IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORTH WAYNE DIVISION

DONALD P. WIES, JR., 

Plaintiff,

 v.

CAVALRY SPV I, LLC and WRIGHT, LERCH 

& LITOW, LLP,

Defendants.

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Case No. 14 cv 187-RLM-RBC

DEFENDANTS’ BRIEF IN SUPPORT OF THEIR

MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
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Defendant Cavalry SPV I, LLC (“Cavalry”) and Wright, Lerch & Litow, LLP (“Wright”) 

(collectively, “Defendants”), by counsel, respectfully submit this brief in support of their 

Motion to Dismiss Plaintiff’s First Amended Complaint pursuant to Rule 12(b)(6) of the 

Federal Rules of Civil Procedure.

I. INTRODUCTION

On June 13, 2014, Plaintiff filed suit alleging violations the Fair Debt Collection 

Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., based on Defendants’ prosecution of a 

collection lawsuit in the Noble Superior Court, case no. 57D01-1301-CC-02 (“Collection 

Litigation”). (Compl. Dkt. # 1.) Plaintiff did not dispute the accuracy or the validity of the 

debt nor did he allege that the Collection Lawsuit contained any actually false or misleading 

statements. Rather, Plaintiff contended that his original creditor, Bank of America/FIA Card 

Services, N.A. (“BOA”), waived interest on his account post-charge off and, as a result, 

Cavalry was not authorized to collect it. Because it was clear from the face of the initial 

complaint that Plaintiff’s claims were time-barred, on July 30, 2014, Defendants filed their 

motion seeking a dismissal of this action.

Instead of responding to the motion, Plaintiff filed a First Amended Complaint 

(“Amended Complaint”). The Amended Complaint, however, suffers from the same fatal 

deficiencies as the initial complaint. Plaintiff’s claims continue to be based on the alleged

conduct—i.e., that Defendants’ attempted to collect the allegedly waived interest—that 

occurred more than 17 months before the initiation of this action. Plaintiff expressly admits 

that he knew, or was on notice, at least as of January 23, 2013, of Defendants’ demand for 

the payment of that allegedly waived interest. And yet, he did not file the complaint until 

June 13, 2014, more than 17 months later. 
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II. PLAINTIFF’S ALLEGATIONS

As in the initial complaint, Plaintiff centers his allegations in the Amended 

Complaint on Defendants’ prosecution of the Collection Lawsuit. In an attempt to “bolster” 

his claims, however, Plaintiff asserts allegations that conclusively show that he knew, or 

was on notice, at least as of January 23, 2013, of Defendants’ demand for payment of the 

allegedly waived interest. (Amd. Compl. ¶¶ 8-19.) Specifically, Plaintiff alleges that 

Defendants filed the complaint in the Collection Lawsuit on January 2, 2013, in which they 

“averred ... that there was an account balance of $13628.58, which included ‘post charge off 

interest in the amount of $5333.10 at the rate of 24.9900% per annum from 

03/31/2010’”—interest that Plaintiff alleges was waived by BOA at charge-off. (Amd. 

Compl. ¶¶ 8, 11) (A true and correct copy of Defendants’ Collection Lawsuit complaint1 is 

attached Exhibit A.) The Collection Litigation record indisputably shows that Plaintiff 

appeared and answered the complaint on January 23, 2013. (A true and correct copy of 

Plaintiff’s answer is attached as Exhibit B.)

In an attempt to avoid the statute of limitations, Plaintiff alleges that on May 13, 

2014, Defendants filed a motion for summary judgment in violation of the FDCPA. (Amd. 

Compl. ¶ 12.) And yet Plaintiff admits that Defendants asserted the identical facts and 

sought the same relief in that motion as in the Collection Lawsuit complaint—i.e., “that 

there was an account balance of $13628.58, which included ‘post charge off interest in the 

amount of $5333.10 at the rate of 24.9900$ from 03/31/2010.’” (Amd. Compl. ¶¶ 12, 15.)

 1 The Court may take judicial notice of the pleadings filed in the Collection Litigation. See 

General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081-82 (7th Cir. 1997) 

(recognizing that proceedings in other courts, both inside and outside the federal system 

may be judicially noticed); Hanson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994) 

(holding that the district court may take judicial notice of matter of public record). 
3

Further, Plaintiff alleges that Defendants’ assertion in their motion for summary judgment 

filed in the Collection Lawsuit that “[Plaintiff] has not set forth facts contrary to [Cavalry’s]

evidence” was an independent act in violation of the FDCPA. (Amd. Compl. ¶ 17.) On that 

basis, Plaintiff seems to contend that because the statement was made on May 13, 2014, his 

FDCPA claims asserted for the first time on June 13, 2014, are not time-barred. As set forth 

below, however, the Court should dismiss the Amended Complaint for the very simple 

reason that the statute of limitations on any alleged violation has expired.

III. ARGUMENT

According to Plaintiff, Defendants violated the FDCPA by “falsely representing the 

character, amount or legal status of a debt,” “using a false, deceptive or misleading means in 

connection with the collection of a debt,” and “using an unfair and unconscionable means to 

collect debt” by attempting to collect “interest on the [d]ebt for a period of time the original 

creditor had already waived” and “filing the motion for summary judgment and serving it 

on Plaintiff.” (Amd. Compl. ¶ 21.) Each of these claims fail as a matter of law because they 

are barred by the one-year statute of limitation.

To survive a motion to dismiss, a complaint must contain sufficient factual matter to 

“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 

(2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). A claim 

has “facial plausibility” when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 

129 S. Ct. at 1949. The plausibility standard is not akin to a “probability requirement,” but it 

asks for more than a sheer possibility that a defendant has acted unlawfully. Id. It requires 

allegations that “plausibly suggest that the plaintiff has a right to relief, raising that 
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possibility above a ‘speculative level’; if they do not, the plaintiff pleads itself out of court.” 

EEOC v. Concentra Health Servs, Inc., 496 F.3d 773, 776 (7th Cir. 2007). While a statute of 

limitation is an affirmative defense and plaintiff is not required to plead facts in the 

complaint to anticipate and defeat affirmative defense, the complaint is subject to dismissal 

for failure to state a claim when the allegations reveal that relief is barred by the applicable 

statute of limitations. Logan v. Wilkins, 644, F.3d 577, 582 (7th Cir. 2011); United States v. 

Lewis, 411 F.3d 838, 842 (7th Cir. 2005). 

The FDCPA provides that an action to enforce liability under the statute “may be 

brought ... within one year from the date on which the violation occurs.” 15 U.S.C. § 

1692k(d). The statute does not specifically define the date on which the claim accrues; and 

the Seventh Circuit has not decided when the FDCPA statute of limitations begins to run.

See Judy v. Blatt, Hasenmiller, Leibsker and Moore LLC, 2010 WL 431484, at * 3 (N.D. Ill. Jan. 

29, 2010). However, where an FDCPA claim arises from a debt collection suit—as here—

courts have held that the statute of limitation begins to run either from the day the 

complaint is filed or the day the plaintiff is served with a copy of the complaint. See Naas v. 

Stolman, 130 F.3d 892, 893 (9th Cir. 1997); Johnson v. Riddle, 305 F.3d 1107, 1113 (10th 

Cir. 2002). Courts have reasoned that the filing date or date of service serves as the accrual 

date for the statute of limitations because it puts a FDCPA plaintiff on notice of the alleged 

violation. See Calka v. Kucker, Kraus & Bruh, LLP, 1998 WL 437151, at *3 (S.D.N.Y. Aug. 3, 

1998) (plaintiff was “on notice of the misrepresentation and unconscionable debt 

collection means when the [s]tate [a]ction was filed, and it was at that time that the 

violation accrued”); Prade v. Jackson & Kelly, 941 F. Supp. 596, 600 (N.D.W.Va. 1996) (court 
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may presume that plaintiff is aware of a potential FDCPA violation when plaintiff is served 

and first becomes aware of the state court action).

Here, Plaintiff’s allegations and the record properly before the Court clearly show 

that Plaintiff had notice of Cavalry’s demand for payment of interest at the contractual rate 

of 24.99% on January 2, 2013, when the state collection case was filed, and certainly no 

later than January 23, 2013, when he answered the complaint. (Exs. A, B.) In fact, Plaintiff 

unequivocally admits that Defendants initiated the Collection Litigation on January 2, 2013,

in which it expressly demanded the payment of the “post charge off interest in the amount 

of $5333.10 at the rate of 24.9900% per annum from 03/31/2010.” (Amd. Compl. ¶ 11.) 

The record clearly shows that Plaintiff had notice of Cavalry’s demand no later than when 

he answered the Collection Lawsuit complaint on January 23, 2013. (Ex. B.) Plaintiff, 

however, did not assert his FDCPA claims until June 13, 2014—more than 17 months after 

his alleged claims accrued and more than five months after his claims expired. (Dkt. # 1.)

Therefore, Plaintiff’s claims are undisputedly outside the one-year statute of limitations 

and, as a result, time-barred.

In an attempt to avoid the application of the statute of limitations here, Plaintiff 

predicates his FDCPA claims on Defendants’ filing of the summary judgment motion and 

their statement in that motion that he “has not set forth facts contrary to [Cavalry’s] 

evidence.” (Amd. Compl. ¶ 12.) Apparently, Plaintiff suggests that the filing of that motion 

and accurately describing the nature of evidence in the Collection Lawsuit should be 

considered a distinct event from the filing of the collection complaint itself that triggers a 

new statute of limitation. (Amd. Compl. ¶ 17.) However, Defendants’ activities in the course 

of prosecuting the Collection Litigation are not, and cannot, be considered discrete debt 
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collection activities sufficient to restart the statute of limitations. See Jones v. U.S. Bank N.A., 

2011 WL 814901, at *5 (N.D.Ill. Feb. 25, 2011) (“continuing to prosecute the foreclosure 

case is not itself a discrete debt collection activity sufficient to toll or restart the statute of 

limitations”); Simard v. LVNV Funding, LLC, 2011 WL 4543956, at *4 (D.Mass. Sept. 9, 2011) 

(“a default judgment in debt collection suit does not constitute a FDCPA violation if it is 

determined that the plaintiff was already aware of the state court action”); Calka, 1998 WL 

437151, at *3 (dismissing plaintiff’s FDCPA claims as time-barred because defendants’ 

filing of a motion for summary judgment did not create a new FDCPA violation distinct 

from the initial filing of the lawsuit). Likewise, the filing of the motion for summary 

judgment does not, and cannot, constitute a “continuing violation” tolling the statute of 

limitation period. This is because the statute of limitations begins to run upon injury “and is 

not tolled by subsequent injuries.” See Limestone Dev. Corp. v. Vill. Of Lemont, Ill., 520 F.3d 

797, 801 (7th Cir. 2007).

Here, the crux of Plaintiff’s claim is that Defendants sought to collect interest at the 

contractual rate of 24.99% that was allegedly “waived” by BOA. (Amd. Compl. ¶ 11.) 

Defendants initially made that request in the Collection Litigation complaint and then 

almost 16 months later made the identical request in the summary judgment motion.

(Amd. Compl. ¶¶11, 15; Ex. A.) Therefore, even assuming that Defendants’ conduct 

constituted a violation of the FDCPA (which it did not), such violation was complete upon 

the filing of the complaint, and certainly no later than at the filing of Plaintiff’s answer in 

January 2013. (Exs. A, B.) Plaintiff was on notice of the alleged representations 17 months 

before he filed his federal FDCPA case. As a result, Defendants’ filing of the motion for 

summary judgment, including the statement in the motion that Plaintiff “has not set forth 
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facts contrary to [Cavalry’s] evidence,” does not, and cannot, toll the statute of limitations.

In other words, because Defendants’ alleged conduct—i.e., that they filed the motion and 

made the statement in the motion about the evidence in the case—is not an act 

independent of Defendants’ filing of the Collection Lawsuit, Plaintiff’s claims must be 

dismissed as time-barred. See Nutter v. Messerelli & Kramer, P.A., 500 F. Supp. 2d 1219, 

1223 (D.Minn. 2007) (holding that a new communications that concern an old claim is 

subject to the statute of limitations for the old claim); Ball v. Ocwen Loan Servicing, LLC, 

2012 WL 1745479, at *4 (N.D.Ohio, May 16, 2012) (“maintaining lawsuit is not ‘continuing 

violation’ tolling the limitations period”); Judy, 2010 WL 431484, at *4 (the continuing 

violation doctrine did not toll the limitations period for plaintiff’s FDCPA claims because 

“the violations that began at the inception of the lawsuit”); Simard, 2011 WL 4543956, at* 5 

(“communications considered to be part of the course of litigation are not viewed as 

separate or continuing violations for the FDCPA and, therefore, do not trigger a new accrual 

date for the statute of limitations”).

Thus, the Court should grant Defendants’ Motion and dismiss Plaintiff’s Amended 

Complaint with prejudice.

IV. CONCLUSION

For the reasons state above, Defendants Cavalry SPV I, LLC and Wright, Lerch & 

Litow, LLP request that this Court enter an order dismissing Plaintiff’s First Amended 

Complaint with prejudice and for any other relief the Court deems just and appropriate. 
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Dated: September 2, 2014. Respectfully submitted,

CAVALRY SPV I, LLC and 

WRIGHT, LERCH & LITOW, LLP

 By: /s/ Sulejman F. Dizdarevic

One of its attorneys

Anna-Katrina S. Christakis

Sulejman F. Dizdarevic

PILGRIM CHRISTAKIS LLP

53 West Jackson Boulevard, Suite 1515

Chicago, Illinois 60604

Ph. (312) 361-3457

Fax (312) 939-0983
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CERTIFICATE OF SERVICE

Sulejman F. Dizdarevic, an attorney, certifies that on September 2, 2014, he 

electronically filed the foregoing document with the Clerk of the Court by using the CM/ECF 

system, which will send a notice of electronic filing to the following:

Robert E. Duff

Indiana Consumer Law Group

The Law Office of Robert E. Duff

P.O. Box 7251

Fishers, Indiana 46037

robert@robertdufflaw.com

/s/ Sulejman F. Dizdarevic

4815-2691-4333, v. 1