Weingard v. Unifund CCR, LLc

Filing 27

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 5/6/2015: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEN WEINGARD,

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Plaintiff,
v.
UNIFUND CCR, LLC,
Defendants.

No. 14 C 9524

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Unifund CCR, LLC’s (Unifund)
motion to dismiss. For the reasons stated below, the motion to dismiss is granted.

BACKGROUND
Plaintiff Ken Weingard (Weingard) alleges that on February 7, 2014, Unifund
filed a citation to discover his assets in a collection action pending in the Circuit
Court of Cook County, Illinois (Citation Action). On February 20, 2014, Weingard
filed a Chapter Seven Bankruptcy Petition in the United States Bankruptcy Court for
the Northern District of Illinois (Bankruptcy Action). On May 21, 2014, Weingard
was discharged from the Bankruptcy Action.
On November 26, 2014, Weingard filed the instant Fair Debt Collection

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Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. action against Unifund.
Specifically, in the one-count complaint, Weingard alleges that Unifund violated the
FDCPA by filing the Citation Action in an improper venue in Cook County, Illinois.
Unifund now moves to dismiss the FDCPA claim.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive
a motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[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
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alleged”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted).

DISCUSSION
I. Exhibits
The court has considered certain exhibits filed by Weingard and Unifund.
(Ex. A, B, I, II, III, IV). Generally, a court “may only consider the plaintiff’s
complaint when ruling on a Rule 12(b)(6) motion.” Burke v. 401 N. Wabash
Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013). However, Federal Rule of
Procedure 10(c) permits certain documents attached to Rule 12(b)(6) motions to
dismiss to be considered. Id. Such documents “are considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are central to his claim.”
McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006)(internal quotations
omitted)(quoting 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002)).
Weingard has attached two exhibits to his complaint taken from the public
record, specifically a copy of the Collection Action court docket sheet (Exhibit A)
and a copy of a map of the Circuit Court of Cook County Municipal Districts and
Courthouses (Exhibit B). (Compl. Ex. A, B). Unifund has also attached four
exhibits to its motion to dismiss taken from the public record, specifically a copy of
Weingard’s complaint (Exhibit I), a copy of the Bankruptcy Action Petition (Exhibit
II), a copy of the Bankruptcy Action Schedule B (Exhibit III), and a copy of the
Bankruptcy Action court docket sheet (Exhibit IV). (Mot. Ex. I, II, III, IV).
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Weingard’s exhibits and Unifund’s exhibits are all central to determining whether
Weingard may file his FDCPA claim in federal court. McCready, 453 F.3d at 891;
Trinity Indus., Inc., 300 F.3d at 735. Therefore, the court can consider all of the
exhibits for purposes of adjudicating the instant motion to dismiss without converting
the motion into a motion for summary judgment. (Ex. A, B, I, II, III, IV).

II. Judicial Estoppel
A discharged bankruptcy debtor cannot subsequently litigate pre-bankruptcy
claims. See Metrou v. M.A. Mortenson Co., 781 F.3d 357, 358-59 (7th Cir.
2015)(stating “a debtor is judicially estopped from litigating after the bankruptcy
ends”). Unifund argues that Weingard is judicially estopped from pursuing his
FDCPA claim because it involves conduct that occurred prior to the Bankruptcy
Action and therefore belongs to the Bankruptcy Action trustee. (Mot. 1-6).
Weingard indicates that he was acting in good faith when he filed his Bankruptcy
Action on February 20, 2014 and contends that he was not aware of the FDCPA
claim at that time. (Resp. 3-6). Weingard specifically alleges that he did not become
aware of his FDCPA claim until after Suesz v. Med-1Solutions, LLC, 757 F.3d 636
(7th Cir. 2014) was decided by the Seventh Circuit on July 2, 2014. (Resp. 1-6).
Weingard argues that his FDCPA claim is based upon the holding in Suesz that
retroactively allows debtors to bring FDCPA claims against debt collectors who file
actions in improper venues. Id. at 646-50; (Resp. 1-6).

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Whether Weingard was aware of his instant FDCPA claim before or after he
was discharged from the Bankruptcy Action does not refute that the alleged conduct
set forth in the claim occurred before the Bankruptcy Action was filed on February
20, 2014. (Ex. A, B). Since the claim is pre-bankruptcy, the claim belongs to the
Bankruptcy Action trustee and Weingard, as the debtor, is judicially estopped from
subsequently pursuing the claim himself. See Cannon-Stokes v. Potter, 453 F.3d 446
(7th Cir. 2006)(stating that “the estate in bankruptcy, not the debtor, owns all prebankruptcy claims”); see also Metrou, 781 F.3d at 359-60 (stating that “a debtor who
errs in good faith, and tries to set things right by surrendering the asset to the
[t]rustee, remains entitled to any surplus after creditors have been paid, just as would
have occurred had the claim been disclosed on the bankruptcy schedules”). Since
Weingard is judially estopped from pursuing his instant FDCPA claim, the motion to
dismiss is granted.
CONCLUSION
Based upon the foregoing analysis, the motion to dismiss is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: May 6, 2015

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