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Villalobos v. Tanick

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

August 5, 2019



          Ruben Castillo United States District Judge.

         Maria G. Villalobos ("Plaintiff) brought this action against Meyer Njus Tanick, P.A. ("Defendant"), alleging claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). (R. 23, Am. Compl.) Before the Court is Defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6). (R. 24, Def.'s Mot.) For the following reasons, the motion is denied.


         Plaintiff is an Illinois resident and consumer. (R. 23, Am. Compl. ¶ 4.[1]) Defendant is a debt collection law firm who regularly does work on behalf of Synchrony Bank ("Synchrony"). (Id. ¶ 5.) Synchrony is in the business of extending consumer finance to customers through the issuance of various store credit cards, and is one of the largest issuers of credit in the United States. (Id. ¶¶ 10, 18.)

         Plaintiff incurred debt from an Old Navy store credit account issued through Synchrony, and Defendant was engaged by Synchrony to collect payment. (Id. ¶¶ 10-13.) On or around December 26, 2018, Defendant sent a debt collection letter to Plaintiff. (Id. ¶ 14.) The letter identified Meyer Njus Tanick as "Attorneys at Law" and a "debt collector," and identified Elia K. Civelli ("Civelli") as one of the attorneys of the firm. (Id. ¶¶ 15-16.) Above the signature line for Civelli was an indiscernible scribble. (Id. ¶ 17.) Below the signature line was a bar code which Plaintiff says is indicative of a tracking mechanism necessary to monitor the large number of letters produced by the Defendant. (Id. ¶ 23.) Plaintiff alleges that Defendant sends thousands of such debt collection letters to consumers every day, and that the letter it sent to Plaintiff was sent without any meaningful attorney review of her underlying account in order to assess the veracity of the letter's representations. (Id. ¶¶ 19-24.) She supports her assertion with reference to another case against Defendant in this District involving a nearly identical collection letter, as well as administrative agency complaints against Defendant. (Id. ¶¶ 19, 20, 25.) Plaintiff reasons that given the volume of Defendant's communications, it would be virtually impossible for a single attorney to review the file prior to sending the communication. (Id. ¶¶ 19, 20, 24, 25.)

         Instead, Plaintiff alleges, Defendant included what looks like the signature of an attorney on the letter it sent to her without the attorney actuaily having completed a meaningful review of the underlying debt. (Id. ¶¶ 21-22.) It did so, she complains, in order to exert undue pressure on Plaintiff and other consumers generally to compel them to make a payment out of fear that Defendant will file a lawsuit against them. (Id. ¶ 27.) Indeed, Plaintiff complains, receiving the letter caused her to be unfairly confused about her debt and subjected her to the undue pressure that an attorney had reviewed her account and determined that it was appropriate for legal action. (Id. ¶ 28.) Accordingly, Plaintiff alleges that Defendant violated the FDCPA by falsely representing that its communication was from and reviewed by an attorney, and by using an unfair or unconscionable means to collect a debt. (Id.)


         Plaintiff filed her complaint against Defendant on January 28, 2019. (R. 1, Compl.) On April 30, 2019, she filed an amended complaint alleging violations of 15 U.S.C. §§ 1692e(3), 1692e(10), and 1692f. (R. 23, Am. Compl. ¶¶ 35-39.) On May 2, 2019, Defendant moved to dismiss the amended complaint. (R. 24, Def.'s Mot.) Plaintiff filed her opposition on June 5, 2019. (R. 31, Pl.'s Resp.) Defendant replied on June 17, 2019. (R. 32, Def.'s Reply.) The motion is now ripe for resolution.


         A complaint must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[T]he statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests." Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (quotation and alteration omitted). To survive a Rule 12(b)(6) motion to dismiss, the complaint must "state a claim to relief that is plausible on its face." Bell Atlantic 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In construing the complaint, the Court accepts all well-pleaded facts as true and draw all reasonable interferences in the plaintiffs favor. Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016).

         A motion to dismiss pursuant to Rule 12(b)(1) challenges this Court's subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). "[I]f a plaintiff cannot establish standing to sue ., . dismissal under [Rule] 12(b)(1) is the appropriate disposition." Am. Fed'n of Gov't Emps., Local 2119 v. Cohen, 171 F.3d 460, 465 (7th Cir. 1999). Defendant's Rule 12(b)(1) motion is properly understood as a facial challenge because it contends that Plaintiffs complaint lacks sufficient factual allegations to establish standing. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). The Court reviews a facial challenge to Plaintiffs standing under the same standard set forth above for a motion to dismiss for failure to state a claim. Id. at 173-74.


         Defendant moves to dismiss the amended complaint for lack of jurisdiction and failure to state a claim. (R. 24, Def.'s Mot.) First, Defendant argues that Plaintiff does not allege an injury in fact, or that any perceived injury was caused by Defendant's actions. (R. 25, Def.'s Mem. at 5-8.) Next, Defendant argues that Plaintiff fails to adequately allege that her debt was a consumer one as defined by the FDCPA. (Id. at 8-11.) Lastly, Defendant argues that Plaintiff fails to sufficiently allege facts suggesting that it used a false representation to collect a debt, or that it falsely represented that its communication was from an attorney. (Id. at 11-15.) Plaintiff opposes the motion, arguing that she both adequately pleads the intangible injury that the FDCPA was designed to prevent, and that she also pleads an actual injury-increased anxiety and confusion caused by her receipt of Defendant's letter. (R. 31, Pl.'s Resp. at 6-10.) According to Plaintiff, she adequately alleges a consumer debt arising out of her personal use of a consumer store credit card, and that Defendant used false and deceptive means to collect the debt since it falsely represented that its letter was from an attorney following meaningful review. (Id. at 10-15.)

         I. ...

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