Mabel L. Heredia, Plaintiff-Appellant,
Capital Management Services, L.P., Defendant-Appellee.
September 20, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. l:17-cv-00284-WCG - William C.
WOOD, Chief Judge, and Manion and ROVNER, Circuit Judges.
ROVNER, CIRCUIT JUDGE.
Management Services, L.P. (CMS) is a debt collector, and
therefore regularly sends out dunning letters to debtors
hoping to collect past-due debts. The Fair Debt Collection
Practices Act (FDCPA) highly regulates the content of those
letters to prevent debt collectors from using abusive
practices that prey on vulnerable debtors. See 15 U.S.C.
§ 1692(e). Mabel L. Heredia received four collection
letters from CMS-and claims that the language in this
correspondence violated the FDCPA. CMS disagreed and filed a
motion to dismiss under Fed.R.Civ.P. 12(b)(6), which the
district court granted. Upon our de novo review (see
Marquez v. Weinstein, Pinson & Riley, P.S., 836
F.3d 808, 810 (7th Cir. 2016)), we find that Heredia has
plausibly alleged that the dunning letter violated the FDCPA.
We therefore reverse the order dismissing the matter and
remand to the district court for further proceedings.
this case comes before us on a motion to dismiss, we must
accept as true all well-pleaded factual allegations and draw
all reasonable inferences in favor of the plaintiff.
Marquez, 836 F.3d at 810. Generally, the question of
whether a disputed statement is false, deceptive, or
misleading is a fact-laden one and therefore a district court
may not dismiss a complaint unless the disputed statement is
plainly, on its face, not misleading or deceptive. Dunbar
v. Kohn Law Firm, S.C., 896 F.3d 762, 765 (7th Cir.
2018). In Marquez, we noted that:
[I]n determining whether a statement is confusing or
misleading, a district court must tread carefully because
district judges are not good proxies for the
'unsophisticated consumer' whose interest the statute
protects. Accordingly, Rule 12(b)(6) dismissal on that issue
is appropriate only if there is no set of facts consistent
with the pleadings under which the plaintiffs could obtain
Marquez, 836 F.3d at 812 (internal citations
omitted). With this standard in mind, we turn to the
specifics of this case.
most debt collectors, CMS sends out form letters to debtors
hoping to convince them to pay what they owe on their debt.
But, of course, most debt collectors, in reality, would be
happy to receive any amount of money from a debtor. This is
so because, by the time a debt collector gets involved in the
collection process, many of the debts will be unrecoverable.
Although CMS sends form letters, it personalizes those
letters, offering an individualized payment option, and often
multiple options, to debtors to clear their debt. For
example, CMS sent a letter to Heredia, dated November 11,
2016, which stated:
In an effort to liquidate as many files as possible, we are
making the following settlement offers:
A. 29% reduction of your present balance to the amount of
$1343.63, if paid in full on or before 11/30/2016. (A savings
B. 24% reduction of your present balance to the amount of
$1438.25. The first payment of $719.13 or more is due on or
before 11/30/2016. The second and final payment of $719.12 or
more is ...