Smith v. Encore Capital Group Inc.

966 F. Supp. 2d 817, 2013 WL 4507855, 2013 U.S. Dist. LEXIS 120132
CourtDistrict Court, E.D. Wisconsin
DecidedAugust 23, 2013
DocketCase No. 12-C-0859
StatusPublished
Cited by1 cases

This text of 966 F. Supp. 2d 817 (Smith v. Encore Capital Group Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Encore Capital Group Inc., 966 F. Supp. 2d 817, 2013 WL 4507855, 2013 U.S. Dist. LEXIS 120132 (E.D. Wis. 2013).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (DOC. 20)

C.N. CLEVERT, JR., District Judge.

Christopher Smith brings this action seeking to recover damages from Encore Capital Group Inc., Midland Funding LLC., and Midland Credit Management Inc. (“MCM”) Smith claims that the defendants are debt collectors and violated numerous provisions of the Fair Credit Reporting Act (“FCRA”) along with the Fair Debt Collection Practices Act (“FDCPA”). Defendants are asking the court to dismiss the action for failure of the Second Amended Complaint to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). As discussed below, the motion will be granted in part and denied in part.

RULE 12(b)(6) STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). The complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). However, enough facts must be set forth in the complaint to state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.2007).

Rule 12(b)(6) requires a plaintiff to clear two hurdles. EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007). First, the complaint must describe the claim in sufficient detail to give a defendant fair notice of the claim and the grounds on which it rests. Id. Although specific facts are not necessary, “at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.” Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.2007). Second, the “allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ‘speculative level’; if they do not, the plaintiff pleads itself out of court.” Concentra Health Servs., 496 F.3d at 776 (citing Bell Atl., 550 U.S. at 555-56, 569 n. 14, 127 S.Ct. 1955). If, even assuming all of a plaintiffs facts are accurate, he has no legal claim, the case should be dismissed. See Payton v. Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999).

A complaint “ ‘may not be amended by the briefs in opposition to a motion to dismiss.’ ” Agnew v. NCAA, 683 F.3d 328, 348 (7th Cir.2012) (quoting Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989)). However, exhibits to a pleading are part of the pleading, Fed.R.Civ.P. 10(c), and consideration of such documents does not convert a motion to dismiss into a motion for summary judgment, Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir.2002).

When considering a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts and [821]*821drawing all possible inferences in the plaintiffs favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008).

Further, because Smith represents himself the court must liberally construe his allegations, no matter how inartfully drafted. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, “pro se litigants are not entitled to a general dispensation from the rules of procedure.” Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994).

ALLEGATIONS

A. Allegations in the Second Amended Complaint

According to the Second Amended Complaint, which is the operative pleading, defendants Encore Capital Group, Inc., Midland Funding LLC, and Midland Credit Management Inc. (“MCM”) operate together in the debt buying and debt collection business. (Doc. 15, ¶¶ 10-12.)

Smith received a letter from MCM dated February 15, 2012. (Doc. 15 ¶ 15, Ex. 2.) The letter said Midland Funding had recently purchased Smith’s “CIT BANK account, previously serviced by, or on behalf of, Dell Financial Services L.L.C.,” and MCM, a debt collector, had become the servicer of the obligation. (Doc. 15, Ex. 2 at 1.) MCM offered Smith a discount of ten percent off Smith’s debt if it received payment by March 31, 2012. (Doc. 15, Ex. 2 at 1.) The letter added that if such payment was made MCM would notify credit bureaus that the debt was paid in full and would .immediately stop all recovery activity. (Doc. 15, Ex. 2 at 1.) The second page of the letter included a statement that unless Smith notified MCM within thirty days that he disputed the validity of the debt or any portion thereof, MCM would assume the debt to be valid. Smith was told that if he notified MCM in writing within thirty days that the debt was disputed, MCM would obtain verification of the debt and would mail him such verification and that, if Smith so requested in writing within thirty days, MCM would provide the name and address of the original creditor. Further, the letter advised that as of February 15, 2012, Smith owed $778.27 but if he did not accept the offer to settle the account by March 31, 2012, the amount he owed “may be greater because of interest, late charges, and other charges that may vary from day to day.” (Doc. 15, Ex. 2 at 2.) Smith was warned “that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.” (Doc. 15, Ex. 2 at 2.)

Smith alleges that this letter contained an “implied threat to damage [his] credit worthiness in an attempt to coerce [him] into accepting MCM’s offer to settle an alleged debt.” (Doc. 15, ¶ 16.) On March 6, 2012, Smith sent MCM a letter disputing the debt. (Doc. 15 ¶ 17.) MCM then responded with a letter dated April 2, 2012, stating that in accordance with Smith’s request, “enclosed are documents for the above-referenced account.” (Doc. 15, Ex. 4 at 2.) The letter indicated that MCM was “requesting an immediate payment of balance in full.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
966 F. Supp. 2d 817, 2013 WL 4507855, 2013 U.S. Dist. LEXIS 120132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-encore-capital-group-inc-wied-2013.