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Simon v. Fair Collections & Outsourcing, Inc.

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

November 22, 2016

AMY SIMON, individually and on behalf of others similarly situated, Plaintiffs,


          Ruben Castillo Chief Judge United States District Court

         Amy Simon ("Plaintiff) brings this action against Fair Collections & Outsourcing, Inc. ("FCO"), and CPF Mondial, LLC ("CPF Mondial, " collectively "Defendants"). Plaintiff alleges that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), when they contacted her family and misrepresented their identity when attempting to collect a debt. CPF Mondial moves to dismiss Plaintiffs claim against it pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 14, Mot. to Dismiss.) For the reasons stated below, the Court grants CPF Mondial's motion.


         On April 4, 2014, Plaintiff entered into a one-year lease agreement for an apartment located in Chicago, Illinois, with the building's owner, CPF Mondial. (R. 13-3, Ex. 3 to Am. Compl., Lease.) The following year, Plaintiff allegedly incurred a debt to CPF Mondial and several efforts were made in an attempt to collect this debt. (R. 13, Am. Compl.) On April 20, 2015, an employee of debt collector FCO called Plaintiffs parents claiming she owed a debt. (Id. ¶ 11.) On May 15, 2015, Plaintiff mailed a letter to FCO demanding that it verify the debt she owed, stating that she would need 30 days to investigate any claim, demanding that all collection activity cease during this investigation period, and requesting that FCO only communicate with her in writing. (Id. ¶ 13; see also R. 13-1, Ex. 1 to Am. Compl., Letter.) Despite Plaintiffs requests, on May 28, 2015, FCO called Plaintiff regarding the alleged debt. (R, 13, Am. Compl. ¶ 12.) Plaintiff also claims that between August 12 and August 16, 2014, FCO called her sister four times regarding the debt. (Id. ¶ 18.) FCO eventually sent a verification of debt form to Plaintiff. (Id. ¶ 14.) The verification of debt form lists FCO as the "Debt Collector, " "Mondial River West" as the "Creditor, " and the account balance as $850.30. (Id. ¶ 15; see also R. 13-2, Ex, 2 to Am. Compl., Verification of Debt Form.) Plaintiff claims that while Mondial River West is listed as the creditor on the verification of debt form, that name is not included anywhere in her lease. (R. 13, Am. Compl. ¶ 17.)

         The above series of events has spurred at least two separate class-action lawsuits filed by Plaintiff. On April 10, 2015, Plaintiff filed a lawsuit in the Circuit Court of Cook County against CPF Mondial and Lincoln Property Company ("Lincoln"). Simon v. CPF Mondial, LLC, 2015-CH-06070 (Cook Cty. Cir. Ct. filed Apr. 10, 2015). In the original lawsuit, Plaintiff alleges that CPF Mondial and Lincoln violated the City of Chicago Residential Landlord and Tenant Ordinance ("RLTO"), § 5-12-010 et seq. (R 26-3, Ex. C to Reply, Am. Answer ¶¶ 26-31.) Plaintiff alleged that Lincoln "is a property management and real estate brokerage services company and an agent of CPF Mondial." (Id., ¶ 4.) In response, CPF Mondial and Lincoln brought a counterclaim against Plaintiff claiming that she owed $850.30 and that she violated the RLTO by failing to pay rent, parking charges, and utility bills. (R. 13-4, Ex. 4 to Am. Compl., Countercl. ¶¶ 3, 7.) That lawsuit is currently pending in Cook County.

         On April 18, 2016, Plaintiff filed a second class-action lawsuit against Defendants in the Circuit Court of Cook County alleging that they violated the FDCPA. (R. 1-2, Ex. A to Notice of Removal, Compl. ¶ 1.) Defendants removed the action to this Court. (R. 1, Notice of Removal.) This Court dismissed Plaintiffs complaint and gave leave for her to file an amended complaint. (R. 5, Minute Entry). Plaintiff filed her amended complaint on August 5, 2016. (R. 13, Am. Compl.) She alleges that both CPF Mondial and FCO are debt collectors "as defined by the FDCPA." (Id. ¶¶ 5, 7.) Plaintiff claims that FCO violated the FDCPA by continuing to contact Plaintiff after she had disputed the debt, by not verifying the debt in a timely fashion, and by failing to identify the owner of the alleged debt. (Id. ¶ 33.) As to CPF Mondial, Plaintiff alleges that it "regularly uses a name that is not its own, 'Mondial River West, ' in the process of collecting its debts, " and that CPF Mondial "violated the FDCPA by failing to identify the current creditor or owner of the alleged debt as part of its collection activities." (Id. ¶¶ 4, 26(g), 33(a).) Plaintiff also alleges that "Mondial River West continued its collection attempts into March 2016" by asserting its counterclaim "for $850.30 through CPF Mondial. .. and Lincoln .. . in the lawsuit 2015-CH-060670 pending in the Circuit Court of Cook County, Illinois." (Id. ¶ 19.)

         CPF Mondial now moves to dismiss the FDCPA claim under Federal Rule of Civil Procedure 12(b)(6). (R. 14, Mot. to Dismiss.) On September 27, 2016, Plaintiff responded, and CPF Mondial replied on October 18, 2016. (R. 25, Resp.; R. 26, Reply.)


         To survive a motion to dismiss, a complaint must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A Rule 12(b)(6) motion challenges the "viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Firestone Fin, Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015). In deciding a Rule 12(b)(6) motion, the Court must "construe it in the light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in [the party's] favor." Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016) (citation omitted). "To survive a motion to dismiss under Rule 12(b)(6), plaintiffs complaint must allege facts which, when taken as true, plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level." Cochran v. Ill. State Toll Highway Authority, 828 F, 3d 597, 599 (7th Cir. 2016) (internal quotation marks and citation omitted), "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The Court can consider "allegations set forth in the complaint itself, documents that are attached to the complaint, documents that are central to the complaint and are referred to in it, and information that is properly subject to judicial notice." Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).[1]


         I. Whether CPF Mondial Is a Debt Collector Under FDCPA

         CPF Mondial argues that Plaintiffs FDCPA claim fails because CPF Mondial is not a "debt collector" as defined by the FDCPA. (R. 15, Mem. at 4-8.) In response, Plaintiff argues that CPF Mondial is a lessor and lessors should be required to "comply with the FDCPA in the collection of debts." (R. 25, Resp. at 1-2.)

         The central purpose of the FDCPA is to protect against abusive debt collection practices by debt collectors. 15 U.S.C. § 1692(e); Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000). For the FDCPA to apply, the defendant must qualify as a "debt collector." Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 384 (7th Cir. 2010). The FDCPA defines a "debt collector" as "any person who .. . regularly collects or attempts to collect, . directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6), Individuals who do not meet the statutory definition of "debt collector" cannot be held liable under the FDCPA. Pettit, 211 F.3d at 1059. In addition, "[c]reditors who are attempting to collect their own debts generally are not considered debt collectors under the statute." Nielsen v. Dickerson, 307 F.3d 623, 634 (7th Cir. 2002).

         Plaintiff argues that CPF Mondial is a debt collector under the FDCPA because it was her landlord and was attempting to collect a debt owed is not persuasive. (R. 25, Resp. at 1 -2.) Under the FCP A, a creditor is "any person who offers or extends credit creating a debt or to whom a . debt is owed[.]" 15 U.S.C. § 1692a(4). The lease agreement explicitly states that the contract is between the resident, Plaintiff, and the owner, CPF Mondial. (R. 13-3, Ex. C to Am. Compl., Lease.) Any rent, fees, or debt owed by Plaintiff were due directly to CPF Mondial. Therefore, CPF Mondial is a creditor not a debt collector and "[a]n entity that tries to collect money owed to itself is outside the FDCPA." Carter v. AMC, LLC,645 F.3d 840, 842 (7th Cir. 201.1); see also Ruth v. Triumph ...

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