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Richardson v. LVNV Funding, LLC

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

October 31, 2017

RANDY RICHARDSON, Plaintiff,
v.
LVNV FUNDING, LLC, and FIRST NATIONAL COLLECTION BUREAU, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN J. THARP, JR. UNITED STATES DISTRICT JUDGE.

         This case involves an attempt to collect on a time-barred debt. Plaintiff Randy Richardson alleges that Defendants LVNV Funding, LLC (“LVNV”) and First National Collection Bureau, Inc. (“First National”) violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by sending him a dunning letter that was designed to deceive him into paying off part of a debt, even though he was no longer legally required to pay any of it. The defendants have filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Richardson's one-count complaint fails as a matter of law because he cannot establish that the dunning letter is misleading, let alone materially so. The dispute here centers on whether the letter conveys the impression that LVNV (the purchaser of the debt) had merely chosen not to sue Richardson, instead of stating that LVNV was barred from doing so under the applicable statute of limitations. Because the Court finds that this is a question of fact that cannot be resolved at this stage of the litigation, the defendants' motion to dismiss is denied.

         BACKGROUND

         The allegations in the complaint are straightforward.[1] Sometime ago, Richardson incurred a debt on his HSBC Bank USA (“HSBC”) consumer credit account that he could not repay. (Compl. ¶¶ 14-15, ECF No. 1.) After it went into default, LVNV purchased the debt and assigned it to First National for collection. (Id. ¶¶ 15-17.) First National mailed Richardson a dunning letter on or about July 23, 2016, offering terms for the repayment of his debt. (Id. ¶ 18, Ex. E.) As of the date of the letter, however, Richardson's debt was time-barred. (Id. ¶ 22.) The dunning letter reads, in pertinent part, as follows:

Our client LVNV Funding LLC is offering you a discounted offer of $1, 071.42 in 6 payments over 6 months starting on 08/20/2016. (28 days)
Once payments totaling $1, 071.42 have been paid to our office on time, we will consider this account satisfied in full.
Payments may not be made more than 30 days apart or this discounted offer may be cancelled.
. . .
The law limits how long you can be sued on a debt. Because of the age of your debt, LVNV Funding LLC will not sue you for it, and LVNV Funding LLC will not report it to any credit reporting agency.
In many circumstances, you can renew the debt and start the time period for filing of a lawsuit against you if you take specific actions such as making certain payment on the debt or making a written promise to pay. You should determine the effect of any actions you make take with respect to this debt.

(Id. at Ex. E.) The letter is signed by First National. (Id.) At the bottom of the letter, there are detachable coupons that specify the amount due and the deadline for making each of the six discounted offer payments. (Id.)

         Richardson filed a one-count complaint against the defendants on October 7, 2016, alleging that the letter he received contains misleading information in violation of section 1692e of the FDCPA. The defendants responded by filing a motion to dismiss under Rule 12(b)(6).

         DISCUSSION

         To overcome a motion to dismiss under Rule 12(b)(6), “a complaint must ‘state a claim to relief that is plausible on its face.'” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Thus, dismissal is proper only “if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to the relief requested.” Enger v. Chi. Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016) (quoting R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989)). In assessing the motion, the Court “must accept as true all factual ...


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