United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Wood United States District Judge.
Florence Zachial has sued Cascade Capital, LLC
(“Cascade”), alleging two violations of the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692-1692p. Specifically, Zachial claims
that Cascade violated the FDCPA by contacting her after she
directed it to cease its communications (Count I) and by
contacting her even though it knew she was represented by
counsel (Count II). Cascade has now moved for judgment on the
pleadings as to both counts. (Dkt. No. 21.) For reasons
explained below, Cascade's motion is granted as to Count
I but denied as to Count II.
is a senior citizen who lives in Illinois. (Compl. ¶ 8,
Dkt. No. 1.) She has a limited income and was unable to pay a
debt she allegedly owed to Santander Consumer USA
(“Santander”). (Id.) To help with her
financial issues, Zachial obtained assistance from legal aid
attorneys in Chicago. (Id. ¶¶ 8-9.) In
March 2017, a legal aid attorney sent a letter to Santander
stating that Zachial was represented by counsel and directing
Santander to cease communications with her. (Id.
¶ 9; Compl. Ex. C, Dkt. No. 1-3.)
after the legal aid attorney sent that letter to Santander,
the company sold the right to collect Zachial's alleged
debt to Cascade. (Compl. ¶ 10.) According to Zachial,
Cascade knew from the “account notes” it received
from Santander that Zachial was represented by counsel and
that she had demanded that she not be contacted.
(Id.) Nonetheless, Cascade had a third-party debt
collector, MRS Associates, send Zachial a collection letter
in February 2018 demanding payment of the debt she originally
owed Santander. (Id.; Compl. Ex. D, Dkt. No. 1-4.)
receiving the February 2018 collection letter, Zachial
retained new counsel and brought this lawsuit against
Cascade. According to the complaint, Cascade violated the
FDCPA by (1) contacting her after she demanded that Santander
stop contacting her, and (2) contacting her even though it
knew she was represented by counsel with respect to the
alleged debt. Cascade answered the complaint and then moved
for judgment on the pleadings.
to Federal Rule of Civil Procedure 12(c), “[a]fter the
pleadings are closed-but early enough not to delay trial-a
party may move for judgment on the pleadings.” As with
a motion to dismiss for failure to state a claim brought
under Federal Rule of Civil Procedure 12(b)(6), “to
survive a motion for judgment on the pleadings, a complaint
must ‘state a claim to relief that is plausible on its
face.'” Wagner v. Teva Pharm. USA, Inc.,
840 F.3d 355, 357-58 (7th Cir. 2016) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The Court “draw[s] all
reasonable inferences and facts in favor of the nonmovant,
but need not accept as true any legal assertions.”
Wagner, 840 F.3d at 358.
FDCPA regulates how debt collectors may communicate with
consumers. Among other requirements, the FDCPA
provides that if “a consumer notifies a debt collector
in writing . . . that the consumer wishes the debt collector
to cease further communication with the consumer, the debt
collector shall not communicate further with the consumer
with respect to such debt.” 15 U.S.C. § 1692c(c).
Zachial claims that Cascade violated this provision by
sending her a collection letter after she informed Santander,
the original creditor, that she wanted Santander to cease
contact with her.
1692c(c), however, only restricts a debt collector's
communications with the consumer if the consumer
“notifies the debt collector
in writing” that she wants the debt collector to cease
contacting her. Id. § 1692c(c) (emphasis
added). By Zachial's own admissions, she only asked the
original creditor-not the debt collector-to cease contacting
her. (Compl. ¶¶ 9-11; Compl. Ex. C.) Indeed,
Zachial does not claim that she ever notified Cascade that
she wished it to cease contact with her.
primary argument for why Cascade nonetheless violated §
1692c(c) is that, as Santander's assignee, Cascade was
“subject to all of the same information on Ms.
Zachial's putative debt” that Santander had.
(Pl.'s Resp. in Opp'n to Mot. for J. on the Pleadings
at 6, Dkt. No. 30.) To support this argument, Zachial points
to the Illinois common law principle that an assignee
generally assumes the assignor's rights and obligations.
See, e.g., PRA III, LLC v. Hund, 846 N.E.2d
965, 972 (Ill.App.Ct. 2006) (creditor's assignee may
charge the same interest rate as the creditor); Cmty.
Bank of Greater Peoria v. Carter, 669 N.E.2d 1317, 1321
(Ill.App.Ct. 1996) (mortgagee's assignee has right to
insurance proceeds for preassignment property damage);
Carlyle v. Jaskiewicz, 464 N.E.2d 751, 756
(Ill.App.Ct. 1984) (cotenant's assignee must, under some
circumstances, pay contribution to cotenants for unpaid
preassignment costs). But by its plain language, §
1692c(c) only imposes a duty on a debt collector when the
consumer has contacted the debt collector, not when the
consumer has contacted the original creditor. Because the
statute's language is plain, this Court must enforce it
according to its terms. Kariotis v. Navistar Int'l
Transp. Corp., 131 F.3d 672, 680 (7th Cir. 1997).
this Court is aware of no case law suggesting that either
common law principles or the FDCPA would impute a
creditor's knowledge that the consumer has asked it to
cease contact to the debt collector. In fact, while
considering a different section of the FDCPA, the Seventh
Circuit cast doubt on the idea that information may be
imputed from the creditor to the debt collector, because in
the FDCPA Congress placed obligations on debt collectors but
not on creditors. See Randolph, 368 F.3d at 729-30.
Thus, because the pleadings establish that Zachial only asked
Santander, not Cascade, to cease contact with her,
Cascade's motion for judgment on the pleadings is granted
as to Count I.