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Smith v. Asset Acceptance, LLC

United States District Court, S.D. Indiana

August 9, 2013

KENNETH A. SMITH, individually and on behalf of all others similarly situated, Plaintiff,
v.
ASSET ACCEPTANCE, LLC, Defendant

Counsel Amended May 21, 2014.

For KENNETH A. SMITH, individually and on behalf of all others similarly situated, Plaintiff: Angie K. Robertson, Mary E. Philipps, David J. Philipps, PHILIPPS AND PHILIPPS, LTD., Palos Hills, IL; Steven James Halbert, Carmel, IN.

For ASSET ACCEPTANCE, LLC, a Delaware limited liability company, Defendant: Amy R. Jonker, DYKEMA GOSSETT PLLC, Grand Rapids, MI; Christian E. Dodd, PRO HAC VICE, ACKERMAN SENTERFITT, Jacksonville, FL.

ENTRY ON DEFENDANT'S MOTION TO DISMISS

Hon. William T. Lawrence, United States District Judge.

This cause is before the Court on the Defendant's motion to dismiss. Dkt. No. 12. The motion is fully briefed, and the Court, being duly advised, rules as follows.

I. STANDARD

In reviewing a motion to dismiss under Rule 12(b)(6), the court takes the facts alleged in the complaint as true and draws all reasonable inferences in favor of the plaintiff. The complaint must contain only " a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and there is no need for detailed factual allegations. However, the statement must " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests" and the " [f]actual allegations must be enough to raise a right to relief above the speculative level." Pisciotta v. Old Nat.

Page 226

Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

II. BACKGROUND

The facts as alleged in the Complaint are as follows. Plaintiff Kevin Smith filed a Chapter 13 bankruptcy petition on September 26, 2012. On October 29, 2012, Defendant Asset Acceptance, LLC, filed a proof of claim for a credit card debt in the amount of $10,856.31 against Smith in his bankruptcy. According to Smith, the statute of limitations for collecting this debt had long since expired. Smith objected to Asset's claim, and the bankruptcy court sustained the objection. On February 13, 2013, Smith filed the instant action alleging that, by filing a proof of claim on a time-barred debt, Asset violated the Fair Debt Collection Practices Act (" FDCPA" ). Asset has now moved to dismiss.

III. DISCUSSION

Asset's argument for dismissing this claim is a broad, bright line rule: remedies for actions taken within a bankruptcy proceeding -- whether contemplated by the Bankruptcy Code itself (as Asset argues is the case here) or a violation of even that code (as in cases cited by Asset) -- are to be found exclusively within the realm of bankruptcy.

Asset's argument requires the Court to assess the intersection of two federal statutes -- the Bankruptcy Code and the FDCPA. Simply stated, " [t]he Bankruptcy Code of 1986 does not work an implied repeal of the FDCPA." Randolph v. IMBS, Inc., 368 F.3d 726, 732 (7th Cir. 2004). Rather, these statutes overlap, and " [o]verlapping statutes do not repeal one another by implication; as ...


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