United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Rueda alleges that Midland Credit Management, Inc. violated
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq., in connection with
its effort to collect from her a time-barred debt. Doc. 13.
Midland moves to dismiss the amended complaint under Civil
Rule 12(b)(6). Doc. 16. The motion is denied.
resolving Midland's Rule 12(b)(6) motion, the court
accepts the operative complaint's well-pleaded factual
allegations, with all reasonable inferences drawn in
Rueda's favor, though not its legal conclusions. See
Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087
(7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that
are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice,
” along with additional facts set forth in Rueda's
brief opposing dismissal, so long as those additional facts
“are consistent with the pleadings.” Phillips
v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20
(7th Cir. 2013) (internal quotation marks omitted). The facts
are set forth as favorably to Rueda as those materials
permit. See Domanus v. Locke Lord, LLP, 847 F.3d
469, 478-79 (7th Cir. 2017). In setting forth the facts at
this stage, the court does not vouch for their
“objective truth.” Kiebala v. Boris, 928
F.3d 680, 681 (7th Cir. 2019).
Rueda reviewed her credit history, she found that Midland, a
debt collector, had obtained her credit report for a
“collection” purpose on four dates. Doc. 13 at
¶¶ 6-7, 10. Rueda accessed Midland's Payment
Portal website for more information. Id. at ¶
11. When she did so, Midland attempted to collect from her a
consumer debt on which the statute of limitations had run.
Id. at ¶¶ 13, 15-16. In so doing, Midland
If you live in IL, this applies to you: The
law limits how long you can be sued on a debt and how long a
debt can appear on your credit report. Due to the age of this
debt, we will not sue you for it or report payment or
nonpayment of it to a credit bureau. If you make a payment on
this debt we will not use the payment to restart the time to
sue you for this debt even if the law permits us to do so.
Id. at ¶ 14; Doc. 20 at 3; Doc. 1-2 at 2.
Midland also presented Rueda with “[d]iscount [o]ffers,
” stated that it “[is] not obliged to renew these
offers” and that they “may not be available after
today, ” and stated that “to accept this offer,
” she could “make a payment today.” Doc. 13
at ¶¶ 17-21. Rueda alleges that Midland “had
no present intention of removing, lifting or otherwise not
honoring the ‘Discount Offers.'” Id.
at ¶ 22.
alleges that Midland's statements regarding the
time-barred nature of her debt violated the FDCPA's
prohibitions against false and misleading representations, 15
U.S.C. § 1692e, and unfair practices, id.
§ 1692f. Doc. 13 at ¶¶ 29-35. Section 1692e
prohibits a debt collector from “us[ing] any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e; see Ruth v. Triumph P'ships, 577
F.3d 790, 799-800 (7th Cir. 2009). The provision, essentially
a “rule against trickery, ” Beler v. Blatt,
Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470,
473 (7th Cir. 2007), sets forth “a nonexclusive list of
prohibited practices” in sixteen subsections,
McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1019
(7th Cir. 2014). Section 1692f, meanwhile, proscribes the use
of “unfair or unconscionable means to collect or
attempt to collect any debt.” 15 U.S.C. § 1692f.
Because Rueda's § 1692f claim rests on the same
premise-that Midland's statements were misleading-as her
§ 1692e claim, Doc. 13 at ¶¶ 31-35, the two
claims rise or fall together.
Seventh Circuit “has consistently held that with regard
to ‘false, deceptive, or misleading
representations' in violation of § 1692e of the
FDCPA, the standard is … whether the debt
collector's communication would deceive or mislead an
unsophisticated, but reasonable, consumer if the consumer is
not represented by counsel.” Bravo v. Midland
Credit Mgmt., Inc., 812 F.3d 599, 603 (7th Cir. 2016);
see also Gruber v. Creditors' Prot. Serv., Inc.,
742 F.3d 271, 273 (7th Cir. 2014) (noting that FDCPA claims
“are evaluated under the objective
‘unsophisticated consumer' standard”). The
reasonable consumer standard protects a consumer who
“may be uninformed, naive, or trusting, ” but who
nonetheless “possess[es] rudimentary knowledge about
the financial world.” Gruber, 742 F.3d at 273
(internal quotation marks omitted). The reasonable consumer,
although unsophisticated, “is not a dimwit” and
“is capable of making basic logical deductions and
inferences.” Lox v. CDA, Ltd., 689 F.3d 818,
822 (7th Cir. 2012) (internal quotation marks omitted).
alleged to be false or misleading under the FDCPA fall into
three categories. See Ruth, 577 F.3d at 800. The
first consists of statements that are “plainly, on
their face, … not misleading or deceptive. In these
cases, [the court] do[es] not look to extrinsic evidence to
determine whether consumers were confused. Instead, [the
court] grant[s] dismissal or summary judgment in favor of the
defendant based on [its] own determination that the statement
complied with the law.” Ibid. The second
category consists of “statements that are not plainly
misleading or deceptive but might possibly mislead or deceive
the unsophisticated consumer. In these cases, …
plaintiffs may prevail only by producing extrinsic evidence,
such as consumer surveys, to prove that unsophisticated
consumers do in fact find the challenged statements
misleading or deceptive.” Ibid. The third
category consists of statements that are “so clearly
confusing on [their] face[s] that a court may award summary
judgment to the plaintiff on that basis.” Id.
at 801 (internal quotation marks omitted).
prevail on its motion to dismiss, Midland must show that its
statements regarding Rueda's time-barred debt fall in the
first Ruth category. See Zemeckis v. Glob.
Credit & Collection Corp., 679 F.3d 632, 636 (7th
Cir. 2012) (“[A] plaintiff fails to state a claim and
dismissal is appropriate as a matter of law when it is
apparent from a reading of the letter that not even a
significant fraction of the population would be misled by
it.”) (internal quotation marks omitted). In an effort
to make that showing, Midland contends that it
“adequately notifie[d] [Rueda] about the age of [her]
debt, the implications of the age for its enforceability, and
the consequences of making a payment on it.” Doc. 16 at
position cannot be reconciled with Pantoja v. Portfolio
Recovery Associates, LLC, 852 F.3d 679 (7th Cir. 2017).
The debt collector in Pantoja sent the debtor a
letter seeking to collect on a time-barred debt and proposing
certain “settlement offers.” Id. at 682.
The key portion of the letter read: “Because of the age
of your debt, we will not sue you for it and we will not
report it to any credit reporting agency.”
Ibid. The Seventh Circuit held that the letter was
deceptive under § 1692e for two separate reasons.
“The first [was] that the … letter failed to
warn [the debtor] that if he accepted any of the settlement
offers, whether by making a partial payment or even by just
agreeing to make a payment, he would lose the protection of
the statute of limitations.” Id. at 682-83.
“The second [was] that the letter deceptively said that
[the debt collector] had chosen not to sue [the debtor],
rather than saying that the debt was so old that [the debt
collector] could not sue him for the alleged
debt.” Id. at 683 (emphasis added).
statements to Rueda avoid the first problem by informing her:
“If you make a payment on this debt we will not use the
payment to restart the time to sue you for this debt even if
the law permits us to do so.” Doc. 20 at 3. Midland did
not, however, avoid the second problem-at least viewing its
statements through the lens applicable to a Rule 12(b)(6)
motion. Much like the Pantoja debt collector,
Midland told Rueda: “Due to the age of this debt, we
will not sue you for it or report payment or non-payment of
it to a credit bureau.” Ibid. Granted, Midland
added this language, which the Pantoja debt
collector did not use: “The law limits how long you can
be sued on a debt and how long a debt can appear on your
credit report.” Ibid. But Midland never said
what would have placed its statements in the first
Ruth category: “that the debt was so old that
[Midland] could not sue [Rueda] for the alleged
debt.” Pantoja, 852 F.3d at 683 (emphasis
added). Drawing all reasonable inferences in Rueda's
favor, it is plausible that “an unsophisticated
consumer [could] still [have been] confused” by
Midland's statements as to “whether the
[limitations] defense actually barred [Midland] ...