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

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

December 23, 2019

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

          ORDER

          Hon. Jane Magntts-Stinson, Chief Judge

         Plaintiffs 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].

         On 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.

         I.

         Standard of Review

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)).

         II.

         Background

         The 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 Dismiss.

         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 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. ยงยง 1692e, 1692e(2), 1692e(4), 1692e(5), and 1692e(10) by ...


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