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 LVNV Funding, LLC, against plaintiff John Satran.
See LVNV Funding, LLC v. Satran, No. 2017-SC-5749
(Dane Cty. Cir. Ct. filed Sept. 11, 2017). In his complaint
in this court, Satran contends that defendants violated a
provision of the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. § 1692e, and a provision of the Wisconsin
Consumer Act (WCA), Wis.Stat. § 427.104, because
defendants failed to give Satran notice of his right to cure
default before filing suit against him and falsely
represented that an attorney was meaningfully involved in the
debt collection process. Dkt. 1. Defendants have moved to
dismiss the complaint for lack of subject-matter jurisdiction
and for failure to state a claim. Dkt. 11 and Dkt. 16. The
court will deny defendants' motions.
court draws the following facts from Satran's complaint,
Dkt. 1, and documents referred to in it, and accepts them as
true for the purposes of deciding defendants' motion.
Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir.
September 11, 2017, Satran was served with a summons and
small claims complaint notifying him that he was being sued
by “LVNV Funding LLC as successor in interest to Credit
One Bank, N.A., c/o Messerli & Kramer PA” for
$603.95 in credit card debt. Dkt. 14-1, at 1. Satran had
never received notice that he was in default on any account,
that he had the right to cure default, or that any debt he
owed had been assigned to LVNV.
small claims complaint was signed by Jillian Walker, a
Messerli attorney representing LVNV. From 2007 to 2017,
Walker was listed as attorney of record in 10, 162 cases in
five Wisconsin counties. She also practices in Minnesota.
November 27, 2017, Satran filed this lawsuit against LVNV and
Messerli asserting three causes of action. First, he claims
that defendants violated § 1692e of the FDCPA by falsely
representing that LVNV had the right to file suit against
him, when in fact, LVNV did not have the right to file suit
because it had not given him notice of his right to cure
default, as required by section 425.104 of the WCA. Second,
he claims that defendants violated section 427.104(1)(j) of
the WCA by filing suit against him without first giving him
notice of his right to cure default. Third, he 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. 1, ¶ 38. He alleges that these three statutory
violations caused him “emotional distress at being sued
on a debt he did not believe could be the subject of a
lawsuit at that time, and without notice that any such suit
might be forthcoming.” Id. ¶ 41. More
specifically, he suffered “anxiety over the lawsuit,
worries about whether he could find and afford a lawyer,
” and “difficulty concentrating.”
move to dismiss Satran's complaint for lack of
subject-matter jurisdiction and failure to state a claim. On
all aspects of defendants' motion, the court accepts
Satran's well-pleaded factual allegations as true and
draws all reasonable inference from those facts in his favor.
Lee, 330 F.3d at 459, 468. When deciding the
jurisdictional issue of standing, the court may consider
supporting evidence adduced by the parties. Id. at
468. When it comes to the motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a
claim, the court does not consider supporting evidence.
Id. at 459.
first contend that Satran lacks standing to assert his
claims. As the plaintiff, Satran “bears the
burden of establishing” the three elements of Article
III standing: injury in fact, causation, and redressability.
Lee, 330 F.3d at 468. At the pleading stage,
“the plaintiff must ‘clearly . . . allege facts
demonstrating' each element.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016) (quoting Warth
v. Seldin, 422 U.S. 490, 518 (1975)).
challenge all three elements, arguing that Satran has not
alleged an injury related to the alleged misrepresentations
that form the basis of his claims. They imply that
Satran's “garden variety emotional distress”
was caused by a “properly filed” lawsuit, not by
the alleged misrepresentations or lack of a notice of right
to cure default. Dkt. 13, at 5, 7 (quoting Cheslek v.
Asset Acceptance Capital Corp., No. 16-cv-1183, 2017
U.S. Dist. LEXIS 217500, at *9 (W.D. Mich. Dec. 22, 2017)).
Cheslek applied the Sixth Circuit's standing
requirements for FDCPA claims, which are not controlling
here. The Seventh Circuit has explained that
“‘the violation of a procedural right granted by
statute can be sufficient in some circumstances to constitute
injury in fact, ' such as where the statutory violation
creates ‘risk of real harm.'” Evans v.
Portfolio Recovery Assocs., LLC, Nos. 17-1773, 17-1860,
17-1866, 17-2622, 17-2756, & 18-1374, 2018 WL 2035315, at
*3 (7th Cir. May 2, 2018) (quoting Spokeo, 136 S.Ct.
Satran alleges that he was actually harmed by defendants'
alleged statutory violations. Drawing all reasonable
inferences from the factual allegations in his favor,
Messerli filed a lawsuit on LVNV's behalf without first
giving him notice of his right to cure default as required by
the WCA, and Messerli wouldn't have made that mistake if
an attorney had actually reviewed LVNV's claim before
filing a complaint. The improper filing of the complaint
caused Satran emotional distress, which can be redressed by
monetary damages. So Satran's allegations are sufficient
to confer standing.
shies away from this theory in his brief, arguing that
“[w]hether or not the lack of involvement created a
material error is irrelevant to the disposition on a motion
to dismiss.” Dkt. 19, at 5. Satran's theory-that
statutory violations of the FDCPA alone are sufficient to
confer standing-is a stretch, and here, the factual
allegations don't require the court to consider it.
Satran alleges an actual injury caused by procedural
violations of the FDCPA and WCA, so he has standing to assert
Failure to state a claim
defendants contend that Satran fails to state a claim on each
of his three causes of action. When evaluating a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), the
question 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); accord Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
The FDCPA's application to state-court pleadings
contend that § 1692e of the FDCPA doesn't regulate
the content of state-court pleadings, so Satran's claims
under the FDCPA must be dismissed. But just two years ago,
the Seventh Circuit held that § 1692e applies to state
court complaints and other legal pleadings. Marquez v.
Weinstein, Pinson & Riley, P.S., 836 F.3d 808,
810-11 (7th Cir. 2016). So the court will not ...