UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CALVIN SMITH on behalf of himself ) 

and all others similarly situated, ) 

 ) 

 Plaintiff, ) 

 ) Civil Action No. 1:20-cv-04553 

 v. ) 

 ) Hon. Gary Feinerman 

CONVERGENT OUTSOURCING, INC., ) 

) 

Defendant. ) 

 

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS 

INTRODUCTION 

 In August of 2019, Defendant Convergent Outsourcing, Inc., (“Defendant”) sent a letter 

(“Letter”) to Plaintiff attempting to collect a defaulted consumer Comcast account. [1 at ¶¶ 10, 

13]. The Letter stated in pertinent part: 

 . . . If you notify this office in writing at PO Box 9004, Renton, WA 98057 within 30 

days from receiving this notice that you dispute the validity of this debt or any portion 

thereof, this office will obtain verification of the debt or obtain a copy of a judgment and 

mail you a copy of such judgment or verification. 

Id. at 12 (emphasis added). 

 Defendant claims that Plaintiff’s Complaint fails to state a claim upon which relief can be 

granted. [13]. Defendant argues that its collection letter does not violate the Fair Debt Collection 

Practices Act (“FDCPA”) because the language at issue in its letter is neither confusing nor 

deceptive, and it does not overshadow Plaintiff’s validation rights under § 1692g or misrepresent 

information to Plaintiff in violations of §§ 1692e and 1692f. 

 For the reasons stated below, Plaintiff has alleged sufficient facts to state a claim under 

the FDCPA, and under the unsophisticated consumer standard, Defendant’s Letter violates the 

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FDCPA as a matter of law. First, Defendant’s Letter overshadows Plaintiff’s validation rights 

under § 1692g because it indicates that the only manner in which Plaintiff can dispute his debt is 

in writing via mail to a designated address, when in fact § 1692g has no restrictions on the 

manner in which a consumer can dispute a debt to obtain verification, as long as it is written. 

15 U.S.C. § 1692g. A consumer may thus dispute via a letter sent through the US Mail, email, 

Defendant’s dispute website, telegram, personal delivery, FEDEX, UPS, or via any other written 

means. The statement at issue is thus confusing, misleading and unfair to the unsophisticated 

consumer, given that the Defendant has an online dispute platform for consumers to use, yet the 

Letter states that disputes must be mailed to a certain address. 

 Second, Defendant’s Letter misrepresented the legal status of the alleged debt, and 

threatened to take action it did not intend to take, in violation of §§ 1692e(2)(A) and (5), when it 

sent a Letter which stated that upon request, it will obtain a copy of a judgment and mail it to 

Plaintiff, when in fact there was no such judgment entered or lawsuit initiated against Plaintiff. 

 Finally, Defendant used unfair means in an attempt to collect Plaintiff’s debt when it 

stated it would obtain a copy of judgment and mail the same to Plaintiff, despite there being no 

judgment, in violation of § 1692f. Defendant’s Motion should thus be denied. 

LEGAL STANDARD 

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal of a claim, if 

Plaintiff has failed “to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). 

To withstand a 12(b)(6) motion, a plaintiff need only allege enough facts to state a claim to relief 

that is plausible on its face. Boucher v. Fin. Sys. of Green Bay, 880 F.3d 362 365-66 (7th Cir. 

2018). In ruling on a motion to dismiss, courts “accept as true all of the well-pleaded facts in the 

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complaint and draw all reasonable inferences in favor of the plaintiff.” Kubiak v. City of 

Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). 

With respect to allegations of violations of the FDCPA contained in a letter, as here, 

“claims brought under the [FDCPA] are evaluated under the objective ‘unsophisticated 

consumer’ standard.” Gruber v. Creditors’ Prot. Serv., 742 F.3d 271, 743 (7th Cir. 2014). 

When ruling on a 12(b)(6) motion, the Seventh Circuit has “cautioned that a district court must 

tread carefully before holding that a letter is not confusing as a matter of law . . . because ‘district 

judges are not good proxies for the ‘unsophisticated consumer’ whose interest the statute 

protects.’” McMillan v. Collection Prof’ls Inc., 455 F.3d 754, 759 (7th Cir. 2006) (quoting 

Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 501-03 (7th Cir. 1999)). “‘[W]hat seems pellucid 

to a judge, a legally sophisticated reader, may be opaque’ to the unsophisticated consumer.” Id. 

(quoting Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1060 (7th Cir. 1999)). 

Moreover, the FDCPA “is a strict liability statute, and debt collectors whose conduct falls 

short of its requirements are liable irrespective of their intentions.” Ruth v. Triumph P’ships, 577 

F.3d 790, 805 (7th Cir. 2009). In the Seventh Circuit, whether a statement is false, deceptive, or 

misleading or unfair or unconscionable is a question of fact so “dismissal is only appropriate in 

cases involving statements that plainly, on their face, are not misleading or deceptive.” Boucher, 

880 F.3d at 367 (internal quotation marks omitted). 

ARGUMENTS & AUTHORITIES 

I. Convergent’s Letter Was Confusing Because It Stated Plaintiff Had To Send Any 

Dispute Regarding The Alleged Debt By Mail To A Specific PO Box, Which 

Overshadowed Plaintiff’s Rights Under Section 1692g of the FDCPA, As Section 

1692g Does Not Require A Consumer To Dispute A Debt In Any Specific Manner 

Defendant’s Letter stating “[i]f you notify this office in writing at PO Box 9004, Renton, 

WA within 30 days from receiving this notice that you dispute the validity of this debt[,]” 

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violates § 1692g because it communicates that the only method in which Plaintiff may dispute 

his debt is via a written letter sent to the stated PO Box address, which is a false statement. 

 The FDCPA provides that within five days of an initial communication with a consumer 

in connection with the collection of any debt, a debt collector must send the consumer a 

statement communicating that if the consumer notifies the debt collector, in writing and within 

the thirty-day period that follows receipt of the statement, the debt collector will obtain 

verification of the debt or a copy of judgment and mail the same to the consumer. 15 U.S.C. § 

1692g(a)(4). The validation notice must inform the customer that he has 30 days after receipt of 

notice to dispute the debt. Id. However, “[e]ven if a letter properly contains the information 

mandated by section 1692g(a), ‘the debt collector may not overshadow or contradict that 

information with other messages sent with the validation notice.’” Thomollari v. CMRE Fin. 

Servc., 2017 U.S. Dist. LEXIS 220637 * 4-5 (quoting Chauncey v. JDR Recovery Corp., 118 

F.3d 516, 518 (7th Cir. 1997)); § 1692g(b). 

The validation notice is “overshadowed” if it renders the letter confusing or makes the 

debtor “uncertain as to her rights.” See Thomollari, 2017 U.S. Dist. LEXIS 220637, at *5 (E. D. 

Wis. Aug. 28, 2017) (citing Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2nd Cir. 1996)). Further, 

the Seventh Circuit has articulated that “[t]he consumer ‘is to be protected against confusion, 

whatever form it takes[,]’ be it outright contradiction, literal overshadowing, or the failure to 

explain an apparent contradiction.” Olson v. Risk Mgmt. Alternatives, Inc., 366 F.3d 509, 512 

(7th Cir. 2004) (quoting Bartlett v. Heibl, 128 F.3d 497, 500-01 (7th Cir.1997)). 

 Whether a validation notice is confusing is a question of fact determined under the 

objective “unsophisticated consumer” standard. Zemeckis v. Global Credit & Collection Corp., 

679 F.3d 632, 639 7th Cir. 2012); Gruber v. Creditors’ Prot. Serv., 742 F.3d 271, 273 (7th Cir. 

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2014). An unsophisticated consumer is assumed to be “uninformed, naïve, or trusting,” but 

“’possesses rudimentary knowledge about the financial word’ and is ‘capable of making basic 

logical deductions and inferences.” Olson, 366 F.3d at 513 (quoting Pettit v. Retrieval Masters 

Creditors Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 2000)). However, courts have cautioned 

that “district court must tread carefully before holding that a letter is not confusing as a matter of 

law when ruling on a Rule 12(b)(6) motion because district judges are not good proxies for the 

unsophisticated consumer whose interest the statute protects. McMillan, 455 F.3d at 754. 

Debt collectors are not permitted to impose any requirements on the manner in which a 

consumer may challenge their debt, and language in a dunning letter that tends to limit the 

manner in which a consumer may dispute his debt is confusing to the unsophisticated consumer 

and thus “overshadows” the consumers rights in violation of § 1692g. Overshadowing claims 

begin with the premise that “‘the unsophisticated consumer is to be protected against confusion, 

whatever form it takes.’” Frey v. Satter, Beyer & Spires, No. 98 C. 3957, 1999 U.S. Dist. LEXIS 

6912, at *8 (N.D. Ill. Apr. 30, 1999). Bartlett, 128 F.3d at 500. In Frey, the letter at issues stated 

in pertinent part, that “[i]f any portion of this claim is disputed, you are to notify me within (30) 

days, indicating the nature of the dispute.” Id. at *2. The plaintiff alleged that inclusion of the 

additional language that, in order to dispute the debt, the consumer must “indicate the nature of 

the dispute,” overshadowed the validation notice. Id. at *8-10. The court denied defendant’s 

motion to dismiss, finding that “inclusion of a requirement to specify the nature of the dispute is 

not required under § 1692g(a)(3),” and concluded that plaintiff had adequately presented a claim 

that defendants violated § 1692g. Id. at *13. 

In this case, the Letter dictates that a dispute must be mailed to a specific PO Box, but 

Convergent also maintains a website referenced on its Letter that invites consumers to submit 

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debt disputes through its system [1 at ¶¶ 22, 23]. The two distinct yet conflicting 

communications are confusing to the unsophisticated consumer, and violate the FDCPA, § 1692g 

since that provision imposes no requirements on the manner or form in which a consumer may 

dispute his debt, and a consumer may request verification by disputing the debt in any written 

form. In fact, Plaintiff would have submitted a written dispute in a manner other than via mail to 

the PO Box listed had he known the truth, as he would have not had to obtain a letter, paper or a 

stamp to do so, transmission would have been instantaneous, and he would have had evidence 

that he timely transmitted a dispute—none of which were benefits he would have had by mailing 

to the PO Box listed in the Letter [1 at ¶27]. Thus, the content of the Letter overshadowed 

Plaintiff’s rights in violation of § 1692g, and affected Plaintiff’s decision-making on how and 

whether to dispute the alleged debt. 

Other courts have similarly held that any language in a validation notice which tends to 

impose requirements on the manner or mode in which a consumer informs a debt collector of a 

dispute violates § 1692g. See Id. at *12 (denying defendant’s motion to dismiss, holding that the 

letter which said a response was required “within 30 days,” but excluded the words “after receipt 

of the notice” is confusing since the unsophisticated consumer would wonder whether the 

response was required within thirty days of date of letter or within thirty days of receipt); Whitten 

v. ARS Nat’l Servs., No. 00 C 6080, 2002 U.S. Dist LEXIS 9385, at *3-4 (N.D. Ill. May 23, 

2002) (holding that notice letter including the language “[s]uitable dispute documentation could 

include the following,” which listed six types of acceptable documentation overshadowed the 

validation notice because it “sends the message that the only way to dispute a debt is if there is a 

certain ‘acceptable’ type of documentation,” when plaintiff is not required to have any 

documentation to notify collector of dispute); See also Castro v. ARS Nat’l Servs. Inc., 2000 U.S. 

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Dist. LEXIS 2618, No. 99 C 4596, 2000WL 264310, at *11 (S.D.N.Y. Mar. 8, 2000) (holding § 

1692g(a)(3) does not require debtors to provide documentation to dispute a debt, thus a letter that 

referenced “suitable documentation” overshadowed the validation notice and violated § 1692g). 

Defendant contends that the Letter does not violate § 1692g because it “presents a clear 

path for written disputes by providing a specific address for them to be sent to.” [13 at 5]. In 

support of this assertion, Defendant relies on a series of cases which hold that letters which 

indicate the dispute can be sent to more than one address are not confusing. Aside from that not 

being the issue in this case, where Defendant limits the manner of dispute instead of offering 

multiple addresses for convenience, Defendant misinterprets the holding of these cases. 

In Blanchard, the back of letter at issue stated, that “[i]f you have a dispute you may so 

state in the comments section of our webpage or you may send your dispute to:

NACS/Compliance/Audit Division, PO Box 22815, Chattanooga, TN 37422,” and directly below 

that notice, it further stated “if you desire to send written dispute, send to address above,” with 

the address listed being different from the one on the front. Blanchard v. N. Am. Credit Servs., 

No. 15-1295-DRH, 2016 U.S. Dist. LEXIS 48548, at *12-13 (S.D. Ill. Apr. 11, 2016). However, 

the court’s rationale was that the confusion over the address on the front of the letter did not 

“‘cloud’ the letter such that an unsophisticated customer would not understand that he or she had 

a right to dispute the debt when the back of the notice clearly directs users to send disputes to a 

different address.” Id. at 11. Thus the court held that providing multiple addresses was not 

confusing. The issue here, unlike in Blanchard, is that the Defendant’s Letter only provides one 

method—via mail to a PO Box—for Plaintiff to dispute his claim. It is this restriction that is both 

unfair and misleading, as well as confusing, since in fact Plaintiff could have disputed his debt in 

a number of easier and less costly ways, while the Letter falsely indicated otherwise. 

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Plaintiff thus had a right to dispute the debt and to obtain the name and address of the 

original creditor in writing in a variety of ways, including by sending a dispute notice and/or a 

request for information to Defendant’s address listed at the top of the letter, by faxing it, by 

personal delivery, by emailing it, or even by timely serving a lawsuit on its agent that is based on 

a dispute, and thus communicates the fact of the dispute. See Kasalo v. Trident Asset Mgmt., 

LLC, 53 F. Supp. 3d 1072, 1084 (N.D. Ill. July 7, 2014) (finding the service of a complaint that 

contained a dispute of a debt, on a debt collector, was a written dispute under section 1692g); 

Blanchard, 2016 U.S. Dist. LEXIS 48548, at *12-13 (recognizing that electronic 

communications, such as those effected via a web page, qualify as a written dispute under 

section 1692g); Cloud Corp. v. Hasbro, Inc., 314 F.3d 289, 295 (7th Cir. 2002) (holding that emails can satisfy the writing requirement of the statute of frauds). 

Nor is Defendant’s misrepresentation one without negative consequence. By 

communicating that a written dispute and/or request for information had to be mailed to a 

specific PO Box, Defendant impermissibly diminished the pool of communications that Plaintiff 

could have used to communicate a written dispute and obtain verification of the alleged debt, or 

to request the name and address of an original creditor, and Defendant thus unfairly abridged and 

falsely communicated Plaintiff’s rights under section 1692g. Notably, Defendant’s own website 

has a function set up for consumers to be able to dispute debts online for this very purpose, at 

https://www.convergentusa.com/outsourcing/request/make/5 , which allows consumers to fill 

out a form dispute, and which does not require the purchase and use of an envelope, paper and 

postage, or other means to communicate a dispute that would require a consumer to pay for the 

same. [1 at ¶¶ 23, 26]. By Convergent’s own disclosure to Plaintiff, however, a dispute for 

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verification and/or request for the name and address of the original creditor, outside of mailing a 

letter to a specific PO Box in Renton, Washington, would not be valid. 

 Although Blanchard indicated that there is a circuit split as to whether § 1692g(a)(3) 

should require a “writing,” which is not at issue here, there is no question that electronic 

communications qualify as “writings.” Black's Law Dictionary (10th ed. 2014) (defining 

“writing” as including “hard-copy documents, electronic documents on computer media, audio 

and videotapes, e-mails, and any other media on which words can be recorded.”) Blanchard at 

*12-13. The court thus concluded that including language that a consumer may also dispute the 

debt on the debt collector’s website was permissible. Here, while Defendant maintains a website 

for consumers to fill out and submit a dispute form, the Letter indicated that the only manner in 

which Plaintiff could dispute his debt was by sending a letter to the listed address. [1-1]. The 

confusion that triggers an overshadowing claim comes from restrictive language in validation 

notices, as present here, which require consumers to take steps or send disputes in a certain 

manner that cannot be reconciled with the plain language of § 1692g. Since § 1692g prescribes 

no restrictions on how a consumer may dispute a debt, other than requiring a verification request 

to be in writing, the Letter in this case is confusing, misleading and unfair, and thus 

“overshadows” the consumer’s right to dispute the debt in violation of § 1692g. 

II. Plaintiff Has Plead Facts Sufficient To Show That Convergent Misrepresented 

The Legal Status of Plaintiff Alleged Debt And Threatened To Take Action That 

Defendant Did Not Intend To Be Taken, In Violation Of §§ 1692e(2)(A) and e(5) 

Under the unsophisticated consumer standard, the letter sent by Defendant, which stated that 

upon notification, Defendant “will . . . obtain a copy of a judgment and mail you a copy of such 

judgment,” also misrepresented the legal status of the alleged debt, since in fact there was no 

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judgment entered against Plaintiff when the Letter was mailed. This statement violates § 

1692e(2)(A) and §1692e(5) as it constitutes a false and misleading statement regarding the debt. 

A. Defendant Falsely Represented the Character and Legal Status of Plaintiff’s 

Alleged Debt By Stating that Defendant Would Obtain A Copy of Judgment 

Against Plaintiff, When In Fact There Was No Judgment Entered Against 

Plaintiff or Lawsuit Pending 

Defendant’s primary argument is that the language at issue complies with 1692g, and 

thus cannot violate 1692e. Notably, the Defendant cites no case law to support its contention that 

the “Letter in no way suggests or otherwise indicated that a judgment had in fact been entered or 

that COI was in the Process of obtaining one,” other than a recitation of the standard of the 

unsophisticated consumer. [13 at 9]. But a party may not merely parrot boilerplate language (for 

example, in a safe harbor letter) and comply with the FDCPA when such language is false. See 

Boucher, 880 F.3d at 370-371 (...“debt collectors are required to tailor boilerplate language to 

avoid ambiguity.”).

Boucher states in relevant part: 

However, even if a debt collector may generally rely on the safe harbor language to avoid 

liability under § 1692e, Miller's accuracy requirement still applies. As we explained in 

Miller, a debt collector is only entitled to safe harbor protection if "the information he 

furnishes is accurate and he does not obscure it by adding confusing other information (or 

misinformation)." 214 F.3d at 876. And, although the Miller language is not misleading 

or deceptive on its face, it may nevertheless be inaccurate under certain circumstances. 

See, e.g., Ruge v. Delta Outsource Grp., Inc., No. 15-cv-10865, 2017 U.S. Dist. LEXIS 

35047, 2017 WL 959017, at *3 (N.D. Ill. Mar. 13, 2017) (holding that, although "[the 

defendant's] letter is nearly identical to the safe harbor language in Miller," the defendant 

was not immune from liability because "[t]he safe harbor language that says the amount 

of the debt might change because of interest was not true in this particular case") 

(footnote omitted). Here, FSGB's use of the safe harbor language was inaccurate because 

FSGB could not lawfully impose "late charges and other charges." Therefore, FSGB is 

not entitled to safe harbor protection under Miller. 

Boucher, 880 F.3d at 370. 

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Just as the defendant’s use of safe harbor language in Boucher was inaccurate because the 

defendant could not lawfully impose late charges, and thus it violated the FDCPA, Defendant’s 

reference to a judgment in the Letter in this case is also inaccurate, as no judgment exists and 

Defendant cannot obtain and mail one to the Plaintiff, despite its statement that it could. 

Defendant’s Letter, which implies that there is a judgment against Plaintiff, thus falsely 

represented the legal status of Plaintiff’s debt, since in fact there was no such judgment in 

existence that Defendant could obtain and mail. Notably, Courts have generally held that 

unsophisticated consumers can be misled by a dunning letter for a time barred debt where a 

consumer is not given notice that the debt is too old to be sued upon, and thus any such letter is 

false, deceptive, or misleading since a consumer would not be expected to know this fact. See 

McMahon v. LVN Funding, LLC, 744 F.3d 1010, 1021 (7th Cir. 2014); Pantoja v. Portfolio 

Recovery Assoc. LLC, 78 F.Supp.3d 743, 745-6 (N.V. Ill. 2015). For example, in Pantoja, the 

court found that even a letter which said “[b]ecause of the age of your debt, we will not sue you 

for it,” was clearly misleading “because it does not tell the consumer that the debt is time barred 

and defendant cannot sue plaintiff.” 78 F.Supp.3d at 746. While Plaintiff’s debt is not time 

barred in this case, Pantoja is instructive: just as failing to inform a consumer that a debt is too 

old for suit is deceptive as a judgment cannot be obtained, implying that there is already a 

judgment against Plaintiff by stating that Defendant “will . . . obtain a copy of a judgment and 

mail you a copy of such judgment” is also deceptive and misleading, as it falsely represents the 

legal status of Plaintiff’s debt, which hasn’t been reduced to judgment. [1 at ¶¶ 32-36]. 

Lox also supports Plaintiff’s claim. In Lox v. CDA, Ltd., 689 F.3d 818, 825 (7th Cir. 

2012), the 7th Circuit held that a dunning letter is false and misleading if it “impl[ies] that certain 

outcomes might befall a delinquent debtor when, legally, those outcomes cannot come to pass.” 

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The dunning letter in Lox stated the following: “Our client may take legal steps against you and 

if the courts award judgement, the court could allow court costs and attorney fees.” Id. at 820-21. 

The plaintiff moved for summary judgment, claiming that this language was false and misleading 

as a matter of law because “[the creditor] could not, under any circumstances, have recovered 

attorney fees from [him].” Id. at 820. Because the debt collector failed to identify any applicable 

contractual or statutory exception, it effectively “admit[ted] (through waiver) that the award of 

attorney fees was not a possible outcome.” Id. at 824. Thus, the Court concluded that the 

statement about attorney fees was false. Id. Moreover, the statement was found to be misleading 

to an unsophisticated consumer, who “is not aware of the American Rule on attorney fees,” and 

“is therefore likely to believe a debt collector when it says that attorney fees are a potential 

consequence of nonpayment.” Id. at 824-25. 

Here, as in Lox, the challenged statement is misleading to an unsophisticated consumer. 

The dunning letter states that if a dispute is made, “. . .this office will obtain verification of the 

debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. . .”. [1 

at ¶ 31]. While a lawsuit could be filed by Defendant to collect the alleged debt, no suit was filed 

at the time the Letter was mailed, and no judgment could this be obtained and mailed to Plaintiff. 

Therefore, the Letter falsely implies a possible outcome—the entry of a judgment—that cannot 

legally come to pass. See id. at 825. The statement is thus misleading to an unsophisticated 

consumer, as it was to Plaintiff, because the manner by which a judgment may be obtained is not 

the type of legal knowledge we can presume the public has at its disposal. 

B. Defendant’s Letter Amounts to a Threat to Take Legal Action Which It Had 

No Intention of Taking, Because it Implied That A Lawsuit Was Underway 

The FDCPA protects against empty threats of litigation as a means of scaring the debtor 

into paying. Jenkins v. Union Corp., 999 F. Supp. 1120, 1136 (N.D. Ill. 1998) (citing 15 U.S.C. § 

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1692e(5)). A collection letter threatens legal action under § 1692e(5), if it “communicate[s] that 

a lawsuit is not merely a possibility, but that the decision to pursue legal action is either 

imminent or has already been made.” Id. Notably, “[c]ourts have found litigation threats even in 

indirect or oblique statements, provided that they imply legal action is underway or contemplated 

in the near future,” under the unsophisticated consumer standard. Id. 

 In Pipiles v. Credit Bureau of Lockport, Inc., the Second Circuit found that the statements: 

“Notice Is Hereby Given That This Item Has Already Been Referred For Collection Action”; 

“We Will At Any Time After 48 Hours Take Action As Necessary And Appropriate To Secure 

Payment In Full”; and “Pay This Amount If Action Is To Be Stopped” amounted to an implied 

threat to take legal action, since they implied that legal action had already been, or was about to 

be, initiated. Id at 1137 (citing Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 25-26 

(2nd Cir. 1989). Similarly here, the language of Defendant’s letter amounts to a threat of legal 

action, since it implies that legal action has already occurred and/or was imminent, and that 

liability was a foregone conclusion—how else could it obtain and mail a judgment upon request? 

Also notable is that Defendant’s letter speaks in the affirmative, stating that it “will . . . obtain a 

copy of judgment and mail you a copy.” [1-1]. This language, analyzed under the 

unsophisticated consumer standard, implies that judgment is imminent and will be obtained, 

which clearly amounts to a threat to take legal action if a consumer dares to make a request for 

verification. Jenkins at 1137. 

While some courts have failed to find a threat of legal action in dunning letters, in all of 

those cases, the threat was not imminent because the language in the letters was hypothetical, 

and merely articulated that legal action was an option. See Id. (concluding that a letter which 

stated that “if legal action were taken” and “should such action occur” clearly indicate that no 

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decision regarding legal action had been taken and action was not imminent) (emphasis added); 

Knowles v. Credit Bureau of Rochester, 1992 WL 131107, at *1-2 (W.D. N.Y. May 28, 1992) 

(finding that the statement “failure to pay will leave our client with no choice but to consider 

legal action” is not a threat to take legal action under § 1692e(5)). In the present case, however, 

the Letter sent to Plaintiff did more than articulate that legal action was a possibility. By 

Defendant’s own words, its position is contradictory. Defendant states that “Plaintiff’s position 

seems to be that the unsophisticated consumer would read this disclosure to state that: COI 

would obtain and provide Plaintiff with verification of the debt and a copy of the judgment,” and 

further states that “Defendant’s letter saying nothing more than they [sic] if there is a judgment, 

then Defendant may provide it upon written request.” [13 at 9]. However, Defendant’s Letter 

contains neither a “would” nor an “if.” Rather, the Letter states explicitly that upon request, 

Defendant “will” obtain a judgment. This implies not merely that legal action is an option, but 

rather that it is imminent, or that legal action had in fact been taken, which amounts to an 

impermissible threat of legal action in violation of § 1692e(5). 

III. Facts Supporting a 1692e Claim Can Support a 1692f Claim, and Therefore 

Plaintiff Has Alleged Sufficient Facts To Sustain a 1692f Claim 

Section 1692f provides that a “debt collector may not use unfair or unconscionable means 

to collect or attempt to collect any debt. 15 U.S.C. § 1692f. Defendant used an unfair means in 

attempting to collect a debt when it stated it would obtain and mail a copy of judgment to 

Plaintiff, when in fact there was no such judgment. Despite that the language of the Letter 

supporting the § 1692f claim is the same language that supports a § 1692e claim in this case, in 

McMillan v. Collection Professionals Inc., the Seventh Circuit has said that inquiry under §§ 

1692e and 1692f is basically the same: it requires a fact-bound determination of how an 

unsophisticated consumer would perceive the letters, stating “[w]hether characterized as an issue 

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of fact or issues of mixed fact and law, district courts must act with great restraint when asked to 

rule in this context on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).” 455 

F.3d 754, 759-60 (7th Cir. 2006). 

Defendant cites cases for the premise that conduct which is specifically addressed in 

another section of the FDCPA may not be used as the basis for a § 1692f claim. However, the 

case law to which Defendant cites stands for the premise that conduct which suffices only to 

violate another FDCPA provision cannot violate § 1692f, unless that conduct also satisfies those 

requirements, which Defendant’s Letter here does. More importantly, the Seventh Circuit has 

allowed claims under both provisions to proceed even when the offending conduct overlaps. 

McMillan, 455 F.3d at 765 (reversing dismissal of § 1692e and § 1692f claims based on 

overlapping conduct); Fields v. Wilber Law Firm, P.C., 383 F.3d 562,565-66 (7thCir.2004); See 

also Soyinka v. Franklin Collection Serv., 2020 U.S. Dist. LEXIS 124917, at *14 (N.D. Ill. July 

15, 2020) (same). Defendant’s argument thus lacks merit. 

Ultimately, under the unsophisticated consumer standard, a fact finder could conclude 

that a Letter which states that upon request, Defendant “will obtain . . . a copy of judgment” 

means that a judgment either has been entered against that consumer or that Defendant can 

obtain such judgment. [1-1] (emphasis added). Such a reading is by no means “fantastic 

conjecture” nor “an ingenious misreading” as argued by Defendant. The implication of legal 

proceedings is thus an unfair means to collect Plaintiff’s debt, and therefore violates § 1692f. 

 CONCLUSION 

Based on the foregoing, Plaintiff requests that the Court deny Defendant’s Motion to 

Dismiss or, in the alternative, allow him leave to amend his complaint, and/or for any and all 

other relief this Court deems just and proper. 

Case: 1:20-cv-04553 Document #: 21 Filed: 11/20/20 Page 15 of 16 PageID #:73
16

 

Respectfully submitted, 

By: /s/ Mario Kris Kasalo 

One of Plaintiff’s Attorneys 

 

The Law Office of M. Kris Kasalo, Ltd. 

20 North Clark Street, Suite 3100 

Chicago, Illinois 60602 

Tele 312- 726-6160 

Fax 312-698-5054 

mario.kasalo@kasalolaw.com 

 CERTIFICATE OF SERVICE 

 I hereby certify that on November 20, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using the CM/ECF system which will send notification of 

such filing to all registered CM/ECF users. 

By: /s/ Mario Kris Kasalo

Mario Kris Kasalo 

Case: 1:20-cv-04553 Document #: 21 Filed: 11/20/20 Page 16 of 16 PageID #:74