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Bass v. Blitt and Gaines, P.C.

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

November 22, 2016

HENRY BASS, Plaintiff,
v.
BLITT AND GAINES, P.C., Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN W. DARRAH U.S. District Court Judge

         On June 30, 2016, Plaintiff filed his Complaint, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”). Specifically, Plaintiff alleges Defendant violated §§ 1692e, 1692e(5), and 1692e(10) of the FDCPA. Defendant subsequently filed its Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons discussed below, the Defendant's Motion to Dismiss [12]is granted.

         BACKGROUND

         Plaintiff Henry Bass (“Bass”) is a resident of the state of Illinois. (Compl. ¶ 5.) Defendant Blitt and Gaines (“Blitt”) operates a delinquent debt collection business; it is an Illinois corporation with its principal place of business in Wheeling, Illinois. (Id. ¶ 6.)

         Bass incurred a debt for goods and services used for personal family or household purposes, originally for a Ford Motor Credit consumer auto loan. (Id. ¶ 10.) Due to Bass's financial circumstances, he was unable to pay the debt, and it went into default. (Id. ¶ 11.) Blitt was subsequently assigned the debt for collection. (Id. ¶ 12.)

         On or about September 29, 2015, Blitt filed a state-court action against Bass in the Circuit Court of Cook County, Case No. 15 M4 5547, for the collection of the debt. (Id. ¶ 13.) Blitt never served Bass in the state-court action and dismissed its case on or about March 9, 2016. (Id. ¶ 14.) Blitt filed a motion to reopen the state-court case.[1] On or about June 16, 2016, Blitt sent Bass a Notice of Hearing, informing him that it would be appearing in court on July 1, 2016. (Id. ¶ 15.) The Notice contained information regarding the debt and included the name of the creditor to whom it was owed. The notice stated, in relevant part:

If you fail to appear on the next court date the court may enter judgment against you for the amount claimed.”

(Id. ¶ 18.) Bass subsequently filed this cause of action on September 30, 2016, alleging violations of the FDCPA. Bass alleges that Blitt made a false threat, in violation of 1692e, 1692e(5) and 1692e(10), when it sent the Notice stating that the state court may enter judgment against Bass, when Blitt had yet to serve the lawsuit on Bass. (Id. ¶ 30.) Bass alleges that as a result of the Notice, he felt he had no choice but to retain an attorney. (Id. ¶ 23.) Bass also alleges that he was afraid of judgment being entered against him and that he suffered nervousness and sleeplessness at the prospect of having to appear in court to avoid judgment. (Id. ¶ 21.)

         Defendant filed the Motion to Dismiss on August 10, 2016, pursuant to Federal Rule of Civil Procedure 12(b)(1).

         LEGAL STANDARD

         In ruling on a motion filed pursuant to Rule 12(b)(1), the Court must “accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Evers v. Astrue, 536 F.3d 651, 656 (7th Cir. 2008) (citation omitted). District courts may, however, “properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id. at 656-57 (citation and quotation omitted). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing the required elements of standing[, ]” including (i) injury in fact; (ii) causation; and (iii) redressability. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003) (citation and quotation omitted). “If standing is challenged as a factual matter, the plaintiff must come forward with ‘competent proof' - that is a showing by a preponderance of the evidence - that standing exists.” Id.

         ANALYSIS

         Bass alleges that Blitt violated §§ 1692e, e(5), and e(10) of the FDCPA by sending a Notice to Bass that stated that the state court may enter judgment against him, when Blitt had yet to serve the lawsuit upon Bass.

         To state a claim under the FDCPA, Bass must allege that: (1) defendant qualifies as a debt collector as defined in § 1692a(6); (2) defendant's actions were related to collection of any debt; and (3) the actions violated one of the FDCPA's substantive provisions. Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 384 (7th Cir. 2010). Blitt does not deny its status as a debt collector under the FDCPA. Rather, Blitt argues that Bass fails to meet the requirements of Article III standing. Specifically, that the notice of motion received by Bass did not cause him an injury-in-fact as there was: (a) no emotional distress beyond the distress inherent in being sued, (b) hiring an attorney because of the statement within the notice does not create an injury-in-fact, (c) allegations regarding ...


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