United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. THARP, JR. UNITED STATES DISTRICT JUDGE.
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.
allegations in the complaint are
straightforward. 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
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
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
(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
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).
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 ...