United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, CHIEF JUDGE
Plaintiffs Linda and Christopher Gunn allegedly failed to pay
certain homeowners association fees, the homeowners
association retained Defendant Thrasher, Buschmann &
Voelkel (“TBV”), a collection agency and
law firm, to collect the debt. TBV then sent a collection
letter to the Gunns, which the Gunns claim contains
statements that violate the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692e, (“FDCPA”).
Presently pending before the Court are TBV's Rule
12(b)(6) Motion to Dismiss Amended Complaint, [Filing No.
26], the Gunns' Motion for Leave to Respond to New
Matter In Defendant's Reply In Support of Motion to
Dismiss First Amended Complaint, [Filing No. 34],
and TBV's Objection to Plaintiffs' Motion for Leave
to File Surreply and Motion to Strike Same, [Filing No.
36], all of which are ripe for the Court's decision.
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim that does not state a right to relief. The
Federal Rules of Civil Procedure require that a complaint
provide the defendant with “fair notice of what
the…claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007)). In reviewing the sufficiency of a
complaint, the Court must accept all well-pled facts as true
and draw all permissible inferences in favor of the
plaintiff. See Active Disposal Inc. v. City of
Darien, 635 F.3d 883, 886 (7th Cir. 2011). A Rule
12(b)(6) motion to dismiss asks whether the complaint
“contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
The Court will not accept legal conclusions or conclusory
allegations as sufficient to state a claim for relief.
See McCauley v. City of Chicago, 671 F.3d
611, 617 (7th Cir. 2011). Factual allegations must plausibly
state an entitlement to relief “to a degree that rises
above the speculative level.” Munson v. Gaetz,
673 F.3d 630, 633 (7th Cir. 2012). This plausibility
determination is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id.
following are the factual allegations in the Amended
Complaint - the operative complaint in this case - which the
Court must accept as true at this time.
Gunns live in Fishers, Indiana. [Filing No. 18 at
2.] TBV is a law firm which regularly engages in the
collection of consumer debts for others. [Filing No. 18
at 2.] On July 16, 2018, TBV sent a letter to the Gunns
(the “Letter”), which stated in relevant
Please be advised that this law firm has been retained by
Hamilton Proper Community Association, Inc. (hereinafter
“Creditor”) to collect this debt. The principal
and interest amount of the debt owed is presently $1, 944.40.
If Creditor is a landlord or a homeowner or condominium owner
association, principal and interest may continue to accrue
from the date of debt in accordance with the applicable
lease, declarations, or other documents. If this is a
landlord-tenant matter, Creditor may also seek eviction or
ejection. If Creditor has recorded a mechanic's lien,
covenants, mortgage, or security agreement, it may seek to
foreclose such mechanic's lien, covenants, mortgage, or
[Filing No. 18-1 at 2.]
TBV initiated a small claims lawsuit against the Gunns in
Hamilton Superior Court on October 3, 2018. [Filing No.
18-2 at 2-3.] Six months later, on April 5, 2019, the
Gunns filed this putative class action against TBV, and filed
the operative Amended Complaint on June 24, 2019. [Filing
No. 1; Filing No. 18.]
Amended Complaint, the Gunns focus on the statements in the
Letter that “If this is a landlord-tenant matter,
Creditor may also seek eviction or ejection. If Creditor has
recorded a mechanic's lien, covenants, mortgage, or
security agreement, it may seek to foreclose such
mechanic's lien, covenants, mortgage, or security
agreement.” [Filing No. 18 at 3.] They allege
that the Letter violates 15 U.S.C. §§ 1692e,
1692e(2), 1692e(4), 1692e(5), and 1692e(10) by
“re-fer[ring] to remedies which TBV is not entitled to
invoke and did not intend to invoke with respect to the
particular debt.” [Filing No. 18 at 4.]
moved to dismiss the Gunns' Amended Complaint,
[Filing No. 26], and the Gunns have filed a Motion
for Leave to Respond to New Matter In Defendant's Reply
In Support of Motion to Dismiss First Amended Complaint,
[Filing No. 34]. Additionally, TBV has objected ...