United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge.
Perea brought this suit against Codilis & Associates and
Nationstar Mortgage (for convenience’s sake, together
referred to as Defendants) alleging violations of the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692
et seq.R. 1, Compl. Specifically, Perea alleged that
Codilis sent him a letter containing false and misleading
statements in violation of 15 U.S.C. § 1692e.
Id. ¶¶ 43-48. Perea also alleged that the
letter comprised an “unfair or unconscionable
means” to collect a debt in violation of 15 U.S.C.
§ 1692f. Id. ¶¶ 49-52. Both
Defendants now move to dismiss the complaint for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) or, alternatively, for failure to state a
claim under Rule 12(b)(6). See R. 14, Nationstar
Mot. to Dismiss at 1; R. 19, Codilis Mot. to Dismiss at 1. As
discussed in this Opinion, Perea lacks standing to bring the
claims, so Defendants’ motion to dismiss is granted.
evaluating this motion to dismiss, the Court must accept as
true the complaint’s factual allegations and draw
reasonable inferences in Perea’s favor. See
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). In
addition to the allegations in the pleading itself, documents
attached to a complaint are also considered part of the
complaint. Fed.R.Civ.P. 10(c). Perea is an Illinois resident
who defaulted on his mortgage debt. Compl. ¶ 3. After he
defaulted, Nationstar, a mortgage loan servicer, began
servicing Perea’s debt. Id. ¶ 21.
Nationstar hired the Codilis law firm to collect
Perea’s debt on Nationstar’s behalf. Id.
¶¶ 11, 17, 23.
collect the debt, Codilis sent Perea a letter informing him
that he owed $959, 995.30. Compl. ¶¶ 24-25, 27; R.
1-1, Exh. B, Collection Letter. The letter also said,
“Because of interest, late charge and other charges
that may vary from day to day, the amount due on the day you
pay may be greater.” Id. Codilis sent this
letter after the loan at issue had been accelerated
(the importance of this timing is discussed later in the
Opinion) and after demands had been made on Perea for the
full amount due on the loan. Compl. ¶ 28. Also
important: at no time did Perea seek reinstatement of the
subject loan, note, and mortgage. Id. ¶ 29.
later filed this lawsuit, alleging that Codilis and
Nationstar violated Sections 1692e and 1692f of the FDCPA.
Specifically, Perea alleged that the Defendants cannot
legally impose late fees on his already-accelerated debt
(unless he reinstated the loan, which he had not), so the
letter is false, misleading, and deceptive. The Defendants
now move to dismiss the complaint, arguing that Perea lacks
standing to bring the claims, and that (alternatively) he
failed to adequately state a claim. See Nationstar
Mot. to Dismiss at 1; Codilis Mot. to Dismiss at 1.
12(b)(1) motion tests whether the Court has subject-matter
jurisdiction, Hallinan v. Fraternal Order of Police of
Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009);
Long v. ShoreBank Dev. Corp., 182 F.3d 548, 554 (7th
Cir. 1999), whereas a Rule 12(b)(6) motion tests the
sufficiency of the complaint, Hallinan, 570 F.3d at
820; Gibson v. City of Chi., 910 F.2d 1510, 1520
(7th Cir. 1990). In order to survive a Rule 12(b)(1) motion,
the plaintiff must establish that the district court has
subject-matter jurisdiction. United Phosphorous, Ltd. v.
Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2011),
overruled on other grounds, Minn-Chem, Inc. v.
Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). “If
subject matter jurisdiction is not evident on the face of the
complaint, [then] the ... Rule 12(b)(1) [motion is] analyzed
[like] any other motion to dismiss, by assuming for the
purposes of the motion that the allegations in the complaint
are true.” Id.
satisfy Article III’s requirement of standing, Perea
must show that he suffered an injury-in-fact that is fairly
traceable to the conduct of the Defendants and can be
redressed by a favorable decision. Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547-48 (2016) (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992));
see also Casilla v. Madison Ave. Assocs.,
Inc., 926 F.3d 329, 333 (7th Cir. 2019). An
injury-in-fact must be both concrete and
particularized. Spokeo, 136 S.Ct. at 1548. A
concrete injury must be “de facto; that is, it
must actually exist.” Id (cleaned
An injury can be intangible, but not every statutory
violation by itself is enough. Id. at 1549. To
determine if an intangible injury’s concreteness rises
to the level required to satisfy standing, “both
history and the judgment of Congress play important
roles.” Id. A “violation of a procedural
right granted by statute can be sufficient in some
circumstances … [so that] a plaintiff in such a case
need not allege any additional harm beyond the one
Congress has identified.” Id. And the
risk of harm might be concrete enough to meet
standing requirements. Id. With regard to the
“particularized”-injury requirement, the injury
must “affect the plaintiff in a personal and individual
way.” Id at 1548.
preliminary matter, Perea argues that a plaintiff in an FDCPA
case has Article III standing “based solely on
receiving allegedly unlawful debt collection demands.”
R. 30, Pl.’s Resp. Br. at 2 (citing
cases) (emphasis in original) (cleaned up);
see also R. 38, Pl.’s Notice Supp.
Authority. Not so. As already discussed, a bare
statutory violation is not necessarily
enough-especially after Spokeo-to establish
standing. Not all statutory violations are enough to
“confer” Article III standing by themselves.
See Spokeo, 136 S.Ct. at 1549; see also
Casillas, 926 F.3d at 333 (“[T]he fact that
Congress has authorized a plaintiff to sue a debt collector
who fails to comply with any requirement of the Fair Debt
Collection Practices Act ... does not mean that [a plaintiff]
has standing.”) (cleaned up).
establish standing, Perea also alleges that “Defendants
misrepresented the amount of the alleged debt [Codilis] is
attempting to collect.” Compl. ¶ 13. He goes on to
allege that “[a]n unsophisticated consumer would
believe, upon receiving the Letter mailed to [him], that late
fees could be sought and imposed when, in fact, it would not
be legal to do so.” Id. ¶ 48. The problem
with this allegation is that it says nothing about how the
alleged misrepresentation was concrete and particular to
Perea. And while Perea alleged that an
unsophisticated consumer would be mislead by the letter, he
fails to allege, again, that he himself was confused
or misled by what the letter said.
Spokeo to the FDCPA, the Seventh Circuit recently
made clear that a bare procedural allegation was not
necessarily enough to establish standing. Casillas,
926 F.3d at 333. In Casillas, a debt collector sent
the debtor a letter that described the process that the FDCPA
requires for a debtor to obtain verification of a debt, but
“neglected to specify that [the debtor] must
communicate in writing to trigger the statutory
protections, ” as is required under 15 U.S.C. §
1692g. Id. at 331 (emphasis added). The Seventh
Circuit explained that “[t]he only harm [the plaintiff]
claimed to have suffered … was the receipt of an
incomplete letter” and concluded that was not enough to
establish standing. Id. at 331-32. The Court
reasoned “no harm, no foul, ” and explained:
[The debtor] did not allege that [the debt collector’s]
actions harmed or posed any real risk of harm to her interest
under the Act ... [S]he did not allege that she ever even
considered contacting [the debt collector] ... She complained
only that her notice was missing some ...