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Gunn v. Thrasher, Buschmann & Voelkel, P.C.

United States District Court, S.D. Indiana, Indianapolis Division

November 12, 2019

Christopher Gunn and Linda Gunn, Plaintiffs,
v.
Thrasher, Buschmann & Voelkel, P.C., Defendant.

          ORDER

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE

         After 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.

         I.

         Standard of Review

         Under 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.

         II.

         Background

         The 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.

         The 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 part:

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 security agreement.

[Filing No. 18-1 at 2.]

         Subsequently, 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.]

         In the 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.]

         TBV has 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 ...


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