HILL v. BAYSIDE WOODS, HOA INC. et al

Filing 77

ORDER - Ms. Hill's attempts to strike CASI's reply brief are really an improper attempt to file a surreply brief and, as such, are DENIED. 74 ; 75 ; 76 . For the reasons detailed herein, CASI's Motion to Dismiss is GRANTED, 59 , an d Ms. Hill's FDCPA claims against CASI are DISMISSED WITH PREJUDICE. Likewise, PayLease's Motion to Dismiss is GRANTED, 62 , and Ms. Hill's FDCPA claim against PayLease is DISMISSED WITH PREJUDICE. Because no other claims remain pending in this litigation, final judgment shall enter accordingly. SEE ORDER. Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 2/9/2017.(JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KRISTIN S. HILL,
Plaintiff,
vs.
BAYSIDE WOODS, HOA INC.,
COMMUNITY ASSOCIATION SERVICES
OF INDIANA,
PAYLEASE WEB,
EADS, MURRAY AND PUGH PC,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

No. 1:16-cv-00916-JMS-DKL

ORDER
Presently pending before the Court are Defendant Community Association Services of
Indiana’s (“CASI”) Motion to Dismiss, [Filing No. 59], and Defendant PayLease Web’s
(“PayLease”) Motion to Dismiss, [Filing No. 62], pro se Plaintiff Kristin S. Hill’s Fair Debt
Collection Practices Act (“FDCPA”) claims, [Filing No. 4]. Ms. Hill asserts FDCPA claims
against CASI and PayLease for their actions related to debt incurred for damage to the siding of
the condominium where Ms. Hill resides, which is owned by her father.1 For the reasons that
follow, the Court grants the pending motions to dismiss. [Filing No. 59; Filing No. 62.]

Ms. Hill also asserted FDCPA claims against Defendant Bayside Woods, HOA, Inc. (“Bayside
Woods”) and Defendant Eads, Murray and Pugh PC (“EMP”), [Filing No. 4], but the Court
previously granted those parties’ Motions to Dismiss and dismissed Ms. Hill’s FDCPA claims
against them with prejudice. [Filing No. 53.] Final judgment has not yet been entered on those
claims. [Filing No. 53 at 12.]
1

I.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Fed. R. Civ. Pro. 8(a)(2)). “Specific facts are not necessary, the statement need only ‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson,
551 U.S. at 93 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
A motion to dismiss asks whether the complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing the sufficiency of a
complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in
favor of the plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.
2011). The Court will not accept legal conclusions or conclusory allegations as sufficient to state
a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.

2

II.
RELEVANT BACKGROUND2
The following background is set forth pursuant to the applicable standards, accepting all
well-pled factual allegations against CASI and PayLease from Ms. Hill’s Amended Complaint as
true. Ms. Hill did not attach any exhibits to her Complaint or Amended Complaint. [Filing No.
1; Filing No. 4.]

Thus, all representations regarding the contents of the Bayside Woods

homeowners’ covenants and Ms. Hill’s correspondence with various individuals are based
exclusively on Ms. Hill’s allegations and accepted as true for purposes of these motions.
In March 2012, Robert Ritter purchased a Bayside Woods condominium in Carmel. [Filing
No. 4 at 2.] Prior to closing, Mr. Ritter was provided a copy of the Declaration of the Covenants,
Conditions & Restrictions at Bayside Woods (the “Covenants”). [Filing No. 4 at 2.] Mr. Ritter’s
daughter—Ms. Hill—moved her belongings into the condominium shortly thereafter, but she did
not live in it until late May 2012. [Filing No. 4 at 2.] On April 23, 2012, Bayside Woods “sent
Ritter a letter stating that their BBQ grill had damaged the siding of the building around the patio
area and therefore it was their responsibility to have it repaired.” [Filing No. 4 at 2.] Ms. Hill
contacted Meredith Reese, the community manager, “to inform her that the BBQ grill on the patio
was not theirs; it was left by the prior owner . . . .” [Filing No. 4 at 2.] Ms. Reese asked Ms. Hill
to put her dispute in writing, and she did. [Filing No. 4 at 2-3.] Specifically, Ms. Hill stated that
the BBQ grill belonged to the previous owner, she did not use it, and no one lived in the
condominium until after Bayside Woods sent the first letter about it. [Filing No. 4 at 3.] Ms. Hill

Portions of this section are taken from the background set forth in the Court’s previous Order
granting motions to dismiss filed by Bayside Woods and EMP. [Filing No. 53 at 2-5.] Ms. Hill’s
allegations against those parties are necessary to put her allegations against CASI and PayLease
into context. However, the actions of Bayside Woods and EMP set forth herein will not be imputed
to CASI and PayLease, and even if they were, the Court has already found them insufficient to
state the FDCPA claim Ms. Hill alleges.
3
2

concludes that “[t]herefore, we are not responsible for the upkeep of the outside of the building
and we did not cause the damage.” [Filing No. 4 at 3.]
On September 8, 2012, Ms. Hill found that the damaged siding had been repaired. [Filing
No. 4 at 3.] She contacted Ms. Reese, who responded, “Sorry for the delay in responding. The
Board determined the repair would still be your responsibility. We will be sending you a letter
shortly with the information; if you are in disagreement you are certainly welcome to petition
again.” [Filing No. 4 at 3.] In a subsequent communication, Ms. Reese told Ms. Hill that the
Board vote had been unanimous and that “[t]he damage is the owner’s responsibility.” [Filing No.
4 at 3.]
On October 24, 2012, Bayside Woods “sent Ritter an invoice for $355.48” and a letter
stating:
Enclosed is Invoice 94967 for a CASI maintenance service call to replace the siding
damaged by the heat of a BBQ grill. Since the issue was deemed an “owner
responsibility” the Association is not responsible for payment of this service. The
total amount due is $355.48. This charge [h]as been applied to your homeowner
account.
[Filing No. 4 at 4.] Ms. Hill petitioned, citing the Covenants, which provide as follows:
[T]he Association shall provide exterior maintenance upon each lot which is subject
to assessment hereunder, as follows: . . . exterior building surfaces and other
exterior improvements. . . . In the event that the need for maintenance or repair is
caused through the willful or negligent act of the owner, his family, guests, or
invitees, the cost of such maintenance or repairs shall be added to and become a
part of the assessment of which such Lot is subject.
[Filing No. 4 at 4.] Ms. Hill’s letter to Bayside Woods states that it “has not provided any
reasonable basis for its conclusion that we are responsible for the costs of repairing the damage
regardless of whether we caused the damage or even that the damage was caused by a grill. If the
Association believes that the prior owners did cause the damage the Association had the
opportunity to notify them of the damage and repair it at their expense if they didn’t challenge
4

that . . . .” [Filing No. 4 at 4.] On November 27, 2012, Ms. Hill sent a notarized affidavit to Ms.
Reese stating that “at no time had I, the owner, a family member, guest or invitee even used the
grill” before Bayside Woods sent the April 2012 letter. [Filing No. 4 at 5.]
Bayside Woods responded, standing by its initial decision and stating “this decision is final
and the charges stand as originally submitted. Please make check payable to Bayside Woods
HOA . . . no later than December 14, 2012.” [Filing No. 4 at 5.] After that time, Bayside Woods
sent “numerous letters reminding her and Ritter that the Account History had a past due balance.”
[Filing No. 4 at 5.]
CASI provides an array of maintenance services and resources. [Filing No. 4 at 2.] In
October 2014, CASI sent Mr. Ritter a letter stating as follows:
By your signature below, this letter shall constitute your agreement to bring your
account with Bayside Woods, HOA, Inc. in accordance with the stated terms.
Please sign and date as indicated and return this letter to us. A copy of this
agreement is enclosed for your records.
I agree to bring my account current with Bayside Woods, HOA, which I
acknowledge is past due as this letter in the amount of $519.21. The terms of the
agreement are as follows: I understand that my failure to comply with these terms
will result in the revocation of this payment plan by the Board of Directors, in which
case collection proceedings shall immediately commence.
[Filing No. 4 at 6.] Ms. Hill called Bayside Woods’ office and questioned the balance, stating that
it should only be $355.48. [Filing No. 4 at 6.]
On October 29, 2014, Mr. Ritter received a letter from CASI stating that the previous letter
“was mistakenly sent to your attention” and directing him to “please disregard the letter you
received.” [Filing No. 4 at 6-7.] On the reverse side “was a letter informing Ritter of the
appropriate payment methods.” [Filing No. 4 at 7.] Before receiving the letter, Ms. Hill had
always deposited a money order for the $185 monthly assessment in an office deposit box in
Carmel. [Filing No. 4 at 7.] The letter listed the following payment methods: “Autopay; paying
5

online 24/7 and payments by mail to the Arizona office addressed to Bayside Woods HOA, Inc.”
[Filing No. 4 at 7.]
From December 2014 until April 2015, Ms. Hill paid the monthly Bayside Woods
assessment online through the PayLease portal, paying only the $185 monthly assessment and
leaving the amount of the special assessment for the repair of the damaged siding unpaid. [Filing
No. 4 at 7-8.] On April 15, 2015,3 Ms. Hill twice attempted to pay just the $185 monthly
assessment through the PayLease portal “but the computer automatically took the entire balance
for deduction from her bank account without having given her an opportunity to confirm or not
confirm the payment.” [Filing No. 4 at 8.] Ms. Hill unsuccessfully tried to cancel the payments
and subsequently contacted Bayside Woods. [Filing No. 4 at 8-9.] On April 22, 2015, two $25
NSF fees for returned payments were deducted from her bank account. [Filing No. 4 at 10.] Ms.
Hill successfully disputed those fees with her bank, and she opened a new bank account to prevent
Bayside Woods from withdrawing additional funds. [Filing No. 4 at 10-11.]
Sometime after March 11, 2016, Ms. Hill received or took possession of a letter from
EMP—Bayside Woods’ attorney—that it “sent Ritter notifying him of their intent to file a lawsuit
unless he either pays the total amount specified in the letter or makes payment arrangements
satisfactory to their client which would include the disputed charge for the repair of the damaged
siding and late fees for nonpayment of it.” [Filing No. 4 at 15.] Within thirty days, Ms. Hill sent
EMP a letter disputing various portions of the Account History Report included with EMP’s letter,
such as the “October 24, 2012 assessment in the amount of $355.06 special assessment” and the
“late fees assessed for the non-payment” of the special assessment. [Filing No. 4 at 16.]

Ms. Hill’s Amended Complaint alleges “April 15, 2014,” but this appears to be a scrivener’s
error given the timing of the events of which she complains. [Filing No. 4 at 8.]
6
3

EMP responded that “because Hill is not the owner of the Condo and her brother has power
of attorney over her father she has been informed by the law firm of the attorneys that the dispute
notice and request for verification (or proof of debt) she sent the attorneys will not be considered
and therefore she will not be receiving proof of the debt as requested.” [Filing No. 4 at 16.] The
person Ms. Hill spoke with at EMP “acknowledged that she had been living at the condo and
responding to the issues until this point but because her brother—not she—has power of attorney
they will be communicating with him only.” [Filing No. 4 at 16.] Ms. Hill has acknowledged that
on April 12, 2016, EMP received the full payment for the disputed amount of debt from Mr.
Ritter’s power of attorney. [Filing No. 45 at 6.]
On April 22, 2016, Ms. Hill filed a Complaint in this Court. [Filing No. 1.] An Amended
Complaint asserts FDCPA claims against various parties, including CASI and PayLease. [Filing
No. 4.] CASI and PayLease have both filed motions asking that Ms. Hill’s claims against them be
dismissed. [Filing No. 59; Filing No. 62.]
Ms. Hill did not file a timely response to PayLease’s Motion to Dismiss, [Filing No. 73],
but she did file a timely response to CASI’s Motion to Dismiss, [Filing No. 67]. After CASI filed
its reply brief, Ms. Hill filed three motions asking to strike CASI’s reply brief for allegedly making
improper arguments. [Filing No. 74; Filing No. 75; Filing No. 76.] These motions make
substantive arguments in support of Ms. Hill’s position and are more properly characterized as
attempts to have the last word by filing a surreply brief. This District’s Local Rules do not
contemplate a surreply brief in any context other than on summary judgment, and then only if the
movant cites new evidence in its reply brief or asks to strike an argument in the non-movant’s
response brief. L.R. 56-1(d), available at United States District Court, Southern District of
Indiana, Local Rules, http://www.insd.uscourts.gov/sites/insd/files/Local%20Rules%2012-17

16.pdf (last visited February 9, 2017). CASI did not ask to strike any of Ms. Hill’s response
arguments or cite new evidence in its reply brief. Thus, Ms. Hill’s attempts to file an improper
surreply brief must be denied. [Filing No. 74; Filing No. 75; Filing No. 76.] The Court will now
consider the merits of the pending motions.
III.
DISCUSSION
Ms. Hill asserts an FDCPA claim against CASI pursuant to 15 U.S.C. § 1692e(2) for
allegedly misrepresenting the debt at issue. [Filing No. 4 at 17-21.] She also asserts an FDCPA
claim against CASI and PayLease pursuant to 15 U.S.C. § 1692f(1) for their actions surrounding
her attempts to pay an amount less than the full balance online. [Filing No. 4 at 21-22.] The Court
will separately address Ms. Hill’s claims pursuant to 15 U.S.C. § 1692e(2) and 15 U.S.C. §
1692f(1).
A. FDCPA Claim against CASI Pursuant to 15 U.S.C. § 1692e(2)
CASI argues that Ms. Hill lacks standing to pursue an FDCPA claim against it. [Filing No.
60 at 5-8.] It emphasizes that all assessed fees were only charged to Mr. Ritter and that it was his
obligation to satisfy the debt at issue since he owned the condo. [Filing No. 60 at 5-8.] Even if
Ms. Hill has standing to bring her claim, CASI argues that her FDCPA claim against it is precluded
by prudential limitations because she really is attempting to bring a claim on behalf of a thirdparty. [Filing No. 60 at 8-10.] Finally, CASI emphasizes that “there is no debt attributed to Ms.
Hill that CASI has attempted to collect.” [Filing No. 60 at 10.]
In response, Ms. Hill focuses on her other FDCPA claim against CASI pursuant to 15
U.S.C. § 1692f. [Filing No. 67 at 9-14 (citing 15 U.S.C. § 1692f).] She also contends that she had
implied authority to act on Mr. Ritter’s behalf because she was the only person who lived in the
condo, she received a lot of the letters, and she made the payments. [Filing No. 67 at 14-21.]
8

Thus, Ms. Hill argues that she has standing to pursue her FDCPA claims. [Filing No. 67 at 1421.]
In reply, CASI points out that Ms. Hill “makes no argument that her claim under 15 U.S.C.
§ 1692e(2) should not properly be dismissed.” [Filing No. 71 at 1.]
One purpose of the FDCPA is “to eliminate abusive debt collection practices by debt
collectors.” 15 U.S.C. § 1692(e). The provision of the FDCPA on which Ms. Hill relies for her
claim against CASI pursuant to 15 U.S.C. § 1692e “forbids a debt collector to ‘use any false,
deceptive, or misleading representation or means in connection with the collection of any debt.’”
Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773 (7th Cir. 2007) (quoting 15 U.S.C.
§ 1692e). This includes the false representation of “the character, amount, or legal status of any
debt” or “any services rendered or compensation which may be lawfully received by any debt
collector for the collection of a debt.” 15 U.S.C. § 1692e(2). The term “debt” means “any
obligation or alleged obligation of a consumer to pay money arising out of a transaction in which
the money, property, insurance, or services which are the subject of the transaction are primarily
for personal, family, or household purposes, whether or not such obligation has been reduced to
judgment.” 15 U.S.C. § 1692a(5).
While construing 15 U.S.C. § 1692e, the Seventh Circuit Court of Appeals concluded that
“when read in light of the Act’s purpose and numerous provisions, the prohibitions are clearly
limited to communications directed to the consumer.” O’Rourke v. Palisades Acquisition XVI,
LLC, 635 F.3d 938, 941 (7th Cir. 2011) (citing 15 U.S.C. § 1692e (“The Act is meant ‘to protect
consumers against debt collection abuses.’”)). The term “consumer” means “any natural person
obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3). The Seventh Circuit
emphasized that because the purpose of the FDCPA is to protect consumers, “[n]aturally we have
9

used that understanding of the Act to interpret § 1692e, holding that to be actionable a misleading
statement must have the ability to influence a consumer’s decision.” O’Rourke, 635 F.3d at 942
(original emphasis). The Seventh Circuit concluded that § 1692e “does not extend its protection
beyond the consumer; there is no reference to anyone else in the process who may have a
consequential, let alone extremely consequential role in the debt-collection process.” Id. at 943.
“Thus, the Act is limited to protecting consumers and those who have a special relationship with
the consumer—such that the Act is still protecting the consumer—from statements that would
mislead these consumers. The Act is not similarly interested in protecting third parties.” Id.
Based on the applicable language in O’Rourke, the Court must conclude that Ms. Hill’s
FDCPA claim against CASI based on 15 U.S.C. § 1692e fails as a matter of law because there is
no dispute that Ms. Hill was not the “consumer” for purposes of the debt at issue. Ms. Hill’s own
allegations confirm that Mr. Ritter was the owner of the condominium, that the communications
from CASI were directed at him, and that the debt at issue was his obligation. Thus, Mr. Ritter
was the “consumer” for purposes of the FDCPA provision at issue. To the extent that Ms. Hill
interacted with CASI about the debt, it is beyond dispute that she did so voluntarily. Although 15
U.S.C. § 1692e may protect “those who have a special relationship with the consumer,” O’Rourke,
635 F.3d at 943, Ms. Hill’s complaint confirms that her brother was Mr. Ritter’s power of attorney,
[Filing No. 4 at 16]. Thus, to the extent anyone other than Mr. Ritter had the type of special
relationship needed to bring an FDCPA claim pursuant to 15 U.S.C. § 1692e on Mr. Ritter’s behalf,
under these circumstances it would be Mr. Ritter’s power of attorney, not Ms. Hill.4

Ms. Hill argues that she had implied authority to act on Mr. Ritter’s behalf. [Filing No. 67 at 1421.] Because she has admitted, however, that her brother was Mr. Ritter’s power of attorney,
[Filing No. 4 at 16], the Court will not further address her implied authority argument.
10
4

The Court acknowledges that after O’Rourke, the Seventh Circuit recognized that the
“broad language” of that decision, “if taken out of context, could be read to say that only a
‘consumer’ (i.e., a debtor or alleged debtor) can have a claim for relief” under the FDCPA. Todd,
731 F.3d at 736-37. The Seventh Circuit clarified that “each provision of the FDCPA must be
analyzed individually to determine who falls within the scope of its protection and thus to decide
with respect to whom the provision can be violated.” Id. at 738. It emphasized that “[i]n O’Rourke,
this court addressed only § 1692e . . . [and t]he broad language in the opinion must be understood
in that context.” Id. at 738. The Seventh Circuit did not overrule O’Rourke, however, and the
underlying premise stands with regard to claims brought pursuant to § 1692e. See Janetos v.
Fulton Friedman & Gullace, LLP, 825 F.3d 317, 324 (7th Cir. 2016) (stating that “[p]ortions of
§ 1692e are drafted in broad terms” and that “[f]or such claims, [the Court] must assess allegedly
false or misleading statements to determine whether they could have any practical impact on a
consumer’s rights or decision-making process”) (emphasis added). Because Ms. Hill is pursuing
one of her FDCPA claims against CASI pursuant to the same provision of the FDCPA at issue in
O’Rourke, the Court must conclude as a matter of law that her claim against CASI pursuant to
§ 1692e fails as a matter of law because she is not the “consumer” of the debt at issue.
B. FDCPA Claim Against CASI and PayLease Pursuant to 15 U.S.C. § 1692f(1)
Ms. Hill also asserts FDCPA claims against CASI and PayLease pursuant to 15 U.S.C. §
1692f(1) for their actions surrounding her attempts to pay an amount less than the full balance
online. [Filing No. 4 at 21-23.] In support of its Motion to Dismiss, CASI makes the same
arguments challenging Ms. Hill’s standing that it did with regard to the 15 U.S.C. § 1692e claim
analyzed above. [Filing No. 60.] PayLease does not challenge Ms. Hill’s standing to bring an
FDCPA claim pursuant to § 1692f, but it contends that her claim against it pursuant to that statute
11

must be dismissed because PayLease is not a “debt collector” to which that statute applies. [Filing
No. 63.] PayLease also emphasizes that Ms. Hill voluntarily used its website despite other
available mechanisms to pay the monthly assessment. [Filing No. 63 at 5-8.]
In response, Ms. Hill argues that she has standing to bring an FDCPA claim on her own
behalf pursuant to 15 U.S.C. § 1692f. [Filing No. 67 at 12-14 (citing Todd, 731 F.3d at 734).] She
contends that her claims against CASI and PayLease should not be dismissed because they violated
15 U.S.C. § 1692f when she “was asked to make the payments online rather than by depositing a
check or money order directly into the Bayside Woods HOA deposit box at its office in Carmel”
as she had been doing. [Filing No. 67 at 10-11.] Ms. Hill also alleges that the PayLease account
was “set such that she was unable to pay any amount other than the entire balance on Ritter’s
account.” [Filing No. 67 at 11.] She emphasizes that she was damaged by NSF fees that were
subsequently withdrawn from her account, and that even after her bank successfully disputed them,
PayLease tried to withdraw them again and Ms. Hill had to open a new bank account. [Filing No.
67 at 11.]
In its reply brief, CASI concedes that Ms. Hill may have standing to bring a claim pursuant
to 15 U.S.C. § 1692f. [Filing No. 71 at 2 (citing Todd, 731 F.3d at 734).] CASI emphasizes,
however, that Ms. Hill does not make any allegations regarding CASI in alleging the 15 U.S.C. §
1692f claim, since the allegations on which her claim rests focus on her interactions with the
PayLease website. [Filing No. 71 at 2.]
15 U.S.C. § 1692f provides that “[a] debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt.” The Seventh Circuit has held that “anyone
aggrieved by a debt collector’s unfair or unconscionable collection practices can fall within the

12

provision’s zone of interest” and has standing to sue for her own injuries even if she is not the
consumer from whom the debt collector sought to collect. Todd, 731 F.3d at 738.
PayLease does not challenge Ms. Hill’s standing to bring a 15 U.S.C. § 1692f claim, and
CASI abandons its standing argument on reply. Given that it is undisputed that Ms. Hill was the
one who attempted to make the payments through the PayLease website, the Court concludes that
pursuant to the Seventh Circuit’s holding in Todd, Ms. Hill has standing to bring a claim pursuant
to 15 U.S.C. § 1692f for conduct that she alleges was unfair or unconscionable with respect to her.
Standing alone is not enough, however, for Ms. Hill’s claim to proceed past the motion to
dismiss stage of litigation. Specifically, Ms. Hill’s claims “may not proceed if [her] allegations do
not plausibly describe a debt collection practice that was unfair or unconscionable with respect to
[her].” Todd, 731 F.3d at 739 (“We conclude that Todd has not stated a plausible claim for relief
under § 1692f. His allegations about his conversation with the [debt collector] representative are
simply inadequate to support a claim that [the debt collector] subjected him to an unfair or
unconscionable collection practice.”).

Ms. Hill contends that the allegedly unfair or

unconscionable means that CASI and PayLease used to collect a debt were 1) when she “was asked
to make the payments online rather than by depositing a check or money order directly into the
Bayside Woods HOA deposit box at its office in Carmel” as she had been doing, and 2) “[d]ue to
the attempts to take payment for the entire balance on Ritter’s account from Hill’s bank account
rather than payment for the [$185] monthly assessment only that Hill intended to pay.” [Filing
No. 67 at 10-11.]
As an initial matter, the Court agrees with CASI that Ms. Hill’s allegations regarding the
alleged § 1692f violation focus on the conduct of PayLease, not CASI, and do not adequately
allege a violation against CASI. [See Filing No. 4 at 21-23.] Even assuming that CASI and
13

PayLease acted together, which Ms. Hill does not allege, Ms. Hill cites no authority for the
propositions that discontinuing a prior method of accepting payment or setting a payment website
to not allow partial payments constitute unfair or unconscionable debt collection practices. Even
if such practices can constitute unfair or unconscionable debt collection practices under certain
circumstances, the Court finds that they do not as a matter of law in this case because Ms. Hill
admits that there were other options for her to make the payments at issue. [Filing No. 4 at 7 (“The
letter listed the following payment methods: ‘Autopay; paying online 24/7 and payments by mail
to the Arizona office addressed to Bayside Woods HOA, Inc.’”).] While Ms. Hill may have
preferred to make the partial payments online—and she admits that she did so successfully for
multiple months—the Court finds as a matter of law that she has not stated a plausible claim for
relief under § 1692f against either CASI or PayLease.
As a final matter, the Court also agrees with PayLease that Ms. Hill’s allegations confirm
that it was not acting as a “debt collector,” such that it could be liable for a violation of 15 U.S.C.
§ 1692f.

The FDCPA defines the term “debt collector” as “any person who uses any

instrumentality of interstate commerce or the mails in any business the principal purpose of which
is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6) (emphasis added).
Ms. Hill’s allegations to support her 15 U.S.C. § 1692f claim focus on PayLease’s attempts to
collect NSF fees from her bank account, but it is undisputed that those fees would be due to
PayLease, not another entity. Thus, PayLease was acting as a creditor, not a debt collector, with
regard to those fees and its conduct was not covered by the FDCPA. See McKinney v. Cadleway
Properties, Inc., 548 F.3d 496, 498 (7th Cir. 2008) (“The FDCPA covers debt collectors, not
creditors, and these categories are mutually exclusive.”).
14

For these reasons, Ms. Hill’s 15 U.S.C. § 1692f claim against CASI and PayLease must be
dismissed as a matter of law.
C. Effect of Rulings
For the reasons stated herein, the Court concludes that Ms. Hill’s FDCPA claims against
CASI and PayLease pursuant to 15 U.S.C. § 1692e and 15 U.S.C. § 1692f fail as a matter of law.
Any attempt by Ms. Hill to amend her allegations against these parties would be futile based on
her own allegations which, accepted as true, plead her out of court in light of the binding precedent
cited herein. See Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786
F.3d 510, 520 (7th Cir. 2015) (holding that “[w]here it is clear that the defect cannot be corrected
so that amendment is futile,” leave to amend may be denied). Thus, Ms. Hill’s claims against
CASI and PayLease are dismissed with prejudice. Given that the Court has already dismissed Ms.
Hill’s claims against Bayside Woods and EMP with prejudice and no other claims remain pending
in this litigation, the Court will enter final judgment.
IV.
CONCLUSION
Ms. Hill’s attempts to strike CASI’s reply brief are really an improper attempt to file a
surreply brief and, as such, are DENIED. [Filing No. 74; Filing No. 75; Filing No. 76.] For the
reasons detailed herein, CASI’s Motion to Dismiss is GRANTED, [Filing No. 59], and Ms. Hill’s
FDCPA claims against CASI are DISMISSED WITH PREJUDICE. Likewise, PayLease’s
Motion to Dismiss is GRANTED, [Filing No. 62], and Ms. Hill’s FDCPA claim against PayLease
is DISMISSED WITH PREJUDICE. Because no other claims remain pending in this litigation,
final judgment shall enter accordingly.

Date: 2/9/2017

15

Distribution via US Mail:
KRISTIN S. HILL
6412 Bay Vista Court
Indianapolis, IN 46250
Electronic Distribution via CM/ECF:
John W. Richards
BUNGER & ROBERTSON
[e-mail]
Nicholas Ward Levi
KIGHTLINGER & GRAY
[e-mail]
Peter A. Velde
KIGHTLINGER & GRAY
[e-mail]
Michael E. Brown
KIGHTLINGER & GRAY LLP
[e-mail]
Thomas R. Schultz
SCHULTZ & POGUE LLP
[e-mail]
Jonathan Lawrence Bucher, Jr.
SCHULTZ & POGUE LLP
[e-mail]

16