United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Thomas M. Durkin, United States District Judge
Duarte alleges that General Revenue Corporation violated the
Fair Debt Collection Practices Act (“FDCPA”) by
sending her certain communications regarding a debt. General
Revenue has moved to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 35.
For the following reasons, that motion is granted.
12(b)(6) motion challenges the sufficiency of the
complaint. See, e.g., Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.
2009). A complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim
and the basis for it. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). This standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While “detailed factual allegations”
are not required, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. The
complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).
“‘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.'” Mann v.
Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting
Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party.
Mann, 707 F.3d at 877.
her second amended complaint, Duarte alleges that General
Revenue sent her a debt collection letter on behalf of DePaul
University that included the following sentence:
“Please be aware the balance may change due to payments
you made or other adjustments made by your creditor.”
R. 32-1 at 7. Duarte argues that this statement violated
the FDCPA because it was false in violation of §
1692e(2)(A), and because it constituted a “threat to
take any action . . . that is not intended to be taken,
” in violation of § 1692e(5).
letter also included a balance statement showing
“current principal” of “3228.00”;
“current interest” of “0.00”;
“current collection cost balance” of
“0.00”; and “current interest rate”
of “0.00%”. Duarte argues that this statement is
also false in violation of § 1692e(2) and a threat of
action “not intended to be taken” in violation of
15 U.S.C. § 1692e, a “debt collector may not use
any false, deceptive, or misleading representation or means
in connection with the collection of any debt.”
“[A] determination of whether a statement is false,
deceptive or misleading . . . under the FDCPA . . . is a
fact-bound determination of how an unsophisticated consumer
would perceive the statement.” Marquez v.
Weinstein, Pinson & Riley, P.S., 836 F.3d
808, 812 (7th Cir. 2016). The Seventh Circuit has
“cautioned . . . that in determining whether a
statement is . . . misleading, a district court must
‘tread carefully' because district judges are not
good proxies for the ‘unsophisticated consumer'
whose interest the statute protects.” Id.
“Accordingly, Rule 12(b)(6) dismissal on that issue is
appropriate only if there is no set of facts consistent with
the pleadings under which the plaintiffs could obtain
Whether the Statement Regarding “Adjustment” is
Plausibly False in Violation of §
has failed to plausibly allege that the statement regarding
“adjustments” is false. Duarte makes the
following relevant allegations: “The balance of the
alleged [debt] would not change because of adjustments made
by the creditor, ” R. 32 ¶ 19; “In fact, the
balance on the alleged debt has never changed, despite
Defendant's suggestion to the contrary, ”
id. ¶ 22; “In fact, no interested or
collection costs were ever going to be assessed on the
alleged debt, ” id. ¶ 26. Duarte,
however, does not allege that her creditor is prohibited from
making “adjustments” to her balance. Absent such
an allegation, Duarte has failed to allege the falsity of the
statement that her loan balance may be adjusted by her
argues that the statement is false based on General
Revenue's statement in an earlier filing in this case
that Duarte's “account was not accruing interest or
other charges.” R. 18 at 10. But again, this statement
does not assert that it was impossible for Duarte's
account to accrue interest or charges, and it says nothing
about “adjustments” generally. This statement
from General Revenue's earlier brief, to the extent it
can be considered an admission, does not undermine the
veracity of the statement in the letter it sent Duarte.
these reasons, General Revenue's motion to dismiss
Duarte's claim under § 1692e(2)(A) with respect to
the “adjustments” statement is granted, and that
claim is dismissed.
Whether the Statement Regarding “Adjustments” is
Plausibly a Threat to Take Action General Revenue Never
Intended to Take in Violation of § 1692e(5)
also argues that the statement violates § 1692e(5)
because it constitutes a threat to make
“adjustments” to her loan balance, which General
Revenue never intended to do. A “threat, in the
broadest sense, involves a declaration of an intention to
take some action.” St. John v. Cach, LLC, 822
F.3d 388, 390-91 (7th Cir. 2016). Under § 1692e(5),
“a threat need not be express: it can be
implied.” Gonzales v. Arrow Fin. Servs., 660
F.3d 1055, 1064 (7th Cir. 2011). Thus, “a threat can be
stated in noncommittal terms and still run afoul of the
FDCPA.” Haddad v. Midland Funding, LLC, 255
F.Supp.3d 735, 745 (N.D. Ill. 2017) (citing Ruth v.
Triumph P'ships, 577 F.3d 790, 799-802 (7th Cir.
2009) (holding that the statement that “we may
collect and/or share all the information we obtain in
servicing your account” was a threat under §
1692e(5), where the defendant could not legally share the
plaintiff's personal information) (emphasis added);
Gonzales, 660 F.3d at 1062, 1064 (holding that ...