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Mikolajczyk v. Universal Fidelity LP

United States District Court, E.D. Wisconsin

February 22, 2017



          WILLIAM E. DUFFIN U.S. Magistrate Judge

         I. Facts and Procedural History

         Plaintiff Christine Mikolajczyk received an initial debt collection letter from defendant Universal Fidelity, LP dated September 6, 2016. (ECF No. 1-1.) The letter included a box that Mikolajczyk could check to indicate, “I am disputing the validity of this debt.” (ECF No. 1-1 at 3.) Following that box was printed, “Reason for Dispute (required):” and then four blank lines where a reason could be written. (ECF No. 1-1 at 3.)

         On October 14, 2016, Mikolajczyk filed suit alleging that Universal violated the Fair Debt Collection Practices Act (FDCPA) by stating that a consumer was required to provide a reason why she was disputing the debt. Universal filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 5.) All parties consented to the full jurisdiction of a magistrate judge (ECF Nos. 4, 9) and the motion is ready for resolution.

         II. Motion to Dismiss Standard

         “To state a claim, a complaint must first provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” Bonnstetter v. City of Chi., 811 F.3d 969, 973 (7th Cir. 2016) (quoting Fed.R.Civ.P. 8(a)(2)). “A pleader's responsibility is to state a claim for relief that is plausible on its face.” Huri v. Office of the Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826, 832-33 (7th Cir. 2015). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim the court may consider only the pleadings. See Rule 12(d). The pleadings here include the complaint and the letter Mikolajczyk appended to the complaint. Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). The court accepts all well-pleaded facts in the complaint as true and draws all reasonable inferences in favor of the non-moving party. Huri, 804 F.3d at 832-33.

         III. Analysis

         Mikolajczyk alleges that by requiring her to provide a reason if she wished to dispute the debt Universal violated both 15 U.S.C. §§ 1692g(a) and 1692e. (ECF No. 1, ¶ 30.) 15 U.S.C. § 1692g(a) requires a debt collector to provide a consumer with certain written notices when initially communicating with the consumer in connection with the collection of a debt. Specifically relevant here is the requirement that the debt collector provide the consumer with “a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.” 15 U.S.C. § 1692g(a)(1)(4). 15 U.S.C. § 1692e is a broader proscription against debt collectors using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

         Universal sets forth three arguments for dismissal. “First, Universal asking for a ‘reason for dispute' was not misleading.” (ECF No. 5-1 at 9.) Second, an unsophisticated consumer would not find contradictory the notice Universal provided pursuant to 15 U.S.C. § 1692g. (ECF No. 5-1 at 6-8.) Third, Mikolajczyk's claim under 15 U.S.C. § 1692e must be dismissed because she failed to sufficiently allege that allegedly misleading statement was material. (ECF No. 5-1 at 8-10.)

         A. Asking a Debtor to Give a Reason for Disputing a Debt

         In support of its argument that it was not misleading to ask Mikolajczyk to provide a reason for disputing the debt, Universal relies upon Huebner v. Midland Credit Mgmt., Inc., No. 14 CIV. 6046 (BMC), 2016 WL 3172789, at *1 (E.D.N.Y. June 6, 2016). In Huebner, the plaintiff alleged “that defendant violated § 1692e(10), by falsely representing that he needed to give a reason for his dispute and attempting to obtain more information from him.” Huebner, 2016 WL 3172789, at *3. The court found “nothing unreasonable about allowing a debt collector to ask an individual to explain why he is disputing his debt, as long as it does not interfere with an individual's ability to dispute that debt.” Id. at *5. The court continued:

Asking follow-up questions enables the debt collector to focus its investigation on what the problem is with the debt, rather than shooting in the dark. It might even allow the collection agency to resolve the dispute on the spot. If the consumer answers the question by saying, “I only owe $120, not $131, ” the collection agent might well say, “fine, we'll take it.” Problem solved.


         If this case was simply about whether a debt collector could ask for the consumer's reason for disputing the debt, Huebner would seem to be analogous. But Universal did not simply provide a space for Mikolajczyk to explain the nature of her dispute. It stated that an explanation was “required, ” suggesting that she could not dispute the ...

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