United States District Court, N.D. Indiana, Fort Wayne Division
SAMUEL MALOY, on behalf of himself and all others similarly situated, Plaintiff,
STUCKY, LAUER & YOUNG, LLP, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
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).
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.)
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
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.
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.
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