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Maloy v. Stucky, Lauer & Young, LLP

United States District Court, N.D. Indiana, Fort Wayne Division

April 5, 2018

SAMUEL MALOY, on behalf of himself and all others similarly situated, Plaintiff,



         This matter comes before the Court on Plaintiff Samuel Maloy's Motion for Partial Judgment on the Pleadings [ECF No. 12]. The Plaintiff filed his Complaint [ECF No. 1] on August 9, 2017. Defendant Stucky, Lauer & Young LLP timely filed its Answer [ECF No. 9] on October 10, 2017. In his Complaint, the Plaintiff brings four claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (FDCPA) against the Defendant. The instant matter involves only Count I, whether the Defendant violated 15 U.S.C. § 1692g(a)(4).


         The following background is taken from the pleadings. The Plaintiff is a resident of Columbia City, Indiana. (Compl. ¶ 11.) The Parties agree that he is a natural person allegedly obligated to pay a debt asserted to be owed or due to a creditor other than the Defendant. (Compl. ¶ 15; Answer ¶ 15.) The Defendant is an entity who at all relevant items was engaged, by use of the mails and telephone, in the business of attempting to collect a “debt” from the Plaintiff. (Compl. ¶ 13; Answer ¶ 13.) The Defendant is also a “debt collector” as defined by 15 U.S.C 1692(a)(6). (Compl. ¶ 14; Answer ¶ 14.)

         The Defendant sent the Plaintiff a letter (the Letter) in connection with the collection of a debt on August 11, 2016. (Compl. ¶ 19; Answer ¶ 19; see also Compl. Ex. 1, ECF No. 1-1.) The Letter was the Defendant's initial communication with the Plaintiff. (Compl. ¶ 21; Answer ¶ 21.) The Letter describes the Plaintiff's rights under the FDCPA as follows:

Federal law gives you thirty days after you receive this letter to dispute the validity of the debt or any part of it. If you do not dispute it within that period, I'll assume that it is valid. If you do dispute it, I will as required by the law, obtain and mail to you proof of the debt.

(Compl. Ex. 1; see also Compl. ¶ 23; Answer ¶ 23.)

         The Defendant raised five affirmative defenses in its Answer, only two of which are pertinent to the instant Motion. The Defendant's Third Affirmative Defense raised a statutory defense based on bona fide error. See 15 U.S.C. § 1692k(c) (“A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”). Its Fourth Affirmative Defense is based on the idea of a “safe harbor.” The Seventh Circuit has held that a debt collector can invoke the “safe harbor” doctrine to avoid liability under the FDCPA so long as the debt collector uses certain language in its initial communication. See Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997). The Plaintiff contends that the Defendant's Third Affirmative Defense impermissibly states a legal conclusion and that the Defendant's Fourth Affirmative Defense must fail because the Defendant did not use the safe harbor language in its initial communication. As such, the Plaintiff asserts that it is entitled to partial judgment on the pleadings.


         Under Federal Rule of Civil Procedure 12(c), a party may move for judgment after the plaintiff has filed a complaint and the defendant has filed an answer. See Fed. R. Civ. P. 12(c). The reviewing court must consider only the pleadings, which “include the complaint, the answer, and any written instruments attached as exhibits.” N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998) (citations omitted). “Where the plaintiff moves for judgment on the pleadings, the motion should not be granted unless it appears beyond doubt that the non-moving party cannot prove facts sufficient to support [its] position.” Hous. Auth. Risk Retention Grp. v. Chi. Hous. Auth., 378 F.3d 596, 600 (7th Cir. 2004) (citing All Am. Ins. Co. v. Broeren Russo Const., Inc., 112 F.Supp.2d 723, 728 (C.D. Ill. 2000)) (internal quotations omitted). Judgment may be granted on the pleadings only if “all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2017).


         The Plaintiff has moved for judgment on the pleadings only as to Count I. In Count I, the Plaintiff alleges that the Defendant violated 15 U.S.C. § 1692g(a)(4) when the Defendant mailed the Letter to the Plaintiff. Section 1692g(a)(4) requires that the initial communication between a debt collector and debtor contain:

[A] statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification ...

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