United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
case arises out of a debt-collection action that defendant
Messerli & Kramer, PA, filed on behalf of its client,
defendant Jefferson Capital Systems, LLC, against plaintiff
Traci Bahena. Bahena brings claims against defendants under
the Fair Debt Collection Practices Act (FDCPA) and the
Wisconsin Consumer Act (WCA). Dkt. 25. Defendants have moved
to dismiss the complaint for lack of jurisdiction and for
failure to state a claim. Dkt. 31 and Dkt. 36. The court will
deny defendants' motions.
court draws the following facts from Bahena's amended
complaint, Dkt. 25, documents referred to in it, and public
court records, see Jefferson Capital Systems, LLC v.
Bahena, No. 17-sc-11 (Lafayette Cty. Cir. Ct. filed
January 18, 2017), and accepts them as true for the purposes
of deciding defendants' motion. Lee v. City of
Chicago, 330 F.3d 456, 459, 468 (7th Cir. 2003).
January 2016, Bahena received a letter from Asset Recovery
Solutions attempting to collect a debt owed to
“Fingerhut Direct Marketing.” Dkt. 25, ¶ 11.
It listed Jefferson Capital as the “current
creditor.” Id. In July 2016, Bahena received a
second debt-collection letter listing Jefferson Capital as
the current creditor. The second letter was from Five Lakes
Agency and listed “Metabank/Fingerhut direct
Mrkting” as the “original creditor.”
Id. ¶ 13. Bahena did not recognize Asset
Recovery Solutions, Jefferson Capital, or Five Lakes Agency
as creditors of hers. Nor did she receive notice that she was
in default on any account or that she had the right to cure
January 2017, Bahena was served with a summons and small
claims complaint notifying her that she was being sued in
Lafayette County Circuit Court by “Jefferson Capital
Systems, LLC as successor in interest to Metabank c/o
Messerli & Kramer PA” for $1, 870.72 in credit card
debt. Dkt. 34-1, at 1. The small claims complaint was signed
by Jillian Walker, a Messerli attorney representing Jefferson
Capital. From 2007 to the fall of 2017, Walker was listed as
attorney of record in at least 11, 054 cases in six Wisconsin
counties. She also practices in Minnesota.
February 6, Bahena appeared at the Lafayette County
courthouse to contest the small claims complaint. At a March
6 status conference, another Messerli attorney, Peter
Lawrence, told the Lafayette County judge that he planned to
file a motion for summary judgment. Bahena sent discovery
requests to Messerli, but never received a response. Bahena
also retained a lawyer, Briane Pagel-the same attorney
representing her in this matter. Pagel “notified
Messerli of his appearance.” Id. at 23. He
also filed an answer and counterclaims for violation of
Wisconsin Statute section 427.104(1)(j) and
“unconscionable actions.” Dkt. 34-3, at 12. (The
document is titled “first amended answer, ”
id. at 4, but there's no record of an initial
answer being filed earlier.)
never filed the promised motion for summary judgment, but
around the same time Pagel appeared and filed counterclaims,
Messerli moved to dismiss the small claims case. The court
dismissed the case with prejudice on May 3, the same day it
received Pagel's filings. See Dkt. 34-4.
14, Bahena filed this lawsuit against Jefferson Capital and
Messerli asserting three causes of action. First, she claims
that defendants violated § 1692e of the FDCPA by falsely
representing that the debt at issue was “fully and
legally accelerated” and that Jefferson had the right
to file suit against her when in fact, the debt was not fully
and legally accelerated and Jefferson did not have the right
to file suit because it had not given her notice of her right
to cure default, as required by section 425.104 of the WCA.
Dkt. 25, ¶ 48. Second, she claims that the same false
representations violated section 427.104(1)(j) of the WCA.
Third, she claims that defendants violated § 1692e of
the FDCPA by falsely representing “that an attorney was
meaningfully involved in the debt collection process when . .
. . [i]n fact, there was no meaningful attorney
involvement.” Dkt. 25, ¶ 58. She alleges that
these three statutory violations caused her “emotional
distress and other actual damages.” Id. ¶
61. Specifically, she alleges that she “was made
extremely nervous and distressed at the prospect of going to
court on her own” and that she “incurred travel
costs and time loss from having to attend court and deal with
discovery issues.” Id.
move to dismiss Bahena's complaint for lack of
subject-matter jurisdiction, insufficient service of process,
and failure to state a claim. On all aspects of
defendants' motion, the court accepts Bahena's
well-pleaded factual allegations as true and draws all
reasonable inference from those facts in her favor.
Lee, 330 F.3d at 459, 468. When deciding the
jurisdictional issues, the court may consider supporting
evidence adduced by the parties; Bahena, as plaintiff, bears
the burden of establishing jurisdiction by a preponderance of
the evidence. Id. at 468. When it comes to the
arguments under Federal Rule of Civil Procedure 12(b)(6), the
court does not consider supporting evidence. Id. at
459. The question under Rule 12(b)(6) 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).
parties, attorneys, claims, defenses, and arguments in this
case are substantially similar to those in Satran v. LVNV
Funding, No. 17-cv-896 (W.D. Wis. filed Nov. 27, 2017).
In fact, it appears that both cases are part of a larger feud
between Bahena's attorney and Messerli. See,
e.g., Whitehead v. Discover Bank, No. 15-cv-261
(E.D. Wis. filed Mar. 9, 2015); LoMastro v. Baxter Credit
Union, No. 17-cv-962 (W.D. Wis. filed Dec. 29, 2017).
Much of the court's analysis in Satran applies
to this case, so the court will refer to Satran when
contend that the court lacks subject-matter jurisdiction
because (1) Bahena lacks standing to assert her claims and
(2) the Rooker-Feldman doctrine deprives this court
of subject-matter jurisdiction over Bahena's claims. The
parties' arguments concerning standing mirror those
presented in Satran. For the same ...