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McCarter v. Nesbit

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

December 18, 2013

JANICE McCARTER, on behalf of herself and all others similarly situated, Plaintiff,
v.
KOVITZ SHIFRIN NESBIT, an Illinois professional corporation, Defendant

Page 798

For Janice McCarter, on behalf of herself and all others similarly situated, Plaintiff: Kenneth M. DucDuong, KMD Law Office, Chicago, IL.

For Kovitz Shifrin Nesbit, P.C., an Illinois professional corporation, Defendant: Christopher Edward Ralph, LEAD ATTORNEY, Kovitz Shifrin Nesbit, Buffalo Grove, IL; Diane Jane Silverberg, Kovitz, Shifrin & Nesbit, Buffalo Grove, IL.

OPINION

Page 799

MEMORANDUM OPINION

John F. Grady, United States District Judge.

Before the court are defendant's motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and for summary judgment on Count II of the complaint pursuant to Federal Rule of Civil Procedure 56. For the reasons explained below, the motion to dismiss is granted in part and denied in part, and the motion for partial summary judgment is denied as moot.

BACKGROUND

This is a class action suit against a law firm, Kovitz Shifrin Nesbit (" Kovitz" ), for violations of the Fair Debt Collection Practices Act (the " FDCPA" ), 15 U.S.C. § 1692 et seq. The complaint arises out of a December 3, 2012 collection letter that Kovitz sent to plaintiff, Janice McCarter, for past-due condominium assessments owed to the Malibu East Condominium Association (the " Association" ). The letter, which we will quote from in our discussion below, demanded full payment in the amount of $14,881.83, which included a charge of $231.90 " in legal fees and costs in attempting to collect this account." (Compl., Ex. A, at 1.)

Count I of the complaint alleges that Kovitz violated § 1692g of the FDCPA, the section that requires debt collectors to provide certain debt-validation information to debtors. In Count II, plaintiff alleges that Kovitz violated § 1692f of the FDCPA, the section that prohibits debt collectors from using unfair means to collect or attempt to collect any debt.

Kovitz moves to dismiss the complaint for failure to state a claim. It also moves for summary judgment on Count II.

DISCUSSION

A. Defendant's Motion to Dismiss the Complaint

The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur

Page 800

R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). To survive such a motion, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although we must accept as true all factual allegations in the complaint, we need not accept as true its legal conclusions. Iqbal, 556 U.S. at 678. " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).

1. Count I

Section 1692g of the FDCPA requires a debt collector to send, within five days after an initial communication with a consumer in connection with the collection of any debt, a written notice to that consumer that contains certain information about the debt and the consumer's rights. 15 U.S.C. § 1692g(a). The notice, which is often referred to as a " validation notice," must contain, among other things, a statement that " unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector," as well as a statement that " if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector." 15 U.S.C. § 1692g(a)(3), (4). The statute also provides that collection activities and communication during the thirty-day period " may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor." 15 U.S.C. § 1692g(b); see also Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518 (7th Cir. 1997).

When evaluating a debt-collection letter for compliance with the FDCPA, we apply the " unsophisticated consumer" standard, under which the letter must be " clear and comprehensible to an individual who is uninformed, naive, and trusting, but not without a rudimentary knowledge about the financial world or incapable of making basic deductions and inferences." Zemeckis v. Global Credit & Collection Corp., 679 F.3d 632, 635 (7th Cir. 2012) (citations and internal quotation marks omitted). Courts generally view the confusing nature of a dunning letter as a question of fact that, if well pleaded, avoids dismissal on a Rule 12(b)(6) motion. Id. at 636. A plaintiff fails to state a claim, however, when it is " apparent from a reading of the letter that not even a significant fraction of the population would be misled by it." Id. (citing Taylor v. Cavalry Inv., L.L.C., 365 F.3d 572, 574 (7th Cir. 2004)). Plaintiff claims that that Kovitz violated § 1692g by demanding full payment " on or before the expiration of thirty (30) days after the date of mailing of [the] notice," Compl. ¶ 28 & Ex. A, and, in so doing, by ...


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