Rice v. Midland Credit Management, Inc.

933 F. Supp. 2d 1040, 2013 WL 1174729, 2013 U.S. Dist. LEXIS 38370
CourtDistrict Court, N.D. Illinois
DecidedMarch 20, 2013
DocketCase No. 12-cv-1395
StatusPublished
Cited by2 cases

This text of 933 F. Supp. 2d 1040 (Rice v. Midland Credit Management, Inc.) 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
Rice v. Midland Credit Management, Inc., 933 F. Supp. 2d 1040, 2013 WL 1174729, 2013 U.S. Dist. LEXIS 38370 (N.D. Ill. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, JR., District Judge.

For the reasons stated below, Defendants’ motion to dismiss [20] is granted. Plaintiffs motion for class certification [41] is denied as moot. Additionally, Plaintiffs motion for leave to file a sur-reply [26] is granted; the Court considered Plaintiffs sur-reply [26] and Defendants’ objection to Plaintiffs sur-reply [29] in deciding Defendants’ motion to dismiss. Finally, in view of the granting of Defendants’ motion to dismiss, Plaintiffs motion for leave to conduct deposition of expert witness [56] is denied. This case is set for status hearing on April 3, 2013, at 10:00 a.m.

I. Background

Plaintiff Linda Rice alleges that beginning in April 2011 Defendants sent her a series of letters to collect on a debt. The letters offer Plaintiff a way to “resolve this obligation with a plan that fits your particular situation” and an opportunity to “settle your account” with monthly payment plans that discount the alleged debt. The last payment on the alleged debt was on January 19, 2006. The statute of limitations on a credit card bill in Illinois, where Plaintiff resides, is five years. Nothing in the letters sent to Plaintiff disclosed that the debt was barred by the statute of limitations in Illinois or disclosed the date of the transactions that gave rise to the alleged debt.

Plaintiff alleges that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692e(2), 1692e(10), and 1692f by sending her letters claiming a right to collect a time-barred debt. Defendants have moved to dismiss [20].

II. Legal Standard

The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir.1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiffs complaint and draws all reasonable inferences in his favor. Killingsworth v. HSBC Bank Nevada, NA, 507 F.3d 614, 618 (7th Cir.2007). To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief’ (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief [1043]*1043above the “speculative level,” assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, “[sjpecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir.2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir.1999) (“Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.”).

III. Analysis

The FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in collection of any debt.” 15 U.S.C. § 1692e. In its (nonexclusive) list of violations, § 1692e prohibits the false representation of “the character, amount, or legal status of any debt.” 15 U.S.C. § 1692e(2)(A). Moreover, “[a] debt collector may not use unfair or unconscionable means to collect any debt,” including “[t]he collection of any amount * * * unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. §§ 1692f, 1692f(l).

Plaintiff alleges that “Defendants engaged in unfair and deceptive. acts and practices * * * by dunning consumers on time-barred debts without disclosure of that fact.” Compl. ¶ 46. “The nondisclosure is exacerbated by the offer of a ‘settlement’ * * *. The offer of a settlement implies a colorable obligation to pay.” Compl. ¶ 46.

To begin, the Court agrees with Plaintiff that the offer in Defendants’ letters to “settle your account” implies a “colorable obligation to pay.” Indeed it does,. and not improperly, for in Illinois “[sjtatutes of limitations are procedural, merely fixing the time in which the remedy for a wrong may be sought, and do not alter substantive rights.” See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A, 199 Ill.2d 325, 264 Ill.Dec. 283, 770 N.E.2d 177, 194 (2002). In other words, under Illinois law, “the statute of limitations bars a specific remedy; it does not extinguish indebtedness.” Walker v. Cash Flow Consultants, Inc., 200 F.R.D. 613, 616 (N.D.Ill.2001). If the indebtedness is not extinguished, there is an obligation to pay, even if that obligation could not be enforced in court because the defendant would have a winning limitations defense. See Crawford v. Vision Financial Corp., 2012 WL 5383280, at *2 (N.D.Ill. Nov. 1, 2012). In this case, Plaintiff is not challenging her obligation to repay the alleged debt, but only whether the FDCPA requires Defendants to disclose the nature of her obligation, and specifically that it is not an obligation that Defendants could enforce through a lawsuit.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Scott McMahon v. LVNV Funding, LLC
744 F.3d 1010 (Seventh Circuit, 2014)
Buchanan v. Northland Group, Inc.
20 F. Supp. 3d 606 (W.D. Michigan, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
933 F. Supp. 2d 1040, 2013 WL 1174729, 2013 U.S. Dist. LEXIS 38370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-midland-credit-management-inc-ilnd-2013.