United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JORGE L. ALONSO UNITED STATES DISTRICT JUDGE.
Crissandra Gordon, brings this case under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq, against defendant Syndicated
Office Systems, LLC, a debt collector. Defendant moves to
dismiss. For the following reasons, the motion is granted.
complaint, plaintiff alleges that defendant, a “debt
collector” as the phrase is defined by the FDCPA,
see 15 U.S.C. § 1692(a)(6), “began
collection activities on an alleged consumer debt”
attributed to plaintiff. (Compl. ¶¶ 4, 8.)
Defendant reported the debt to credit reporting agencies, and
it appeared on plaintiff's credit report. (Id.
¶ 11.) On July 27, 2015, plaintiff sent a letter
“directly” to defendant to dispute the debt.
(Id. ¶ 12.) On October 2, 2015, plaintiff
examined her credit report again and found that
“Defendant had not removed the credit account nor
marked it as ‘disputed by consumer.'”
(Id. ¶ 13.)
motion under Rule 12(b)(6) tests whether the complaint states
a claim on which relief may be granted.” Richards
v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under
Rule 8(a)(2), a complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short
and plain statement under Rule 8(a)(2) must “give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted).
federal notice-pleading standards, a complaint's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. Stated differently,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “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.”
Id. (citing Twombly, 550 U.S. at 556).
“In reviewing the sufficiency of a complaint under the
plausibility standard, [courts must] accept the well-pleaded
facts in the complaint as true, but [they] ‘need[ ] not
accept as true legal conclusions, or threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements.'” Alam v. Miller Brewing
Co., 709 F.3d 662, 665-66 (7th Cir. 2013) (quoting
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)).
FDCPA was enacted “to eliminate abusive debt collection
practices, to ensure that debt collectors who abstain from
such practices are not competitively disadvantaged, and to
promote consistent state action to protect consumers.”
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich
LPA, 559 U.S. 573, 577 (2010) (citing 15 U.S.C. §
1692(e)). Under the FDCPA, “[a] debt collector may not
use any false, deceptive, or misleading representation or
means.” 15 U.S.C. § 1692e. In particular, 15
U.S.C. § 1692e(8) prohibits “[c]ommunicating or
threatening to communicate to any person credit information
which is known or which should be known to be false,
including the failure to communicate that a disputed debt is
argues that plaintiff fails to state a claim for violation of
section 1692e(8) because “there is no affirmative
obligation under the FDCPA for a debt collector, after
becoming aware of a dispute, to update the information”
that it may have already reported to a credit reporting
agency. (Mem. Supp. Def's Mot. to Dismiss, at 5, ECF No.
14.) The vast weight of authority is on defendant's side.
See Wilhelm v. Credico, Inc., 519 F.3d 416, 418 (8th
Cir.2008); Rogers v. Overton, Russell, Doerr &
Donovan, LLP, No. 1:16-CV-00784, 2017 WL 570811, at *2-3
(N.D.N.Y. Feb. 13, 2017) (“overwhelming weight of
authority” rejects “affirmative post-reporting
duty to communicate a dispute that arises after the debt has
been reported”); Rogers v. Virtuoso Sourcing Grp.,
LLC, No. 1:12-CV-01511-JMS, 2013 WL 772865, at *2-3
(S.D. Ind. Feb. 28, 2013) (citing cases for same
proposition); Wells v. Deca Fin. Servs.,
LLC, No. 1:12-CV-01514-JMS, 2013 WL 772870, at *3
(S.D. Ind. Feb. 28, 2013) (same). In Wilhelm, the
leading federal appellate court case on this issue, the
Eighth Circuit reasoned as follows:
[Plaintiff] assert[s] that § 1692e(8) imposed an
affirmative duty on [debt collectors] to disclose that he had
disputed the debt. He cites no case supporting this
contention, and we reject it. Section 1692e generally
prohibits “false, deceptive, or misleading
representation.” Subsection 1692e(8) applies to the
“communicating” of “credit
information.” “Communication” is defined as
“the conveying of information regarding a debt directly
or indirectly to any person through any medium.” §
1692a(2). Reading these provisions together, as we must, the
relevance of the portion of § 1692e(8) on which Wilhelm
relies- “including the failure to communicate that a
disputed debt is disputed”-is rooted in the basic fraud
law principle that, if a debt collector elects to communicate
“credit information” about a consumer, it must
not omit a piece of information that is always material,
namely, that the consumer has disputed a particular debt.
This interpretation is confirmed by the relevant part of the
Federal Trade Commission's December 1988 Staff Commentary
on the Fair Debt Collection Practices Act:
1. Disputed debt. If a debt collector knows that a debt is
disputed by the consumer . . . and reports it to a credit
bureau, he must report it as disputed.
2. Post-report dispute. When a debt collector learns of a
dispute after reporting the debt to a credit bureau, the
dispute need not also be reported.
F.3d at 418 (citing FTC Staff Commentary, 53 Fed.Reg.
50097-02, 50106 (Dec. 13, 1988)).This reasoning is
persuasive, and plaintiff has provided no compelling reason
to deviate from it.
support of her position that 1692e(8) “does not permit
inaction on the part of the debt collector when it knows that
a debt is in fact disputed” (Pl.'s Mem. Opp. Mot.
to Dismiss, at 5, ECF No. 17), plaintiff has cited three
cases: Ryan v. Wexler & Wexler, 113 F.3d 91, 92
(7th Cir.1997); Acosta v. Campbell, No. 6:04cv761,
2006 WL 3804729, at *7 (M.D. Fla. Dec. 22, 2006),
aff'd, 309 F. App'x 315 (11th Cir. 2009);
Semper v. JBC Legal Grp., No. C04-2240L, 2005 WL