United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. ASPEN, District Judge:
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.
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.) 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
(Id.) Plaintiff does not allege that he received any
other communication from Defendant.
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).
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.
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.
Alleged Violation of 15 U.S.C. § 1692c(a)(2) (Count
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. §
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 ...