Wagner v. Bank of America, N.A. et al

Filing 38

ORDER denying 36 Defendant Bank of America's motion to dismiss; denying 29 Defendant Law Offices of Ira Nevel's motion to dismiss for failure to state a claim; denying as moot 32 Plaintiff's motion to strike. Signed by Judge G. Patrick Murphy on 5/16/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOYCE COLLINS WAGNER
Plaintiff,
vs.
BANK OF AMERICA, N.A.; LAW
OFFICES OF IRA T. NEVEL, LLC; and
DCM SERVICES, LLC,
Defendants.

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CIVIL NO. 12-744-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
The matter now before the Court is a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) filed by Defendant, Law Offices of Ira T. Nevel (“Nevel”) (Doc. 29). On May
13, 2013, the Court held an in-court hearing to entertain oral argument on the motion to dismiss.
Three days before the scheduled hearing, Defendant Bank of America filed a motion joining
Nevel’s motion to dismiss (Doc. 36).
Plaintiff, Joyce Collins Wagner, appeared at the in-court hearing through her counsel.
Nevel is a law office and is representing itself pro se. Bank of America did not show up for the
in-court hearing.

Nevel contends Plaintiff’s complaint has two problems: (1) a statute of

limitations issue; and (2) this lawsuit, which pertains to the Fair Debt Collection Practices Act
(“FDCPA”), is more properly a motion for sanctions in the state court foreclosure action.
During oral argument, the Court articulated its reasoning why Nevel’s statute of limitations
argument fails. However, the Court took this matter under advisement to carefully review
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Plaintiff’s complaint in an attempt to discern whether the allegations contained therein are
sufficient to survive the remaining issue raised by Nevel.
In examining the present 12(b)(6) motion to dismiss, the Court is mindful of the guidance
the United States Supreme Court has provided in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009);
Erickson v. Pardus, 551 U.S. 89 (2007); and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
This string of cases has lead the Seventh Circuit Court of Appeals to issue additional guidance to
the district courts.
Our system operates on a notice pleading standard; Twombly and its progeny do not
change this fact. Cf. Smith v. Duffey, 576 F.3d 336, 339-40 (7th Cir. 2009) (noting
courts’ over reliance on Twombly). A defendant is owed “fair notice of what the
… claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41,
47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Under Conley, just as under Twombly, it is
not enough to give a threadbare recitation of the elements of a claim without factual
support.
Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009). A complaint must
contain enough facts to state a claim to relief that is “plausible on its face” – the now familiar
phrase originally used in Twombly – and “also must state sufficient facts to raise a plaintiff’s right
to relief above the speculative level.” Bissessur, 581 F.3d at 602-03. A claim is plausible on its
face “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
“This said, in examining the facts and matching them up with the stated legal claims, we give ‘the
plaintiff the benefit of imagination, so long as the hypotheses are consistent with the complaint.’”
Bissessur, 581 F.3d at 602-03. The Court of Appeals, in an opinion by Circuit Judge Wood,
summarized this analysis as follows:
So what do we take away from Twombly, Erickson, and Iqbal? First, a plaintiff
must provide notice to defendants of her claims. Second, courts must accept a
plaintiff’s factual allegations as true, but some factual allegations will be so sketchy
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or implausible that they fail to provide sufficient notice to defendants of the
plaintiff’s claim. Third, in considering the plaintiff’s factual allegations, courts
should not accept as adequate abstract recitations of the elements of a cause of
action or conclusory legal statements.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). One month later, Circuit Judge Posner
explained: “‘[d]etermining whether a complaint states a plausible claim for relief will … be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.’” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009), quoting Iqbal, 129 S. Ct.
at 1950.
When assessing an FDCPA claim, the Court of Appeals has instructed the Court to
examine the complaint through the eyes of an unsophisticated debtor. McMillan v. Collection
Professionals Inc., 455 F.3d 754, 758 (7th Cir. 2006). A plaintiff’s claim should survive a
12(b)(6) motion to dismiss “if relief could be granted under any set of facts that could be proved
consistent with the allegations.” Id.
In general, 15 U.S.C. § 1692g sets forth mandatory information that a debt collector must
provide, in writing, to a debtor. The statute carefully outlines procedures that a debt collector
must comply with if a consumer disputes the debt. See 15 U.S.C. § 1692g(b). Here, the Court
finds Plaintiff has alleged, with sufficient particularity, violations of § 1692g that state a claim for
relief. Plaintiff’s complaint contains several paragraphs that outline Nevel’s failure to comply
with the notice requirements outlined in § 1692g(a) (See Doc. 3-1). There are also sufficient
allegation of Nevel’s failure to comply with § 1692g(b), that if true, may entitle Plaintiff to relief.
Nevel’s motion to dismiss (Doc. 29) is therefore DENIED. Defendant Bank of America’s
motion to dismiss (Doc. 36) is likewise DENIED.

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Prior to the in-court hearing, Plaintiff filed a motion to strike Nevel’s reply brief (Doc. 32).
Certainly, it is true that reply briefs are not favored and should be filed only in exceptional
circumstances. See SDIL-LR 7.1(c)(2). The party filing the reply brief is expected to state the
exceptional circumstances that necessitate a reply brief. Id. While Plaintiff’s motion (Doc. 32)
has some merit, the Court is cognizant of the arguments that are relevant to the disposition of
Nevel’s motion; and those that are not. At the in-court hearing, the Court clearly articulated its
thought process on Nevel’s motion to dismiss. Having denied Nevel’s motion to dismiss,
Plaintiff’s motion to strike (Doc. 32) is DENIED as MOOT.

IT IS SO ORDERED.
DATED: May 16, 2013
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G. PATRICK MURPHY
United States District Judge

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