United States District Court, S.D. Indiana, Evansville Division
DAVID F. DRIVER, Plaintiff,
LJ ROSS ASSOCIATES, INC., Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
MATTHEW P. BROOKMAN UNITED STATES MAGISTRATE JUDGE
November 9, 2018, Plaintiff, Mr. Driver, received a
collection letter from Defendant, LJ Ross Associates, Inc.
(“LJ Ross”), which detailed-in relevant part:
(Docket No. 23-1).
alleges that the letter falsely implied the current amount of
a utility debt, which LJ Ross was attempting to collect,
could change. (Docket No. 1). Specifically, Driver
claims that the inclusion of “interest” and other
“charges” falsely implied that LJ Ross
might add interest and charges to the debt that were
properly collectible. (Id.). Yet, the agreement
creating the subject debt did not authorize such additional
charges. (Id. at ECF p. 5). Driver claims he was
confused and misled by the nature of the Defendant's
collection letter and has suffered anxiety and mental anguish
as a result. (Id.).
brings this lawsuit asserting, in a single claim, that the
letter violated the Fair Debt Collection Practices Act
(“FDCPA”), specifically violating 15 U.S.C.
§1692e and 15 U.S.C. §1692f through its references
to “interest” and “charges.”
(Docket No. 1 at ECF pp. 4-5). LJ Ross now moves to
dismiss the complaint for failure to state a claim. For the
reasons below, the court DENIES LJ
Rule 12(b)(6) motion, the court must accept the operative
complaint's well-pleaded factual allegations, with all
reasonable inferences drawn in Driver's favor, but not
its legal conclusions. See Smoke Shop, LLC v.
United States, 761 F.3d 779, 785 (7th Cir. 2014). The
court must also consider “documents attached to the
complaint, documents that are critical to the complaint and
referred to in it, and information that is subject to proper
judicial notice, ” along with the additional facts set
forth in Driver's brief opposing dismissal, “so
long as those facts are consistent with the pleadings.”
Phillips v. Prudential Ins. Co. of Am., 714 F.3d
1017, 1020 (7th Cir. 2013) (internal quotation marks
omitted). The facts are set forth as favorably to Driver as
those materials allow. See Pierce v. Zoetis,
Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting
forth those facts at the pleading stage, the court does not
vouch for their accuracy. See Jay E. Hayden
Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384
(7th Cir. 2010).
alleges that LJ Ross violated the FDCPA by falsely implying
that additional fees could be added to Plaintiff's
account (“subject debt”) by including column
headers that included “Total Interest Added” and
“Total Non-Int Charges/Adjstmnts” in conjunction
with itemizations that such additional interest and charges
totaled $0.00, respectively. (Docket No. 1;
Docket No. 22 at ECF p. 5). Driver argues that LJ
Ross should not have included these columns and should not
have associated them with the itemized dollar amounts because
it gave the impression that interest and other charges
could accrue on the subject debt, when Defendant had
no intention of applying said fees in the first place.
(Docket No. 22 at ECF p. 5).
1692e prohibits a debt collector from using “any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e; see Ruth v. Triumph P'ships, 577
F.3d 790, 799-800 (7th Cir. 2009). This provision,
essentially a “rule against trickery, ” Beler
v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480
F.3d 470, 473 (7th Cir. 2007), sets forth “a
nonexclusive list of prohibited practices” in sixteen
subsections, McMahon v. LVNV Funding, LLC, 744 F.3d
1010, 1019 (7th Cir. 2014). Although “a plaintiff need
not allege a violation of a specific subsection in order to
succeed in a § 1692e case, ” Lox v. CDA,
Ltd., 689 F.3d 818, 822 (7th Cir. 2012), Driver invokes
subsections (2) and (10), which proscribe, respectively,
“[t]he false representation of the character, amount,
or legal status of any debt, ” 15 U.S.C. §
1692(e)(2)(A) and “[t]he use of any false
representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a
consumer.” id. § 1692(e)(10). Section
1692f, meanwhile, forbids the use of “unfair or
unconscionable means to collect or attempt to collect any
debt.” 15 U.S.C. § 1692f. Because Driver's
§ 1692f claim rests on the same premise-that LJ
Ross's letter was deceptive-as his § 1692e claim,
the two succeed or fail together. See Wood v.
Allied Interstate, LLC, 2018 WL 6830333, at *2 (N.D.
Ill.Dec. 28, 2018) (“Wood II”).
Court evaluates a FDCPA claim by using the objective
“unsophisticated consumer” standard. Gruber
v. Creditors' Prot. Serv., Inc., 742 F.3d 271, 273
(7th Cir. 2014). This standard protects the consumer who is
“uninformed, naïve, or trusting, yet admits an
objective element of reasonableness.” Gammon v. GC
Serv's Ltd. P'ship, 27 F.3d 1254, 1257 (7th Cir.
1994). “The reasonableness element in turn shields
complying debt collectors from liability for unrealistic or
peculiar interpretations of collection letters.”
Id. While the unsophisticated consumer may be
“uninformed, naïve, or trusting, ” he also
“possesses rudimentary knowledge about the financial
world” and does not interpret collection letters in a
“bizarre or idiosyncratic fashion.” Pettit v.
Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057,
1060 (7th Cir. 2000).
some other circuits, see, e.g., Gonzales v.
Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 n. 3 (9th
Cir. 2011), we treat the question of whether an
unsophisticated consumer would find certain debt collection
language misleading as a question of fact. See
Walker v. Nat'l Recovery, Inc., 200 F.3d 500,
503 (7th Cir. 1999). See also Zemeckis v. Global
Credit & Collection Corp., 679 F.3d 632, 636 (7th
Cir. 2012) (holding as a general rule, the potentially
confusing or misleading “nature of a dunning letter [is
treated] as a question of fact that, if well-pleaded, avoids
dismissal on a Rule 12(b)(6) motion.”) (internal
citation omitted). “Nevertheless, a plaintiff fails to
state a claim and dismissal is appropriate as a matter of law
when it is apparent from a reading of the letter that not
even a significant fraction of the population would be misled
by it.” Id. (internal quotation marks
contends that Driver could not have been confused about
whether interest or charges might be added to his
debt because the letter expressly stated that the amount of
interest and charges was zero, and nothing else in the letter
possibly implied further interest or charges would later be
added. (Docket No. 12 at ECF p. 9). Yet, the Seventh
Circuit has made clear that a “dunning letter is false
and misleading if it impl[ies] that certain outcomes
might befall a delinquent debtor when, legally,
those outcomes cannot come to pass.” Boucher v.
Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 367 (7th
Cir. 2018) ...