United States District Court, E.D. Wisconsin
DARLENE M. BRUNETT, Plaintiff,
VITAL RECOVERY SERVICES LLC, Defendant.
Stadtmueller U.S. District Judge
filed this class action on March 13, 2018. (Docket #1). She
sues Defendant for sending her, and members of the putative
class, allegedly misleading debt collection letters.
Plaintiff brings claims under various provisions of the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. Defendant moved to
dismiss Plaintiff's Complaint on May 7, 2018. (Docket
#18). That motion is now fully briefed. (Response, Docket
#22; Reply, Docket #23). For the reasons stated below, the
motion must be granted.
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 further 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
Janetos v. Fulton Friedman & Gullace, LLP, 825
F.3d 317, 322-23 (7th Cir. 2016).
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)
the truth of Plaintiff's well-pleaded allegations and
drawing all reasonable inferences in her favor, the relevant
facts are as follows. Plaintiff allegedly owed a debt to
Comenity Bank (“Comenity”). (Docket #1-1 at 2).
The debt was later purchased by Crown Asset Management
(“Crown”) and apparently assigned to Defendant
for collection. (Docket #1 at 1). Defendant sent Plaintiff a
letter attempting to collect that debt on April 17, 2017 (the
“Letter”). (Docket #1-1 at 2). The Letter
appears as follows: