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Africano-Domingo v. Miller & Steeno, P.C.

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

January 16, 2020

NITA AFRICANO-DOMINGO, Plaintiff,
v.
MILLER & STEENO, P.C., and DNF ASSOCIATES, LLC, Defendants.

          MEMORANDUM ORDER AND OPINION

          REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE.

         In June 2018, Plaintiff Nita Africano-Domingo received a letter from Defendant Miller & Steeno, P.C. seeking to collect a $1, 678.69 debt on behalf of Defendant DNF Associates, LLC. The letter identifies Kay Jewelers as the “Original Creditor” and DNF Associates LLC as the “current owner of the unpaid account.” Ms. Africano-Domingo alleges that the letter failed to effectively identify the creditor to whom the debt is owed, and failed to specify that she had 30 days to request the name and address of her original creditor, both in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Defendants Miller & Steeno and DNF Associates jointly moved to dismiss Plaintiff's complaint. For the reasons stated below, Defendants' motion to dismiss [12] is denied in part and granted in part.

         BACKGROUND

         This suit arises from a letter sent by Defendant Miller & Steeno to Plaintiff Africano-Domingo seeking payment of a delinquent consumer credit account originally owed to Kay Jewelers. (Compl. [1] ¶ 11.) According to the allegations in the complaint, deemed true for purposes of this motion, Defendant DNF Associates purchased the alleged debt and retained Defendant Miller & Steeno to collect the debt on its behalf. (Id. ¶ 13.) Miller & Steeno sent a letter to Plaintiff on June 18, 2018 that identifies Kay Jewelers as the “Original Creditor” and states that DNF Associates LLC is the “current owner of the unpaid account.” (Id. ¶¶ 19-20.) Nowhere in the letter is an entity specifically identified as the “current creditor.” (Id. ¶ 21.) A subsequent paragraph of the letter states, in full:

Unless you notify us within thirty (30) days after receipt of this letter that you dispute the validity of the debt, or any portion thereof, the debt will be assumed to be valid by this office. If you notify us, in writing, within thirty days, that the debt, or any portion thereof is disputed, we will obtain verification of it and a copy of the verification will be mailed to you. If requested, in writing, we will also provide you with the name and address of the original creditor, if different from your current creditor.

(Collection Letter, Ex. D to Compl.)

         Plaintiff alleges that Defendants violated the FDCPA in two ways. First, because the letter identifies only an original creditor, a current owner of the account, and a debt collector, it does not identify the current creditor to whom the debt is owed, as required by Section 1692g of the FDCPA. (Compl. ¶ 40.); see also 15 U.S.C. § 1692g(a)(2) (“[A] debt collector shall . . . send the consumer a written notice containing the name of the creditor to whom the debt is owed.”). As a result, Plaintiff alleges that she was confused “as to whom, exactly, the debt was allegedly owed.” (Compl. ¶ 23.) Second, while the letter states that Plaintiff must dispute the debt or request verification of the debt in writing within 30 days of receipt of the letter, the letter does not state that she has only 30 days to request the name and address of the original creditor, as required by Section 1692g. See 15 U.S.C. § 1692g(a)(5) (“[A] debt collector shall . . . send the consumer a written notice containing a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.”); (Compl. ¶ 41.) Because the letter does not repeat the 30-day deadline in the creditor verification sentence, Plaintiff alleges that she “may unknowingly waive her right to obtain information regarding the original creditor.” (Id. ¶ 28.)

         Defendants now move to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Defendants first contend that the letter fully complies with Section 1692g(a)(2) because the language identifying DNF Associates LLC as the “current owner of the unpaid account” states the identity of the current creditor “clearly enough that the recipient is likely to understand it.” (Def.'s Mem. in Supp. of Mot. to Dismiss (“Def.'s MTD”) [13] at 3 (quoting Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 321 (7th Cir. 2016)).) Defendants next assert that the letter complies with Section 1692g(a)(5) because, while it does not repeat that Plaintiff has 30 days to request the identity of the original creditor in that sentence, the 30-day limit is identified twice in the same paragraph. (Def.'s MTD at 4.) The average debtor, Defendants contend, is “capable of making basic logical deductions and inferences” and “can deduce that . . . she has thirty days to send a letter” requesting verifying information. (Id.) Defendants last argue that Plaintiff lacks standing to bring her FDCPA claims because she has not alleged that she suffered any concrete injury as a result of Defendants' conduct. (Id. at 5.) The court construes that portion of Defendants' motion as a challenge to the court's subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).

         LEGAL STANDARD

         To survive a Rule 12(b)(6) motion to dismiss, 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a motion to dismiss, the court accepts the well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016). The court may consider the complaint, “documents that are attached to the complaint, documents that are central to the complaint and referred to in it, and information that is properly subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

         The court lacks subject-matter jurisdiction over the case if the plaintiff lacks standing to sue. The plaintiff bears the burden of establishing that she has standing. Diedrich v. Ocwen Loan Serv., LLC, 839 F.3d 583, 588 (7th Cir. 2016). In reviewing a facial challenge to a plaintiff's standing, the court presumes the truth of “all material allegations in the complaint” and draws all reasonable inferences in favor of the plaintiff. Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688, 691 (7th Cir. 2015). When, however, standing is challenged as a factual matter, the court “may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (quoting Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008)).

         DISCUSSION

         To comply with the FDCPA, a debt collector must include certain information in either “the initial communication with a consumer in connection with the collection of any debt, ” or in a notice sent within five days of the initial communication. 15 U.S.C. § 1692g(a). In particular, the debt collector must clearly identify the creditor to whom the debt is owed, 15 U.S.C. § 1692g(a)(2), and provide the debtor with written notice that he or she may request information about the original creditor, if different from the current creditor, upon written request within 30 days of receipt of the letter. 15 U.S.C. § 1692g(a)(5). A debt collector violates Section 1692g by either “fail[ing] to provide required information or provid[ing] required information ‘in a manner that is confusing to the consumer.'” Osideko v. L J Ross Assocs., Inc., No. 18 C 3147, 2019 WL 1915666, at *1 (N.D. Ill. Apr. 30, 2019) (quoting McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006)). A court evaluates the potential for confusion “through the eyes of the unsophisticated consumer.” Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 645 (7th Cir. 2009).

         I. Rule 12(b)(1) ...


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