130343250 0931819 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

GREER G. ZUMMO, 

Plaintiff, 

 v. 

EQUABLE ASCENT FINANCIAL, LLC, and 

ENHANCED RECOVERY COMPANY, LLC., 

Defendant. 

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Case No. 12-cv-00882 

Judge John F. Grady 

Magistrate Judge Morton Denlow 

MEMORANDUM IN SUPPORT OF DEFENDANT

EQUABLE ASCENT FINANCIAL, LLC’S MOTION TO DISMISS

Defendant EQUABLE ASCENT FINANCIAL, LLC (“EAF”), by its undersigned 

attorneys, respectfully submits this memorandum in support of its motion to dismiss (“EAF’s 

Motion”). 

INTRODUCTION AND ALLEGATIONS

Plaintiff Greer G. Zummo (“Zummo”) filed this action on February 8, 2012. On May 2, 

2012, Zummo filed a First Amended Class Action Complaint (“am. compl.”). Count One, 

entitled “Equable’s Violations of The ICAA (Equable Class),” is brought against EAF and 

alleges that EAF violated the Illinois Collection Agency Act, 225 ILCS 425/1 et seq. (“ICAA”). 

Count Two, entitled “Equable’s Violations of the FDCPA (Equable FDCPA Class),” alleges that 

EAF violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”) by 

operating as a collection agency without a license in the State of Illinois and purchasing and 

attempting to collect the debts allegedly owed by Zummo and the putative Equable FDCPA class 

members. Counts Three and Four are purported claims brought against Enhanced Recovery 

Company, LLC (“Enhanced”) pursuant to the ICAA and the FDCPA. 

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The amended complaint alleges that prior to obtaining a collection agency license in 

Illinois on October 6, 2010, EAF purchased debts allegedly owed by Illinois consumers (am. 

compl. ¶ 28). EAF allegedly attempted, directly or indirectly, to collect the debts from Illinois 

consumers prior to obtaining a collection agency license (Id. ¶ 29). Zummo allegedly is a victim 

of identity theft and although she disputed the fraudulent account at issue with GE Capital, EAF 

purchased her account in April 2010 (Id. ¶ 30). 

EAF allegedly sought to collect the debt by: (1) reporting to consumer reporting agencies 

in May 2010 that Zummo owed the debt, (2) sending the account to Enhanced to attempt to 

collect it, and (3) suing Zummo to collect the debt on December 5, 2011 (Id. ¶¶ 31, 33). Zummo 

admits that EAF was licensed at the time suit was filed (Id. ¶¶ 28, 33); see also documents from 

the lawsuit Equable Ascent Financial, LLC v. Greer Zummo, case No. 11 M1 176599 in the 

Circuit Court of Cook County, Illinois, attached hereto as Exhibit 11

. 

Enhanced mailed a collection letter to Zummo on February 16, 2011, and attempted to 

collect other debts from Illinois consumers, allegedly prior to obtaining a collection agency 

license (am. compl. ¶¶ 36-38). However, the public record shows that Enhanced was licensed as 

of November 7, 2002. See Exhibit 2 hereto (Enhanced collection agency license; public record 

from Illinois Division of Professional Regulation). 

 

1

 Documents that a defendant attaches to a motion to dismiss are considered part of the pleading if they 

are referred to in the plaintiff’s complaint and are central to her claim, and the court need not convert the 

motion to a motion for summary judgment. 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 

2002) (internal citation omitted); Rosenblum v. Travelbyus.com, Ltd., 299 F.3d 657, 661 (7th Cir. 2002). 

Further, this Court may properly take notice of such a public record without this motion to dismiss having 

to be treated as a motion for summary judgment. Fed.R.Evid. 201; 520 S. Michigan Ave. Assoc., Ltd. v. 

Shannon, 549 F.3d 1119, 1137 n.14 (7th Cir. 2008); Pugh v. Tribune Co., 521 F.3d 686, 691 n.2 (7th Cir. 

2008). See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 568 n.13 (2007).

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ARGUMENT

The Supreme Court has articulated a two-step approach in deciding whether a pleading is 

sufficient: 

In keeping with these principles a court considering a motion to 

dismiss can choose to begin by identifying pleadings that, because 

they are no more than conclusions, are not entitled to the 

assumption of truth. While legal conclusions can provide the 

framework of a complaint, they must be supported by factual 

allegations. When there are well-pleaded factual allegations, a 

court should assume their veracity and then determine whether 

they plausibly give rise to an entitlement to relief. 

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). See Atkins v. City of Chicago, 631 F.3d 823, 831-32 

(7th Cir. 2011) (affirming dismissal of complaint). This approach is particularly apt, since 

Zummo does little more than assert unsupported legal conclusions. The few facts pleaded show 

that ICAA does not apply to EAF and EAF did not violate the FDCPA. 

I. COUNT ONE FAILS TO STATE A CLAIM. 

A. Zummo’s Allegations Find No Support in the ICAA. 

Zummo’s allegations of a violation of the ICAA by EAF must be based upon the ICAA 

and one appellate court case, LVNV Funding, LLC v. Trice, 2011 IL App (1st) 092773, 952 

N.E.2d 1232 (June 30, 2011). Zummo alleges that: (1) EAF purchased her debt, (2) reported to 

consumer reporting agencies that Zummo owed the debt, (3) sent the account to Enhanced (a 

licensed collection agency) to collect the debt, and (4) sued Zummo, through outside attorneys, 

to recover the debt while EAF was licensed under the ICAA. (am. compl. ¶¶ 28, 31, 33, Exhibits 

1 and 2 hereto). Her other allegations are factually unsupported legal conclusions (see am. 

compl. ¶¶ 55-60, 66). Ashcroft, 556 U.S. at 679. These allegations do not plausibly give rise to 

an entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft, 556 

U.S. at 679. 

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As to the ICAA, first, Section 4 of the ICAA addresses unlicensed conduct and it 

provides: 

No collection agency shall operate in this State, directly or 

indirectly engage in the business of collecting, solicit claims for 

others, have a sales office, a client, or solicit a client in this State, 

exercise the right to collect, or receive payment for another of any 

account, bill or other indebtedness, without registering under this 

Act. . .. 

225 ILCS 425/4. Section 4 of the ICAA does not provide that a debt buyer must obtain a license 

before buying the debt. In fact, Section 4 does not cover debt buying nor does any other section 

of the ICAA address it.2

Second, there is no requirement under ICAA that requires a firm to obtain a collection 

agency license in order to report to a consumer credit agency. Such reporting is not listed among 

the activities in Section 4 of the ICAA. The ICAA could not legally mandate obtaining a license 

before reporting to a consumer reporting agency. Thousands of non-collection agency firms 

have legally been reporting to the three major credit bureaus. The Federal Fair Credit Reporting 

Act, 15 U.S.C. §§ 1681, et seq. (“FCRA”), extensively regulates this area. The FCRA would 

pre-empt any supposed state mandate to obtain a license to report and furnish information to 

consumer reporting agencies or any implied cause of action based upon lack of such licensing 

(which does not even exist under the ICAA). FCRA, 15 U.S.C. §1681t(1)(F); see Purcell v. Bank 

of Am., 659 F.3d 622, 624 (7th Cir. 2011) (FCRA pre-empted state statutory law regulating credit 

reporting and common law); Macpherson v. JPMorgan Chase Bank, N.A., 665 F.3d 45, 47 (2d 

Cir. 2011) (citing Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 106 (2d Cir. 2009);

Prospective Tenant Report, Inc. v. Dep’t of State, Div. of Licensing, 629 So.2d 894, 895 (Fla. Ct. 

 

2

 ICAA Section 3 lists buying accounts, etc. “and engages in collecting same.” 225 ILCS 425/3 

(emphasis added). Zummo does not plead facts supporting any such engaging in collecting accounts 

without EAF being licensed. 

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App. 2d Dist. 1993) (FCRA regulated all of defendant’s activities and therefore state licensing 

statute exempted defendant from licensing requirements); Nelson v. Equifax Info. Servs., LLC, 

522 F.Supp.2d 1222, 1233-34 (C.D.Cal. 2007) (FCRA eliminated all state causes of action 

against furnishers of information); Cosmas v. Am. Express Centurion Bank, 757 F. Supp.2d 489, 

499-501 (D.N.J. 2010) (15 U.S.C. § 1681t(b)(1)(F) applied to both statutory and common law 

claims). 

Third, the ICAA certainly does not require a license before sending an account to a 

licensed collection agency such as Enhanced. 

Last as to the ICAA, it is undisputed that EAF was already licensed when its attorneys 

filed suit against Zummo. 

As to Trice, it is not like this case at all. Trice involved a company, LVNV, which filed 

suit without being licensed under the ICAA. Here, EAF was licensed at the time its attorneys 

filed suit on its behalf against Zummo. 

In addition, Trice did not address whether a debt buyer such as EAF was required to be 

licensed as a collection agency before: (1) purchasing a debt, (2) referring a case to a licensed 

collection agency, or (3) reporting a debt to a credit reporting agency. 

Thus, Zummo does not identify any illegal act by EAF. Buying her debt, credit 

reporting, and engaging a licensed collection agency does not require a license under the plain 

text of the ICAA or the Trice case, and EAF was licensed when suit against Zummo was filed. 

Zummo simply has no claim. 

B. Zummo Fails to State a Plausible Claim Since She Alleges No Factual 

Allegations of Damages As a Result of EAF Being Unlicensed For a Period of 

Time. 

Moreover, assuming there is a private right of action under the ICAA (which we do not 

concede), a plaintiff under the ICAA must plead actual injury. McCabe v. Crawford & Co., 272 

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F.Supp.2d 736, 750-52, 750 n. 14 (N.D.Ill. 2003); Trull v. GC Servs. Ltd. P’ship, 961 F.Supp. 

1199, 1207-08 (N.D.Ill. 1997). Here, Zummo alleges no factually supported allegations 

plausibly suggesting she suffered actual injuries because EAF was unlicensed for a period of 

time. Her purported claim fails on this ground as well. 

This requirement of suffering actual injury also disqualifies Zummo as an adequate class 

representative and illustrates the impossibility of certifying a valid class. Individual inquiries 

into whether each putative class member may have suffered actual injury as a result of nonlicensing will be necessary. 

C. The ICAA Does Not Provide For Recovery of Punitive Damages or 

Attorney’s Fees. 

The ICAA, even if it applied to EAF, does not provide for recovery of punitive damages 

or attorney’s fees. Therefore, this Court should strike Zummo’s request for punitive damages 

and attorney’s fees. 

II. COUNT II FAILS TO STATE A CLAIM UNDER THE FDCPA. 

Zummo’s FDCPA claims are based upon her claims that EAF violated the ICAA. 

However, since EAF did not violate the ICAA, Zummo’s FDCPA claims fail as well. 

Further, the FDCPA is not an enforcement mechanism for rules of state law. In Beler v. 

Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470 (7th Cir. 2007) the plaintiff sued a law 

firm for serving a citation that caused a bank to freeze her checking account. Apparently, the 

account was exempt from seizure because all of plaintiff’s current income consisted of Social 

Security disability payments. The Seventh Circuit rejected plaintiff’s theory that the law firm 

violated the FDCPA: 

Her theory is that it is “unfair” or “unconscionable” for a debt 

collector to violate any other rule of positive law. She has in mind 

42 U.S.C. § 407(a), which exempts Social Security benefits from 

attachment or other legal execution, and Illinois law, which adopts 

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the same rule. See Fayette County Hospital v. Reavis, 169 

Ill.App.3d 246, 119 Ill.Dec. 937, 523 N.E.2d 693 (5th Dist. 1988). 

There are two problems with Beler’s approach. First, § 1692f [of 

the FDCPA] creates its own rules (or authorizes courts and the 

FTC to do so); it does not so much as hint at being an enforcement 

mechanism for other rules of state and federal law. This is not a 

piggyback jurisdiction clause. If the Law Firm violated the Social 

Security Act, that statute’s rules should be applied. Likewise if the 

Law Firm violated Illinois law. Section 1692f does not take a 

state-law dispute and move it to federal court, even though the 

amount in controversy is well under $75,000 and the parties are not 

of diverse citizenship. 

Id. at 473-74. 

In a case similar to this action, Washington v. North Star Capital Acquisition, LLC, 2008 

WL 4280139 (N.D.Ill. Sept 15, 2008), Judge Kocoras dismissed the plaintiff’s FDCPA 

complaint based upon alleged violations of the ICAA. Plaintiff alleged that defendant North Star 

violated the ICAA by filing a lawsuit in state court knowing that it had an invalid claim. 

Plaintiff specifically alleged that North Star knew, or should have known, that its noncompliance with Section 8b of the ICAA provided plaintiff with a complete defense. The court 

rejected this argument: 

But Washington fails to allege the statements contained in North 

Star’s state complaint are false; instead, he finds the pleading 

insufficient under the ICAA because the alleged assignment was 

not attached to North Star’s state court complaint. The FDCPA 

does not address state court litigation nor does it provide any 

requirements for what must be attached to a state court complaint. 

Therefore, Washington’s 1692(e) claim is premised on an alleged 

violation of Illinois state pleading requirements and the FDCPA 

will not be used as a vehicle to litigate claims arising under the 

Illinois rules of civil procedure. 

Id. at *2. The court explained: 

The FDCPA was designed to provide basic, overarching rules for 

debt collection activities; it was not meant to convert every 

violation of a state debt collection law into a federal violation. See 

Carlson v. First Revenue Assurance, 359 F.3d 1015, 1018 (8th Cir. 

2004). Beler’s rationale is again fitting: if North Star violated the 

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ICAA, then that statute’s rules should be applied. The FDCPA 

should not be used as a way to piggyback one’s state claims into 

federal court. As such, Count I doe[s] not state a claim upon 

which relief can be granted and it is consequently dismissed 

pursuant to Fed.R.Civ.P. 12(b)(6). 

Id. 

In a case very similar to the case at bar, the court in Fick v. Am. Acceptance Co., 2012 

WL 1074288 (N.D.Ind. Mar. 28, 2012), dismissed a FDCPA complaint which alleged that the 

plaintiff was not licensed as a collection agency in Indiana when it sued Fick in an Indiana state 

court. Similarly, in Rosales v. Unifund CCR Partners, 2008 WL 5156681 (N.D.Ill. Dec. 5, 

2008), the plaintiff alleged that the defendant violated the FDCPA by submitting inadequate 

affidavits in state court when the defendant had sued her. Judge Der-Yeghiayan dismissed the 

complaint: 

Thus, Rosales’ concerns regarding the propriety of the Kenney 

Affidavits attached to state court pleadings are state concerns and 

can be addressed by the state courts. Under the federal notice 

pleading standard, in order to ascertain the claim pled, the court 

must look to the allegations in the complaint rather than the labels 

of the causes of action in the complaint [citation omitted]. Rosales 

has not pled a FDCPA claim merely by listing the act in the 

complaint and calling her claim a “FDCPA-Class Claim.” 

Id. at *2. 

Thus, Zummo’s allegations that certain conduct violated the ICAA do not turn that 

purported violation into a viable FDCPA claim. 

III. ZUMMO’S FDCPA CLAIMS IN COUNT II ARE PARTIALLY BARRED BY THE 

FDCPA’S ONE-YEAR STATUTE OF LIMITATIONS. 

Where the complaint plainly reveals that an action is untimely under the governing 

statute of limitations, a defendant can properly file a Rule 12(b)(6) motion to dismiss on that 

ground. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008); United States 

v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). That is the situation in this case. 

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The FDCPA contains a one-year statute of limitations. 15 U.S.C. § 1692k(d). Zummo 

filed this action on February 2, 2012 (Doc. #1). She alleges that EAF purchased her account in 

April 2010 (am. compl. ¶ 30). EAF allegedly reported to consumer credit agencies in May 2010 

(Id. at ¶ 31). Under the FDCPA one-year statute, any FDCPA claims based upon these 

allegations must have been brought on or before April/May 2011. Zummo filed this suit on 

February 2, 2012. Therefore, to the extent Zummo’s FDCPA claims are based upon these 

allegations, they are barred by the FDCPA’s one-year statute of limitations and should be 

dismissed. 

CONCLUSION

For the foregoing reasons, Defendant Equable Ascent Financial, LLC respectfully 

submits that the Court grant its Motion to Dismiss. 

 EQUABLE ASCENT FINANCIAL, LLC, 

Defendant 

David M. Schultz 

Clifford E. Yuknis 

Starr M. Rayford 

HINSHAW & CULBERTSON LLP 

222 North LaSalle Street, Suite 300 

Chicago, Illinois 60601 

312/704-3000 

dschultz@hinshawlaw.com 

cyuknis@hinshawlaw.com 

srayford@hinshawlaw.com 

By:/s/Clifford E. Yuknis 

 One of its Attorneys 

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