Abdollahzadeh v. Sequium Asset Solutions, LLC, Case No. 18-cv-01890

• Decision Date: 08 January 2019
• Docket Number: Case No. 18-cv-01890
• Parties: MEHDI ABDOLLAHZADEH, Individually and on behalf of a class, Plaintiff, v. SEQUIUM ASSET SOLUTIONS, LLC, RESURGENT CAPITAL SERVICES, LP, & LVNV FUNDING, LLC, Defendants.
• Court: U.S. District Court — Northern District of Illinois

MEHDI ABDOLLAHZADEH,Individually and on behalf of a class, Plaintiff, v. SEQUIUM ASSET SOLUTIONS, LLC,RESURGENT CAPITAL SERVICES, LP, & LVNV FUNDING, LLC, Defendants.

Case No. 18-cv-01890

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

January 8, 2019

Judge: Charles P. Kocoras

Magistrate Judge: Michael T. Mason

DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS WITH INCORPORATED BRIEF IN SUPPORT

Defendants Sequim Asset Solutions, LLC ("Sequim"), Resurgent Capital Services, LP ("Resurgent"), and LVNV Funding, LLC ("LVNV") (collectively "Defendant"), through their undersigned attorneys, respectfully request that the Court enter judgment in their favor and against Plaintiff Mehdi Abdollazadeh ("Plaintiff") and the putative class on the pleadings as to Count I of the Complaint, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In support, Defendants submit the following memorandum of law.

INTRODUCTION

In Count I of the Complaint, Plaintiff conclusorily alleges Defendants violated Sections 1692e, e(2), and e(10) of the Fair Debt Collection Practices Act (the "FCPA"). See generally Compl. Plaintiff first alleges Defendants violated these sections by failing to explain that a judgment entered by an Illinois state court (the "Judgment") regarding the subject debt was dormant and that Defendant LVNV was not the judgment creditor. Id. Plaintiff is wrong and courts have rejected this exact theory. Liang v. Frontline Asset Strategies, LLC, 2016 U.S. Dist. LEXIS 177013 (N.D. Ill. 2016). Plaintiff next alleges Defendants violated Sections 1692e, e(2), and e(10) by referring to Plaintiff's account as an "account" in a February 22, 2018 letter because Plaintiff alleges that the "account" ceased to exist upon entry of the Judgment, pursuant to the Illinois "merger doctrine." Id. As a matter of law, that was not the case and Plaintiff entirely misconstrues the "merger doctrine." For these reasons, and the below reasons, the Court should enter judgment in favor of Defendants as to Count I of the Complaint, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

STATEMENT OF FACTS

Prior to 2005, Plaintiff opened a credit card account and incurred debt on that account (the "Account"). Compl., ¶ 15. Plaintiff failed to repay the Account as agreed. Id. A collection case was filed against Plaintiff in the Circuit Court of Cook County, Illinois, case number 2004-M1-139993 (the "State Court Action"). Id. The state court entered the Judgment in favor of Sherman and against Plaintiff on or around January 13, 2005. Id. The Judgment was assigned to Defendant LVNV. Defendant Sequium, a collection agency, later sought to collect on the Account. As part of those efforts, Defendant Sequium sent Plaintiff a letter dated February 22, 2018, a copy of which Plaintiff attached to the Complaint as Exhibit A (the "Letter"). As of that date, Plaintiff owed $6,478.32 on the Account. See Compl., Ex. A. Plaintiff alleges the Letter violated Sections 1692e, e(2), and e(10) of the FDCPA in Count I of the Complaint (for the reasons discussed above). It did not—as a matter of law—and the Court should enter judgment in favor of Defendants as to Count I.

LEGAL STANDARD

Under Rule 12(c) of the Federal Rules a Civil Procedure, a party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. See Fed. R. Civ. P. 12(c). "A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is governed by the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6)." BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015). Assuch, to survive a Rule 12(c) motion: "(1) the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests; and (2) its allegations must plausibly suggest that the plaintiff has the right to relief, raising that possibility above a speculative level." Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim "must contain sufficient factual matter . . . to state a claim for relief that is plausible on its face." Id. A complaint that only pleads facts that are "merely consistent with" liability fails to cross the line from "possibility" to "plausibility." Id.

ARGUMENT

I. The FDCPA Did Not Require Defendants to Explain that the Judgment Was "Dormant" or that Defendant LVNV "was not the judgment creditor."

Plaintiff alleges Defendants violated Sections 1692e, e(2), and e(10) of the FDCPA by failing to disclose that the Judgment "was dormant" and that Defendant LVNV "was not the judgment creditor." Compl., ¶ 62. But, a plain reading of Sections 1692e, e(2), and e(10) confirm that none of those sections required or imposed an affirmative duty on Defendants to disclose the purported information. See 15 U.S.C. § 1692e; 15 U.S.C. § 1692e(2); 15 U.S.C. § 1692e(10). A court in this district has agreed. Liang, 2016 U.S. Dist. Lexis 177013, at *9-10 (dismissing a Section 1692e claim where the plaintiff alleged that the defendant failed to disclose that the judgment was dormant and that defendant was not the judgment creditor).

Moreover, where the language of a statute is clear and unambiguous—as is the case here—it is well settled that courts must apply that statute as written. See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("The first rule of statutory construction is that where the language of a statute is clear, the court must apply its plain meaning as written . . . When thewords of a statute are unambiguous, then, this first cannon is also the last: judicial inquiry is complete."). The Seventh Circuit, in an FDCPA case, made clear that a court's "analysis of the statute ends with its language" and that courts "must faithfully apply the law as Congress drafted it" and "not disregard plain statutory language in order to impose on the statute what we may consider a more reasonable meaning." Jenkins v. Heintz, 25 F.3d 536, 539-40 (7th Cir. 1994), aff'd, 514 U.S. 291 (1995); see also Matter Witkowski, 16 F.3d 739, 745 (7th Cir. 1994) ("Even if there were some justification for concern, courts cannot re-write statutes."). Put simply, courts must not read requirements into the FDCPA that are not there. See Nichols v. Northland Groups, Inc., 2006 U.S. Dist. LEXIS 15037, at *36 (N.D. Ill. 2006) (declining to read a provision into the plain language of the FDCPA and rejecting a reading of the FDCPA that the plain language of that statute did not support.). If Congress wanted to impose a requirement on Defendants to disclose that the Judgment was dormant or that Defendant LVNV was not the judgment creditor, it would have. Congress chose not to in Section 1692e, and this Court should not write such requirement into that section.

II. Defendants Did Not Violate the FDCPA—as Matter of Law—by Allegedly Failing to Explain that the Judgment Was Dormant or that Defendant LVNV "was not the judgment creditor."

As explained, in support of Count I, Plaintiff alleges Defendants violated Sections 1692e, e(2), and e(10) by failing to explain in the Letter that the Judgment was dormant or that Defendant LVNV "was not the judgment creditor." Compl., ¶ 62. Plaintiff is wrong. This same theory has been tested and rejected in Liang. Liang, 2016 U.S. Dist. LEXIS 177013, *10. Before discussing the Liang case—which is directly on point—it is important to answer the question of whether a dormant judgment is enforceable under Illinois law. The answer is yes—as discussed below.

In Illinois, apart from certain limited exceptions not applicable here, "no judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by a proceeding provided by Section 2-1601." 735 ILCS 5/12-108(a). Section 2-1601 provides that a judgment can be revived "by employing a petition filed in the case in which the original judgment was entered in accordance with Section 2-1602." 735 ILCS 5/2-1601. Section 2-1602, in turn, states that a "judgment may be revived in the seventh year after its entry, or in the seventh year after its last revival, or at any other time thereafter within 20 years after its entry." 735 ILCS 5/2-1602(a). It goes on to state that such a petition "shall be filed in the original case in which the judgment was entered." 735 ILCS 5/2-1602(b). In short, judgments in Illinois—including dormant judgments—are enforceable for up to twenty-seven years, so long as the party seeking to enforce the judgment revives that judgment within twenty years. 735 ILCS 5/12-108(a); 735 ILCS 5/2-1602(a).

The Seventh Circuit, Illinois district courts, and Illinois state courts have routinely characterized the process of reviving a dormant judgment as "nothing more than a clerical requirement" to ensure that judgments being collected have not been vacated or satisfied. TDK Elecs. Corp. v. Draiman, 321 F.3d 677, 680 (7th Cir. 2003) ("Normally entry of a reviving order should be a clerical task; all it entails is assurances that the judgment has not been vacated or marked satisfied since its rendition."). In Liang, a court within this district dismissed a FDCPA identical to Plaintiff's Count I here. In doing so, the Liang court explained how clerical and administrative the process to revive a judgment in Illinois has become and stated that the "dormant nature of a judgment under Illinois law is hardly a barrier to enforcement. The dormant dollar is still a dollar due." Liang, 2016 U.S. Dist. LEXIS 177013, at *9. In fact, the revival process has become so clerical and administrative that the court in James T. Haddon, Ltd. v.Weiss held that "an express request for revival is not necessary to effect revival of a...