United States District Court, N.D. Illinois, Eastern Division
MARIA G. VILLALOBOS, Plaintiff,
MEYER NJUS TANICK, P.A., Defendant.
MEMORANDUM OPINION AND ORDER
Castillo United States District Judge.
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.
is an Illinois resident and consumer. (R. 23, Am. Compl.
¶ 4.) 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.)
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,
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.
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.
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).
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.
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