United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge.
Alfreda Chandler alleges that Defendant Zachary Eichel and
his law firm, Defendant Einterz & Einterz (collectively,
“Einterz”), sent Ms. Chandler two
misleading letters in an attempt to collect a debt, in
violation of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692,
et. seq. Mr. Eichel now moves the Court to dismiss
Ms. Chandler's Complaint for failure to state a claim.
[Filing No. 8.] For the following reasons, the Court
DENIES Einterz's Motion.
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim that does not state a right to relief. The
Federal Rules of Civil Procedure require that a complaint
provide the defendant with “fair notice of what the . .
. claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
In reviewing the sufficiency of a complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. See Active
Disposal Inc. v. City of Darien, 635 F.3d 883, 886 (7th
Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether
the complaint “contain[s] 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). The Court may not accept
legal conclusions or conclusory allegations as sufficient to
state a claim for relief. See McCauley v. City
of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief
“to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633
(7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
following facts are drawn from Ms. Chandler's Complaint,
[Filing No. 1], and attached exhibits, [Filing
No. 1-1; Filing No. 1-2], which are treated as
true for the purpose of resolving Einterz's Motion.
E.g., Geinosky v. City of Chi., 675 F.3d
743, 745 n.1 (7th Cir. 2012) (noting that courts must
consider “documents attached to the complaint”
under Rule 12(b)(6)).
November 2015, Ms. Chandler incurred a debt with Bone Dry
Roofing (“Bone Dry”). [Filing No.
1-1.] Some time later, Ms. Chandler defaulted on the
debt, and Bone Dry placed the debt with Indiana law firm
Einterz & Einterz for collection. [Filing No. 1 at
2; Filing No. 1-1.]
Eichel sent a letter dated March 29, 2016, to Ms. Chandler in
an attempt to collect on the debt (“March
Letter”). The March Letter is printed on Einterz &
Einterz stationary and provides, in relevant part, as
I represent Bone Dry Roofing in the above-referenced matter.
Bone Dry's records indicate that, as of March 29, 2016,
an outstanding balance in the amount of $16, 533.00 remains
due and owing to my client . . . .
Unfortunately, since my client's earlier reminders and
requests for payment have apparently gone unheeded, legal
action must now be pursued. Accordingly, unless payment is
received within thirty (30) days, or on or before April 28,
2016, litigation will be initiated to collect all outstanding
sums due and owing to Bone Dry Roofing. If such litigation is
required, any and all court costs and other expenses incurred
by my client in this matter, including reimbursement for
attorney's fees as permitted by law, will be sought. This
will result in a minimum increase of this claim of $1, 000.00
and likely considerably more.
Hopefully, the need to resort to such extraordinary measures
will be unnecessary. However, this can only be avoided by
tendering full payment as identified above. Please contact me
to make arrangements for payment of all sums due and owing
Bone Dry Roofing in this matter. This is an effort at
collecting an outstanding debt. If you dispute this debt, you
must contact this office within thirty (30) days. If you
request confirmation of your account, it will be furnished to
you. All notices and actions will be conducted consistent
with the Fair Debt Collection Act.
[Filing No. 1-1 at 1.] The letter was signed by Mr.
Eichel. [Filing No. 1-1 at 1.]
Eichel later sent Ms. Chandler a second letter, dated
September 30, 2016 (“September
Letter”), which was also printed on Einterz &
Einterz stationary. [Filing No. 1-2 at 1.] The
September Letter bore a case caption from the Marion County
Superior Court in the subject line at the top, [Filing
No. 1 at 3], and provided as follows:
Re: Bone Dry Roofing, Inc. v. Alfreda Chandler Cause
Dear Ms. Chandler:
Enclosed please find copies of the Verified Motion for
Proceedings Supplemental and Praecipe for Sheriff's Sale
that have been filed with the Court in the ...