United States District Court, S.D. Indiana, Indianapolis Division
LISA HOLT, individually and on behalf of all others similarly situated, Plaintiff,
LVNV FUNDING, LLC, a Delaware limited liability company, and FINANCIAL RECOVERY SERVICES, INC., a Minnesota corporation, Defendants
LISA HOLT, 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; John Thomas Steinkamp, JOHN T. STEINKAMP AND ASSOCIATES,
LVNV FUNDING, LLC, a Delaware limited liability company,
FINANCIAL RECOVERY SERVICES, INC., a Minnesota corporation,
Defendants: Matthew P. Kostolnik, Michael S. Poncin, MOSS &
BARNETT, Minneapolis, MN.
ON DEFENDANTS' MOTION FOR JUDGMENT ON THE
L. YOUNG, CHIEF UNITED STATES DISTRICT JUDGE.
Lisa Holt, filed this action against Defendants, LVNV
Funding, LLC and Financial Recovery Services, Inc., pursuant
to the Fair Debt Collection Practices Act (" FDCPA"
), 15 U.S.C. § 1692 et seq. This matter now
comes before the court on Defendants' Motion for Judgment
on the Pleadings pursuant to Federal Rule of Civil Procedure
12(c). For the reasons set forth below, the court DENIES
owed a debt on a Capital One credit card that became
delinquent in 2004. (Filing No. 1, Complaint at ¶ ¶
3, 9). Sometime thereafter, Defendant LVNV Funding, LLC
(" LVNV" ) purchased the debt and retained
Defendant Financial Recovery Services, Inc. (" FRS"
) to collect it. ( Id. at ¶ 9). FRS'
collection efforts included mailing Plaintiff a dunning
letter on October 6, 2014 (the "
Letter" ). ( Id. ; see Filing No.1-3,
Letter claims Plaintiff owes LVNV a balance of $1,189.99,
which is comprised of $576.73 in principal and $613.26 in
interest. (Exhibit C). Below this, the Letter states, "
THE LAW LIMITS HOW LONG YOU CAN BE SUED ON A DEBT. BECAUSE OF
THE AGE OF YOUR DEBT, LVNV FUNDING LLC WILL NOT SUE YOU FOR
IT." ( Id. ). The Letter goes on to outline
four " ACCOUNT REDUCTION OPPORTUNITIES," including
paying the account in full with a one-time payment of the
full balance and settling the account in full by making a
one-time payment of 35% of the balance. The Letter then
PLEASE MARK YOUR CHOICE WITH AN " X" IN THE SPACE
PROVIDED AND FORWARD WITH YOUR PAYMENT TO THE ADDRESS LISTED
BELOW OR PAY ONLINE. WE ARE NOT OBLIGATED TO RENEW OFFERS 2
THROUGH 4 ABOVE. FOR OFFERS 2 AND 3 ABOVE, WHEN YOU HAVE
SATISFIED THIS AGREEMENT, THE ACCOUNT(S) WILL BE CONSIDERED
SETTLED IN FULL FOR LESS THAN THE FULL BALANCE AND YOU WILL
BE RELEASED OF ALL LIABILITY RELATIVE TO THE ABOVE LISTED
ACCOUNT(S). LVNV FUNDING LLC IS REQUIRED BY THE IRS TO
PROVIDE INFORMATION ABOUT CERTAIN AMOUNTS THAT ARE DISCHARGED
AS A RESULT OF A CANCELLATION OF A DEBT ON A FORM 1099C. IF
LVNV FUNDING LLC IS REQUIRED TO NOTIFY THE IRS, YOU WILL
RECEIVE A COPY OF THE FORM 1099C THAT IS FILED WITH THE IRS.
WE RECOMMEND THAT YOU CONSULT INDEPENDENT TAX COUNSEL OF YOUR
OWN CHOOSING IF YOU DESIRE ADVICE ABOUT ANY TAX CONSEQUENCES
WHICH MAY RESULT FROM THIS SETTLEMENT.
( Id. ).
may move for judgment on the pleadings " [a]fter the
pleadings are closed--but early enough not to delay
trial." Fed.R.Civ.P. 12(c). " A Rule 12(c) motion
is governed by the same standards as a motion to dismiss for
failure to state a claim under Rule 12(b)(6)."
Lodholtz v. York Risk Servs. Grp., 778 F.3d 635, 639
(7th Cir. 2015). In order to survive a Rule 12(b)(6) motion,
a complaint must " state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (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." Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
For purposes of ruling on Defendants' motion, the court
accepts Plaintiff's well-pleaded factual allegations as
true and construes all reasonable inferences in her favor.
Tierney v. Advocate Health & Hosps. Corp., 797 F.3d
449, 451 (7th Cir. 2015).
filed her Complaint pursuant to the FDCPA, which Congress
passed in order to " eliminate the many evils associated
with debt collection." Bentrud v. Bowman, 794
F.3d 871, 874 (7th Cir. 2015). Specifically, Plaintiff
alleges that Defendants violated 15 U.S.C. § §
1692e and 1692f. Section 1692e broadly prohibits debt
collectors from using " any false, deceptive, or
misleading representation or means in connection with the
collection of any debt." Similarly, Section 1692f makes
it unlawful for debt collectors to " use unfair or
unconscionable means to collect or attempt to collect any
debt." In reviewing Plaintiff's claims, the court
must view the Letter through the perspective of an "
unsophisticated consumer." Gruber v. Creditors'
Prot. Serv., 742 F.3d 271, 273 (7th Cir. 2014). The
Gruber court explained,
Although the hypothetical unsophisticated consumer is not as
learned in commercial matters as are federal judges, he is
not completely ignorant either. Pettit v. Retrieval
Masters Creditors Bureau, Inc., 211 F.3d 1057, 1060 (7th
Cir. 2000). On the one hand, the unsophisticated consumer may
be " uninformed, naive, or trusting," but on the
other hand the unsophisticated consumer does " possess
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." Id.
(citations omitted). Additionally, while the unsophisticated
consumer " may tend to read collection letters