Carlvin v. Ditech Financial LLC

237 F. Supp. 3d 753, 2017 WL 635151, 2017 U.S. Dist. LEXIS 21671
CourtDistrict Court, N.D. Illinois
DecidedFebruary 16, 2017
DocketCase No. 16-CV-08386
StatusPublished
Cited by8 cases

This text of 237 F. Supp. 3d 753 (Carlvin v. Ditech Financial LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlvin v. Ditech Financial LLC, 237 F. Supp. 3d 753, 2017 WL 635151, 2017 U.S. Dist. LEXIS 21671 (N.D. Ill. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, United States District Court Judge

On August 26, 2016, Plaintiff Belinda Carlvin brought the present Complaint against Ditech Financial Services, LLC and Landmark Asset Receivables Management, LLC, collectively “Defendant,”1 alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), , specifically, 15 U.S.C. § 1692e(5) and e(10). Before the Court is Defendant’s motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, [755]*755the Court grants Defendant’s motion in part and denies it in part.

BACKGROUND

Defendant is a Delaware limited liability company that maintains its principal office in Florida. (R. 1, Compl. ¶ 5.) Defendant is registered to do business in Illinois, and its registered agent and office is CT Corporation System, of Chicago, Illinois. (Id.) Plaintiff alleges that Defendant is a debt collector as defined by the FDCPA, and its business entails the collection of debts originally owed to" others using the mails and telephone. (Id. ¶¶ 6-9.)

Plaintiff incurred an alleged debt in relation to a home residential mortgage and subsequently went into default. (Id. ¶¶ lb-16.) Defendant purchased Plaintiffs debt, and on October 26, 2015, Defendant sent Plaintiff a letter in an attempt to collect the debt. (Id. ¶¶ 17-18.) The letter contained information about the debt, including the identity of the creditor and an account- number. (Id. ¶ 19.) On' or about October 27, 2015, Defendant sent Plaintiff another letter conveying information about the debt, including an account number and a current balance. The October 27 letter stated, in part: “Ditech is required to report any debt forgiveness to the Internal Revenue Service. This may result in consequences regarding your federal state or local tax liability.” (Compl. ¶ 25; see also R.l, Ex. E.) The October 27 letter also stated, “In addition, if you receive public assistance, the forgiveness of debt may affect your eligibility for these benefits,” (Compl. ¶ 38; see also R.l, Ex. E.) Finally, on or about November 23, 2015, Defendant sent Plaintiff a privacy notice regarding the Plaintiffs debt. (Compl. ¶ 43). The notice conveyed information about the debt, including the identity of the creditor and an account number, and informed Plaintiff that Defendant can share personal information it collects from Plaintiff, including her Social Security number, income, payment history, and credit history. (Id. ¶¶ 44, 49; see also R.1, Ex. F.) The notice stated that Defendant will share her personal information with “other financial companies,” “affiliates,” and “non-affiliates.” (Compl. ¶ 51; see also R.l, Ex. F.)

In her Complaint, Plaintiff asserts three claims. First, Plaintiff alleges that Defendant’s October 27 letter violated U.S.C. §§ 1692e(5) and e(10) because it made materially false statements that Defendant reports all balances forgiven to the Internal Revenue Service (“IRS”) and that Defendant would report any debt forgiven to the IRS. (Compl. ¶¶ 64-65.) Second, Plaintiff alleges that the October 27 letter violated U.S.C. § 1692e(5) and e(10) because it attempted to coerce Plaintiff into paying her full debt by claiming that partial debt forgiveness would cause Plaintiff to lose public assistance. (Id. ¶ 66.) Third, Plaintiff alleges that Defendant’s privacy notice violated U.S.C. §§ 1692e(5) and e(10) by misstating the parties to whom Defendant could disclose Plaintiffs personal information and the protections Plaintiff had against such disclosures. (Id. ¶¶ 67-68.)

. LEGAL STANDARD

“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under’ Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) "must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Under the federal notice [756]*756pleading standards,. a plaintiffs “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Put differently, a “complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

In determining the sufficiency of a complaint , under the plausibility standard, courts must “accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs’ favor.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). When ruling on motions to dismiss, courts may also consider documents attached to the pleadings without converting the motion to dismiss into a motion summary judgment, as long as the documents are referred to in the complaint and central to the plaintiffs claims. See Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014); Fed. R. Civ. P. 10(c). Becáuse Plaintiff attaches photocopies of the collection letter and privacy notice to her Complaint and these documents are central to her claim, the Court may consider these attachments in ruling on the present motion.

ANALYSIS

Section 1692e(5) provides that it is a violation to “threaten] to take any action that cannot legally be taken or that is not intended to be taken.” (15 U.S.C. § 1692e(5).) Under § 1692e(10), it is a violation to use “any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a customer.” (15 U.S.C. § 1692e(10).)

Under well-settled Seventh Circuit precedent, “[cjlaims brought under the Fair Debt Collection Practices Act are evaluated under the- objective ‘unsophisticated consumer’ standard.” Gruber v. Creditors’ Prot, Serv., Inc.,

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237 F. Supp. 3d 753, 2017 WL 635151, 2017 U.S. Dist. LEXIS 21671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlvin-v-ditech-financial-llc-ilnd-2017.