United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
filed this class action on December 13, 2017. (Docket #1).
She sues Defendant for sending her, and members of the
putative class, allegedly misleading debt collection letters.
Id. Plaintiff brings claims under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., and the Wisconsin Consumer Act
(“WCA”), Wis.Stat. §§ 421, 427 et
seq. Defendant moved to dismiss Plaintiff's
Complaint on March 16, 2018. (Docket #9). That motion is now
fully briefed. (Response, Docket #13; Reply, Docket #15). For
the reasons stated below, the motion must be denied.
STANDARD OF REVIEW
has moved to dismiss Plaintiff's Complaint pursuant to
Federal Rule of Civil Procedure (“FRCP”)
12(b)(6). That Rule provides for dismissal of complaints
which fail to state a viable claim for relief. Fed.R.Civ.P.
12(b)(6). In reviewing Plaintiff's Complaint, the Court
is required to “accept as true all of the well-pleaded
facts in the complaint and draw all reasonable inferences in
[her] favor[.]” Kubiak v. City of Chicago, 810
F.3d 476, 480-81 (7th Cir. 2016) (citation omitted). To state
a viable claim, a complaint must provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other
words, the complaint must give “fair notice of what the
. . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). The allegations must “plausibly
suggest that the plaintiff has a right to relief, raising
that possibility above a speculative level[.]”
Kubiak, 810 F.3d at 480 (quotation omitted).
addition to the FRCP 12(b)(6) standard of review, the Seventh
Circuit has provided additional direction in evaluating the
viability of FDCPA claims. Such claims are assessed from the
perspective of the “unsophisticated consumer.” An
unsophisticated consumer “may be uninformed,
naïve, [and] trusting, but is not a dimwit, has
rudimentary knowledge about the financial world, and is
capable of making basic logical deductions and
inferences[.]” Lox v. CDA, Ltd., 689 F.3d 818,
822 (7th Cir. 2012) (citations and quotations omitted).
Although unsophisticated consumers “may tend to read
collection letters literally, [they] do not interpret them
in a bizarre or idiosyncratic fashion.” Gruber v.
Creditors' Protection Serv., Inc., 742 F.3d 271, 274
(7th Cir. 2014) (citations and quotations omitted). In the
case of letter-based FDCPA violations, the court considers
whether the subject letter is “confusing to a
significant fraction of the population.” Id.
prove a claim that language in a collection letter is
misleading or deceptive, the Court of Appeals has established
three categories of cases:
The first category includes cases in which the challenged
language is “plainly and clearly not misleading.”
No. extrinsic evidence is needed to show that the debt
collector ought to prevail in such cases. Lox[, 689
F.3d at 822]. The second Lox category
“includes debt collection language that is not
misleading or confusing on its face, but has the potential to
be misleading to the unsophisticated consumer.”
Id. In such cases, “plaintiffs may prevail
only by producing extrinsic evidence, such as consumer
surveys, to prove that unsophisticated consumers do in fact
find the challenged statements misleading or
deceptive.” Id., quoting Ruth [v. Triumph
P'ships, 577 F.3d 790, 800 (7th Cir. 2009)]. The
third category is cases in which the challenged language is
“plainly deceptive or misleading, ” such that no
extrinsic evidence is required for the plaintiff to prevail.
Janetos v. Fulton Friedman & Gullace, LLP, 825
F.3d 317, 322-23 (7th Cir. 2016). Defendant seeks dismissal
of each of Plaintiff's claims, asserting that they fall
into the first category. The Seventh Circuit “ha[s]
cautioned that a district court must tread carefully before
holding that a letter is not confusing as a matter of law
when ruling on a Rule 12(b)(6) motion because district judges
are not good proxies for the ‘unsophisticated
consumer' whose interest the statute protects.”
McMillan v. Collection Prof'ls, Inc., 455 F.3d
754, 759 (7th Cir. 2006) (quotation omitted).
the truth of Plaintiff's well-pleaded allegations and
drawing all reasonable inferences in her favor, the relevant
facts are as follows. Plaintiff allegedly owes a debt to
“Monroe & Main, ” through which she had
opened a store credit card. (Docket #1 at 2). Defendant sent
her a letter attempting to collect that debt on March 10,
2017 (the “Letter”). (Docket #1-1 at
2-3).The Letter states, in pertinent part:
Id. at 2. The Letter does not define
“promptly” and does not state a firm expiration
date for the settlement offer. Id.
states her claims against Defendant in four counts. Counts
One through Three are FDCPA claims. In Count One, Plaintiff
alleges that Defendant's failure to define
“promptly” is misleading, as it does not clearly
define when the settlement offer expires. (Docket #1 at 11).
A consumer might mail in the settlement payment only to be
told that the settlement offer had already expired.
Id. at 11-12. Count Two contends that the Letter
falsely implies that its settlement offer is made for a
limited time, and thus the consumer must hurry to accept it.
Id. at 12. Plaintiff says this is false; Defendant
could accept a settlement payment at any time. Id.
In the same vein, Count Three asserts that the threat to
revoke the offer is false, in that neither Defendant nor the
creditor ever intended to ...