United States District Court, N.D. Illinois, Eastern Division
MELVIN HENLEY, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
TRUSTMARK RECOVERY SERVICES, And JOHN DOES, Defendants.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge.
the Court is Defendant Trustmark Recovery Services'
Motion to Dismiss the Complaint pursuant to Fed.R.Civ.P.
12(b)(6) [ECF No. 14]. For the reasons stated herein, the
Motion is granted.
following facts are contained in Plaintiff's Complaint
and the attached exhibit, and are presumed true for purposes
of deciding the motion to dismiss. Gillman v. Burlington
N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989).
April of this year, Plaintiff Melvin Henley received from
Defendant Trustmark Recovery Services a debt collection
letter. Plaintiff alleges that the letter violates the Fair
Collection Practices Act and files this lawsuit on behalf of
Illinois consumers who received similar letters from
Defendant. The portion from the letter that Plaintiff
complains of reads as follows:
Unless you notify this office within 30 days after 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
after receiving this notice that you dispute the validity
of this debt this office will obtain verification of the
debt or obtain a copy of a judgment and mail you a copy of
such judgment or verification.
(ECF No. 1, Ex. A (hereafter, the “Collection
Letter”) (emphasis added).)
claims that by omitting the words “or any portion
thereof” from the second sentence of the Collection
Letter, Defendant had failed to “provide an accurate
and correct validation notice” as required by 15 U.S.C.
§1692g(a)(4). This is because by “omitting this
statutorily required language, ” Defendant misled
Plaintiff, and those like him, into believing that he must
“dispute the entire debt” when in fact
the law allows a purported debtor to dispute any part of the
debt and thereby trigger the verification obligation of the
debt collector. (Pl's Memo. Opp. Def's Mot. Dismiss,
ECF. No. 15 (emphasis in original).) Defendant, on the other
hand, contends that when the two sentences are read in
conjunction with each other, no consumer - even if
unsophisticated - could be objectively misled or confused.
motion to dismiss under Fed.R.Civ.P. 12(b)(6) requires the
Court to analyze the legal sufficiency of the complaint, not
the factual merits of the case. Autry v. Nw. Premium
Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998).
Because “[h]ow a particular notice affects its audience
is a question of fact . . . not of law, ” district
courts regularly allow plaintiffs alleging consumer confusion
to proceed past 12(b)(6) motions. See, Walker v. National
Recovery, Inc., 200 F.3d 500, 501, 503 (7th Cir. 1999).
However, the Seventh Circuit has cautioned that in some
cases, courts should reject plaintiffs' claims
“without requiring evidence beyond the letter
itself.” See, Taylor v. Cavalry Inv., L.L.C.,
365 F.3d 572, 574-75 (7th Cir. 2004). In particular,
“[i]f not even ‘a significant fraction of the
population would be misled' by the debt collector's
letter, then dismissal is required.” Gruber v.
Creditors' Prot. Serv., 742 F.3d 271, 274 (7th Cir.
Fair Collection Practices Act (“the Act”)
protects the interests of “unsophisticated
consumers” who are often the target of debt collectors.
Walker, 200 F.3d at 501. The Act does this by, among
other things, requiring that debt collectors provide
consumers with written notices containing certain
information. See, 15 U.S.C. §1692g(a). Of
particular relevance to this case, the Act requires a debt
collector to send the consumer
(3) a statement that unless the consumer, within thirty days
after receipt of the notice, disputes the validity of the
debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector; (4) a statement
that if the consumer notifies the debt collector in writing
within the thirty-day period that the debt, or any
portion thereof, is disputed, the debt collector will
obtain verification of the debt or a copy of a judgment