Burnside v. AFNI, Inc.

Filing 25

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 10/21/2013: Defendant's motion 15 for judgment on the pleadings is denied. Parties' joint status report is due by 11/8/2013. Status hearing is set for 11/14/2013, at 9:00 a.m. Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRYSON BURNSIDE,
Plaintiff,
v.
AFNI, INC.,
Defendant.

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No. 13 C 2957
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Plaintiff Bryson Burnside filed a one-count complaint alleging that defendant, AFNI,
Inc., violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”).
Defendant has filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).
For the reasons stated below, the court denies defendant’s motion.
BACKGROUND1
Defendant is a debt collector seeking to collect an alleged debt for AT&T telephone
services rendered to plaintiff. Defendant mailed a letter to plaintiff’s parents’ residence in an
attempt to collect the alleged debt from plaintiff. The letter was addressed to plaintiff. Plaintiff
had not lived at his parents’ address for four years and that address is not where the service was
provided. Plaintiff’s parents opened the letter and discovered the debt collection, to plaintiff’s
embarrassment.

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The following facts are taken from plaintiff’s complaint and are assumed to be true for
purposes of this motion to dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

DISCUSSION
Standard of Review
A party may move for judgment on the pleadings after the pleadings are closed and early
enough not to delay trial. Fed. R. Civ. P. 12(c). Courts “review the judgment for the defendants
by employing the same standard . . . when reviewing a motion to dismiss under Rule 12(b)(6).”
Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). All well-pleaded allegations in
the complaint are accepted as true and all reasonable inferences are drawn in favor of the
plaintiff. Id. As with Rule 12(b) motions, courts grant a Rule 12(c) motion only if “it appears
beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.”
Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989). A plaintiff must always “allege
‘enough facts to state a claim to relief that is plausible on its face.’” Limestone Dev. Corp. v.
Vill. of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
Analysis
Plaintiff alleges that defendant, in attempting to collect a debt for AT&T services,
communicated with a third party in violation of the FDCPA. The FDCPA was enacted to
“eliminate abusive debt collection practices by debt collectors, to insure that those debt
collectors who refrain from using abusive debt collection practices are not competitively
disadvantaged...” 15 U.S.C. § 1692(e). Congress found “abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection
practices contribute to the number of personal bankruptcies, to marital instability, to the loss of
jobs, and to invasions of individual privacy.” 15 U.S.C. § 1692(a). Plaintiff complains that

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defendant violated FDCPA section 1692c, which prohibits debt collectors from communicating
with third parties regarding the collection of a consumer’s debt:
Except as provided in section 1692b of this title, without the prior consent of the
consumer given directly to the debt collector, or the express permission of a court of
competent jurisdiction, or as reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer, his attorney, a
consumer reporting agency if otherwise permitted by law, the creditor, the attorney
of the creditor, or the attorney of the debt collector.
15 U.S.C. §1692c(b). The FDCPA defines “communication” as “the conveying of information
regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. §1692a(2).
Communication with a Third Party
Defendant moves for judgment on the pleadings, arguing that sending a letter to
plaintiff’s parents’ home, but addressed to plaintiff, was not a communication with a third party
under the FDCPA. Defendant’s principal argument is that because the envelope was addressed
with plaintiff’s name only, it was not sent to and cannot be considered a communication to a
third party. The issue turns on whether a letter bearing plaintiff’s name but the street address of
plaintiff’s parents can be considered a communication under the meaning of the act.2 More
narrowly, did the mailing convey information about plaintiff’s debt directly or indirectly to his
parents through any medium?

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Because the parties do not dispute the factual manner in which the letter was addressed,
the court need not address whether the sample envelope defendant attached to its response
should be considered here. There are no allegations that render the envelope material, and the
actual envelope was not the document defendant attached. As defendant points out in its reply,
the envelope is not related to how the letter was addressed, and plaintiff does not allege that the
envelope violated the FDCPA.
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Despite the name on the letter, the debt collection letter was received at plaintiff’s
parents’ residence. The “factual allegations in the complaint must be sufficient to raise the
possibility of relief above the speculative level, assuming that all well-pleaded allegations in the
complaint are true.” See Felsenthal v. Travelers Property Cas. Ins. Co., No. 12-cv-7402, 2013
WL 469475 (N.D.Ill. Feb. 7, 2013), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The letter was successfully delivered to its destination. That the letter bore plaintiff’s
name and not his parents’ does not negate the fact that a third party learned of plaintiff’s alleged
debt; defendant, a debt collector, attempted to collect an alleged debt from the third party’s
address. The spirit of the FDCPA is to protect consumers from abusive debt collection practices.
“Because it is designed to protect consumers, the FDCPA is, in general, liberally construed in
favor of consumers to effect its purpose.” Blair v. Sherman Acquisition, 04 C 4718, 2004 WL
2870080, at *2 (N.D. Ill. Dec. 13, 2004). The liberal construction of the FDCPA counsels in
favor of a determination that plaintiff has alleged sufficient facts to survive a motion for
judgment on the pleadings.
Letter Not Sent “Care of”
Defendant’s motion asserts that because its letter was not sent “care of” plaintiff’s
parents, plaintiff cannot claim that the communication was with a third party. Defendant’s
motion attacks plaintiff’s citation to Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th
Cir. 2012), where a letter sent “care of” a debtor’s employer and marked “private and
confidential” was found to violate the FDCPA provision against communication with third
parties. In that case, the collector had the debtor’s address, but chose not to use it. Here, plaintiff
claims defendant knew the address where the service was provided and knew or should have

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known plaintiff’s current residence, but chose not to use it. The Evon court explained that
allowing collection letters to be sent to addresses other than the debtor’s address by adding “care
of” would undermine the protections the FDCPA was meant to secure, and identified “parents,
neighbors, friends, or relatives” as third parties to whom collection letters should not be sent. Id.
at 1026. Defendant argues that the facts alleged here do not rise to the level found sufficient in
Evon. The Ninth Circuit looked to many factors to determine that the letter was a prohibited
communication under the Act, but that does not mean that plaintiff must demonstrate the same
exact facts here. Although Evon may not be dispositive, its rationale leads the court to find that
in the instant case plaintiff has alleged a violation of the FDCPA.
Defendant’s Intent
Next, defendant argues that the FDCPA is not meant to protect consumers against
“inadvertent” disclosures, claiming that this disclosure to a third party was accidental. Plaintiff
alleges that defendant knew the address where service was provided and knew or should have
known his address at the time the letter was sent.3 In any event, defendant correctly asserts that
the issue of intent cannot be reached unless a violation has been found. Because the court finds
that plaintiff has adequately pled a communication to a third party, the question of intent need
not be addressed at this stage.

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Defendant both denies this and states it is “unable to determine the truth or falsity” of
the allegation. Federal Rules of Civil Procedure Rule 8(b) allows for three options in an answer:
to admit, deny, or state that defendant “lacks knowledge or information sufficient to form a
belief about the truth of an allegation.” F.R.C.P. 8(b). “[T]he second sentence of Rule 8(b) marks
out an unambiguous path for any party that seeks the benefit of a deemed denial when he, she or
it can neither admit outright nor deny outright a plaintiff's allegation.” State Farm Mut. Auto.
Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).
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Plaintiff’s Parents’ Involvement
Defendant argues the court should consider plaintiff’s parents’ action in opening the
letter because it was unforeseeable that a third party would open mail not directed to them.
Although plaintiff’s parents’ involvement may be relevant to the level of damages, it is not
relevant to the question of whether defendant communicated with a third party when it attempted
to collect an alleged debt. In light of the FDCPA’s purpose and liberal interpretation, and the
expansive definition of “communication,” the court need not evaluate the third party’s conduct to
determine whether plaintiff has sufficiently pled a violation of the FDCPA.
CONCLUSION
For the reasons stated above, the court denies defendant’s motion for judgment on the
pleadings. The parties are instructed to file a joint status report consistent with this court’s form
on or before November 8, 2013. This matter is set for a status hearing November 14, 2013 at
9:00 a.m.

ENTER:

October 21, 2013

__________________________________________
Robert W. Gettleman
United States District Judge

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