Boerner v. LVNV Funding LLC

Decision Date25 July 2018
Docket NumberCase No. 17-CV-1786-JPS
Citation326 F.Supp.3d 665
Parties George BOERNER, Plaintiff, v. LVNV FUNDING LLC and Messerli & Kramer PA, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

326 F.Supp.3d 665

George BOERNER, Plaintiff,
LVNV FUNDING LLC and Messerli & Kramer PA, Defendants.

Case No. 17-CV-1786-JPS

United States District Court, E.D. Wisconsin.

Signed July 25, 2018

326 F.Supp.3d 671

Briane F. Pagel, Jr., Lawton & Cates SC, Madison, WI, for Plaintiff.

Nabil G. Foster, Hinshaw & Culbertson LLP, Chicago, IL, James E. Kachelski, Messerli & Kramer PA, Plymouth, MN, Defendants.


J. P. Stadtmueller, U.S. District Judge

In this case, Plaintiff, George Boerner ("Boerner"), alleges that Defendants, LVNV Funding LLC ("LVNV") and Messerli & Kramer PA ("Messerli & Kramer"), violated his rights under federal and state law when they sued him in Washington County Circuit Court on a defaulted credit card debt. Messerli & Kramer filed a motion to dismiss the complaint on April 23, 2018, (Docket # 15), in which LVNV joined, (Docket # 18). The motion is fully briefed and, for the reasons stated below, it will be granted in part and denied in part.


Federal Rule of Civil Procedure 12(b) provides for dismissal of complaints which, among other things, fail to state a viable claim for relief. Fed. R. Civ. P. 12(b)(6). To state a 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level[.]"

326 F.Supp.3d 672

Kubiak v. City of Chi. , 810 F.3d 476, 480 (7th Cir. 2016) (citation omitted). In reviewing the complaint, the Court is required to "accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff." Id. at 480–81.

In addition to their allegation that Boerner has not stated viable claims, Defendants also challenge the Court's subject-matter jurisdiction under Rule 12(b)(1). When faced with a jurisdictional challenge, the court accepts as true the well-pleaded factual allegations found in the complaint, drawing all reasonable inferences in favor of the plaintiff. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell , 770 F.3d 586, 588 (7th Cir. 2014). In this context, the court may also consider extrinsic evidence adduced by the parties. Lee v. City of Chi. , 330 F.3d 456, 468 (7th Cir. 2003).


Boerner is a resident of West Bend, Wisconsin. LVNV is a debt buyer and debt collector, and Messerli & Kramer is a law firm that regularly works with LVNV to collect consumer debts. In Boerner's case, LVNV purchased a consumer credit card debt Boerner originally owed to Capital One.

On October 20, 2017, Boerner was served with a summons and complaint issued by the Washington County Circuit Court in a small claims action brought by LVNV to collect this debt, Case No. 17SC2061. Boerner did not recognize LVNV as one of his creditors. Prior to being served, Boerner had received no notice of assignment of any of his debts to LVNV. Further, he had not received any notice that any of his accounts were in default, nor was he afforded an opportunity to cure any such default.

James Kachelski ("Kachelski") is a lawyer who works for Messerli & Kramer. He represented LVNV in the Boerner suit. Boerner's claims are premised in large part on the idea that Kachelski was too overworked to devote any meaningful consideration to Boerner's case. Consequently, Boerner includes several allegations concerning Kachelski's case load.

As of December 14, 2017, Boerner reports that Kachelski was an attorney of record in 590 cases in Dane County, 116 of which were "open," meaning there was no judgment yet entered. Additionally, he was entered in 383 cases in Brown County, 45 of which were open; 449 cases in Waukesha County, 71 which were open; 329 cases in Racine County, 67 of which were open; and 2,909 cases in Milwaukee County, 607 of which were open. Boerner alleges that upon information and belief, Kachelski's case load is similar throughout all of Wisconsin's counties.

Boerner contends that even the closed cases must be considered as part of Kachelski's workload, as being "closed" only means that a judgment has been entered. For debt collection cases like those handled by Kachelski, much of the legal work occurs only after a judgment is entered, since at that time the lawyer has post-judgment collection avenues available to him, including garnishment, attachment, and other remedies.

Further, Wisconsin court records reveal that Kachelski had 31 return dates and hearings scheduled in three different counties on Friday, December 15, 2017; 72 court events scheduled for Monday, December 18, 2017, including two trials in one county and a motion hearing in a different county; 15 events on Tuesday, December 19, 2017, including a scheduling conference; 84 events on Wednesday, December 20, 2017, including two hearings in different counties; 6 events on Thursday, December 21, 2017; and 21 events on Friday,

326 F.Supp.3d 673

December 22, 2017. That amounts to 249 hearings in only six days.1

Boerner acknowledges that many of these hearings were mere "return dates," meaning that personal appearance might not have been required, but he maintains that Kachelski, as counsel of record, would nevertheless have been obligated to monitor the outcome of the hearing, including whether an appearance or answer had been filed by the opposing party or, if not, whether service was properly made and a motion for default judgment should therefore be filed.

Boerner asserts that most debtors sued by Messerli & Kramer reasonably assume that a lawyer reviewed the matter and made a considered legal judgment about the validity of the debt and the legality of bringing a collection action. Based on Kachelski's case load and the amount of work he would reasonably need to do for each of his cases, Boerner concludes that Kachelski did not meet this expectation in his case. Indeed, according to Boerner, Kachelski did not meaningfully review any document sent to Boerner on behalf of LVNV in the Washington County suit before it was sent.

Boerner brings three claims based on Defendants' conduct with respect to the Washington County action. First, Boerner alleges that Defendants did not comply with Wis. Stat. § 425.105(1) because they accelerated the maturity of his debt and filed suit without first giving notice of his right to cure the default as provided in that statute. Boerner claims that by suing him, LVNV falsely represented that it had a right to file suit against him when it knew that the right did not yet exist, in violation of the Wisconsin Consumer Act ("WCA"), Wis. Stat. § 427.104(1)(j). Second, based on precisely the same allegations, Boerner claims that the filing of the Washington County action violated the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692e(2)(A), because in so doing, LVNV falsely represented the legal status of his debt—i.e. , that the debt was ready to be sued upon. Finally, based on the allegations with respect to Kachelski, Boerner raises a separate claim under the FDCPA, 15 U.S.C. § 1692e(3), that Messerli & Kramer falsely represented or implied that an attorney was meaningfully involved in the collection suit when this was not true.

Boerner alleges that he suffered damages as a result of this misconduct. First, he suffered substantial emotional distress and anxiety at being sued on a debt he did not believe was in default and without notice that a suit would be forthcoming. Additionally, he suffered worry about the need to find and pay for a lawyer to defend him.


Defendants have thrown the proverbial kitchen sink at Boerner's complaint. They contend that this suit violates the Rooker Feldman doctrine, that Boerner lacks constitutional standing, that his claims are barred by principles of preclusion, and that his claims lack plausible merit. The only claim to fail under the weight of these attacks is Boerner's state-law claim, as the Court shall explain below.

3.1 Rooker Feldman

First, Defendants cite the Rooker Feldman doctrine, which says that a plaintiff may not sue in federal court for injuries inflicted on him by a state-court judgment.

326 F.Supp.3d 674

See Rooker v. Fidelity Trust Co. , 263 U.S. 413, 415–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923) ; District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 482–86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). To allow such a claim would impermissibly force federal district courts to sit in review of the decisions of state courts. See Garry v. Geils , 82 F.3d 1362, 1365 (7th Cir. 1996) ; Homola v. McNamara , 59 F.3d 647, 650 (7th Cir. 1995).

Defendants point out that in the Washington County suit, Boerner raised as a counterclaim the very same WCA right-to-cure claim he alleges in this case. (Docket #...

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