Johnson v. I.C. System, Inc.

Filing 19

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendants motion for judgment on the pleadings is GRANTED. (Doc. No. 9 .) IT IS FURTHER ORDERED that Defendants request for attorneys fees is denied. Signed by District Judge Audrey G. Fleissig on 01/25/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

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CHERYL JOHNSON,
Plaintiff,
v.
I.C. SYSTEM, INC.,
Defendant.

No. 4:15CV01574 AGF

MEMORANDUM AND ORDER
This action for statutory damages under the Fair Debt Collection Practices
Act (“FDCPA”) is before the Court on the motion of Defendant I.C. System, Inc.,
for judgment on the pleadings. Defendant also requests attorney’s fees under the
Act on the ground that the action was brought in bad faith and for the purpose of
harassment. For the reasons set forth below, the motion for judgment on the
pleadings shall be granted. Defendant’s request for fees shall be denied.
Motion for Judgment on the Pleadings
Plaintiff filed this action on October 14, 2015, alleging that Defendant sent
her a debt collection letter on or about August 7, 2015, in a double-windowed
envelope which displayed Defendant’s name, “I.C. System, Inc.” in bold letters
through the upper left hand corner window. Plaintiff claims that this violated the
FDCPA by indicating to the public that the communication was from a debt

collector and that Plaintiff was a debtor. Plaintiff alleges that Defendant’s August
7, 2015 letter caused her embarrassment and anxiety.
A motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) is to be considered using the same standard as a motion to dismiss
under Rule 12(b)(6). Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir.
2012).
In deciding a motion for judgment on the pleadings, the Court accepts
all facts pled by the nonmoving party as true and draws all reasonable
inferences from the facts in favor of the nonmovant. This is a strict
standard, as judgment on the pleadings is not properly granted unless
the moving party has clearly established that no material issue of fact
remains to be resolved and the party is entitled to judgment as a
matter of law.
Nielsen v. Union Sec. Ins. Co., No. 4:12CV01698 JAR, 2013 WL 3849970, at *1
(E.D. Mo. July 24, 2013) (citations omitted).
Congress enacted the FDCPA in 1977 to curb “the use of abusive,
deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692(a). The law
prohibits “unfair or unconscionable means to collect or attempt to collect any debt”
as a matter of “general application.” Id. § 1692f. Section 1692f provides a nonexhaustive list of examples of prohibited conduct, the eighth and last of which is
“using any language or symbol, other than the debt collector’s address, on any
envelope when communicating with a consumer by use of the mails or by
telegram.” Id. § 1692f(8). The statute provides for an exception: “a debt collector
may use his business name if such name does not indicate that he is in the debt

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collection business.” Id.
The Court agrees with Defendant that Strand v. Diversified Collection
Service, Inc., 380 F.3d 316 (8th Cir. 2004), directly precludes Plaintiff’s claim. In
Strand, the Eighth Circuit Court of Appeals addressed whether a debt collector
printing its name “D.C.S. Inc.” above the return address violated § 1692f(8). The
court observed that “Congress’s intent in protecting consumers . . . would not be
promoted by proscribing benign language because Congress enacted § 1692f(8)
simply to prevent debt collectors from using symbols on envelopes indicating that
the contents pertain to debt collection.” Strand, 380 F.3d at 319. The Strand Court
held that use of an abstract business name such as “D.C.S. Inc.” has no real risk of
disclosing that the debtor is the subject of a collection effort. Id.
The Court rejects Plaintiff’s attempt to avoid the holding of Strand by
arguing that because Plaintiff is one of the largest debt collection agencies in the
United States, its name would be recognizable as a debt collector; and that a google
search of “I.C. System, Inc.,” shows that it is a debt collector. See Lake v.
Consumer Adjustment Co., No. 4:15CV01495 JCH, 2015 WL 8770719, at *3 (E.D.
Mo. Dec. 14, 2015) (rejecting similar google argument). Plaintiff has cited no
authority for its two arguments, and indeed, they run counter to the language of
§1692f(8) which specifically allows a return name and address to be placed on the
envelope, so long as the sender is not obviously identifiable as a debt collector.

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Request for Attorney’s Fees
Section 1692k(a)(3) of the FDCPA provides that “[o]n a finding by the court
that an action under this section was brought in bad faith and for the purpose of
harassment, the court may award to the defendant attorney’s fees reasonable in
relation to the work expended and costs.” This section “should be construed
narrowly as not to discourage private litigation under the FDCPA. For an award to
be made, there must be evidence that the plaintiff knew that his claim was meritless
and that plaintiff pursued his claims with a purpose of harassing the defendant.”
Velez v. Portfolio Recovery Assocs., Inc., 881 F. Supp. 2d 1075, 1085-86 (E.D. Mo.
2012) (citation omitted).
Neither Congress nor the Eighth Circuit has defined the phrase “bad faith
and for the purpose of harassment,” within the meaning of the FDCPA. The Court
believes the following description from another court considering a motion for fees
under §1692k(a)(3) by a prevailing defendant is apt: “The hallmark of a bad-faith
lawsuit is one ‘where the suit is so completely without hope of succeeding that the
court can infer that the plaintiff brought the suit to harass . . . rather than to obtain a
favorable judgment.’” Black v. Equinox Fin. Mgmt. Sols., Inc., 444 F. Supp. 2d
1271, 1275 (N.D. Ga. 2006) (quoting Glick v. Koenig, 766 F.2d 265, 270 (7th Cir.
1985)).
In the present case, there is binding Eighth Circuit case law holding that a
debt collector with an abstract business name, such as Defendant’s in this case, can

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place its name on an envelope containing a collection letter, and the statutory
language itself precludes Plaintiff’s claim. Plaintiff has cited no cases that would
support its theory of liability. Nevertheless, given Plaintiff’s arguments with
respect to advances in technology, and that Defendant is one of the largest debt
collectors nationally, the Court believes that Plaintiff’s claim – while lacking in
merit – was brought in hopes of succeeding and not simply to harass. Under these
circumstances, the Court does not believe it is proper to invoke 1692k(a)(3) to
award fees to Defendant.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion for judgment on the
pleadings is GRANTED. (Doc. No. 9.)
IT IS FURTHER ORDERED that Defendant’s request for attorney’s fees is
denied.
A separate Judgment shall accompany this Memorandum and Order.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 25th day of January, 2016

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