1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Mary T. Janetos and Erik King, )

on behalf of plaintiffs and a class, )

) No. 12 C 1473

Plaintiffs, )

)

v. ) Judge Thomas M. Durkin

)

Fulton Friedman & Gullace, LLP, and )

Asset Acceptance, LLC, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Mary Janetos and Erik King filed this purported class action 

against Fulton Friedman & Gullace, LLP (“FF&G”) and Asset Acceptance, LLC

(“Asset Acceptance”) under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 

1692-1692p (“FDCPA”). Plaintiff Pamela Fujioka filed an individual FDCPA claim 

against FF&G and Asset Acceptance (Case No. 12 CV 2128); on July 19, 2012, 

Judge Lee consolidated her claim into this action. R. 53. Proposed Plaintiff Ignacio 

Bernave seeks to join this action to assert an individual FDCPA claim as well. In 

short, Plaintiffs all allege that FF&G, in an attempt to collect purported debts on 

behalf of Asset Acceptance, sent them or their counsel a form letter on December 12, 

2011 that failed to clearly identify which entity actually owns the debt, FF&G or 

Asset Acceptance. Presently before the Court is Defendants’ Joint Motion for 

Judgment on the Pleadings, R. 54, and Plaintiffs’ Motion for Leave to File Second 

Amended and Consolidated Complaint. R. 59. For the reasons explained below,
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Defendants’ Joint Motion for Judgment on the Pleadings is denied and Plaintiffs’ 

Motion for Leave is granted.

Legal Standard

Rule 12(c) allows for judgment on the pleadings. In reviewing a Rule 12(c) 

motion, courts employ the same standard that applies when reviewing a motion to 

dismiss for failure to state a claim under Rule 12(b)(6). Buchanan-Moore v. Cnty. of 

Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). A complaint must include “a short 

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 

R. Civ. P. 8(a)(2). Under notice pleading standards, a plaintiff's “factual allegations 

must be enough to raise a right to relief above the speculative level.” Bell Atlantic v. 

Twombly, 550 U.S. 544, 555 (2007). Put differently, a “complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 

at 570). “In evaluating the sufficiency of the complaint, [courts] view it in the light 

most favorable to the plaintiff, taking as true all well-pleaded factual allegations 

and making all possible inferences from the allegations in the plaintiff's favor.” 

AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). Courts also “consider 

documents attached to the complaint as part of the complaint itself.” Reger Dev., 

LLC v. Nat’l City Bank, 592 F.3d 759, 764 (7th Cir. 2010).

A plaintiff may seek leave to amend its complaint under Rule 15(a)(2). 

Although a court “should freely give leave to amend when justice so requires,” Fed. 

R. Civ. P. 15(a)(2), a court “need not allow an amendment when there is undue 
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delay, bad faith, dilatory motive, undue prejudice to the opposing party, or when the 

amendment would be futile.” Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 

861 (7th Cir. 2001). A new claim is futile if it could not survive a motion to dismiss. 

London v. RBS Citizens, N.A., 600 F.3d 742, 747 n.5 (7th Cir. 2010).

Thus, for both the Rule 12(c) and Rule 15(a) motions pending before the 

Court, the issue is whether Plaintiffs—in their Amended Complaint, R. 13, and 

proposed Second Amended and Consolidated Complaint, R. 59-1—fail to state a

plausible claim for relief under the FDCPA. The following background is a summary 

of the relevant allegations, viewed in the light most favorable to Plaintiffs.

Background

Asset Acceptance is a debt collection agency. FF&G is a law firm that 

manages Asset Acceptance’s collection litigation. Asset Acceptance purchases debts 

from original creditors, including banks, credit card companies, and retail stores. In 

some cases, after attempting to collect a debt itself, Asset Acceptance refers the 

matter to FF&G for additional collection efforts. In those cases, Asset Acceptance 

retains ownership of the debt and FF&G acts as its agent.1

Mary Janetos

In May 2009, Asset Acceptance sued Janetos in state court to collect an 

alleged $3,327 credit card debt. Asset Acceptance was represented by an in-house 

attorney, not FF&G. Janetos was represented by her current counsel, Daniel 

 1 There is no dispute that Asset Acceptance and FF&G are each “debt collectors” as 

defined by the FDCPA, 15 U.S.C. §1692a(6).
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Edelman of Edelman, Combs, Latturner & Goodwin, LLC. In July 2009, after trial, 

the state court entered judgment in Janetos’ favor.

Although Asset Acceptance lost at trial, Asset Acceptance apparently referred 

the matter to FF&G for additional collection efforts. On December 12, 2011, FF&G 

sent a letter to Janetos’ counsel, Daniel Edelman, attempting to collect the 

extinguished debt. R. 13, Am. Compl., Ex. C.2 The FF&G letterhead states, “Fulton 

Friedman & Gullace, LLP, Collections, Consulting & Litigation.” Id. The heading of 

the letter provides details of the debt:

Re: Mary T Janetos

Asset Acceptance, LLC Assignee of CHASE BANK/HERITAGE CHASE/CHASE

Original Creditor Acct #: XXXXXXXXXXXX7143

Fulton, Friedman & Gullace, LLP Acct #: 11-215740

Balance Due: $4608.90

Id. The body of the letter begins, “Please be advised that the referenced account has 

been transferred from Asset Acceptance, LLC to Fulton, Friedman and Gullace, 

LLP.” Id. The letter then explains that it is an attempt to collect a debt, that all 

contact should be directed to FF&G, and that if Janetos “has already entered into a 

payment plan or settlement arrangement with Asset Acceptance, LLC, please note 

that we are committed to honoring the same.” Id. The letter is signed by Dave 

Smith, “Collections Team (Non-Attorney).” Id.

 2 Janetos has already settled her individual claims against Asset Acceptance and 

FF&G for continuing to attempt collection on a debt that the state court judgment 

extinguished. The only claims remaining before the Court relate to whether FF&G’s 

letter otherwise complied with the FDCPA. 
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Erik King

In May 2008, Asset Acceptance sued King in state court to collect an alleged 

$13,107 car loan debt. Asset Acceptance was represented by an in-house attorney, 

not FF&G. In August 2008, the state court entered a default judgment against 

King. Post-judgment collection proceedings followed.

At some point, Asset Acceptance referred the matter to FF&G for additional 

collection efforts apart from the post-judgment collection proceedings in the state 

court case. On December 12, 2011, FF&G sent a letter to King. The body of the 

letter is the same as the Janetos letter. The heading states:

Re: Asset Acceptance, LLC Assignee of AMERISTAR

Original Creditor Acct #: XX0682

Fulton, Friedman & Gullace, LLP Acct #: XX-XX2109

Balance Due: $17479.23

R. 13, Am. Compl., Ex. D.

Pamela Fujioka

Fujioka is in the same position as King. In November 2009, through in-house 

counsel, Asset Acceptance sued Fujioka in state court to collect an alleged $5,887

credit card debt. In January 2010, the state court entered a default judgment 

against Fujioka. Post-judgment collection proceedings followed.

On December 12, 2011, FF&G sent a letter to Fujioka. The body of the letter 

is the same as the Janetos and King letters. The heading states:

Re: Asset Acceptance, LLC Assignee of CAPITAL ONE BANK, NA

Original Creditor Acct #: XXXXXXXXXXXX3984

Fulton, Friedman & Gullace, LLP Acct #: XX-XX3986

Balance Due: $7187.26
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R. 59-1, Second Am. Compl., Ex. G.

Ignacio Bernave

In April 2009, through in-house counsel, Asset Acceptance sued Bernave in 

state court to collect an alleged $4,199 credit card debt. Bernave was represented by 

his current counsel, Daniel Edelman. In July 2009, on the day of trial, Asset 

Acceptance dismissed the lawsuit without prejudice.

On December 12, 2011, FF&G sent a letter to Bernave’s counsel. The body of 

the letter is the same as the Janetos, King, and Fujioka letters. The heading states:

Re: Ignacio Bernave

Asset Acceptance, LLC Assignee of HARLEM FURNITURE/WORLD FINANCIAL 

NETWORK NATIONAL BANK

Original Creditor Acct #: XXXXXXXXXXXX4431

Fulton, Friedman & Gullace, LLP Acct #: 11-214803

Balance Due: $5177.79

R. 59, Second Am. Compl., Ex. K.

Analysis

I. 15 U.S.C. § 1692g

In their First Amended Complaint, Plaintiffs allege that FF&G’s 

December 12, 2011 letters violate 15 U.S.C. § 1692g(a)(2). Section 1692g addresses 

“[v]alidation of debts” and provides that:

(a) 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, send the consumer a 

written notice containing—

(1) the amount of the debt;
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(2) the name of the creditor to whom the 

debt is owed;

(3) a statement that unless the consumer, 

within thirty days after receipt of the notice, disputes the 

validity of the debt, or any portion thereof, the debt will 

be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the 

debt collector in writing within the thirty-day period that 

the debt, or any portion thereof, is disputed, the debt 

collector will obtain verification of the debt or a copy of a 

judgment against the consumer and a copy of such 

verification or judgment will be mailed to the consumer by 

the debt collector; and

(5) a statement that, upon the consumer’s 

written request within the thirty-day period, the debt 

collector will provide the consumer with the name and 

address of the original creditor, if different from the 

current creditor.

15 U.S.C. § 1692g (emphasis added).

Plaintiffs allege that it is unclear from FF&G’s December 12, 2011 letters 

whether FF&G purchased the purported debts from Asset Acceptance or is merely

attempting to collect the debts as an agent of Asset Acceptance or some other entity. 

Plaintiffs therefore allege that the letters fail to clearly identify the current creditor 

that actually owns the debts in violation of § 1692g(a)(2).

A. Applicability of Section 1692g

As an initial matter, the parties dispute whether § 1692g applies to FF&G’s 

letters. By its terms, § 1692g applies to initial communications. For each Plaintiff

here, Asset Acceptance itself began collection efforts on the purported debts several 

years before FF&G sent the letters at issue. Thus, although Plaintiffs allege that 
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the December 12, 2011 letters were the “initial communications” from FF&G, Am. 

Compl. ¶¶ 25, 32, they do not, and presumably cannot, allege that FF&G’s letters 

were the “initial communications” with respect to these purported debts.

Courts are split on whether § 1692g applies to initial communications from

each successive debt collector. Some courts have reasoned that § 1692g refers in the 

singular to “the initial communication,” and that as a result, successive debt 

collectors are not required to send another validation notice. See, e.g., Paris v. 

Steinberg & Steinberg, 828 F. Supp. 2d 1212, 1222 (W.D. Wash. 2011); Waters v. 

J.C. Christensen & Assoc., No. 08-11795, 2011 WL 134452, *10-11 (D. Mass. Mar. 4, 

2011); Marshall v. Deutsche Bank Nat’l Trust Co., No. 10 CV 754, 2011 WL 345988, 

at *5 (E.D. Ark. Feb. 1, 2011); McNall v. Credit Bureau of Josephine Cnty., 689 F. 

Supp. 2d 1265, 1269 (D. Or. 2010); Senftle v. Landau, 390 F. Supp. 2d 463, 473 (D. 

Md. 2005); Ditty v. CheckRite, Ltd., 973 F. Supp. 1320, 1329 (D. Utah 1997). Two 

courts in this District have endorsed the view that § 1692g does not apply to an 

attorney attempting to collect a debt where a debt collection agency already had 

substantial contact with the debtor. See Weinstein v. Fink, No. 99 C 7222, 2001 WL 

185194, at *7 (N.D. Ill. Feb. 26, 2001) (Guzman, J.); Thomas v. Law Firm of 

Simpson & Cybak, No. 00 C 8211, 2001 WL 1516746, at *3-4 (N.D. Ill. Nov. 28, 

2001) (Coar, J.), rev’d on other grounds, 392 F.3d 914 (7th Cir. 2004).

Other courts have found that § 1692g’s language is ambiguous and then 

broadly construed the statutory language in order to advance the FDCPA’s goals. 

These courts concluded that § 1692g applies to the initial communications from
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each successive debt collector. See, e.g., Stair v. Thomas & Cook, 254 F.R.D. 191, 

195-97 (D.N.J. 2008); Turner v. Shenandoah Legal Group, P.C., No. 06 CV 45, 2006 

U.S. Dist. LEXIS 39341, at *29-40 (E.D. Va. June 12, 2006); Sutton v. Law Offices of 

Alexander Lawrence, No. 90-369, 1992 U.S. Dist. LEXIS 22761, at *7-9 (D. Del. 

June 17, 1992); Griswold v. J & R Anderson Bus. Servs., Inc., No. 82-1474, 1983 

U.S. Dist. LEXIS 20365, at *2-4 (D. Or. Oct. 24, 1983). At least one court in this 

District has adopted this broader reading of § 1692g. See Francis v. Snyder, 389 F. 

Supp. 2d 1034, 1040 n. 2 (N.D. Ill. 2005) (Grady, J.) (“The requirement of providing 

valid disclosures under § 1692g applies to each debt collector.”).

This Court has reviewed the statute and relevant case law and agrees with 

the latter approach. Although the Court of course must begin with the plain 

language of the statute, § 1692g itself is ambiguous. It refers in the singular to “the 

initial communication with a consumer in connection with the collection of any 

debt,” but the very next clause refers to “a debt collector.” As a result, § 1692g is not

clear on its face whether “the initial communication” requirements apply once to

each debt or once to each debt collector who attempts to collect a debt. Section 

1692g’s plain language does not support one reading over the other.3

 3 Some courts have reasoned that 15 U.S.C. § 1692e(11) (distinguishing between 

initial and subsequent communications to a debtor) shows that Congress knew the 

difference between initial and successive debt collectors and could have explicitly 

required that both provide the § 1692g validation notice if that was its intent. See, 

e.g., Waters, 2011 WL 134452, at *11. But that reasoning cuts both ways. If 

Congress knew the difference and intended that § 1692g apply only to the first debt 

collector, it could have explicitly said that § 1692g applies only to the first debt 

collector. As discussed above, it did not. Again, § 1692e(11)’s language does not 

support one reading of § 1692g over the other.
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In the absence of a clear statutory directive, “[b]ecause the FDCPA is a 

remedial statute, [courts have] construe[d] its language broadly, so as to effect its 

purpose.” Stair, 254 F.R.D. at 196 (quoting Brown v. Card Serv. Ctr., 464 F.3d 450, 

453 (3d Cir. 2006)). See also Clark v. Capital Credit & Collection Servs., 460 F.3d 

1162, 1171 (9th Cir. 2006) (“[B]ecause the FDCPA is a remedial statute aimed at 

curbing what Congress considered to be an industry-wide pattern of and propensity 

towards abusing debtors, it is logical for debt collectors—repeat players likely to be 

acquainted with the legal standards governing their industry—to bear the brunt of 

the risk.”); Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996) (“As the Supreme 

Court has held in the general context of consumer protection—of which the 

[FDCPA] is a part—‘it does not seem unfair to require that one who deliberately 

goes perilously close to an area of proscribed conduct shall take the risk that he may 

cross the line.’”) (quoting FTC v. Colgate-Palmolive Co., 380 U.S. 374, 393 (1965)). 

Given the FDCPA’s purpose of curbing abusive debt collection practices, the 

Court declines to read a loophole into § 1692g that would exempt successive debt 

collectors from sending a validation notice. Plaintiffs provide a laundry list of 

reasons why each successive debt collector should be required to comply with 

§ 1692g. R. 67 at 11-15. But the Court does not need to look any further than 

Plaintiff Janetos’ case, which readily illustrates that § 1692g is not superfluous 

when a new debt collector enters the picture. In her case, while Asset Acceptance 

was initially attempting to collect the purported debt, Janetos prevailed at trial and 

obtained a judgment extinguishing the debt. Nonetheless, for one reason or another, 
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Asset Acceptance sent her account to FF&G for further collection efforts. The Court 

assumes that this was some sort of mistake, but since mistakes (or worse) certainly

happen, it is important that successive debt collectors send a § 1692g validation 

notice before commencing full-scale collection efforts. The validation notice helps to 

ensure that any mistakes like this are promptly resolved.

Moreover, it is not a heavy burden for each debt collector to comply with 

§ 1692g’s validation requirements. FF&G’s letters were already an attempt to send 

a validation notice pursuant to § 1692g—they contain the precise language required 

by § 1692g(3)-(5)—which is at least a tacit acknowledgment that FF&G knew it was 

required to send a validation notice. Indeed, in light of the split authority on 

whether § 1692g applies, a successive debt collector would be foolish to ignore 

§ 1692g and run the risk that a court might later find FDCPA violations. The 

Federal Trade Commission has also long commented that successive debt collectors 

in FF&G’s position should comply with § 1692g. See, e.g., 53 Fed. Reg. 50097, 50108 

(Dec. 13, 1988) (explaining that “an attorney who regularly attempts to collect debts 

by means other than litigation . . . must provide the required notice, even if a 

previous debt collector (or creditor) has given such notice”).

In short, the Court finds that § 1692g applies to the initial communication in 

connection with the collection of a debt by each successive debt collector. This result 

comports with both the text of § 1692g and the FDCPA’s overarching purpose. The 

Court now turns to whether Plaintiffs state a plausible claim that FF&G’s 

December 12, 2011 letters actually violate § 1692g.
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B. King and Fujioka – “Unsophisticated Consumer” Standard

FF&G sent two of the letters at issue directly to consumers, Plaintiffs King 

and Fujioka. A debt collector violates § 1692g if it either fails to provide required 

information or provides required information “in a manner that is ‘confusing’ to the 

consumer.” McMillan v. Collection Prof’ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006).

The Court analyzes collection letters under an objective “unsophisticated consumer”

standard. See, e.g., Durkin v. Equifax Check Servs., 406 F.3d 410, 414-15 (7th Cir. 

2005). This “hypothetical” unsophisticated consumer “is not as learned in 

commercial matters as are federal judges, but neither is he completely ignorant.”

Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 

2000). The unsophisticated consumer “possesses 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. (citations omitted). Under this objective standard, a plaintiff’s 

“anecdotal proclamations of being confused will not suffice.” Durkin, 406 F.3d at 

414-15. A collection letter is not confusing “unless a significant fraction of the 

population would be similarly misled.” Pettit, 211 F.3d at 1060.

Surprisingly, none of the parties here discuss the rule in the Seventh Circuit 

that the unsophisticated consumer standard is generally a fact issue that cannot be 

decided at the pleading stage. As Judge Easterbrook explained in Walker v. 

National Recovery, Inc., 200 F.3d 500, 501 (7th Cir. 1999):

How a particular notice affects its audience is a question 

of fact, which may be explored by testimony and devices 
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such as consumer surveys. We held accordingly in 

Johnson v. Revenue Management Corp., 169 F.3d 1057 

(7th Cir. 1999), that a complaint alleging that a particular 

notice confuses recipients may not be dismissed under 

Fed. R. Civ. P. 12(b)(6)—not only because ‘this notice is 

confusing’ states a claim on which relief may be granted, 

but also because district judges are not good proxies for 

the ‘unsophisticated consumers’ whose interests the 

statute protects.

See also Taylor v. Cavalry Inv., L.L.C., 365 F.3d 572, 575 (7th Cir. 2004) (“A judge 

might be mistaken in supposing that a letter that was clear to him was clear to 

unsophisticated debtors . . . and so it is open to a plaintiff, in any but the clearest 

case, to present objective evidence of confusion, for example the results of a 

consumer survey.”); Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 

326-27 (7th Cir. 2000) (explaining that “confusion is a question of fact rather than a

question of law, so plaintiffs are entitled to present empirical evidence that might 

show the dunning letter in question to be confusing in the eyes of the 

unsophisticated consumer,” and that “a FDCPA complaint states a legal claim, and 

therefore a FDCPA complaint survives a motion to dismiss under Rule 12(b)(6)[,]

simply by alleging that a dunning letter was confusing”).

This general rule does not mean that the unsophisticated consumer test can 

never be resolved at the pleading stage. A letter might be so clear that a plaintiff 

has no plausible § 1692g claim. See, e.g., Ruth v. Triumph P’ships, 577 F.3d 790, 800

(7th Cir. 2009) (recognizing a category of cases “involving statements that plainly, 

on their face, are not misleading or deceptive”). “[A] plaintiff fails to state a claim 

and dismissal is appropriate as a matter of law when it is ‘apparent from a reading 
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of the letter that not even a significant fraction of the population would be misled by 

it.’” Zemeckis v. Global Credit & Collection Corp., 679 F.3d 632, 636 (7th Cir. 2012)

(quoting Taylor, 365 F.3d at 574). Thus, “as a matter of law, [courts will] not 

entertain a plaintiff’s bizarre, peculiar, or idiosyncratic interpretation of a collection 

letter.” McMillan, 455 F.3d at 758. See also Evory v. RJM Acquisitions Funding 

L.L.C., 505 F.3d 769, 776-77 (7th Cir. 2007) (explaining that a claim also may be 

resolved on the pleadings if the plaintiff rests on the letters themselves and does not 

intend to offer extrinsic evidence, the defendant used clear statutory language, or 

the statement at issue clearly was immaterial, among other things). 

This case presents a very close call at the pleading stage. Plaintiffs allege 

that FF&G’s letters violate § 1692g by failing to clearly identify which entity is the

current creditor that actually owns the purported debts, FF&G or Asset Acceptance. 

Plaintiffs allege that although Asset Acceptance still owns the debts and was only 

using FF&G as its agent for further collection efforts, the letters could lead a 

consumer to believe that the debts may have been sold to FF&G.

The Court is skeptical that FF&G’s letters would confuse an unsophisticated 

consumer, let alone in any material way. The very first line of the header states, in 

King’s case, “Re: Asset Acceptance, LLC Assignee of AMERISTAR,” and in Fujioka’s 

case, “Re: Asset Acceptance, LLC Assignee of CAPITAL ONE BANK, NA.” Those 

references appear to identify Asset Acceptance as the current creditor and owner of 

the debt. Moreover, although Plaintiffs take issue with FF&G’s subsequent 

statement in the letter that the account “has been transferred” from Asset 
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Acceptance to FF&G, the FDCPA’s definition of “creditor” uses the word “transfer”

in the same way that FF&G apparently intended it. See 15 U.S.C. § 803(4) (“The 

term ‘creditor’ means any person who offers or extends credit creating a debt or to 

whom a debt is owned, but such term does not include any person to the extent he 

receives an assignment or transfer of a debt in default solely for the purpose of 

facilitating collection of such debt from another.”) (emphasis added). The Court is 

also uncertain whether it would make any difference to the unsophisticated 

consumer’s decision process if FF&G had actually purchased the debts from Asset

Acceptance as opposed to merely acting as Asset Acceptance’s collection agent. That 

appears to be an internal issue largely between Asset Acceptance and FF&G.

Nonetheless, because the unsophisticated consumer standard generally 

presents a fact issue, the Court believes that Plaintiffs have shown just enough 

potential for confusion in order to move past the pleadings and have the opportunity 

to develop evidence to support their claims. FF&G’s letters do not expressly identify 

which entity currently owns the purported debts—the headers contain various 

information, including references to both Asset Acceptance and FF&G, but do not 

actually label either entity as the owner of the purported debts. Moreover, although 

the FDCPA’s definition of “creditor” may shed some light on what the word 

“transfer” means in the body of the letter, an unsophisticated consumer would not 

ordinarily think to consult statutory definitions for guidance.4

 4 Indeed, although the parties have offered various dictionary definitions of the 

word “transfer,” none of the parties raise 15 U.S.C. § 803(4) in their briefs.
16

FF&G and Asset Acceptance also argue that the letters should be clear to 

anyone with knowledge of the collection history of these accounts. But even if the 

recipients of these letters were familiar with Asset Acceptance’s prior collection 

efforts, that would not resolve the alleged confusion in this case over whether Asset 

Acceptance had just sold their debts to a new entity, FF&G. 

As a result, Plaintiff King states a plausible claim for relief in the Amended 

Complaint, and Plaintiff Fujioka’s claim in the proposed Second Amended and 

Consolidated Complaint is not futile, at least at this stage.

C. Janetos and Bernave – “Competent Attorney” Standard

FF&G sent the other two letters at issue to counsel for Plaintiffs Janetos and 

Bernave. As a result, the Court analyzes these letters under the more rigorous

“competent attorney” standard. See, e.g., Evory, 505 F.3d at 774-75 (explaining that 

the unsophisticated consumer test “is inappropriate for judging communications 

with lawyers”). This heightened standard applies because “[a] sophisticated person 

is less likely to be either deceived or misled than an unsophisticated one.” Id. Thus, 

under the competent attorney standard, “a representation by a debt collector that 

would be unlikely to deceive a competent lawyer, even if he is not a specialist in 

consumer debt law, should not be actionable.” Id.

For the same reasons discussed above, the Court is even more skeptical that 

FF&G’s letters would confuse a competent lawyer, let alone in any material way.

Moreover, although the case law on the competent attorney standard is far less

developed, it appears that this issue would be more susceptible to resolution on the 
17

pleadings. Judge Easterbrook’s concern that judges may not be good proxies for 

unsophisticated consumers does not apply in this context; the Court can more easily 

judge what might confuse or mislead a competent attorney.

Nonetheless, the Court again declines to resolve this issue on the pleadings. 

As discussed above, Plaintiffs have shown just enough potential for confusion

stemming from the letters. Although a competent lawyer would be familiar with 

Asset Acceptance’s prior collection efforts and would likely recognize from the 

letterhead that FF&G is a law firm, the lawyer still would not necessarily know 

whether Asset Acceptance had just sold his client’s purported debts to FF&G or if 

FF&G was merely acting as Asset Acceptance’s collection agent.

As a result, Plaintiff Janetos states a plausible claim for relief in the 

Amended Complaint, and Plaintiff Bernave’s claim in the proposed Second 

Amended and Consolidated Complaint is not futile, at least at this stage.

II. 15 U.S.C. § 1692e

In their proposed Second Amended and Consolidated Complaint, Plaintiffs 

allege that FF&G’s letters also violate the more general requirements of 15 U.S.C. § 

1692e and e(10), which provide that:

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:

* * *
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(10) The use of any false representation or 

deceptive means to collect or attempt to collect any debt 

or to obtain information concerning a consumer.

Asset Acceptance and FF&G argue that Plaintiffs’ motion for leave should be 

denied because their § 1692e claim is futile. Although the Court is skeptical of this 

claim as well, just as Plaintiffs state a plausible claim that FF&G’s letters are

confusing to an unsophisticated consumer or competent attorney, Plaintiffs also 

state a plausible claim that FF&G’s letters are deceptive or misleading. As a result, 

the Court cannot say at this stage that the claim is futile.

Conclusion

For the foregoing reasons, Defendants’ Joint Motion for Judgment on the 

Pleadings is denied and Plaintiffs’ Motion for Leave to File Second Amended and 

Consolidated Complaint is granted. In granting Plaintiffs’ Motion for Leave, the 

Court strikes Count IV in Plaintiffs’ proposed Second Amended and Consolidated 

Complaint, which asserts a claim under 15 U.S.C. § 1692c(a)(2) that Plaintiffs have 

represented they do not intend to pursue. R. 68 at 2 n.2.

ENTERED:

_______________________________

Honorable Thomas M. Durkin

United States District Judge

Dated: March 4, 2013