United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN DISTRICT JUDGE.
matter is before the court on Defendant Hoyne Savings
Bank's (Hoyne) motion to dismiss. For the following
reasons, Hoyne's motion is granted.
7, 2012, Plaintiff Asif Waheed (Waheed) allegedly filed a
bankruptcy petition that included debt. On August 22, 2012,
Waheed alleges that he discharged the debt. Waheed alleges
that as of September 2016, Hoyne provides false information
regarding the debt. On December 17, 2016, Waheed filed the
complaint in this action alleging a claim under 15 U.S.C.
§1692e of the Fair Debt Collection Practices Act
(FDCPA)(Claim I), and a claim under 15 U.S.C. § 1692e(8)
of the FDCPA (Claim II). Hoyne moves to dismiss the complaint
pursuant to the Federal Rule of Civil Procedure 12(b)(6)(Rule
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court must draw all reasonable inferences that
favor the plaintiff, construe the allegations of the
complaint in the light most favorable to the plaintiff, and
accept as true all well-pleaded facts and allegations in the
complaint. Appert v. Morgan Stanley Dean Witter,
Inc., 673 F.3d 609, 622 (7th Cir. 2012);
Thompson v. Ill. Dep't of Prof'l Regulation,
300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to
include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising
that possibility above a ‘speculative level'”
and “if they do not, the plaintiff pleads itself out of
court.” E.E.O.C. v. Concentra Health Services,
Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965
(2007)); see also Morgan Stanley Dean Witter, Inc.,
673 F.3d at 622 (stating that “[t]o survive a motion to
dismiss, the complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face, ” and that “[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”)(quoting Ashcroft v. Iqbal, 556 U.S.
662 (2009))(internal quotations omitted).
Whether Hoyne is a Debt Collector Under the FDCPA
argues that Waheed's complaint fails to sufficiently
state that Hoyne is a debt collector and thus covered by the
FDCPA. The “primary goal of the FDCPA is to protect
consumers from abusive, deceptive, and unfair debt collection
practices.” Jenkins v. Heintz, 124 F.3d 824,
828 (7th Cir.1997) (internal quotation marks omitted). The
FDCPA prohibits a debt collector from using “any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e; Wahl v. Midland Credit Mgmt., Inc.,
556 F.3d 643, 645-46 (7th Cir. 2009). The FDCPA defines a
“debt collector” as “any person who uses
any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection
of any debts, or 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). Under the FDCPA, a “debt collector”
includes any person who: “uses an instrumentality of
interstate commerce or the mails in “any business the
principal purpose of which is the collection of any debts . .
.or regularly collects or attempts to collect. . . debts owed
or due asserted to be owed or due another.”
McKinney v. Cadleway Properties, Inc., 548 F.3d 496,
500 (7th Cir. 2008).
argues that Waheed fails to include any information regarding
Hoyne's status as an alleged “debt
collector.” Waheed argues that Hoyne “does not
deny that the debt was originally owed to Bank of America . .
. .” (Def. Mot. Pg. 4). Hoyne is not obligated to plead
defenses to facts not alleged in the complaint. Waheed's
failure to include that information in the complaint is
indicative of the failure to provide sufficient notice to
enable Hoyne to defend the allegations. Viewing the entirety
of the allegations in a light most favorable to Waheed, the
complaint fails to allege sufficient facts to suggest that
Hoyne is a debt collector. Therefore, the court finds that
Waheed fails to allege sufficient facts stating a plausible
claim for relief under the FDCPA.
Other Alleged Claims
also argues that Waheed's conclusory, vague, and
confusing allegations of false representations, without any
additional details, fails to give Hoyne notice of other FDCPA
or Fair Credit Reporting Act (FCRA) violations. In the
opening line of the complaint, Waheed alleges a violation of
the FDCPA and also a violation the FCRA, 15 U.S.C. §
1681. Waheed fails to include any additional information,
claims, or counts discussing a potential FCRA violation.
Waheed has also failed to include any allegations regarding
how the alleged debt is misrepresented, false, or in
violation of the FDCPA. Therefore, To the extent Waheed
alleges a violation of the FCRA or other violations of the
FDCPA, those claims are dismissed with prejudice.
on the foregoing analysis, Hoyne's motion to ...