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Nunez v. Mandarich Law Group, LLP

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

October 19, 2017

MARCO NUNEZ, Plaintiff,


          Robert W. Gettleman United States District Judge.

         Plaintiff Marco Nunez filed a second amended complaint against defendants Mandarich Law Group (“Mandarich”) and John C. Bonewicz (“Bonewicz”) alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq, and the Illinois Collection Agency Act (“ICAA”), 225 ILCS 425/2. Defendants have moved to dismiss the second amended complaint in its entirety under Rule 12(b)(6), arguing that plaintiff's claims are time-barred. For the reasons described below, defendants' motion is granted.


         Plaintiff allegedly defaulted on a debt that he owed to Citifinancial. A company called CACH LLC, presumably a debt collection agency, purchased plaintiff's alleged debt and assigned that debt for collection to Bonewicz, an attorney who, through his firm, John C. Bonewicz, P.C., initiated a law suit against plaintiff in the Circuit Court of Cook County at some point in 2015. On November 9, 2015, Bonewicz sent plaintiff a letter on behalf of CACH regarding a potential stipulation to dismiss the lawsuit. Attached to the letter was a proposed stipulation to dismiss with leave to reinstate. The letter directed plaintiff to sign the stipulation if he agreed to the terms, which the parties had apparently discussed previously. Plaintiff alleges that the letter violated the FDCPA because in it Bonewicz attempted to collect costs that plaintiff did not owe. Specifically, the letter states that the parties agreed to the following:

A. That Defendant, Marco A Nunez, admits that he owes $7, 751.59 plus costs.
B. That Defendant and Plaintiff agree to enter into settlement, wherein Defendant agrees to pay the sum of $8, 060.59 plus costs.

         Doc. 52, Exh. B

         In the following paragraphs, the proposed stipulation to dismiss repeats each of these differing figures one time. According to plaintiff, the larger figure includes fees, and the letter violates the FDCPA by attempting to collect them. Additionally, plaintiff argues that the letter violates the FDCPA because the proposed stipulation to dismiss further states, “[t]hat should Defendant default on this agreement; Plaintiff shall be entitled to judgment in the amount of $7, 751.59, minus any credits for payments, plus costs.” Id. The accompanying letter violates the FDCPA, plaintiff argues, because it does not state that plaintiff would be agreeing to a judgment (in the event of a default) by signing the proposed stipulation to dismiss.[2] Plaintiff's first two complaints named CACH, LLC and Square2 Financial as defendants. The second amended complaint named as defendants, for the first time, John C. Bonewicz and Mandarich Law Group, LLP. Defendants argue that the second amended complaint should be dismissed as time-barred.


         I. Legal Standard

         A motion brought under Rule 12(b)(6) challenges the sufficiency of the complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). 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). Though short and plain, the pleading must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which the claim rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must plausibly suggest that the plaintiff has a right to relief, raising the possibility above the “speculative level.” Id.

         This standard demands that a complaint contain sufficient factual matter to state a claim that is plausible on its face and allege more than legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. When ruling on a Rule 12(b)(6) motion to dismiss, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004).

         II. Analysis

         Claims alleging liability under the FDCPA must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The letter that plaintiff alleges violates the FDCPA was sent on November 9, 2015.[3] Plaintiff filed the instant case on February 4, 2016. Although the case was filed well within the one year statute of limitations, defendants were not named until plaintiff filed his second amended complaint on May 2, 2017. According to defendants, this delay defeats plaintiff's claim. Plaintiff attempts to overcome this ...

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