United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge
April 6, 2016, Plaintiff filed a Complaint, alleging
violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”).
Defendant filed a Motion to Dismiss  Plaintiff's
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim for which relief can be
granted. For the reasons discussed below, Defendant's
Motion to Dismiss  is denied.
incurred a debt from a “Citibank/Sears [credit]
account” and had not made a payment on that account
since July 10, 2009. (Compl. ¶ 13). Plaintiff's debt
went into default and was later purchased by Midland Funding
LLC. (Id. ¶ 9). Defendant, Midland Credit
Management, Inc. (“MCM”) acts as a collection
agency for Midland Funding LLC. (Id. ¶ 6). On
September 2, 2015, Defendant sent a collection letter to
Plaintiff that included, among other things, a current
balance owed; the identity of the original creditor;
opportunity to enroll in a “pre-approved . . . discount
program”; an offer to Plaintiff of “three options
to remit payment - a one-time payment at ¶ 70% discount,
a 50% discount if the account was paid off over 12 months,
and monthly payments “as low as $50 per month.”
(Id. at ¶¶ 10-17). The September letter
also stated, “We are not obligated to renew this
offer.” (Id. at ¶12). The September
letter did not disclose that Plaintiff's debt is
January 20, 2016, Defendant sent another collection letter to
Plaintiff. (Id. at ¶16). This letter was
similar to the September letter. However, the January letter
stated, “Because of the age of your debt, we will not
sue you for it. If you do not pay the debt, we may continue
to report it to the credit reporting agencies as
unpaid.” (Id. at ¶ 20).
alleges that the letters misrepresent Plaintiff's debt in
violation of sections 1692e(2) and 1692e(10) of the FDCPA.
(Id.) More specifically, Plaintiff alleges that the
September letter did not disclose that the debt is
time-barred and that the January letter did not inform
Plaintiff that he could not be sued for the time-barred debt
or the effect of making a payment on the account.
(Id. ¶¶ 15, 21, 27, 29, 30, 35, 36).
Plaintiff alleges that the letters are misleading because
repayment towards the alleged debt would expose him to
potential liability if he starts making payments.
(Id. at ¶ 25).
12(b)(6) permits a defendant to move to dismiss a complaint
for “failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555). However,
plaintiffs are not required to “plead the elements of a
cause of action along with facts supporting each
element.” Runnion ex rel. Runnion v. Girl Scouts of
Greater Chicago & Nw. Indiana, 786 F.3d 510, 517
(7th Cir. 2015). Rather, the complaint must provide a
defendant “with ‘fair notice' of the claim
and its basis.” Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed.R.Civ.P. 8(a)(2)
and Twombly, 550 U.S. at 555). When evaluating a
Rule 12(b)(6) motion, the court accepts the complaint's
well-pleaded factual allegations as true and draws all
reasonable inferences in the plaintiff's favor.
Twombly, 550 U.S. at 555-56.
argues that the Complaint should be dismissed because
Plaintiff was not deceived by Defendant's September or
January letters. The basis of Defendant's argument is
that Plaintiff was not deceived or misled by the letters
because Plaintiff is an attorney who practices FDCPA law.
Complaint, Plaintiff asserts that Defendant engaged in
deceptive and misleading acts and practices in violation of
sections 1692e(2) and (10) of the FDCPA by failing to
disclose that Plaintiff's debt is time-barred and the
effect of making a payment on a time-barred debt. Section
1692e of the FDCPA provides:
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a
violation of this section:
* * *
(2) The false representation ...