United States District Court, N.D. Illinois, Eastern Division
Alphenie I. Williams, Plaintiff,
Selene Finance LP, Defendant.
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall, Judge
August 13, 2015, Plaintiff filed a one-count pro se
complaint against Defendant alleging violations of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692, et
seq. She subsequently filed a three-count Amended
Complaint on December 14, 2015, alleging violations of the
FDCPA and the Fair Credit Reporting Act, 15 U.S.C. §
1681. Defendant filed a motion to dismiss the Amended
Complaint, which this Court granted without prejudice on May
10, 2016. Plaintiff filed a Second Amended Complaint on May
26, 2016. Defendant now moves to dismiss the Second Amended
Complaint with prejudice. Defendant Selene Finance LP's
Motion to Dismiss is granted. (Dkt. No. 48).
Court takes the following allegations from the Second Amended
Complaint and treats them as true for the purposes of
evaluating Defendant's motion. See Gillard v. Proven
Methods Seminars, LLC, 388 F.App'x 549, 550 (7th
Cir. 2010). On August 12, 2014, Plaintiff received what she
refers to as a “dunning letter” from Defendant
that was dated August 8, 2014. (Dkt. No. 44, ¶ 49). The
letter read in part, “Effective August 1, 2014 please
begin sending your mortgage payments to
(“SELENE”) using one of the options below.”
(Id. at ¶ 47). Plaintiff claims this first
communication was made even though “Defendant knew or
should have known that the Consumer Plaintiff is represented
by an attorney with respect to such debt, or can readily
ascertain, such attorney's name and address in violation
of FDCPA 15 U.S.C. § 1692c(a)(2).” (Id.
at ¶ 48). Plaintiff also maintains that this letter was
made in attempt to “harass or abuse” her.
(Id. at ¶ 51). Plaintiff also makes general
complaints about an “assignment” made by
Defendant “without the required disclosures.”
(See id. at ¶¶ 9, 12-19). Specifically,
Plaintiff alleges that “Defendant filed an assignment
in the county record dated 12/03/2014 while continuing its
illegal actions without the required
disclosures…” (See id. at ¶ 55;
see also, id. at ¶ 56-58).
stated in this Court's order on May 10, 2016 that granted
Defendant's initial motion to dismiss, a complaint must
contain sufficient factual matter to state a claim to relief
that is plausible on its face to survive a 12(b)(6)
challenge. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In making the plausibility determination, the Court
relies on its “judicial experience and common
sense.” McCauley v. City of Chicago, 671 F.3d
611, 616 (7th Cir. 2011) (quoting Iqbal, 129 S.Ct.
at 1950). For a complaint to survive a 12(b)(6) challenge,
the plaintiff must give the defendant fair notice of what the
claim is and the grounds upon which it rests. See Huri v.
Office of the Chief Judge of the Cir. Ct. of Cook
County, 804 F.3d 826, 832 (7th Cir. 2015).
“Neither conclusory legal statements nor abstract
recitations of the elements of a cause of action add to the
notice that Rule 8 demands, so they do not help a complaint
survive a Rule 12(b)(6) motion.” Id. For
purposes of this motion, this Court accepts all well-pleaded
allegations in the complaint as true and draws all reasonable
inferences in the non-movant's favor. See Yeftich v.
Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013).
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief[.]” Rule 8(a)(2) does not require
detailed factual allegations, “but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Rule 10 requires the Plaintiff to state her claims
in separate numbered paragraphs, “each limited as far
as practicable to a single set of circumstances, and also
requires that each claim founded on a separate transaction or
occurrence be stated in a separate count if doing so would
promote clarity.” See Standard, 658 F.3d at
797 (internal quotation marks and citations omitted). The
Court's primary concern in evaluating whether a complaint
satisfies the pleading requirements under Rules 8 and 10 is
whether the defendants have been provided “fair notice
of the claims against them and the grounds supporting the
claims.” See Id. at 797-98. For example,
“where the lack of organization and basic coherence
renders a complaint too confusing to determine the facts that
constitute the alleged wrongful conduct, dismissal is an
appropriate remedy.” See Id. at 798.
Plaintiff fails to organize the claims in her Second Amended
Complaint into separate Counts, she cites to a number of
specific provisions of the FDCPA. To state a claim under the
FDCPA, Plaintiff must allege that: (1) Defendant qualifies as
a debt collector as defined in § 1692a(6); (2) the
actions of which Plaintiff complains were taken in connection
with the collection of any debt; and (3) the actions violated
one of the FDCPA's substantive provisions. See Gburek
v. Litton Loan Servicing LP, 614 F.3d 380, 384 (7th Cir.
2010); see also, e.g., Kabir v. Freedman Anselmo Lindberg
LLC, No. 14 C 1131, 2015 WL 4730053, at *2 (N.D. Ill.
Aug. 10, 2015). Defendant does not dispute that it is a debt
collector with respect to the first element, instead arguing
only that Plaintiff has failed to allege facts sufficient to
satisfy the second and third elements. With respect to the
second element, Defendant renews the argument made in its
initial motion to dismiss; namely, that Plaintiff has failed
to plausibly allege that the letter sent to Plaintiff on
August 8, 2014 was made in connection with a debt. This
argument was rejected by the Court in its May 10, 2016 order
and, for the reasons stated in that order, is once again
denied. Viewing the correspondence in its entirety and
drawing all reasonable inferences in favor of the pro
se Plaintiff, the Court finds that the letter could
plausibly have been sent to collect a debt. All of
Plaintiffs' claims fail, however, because Plaintiff has
not plausibly alleged that Defendant's actions violated
any substantive provision of the FDCPA.
Court first considers Plaintiff's claim under Section
1692c(a)(2) of the FDCPA. “The FDCPA § 1692c(a)(2)
states that a debt collector may not communicate with a
consumer, in connection with the collection of any debt, if
the debt collector knows that the consumer is represented by
counsel.” See Bravo v. Midland Credit Mgmt.,
Inc., 812 F.3d 599, 602 (7th Cir. 2016). Liability under
this Section depends on the actor's actual knowledge with
respect to the consumer's representation specific to the
debt in question. See Randolph v. IMBS, Inc., 368
F.3d 726, 730 (7th Cir. 2004); see also, e.g., Miller v.
Allied Insterstate, Inc., No. 04 C 7126, 2005 WL
1520802, at *4 (N.D. Ill. 2005) (collecting cases). Plaintiff
sets forth facts that infer that she was not even represented
by counsel with respect to the relevant debt at the time
Defendant contacted her: not that Defendant had actual
knowledge of that representation.
Second Amended Complaint, Plaintiff alleges that Defendant
“knew or should have known” that she was
represented by counsel. (See Dkt. No. 44, ¶
48). Though the Court need not weigh in on the issue at this
time, it recognizes that this simple allegation may generally
be sufficient to survive a motion to dismiss. See,
e.g., Micare v. Foster & Garbus, 132
F.Supp.2d 77, 81 (N.D.N.Y. 2001) (denying motion to dismiss
where Plaintiff merely alleged “that Defendant knew
that the plaintiff was represented by counsel”);
contra Sosa v. Client Services, Inc., Case No.
11-03021 (WHW); 2011 WL 5599937, at *5 (D.N.J. Nov. 16, 2011)
(plaintiff “must raise at least some factual basis for
her claim that Client Services knew or should have known that
she was represented by counsel.”). It is not, however,
sufficient to survive dismissal in a case such as this where
Plaintiff has provided only facts that contradict her
support of her allegation that Defendant knew or should have
known of her representation, Plaintiff cites to and attaches
a letter dated November 3, 2014 that was signed by an
attorney named Sandra M. Emerson and addressed to Judge
Pamela Meyerson in connection with the case Bank of
America v. Alphenie Williams, Case No. 09 CH 47625.
See Dkt. No. 44, 19; see also Gutierrez v.
Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997) (in
evaluating the sufficiency of a pro se complaint,
the court may consider factual allegations contained in other
court filings as long as they are consistent with the
allegations in the complaint). The letter is dated November
3, 2014, nearly three months after the communication at issue
in this case was mailed, and the letter is not addressed to,
nor does it otherwise mention the Defendant in this case.
Plaintiff does not clarify whether Emerson represented her in
the state court case and, even if she did, Plaintiff fails to
allege when the attorney was retained; whether the attorney
represented her in any other matters; and what relationship,
if any, exists between the state court case referred to in
the attached letter and the debt at issue in this case.
Defendant clarifies that this correspondence was in relation
to Plaintiff's mortgage foreclosure proceedings,
(see Dkt. No. 48, 6), but the allegation must be
that the debt collector had knowledge that the debtor was
represented in connection with the specific debt at issue.
See, e.g., Miller, 2005 WL 1520802, at *4; see
also, e.g., Wright v. Select Portfolio Servicing, Inc.,
No. 8:14-cv-2298-T-30TGW, 2015 WL 419618, at *5 (M.D. Fla.
Feb. 2, 2015) (dismissing claim where debt collector only had
notice that consumer was represented in a mortgage
foreclosure proceeding, not with respect to the collection of
the debt). Plaintiff has not alleged that she or anyone else
contacted Defendant or informed Defendant that she was
represented by counsel and she has not alleged any facts even
suggesting that Defendant had such knowledge.
Court also notes that Plaintiff's claim that Defendant
knew or should have known she was represented by counsel, a
claim that was not raised in her original or amended
complaints, also conflicts with her earlier pleadings. In her
Amended Complaint that was previously dismissed by this Court
without prejudice, Plaintiff admitted to corresponding with
the Defendant following its initial contact with her in
August 2014. (See Dkt. No. 8, ¶¶ 18-21).
She attached a copy of the letter she sent to the Defendant
on her own behalf stating that she was requesting
“validation” of the amount of the alleged debt.
(See id., Exs. B, C). Following these allegations,
Plaintiff stated that she found counsel to represent her with
respect to all matters regarding the Defendant. (See
id. ¶ 23). This portion of Plaintiff's Amended
Complaint appears to be organized chronologically and
therefore her retention of counsel occurred following her
receipt of the subject communication from Defendant since
Plaintiff was initially corresponding with Defendant on her
be that a Plaintiff does not generally need to plead a
factual basis to support the conclusion that “Defendant
knew Plaintiff was represented by counsel” in violation
of Section 1692c(a)(2), see supra; however, because
this pro se Plaintiff claims that Defendant
“knew or should have known” she was represented
by counsel is directly contradicted by the facts alleged in
her previous complaints and provided by her in documentation
supporting this conclusion, the Court dismisses her claim. A
plaintiff “must plead some facts that suggest a right
to relief that is beyond the ‘speculative
level.'” Atkins v. City of Chicago, 631
F.3d 823, 832 (7th Cir. 2011). “This means that the
complaint must contain allegations plausibly suggesting (not
merely consistent with) an entitlement to relief.”
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632
(7th Cir. 2013) (internal quote marks and citation omitted).
Plaintiff has not satisfied that burden and her Section
1692c(a)(2) claim is dismissed. Plaintiff has already been ...