United States District Court, E.D. Wisconsin
DECISION AND ORDER ON DEFENDANT'S MOTION TO
JOSEPH UNITED STATES MAGISTRATE JUDGE
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.
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).
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.)
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
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.”
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).
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 ...