United States District Court, S.D. Illinois
MEMORANDUM & ORDER
GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE
Miguel Hernandez filed suit against Defendant BC Services,
Inc. alleging that the collection practices they used to
attempt to collect a debt from him violated the Fair Debt
Collection Practices Act and the Illinois Consumer Fraud and
Deceptive Business Practices Act. Before the Court is a
motion to dismiss filed by Defendant BC Services, Inc. (Doc.
24). For the reasons delineated below, the Court grants the
motion to dismiss and directs Plaintiff to file an amended
complaint on or before October 25, 2019.
Fair Debt Collection Practices Act (“FDCPA”)
regulates debt collectors who assume debts in default and
collect, or attempt, to collect them from consumers.
Plaintiff Miguel Hernandez, a consumer, alleges that
Defendant BC Services, Inc. is in the business of collecting
debts on behalf of others and, in the course of business, BC
Services, Inc. regularly uses the mail and/or the telephone
to collect or attempt to collect delinquent consumer
accounts. On or about September 14, 2018, BC Services mailed
a dunning correspondence to Hernandez in which they attempted
to collect a medical debt that Hernandez allegedly owed to
Mid America Radiology in the amount of $986.42. The debt was
in default when it was sold, assigned or transferred to BC
Services for collection.
September 14th dunning letter was the first
communication Hernandez received from BC Services, and he did
not recognize the debt as belonging to him. The letter
contained the required debt verification rights notice
pursuant 15 U.S.C. § 1692g (i.e., the “G
Notice”). According to Hernandez, the letter demanded
immediate payment by including a detachable payment coupon at
the top. He alleges that the demand for immediate payment
overshadowed the G Notice disclosure.
about September 18, 2018, BC Services called Hernandez, but
he did not answer. Hernandez called BC Services back on
September 24, 2018. A representative for BC Services informed
him that he actually owed a total of $7, 595.04 stemming from
6 open accounts. Hernandez alleges that he was taken aback by
the substantial increase in the amount of money BC Services
was attempting to collect. The representative suggested a
payment plan, advising that any payments would help as some
of the accounts he owed were being reported to the Credit
Bureaus. Between the demand for immediate payment and the
call within the 30-day debt verification period required by
the FDCPA, Hernandez alleges that his rights under the G
Notice were overshadowed in violation of the FDCPA. He also
alleges that said actions violate the Illinois Consumer Fraud
and Deceptive Business Practices Act (“ICFA”).
complaint must include enough factual content to give the
opposing party notice of what the claim is and the grounds
upon which it rests. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 698 (2009). To satisfy the
notice-pleading standard of Rule 8, a complaint must provide
a “short and plain statement of the claim showing that
the pleader is entitled to relief” in a manner that
provides the defendant with “fair notice” of the
claim and its basis. Erickson v. Pardus, 551 U.S.
89, 93 (2007)(citing Twombly, 550 U.S. at 555 and
quoting Fed. R. Civ. Proc. 8(a)(2)). In ruling on a motion to
dismiss for failure to state a claim, a court must
“examine whether the allegations in the complaint state
a ‘plausible’ claim for relief.” Arnett
v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)(citing
Iqbal, 556 U.S. at 677-678). A complaint “must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face, ”
rather than providing allegations that do not rise above the
speculative level. Id.
concedes that his ICFA claim is insufficient pleaded, so the
Court considers only the sufficiency of his FDCPA claim. The
FDCPA is absolute: “A debt collector may not use any
false, deceptive, or misleading representations or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. Debt collectors run afoul of this prohibition
by making a “false representation of . . . the
character, amount, or legal status of any debt.” 15
U.S.C. § 1692e(2)(A), as well as by using “any
false representation or deceptive means to collect or attempt
to collect any debt.” 15 U.S.C. § 1692e(10).
Seventh Circuit has consistently viewed collection letters
through the eyes of the “unsophisticated
consumer” in weighing whether they violate the FDCPA.
Wahl v. Midland Credit Management, Inc., 556 F.3d
643, 645 (7th Cir. 2009). The unsophisticated consumer is not
a “dimwit” but “may be ‘uninformed,
naïve, [and] trusting” with “rudimentary
knowledge about the financial world.” Wahl,
556 F.3d at 645 (quoting Veach v. Sheeks, 316 F.3d
690, 693 (7th Cir. 2003) and Pettit v. Retrieval Masters
Creditors Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir.
2000)). A statement is not false within the meaning of the
FDCPA unless it would confuse the unsophisticated consumer.
See Turner v. J.V.D.B. & Assoc., Inc., 330 F.3d
991, 995 (7th Cir. 2003)).
state of mind of the debt collector is irrelevant, as the
FDCPA is a strict liability statute, but the debtor’s
state of mind is evaluated on an objective standard. See
Turner, 330 F.3d at 995. Courts must consider whether a
letter is confusing to a “significant fraction of the
population” and not just to the “least
sophisticated consumer.” Taylor v. Cavalry Inv.,
L.L.C., 365 F.3d 572, 574 (7th Cir. 2004). The question
of whether an unsophisticated consumer would find debt
collection language misleading is a question of fact. See
Lox v. CDA, Ltd., 689 F.3d 818, 822 (7th Cir. 2012);
Walker v. Nat’l Recovery, Inc., 200 F.3d 500,
503 (7th Cir. 1999). Generally, it cannot be resolved on a
motion to dismiss, as federal judges “are not
necessarily good proxies for the ‘unsophisticated
consumers’ protected by the FDCPA.” Koehn v.
Delta Outsource Group, Inc., No. 19-1088, 2019 WL
4666297, at *2 (7th Cir. Sept. 25, 2019)(citations omitted).
If it is clear, however, that “‘not even a
significant fraction of the population would be misled’
by a collection letter, then the complaint can and should be
dismissed.” Id. (citing Zemeckis v. Global
Credit & Collection Corp., 679 F.3d 632, 636 (7th
concedes that the dunning letter, on its face, does not
violate § 1692g, but he urges viewing it within the
context of his entire claim, which includes the phone call in
which the amount of his debt increased drastically just days
after he received the validation letter. While debt
collectors may continue collection efforts during the
validation period if no validation request is received, the
collection activities must not otherwise violate the FDCPA.
See 15 U.S.C. § 1692g(b).
the letter on its own would not sow confusion in an
unsophisticated consumer, the phone call mere days later
claiming that the debt owed was thousands of dollars higher
coupled with receipt of the letter arguably could be
confusing. However, it is unclear from Hernandez’s
complaint whether these statements were “false,
deceptive or misleading” under § 1692e or how they
might qualify as “unfair ...