Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Myers v. Americollect Inc

United States District Court, E.D. Wisconsin

July 6, 2016

JENNIFER MYERS, Plaintiff,
v.
AMERICOLLECT INC., and AURORA HEALTH CARE INC., Defendants.

          ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS (DKT. NOS. 14, 21)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         On August 13, 2015, plaintiff Jennifer Myers filed a civil complaint alleging that defendants Americollect Inc. and Aurora Health Care Inc. had violated the Fair Debt Collection Practices Act (“FDCPA”) and the Wisconsin Consumer Act (“WCA”). Dkt. No. 1. On October 26, 2015, defendant Aurora Health Care Inc. responded to the complaint with a motion to dismiss. Dkt. No. 14. On November 5, 2015, defendant Americollect Inc. filed an answer, Dkt. No. 18, and on November 6, 2015, Americollect joined Aurora’s motion to dismiss, Dkt. No. 21. The parties have fully briefed the motions, and the court has heard oral arguments. For the reasons stated below, the court will deny the defendants’ motions to dismiss.

         I. FACTS

         In February of 2014, the plaintiff’s minor child-“K.M.”-received health services from defendant Aurora. Dkt. No. 1-2 at 2. In May of 2014, Aurora sent a bill, dated May 15, 2014, for those services; the bill was addressed to the minor child, K.M., and not to the plaintiff. Id. In early August 2014, Aurora sent a second bill-this time addressed to the plaintiff, not to the minor child. Dkt. No. 1-3 at 2. Later in August of 2014, Americollect sent a letter addressed to the minor child, dated August 16, 2014, announcing, “Your balance is past due.” Dkt. No. 1-1.

         The plaintiff alleges that she “was upset” by the bill her child received from Aurora and the letter her child received from Americollect, “and took time off work to visit an attorney.” Dkt. No. 1 at ¶22. She alleges that the bill and the letter also “confused and upset” her minor child, because the child “worried that she might be responsible for the alleged debt after she becomes 18 years old.” Id. The complaint does not indicate the minor child’s age (although it does state that she remained a minor as of the date of the filing of the complaint- August 13, 2015), or describe the type of services received (routine or emergency).

         II. PROCEDURAL HISTORY

         On August 13, 2015, the plaintiff filed a civil complaint alleging that the defendants violated the FDCPA and the WCA.[1] Dkt. No. 1. The complaint alleges that defendant Americollect violated the FDCPA by attempting to collect a debt from a minor who “is not liable for the alleged debt.” Id. at ¶46. The plaintiff also asserts that both defendants violated the WCA by “claim[ing], attempt[ing], or threaten[ing] to enforce a right to payment by” the minor child when both defendants “knew, or had reason to know that no such right existed at the time” they sent the bills and collection letters. Id. at ¶53.[2]

         On October 26, 2015, defendant Aurora filed a Rule 12(b)(6) motion to dismiss, Dkt. No. 14, and a supporting brief, Dkt. No. 15. On November 5, 2015, defendant Americollect answered the complaint. Dkt. No. 18. On November 6, 2015, Americollect filed a motion to dismiss. Dkt. No. 21. Americollect “joins” Aurora’s motion and “will rely” on Aurora’s pleadings to support its motion.[3] Id. at 1. On November 18, 2015, the plaintiff filed a brief in opposition to the motions to dismiss, Dkt. No. 22, and on December 7, 2015, the defendants replied. Dkt. No. 23. On December 10, 2015, the plaintiff filed a motion for leave to file a sur-reply or, in the alternative, a motion to strike new matters allegedly raised in the defendants’ reply brief. Dkt. No. 25. On December 14, 2015, the court denied the motion. Text-Only Order, Dec. 14, 2015. On January 28, 2016, the court held oral arguments on the motions. Dkt. No. 26.

         III. ANALYSIS

         A. Standard for Motions to Dismiss

         Defendant Aurora asks the court to dismiss Count II, the WCA claim, and Americollect joins the motion. Americollect also asks the Court to dismiss Count I, the FDCPA claim. To survive a Rule 12(b)(6) motion to dismiss, “a complaint must state a claim for relief that is plausible on its face.” Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court “draw[s] all reasonable inferences and facts in favor of the nonmovant, ” but the court “need not accept as true any legal assertions.” Id. (citing Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014)).

         “To state a plausible claim, a plaintiff is not, however, required to plead specific or detailed facts.” Modovi Dairy Sys., Inc. Empl. Benefit Plan v. Blue Cross and Blue Shield of Wisconsin, No. 15-CV-826, 2016 WL 109965 (E.D. Wis. Jan. 8, 2016) (citing Erickson v. Pardus, 551 U.S. 89, 93 (2007)). “‘[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.’” Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir. 2013) (quoting Twombly, 550 U.S. at 556).

         B. The plaintiff has stated a claim against Americollect under the FDCPA that is plausible on its face.

         Count I of the complaint alleges that in sending the August 2014 collection letter to K.M., Americollect violated the FDCPA.

         The FDCPA serves “to eliminate abusive debt collection by debt collectors, ” 15 U.S.C. §1629(e), and “is intended for the protection of unsophisticated consumers.” Evory v. RJM Acquisitions Funding LLC, 505 F.3d 769, 774 (7th Cir. 2007). The Act defines “debt collector” as “any person who uses any instrumentality or interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. §1692(a)(6). “For the FDCPA to apply . . . two threshold criteria must be met.” Gburek v. Litton Loan Servcing LP, 614 F.3d 380, 384 (7th Cir. 2010). First, the defendant must be a “debt collector, ” and second, the communication at issue “must have been made in connection with the collection of [a] debt.” Id. (citing 15 U.S.C. §§1692c(a)-(b), 1692e, and 1692g) (internal quotation marks omitted).

         The letter from Americollect to K.M. explicitly states, “This is a communication from a debt collector. This is an attempt to collect a debt.” Dkt. No. 1-1 at 2. Thus, for pleading purposes, the plaintiff has ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.