United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L.ELLIS, United States District Judge
Anita Lauber filed this suit against Defendants Lawrence
& Morris and Nathaniel David Lawrence after they brought
her to state court seeking to collect on a delinquent
consumer debt. Lauber claims that the citation to discover
assets she received violated § 1692e and § 1692f of
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq. Defendants move to
dismiss Lauber's first amended complaint and seek
sanctions for its filing pursuant to 28 U.S.C. § 1927.
Defendants argue that the allegedly misleading statement in
the citation's caption is substantially similar to the
captions recommended for use in other Illinois counties and
sanctioned by Illinois statute such that no deception can be
found. The Court agrees that Lauber has failed to
sufficiently allege that the language Defendants used was
material or would have a practical impact on a consumer's
decision making process, which bars Lauber's § 1692e
claim. The Court also dismisses Lauber's § 1692f
claim because that section does not apply to legislatively
and judicially sanctioned actions, like the citation at issue
here. Although the Court thus grants Defendants' motion
to dismiss, it is not appropriate to impose sanctions on
Lauber because her actions have not multiplied the
proceedings unreasonably and vexatiously.
& Morris, a law firm, and its principal, Lawrence, engage
in the business of collecting consumer debts. On behalf of
Bradford & Gordon, LLC, they sought to collect a
delinquent consumer debt Lauber allegedly owed Bradford &
Gordon, LLC for legal services. Defendants filed a complaint
to collect the debt on September 2, 2015 in the Circuit Court
of Cook County. On September 7, 2016, the state court entered
a judgment against Lauber in the amount of $4, 913.36. On
September 30, 2016, Defendants filed the citation at issue,
seeking to determine Lauber's assets at a citation
hearing, and mailed it to Lauber. The citation commanded
Lauber's presence at the courthouse at a specific date
and time. Defendants included the following statement in the
case caption: “YOUR FAILURE TO APPEAR AT THIS
HEARING MAY RESULT IN YOUR ARREST.” Doc. 1-1 at
26. On March 17, 2017, the judge presiding over the citation
proceeding entered an order continuing the citation hearing,
noting that the hearing had been “properly filed and
[was] conforming with 2-1402.” Doc. 18-4 at 2.
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.
under 28 U.S.C. § 1927 apply to “attorney[s] or
other person[s] admitted to conduct cases in any court . . .
who so multipl[y] the proceedings in any case unreasonably
and vexatiously[.]” The Seventh Circuit has interpreted
the term vexatious to mean subjective or objective bad faith.
Kotsilieris v. Chalmers, 966 F.2d 1181, 1184 (7th
Cir. 1992) (citing Ordower v. Feldman, 826 F.2d
1569, 1574 (7th Cir. 1987) (noting that “intentional
ill will or reckless conduct constitutes vexatious
conduct”)). Sanctions are justified where an attorney
presses a claim “without a plausible legal or factual
basis and lacking in justification, ” Pac. Dunlop
Holdings, Inc. v. Barosh, 22 F.3d 113, 119 (7th Cir.
1994) (quoting Walter v. Fiorenzo, 840 F.2d 427, 433
(7th Cir. 1988)), or “pursue[s] a path that a
reasonably careful attorney would have known, after
appropriate inquiry, to be unsound.” Kapco Mfg. Co.
v. C & O Enters., Inc., 886 F.2d 1485, 1491 (7th
Cir. 1989) (quoting In re TCI, 769 F.2d 441, 445
(7th Cir. 1985)).
Motion to Dismiss
seek to dismiss Lauber's first amended complaint against
them, claiming that they did not commit any alleged FDCPA
violations when using language similar to that sanctioned by
Illinois statute, 735 Ill. Comp. Stat. 5/2-1402, and indeed
used by two other Illinois county courts, when sending the
citation to Lauber. Defendants chose to use a form case
caption approved by the McHenry and St. Clair County courts
for citations to discover assets in preparing the citation
served on Lauber. Compare Doc. 1-1 at 26 (citation
served on Lauber), with 22nd Judicial Cir. Ct. R.
15.01 (McHenry County rule for citations to discover assets);
Doc. 18-3 (St. Clair County form citation to discover
assets). Lauber alleges that the citation she received
violated the FDCPA because the statement in the caption
indicating that her failure to appear may result in arrest
did not adequately define the four steps that must occur
before she could be arrested for not appearing at the
required citation hearing. Specifically, Lauber alleges the
caption on the citation was a false or misleading
representation in violation of § 1692e, which states
“[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. Lauber
also claims that the caption to the citation violates 15
U.S.C. § 1692f, in which “[a] debt collector may
not use unfair or unconscionable means to collect or attempt
to collect any debt.” Defendants may use Lauber's
pleadings to demonstrate that she is not entitled to relief.
McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir.
Section § 1692e
Seventh Circuit has defined three categories of cases
alleging deceptive or misleading statements:
(1) cases involving statements that plainly, on their face,
are not misleading or deceptive; (2) cases involving
statements that are not plainly misleading or deceptive but
might possibly mislead or deceive the unsophisticated
consumer, for which plaintiffs must produce extrinsic
evidence to prove that unsophisticated consumers find the
statements to be so; and (3) communications which are plainly
deceptive and misleading to an unsophisticated consumer as a
matter of law.
Marquez v. Weinstein, Pinson & Riley, P.S., 836
F.3d 808, 814-15 (7th Cir. 2016) (quoting Ruth v. Triumph
P'ships, 577 F.3d 790, 800 (7th Cir. 2009)).
Typically, determining whether a communication is misleading
is a question of fact that the Court cannot determine at the
motion to dismiss stage. Walker v. Nat'l Recovery,
Inc., 200 F.3d 500, 501 (7th Cir. 1999). But if the
Court can determine from the face of the document in question
that “not even a significant fraction of the population
would be misled by it . . . the court should reject it
without requiring evidence beyond the letter itself.”
Taylor v. Cavalry Inv., L.L.C., 365 F.3d 572, 574-75
(7th Cir. 2004) (citation omitted) (internal quotation marks
omitted). Thus, if the statement in question is