United States District Court, E.D. Wisconsin
RYAN BOUCHER, HEATHER BOUCHER, CHRISTOPHER DETTLOFF, and ADAM DUCH, on behalf of themselves and all others similarly situated, Plaintiffs,
FINANCE SYSTEM OF GREEN BAY, INC. and JOHN AND JANE DOES NUMBERS 1 THROUGH 25, Defendants.
DECISION AND ORDER GRANTING MOTION TO
William C. Griesbach, Chief Judge United States District
Ryan Boucher, Heather Boucher, Christopher Dettloff, and Adam
Duch sued Defendant Finance System of Green Bay, Inc., for
violating the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692, et seq. (“FDCPA”).
Plaintiffs allege that Finance System sent debt collection
letters which falsely stated that the balances owed might
increase “due to interest, late charges and other
charges, ” even though Finance System had no authority
or intent to charge “late charges and other
charges.” On April 10, 2017, Finance System moved to
dismiss Plaintiffs' complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the reasons below, the motion
to dismiss will be granted.
following allegations are taken directly from Plaintiffs'
complaint and are accepted as true for the purpose of the
motion to dismiss. Ameritech Corp. v. McCann, 297
F.3d 582, 585 (7th Cir. 2002). Each named plaintiff is
alleged to have incurred and defaulted on a financial
obligation for medical services. Compl. (ECF No. 1),
¶¶ 22, 45, 66. The creditor of those medical debts
then assigned, placed, or transferred the debt to Finance
System for collection. Id. at ¶¶ 27, 50,
System sent a collection letter to each of the plaintiffs,
which included the following statement:
As of the date of this letter, you owe $ [stated amount].
Because of interest, late charges, and other charges that may
vary from day to day, the amount due on the day you pay may
be greater. Hence, if you pay the amount shown above, an
adjustment may be necessary after we receive your check. For
further information, write to the address above or call
Ex. A (ECF No. 1-1); Ex. B (ECF No. 1-2); Ex. C (ECF No.
allege upon information and belief that late charges or other
charges could never be lawfully imposed on the medical debts,
that late charges or other charges were never imposed, and
that Finance Services never intended to impose late charges
or other charges. Compl. ¶¶ 35-41, 56-62, 77-83.
They acknowledge, however, that Finance System is entitled to
collect interest on the medical debts and that Finance System
retains the collected interest as profit. Id. at
¶¶ 44, 65, 86.
on these allegations, Plaintiffs claim that Finance
System's collection letters are materially false,
deceptive, and misleading in violation of the FDCPA. They
allege that Finance System's letters falsely suggest to
unsophisticated consumers that their debt will increase an
undisclosed amount every day due to “late charges and
other charges”; that the letters make false threats to
take action that cannot be legally taken and/or that is not
intended to be taken; that Finance System is using false
representations and/or deceptive means to collect or attempt
to collect a debt; and that Finance System fails to provide
the amount of the debt. Id. at ¶ 104.
System has moved for dismissal for failure to state a claim.
Finance System contends that the statement of debt in its
collection letters does not violate the FDCPA because the
language used is nearly identical to the safe harbor language
the Seventh Circuit held satisfied the debt collector's
duty to state the amount of the debt in Miller v.
McCalla, Raymer, Padrick, Cobb, Nichols & Clark,
LLC, 214 F.3d 872, 876 (7th Cir. 2000). Finance System
also argues that because Finance System was authorized by the
creditor to add 5% interest per year on Plaintiffs'
accounts, the letters were not materially false, deceptive,
or misleading in violation of the FDCPA. Exs. A-C.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint to state a claim upon which
relief may be granted. Fed.R.Civ.P. 12(b)(6). Rule 8(a)(2)
mandates that a complaint need only include “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 held that a complaint must contain factual
allegations that “raise a right to relief above the
speculative level.” Bell Alt. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While a plaintiff is
not required to plead detailed factual allegations, he or she
must plead “more than labels and conclusions.”
Id. A simple, “formulaic recitation of the
elements of a cause of action will not do.”
Id. In evaluating a motion to dismiss, the court
must view the plaintiff's factual allegations and any
inferences reasonably drawn from them in a light most
favorable to the plaintiff. Yasak v. Retirement Bd. of
the Policemen's Annuity & Benefit Fund of Chi.,
357 F.3d 677, 678 (7th Cir. 2004).
Fair Debt Collection Practices Act is aimed at remedying the
use of “abusive, deceptive, and unfair debt collection
practices.” 15 U.S.C. § 1692(a). “Among
other things, the FDCPA regulates when and where a debt
collector may communicate with a debtor, restricts whom a
debt collector may contact regarding a debt, prohibits the
use of harassing, oppressive, or abusive measures to collect
a debt, and bans the use of false, deceptive, misleading,
unfair, or unconscionable means of collecting a debt.”
Gburek v. Litton Loan Servicing LP, 614 F.3d 380,
384 (7th Cir. 2010) (citing §§ 1692, 1692c-1692f).
Two threshold criteria must be met for a claim under the
FDCPA: the defendant must be a “debt collector”
and “the communication that forms the basis of the suit
must have been made ‘in connection with the collection
of any debt.'” Id. (citing §§
1692c(a)-(b), 1692e, 1692g). Here, the parties do not dispute
for the ...