United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang, United States District Judge.
Nicholas defaulted on his student loan payments. So Alltran
Education, a collection agency, sent Nicholas a letter
attempting to collect the amount owed. Nicholas later sued
Alltran, alleging that the debt-collection letter violated
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq (FDCPA). R. 1, Compl.Alltran now moves to dismiss
the complaint. R. 10, Mot. Dismiss. For the reasons discussed
below, Alltran's motion is granted.
purposes of this motion, the Court accepts as true the
allegations in the Complaint. Erickson v. Pardus,
551 U.S. 89, 94 (2007). In addition to the allegations in the
pleading itself, documents attached to a complaint are
considered part of the complaint. Fed.R.Civ.P. 10(c).
Nicholas owes money on student loans. Compl. ¶¶ 6,
11; see also R. 1-2, Exh. A, Collection Letter. At
some point, the original creditor of his student loans
transferred the debt to Alltran for debt collection. Compl.
¶¶ 10, 13. Eventually, Nicholas defaulted on his
loan payments, see Collection Letter at 1, so
Alltran sent Nicholas a letter, attempting to collect the
debt, see id.; Compl. ¶¶ 14-16. The letter
referred to the possibility of a “review” for
If we don't hear from you, your debt(s) will be reviewed
for Administrative Wage Garnishment (AWG). Under that
program, ED [the U.S. Department of Education] can issue an
order to your employer directing them to withhold up to 15%
of your disposable pay to be paid to ED to apply to your
Letter at 1; Compl. ¶ 17.
claims that this language is misleading, and thus violates
§ 1692e of the FDCPA. Compl. ¶ 23. Specifically, he
claims that the letter “threatens garnishment if [he]
does not pay, ” and “misleads [him] as to his
rights in such matter.” Id. ¶ 21. Alltran
now moves to dismiss the complaint, arguing that Nicholas
fails to adequately state a claim. Mot. Dismiss.
Federal Rule of Civil Procedure 8(a)(2), a complaint
generally need only include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). This short and plain
statement must “give the defendant fair notice of what
the … claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 545 (2007) (alteration in original) (cleaned
The Seventh Circuit has explained that this rule
“reflects a liberal notice pleading regime, which is
intended to focus litigation on the merits of a claim rather
than on technicalities that might keep plaintiffs out of
court.” Brooks v. Ross, 578 F.3d 574, 580 (7th
Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534
U.S. 506, 514 (2002)) (cleaned up).
motion under Rule 12(b)(6) challenges the sufficiency of the
complaint to state a claim upon which relief may be
granted.” Hallinan v. Fraternal Order of Police of
Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). These allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
The allegations that are entitled to the assumption of truth
are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
1692e prohibits debt collectors from using false or
misleading tactics to collect a debt: “A debt collector
may not use any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e. This 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 16
subsections, McMahon v. LVNV Funding, LLC, 744 F.3d
1010, 1019 (7th Cir. 2014). Although “a plaintiff need
not allege a violation of a specific subsection in order to
succeed in a Section 1692e case, ” Lox v. CDA,
Ltd., 689 F.3d 818, 822 (7th Cir. 2012), Nicholas
invokes § 1692e generally as well as three subsections:
(4), (5), and (10).
evaluating whether a debt collector's statement is
deceptive under § 1692e, the statement is viewed from
the perspective of an “unsophisticated consumer.”
That is, the Court must ask “whether a person of modest
education and limited commercial savvy would be likely to be
deceived by the debt collector's representation.”
Dunbar v. Kohn Law Firm, S.C., 896 F.3d 762, 764
(7th Cir. 2018). This standard protects a consumer who is
“uninformed, naïve, and trusting, ” but who
nonetheless “possesses rudimentary knowledge about the
financial world, is wise enough to read collection notices
with added care, possesses reasonable intelligence, and is
capable of making basic logical deductions and
inferences.” Boucher v. Fin. Sys. of Green Bay,
Inc., 880 F.3d 362, 366 (7th Cir. 2018) (cleaned up).
The reasonable consumer, though unsophisticated, “is
not a dimwit.” Lox, 689 F.3d at 822 (cleaned
up). Because this is a fact-laden inquiry, dismissal for
failure to state a claim is only appropriate “in cases
involving statements that plainly, on their face, are not
misleading or deceptive.” See Boucher, 880
F.3d at 366-67.
to Nicholas, the letter implies that “Alltran has the
power to garnish wages if it does not hear from Plaintiff,
” Compl. ¶ 19, and, therefore, the letter
“threatens” garnishment, Compl. ¶ 21; R. 19,
Pl.'s Resp. Br. at 1. Even viewed through the lens of an
unsophisticated consumer, Nicholas' reading of the letter
is untenable. The actual words in the letter say that if
Alltran does not hear from Nicholas, then Nicholas'
“debt(s) will be reviewed for Administrative
Wage Garnishment (AWG).” Collection Letter at 1
(emphasis added). An unsophisticated consumer would not read
this language to mean that Alltran will go on to deduct
Nicholas' wages if it does not hear from Nicholas.
Instead, the statement that the debt will be
“reviewed” necessarily means that something
more has to ...