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Newman v. Lloyd & McDaniel, PLC

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

May 13, 2019

JILL NEWMAN, Plaintiff,



         The Plaintiff, Jill Newman, brings this action pursuant to the Fair Debt Collection Practices Act (FDCPA). She alleges that Midland Funding, LLC (Midland), and Lloyd & McDaniel, PLC (L&M), used false, deceptive, or misleading representations, as well as unfair and unconscionable means to collect debts on two consumer credit card accounts. The Defendants have moved for dismissal of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [ECF Nos. 27 & 29]. The Defendants argue that the Plaintiff's interpretation of the pertinent collection letters was illogical, incorrect, and directly contradicted by the plain language of the letters, and that the Complaint and attached exhibits demonstrate that the objective unsophisticated consumer would not be confused in the manner alleged by the Plaintiff.

         For the reasons set forth in this Opinion and Order, the Court will grant the Motions to Dismiss.


         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995).

         The Supreme Court has articulated the following standard regarding factual allegations that are required to survive dismissal:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and footnote omitted). A complaint must contain sufficient factual matter to “state a claim that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the pleaded factual content 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 (2009) (citing Twombly, 550 U.S. at 556).

         Although the court must accept as true all well-pleaded facts and draw all permissible inferences in the Plaintiff's favor, it need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 (citing Twombly at 555). Legal conclusions can provide a complaint's framework, but unless well-pleaded factual allegations move the claims from conceivable to plausible, they are insufficient to state a claim. Id. at 679-80. “[D]etermining whether a complaint states a plausible claim” is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.


         The following statements are taken from the allegations in the First Amended Complaint, including the exhibits attached and incorporated therein. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes”).

         The Plaintiff incurred debts with Synchrony bank arising out of two credit card accounts. Midland obtained the debts and retained the law firm of Blatt, Hasenmiller, Leibsker & Moore, LLC (Blatt) for purposes of collection. Blatt obtained state court judgments on behalf of Midland.

         Afterwards, in July 2017, the Plaintiff entered into a payment plan with Blatt for each account, which it memorialized in letters to the Plaintiff. (First. Am. Compl., Ex. A.) The letters stated that the minimum monthly payments were $60 and $55 on the two accounts. The letters further directed the Plaintiff to make payment directly to a specific office by July 27, 2017, and by the agreed day of each payment period thereafter. The letters stated that failure to pay the agreed minimum payment could result in further legal action after judgment.

         Blatt would not take further action to collect the debts, such as garnishment, if the Plaintiff made the minimum payments each month. The Plaintiff provided Blatt her bank account information and authorized the creation of electronic checks from her bank account for the agreed-upon amounts each month. The Plaintiff understood that payments would continue to be taken every month until the debts were paid in full. Blatt created electronic checks and ...

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