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Walston v. Nationwide Credit, Inc.

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

August 30, 2019

RASHAD W. WALSTON, on behalf of himself and all others similarly situated, Plaintiff,
v.
NATIONWIDE CREDIT, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman, Judge

         Rashad Walston brought this suit against Nationwide Credit, Inc., alleging that a collection letter it sent him violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Credit Repair Organizations Act (“CROA”), 15 U.S.C. § 1679 et seq. Doc. 1. After Nationwide moved to dismiss under Civil Rule 12(b)(6), Doc. 16, Walston obtained leave to amend and filed an amended complaint, Docs. 18, 21-22. Nationwide again moves to dismiss. Doc. 27. The motion is granted, and the suit is dismissed with prejudice.

         Background

         In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, but 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 Walston'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 Walston 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 accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).

         Walston incurred a debt with American Express for “past due payments on [his] American Express Blue Cash Everyday personal credit card.” Doc. 22 at ¶ 14. Nationwide, a debt collection agency, sent Walston a letter attempting to collect the debt and stating that American Express had authorized it to offer him the “opportunity to regain Card Membership.” Id. at ¶¶ 8, 16-17; Doc. 22-1 at 2. Specifically, the letter said that if Walston paid his balance, he would be sent an application for an American Express Optima Card, Doc. 22 at ¶ 18; Doc 22-1 at 2, which is a card issued to “subprime borrowers” and “designed to provide those with negative credit history the opportunity to reestablish creditworthiness, ” Doc. 22 at ¶ 20.

         The letter added:

Your application [for an American Express Optima Card] will be approved by American Express unless:
• You have an active bankruptcy at the time of your application.
• You have accepted another offer for an Optima Card account from a different agency or from American Express.
• You have an active American Express account.
American Express determines that you do not have the financial capacity to make the minimum payment on this new Optima Card account.

Doc. 22-1 at 2 (emphasis added). Given the final proviso, Walston “could pay the subject debt in full, submit his application for the Optima Card, only to ultimately not receive the promised benefits that induced [him] to pay the subject debt based on a determination solely within the discretion of American Express” that he did not have the financial ability to make the minimum payment on the Optima Card. Doc. 22 at ¶ 24.

         Discussion

         I. ...


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