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Aker v. Bureaus Investment Group Portfolio No. 15 LLC

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

September 29, 2014

SANDRA AKER, on behalf of herself and the a class of similarly situated persons, and STATE OF ILLINOIS ex rel. SANDRA AKER Plaintiffs,
v.
BUREAUS INVESTMENT GROUP PORTFOLIO NO. 15 LLC, RIEXINGER & ASSOCIATES LLC, and STEPHEN P. RIEXINGER., Defendants.

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, Jr., District Judge.

The Amended Class Action Complaint in this case alleges that defendant Bureaus Investment Group Porfolio No. 15 LLC ("Bureaus") violated the Illinois Collection Agency Act (ICAA) and the Illinois Consumer Fraud Act (ICFA) by acting as an unlicensed collection agency and misrepresenting its ability to collect a debt. The complaint further alleges that Bureaus, the law firm of Riexinger & Associates, and its principle, Stephen Riexinger, all violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., with respect to a dunning letter sent by Riexinger to plaintiff Sandra Aker seeking to collect a debt allegedly owned by Bureaus. The defendants move to dismiss all claims, and for the reasons set forth below, the motion is granted.

FACTS

Sandra Aker received a letter dated March 22, 2012, on the letterhead of Riexinger & Associates, LLC, and signed by Stephen Riexinger. The letter states that Riexinger & Associates "is a law firm representing [Bureaus], the current creditor of the above-referenced account which originated with Credit One Bank, N.A." The letter claimed that Aker owed $698 on a credit card account and goes on to state:

[T]he above referenced matter has been placed with us for collection and such action as necessary to protect our client. At this time, no attorney with this firm has personally reviewed the particular circumstances of your account. However, if you fail to contact this office, our client may consider additional remedies to recover the balance due.

The remainder of the letter is the required FDCPA consumer notice advising Aker of her right to request, in writing, verification of the original obligation. Below the signature, the following notice is printed in capital letters: "In regard to this communication, Riexinger & Associates, LLC, is acting a debt collector and this a communication from a debt collector as defined by U.S.C. 1692(A)(6) [sic]. This is an attempt to collect a debt and any information obtained will be used for that purpose."

On May 11, 2012, Aker filed the original complaint in this action. The complaint does not allege that Aker did not owe the debt, that she attempted to verify the debt, or that she paid the amount requested. Instead, Aker maintains that the collection letter was false and misleading because Bureaus was not a licensed collection agency in Illinois; all of her legal theories are founded on this central allegation.

DISCUSSION

According to the Amended Complaint, the dunning letter that Aker received violates one or more provisions of the FDCPA, which prohibits "any false, deceptive, or misleading representation or means in connection with the collection of any debt, " including: "[t]he false representation of the character, amount or legal status of any debt, " 15 U.S.C. § 1692(e)(2)(A); "[t]he threat to take any action that cannot legally be taken or that is not intended to be taken, " id. § 1692(e)(5); and "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer, " id. § 1692(e)(10). On the assumption that the same letter was sent to many people, the claim purports to be brought on behalf of Akers and all other "individuals in Illinois who were sent a letter in the form represented by [Akers' letter] on behalf of [Bureaus]."

The second count of the complaint asserts that Bureaus (alone) acted as an unlicensed collection agency in violation of the ICAA, 225 ILCS 425/4, and seeks injunctive relief pursuant to 225 ILCS 425/14(a) on behalf of the "people of the State of Illinois" by Akers as relator. Count Three, also against Bureaus alone, alleges a violation of the ICFA, 815 ILCS 505/2, on behalf of Akers and a class of Illinois residents who received the same dunning letter on behalf of Bureaus. The complaint alleges that in the dunning notice, Bureaus unlawfully threatened to take action which it was not legally entitled to take and did not intend to take.

The defendants move to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). They argue that the claims against Bureaus are all premised on the faulty contention that Bureaus is a "collection agency" rather than a debt purchaser or creditor. With regard specifically to the FDCPA claim, they also maintain that the collection notice does not threaten litigation or otherwise violate the statute. And finally, with regard to the ICFA claim, Bureaus also contends that Akers pleaded no facts that show any violation of the ICFA independent of the asserted ICAA violation, and that Aker alleges no actual damages, as required by the statute.

To survive a motion to dismiss, a complaint must state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014). The plaintiffs must plead sufficient factual content from which the Court can "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations in the form of legal conclusions, as well as threadbare recitals of the elements of a cause of action, supported by conclusory statements, do not suffice. Adams, 742 F.3d at 728.

It is particularly apt to point out in this case that factual, but not legal, allegations are taken as true for purposes of the motion to dismiss. Id. This means that Court does not put any stock in Aker's conclusory, unsupported statements that Bureaus "is a collection agency as defined in the ICAA" and "is a debt collector as defined in the FDCPA, " among ...


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