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Jordan v. BP Peterman Law Group LLC

United States District Court, E.D. Wisconsin

February 20, 2019



          J. P. Stadtmueller, U.S. District Judge.

         On October 12, 2018, Plaintiff Richard Jordan filed a complaint alleging that Defendant BP Peterman Law Group, LLC violated his rights under the Fair Debt Collection Practices Act (“FDCPA”) when it named him as an “unknown tenant” in a complaint to foreclose on his aunt's home, and twice attempted to serve him with the complaint. (Docket #1). Defendant filed a motion to dismiss the complaint on November 7, 2018 (Docket #7). The motion is fully briefed and, for the reasons stated below, it will be granted.[1]

         1. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b) provides for dismissal of complaints which, among other things, fail to state a viable claim for relief. Fed.R.Civ.P. 12(b)(6). To state a 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). The allegations must “plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level[.]” Kubiak v. City of Chi., 810 F.3d 476, 480 (7th Cir. 2016) (citation omitted). In reviewing the complaint, the Court is required to “accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff.” Id. at 480-81.

         2. RELEVANT FACTS

         Plaintiff rents a residence from his aunt, Corina Zirk (“Zirk”) at 1626 Nicolet Street, Janesville, Wisconsin, 53546 (the “Nicolet Street Property”). The mortgage on the Nicolet Street Property is serviced by Fay Servicing. Plaintiff does not have a lien or any ownership interest in the Nicolet Street Property other than his tenancy.

         Defendant is a law firm that engages in collection activities on behalf of Fay Servicing. When Zirk defaulted on her mortgage, Fay Servicing enlisted Defendant to initiate foreclosure proceedings. Defendant brought a foreclosure lawsuit on behalf of Fay Servicing, in which it named Zirk and “unknown tenants” in the complaint. Defendant twice served a copy of the foreclosure summons and complaint on Plaintiff, and required Plaintiff to sign his name, and his girlfriend's name, on the receipt of service. At some point around this time (though the complaint does not specify when or how), Defendant affirmatively told Plaintiff that he was not involved in the foreclosure proceedings. Nevertheless, a result of signing his name to accept service, Plaintiff's name appeared in the Wisconsin Circuit Court Access Program (“CCAP”).

         3. ANALYSIS

         Defendant argues that the complaint must be dismissed for a host of reasons, including Plaintiff's lack of standing and failure to state a viable claim for relief. As part of the latter argument, Defendant contends that a violation of a Wisconsin statute does not automatically give rise to a violation of the FDCPA. The Court finds that Plaintiff has standing to sue under certain sections of the FDCPA. Nevertheless, Plaintiff has failed to allege a violation of the FDCPA, and so the action must be dismissed.

         3.1 FDCPA Allegations

         Defendant argues that Plaintiff lacks standing under all provisions of the FDCPA except 15 U.S.C. § 1692f because he is not a debtor, and, in any case, none of the activities alleged in the complaint constitute a violation of the FDCPA as a matter of law. Plaintiff argues that his claims are actionable under 15 U.S.C §§ 1692d, 1692e, 1692f, and maintains that he has sufficiently alleged facts that give rise to a cause of action under each of those subsections.

         The FDCPA is, as its name suggests, intended to “eliminate abusive debt collection practices.” 15 U.S.C. § 1692(e). It contains a number of subsections which regulate certain debt collection practices, three of which, Sections 1692d, 1692e, and 1692f, are at issue here. The Court must consider allegations of FDCPA violations from the vantage point of an unsophisticated consumer. See Taylor v. Cavalry Inv., LLC, 365 F.3d 572, 574 (7th Cir. 2004). 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). Additionally, “each provision of the FDCPA must be analyzed individually to determine who falls within the scope of its protection and thus to decide with respect to whom the provision can be violated.” Todd v. Collecto, Inc., 731 F.3d 734, 738 (7th Cir. 2013) (citation and quotations omitted). Defendant alleges two factual bases for his FDCPA claims; first, the two attempts at service, and second, the naming of “unknown tenants” on the foreclosure complaint in violation of Wisconsin state law.

         3.1.1 Section 1692d

         Section 1692d prevents debt collectors from engaging in any conduct that results in harassment, oppression, or abuse in the course of collecting a debt. 15 U.S.C. § 1692d. This section “is not a protection just for consumers but for any person mistreated by a debt collector.” Todd, 731 F.3d at 737. Therefore, if Plaintiff was ...

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