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Thompson v. Cach, LLC

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

October 24, 2014

BRANDI LYNN THOMPSON, Plaintiff,
v.
CACH, LLC & JOHN C. BONEWICZ, P.C., Defendants.

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

Before the court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by the defendants, CACH, LLC ("CACH") and John C. Bonewicz, P.C. ("Bonewicz") (collectively "Defendants"). For the reasons that follow, the motion to dismiss is granted in part and denied in part.

I. BACKGROUND

Plaintiff has brought a three-count complaint against Defendants, alleging violations of the Fair Debt Collection Practices Act ("FDCPA" or "Act"), 15 U.S.C. § 1692 et seq., and the Illinois Consumer Fraud Act ("ICFA"), 815 ILCS §505/1 et seq. The gravamen of the complaint is that Defendants unlawfully attempted to collect a debt from Thompson that she never owed.

According to the complaint, CACH filed a breach of contract action ("Contract Action") against Brandi N. Thompson ("Brandi N.") in the Circuit Court of Cook County, First Municipal District, Illinois in April 2011 through its attorney, Bonewicz. Brandi N. bears no relationship to plaintiff Brandi Lynn Thompson ("Plaintiff" or "Thompson"), other than sharing the same first and last name.

In September 2011, Brandi N. entered her pro se appearance in the Contract Action. The case was scheduled for trial in December 2011, but Brandi N. apparently defaulted. A default judgment was entered against her in the amount $5, 058.74 on December 15, 2011.

Nearly two years later, Defendants attempted to collect on the judgment by contacting Thompson, instead of the judgment debtor, Brandi N. On October 15, 2013, Thompson received a phone call from an unknown number at her place of employment, Vista National Insurance Group ("Vista"). The caller, a male, asked to speak with "Brandi Thompson, " but did not identify himself. Thompson confirmed over the phone that her name was Brandi Thompson. The caller then provided Thompson with a series of four numbers and asked whether that series matched the final four digits of her social security number. Thompson informed the caller that there was no match. The caller subsequently asked if Thompson had ever lived in Aurora, Illinois. Thompson denied having ever lived in that location. The caller concluded the conversation by apologizing for having bothered Thompson. Thompson alleges on information and belief that the caller was a representative of either CACH or Bonewicz.

Shortly thereafter, Defendants filed, or caused to be filed, a wage deduction summons and an affidavit for wage deduction.[1] ( See ECF No. 1-2.) The affidavit indicated that Bonewicz "believe[d] Respondent Vista National [was] indebted to the Judgment Debtor Brandi N. Thompson for wages due or to become due." ( Id. ) The affidavit also identified the Judgment Debtor as "BRANDI N. THOMPSON" and her last known address as 14631 Harvard St., Dolton, IL 60419. ( Id. )

On November 12, 2013, Vista received the wage deduction summons and affidavit through its attorney, Lawrence G. Staat ("Staat"), of Harrison & Held, LLP. Staat forwarded the wage deduction summons on November 13, 2013 to Nisha Iype, a manager at Vista. That same day Staat called Thompson while she was at work to ask about the wage deduction summons.

On November 18, 2013, Vista complied with the instructions set forth in the wage deduction summons and returned its answer to the interrogatories contained within the summons. (ECF No. 1-3.) Vista's answer denied that Vista paid money to the judgment debtor, Brandi N. Vista also stated, "This person does not work for us." ( Id. )

Thompson claims that the ordeal caused her to suffer actual damages. She alleges that Defendants' collection effort against her caused her to divert time and energy away from her job, incur costs consulting with her attorneys, and suffer emotional distress. Based on these allegations, Thompson asserts claims for violations of the FDCPA against Bonewicz (Count I) and CACH (Count II), as well as a claim for violation of the ICFA against CACH (Count III).

II. LEGAL STANDARD

Rule 12(b)(6) permits a defendant to assert by motion that the plaintiff's complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The court must accept as true the allegations of the complaint and draw all reasonable inferences in favor of the plaintiff. See Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013). To withstand a Rule 12(b)(6) motion, the complaint must provide the defendant with "fair notice of what the... claim is and the grounds upon which it rests...." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff need not plead particularized facts, but the factual allegations in the complaint must be sufficient "to raise a right to relief above the speculative level...." Id . See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (A plaintiff must allege "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.") (quotation marks omitted).

III. ANALYSIS

A. FDCPA

Defendants challenge most, but not all, of their alleged violations of the FDCPA. Specifically, Defendants acknowledge that Thompson has adequately pled a violation of 15 U.S.C. § 1692(d)(6) under Counts I and II, but aver that her allegations are insufficient to state claims for violations of §§ 1692d, 1692e(5), 1692f, 1692f(1), and 1692f(6), which are also pled within Counts I and II. ...


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