United States District Court, E.D. Wisconsin
PAMELA HENNINGS, on behalf of herself and all others similarly situated, Plaintiff,
ALLTRAN FINANCIAL, LP f/k/a J.C. CHRISTENSEN AND ASSOCIATES, Defendant.
DECISION AND ORDER ON DEFENDANT'S MOTION TO
JOSEPH United States Magistrate Judge.
Hennings filed an amended class action complaint against
Alltran Financial, LP, formerly known as J.C. Christensen and
Associates, alleging violations of the Fair Debt Collection
Practices Act (“FDCPA”) based on actions taken by
Alltran in the course of collecting a debt owed to American
General Finance f/k/a Springleaf Financial. (Docket # 10.)
Alltran has filed a motion to dismiss Hennings' amended
complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds
that she has failed to state a claim upon which relief can be
granted as to her 15 U.S.C. §§ 1692g and 1692e
claims, and that she does not have Article III standing to
bring this lawsuit. (Docket # 13.) For the reasons that
follow, the defendant's motion to dismiss is granted in
part and denied in part.
alleges in her complaint that she incurred a consumer debt to
American General Finance f/k/a Springleaf Financial
(“AGF”). (Am. Compl. ¶ 7, Docket # 10.) She
alleges that she filed for bankruptcy in 2011 and received a
discharge on the debt owed to AGF on March 12, 2012.
(Id. ¶ 8.) Hennings alleges that sometime after
discharge, AGF sold her account to LVNV Funding, LLC.
(Id. ¶ 9.) LVNV sued Hennings' ex-husband
regarding the AGF debt in 2014 and was granted a judgment
against Hennings' ex-husband. (Id. ¶¶
10, 12.) Hennings was not named as a defendant in the action.
(Id. ¶ 11.)
alleges that LVNV sold or assigned Hennings' discharged
account to the defendant, J.C. Christensen and Associates.
(Id. ¶ 13.) Hennings alleges that the defendant
is attempting to collect on the judgment from Hennings
despite the fact that it knew or should have known that
Hennings was not a judgment debtor and that she previously
discharged the debt in her bankruptcy. (Id. ¶
alleges that in attempting to collect the judgment from her,
the defendant sent a collection letter on or about July 19,
2016. (Id. ¶ 15.) Hennings alleges that the
defendant violated the FDCPA because the collection letter is
confusing to the unsophisticated consumer as it demands a
payment within the statutory 30 day validation period or
shortly thereafter, and fails to explain how the validation
notice and the settlement “deadline” fit
together. (Id. ¶¶ 25, 46.) She further
alleges the defendant violated the FDCPA by attempting to
collect on a judgment that was not against Hennings.
(Id. ¶ 52.)
moves to dismiss for failure to state a claim upon which
relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). A
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). The Supreme Court has
interpreted this language to require that the plaintiff plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In Ashcroft v.
Iqbal, the Supreme Court elaborated further on the
pleadings standard, explaining that 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, ”
though this “standard is not akin to a
‘probability requirement.'” 556 U.S. 662, 678
(2009). The allegations in the complaint “must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (internal
citation omitted). Rule 12(b)(6) does not permit the court to
consider matters outside the complaint without converting the
motion into a motion for summary judgment, Fed.R.Civ.P.
initial matter, Alltran argues that Hennings has not
satisfied her burden of establishing Article III standing
because she did not plead that she qualifies as a consumer
under the FDCPA or that she has suffered an actual injury.
(Def.'s Br. at 9, Docket # 13.) Although framed as a
standing issue, Alltran's first argument-that Hennings
has not properly pleaded that she qualifies as a consumer-is
really an argument that she has not properly pleaded a cause
of action under the FDCPA, which applies to consumer debt;
that is, it must be for personal, family, or household
purposes. 15 U.S.C. § 1692(a)(5). Hennings alleges that
she incurred a “consumer debt as that term is defined
at 15 U.S.C. § 1692a(5) to American General Finance
f/k/a Springleaf Financial.” (Am. Compl. ¶ 7.)
Hennings alleges no facts, however, to support the allegation
that her debt was consumer in nature. She makes no more than
a “[t]hreadbare recital[ ]” of the
“consumer debt” element of her FDCPA claims.
Hennings alleges no facts that allow me to draw the
reasonable inference that Alltran is liable for the
misconduct alleged. Thus, Hennings' entire amended
complaint should be dismissed on this basis. However, given
this failure is easy to remedy, I find it more prudent to
allow Hennings another opportunity to amend her complaint and
properly allege that she is a consumer who incurred a
does not address Alltran's argument regarding standing as
to her § 1692e claim (beyond stating in a footnote that
the reasoning as to her § 1692g arguments applies to any
right under the FDCPA). (Pl.'s Resp. Br. at 12, Docket
#14.) As will be discussed further below, Hennings'
§ 1692g claim will be dismissed. Thus, I will not
address the standing issue as to her § 1692e claim at
Section 1692g ― Overshadowing Claim
alleges that the collection letter is confusing, deceptive,
and/or misleading to the unsophisticated consumer. The letter
states, in relevant part, that J.C. Christensen and
Associates had been “contracted to lead and
represent” in the collection of the judgment awarded on
Hennings' Springleaf Financial Services account. (Am.
Compl. ¶ 15, Exh. B, Docket # 6-2.) The letter goes on
to say that the judgment may be forwarded to an attorney for
execution. (Id.) However, the letter provides that
J.C. Christensen and Associates had been given authorization
to negotiate settlement terms for satisfaction of the
judgment and provides three “settlement opportunities
to make voluntary resolution of your judgment a
reality.” (Id.) The letter articulates three
settlement options. Under the settlement options appears a
paragraph that states “[f]or accounting purposes, your
first payment toward the settlement must be received within
40 calendar days after the date of ...