United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM E. DUFFIN U.S. Magistrate Judge.
Enterprises, Inc., a debt collector, sent a debt collection
letter to Michael Machnik regarding a debt that Machnik
allegedly owed to Advanced Pain Management. (ECF No. 1,
¶¶ 5, 8.) At its top, the letter referred to
$134.15 due for service on September 26, 2012. (ECF No. 1-1
at 2.) The letter continued:
The above-listed Service Balance is specific to the listed
Service Date. You may have additional accounts owing with RSI
Enterprises, Inc. Should you owe for multiple accounts, you
will find an additional page enclosed, which breaks down the
total amount due, by account. As of the date of this letter,
$1244.93 is the total amount due for any outstanding accounts
with RSI, including the listed Service Balance.
ADVANCED PAIN MANAGEMENT assigned this balance to RSI
Enterprises, Inc. for collection on 04-27-17.
(ECF No. 1-1 at 2.) Included with the letter was a sheet
containing 15 entries each consisting of a “Cliref #,
” a “Serv Date, ” and a
“Balance.” (ECF No. 1-1 at 4.) At the bottom of
this list is, “Total 1244.93”.
filed the present action alleging that RSI's letter
violated various provisions of the Fair Debt Collection
Practices Act (FDCPA). (ECF No. 1, ¶¶ 31-34.) He
contends the letter is confusing because it “is unclear
whether RSI is collecting the entire $1, 244.93 balance or
just the $134.15 that was represented to be the
‘service date balance.'” (ECF No. 1 ¶
moved to dismiss the complaint pursuant to Fed.R.Civ.P.
12(b)(6). (ECF No. 7.) It contends that the letter is not
plausibly confusing. Rather, “[i]t should be patently
obvious to Plaintiff that RSI is attempting to collect the
debt that is the subject of the letter, as well as the total
amount due to the same creditor.” (ECF No. 7 at 3-4.)
The briefing on the motion is complete and the matter is
ready for resolution. All parties have consented to the full
jurisdiction of a magistrate judge. (ECF Nos. 4, 5.)
purposes of a motion to dismiss under Fed. R. 12(b)(6), the
court accepts all well-pleaded factual allegations in the
complaint as true and draws all reasonable inferences in
favor of the plaintiff. Heng v. Heavner, Beyers &
Mihlar, LLC, 849 F.3d 348, 351 (7th Cir. 2017).
“To avoid dismissal, the complaint must ‘state a
claim to relief that is plausible on its face.'”
Id. (quoting Jackson v. Blitt & Gaines,
P.C., 833 F.3d 860, 862 (7th Cir. 2016)). “A
motion to dismiss under Rule 12(b)(6) doesn't permit
piecemeal dismissals of parts of claims; the question at this
stage is simply whether the complaint includes factual
allegations that state a plausible claim for relief.”
BBL, Inc. v. City of Angola, 809 F.3d 317,
325 (7th Cir. 2015). Requests for relief as to a part of a
claim are a matter for summary judgment. Id. (citing
presents a single claim in his complaint. (ECF No. 1,
¶¶ 31-34.) Specifically, he asserts that
“RSI's conduct violates 15 U.S.C. §§
1692e, 1692e(2)(a), 1692e(10), 1692(f) [sic] and
1692g(a)(1).” (ECF No. 1, ¶ 34.) Although there
are numerous ways a debt collector may violate the FDCPA, for
present purposes the court focuses upon Machnik's
contention that the letter he received from RSI violated 15
U.S.C. § 1692e. Specifically, the court looks to whether
RSI used “any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e.
the debt collector's letter complies with the statute is
determined objectively; the inquiry is whether an
‘unsophisticated consumer or debtor' would be
confused by the contents of the letter.” McKinney
v. Cadleway Props., Inc., 548 F.3d 496, 503 (7th Cir.
2008) (quoting Durkin v. Equifax Check Servs., Inc.,
406 F.3d 410, 414 (7th Cir. 2005)); see also Bravo v.
Midland Credit Mgmt., 812 F.3d 599, 603 (7th Cir. 2016).
“The unsophisticated debtor is ‘uninformed,
naive, [and] trusting' but is also assumed ‘to
possess rudimentary knowledge about the financial world and
is capable of making basic logical deductions and
inferences.'” McKinney, 548 F.3d at 503
(quoting Durkin, 406 F.3d at 414). An
unsophisticated consumer will also have “a reasonable
knowledge of her account's history.” Wahl v.
Midland Credit Mgmt., 556 F.3d 643, 646 (7th Cir. 2009).
“Additionally, while the unsophisticated consumer
‘may tend to read collection letters literally, he does
not interpret them in a bizarre or idiosyncratic
fashion.'” Gruber v. Creditors' Prot.
Serv., 742 F.3d 271, 274 (7th Cir. 2014) (quoting
Pettit v. Retrieval Masters Creditors Bureau, Inc.,
211 F.3d 1057, 1060 (7th Cir. 2000)).
communication tactics include flat-out contradiction,
overshadowing the information with other text or formatting,
or ‘failure to explain an apparent though not actual
contradiction.'” McKinney, 548 F.3d at 503
(quoting Bartlett v. Heibl, 128 F.3d 497, 500 (7th
Cir. 1997)). A letter may violate the FDCPA if “the
letter's language unacceptably increases the level of
confusion.” Sims v. GC Servs. L.P., 445 F.3d
959, 963 (7th Cir. 2006).
context of a motion to dismiss, the court must be especially
cautious when faced with questions of whether a statement is
false, deceptive, or misleading. McMillan v. Collection
Professionals, Inc., 455 F.3d 754, 759 (7th Cir. 2006).
“[A] determination as to whether a statement is
confusing under the FDCPA, is a fact-bound determination of
how an unsophisticated consumer would perceive the
statement.” Marquez v. Weinstein, Pinson &
Riley, P.S., 836 F.3d 808, 812 (7th Cir. 2016); see
also Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d
769, 776 (7th Cir. 2007) (stating that, although deception is
a question of fact rather than of law, dismissal of an action
may sometimes be appropriate). “‘[J]udges are not
good proxies for the ‘unsophisticated consumer'
whose interest the statute protects.' Accordingly, Rule
12(b)(6) dismissal on that issue is appropriate only if there
is no set of facts consistent with the pleadings under which
the plaintiffs could obtain relief.” Marquez,
836 F.3d at 812 (quoting McMillan, 455 F.3d at 759).
court finds it unnecessary at this point to consider
questions such as the propriety of RSI listing in a single
letter both the new balance it was assigned as well as the
overall balance, including other accounts, that it was
attempting to collect from Machnik. The court's focus is
the letter says, “ADVANCED PAIN MANAGEMENT assigned
this balance to RSI Enterprises, Inc. for collection on
04-27-17, ” what is “this balance”? Is it
the $134.15 or the $1, 244.93? More importantly, what is the
debtor expected to pay? At the bottom of the letter is a
remittance form that RSI requests be returned with any
payment. It contains an address where payments should be sent
and a space to provide a credit card number. At the very
bottom is the reference number ending 9/26/2012 ...