United States District Court, S.D. Indiana, Indianapolis Division
Jane Magntts-Stinson, Chief Judge
Linda and Christopher Gunn initiated this action against
Defendant Thrasher, Buschmann & Voelkel, P.C.
(“TBV”), a collection agency and law
firm, after TBV sent a collection letter to the Gunns related
to certain homeowners association fees they allegedly owed.
The Gunns sued TBV for violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692e,
(“FDCPA”), and on November 12, 2019 the
Court granted TBV's Motion to Dismiss and entered final
judgment against the Gunns, [Filing No. 38;
Filing No. 39].
November 14, 2019, the Gunns filed a Motion for
Reconsideration based on a case decided by the Seventh
Circuit Court of Appeals a few days before the Court
dismissed this case. [Filing No. 40.] That motion is
now fully briefed and ripe for the Court's decision.
Affording relief through granting a motion for
reconsideration brought pursuant to Fed.R.Civ.P. 59(e) is an
“extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2009). Rule 59 motions are for the limited purpose
of “correct[ing] manifest errors of law or fact
or…present[ing] newly discovered evidence.”
Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d
246, 251 (7th Cir. 1987) (citation and quotation omitted).
“A ‘manifest error' is not demonstrated by
the disappointment of the losing party. It is the
‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.'” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (quoting Sedtrak v. Callahan, 987 F.Supp.
1063, 1069 (N.D. Ill. 1997)).
following is taken largely from the Court's Order on
TBV's Motion to Dismiss, in which the Court set forth the
factual allegations in the Amended Complaint, which it was
required to accept as true for purposes of the Motion to
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 focused 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 alleged
that the Letter violates 15 U.S.C. §§ 1692e,
1692e(2), 1692e(4), 1692e(5), and 1692e(10) by