United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
Hoffman alleges that the defendant, a debt collector, sent
him letters that violate the Fair Debt Collection Practices
Act (“FDCPA”) and the Wisconsin Consumer Act.
Before me now is the defendant's motion to dismiss the
complaint for failure to state a claim upon which relief can
be granted. See Fed. R. Civ. P. 12(b)(6).
to the allegations of the complaint, which I accept as true
for purposes of deciding the motion to dismiss, the
defendant, Keith D. Weiner & Associates Co., L.P.A., is a
law firm that routinely collects consumer debts and thus is a
“debt collector” as defined by both the FDCPA and
the Wisconsin Consumer Act. The plaintiff is a
“consumer” or “customer” as defined
by those laws.
plaintiff alleges that the defendant mailed him
debt-collection letters dated October 11, 2018 and November
16, 2018. These letters are attached to the complaint. They
state that the defendant is attempting to collect a debt owed
to “MJT Bolivar LLC” in the amount of $477.50.
The plaintiff alleges that this debt arose from a residential
lease agreement. Both letters contain the following language:
“As of the date of this letter, you owe the balance
stated above. Because of interest and other charges that may
vary from day to day, the amount due on the day you pay may
plaintiff alleges that including this language in the letters
violated the FDCPA and the Wisconsin Consumer Act because the
language is false and misleading. The plaintiff alleges that
the defendant does not-and cannot-add “interest and
other charges that may vary from day to day.” Compl.
¶¶ 30-33. Thus, alleges the plaintiff, the letter
is likely to trick the consumer into thinking that if he or
she does not pay immediately, the balance owed will grow,
when in fact the defendant would not and could not add
interest and other charges to the balance.
defendant contends that its letters were not misleading as a
matter of law because the language at issue was prescribed by
the Seventh Circuit as a form of “safe harbor”
for creditors to use in their collection letters. See
Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, &
Clark, L.L.C., 214 F.3d 872, 876 (7th Cir. 2000). The
defendant also argues that the letters were not misleading as
a matter of law because, at some point in the future, the
debt might be reduced to judgment, at which point the
defendant would be entitled to collect post-judgment interest
under Wisconsin law, which would “vary from day to
survive a Rule 12(b)(6) motion, a plaintiff must “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The complaint must, at
a minimum, “give the defendant fair notice of what the
claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555. In construing a
plaintiff's complaint, I assume that all factual
allegations are true but disregard statements that are
conclusory. Iqbal, 556 U.S. 678.
present case, the plaintiff seeks relief under both the FDCPA
and the Wisconsin Consumer Act. However, in their briefs, the
parties focus on the FDCPA and agree that the fate of the
claim under the Wisconsin Consumer Act is tied to the fate of
the claim under the FDCPA. Thus, I will discuss only the
the language at issue in this case is based on the
Miller safe-harbor formula, I begin by discussing
that case. It involved a claim that the debt collector
violated the statutory duty to state the amount of the debt.
214 F.3d at 875 (citing 15 U.S.C. § 1692g(a)(1)). The
letter stated that the “unpaid principal balance”
of the loan was $178, 844.65 but added that “this
amount does not include accrued but unpaid interest, unpaid
late charges, escrow advances or other charges for
preservation and protection of the lender's interest in
the property, as authorized by your loan agreement. The
amount to reinstate or pay off your loan changes daily. You
may call our office for complete reinstatement and payoff
figures.” Id. The court held that the letter
did not comply with the requirement to state the amount of
the debt. Id. It noted that the unpaid principal
balance was only part of the debt and that the FDCPA required
the debt collector to state the total amount due-including
interest and other charges-on the date the letter was sent.
Id. at 875-76.
court, however, recognized that the debt collector faced some
difficulty in accurately stating the total amount of the debt
when the amount changed daily. Id. For this reason,
the court created the safe-harbor language at issue in this
case and held that use of such language would satisfy the
debt collector's duty to state the amount of the debt in
cases where the amount varies from day to day. Id.
at 876. This is the language:
As of the date of this letter, you owe $ ___[the exact amount
due]. Because of interest, late charges, and other charges
that may vary from day to day, the amount due on the day you
pay may be greater. Hence, if you pay the amount shown above,
an adjustment may be necessary after we receive your check,
in which event we will inform you before depositing the check