Styrczula v. Pierce & Associates, P.C. et al

Filing 18

MEMORANDUM Opinion Signed by the Honorable Amy J. St. Eve on 10/22/2014:Mailed notice(kef, )

14-2642.101

Oct. 22, 2014

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN J. STYRCZULA,
Plaintiff,
v.
PIERCE & ASSOCIATES, P.C., JYOTHI
R. MARTIN,
Defendants.

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No. 14 C 2642

MEMORANDUM OPINION
Before the court is defendant Pierce & Associates, P.C.’s
motion to dismiss. For the following reasons, the court denies the
motion in part, and grants it in part.
BACKGROUND
Plaintiff John J. Styrczula has filed a one-count complaint
against Pierce & Associates, P.C. (“Pierce”), a law firm, and
Jyothi R. Martin, one of its attorneys, alleging that they violated
the Fair Debt Collection Practices Act (“FDCPA”).1 Styrczula filed
for Chapter 7 bankruptcy on November 15, 2013.
¶ 10.)

(See Pl.’s Compl.

On February 13, 2014, Martin filed a motion on behalf of

Nationstar Mortgage, LLC (“Nationstar”) to lift the automatic stay

1/
Styrczula purported to serve Martin by leaving a copy of the summons
with an “authorized person” of the “defendant corporation.”
(See Summons
(Martin), Dkt. 4, at 1.) He issued an alias summons in July 2014, but the record
does not indicate whether he ever served Martin personally and Martin has not
appeared in the case.

in order to foreclose on Styrczula’s home.

(Id. at ¶ 11.)

Nationstar stated in the motion that Styrczula had stopped making
mortgage payments in December 2013.

(See Mot. to Modify, attached

as part of Group Ex. A to Pl.’s Compl., ¶ 5.)

Martin attached a

statement to the motion indicating that Styrczula’s account was
$4,481.38 in arrears. (See Req. Stmt. to Accompany Mot. for Relief
from Stay, attached as Ex. C to Pl.’s Compl., ¶ 5 (representing
that Styrczula had been in “contractual default” for two months).)
The

notice

attached

to

the

motion

contained

the

following

disclaimer:
**THIS DOCUMENT IS AN ATTEMPT TO COLLECT A DEBT AND ANY
INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.**
(See Notice of Mot., attached as part of Group Ex. A to Compl., at
1-2.)

Martin certified that he sent copies of the notice and

motion to Styrczula, among others.

(Id.)

The day before the

scheduled hearing on Nationstar’s motion, Styrczula’s attorney,
Thomas Toolis, filed a response claiming that Styrczula had paid
Nationwide $1,876.03 in each of November 2013, December 2013, and
January 2014.

(See Resp. to Mot. for Relief from the Auto. Stay,

attached as Ex. B to Pierce’s Mot., ¶ 4.)

The bankruptcy court

then continued the motion hearing to February 28, 2014.

(See

Docket Report, In re John J. Styrczula, Case No. 13-44473, attached
as Ex. B to Pierce’s Mot. to Dismiss, Dkt. 20.)

- 2 -

On

February

27,

2014,

Toolis

emailed

Martin

and

Yanick

Polycarpe, another Pierce attorney, about obtaining a “payment
history.”

(See Email from Y. Polycarpe to T. Toolis, dated Feb.

27, 2014, attached as Ex. B to Pl.’s Compl.)

Polycarpe responded

as follows:
I don’t have a complete history but was able to verify
payment applied. He [Styrczula] is roughly $2 short of
making January unless more money is in the mail. Since
it is going to discharge any day now I will likely
withdraw.
(See Email form Y. Polycarpe to T. Toolis, dated Feb. 27, 2014,
attached as Ex. B to Pl.’s Compl.)
the following day.

Nationstar withdrew its motion

(See Docket Report, In re John J. Styrczula,

Case No. 13-44473, Dkt. 22.)

On March 3, 2014, the bankruptcy

court entered an order discharging Styrczula’s pre-petition debts.
(Id. at Dkt. 21.)

Styrczula had indicated that he intended to

reaffirm his mortgage debt, (see Voluntary Petition, In re John J.
Styrczula,

Case

No.

13-44473,

Dkt.

1,

“Chapter

7

Individual

Debtor’s Statement of Intention.”).) but it is unclear whether he
ever did so.

Three days later, on March 6, 2014, Polycarpe sent an

email to Toolis purporting to attach a “proposed repay default
order.”

(See Email from Y. Polycarpe to T. Toolis, dated Mar. 6,

2014, attached as Ex. D to Pl.’s Compl.)2

2/

Toolis responded by

The context for this exchange is unclear. Styrczula has not attached
the proposed order that Polycarpe mentioned in his email. Also, the copy of the
email Styrczula has attached to his response brief appears to be partially
redacted.
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asking Polycarpe to send him “a copy of the accounting.”

(Email

from T. Toolis to Y. Polycarpe, dated Mar. 6, 2014, attached as Ex.
D to Pl.’s Compl.)

Polycarpe responded that he had “requested the

info be sent to” Toolis.

(Email from Y. Polycarpe to T. Toolis,

dated Mar. 6, 2014, attached as Ex. D to Pl.’s Compl.)

Styrczula

alleges that the defendants never provided the accounting that his
attorney had requested.

(Pl.’s Compl. ¶ 17.)
DISCUSSION

Styrczula claims that the defendants violated FDCPA by: (1)
misstating the amount of the default in a document attached to
Nationstar’s motion to lift the bankruptcy stay (see 15 U.S.C. §
1692e); and (2) failing to provide the accounting that his attorney
requested (see id. at § 1692g).

Pierce has moved to dismiss

Styrczula’s claim as barred by collateral estoppel and/or res
judicata. Alternatively, it argues that Styrczula’s allegations do
not state a claim for relief under the FDCPA.
I.

Legal Standard
When evaluating a motion to dismiss, the court construes the

complaint’s

allegations

in

the

light

most

favorable

to

the

plaintiff, “accepting as true all well-pleaded facts alleged and
drawing all permissible inferences in [the plaintiff’s] favor.”
Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d 696, 700
(7th Cir. 2014) (citation and internal quotation marks omitted).
The plaintiff must allege “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Vesely v. Armslist
LLC, — F.3d —, 2014 WL 3907114, *2 (7th Cir. Aug. 12, 2014) (slip
op.).

The plaintiff is not required to anticipate affirmative

defenses, like collateral estoppel and res judicata.

See Levin v.

Miller, 763 F.3d 667, 671 (7th Cir. 2014) (“[C]omplaints need not
anticipate affirmative defenses; neither Iqbal nor Twombly suggests
otherwise.”); Northeastern Rural Elec. Membership Corp. v. Wabash
Valley Power Ass'n, Inc., 707 F.3d 883, 889 n.3 (7th Cir. 2013)
(“[C]ollateral estoppel and res judicata are affirmative defenses
. . . .”).

A court may, however, grant a motion to dismiss based

upon a valid affirmative defense that is “sufficiently obvious
‘from the face of the complaint.’” Syler v. Will County, Ill., 564
Fed.Appx. 848, 849 (7th Cir. 2014) (quoting Walker v. Thompson, 288
F.3d 1005, 1009–10 (7th Cir. 2002)).
In

general,

the

court

only

considers

the

allegations when ruling on a Rule 12(b)(6) motion.

complaint’s
See Cohen v.

American Sec. Ins. Co., 735 F.3d 601, 604 n.2 (7th Cir. 2013).

The

court may also consider, however, “documents attached to the
complaint,

documents

that

are

critical

to

the

complaint

and

referred to in it, and information that is subject to proper
judicial notice.”
omitted).

Id. (citation and internal quotation marks

Thus, the court may consider the email correspondence

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that Styrczula has attached to his complaint. It may also consider
the public filings in his bankruptcy case.

See, e.g., Young-Smith

v. Holt, 575 Fed.Appx. 680, 682 (7th Cir. 2014) (“[A] court may
take judicial notice of matters of public record such as a court
order.”).
II.

Collateral Estoppel
Collateral Estoppel, or issue preclusion, “applies to prevent

relitigation of issues resolved in an earlier suit.” Adams v. City
of Indianapolis, 742 F.3d 720, 736 (7th Cir. 2014).

“Issue

preclusion has the following elements: (1) the issue sought to be
precluded is the same as an issue in the prior litigation; (2) the
issue must have been actually litigated in the prior litigation;
(3) the determination of the issue must have been essential to the
final judgment; and (4) the party against whom estoppel is invoked
must have been fully represented in the prior action.” Id.

Pierce

primarily relies on Adair v. Sherman, 230 F.3d 890 (7th Cir. 2000)
to support its argument that issue preclusion bars Styrczula’s
claim.

In Adair, the defendant filed a proof of claim on behalf of

First Midwest Bank (“FMB”) in the plaintiff’s Chapter 13 bankruptcy
case.

Id. at 893.

“According to the bankruptcy code, any proof of

claim filed by a creditor is deemed allowed, unless a party in
interest objects.”

Id. at 894 (citing 11 U.S.C. § 502(a); In re

Greenig, 152 F.3d 631, 633 (7th Cir. 1998)).

The plaintiff in

Adair did not object to FMB’s proof of claim, and the Chapter 13

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trustee allowed the claim as fully secured when it confirmed the
debtor’s bankruptcy plan.

Id. at 893.

The debtor later filed an

FDCPA claim against the debt collector alleging that it had
fraudulently obtained secured status for its client by overvaluing
the collateral securing the debt. Id.; see also 11 U.S.C. § 506(a)
(“Determination of secured status”). The Adair Court held that the
bankruptcy court had actually and necessarily established the value
of the collateral when it confirmed the plaintiff’s bankruptcy
plan.

See id. at 894-95.

plaintiff’s FDCPA claim.

Id.

Thus, issue preclusion barred the
The Court, however, “express[ed] no

opinion as to whether a FDCPA claim can ever be predicated on a
previous filing in a bankruptcy proceeding.”
Adair is distinguishable.

Id. at 896, n.10.

Pierce filed a motion to lift the

automatic stay and then withdrew the motion.

The bankruptcy court

did not decide the motion, and thus did not establish the amount of
the debt.

Cf. id. at 894-95.

Also, Adair dealt with a Chapter 13

confirmation order, not a Chapter 7 discharge order.

Pierce has

not attempted to explain how the bankruptcy court’s discharge order
established whether, or by how much, Styrczula’s account was in
arrears.

By its terms, it simply discharged Styrczula’s pre-

petition debts.

Pierce has not established that issue preclusion

bars Styrczula’s claim.

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III. Res Judicata
Alternatively, Pierce argues that res judicata, or claim
preclusion, bars Styrczula’s FDCPA claim.

“A party asserting res

judicata or claim preclusion must establish: ‘(1) identity of the
claim, (2) identity of parties, which includes those in ‘privity’
with

the

merits.’”

original

parties,

and

(3)

a

final

judgment

on

the

Cannon v. Burge, 752 F.3d 1079, 1101 (7th Cir. 2014)

(quoting Ross ex rel. Ross v. Board of Educ. of Twp. High Sch.
Dist. 211, 486 F.3d 279, 283 (7th Cir. 2007)).

To satisfy the

first element, the defendant must show that the claims are “based
on the same, or nearly the same, factual allegations arising from
the same transaction or occurrence.”
F.3d 190, 226 (7th Cir. 2013).

Bernstein v. Bankert, 733

If the plaintiff’s new claim is

based upon the same facts as its prior claim, then the new claim is
barred even if the plaintiff did not actually raise it in the
earlier lawsuit.

Id.

The claim will not be barred, however, if

the court in the first case lacked subject matter jurisdiction to
hear it.

See Alvear-Velez v. Mukasey,

540 F.3d 672, 678 (7th Cir.

2008) (“[C]ourts consistently have refused to apply res judicata to
preclude a second suit that is based on a claim that could not have
been asserted in the first suit.”); see also Addis v. Department of
Labor, 575 F.3d 688, 689-90 (7th Cir. 2009) (declining to apply res
judicata

because

Illinois

state

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court

that

adjudicated

the

plaintiff’s retaliatory-discharge claim could not hear her Energy
Reorganization Act claim).
Neither party has cited authority directly addressing whether
the bankruptcy court had jurisdiction to adjudicate Styrczula’s
FDCPA claim.3

The court’s own research indicates that courts are

split on this question.

See, e.g., In re Atwood, 452 B.R. 249,

253-57 (D.N.M. Bkr. 2011) (collecting cases).4

It appears that a

majority of the courts that have addressed this issue have held
that bankruptcy courts lack subject-matter jurisdiction over postpetition FDCPA claims.

Id. at 255.

The court declines to rule

definitively on the issue at this time given the scant record and
the parties’ cursory arguments.

For purposes of the current

motion, the court finds that Pierce has not satisfied its burden to
show that claim preclusion bars Styrczula’s FDCPA claim.
IV.

Failure to State a Claim
Styrczula has alleged that Pierce violated the FDCPA by: (1)

misstating the amount of unpaid mortgage payments; and (2) failing
to “validate the alleged arrearage” within 30 days.

(Pl.’s Compl.

¶ 18.)

3/

Pierce begs the question when it argues that the bankruptcy court had
jurisdiction to hear Styrczula’s FDCPA claim because FDCPA claims “may be brought
in any appropriate United States district court . . . or in any other court of
competent jurisdiction . . . .” (See Def.’s Reply at 4.)
4/
The parties have not cited, nor has the court located, any controlling
Seventh Circuit authority.

- 9 -

A.

Styrczula’s § 1692(e) Claim

FDCPA § 1692e prohibits debt collectors from making false or
misleading statements when attempting to collect a debt:
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a
violation of this section:
[. . .]
(2) The false representation of —
(A) the character, amount, or legal status of any debt.
. . .
15

U.S.C.

§

1692e.

The

Seventh

Circuit

has

held

that

the

Bankruptcy Code does not trump the FDCPA, even though in particular
cases they may overlap.
(7th Cir. 2004).

See Randolph v. IMBS, 368 F.3d 726, 728

In Randolph, a debt collector sent a dunning

letter to the plaintiff demanding immediate payment of a debt that
was subject to periodic payments under the plaintiff’s Chapter 13
plan.

Id. at 728.

This statement was “false” because the debt was

not immediately due, and the plaintiff sued the debt collector for
allegedly violating § 1692e.

See id. (“A demand for immediate

payment while a debtor is in bankruptcy (or after the debt’s
discharge) is ‘false’ in the sense that it asserts that money is
due, although, because of the automatic stay (11 U.S.C. § 362) or
the discharge injunction (11 U.S.C. § 524), it is not.”).

On

appeal of the district court’s order dismissing the plaintiff’s
claim, the Seventh Circuit rejected the view, adopted by some

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courts, that “remedies under the Bankruptcy Code are the only
recourse against post-bankruptcy debt-collection efforts . . . .”
Id.

Section

1692e

“creates

a

strict-liability

collectors may not make false claims, period.”

rule.

Debt

Id. at 730.

The

Bankruptcy Code, by contrast, prohibits “willful” violations of the
automatic stay.

Id. at 728; 11 U.S.C. § 362(k)(1).

The two

provisions overlap in some cases, but the Bankruptcy Code does not
trump the FDCPA: “[p]ermitting remedies for negligent falsehoods
would not contradict any portion of the Bankruptcy Code, which
therefore

cannot

be

deemed

1692e(2)(A) by implication.”

to

have

repealed

or

curtailed

§

Randolph, 368 F.3d at 732-33.

Randolph is not squarely on point because the debt collector
in that case sent a collection letter to the plaintiff.

Here, the

defendants filed the document that Styrczula is challenging with
the bankruptcy court.

The Seventh Circuit suggested in Beler v.

Blatt, Hasenmiller, Leibsker & Moore, LLC., 480 F.3d 470, 473 (7th
Cir. 2007) that the FDCPA may not apply to legal filings.

See id.

(“[I]t is far from clear that the FDCPA controls the contents of
pleadings in state court.”); see also Adair, 230 F.3d at 896, n.10
(“Because the parties have not presented the issue, we express no
opinion as to whether a FDCPA claim can ever be predicated on a
previous filing in a bankruptcy proceeding.”).

The Beler Court

expressly declined to resolve that question, however, noting that
the defendant’s state-court complaint did not violate the FDCPA
even assuming that it applied.

See Beler, 480 F.3d at 473 (“We

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postpone to some future case, where the answer matters, the
decision whether § 1692e covers the process of litigation.”); see
also O'Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 941
n.1 (7th Cir. 2011) (noting that the Beler Court had not settled
the issue, and likewise declining to do so).5

Moreover, in earlier

cases the Court has permitted similar claims. See Veach v. Sheeks,
316 F.3d 690, 692-94 (7th Cir. 2003) (the defendant violated the
FDCPA by misstating the amount of the plaintiff’s debt in a smallclaims-court

summons

and

complaint

that

he

served

on

the

plaintiff); Gearing v. Check Brokerage Corp., 233 F.3d 469, 471
(7th Cir. 2000) (affirming judgment in favor of the plaintiff in an
FDCPA case alleging misrepresentation in a state-court complaint);
see also Casso, 955 F.Supp.2d at 830 (plaintiff stated an FDCPA
claim by alleging that the defendant made false statements in an
affidavit attached to a state-court complaint seeking to collect a
credit card debt).

Discovery may or may not shed light on these

legal issues, but the parties’ arguments are cursory at best.
5/

The

Neither party has cited O'Rourke.
In that case, the plaintiff
challenged the authenticity of a credit-card statement that the defendant
attached to the complaint it had filed against him in state court. O’Rourke, 635
F.3d at 939. On appeal, the plaintiff based his claim entirely on the theory
that the statement was “materially false, deceptive, and misleading to [the]
state court judge.” Id. at 939. The Court of Appeals rejected that argument,
holding that § 1692e only applies to false statements made by debt collectors to
consumers. Id. at 943-44. The court did not hold, however, that a court filing
cannot target both the court and the consumer. See id. at 947 (Tinder, J.,
concurring in the judgment) (noting that the plaintiff had abandoned his claim
that the complaint was also misleading to him). At least one court in this
district has interpreted O’Rourke narrowly to apply to the appellant’s theory in
that case. See Casso v. LVNV Funding, LLC, 955 F.Supp.2d 825, 830 (N.D. Ill.
2013) (“Unlike O'Rourke, Plaintiff has not alleged that Defendants submitted the
false affidavit to mislead the state court. Rather, Plaintiff has alleged that
Defendants submitted the false affidavit to mislead her.”). In any event, the
defendants have not argued that the court should extend O’Rourke’s holding to
apply in this case.
- 12 -

court declines to rule on this record that bankruptcy filings are
categorically exempt from the FDCPA’s coverage.
Finally, Pierce argues that its motion to lift the stay was
not an attempt to collect a debt.

There is no bright-line test to

determine whether a particular communication is “in connection with
the collection of [a] debt.”

15 U.S.C. § 1692e; see Gburek v.

Litton Loan Servicing LP, 614 F.3d 380, 384 (7th Cir. 2010)
(“Neither this circuit nor any other has established a bright-line
rule for determining whether a communication from a debt collector
was

made

in

connection

with

the

collection

of

any

debt.”).

Relevant factors include the “the absence of a demand for payment,”
the “nature of the parties’ relationship;” and “the purpose and
context of the communications — viewed objectively.”
F.3d at 384.

Gburek, 614

Pierce has not applied these factors to Styrczula’s

claim, or even cited the relevant analysis.

Viewing the evidence

in the light most favorable to plaintiff, Pierce filed the motion
to lift the stay at least in part to elicit payment from Styrczula.
See, e.g., Casso, 955 F.Supp.2d at (Holding that the plaintiff
stated an FDCPA claim by alleging that the defendant used a “false
affidavit” indicating that “business records regarding her debt had
been reviewed in order to intimidate [her] into not disputing the
debt.”).

It acknowledged as much in its notice of motion: “THIS

DOCUMENT IS AN ATTEMPT TO COLLECT A DEBT . . . .”
at 1-2.)

(Notice of Mot.

Construing the complaint in the light most favorable to

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Styrczula, the court concludes that he has stated a claim for
relief.
B.

Styrczula’s § 1692g Claim

Styrczula alleges that the defendants violated § 1692g by
failing to validate the debt within 30 days after Toolis’s February
27, 2014 email.

FDCPA § 1692g(a) requires debt collectors to

provide a written notice to the debtor setting forth certain
information about the debt within five days after “the initial
communication with a consumer in connection with the collection of
any debt.”
debt

15 U.S.C. § 1692g(a).

collector

must

notify

the

Among other information, the
debtor

that

it

may

request

verification of the debt within 30 days after receiving the notice.
Id. at § 1692g(3)-(4).

The motion to lift the stay did not

constitute an “initial communication” triggering the defendants’
obligation to provide information about the debt.

See id. at §

1692g(d) (“A communication in the form of a formal pleading in a
civil action shall not be treated as an initial communication for
purposes of subsection (a) of this section.”).

Styrczula argues,

instead, that the “initial communication” was Polycarpe’s February
27, 2014 email because it: (1) stated the amount of the debt ($2);
and

(2)

contained

an

FDCPA

disclaimer.

(See

Email

from

Y.

Polycarpe to T. Toolis, dated Feb. 27, 2014 (“Pursuant to the Fair
Debt Collection Practices Act, you are advised that this office is
deemed to be a debt collector and any information obtained may be
used for that purpose.”).)

Even construing the facts in the light
- 14 -

most favorable to plaintiff, this email was not an attempt to
collect a debt.

First, it appears that the boilerplate FDCPA

language was included in the email that Martin sent to Polycarpe
("Hey, looks like he didn’t put your email in correctly"), which
Polycarpe forwarded to Toolis.

Second, and more importantly,

Polycarpe merely told Toolis that Styrczula’s January 2014 mortgage
payment was $2 short.

He then stated that he would “likely

withdraw” his motion to lift the stay because the bankruptcy court
was going to discharge the underlying debt “any day now.”

Id.

Polycarpe was responding to Toolis’s request for an update before
the hearing on Nationstar’s motion to lift the stay, not attempting
to

collect

a

$2

deficiency.

Finally,

even

assuming

that

Polycarpe’s email was an “initial communication,” and that Toolis’s
March 6, 2014 email could be construed to request verification,
Styrczula has not alleged that the defendants attempted to collect
the debt after Toolis’s email.

The statute does not create an

absolute right to verification.

A debt collector may elect to

abandon

collection

efforts

after

receiving

a

request

for

verification without incurring any liability under the statute:
Section 1692g(b) . . . gives debt collectors two options
when they receive requests for validation. They may
provide the requested validations and continue their debt
collecting activities, or they may cease all collection
activities. See Smith v. Transworld Systems, Inc., 953
F.2d 1025, 1031 (6th Cir. 1992) (debt collector does not
violate the FDCPA when it ceases collection activity
after receiving request for validation; debt collector
need not first send validation before ceasing collection
activity). The statute wisely anticipates that not all
debts can or will be verified. After all, in the real
- 15 -

world, creditors and debt collectors make mistakes, and
sometimes initiate collection activities against persons
who do not owe a debt. When a collection agency cannot
verify a debt, the statute allows the debt collector to
cease all collection activities at that point without
incurring any liability for the mistake.
Jang v. A.M. Miller and Associates, 122 F.3d 480, 483 (7th Cir.
1997).

Indeed, it appears that there was no debt to verify when

Toolis sent his email: the bankruptcy court’s order had already
discharged the debt.

Styrczula has not stated a claim for relief

under 15 U.S.C. § 1692g.
CONCLUSION
The court denies the defendants’ motion to dismiss in part,
and grants it in part.

The court denies the motion with respect to

the plaintiff’s 15 U.S.C. § 1692e claim.

The court grants the

motion with respect to the plaintiff’s 15 U.S.C. § 1692g claim and
dismisses that claim is dismissed with prejudice.

The court sets

a status hearing for October 30, 2014 at 1:00 p.m. before the
Honorable Amy J. St. Eve in Courtroom 1241.

DATE:

October 22, 2014

ENTER:

___________________________________________
Amy St. Eve, United States District Judge

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