Marquez v. Weinstein, Pinson & Riley, P.S., No. 15-3273

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtRovner, Circuit Judge.
Citation836 F.3d 808
Parties Erick Marquez, et al., Plaintiffs-Appellants, v. Weinstein, Pinson & Riley, P.S., et al., Defendants-Appellees.
Docket NumberNo. 15-3273
Decision Date07 September 2016

836 F.3d 808

Erick Marquez, et al., Plaintiffs-Appellants,
v.
Weinstein, Pinson & Riley, P.S., et al., Defendants-Appellees.

No. 15-3273

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2016
Decided September 7, 2016


Daniel A. Edelman, Edelman Combs Latturner & Goodwin, LLC, Chicago, IL, for Plaintiffs-Appellants.

Joel D. Bertocchi, David M. Schultz, Stephen R. Swofford, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant-Appellant Weinstein, Pinson & Riley, P.S.

Joel D. Bertocchi, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant-Appellant Evan L. Moscov.

Michael D. Slodov, Sessions, Fishman, Nathan & Israel LLC, Chagrin Falls, OH, for Defendant-Appellant NCO Financial Systems, Incorporated.

Before Wood, Chief Judge, and Posner and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Plaintiffs-appellants Erick Marquez, Iraida Garriga, and Doris Russel brought an action, individually and on behalf of a class, against defendants-appellees Evan L. Moscov, his law firm Weinstein, Pinson & Riley, P.S. (“Weinstein”), and debt collection agency NCO Financial Systems, Inc. (NCO), alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., arising out of the defendants' attempt to collect on student loan debts allegedly owed by the plaintiffs. The gravamen of the complaint was that the defendants included a misleading and deceptive statement in a paragraph of the debt-collection complaint they filed against the plaintiffs in state court. The district court granted the initial motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and after the plaintiffs filed their second amended complaint, granted a subsequent motion to dismiss as well, this time with prejudice. The plaintiffs now appeal that dismissal.

This case arose from complaints filed in state court by the defendant Weinstein, on behalf of NCO and signed by Moscov as their attorney, (the “debt collectors”) seeking repayment of student loans from the plaintiffs (the “consumers”).1 Those complaints contained typical language for such cases, reciting the loan agreement and the outstanding principal amount, and alleging the breach of that loan agreement and the corresponding damages. However, following those allegations, and immediately preceding the prayer for relief, the debt collectors included Paragraph 12 in the complaints, which stated:

836 F.3d 810
12. Pursuant to 11 U.S.C. § 1692g(a), Defendants are informed that the undersigned law firm is acting on behalf of Plaintiff to collect the debt and that the debt referenced in this suit will be assumed to be valid and correct if not disputed in whole or in part within thirty (30) days from the date hereof.

The plaintiffs in the FDCPA action before us assert that Paragraph 12 violated the FDCPA in that it was misleading and deceptive as to both the manner and timing of their response to the state lawsuit. The central issue in this appeal is whether the district court erred in determining that paragraph 12 of the state law complaint was not misleading or deceptive as a matter of law, and therefore granting the motion to dismiss the FDCPA claim. We review de novo a district court's decision to grant a motion to dismiss under Rule 12(b)(6), accepting as true all well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. McMillan v. Collection Professionals, Inc. , 455 F.3d 754, 758 (7th Cir. 2006).

Before considering whether the district court properly held that Paragraph 12 was not misleading or deceptive as a matter of law, we must address a preliminary matter. NCO argues that we need not address the FDCPA challenge at all because 15 U.S.C. § 1692e does not regulate the content of state court pleadings. That issue was properly preserved because it was presented, and rejected, in the district court.2

In Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC , 480 F.3d 470, 473 (7th Cir. 2007) and O'Rourke v. Palisades Acquisition XVI, LLC , 635 F.3d 938, 941 n.1 (7th Cir. 2011), we postponed for a future case the question of whether § 1692e of the FDCPA covers the process of litigation. This is that future case, as the issue is squarely presented to us and the answer is necessary to resolution of this appeal. Numerous circuits already have addressed this issue, and often in nearly identical reasoning, have concluded that pleadings or filings in court can fall within the FDCPA. See, e.g., Kaymark v. Bank of Am., N.A. , 783 F.3d 168, 176–77 (3d Cir. 2015) ; Goldman v. Cohen , 445 F.3d 152, 155–56 (2nd Cir. 2006) ; Sayyed v. Wolpoff & Abramson , 485 F.3d 226, 231 (4th Cir. 2007) ; Stratton v. Portfolio Recovery Associates, LLC , 770 F.3d 443, 449–50 (6th Cir. 2014), as amended (Dec. 11, 2014); Powers v. Credit Mgmt. Servs., Inc. , 776 F.3d 567, 573–74 (8th Cir. 2015) ; Donohue v. Quick Collect, Inc. , 592 F.3d 1027, 1031–32 (9th Cir. 2010) ; James v. Wadas , 724 F.3d 1312, 1316 (10th Cir. 2013) ; Miljkovic v. Shafritz & Dinkin, P.A. , 791 F.3d 1291, 1297–1300 (11th Cir. 2015). Those circuits almost uniformly base their conclusion on the Supreme Court's analysis in Heintz v. Jenkins , 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), as well as on the amendment to the FDCPA following that decision. We agree with the reasoning of those circuits and for those same reasons conclude that § 1692e of the FDCPA applies to the statement in Paragraph 12 of the state court complaint at issue here.

In Heintz, Darlene Jenkins had borrowed money from Geiner Bank to purchase an automobile. Id. at 293, 115 S.Ct. 1489. She defaulted on that loan, and the bank's law firm sued her in state court to recover the balance owed. In an effort to settle the case, an attorney for the bank's law firm, George Heintz, sent a letter to Jenkins' lawyer listing the amount that she owed. Jenkins filed suit alleging that the

836 F.3d 811

letter violated the FDCPA in that it contained a false statement of the amount that she owed the bank. The district court dismissed the lawsuit holding that the FDCPA was inapplicable to lawyers, but we reversed and the Supreme Court agreed with us, holding that the FDCPA applies to “the litigating activities of lawyers.” Id. at 294, 115 S.Ct. 1489. Heintz had argued that the Court should construe the statute as containing “an implied exemption for those debt-collecting activities of lawyers that consist of litigating,” but the Court rejected that interpretation. Id. at 295, 115 S.Ct. 1489. The Court held that the FDCPA applies to attorneys who “ ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.” Id. at 299, 115 S.Ct. 1489.

Although the communication at issue in Heintz was a letter rather than a legal pleading, the Court recognized the applicability of the FDCPA even to attorneys whose debt-collection activity consisted of litigation, and nothing in that analysis commands a differentiation between the two. Nothing in the broad language in Heintz would support an interpretation that would apply the FDCPA to attorneys whose debt collection activity consisted of litigation, but limit it to only those representations made by those attorneys outside of that litigation. The conclusion that the FDCPA applies to legal pleadings is supported by a post-Heintz amendment enacted by Congress. In the post-Heintz amendment, Congress exempted legal pleadings from a specific provision in the FDCPA, but did not exempt it from the FDCPA as a whole. Specifically, 15 U.S.C. § 1692e prohibits a debt collector from using any false, deceptive or misleading representation in connection with the collection of any debt. The statute itemizes sixteen communications that constitute violations of that provision, including at § 1692e(11), the failure to disclose in the initial written communication to the consumer that the debt collector is attempting to collect a debt and that any information will be used for that purpose. After Heintz was decided in 1995, however, Congress amended § 1692e(11) to exclude formal legal pleadings from that requirement, with the amended version now...

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76 practice notes
  • Campbell v. Kallas, No. 18-2075
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 19, 2019
    ...whether a defendant had a deliberately indifferent state of mind is not a legal question; it is a factual one. See Zaya , 836 F.3d at 808 ("As we’ve explained, that’s [i.e. whether the defendant was deliberately indifferent] a question of fact that needs to be resolved by a jury."......
  • City of Chi. v. Sessions, Case No. 17 C 5720
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 15, 2017
    ...grant of authority to impose conditions on the discretionary grants in Part B. See , Marquez v. Weinstein, Pinson & Riley, P.S. , 836 F.3d 808, 811 (7th Cir. 2016) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, ......
  • Medline Indus., Inc. v. Diversey, Inc., Case No. 20-cv-1579-pp
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • September 27, 2021
    ...127 S.Ct. 1955 ). It must draw all reasonable inferences in favor of the plaintiff. Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 810 (7th Cir. 2016). A court may grant a Rule 12(b)(6) motion to dismiss when "it appears beyond doubt that the plaintiff cannot prove any f......
  • Van Hoven v. Buckles & Buckles, P. L.C., Nos. 18-2399/19-1078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 16, 2020
    ...292, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). The Act also applies to the content of documents filed in litigation. Marquez v. Weinstein , 836 F.3d 808, 810–11 (7th Cir. 2016) (collecting cases). And the Act at a minimum covers some misstatements 947 F.3d 894 about state law. Currier v. Firs......
  • Request a trial to view additional results
76 cases
  • Campbell v. Kallas, No. 18-2075
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 19, 2019
    ...whether a defendant had a deliberately indifferent state of mind is not a legal question; it is a factual one. See Zaya , 836 F.3d at 808 ("As we’ve explained, that’s [i.e. whether the defendant was deliberately indifferent] a question of fact that needs to be resolved by a jury."......
  • City of Chi. v. Sessions, Case No. 17 C 5720
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 15, 2017
    ...grant of authority to impose conditions on the discretionary grants in Part B. See , Marquez v. Weinstein, Pinson & Riley, P.S. , 836 F.3d 808, 811 (7th Cir. 2016) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, ......
  • Medline Indus., Inc. v. Diversey, Inc., Case No. 20-cv-1579-pp
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • September 27, 2021
    ...127 S.Ct. 1955 ). It must draw all reasonable inferences in favor of the plaintiff. Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 810 (7th Cir. 2016). A court may grant a Rule 12(b)(6) motion to dismiss when "it appears beyond doubt that the plaintiff cannot prove any f......
  • Van Hoven v. Buckles & Buckles, P. L.C., Nos. 18-2399/19-1078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 16, 2020
    ...292, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). The Act also applies to the content of documents filed in litigation. Marquez v. Weinstein , 836 F.3d 808, 810–11 (7th Cir. 2016) (collecting cases). And the Act at a minimum covers some misstatements 947 F.3d 894 about state law. Currier v. Firs......
  • Request a trial to view additional results

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