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Grubermann v. Seas & Associates, LLC

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

August 17, 2016

CHRISTOPHER GRUBERMANN, Plaintiff,
v.
SEAS & ASSOCIATES, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          MARVIN E. ASPEN, District Judge:

         Plaintiff Christopher Grubermann filed this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). Plaintiff alleges that the Defendant, Seas & Associates, LLC, violated the FDCPA when it sent him a collection letter after he filed a bankruptcy petition that included the debt in question. Presently before us is Defendant’s motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons set forth below, we grant in part and deny in part Defendant’s motion.

         BACKGROUND

         We treat the following allegations as true for the purposes of this motion. Bravo v. Midland Credit Mgmt., Inc., 812 F.3d 599, 601 (7th Cir. 2016). Plaintiff Grubermann incurred a debt of $89.85 to Charter Fitness Olympia Field. (Compl. ¶¶ 3, 11.)[1] Defendant Seas & Associates, LLC acquired the debt after it was in default. (Id. ¶ 6.) On or around October 15, 2015, Plaintiff filed a voluntary bankruptcy petition, which Plaintiff alleges “included the [d]ebt” owed to Charter Fitness. (Id. ¶ 10.) Thereafter, on October 30, 2015, Defendant sent the collection letter to Plaintiff. (Id. ¶ 11; Ex. A to Opp’n Br. (Dkt. No. 15-1).) Among other things, the collection letter stated that Charter Fitness had “partnered with Seas & Associates, LLC to work with you in getting your payment information updated and your membership back in good standing” and provided instructions for how to pay the debt. (Ex. A to Opp’n Br. (Dkt. No. 15-1).) The collection letter also stated:

YOUR RIGHTS AS A CONSUMER: Unless you notify this office within 30 days of receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will [o]btain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. You may also request within 30 days after receiving this letter the name and address of the original creditor if different from the company listed above. NOTICE: THIS COMMUNICATION FROM A DEBT COLLECTOR IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

(Id.) Plaintiff does not allege that he received any other communication from Defendant.

         Plaintiff asserts that Defendant had notice that he was represented by an attorney but nevertheless proceeded to communicate with him directly. (Id. ¶ 16.) He also alleges that Defendant’s collection letter misrepresented “the character, amount, and/or legal status of the Debt.” (Id. ¶ 18.) Further, Plaintiff contends that Defendant used “false representations and/or deceptive means to collect, or attempt to collect, the Debt” (Id. ¶ 20); that Defendant engaged “in unfair and/or unconscionable means to collect, or attempt to collect, the Debt” (Id. ¶ 22); and that Defendant used “false, deceptive, or misleading methods” to collect the Debt (Id. ¶ 24).

         STANDARD OF REVIEW

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a motion to dismiss, the 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). Specifically, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 540 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). The plausibility standard “is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Thus, while a complaint need not give “detailed factual allegations, ” it must provide more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 540 U.S. at 545, 127 S.Ct. at 196465; Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618-19 (7th Cir. 2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 127, S.Ct. at 1949. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Id. at 678-79, 127 S.Ct. at 1949-50.

         ANALYSIS

         The FDCPA generally prohibits debt collectors from engaging in abusive, deceptive, or unfair debt-collection practices. 15 U.S.C. § 1692. “Among other things, the FDCPA regulates when and where a debt collector may communicate with a debtor, id. § 1692c; restricts whom a debt collector may contact regarding a debt, id.; . . . and bans the use of false, deceptive, misleading, unfair, or unconscionable means of collecting a debt, id. §§ 1692e, 1692f.” Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 384 (7th Cir. 2010). The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). Here, Plaintiff asserts that by sending him a letter seeking to collect on a bankrupt debt, Defendant violated Sections 1692c, 1692e, and 1692f of the FDCPA. Defendant argues Plaintiff’s complaint should be dismissed because it fails to state a claim. We address each of Plaintiff’s claims below.

         I. Alleged Violation of 15 U.S.C. § 1692c(a)(2) (Count I)

         In Count I, Plaintiff alleges Defendant violated § 1692c(a)(2) by “communicating with a consumer after having notice the consumer was represented by an attorney.” (Compl. ¶ 16.) Defendant argues Plaintiff’s complaint is devoid of any plausible allegation that Seas & Associates, LLC had actual knowledge that Plaintiff was represented by counsel in connection with the debt. (Def.’s Mem. at 5. (Dkt. No. 9).) In order to state a claim under § 1692c(a)(2), a plaintiff must show that the debt collector knew that the consumer was represented by an attorney “with respect to such debt” and that the debt collector had “knowledge of, or can readily ascertain, such attorney’s name and address.” 15 U.S.C. § 1692c(a)(2).

         Plaintiff contends he must only show that the debt collector could “readily ascertain” his attorney’s name and address. (Opp’n Br. at 3 (Dkt. No. 15).) However, § 1692c(a)(2) states “a debt collector may not communicate with a consumer in connection with the collection of any debt . . . if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address.” 15 U.S.C. § 1692c(a)(2) (emphasis added). Thus, Plaintiff must show both that the debt collector knew he was represented and that the debt collector knew or could identify the name and ...


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