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Mollberg v. Advanced Call Center Technologies Inc.

United States District Court, E.D. Wisconsin

January 22, 2019

BARBARA MOLLBERG, Plaintiff,
v.
ADVANCED CALL CENTER TECHNOLOGIES INC., Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Barbara Mollberg filed this action against Advanced Call Center Technologies Inc. (“ACCT”) alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Wisconsin Consumer Act (“WCA”) based on a letter sent by ACCT in the course of collecting a debt owed to Synchrony Bank. Currently before me is ACCT's motion to dismiss the plaintiff's complaint for failure to state a claim. For the reasons explained below, ACCT's motion to dismiss will be granted.

         BACKGROUND

         Mollberg alleges the following in her complaint. On or about November 2, 2017, ACCT mailed a dunning letter to Mollberg in an attempt to collect a debt owed to Synchrony Bank. (Docket # 1 ¶¶ 23; Docket # 1-4, Ex. D.) The letter stated that the “TOTAL ACCOUNT BALANCE” was $1, 113.00 and the “AMOUNT NOW DUE” was $234.00. (Id. ¶ 30; Docket # 1-4, Ex. D.) ACCT used the term “AMOUNT NOW DUE” to mean the sum of the amount past due ($160.00) and the current monthly payment ($74.00), (Docket # 1 ¶¶ 33-34, 72), although its letter did not itemize those amounts, (Docket # 1-4, Ex. D).

         Mollberg had previously received several letters from Synchrony Bank regarding the debt. In a letter dated October 2, 2017, Synchrony Bank advised Mollberg that October 17, 2017 was the last day for payment and the “AMOUNT NOW DUE” was $90.00. (Docket # 1-2, Ex. B.) The term “AMOUNT NOW DUE” in that letter meant the amount past due, as evinced by another letter from Synchrony Bank advising Mollberg that her “Amount Past Due” was $90.00, her “Total Minimum Payment Due” was $160.00, and the payment due date was October 23, 2017. (Docket # 1-1, Ex. A.) Later, Synchrony Bank sent a letter to Mollberg stating that the “Amount Past Due” was $160.00, that the “Total Minimum Payment Due” was $234.00, and that the “Payment Due Date” was November 23, 2017. (Docket # 1-3, Ex C.)

         LEGAL STANDARD

         The defendants move to dismiss for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court has interpreted this language to require that the plaintiff plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Ashcroft v. Iqbal, the Supreme Court elaborated further on the pleadings standard, explaining that a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” though this “standard is not akin to a ‘probability requirement.'” 556 U.S. 662, 678 (2009). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted). I must construe the complaint “in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from those allegations in his or her favor.” Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003). However, in deciding a motion to dismiss, I am not bound to accept as true legal conclusions couched as facts. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010).

         ANALYSIS

         ACCT moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) arguing that Mollberg has failed to state a claim under the FDCPA. Mollberg argues that the dunning letter violated the FDCPA in two ways. First, it included the current installment in the amount of the debt; and second, its use of “AMOUNT NOW DUE” could plausibly confuse or mislead the unsophisticated consumer as to the “character or legal status of the debt.”

         1. § 1692g(a)(1)

         I begin with the language of the statute. “Where the statute's language is plain, the court's function is to enforce it according to its terms.” Kariotis v. Navistar Int'l Trans. Corp., 131 F.3d 672, 680 (7th Cir. 1997). Section 1692g(a)(1) requires a debt collector to communicate the “amount of the debt.” Section 1692(a)(6)(F)(iii) defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” Section 1692(g) requires debt collectors to communicate the amount of the debt they are attempting to collect as follows:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-
(1) the amount of the debt;

15 U.S.C. § 1692g(a).

         Mollberg argues that the “amount of the debt” under § 1692g(a)(1) must be only the amount past due. (Docket # 10 at 8-11, 15-20.) Thus, she argues, “a debt collector must clearly state the amount that is past due on the date the letter is sent because the consumer is not expected nor required to pay the creditor (let alone the debt collector) portions of the balance that are “not yet due, let alone overdue.” (Id. at 11.) However, the cases cited by Mollberg do not support her position. In Barnes v. Advanced Call Center Technologies, 493 F.3d 838 (7th Cir. 2007), the Seventh Circuit did not hold that “the amount of the debt” under the FDCPA can only ever be the past due amount, or that a debt collector may not attempt to collect a payment that is not past due. Rather, Barnes clarified that the “amount of the debt” refers to the amount that the debt collector is attempting to collect, as opposed to the total amount owed to the creditor. Id. at 840. Because the “amount of the debt” is the amount the collector is attempting to collect and has been authorized by the creditor to collect, that amount logically depends ...


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