United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
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
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.
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
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”).
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.
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.
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.
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