United States District Court, N.D. Illinois, Eastern Division
L. Ellis Judge
Court denies Defendant Michael C. Kim's motion to dismiss
. See Statement for further details. Kim shall answer the
amended complaint by February 15, 2017.
Marshall Spiegel alleges that Defendant Michael Kim violated
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq., by improperly seeking
to collect attorneys' fees that Spiegel's condominium
association (the “Association”) has incurred in a
lawsuit in Illinois state court (the “State Court
Lawsuit”). Kim moves to dismiss the amended complaint,
arguing that Spiegel has not pleaded enough facts to allege a
claim under the FDCPA. Because Spiegel has alleged enough
facts to state a claim, the Court denies Kim's motion.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
alleges that Kim sent a communication to Spiegel demanding
attorneys' fees on behalf of the Association and that the
Association cannot collect these attorneys' fees from
Spiegel because he is a board member of the Association. To
state a claim under the FDCPA, Spiegel must allege that (1)
Kim qualifies as a “debt collector, ” as defined
in § 1692a(6), (2) Kim acted “in connection with
the collection of any debt, ” and (3) Kim's actions
violated one of the FDCPA's substantive provisions.
Gburek v. Litton Loan Servicing LP, 614 F.3d 380,
384 (7th Cir. 2010). Spiegel alleges that Kim's demand
violated the substantive provisions of the FDCPA in §
1962e(2) by falsely representing “the character,
amount, or legal status of [the] debt, ” or,
alternatively, by falsely representing that Kim could
lawfully recover “any services rendered or compensation
. . . for the collection of a debt, ” 15 U.S.C. §
1692e(2)(A)-(B), and violated § 1962f(1) by attempting
to collect a debt that was not “expressly authorized by
the agreement creating the debt or permitted by law, ”
15 U.S.C. § 1692f(1).
first argues that Spiegel has not sufficiently described how
Kim sent an unlawful communication to Spiegel. To state a
claim for the violation of the FDCPA, fundamentally there
must be “a communication from a debt collector to a
debtor . . . made in connection with the collection of any
debt.” Gburek, 614 F.3d at 382 (internal
quotation marks omitted) (citation omitted). “The term
‘communication' means the conveying of information
regarding a debt directly or indirectly to any person through
any medium.” 15 U.S.C. § 1692a(2). Challenged by
Kim on what the unlawful communication was, Spiegel clarifies
that the State Court Lawsuit's complaint (the
“State Court Complaint”) against Spiegel is the
communication that contains Kim's unlawful demand for
a plaintiff cannot amend a complaint with the brief opposing
the defendant's motion to dismiss, Agnew v. Nat'l
Collegiate Athletic Ass'n, 683 F.3d 328, 348 (7th
Cir. 2012), but a party may “elaborate on his factual
allegations so long as the new elaborations are consistent
with the pleadings.” Geinosky v. City of
Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). In the
amended complaint, Spiegel alleges that Kim sought to collect
attorneys' fees; that Kim represents the Association in
the State Court Lawsuit; that Kim made a demand on behalf of
the Association for attorneys' fees; that Kim is pursuing
the “dispute with Spiegel, ” Doc. 4 ¶ 13;
and that Kim's demand is “litigation conduct,
” id. ¶ 15. Further, Kim tacitly
acknowledges that he knows the State Court Complaint is at
issue, writing before Spiegel's clarification that this
case “involves legal pleadings.” Doc. 14 at 4.
While Spiegel does not explicitly describe the State Court
Complaint in his amended complaint, his allegations are
consistent with its existence, and filing a lawsuit and state
court pleadings can be actionable under the FDCPA. Rehman
v. Pierce & Assocs., P.C., No. 16 C 5178, 2017 WL
131560, at *4 (N.D.Ill. Jan. 13, 2017) (collecting cases).
Therefore, the Court will not dismiss the amended complaint
for failure to allege an actionable communication.
next argues that Spiegel has not alleged who received the
alleged unlawful communication. Spiegel argues that he,
himself, received the allegedly unlawful communication. In
Illinois, plaintiffs typically provide a complaint to a
defendant through personal service. See 735 Ill.
Comp. Stat. 5/2-202 (“Summons may be served upon the
defendants wherever they may be found in the State, by any
person authorized to serve process.”). Again, although
Spiegel did not explicitly state that Kim served Spiegel with
the State Court Complaint, this elaboration is consistent
with his allegations and sufficient to state a claim and
Kim argues that Kim's alleged request for attorneys'
fees cannot support a FDCPA claim. Spiegel alleges that Kim
has “improperly demand[ed] attorneys fees, ” Doc.
4 ¶ 11, in connection with the State Court
Lawsuit-clarifying in his opposition brief that these are
attorneys' fees that related to “his purchase of a
condominium” at the Association, Doc. 19 at 6-and that
these fees were not authorized by his contract with the
condominium or otherwise by law. An attempt to collect
attorneys' fees can support an FDCPA claim under §
1962e and § 1962f. See Strange v. Wexler, 796
F.Supp. 1117, 1120 (N.D.Ill. 1992) (finding debt collector
violated § 1962e by demanding attorneys' fees to
which he was not entitled); Brooks v. Auto Sales &
Servs., Inc., No. IP 00-1467-C-M/S, 2001 WL 686950, at
*6 (S.D. Ind. June 15, 2001) (finding allegation that demand
for excessive attorneys' fees stated a claim for
violation of §§ 1962e(2)(B) and 1962f(1)).
Discovery will illuminate whether Spiegel can succeed on his
claim that the attorneys' fees demand in the State Court
Complaint violated the FDCPA.
foregoing reasons, the Court denies Kim's motion to
dismiss . Kim shall answer the amended complaint by
February 15, 2017.
 The facts recited in this section are
taken from Spiegel's amended complaint and are presumed
true for the purpose of resolving Kim's motion to
dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212
(7th Cir. 2011); Local 15, Int'l Bhd. of Elec.