represented debtors directly by sending debts to a second collection agency.

Legal Standard

Defendants bring the instant motion to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. Motions to dismiss test the legal sufficiency of the complaint not the merits of the claims. Federal Rule of Civil Procedure 8(a)(2) sets forth the basic pleading requirement that a complaint must contain a " short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8 does not require the plaintiff to plead particularized facts, but the factual allegations in the complaint must be enough to raise a plausible right to relief above the speculative level. See Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir. 2011). In order to survive dismissal, plaintiff must plead " more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). When ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), courts accept all well-pleaded ...


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