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Bruner v. Allianceone Receivables Management, Inc.

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

February 28, 2017



          John Z. Lee, Judge

         Plaintiff Teresa Bruner (“Bruner”) brought this action against Defendant AllianceOne Receivables Management, Inc. (“AllianceOne”). She challenges certain actions AllianceOne took to collect a debt from her under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 Ill. Comp. Stat. 505/1 et seq. AllianceOne has moved to dismiss part of Bruner's First Amended Complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). For the reasons that follow, AllianceOne's motion to dismiss [30] is granted in part and denied in part.


         In 2006, Bruner took out a residential mortgage from CitiMortgage, Inc. that she was unable to pay back. Am. Compl. ¶ 11, ECF No. 29. She filed for bankruptcy in 2008, which resulted in discharge of her debt on the mortgage loan. Id. ¶¶ 12, 15. The order discharging her debt on the loan “prohibits any attempt to collect from the debtor a debt that has been discharged. For example, a creditor is not permitted to contact a debtor by mail, phone, or otherwise . . ., or take any other action to collect a discharged debt from the debtor.” Id., Ex. C.[1] Thus, Bruner is no longer personally liable for the debt on her mortgage loan. Am. Compl. ¶ 18.

         In 2015, AllianceOne acquired servicing rights to the debt. Id. ¶ 20. Then, purportedly acting with knowledge of her bankruptcy, AllianceOne sent a dunning letter to Bruner regarding the debt on September 18, 2015. Id. ¶¶ 23-24. The letter explained that AllianceOne was attempting to collect the debt and that “any information obtained [would] be used for that purpose.” Id., Ex. D. In addition to sending the letter, AllianceOne allegedly made at least eleven phone calls to Bruner's cell phone using various phone numbers over a six-week period.[2] Id. ¶¶ 27-28. Bruner felt harassed by AllianceOne's actions and was concerned and confused about her rights post-bankruptcy. Id. ¶¶ 29, 31-32. She therefore consulted with counsel “to ensure that Defendant's collection efforts ceased.” Id. ¶ 29. This lawsuit soon followed.

         Legal Standard

         To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, when considering motions to dismiss, the Court accepts “all well-pleaded factual allegations as true and view[s] them in the light most favorable to the plaintiff.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013) (citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013)). At the same time, “allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 678). As such, “[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.


         I. Count I: FDCPA

         In Count I, Bruner alleges that AllianceOne has violated three different provisions of the FDCPA: 15 U.S.C. §§ 1692d, 1692e, and 1692f. AllianceOne does not challenge Bruner's claim under § 1692e.

         A. Section 1692d

         AllianceOne first challenges Bruner's claim under § 1692d. Under this provision, “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. Bruner alleges that AllianceOne's dunning letter and “relentless[]” calls harassed, oppressed, and abused her. Am. Compl. ¶ 41. To that end, Bruner focuses on one particular type of conduct specified in the statute:

         “Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5).

         AllianceOne argues that Bruner's allegations of a single letter and at least eleven calls to her cell phone over a span of six weeks do not amount to a violation of § 1692d as a matter of law. Mot. Dismiss 4, ECF No. 30. As an initial matter, AllianceOne contends that sending a single collection letter that is not threatening or profane cannot constitute a violation of § 1692d. Id. at 4-5. Bruner does not dispute this point in her response, and courts have generally held that sending a single collection letter in this fashion cannot ...

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