United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, United States District Judge.
Jeanne M. Weir brings this action, alleging that Defendant,
Medical Data Systems, Inc.'s (“MDS”), a debt
collector, engaged in improper, deceptive, and confusing debt
collection practices in violation of the Fair Debt
Collections Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq. (Count I) and the Illinois
Consumer Fraud and Deceptive Practices Act
(“ICFA”), 815 ILCS 505/1(f) (Count II) (Doc. 1).
Pending before the Court is MDS' Motion to Dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(6) (Doc.
11). Plaintiff filed a Response (Doc. 13). For the following
reasons, Defendant's motion is GRANTED
in part and DENIED in part.
makes the following allegations in her Complaint (Doc. 1). On
April 24, 2017, MDS sent Weir a collections letter informing
her that it was collecting on a debt she allegedly owed to
Barnes-Jewish West County Hospital in the amount of $1,
280.38. The letter informed Weir that she had 30 days within
which to dispute the debt.
receiving the letter, Weir called MDS. During that call, an
agent representing MDS began asking probing questions
regarding Weir's marital, employment, and living status.
The agent told Weir that the questions were necessary if she
wanted a payment plan. Weir refused to answer the agent's
questions. The agent then informed Weir that without a
payment plan, the full balance was due before May 24, 2017.
alleges the agent falsely represented that MDS only had to
give her 30 days from the date MDS' letter (April 24,
2017) to avail herself of her right to dispute the alleged
debt, or request validation, when in fact she had 30 days
from the date that she actually received the letter. She also
alleges that the agent's statements constitute deceptive
tactics and material misstatements for purposes other than
setting up a potential payment plan. She seeks damages for
loss of time incurred responding to the letter, phone minutes
purchased to respond to the April 24, 2017 letter, and
mileage going to and from her attorney's office.
moves to dismiss the Complaint on the following grounds: (1)
the agent's alleged request for financial information, as
a prerequisite to offering Weir a payment plan, does not
amount to a violation of the FDCPA; (2) the alleged
statements of the agent do not support Weir claims; (3) Weir
fails to allege any factual basis to indicate how a
unsophisticated consumer would be confused about her ability
to dispute the debt within the statutory period; and (4) Weir
fails to allege any actual damages recoverable under the
reviewing a Rule 12(b)(6) motion to dismiss, the Court must
accept all allegations of the Complaint as true. Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The federal
system of notice pleading requires only that a plaintiff
provide a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the allegations must be
“more than labels and conclusions.” Pugh v.
Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). This
requirement is satisfied if the Complaint (1) describes the
claim in sufficient detail to give the defendant fair notice
of what the claim is and the grounds upon which it rests, and
(2) plausibly suggests that the plaintiff has a right to
relief above a speculative level. Twombly, 550 U.S.
at 555; see Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(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.” Iqbal, 129 S.Ct.
at 1949 (citing Twombly, 550 U.S. at 556).
§§ 1692e and 1692f are the subject of a Rule
12(b)(6) motion to dismiss, the Court's inquiry is
necessarily fact-bound. McMillan v. Collection
Professionals Inc., 455 F.3d 754, 760 (7th Cir. 2006).
The Seventh Circuit instructs that, “[w]hether
characterized as issues of fact or issues of mixed fact and
law, district courts must act with great restraint when asked
to rule in this context on a motion to dismiss under [FRCP]
12(b)(6).” Id. at 760. The “[p]roper
application of the rule requires that the plaintiff be given
an opportunity to demonstrate that his allegations are
supported by a factual basis responsive to the statutory
standard.” Id. at 760.
I - FDCPA Claim
the FDCPA, “[a] debt collector may not use any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.”
Id. at 683. When “[i]nformation [is properly]
included in a communication from a debt collector to a
debtor, the debt collector may not overshadow or contradict
that information with other messages sent with the validation
or within the validation period.” Chauncey v. JDR
Recovery Corp., 118 F.3d 516, 518 (7th Cir. 1997).
state a claim under § 1692e, “[a plaintiff] must
plausibly allege that [a communication from a debt collector]
would materially mislead or confuse an unsophisticated
consumer. Because this inquiry involves a ‘fact-bound
determination of how an unsophisticated consumer would
perceive the statement, ' dismissal is only appropriate
in ‘cases involving statements that plainly, on their
face, are not misleading or deceptive.' Boucher v.
Fin. System of Green Bay, Inc., 880 F.3d 362, 366-67
(7th Cir. 2018), Marquez v. Weinstein, Pinson &
Riley, P.S., 836 F.3d 808, 812, 814-15 (7th Cir. 2016)
(quoting Ruth v. Triumph P'ships, 577 F.3d 790,
800 (7th Cir. 2009)).
Weir alleges that during the call, MDS falsely represented
that payment of the alleged debt was due in full before May
24, 2017. Combined with the other allegations, As such,
Weir's Complaint provides a short and plain statement
showing factual violations of the FDCPA, gives fair notice of
what the claim is, the grounds on which it rests, and allows
a reasonable inference that MDS is liable for the misconduct
alleged. At this juncture, Weir need not show how an
unsophisticated consumer could be confused about her ability