Ozier v. REV-1 Solutions LLC
ORDER signed by Judge J.P. Stadtmueller on 8/9/2017: GRANTING 19 Plaintiff's Motion for Leave to File Additional Authority in Opposition to Defendant's Motion to Dismiss; GRANTING 14 Defendant's Motion to Dismiss; DISMISSING 1 Plaintiff's Complaint with prejudice; DENYING as moot 3 Plaintiff's Motion to Certify Class; and DISMISSING action. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-CV-118-JPS
REV-1 SOLUTIONS, LLC,
Plaintiff Deborah Ozier (“Ozier”) filed this case on her own behalf
and on behalf of all others similarly situated alleging that defendant Rev-1
Solutions, LLC (“Rev-1”), a debt collection agency, sent her misleading
collection letters in violation of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”). (Docket #1).
On March 30, 2017, Rev-1 filed a motion to dismiss the complaint
along with a brief in support of the motion. (Motion, Docket #14; Brief in
Support, Docket #15). Ozier filed a brief in opposition on April 6, 2017.
(Docket #16). Rev-1 submitted a reply in support of its motion on April 13,
2017. (Docket #18). For the reasons explained below, the Court will grant
the defendant’s motion and dismiss the complaint.1
After the motion was fully briefed, Ozier filed a motion for leave to submit
additional authority from the Seventh Circuit in opposition to the defendant’s
motion to dismiss, along with a copy of the Seventh Circuit case she wanted the
Court to consider. (Docket #19). The Court will grant plaintiff’s motion to
introduce additional authority, but it will not be enough to carry the day for her.
STANDARD OF REVIEW
The defendant has moved to dismiss the plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). This rule provides for
dismissal of complaints which fail to state a viable claim for relief. Fed. R.
Civ. P. 12(b)(6). To state a viable claim, a complaint must provide “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). In other words, the complaint must give “fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The
allegations must “plausibly suggest that the plaintiff has a right to relief,
raising that possibility above a speculative level[.]” Kubiak v. City of Chicago,
810 F.3d 476, 480 (7th Cir. 2016) (citation omitted).
In reviewing the plaintiff’s complaint, the Court is required to
“accept as true all of the well-pleaded facts in the complaint and draw all
reasonable inferences in [her] favor[.]” Id. at 480-81. However, a complaint
that offers “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). The Court must identify
allegations “that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. at 679.
The facts of this case are few and straightforward. Rev-1 sent Ozier
three letters seeking the collection of outstanding debts for personal
medical services, in the amount of $26.23, $66.93, and $26.30, respectively.
(Docket #1 at 2-3). Each letter identified Rev-1’s client as Columbia St.
Mary’s. (Docket #1-1, 1-2, and 1-3). The letters included the account number
associated with the debt and the date of the medical service for which the
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debt was incurred. Id. For example, the following information appeared on
the front page of the first letter Rev-1 sent to Ozier:
(Docket #1-1 at 2).
The second page of each letter included a form the debtor could
return with a payment and stated the name of the person owing the debt,
the date of service, account number, and balance due. (Docket #1-1, 1-2, and
1-3). For example, the following information appeared on the back page of
the first letter Rev-1 sent to Ozier:
(Docket #1-1 at 3).
For all three letters, the debt amount on the first page was the same
as the balance due stated on the second page. (Docket #1-1, 1-2, and 1-3).
The letters say nothing about interest on the debt. Id. The collection letters
were sent several months after the date the medical service was provided.
(Docket #1 at 3).
Ozier contends that by stating the balance due along with the date
of service, and not stating whether or not the debt was accruing interest, the
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letters were misleading in that they did not make clear whether the amount
stated was in fact the amount due as of the letter’s date. Id. at 3. Ozier claims,
for example, that “under Wisconsin law, parties can contract for the
addition of interest on outstanding obligations. If Plaintiff and Columbia St.
Mary’s agreed to a contractual interest rate, [the letters] would understate
the amount owed.” Id. Ozier does not allege that she and Columbia St.
Mary’s had in fact agreed to a contractual interest rate. See generally (Docket
Rev-1’s Letters Were Not False, Deceptive, or Misleading
Ozier first claims that Rev-1’s letters violate Sections 1692e,
1692e(2)(a), and 1692e(10) of the FDCPA. Those sections provide:
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
(10) The use of any false representation of deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer.
15 U.S.C. § 1692e.
In the Seventh Circuit, FDCPA claims are evaluated under the
objective “unsophisticated consumer standard.” Gruber v. Creditors' Prot.
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Serv., Inc., 742 F.3d 271, 273 (7th Cir. 2014). Such a person may, on one hand,
be “uninformed, naive, or trusting, but on the other hand [she] does possess
rudimentary knowledge about the financial world, is wise enough to read
collection notices with added care, possesses reasonable intelligence and is
capable of making basic logical deductions and inferences.” Id. (internal
quotation marks omitted). Additionally, “while the unsophisticated
consumer may tend to read collection letters literally, [she] does not
interpret them in a bizarre or idiosyncratic fashion.” Id. at 274 (internal
quotation marks omitted). If not even “a significant fraction of the
population would be misled” by the debt collector’s letter, dismissal is
required. Id. quoting Zemeckis v. Global Credit & Collection Corp., 679 F.3d
632, 636 (7th Cir. 2012).
Ozier’s core argument is that each of Rev-1’s letters contain a
“material false statement” that “misleads the unsophisticated consumer
about the amount of the debt” because the letters do not inform Ozier
whether her debts were accruing some amount of interest that was not
included in the stated balance. (Docket #1 at 5); (Docket #16 at 5 (“None of
the letters represent whether or not interest is being charged or what the
balance due is as of the date of the letter.”)). Ozier impliedly concedes that
the amounts Rev-1 sought to collect were the amounts incurred for medical
services and were not subject to accruing interest; indeed, she does not
allege that the amounts Rev-1 attempted to collect were actually
understated or incorrect. In other words, Ozier invites the Court to find
deceptive Rev-1’s failure to affirmatively state that the debts Rev-1 sought to
collect were not accruing interest. (Docket #16 at 11).
The FDCPA requires a debt collector to accurately, and without
deceptive language, state the amount of the debt owed. 15 U.S.C. § 1692e.
Page 5 of 9
It does not, as Ozier asks this Court to find, require a debt collector to state
the inapplicability of interest. Rev-1’s letters stated on the front page the
exact amount Rev-1 sought to collect. The back of the letters included a tearoff form, stating the same balance due as on the front page of the letters,
that the debtor could fill out and mail in with her payment. The term
“interest” is never mentioned. The unsophisticated consumer would not
interpret the letters to indicate that anything other than the balances stated
in the letters and repeated on the tear-off sheets were the actual amounts
owed. See Barnes v. Advanced Call Ctr. Techs., LLC, 493 F.3d 838, 841 (7th Cir.
2007) (“[A] ‘tearoff’ section of the letter that Plaintiffs are directed to return
with their payments lists the ‘Current Amount Due’ and nothing more.
Absent some particularly ambiguous language in the rest of the letter, we
cannot see how an unsophisticated consumer would interpret the tearoff to
indicate that anything other than the ‘Current Amount Due’ was ‘the
amount of the debt.’”).
Rev-1’s letters are unlike those in Miller, a case Ozier cites in support
of her argument, where the Seventh Circuit found a collection letter
violated the FDCPA because it stated the amount of unpaid principal on
the debt, noted that the amount did not include unpaid interest, late
charges, escrow advances, or other charges, and then invited the mortgagor
to call an 800 number to obtain complete figures. Miller v. McCalla, Raymer,
Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir. 2000). The
defendant in Miller sought to collect an amount above the amount stated in
the letter; that is not the case here. Rev-1’s letters do not include language
about interest, late charges, or escrow advances, and Rev-1 has not
indicated (and Ozier has not alleged) that Rev-1 sought to collect such
charges. Ozier takes issue with Rev-1 having included, in addition to the
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amount of debt, the date the medical service was performed for which the
debt was incurred. Far from lending confusion to the letters, this
information is helpful for the debtor to identify the source of the debt. See
Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 646 (7th Cir. 2009) (the
unsophisticated consumer has “a reasonable knowledge of her account’s
Ozier next argues that because the Seventh Circuit has held that debt
collectors may add five percent interest to medical debts under Wisconsin
state law without a judgment, see Aker v. Americollect, Inc., 854 F.3d 397, 399–
400 (7th Cir. 2017), Rev-1 should have affirmatively notified Ozier in its
letters that it was not collecting such interest on her medical debt. (Docket
#19). But, again, Ozier does not allege that Rev-1 intended to collect interest,
and she does not dispute that the amount Rev-1 stated in its letters was the
total amount Rev-1 sought to collect. That Rev-1 might have lawfully
collected more does not change the analysis here.
In her final attempt to stave off dismissal, Ozier asks this Court to
conclude that the statements in Rev-1’s letters are, if not plainly misleading,
confusing enough that they might possibly mislead or deceive the
unsophisticated consumer and therefore this case is one where introduction
of extrinsic evidence, such as consumer surveys, is appropriate. See Ruth v.
Triumph P’ships, 577 F.3d 790, 800 (7th Cir. 2009) (describing the category of
FDCPA cases in which allowance of extrinsic evidence is appropriate).
Because the Court finds, for the reasons stated above, that Rev-1’s letters
are “plainly, on their face, . . . not misleading or deceptive[,]” the Court
declines Ozier’s invitation to deny Rev-1’s motion to allow Ozier the
opportunity to collect extrinsic evidence. Id.
Page 7 of 9
The FDCPA simply does not mandate that debt collectors state the
inapplicability of interest on debts not accruing interest. As the Seventh
Circuit has aptly noted, requiring such superfluous information “would
relieve the unsophisticated consumer from the minimal obligation to be
able to make basic logical deductions and inferences and to not interpret
collection letters in a bizarre or idiosyncratic fashion[.]” Barnes, 493 F.3d at
841. Ozier’s Section 1692e claims must be dismissed.
Rev-1’s Letters Do Not Violate Section 1692g
Ozier also alleges that Rev-1’s letters violate of Section 1692g of the
FDCPA, which provides that:
Within five days after the initial communication with a
consumer in connection with the collection of any debt, a debt
collector shall, unless the following information is contained
in the initial communication or the consumer has paid the
debt, sent the consumer a written notice containing—
(1) the amount of the debt.
15 U.S.C. §1692g(a)(1).
Ozier contends that because Rev-1’s initial communications—the
letters at issue here—did not contain information about the inapplicability
of interest, they did not accurately state the “amount of the debt” and Rev1 should have, but did not, follow up with an additional notice containing
the proper debt amount. (Docket #16 at 16-17). Because the Court finds that
Rev-1’s initial letters accurately state the amount of debt it sought to collect,
Ozier’s Section 1692g claim must also fail.
Page 8 of 9
For the reasons stated herein, Ozier has failed to state a claim on
which relief can be granted. Her complaint must, therefore, be dismissed.2
IT IS ORDERED that the plaintiff’s motion for leave to file
additional authority in opposition to the defendant’s motion to dismiss
(Docket #19) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the defendant’s motion to dismiss
(Docket #14) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the plaintiff’s complaint (Docket
#1) be and the same is hereby DISMISSED with prejudice;
IT IS FURTHER ORDERED that the plaintiff’s motion to certify
class (Docket #3) be and the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 9th day of August, 2017.
BY THE COURT:
U.S. District Judge
Ozier’s motions to certify class, to stay briefing on the motion to certify,
and for relief from the local rule requiring a brief be filed contemporaneously with
a motion will be denied as moot. (Docket #3).
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