LCM (58479-2)

UNITED STATED DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SHAUN N. GABOR,

Plaintiff,

vs.

ASSOCIATED CREDIT SERVICES, INC. 

and GREAT AMERICA, LLC.

Defendants

No. 1:20-cv-03364

DEFENDANT GREAT AMERICA, LLC’S PARTIAL 

MOTION TO DISMISS COUNT I OF PLAINTIFF’S COMPLAINT AT LAW

NOW COMES Defendant, Great America, LLC, by and through its attorneys, Molzahn, 

Reed & Rouse, LLC pursuant to Federal Rule of Civil Procedure 12(b)(6) and for its Partial Motion 

to Dismiss Count I of Plaintiff’s Complaint, states as follows:

INTRODUCTION AND BACKGROUND

Plaintiff’s Complaint arises out of the attempt to collect a $592.46 debt from Plaintiff after 

Plaintiff allegedly sought bankruptcy protection under Chapter 7. The debt arose from Plaintiff’s 

failure to pay for a membership to Six Flags Great America. According to Plaintiff’s allegations, 

the $592.46 debt was sent to a collections agency, Associated Credit Services, Inc. (“ACS”) after 

receiving notice of Plaintiff’s bankruptcy petition. See Plaintiff’s Complaint attached as Exhibit 

A, ¶¶ 15-22. Plaintiff specifically alleges that “ACS sent a letter to Plaintiff, dated May 6...” for 

collection of the unpaid debt. Plaintiff’s Complaint does not allege that Great America was a debt 

collector, that Great America held itself out as or purported to be a debt collector, or took any 

Case: 1:20-cv-03364 Document #: 10 Filed: 07/10/20 Page 1 of 4 PageID #:36
affirmative action in collecting the debt aside from referring “Plaintiff’s $592.46 balance for 

collection.” Exhibit A, ¶ 21.

Count I of Plaintiff’s Complaint seeks relief for alleged violations of the Fair Debt 

Collection Practices Act (“FDCPA”) codified at 15 U.S.C. § 1692 et seq. Count I is not directed 

solely against ACS, despite attributing specific conduct to ACS and seeking certain damages solely 

against ACS. While the failure to direct Count I against ACS may have been done inadvertently, 

Count I, as pled is directed at Great America and ACS. Great America is not a debt collector as 

defined by 15 U.S.C. § 1692a(6) and did not act to collect a debt as contemplated by 15 U.S.C. § 

1692, and as a result, Count I directed at Great America should be dismissed for failure to state a 

claim under 15 U.S.C. § 1692 against an entity that is not a debt collector. 

LEGAL STANDARD

In deciding a Fed.R.Civ.P. 12(b) (6) motion to dismiss, the court considers "whether relief 

is possible under any set of facts that could be established consistent with the 

allegations." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). A claim may be 

dismissed if it is beyond doubt that under no set of facts would the plaintiff's allegations entitle 

him to relief. See Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-

30 (7th Cir. 1996). For purposes of a motion to dismiss, the court accepts the factual allegations 

of the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Travel All 

Over the World, 73 F.3d at 1428.

ARGUMENT

Plaintiff’s Complaint does not allege that Great America is a debt collector pursuant to 15 

U.S.C. § 1692a(6) and that Great America violated 15 U.S.C. §§ 1692e(2)(A) and f(1). Allegations 

Case: 1:20-cv-03364 Document #: 10 Filed: 07/10/20 Page 2 of 4 PageID #:37
for violation of the FDCPA are directed solely at ACS, the debt collection agency that sought to 

collect the debt owed to Great America. 

Plaintiff’s Complaint (Exhibit A) alleges in part:

30. Thus, ACS violated 15 U.S.C. §§ 1692e(2)(A) by sending a dunning letter 

indicating that $592.46 was due and payable when the debt was included in 

Plaintiff’s chapter 7 – constituting a false representation about the legal 

status of the debt.

32. ACS violated 15 U.S.C. §§ 1692f(1) by demanding payment from Plaintiff 

in violation of the automatic stay provisions of the Bankruptcy Code (11 

U.S.C. § 362). 

WHEREFORE, Plaintiff requests the following relief:

A. Find that ACS violated 15 U.S.C. §§ 1692e(2)(A) and f(1);

B. Award any actual damage sustained by Plaintiff as a result of ACS’s 

violation(s) pursuant to 15 U.S.C. § 1692k(a)(1)... Exhibit A.

Plaintiff does not allege that the principal purpose of Great America’s business is the 

collection of debts as is required by 15 U.S.C. § 1692a(6). In addition, the Seventh Circuit has held 

also that “[C]reditors who collect in their own name and whose principal business is not debt 

collection, therefore, are not subject to the Act. This is consistent with the FDCPA's stated purpose 

of "eliminating abusive debt collection practices by debt collectors.” Aubert v. American General 

Finance, 137 F.3d 976, 978 (7th Cir. 1998). 

There are no allegations in Plaintiff’s Complaint and no set of facts that would subject 

Great America to liability under the FDCPA. Great America was not and is not a debt collector.

The Complaint fails to allege that Great America is a debt collector and therefore, Count I cannot 

be directed against Great America. 

Case: 1:20-cv-03364 Document #: 10 Filed: 07/10/20 Page 3 of 4 PageID #:38
WHEREFORE, Defendant Great America, LLC requests that this Court grant Great 

America’s Partial Motion to Dismiss Count I of Plaintiff’s Complaint directed at Great America, 

pursuant to Fed. R. Civ. P. 12(b) (6) and for any additional relief that this court deems just. 

Dated: July 10, 2020 Respectfully submitted,

Great America, LLC, Defendant

By: /s/ Lyndon C. Molzahn

Lyndon C. Molzahn

MOLZAHN, REED & ROUSE, LLC

20 North Clark Street, Suite 2300

Chicago, IL 60602-5002

P: (312) 917-1880

F: (312) 917-1851

lcm@m2rlaw.com

Case: 1:20-cv-03364 Document #: 10 Filed: 07/10/20 Page 4 of 4 PageID #:39