United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge
Kate Koval alleges that Defendant Harris & Harris, Ltd.
(“Harris”) made several misrepresentations in a
debt collection letter. Harris moved to dismiss on the
grounds that Koval lacked standing and that her complaint
failed to state a claim under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692e.
For the reasons that follow, the motion to dismiss is denied.
purposes of this motion, the Court accepts as true all
well-pleaded facts in the complaint. Kate Koval is the legal
guardian of her disabled father, Michael Koval. Compl. ¶
6. She alleges that she incurred a debt for consumer medical
services at the MSRIC Rehab Institute of Chicago
(“MSRIC”), which she could not afford to pay.
Id. at ¶ 12-13. Although Koval alleges Harris
sent the relevant letter “directly to” her, the
December 28, 2015 letter is addressed to Michael Koval.
Compare Compl. ¶ 26, Compl. Ex. F. Koval
clarifies in her response that she has the authority to
“open and read” her father's letters as well
as “the responsibility to make decisions on his behalf
based on what is in the letters.” Pl.'s Resp. at 5,
EC No. 21.
Harris's letter contained several statements to which
Koval objects. First, the letter stated that “[i]f this
debt is not paid, our client may exercise various options to
enforce collections.” Compl. ¶ 18. Based on this
statement, Koval believed Harris's client was considering
a lawsuit. Id. at ¶ 20. Harris and MSRIC,
however, did not intend to sue her and had never sued a
consumer in Cook County (where MSRIC is located).
Id. at ¶ 21-22.
the letter provided instructions on how to authorize an
electronic payment and further provided that the consumer
“may cancel this Authorization by calling us at
(866)850-4915 at least three business days before you wish
the cancellation to be effective.” Id. at
¶¶ 28, 33. Koval further alleges that a consumer
can in fact cancel a payment authorization in writing or by
phone and that Harris accepts written cancellations.
Id. at ¶¶ 38, 50. Koval filed this lawsuit
on August 30, 2016, alleging that both statements in the
letter represented that Harris would take actions that
neither Harris nor its client intended to take and were
therefore misleading. Harris has moved to dismiss.
maintains that Koval lacks standing to sue in her individual
capacity and that none of the statements in the letter
violate the FDCPA.
first alleges that Koval lacks standing to sue in her
individual capacity and must sue in her representative
capacity as guardian of her father. Koval has been required
to amend her complaints to state she is suing in her
representative capacity in two FDCPA suits brought under
§ 1692g. See Def.'s Mem. at 1, ECF No. 18;
Koval v. Hodges & Davis, P.C., No. 16-CV-05659,
Dkt. 20 at 4 (granting motion to dismiss and granting leave
to amend to allege suit in a representative capacity). That
provision is expressly limited to communications with
consumers, however. This case, by contrast, is brought under
§ 1692e, which contains no similar limitation. Courts
have “taken a section-by-section approach to standing
under the FDCPA.” Barasch v. Estate Info. Servs.,
LLC, No. 07-CV-1693 NGG/MDG, 2009 WL 2900261, at *2
(E.D.N.Y. Sept. 3, 2009). See Todd v. Collecto,
Inc., 731 F.3d 734, 738 (7th Cir. 2013) (“each
provision of the FDCPA must be analyzed individually to
determine who falls within the scope of its protection and
thus to decide ‘with respect to' whom the provision
can be violated”). A plaintiff who lacks standing under
one provision of the FDCPA may well have standing under
“only a person within a statutory provision's
‘zone of interest' has standing to sue under
it.” Todd, 731 F.3d at 736. The protections of
the FDCPA generally do not extend to third parties, unless
that person “can be said to stand in the consumer's
shoes.” O'Rourke v. Palisades Acquisition XVI,
LLC, 635 F.3d 938, 943 (7th Cir. 2011). The Seventh
Circuit has cautioned against reading
O'Rourke's limitation too broadly, noting
that the FDCPA protects the “family, employer and
neighbors of the consumer.” Todd, 731 F.3d at
737. Protecting close associates, moreover, is consistent
with the statute's own definition of “consumer,
” which includes “the consumer's spouse,
parent (if the consumer is a minor), guardian, executor, or
administrator.” 15 U.S.C. § 1692c(d). Formal
guardian or not, a daughter who provides daily care for a
disabled parent fits comfortably within the same zone.
relevant section here states that “[a] debt collector
may not use any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e. This section does
not explicitly limit itself to consumers. Like § 1692d,
which prohibits harassment, there is no reason to think that
a guardian child is beyond the zone of interest for this
provision. See Todd, 731 F.3d at 738 (noting that
any person is protected from harassment under § 1692d).
A person who is not the consumer could similar be tricked by
a deceptive letter into paying (or convincing the consumer to
pay) a debt. Other courts have similarly held that family
members have standing under § 1692e. See Montgomery
v. Huntington Bank, 346 F.3d 693, 697 (6th Cir. 2003).
while it is doubtless true that Koval could sue in her
representative capacity as a guardian (and thus invoking
standing as a “consumer” under §1692c(d)),
she does not have to do so. A close family member who
receives a misleading communication attempting to collect a
debt may sue in her individual capacity under § 1692e.