Erick Marquez v. Weinstein, Pinson & Riley, P.S
2016 U.S. App. LEXIS 16399
| 7th Cir. | 2016Background
- Plaintiffs (consumers) were sued in state court by debt collectors (NCO, Weinstein, and attorney Moscov) to collect alleged student-loan debts; plaintiffs then brought an FDCPA suit challenging the state-court pleadings.
- The state-court complaints included a Paragraph 12 stating that, "Pursuant to 11 U.S.C. § 1692g(a)... the debt referenced in this suit will be assumed to be valid and correct if not disputed in whole or in part within thirty (30) days from the date hereof."
- Plaintiffs alleged Paragraph 12 was deceptive under 15 U.S.C. § 1692e because it misled consumers about the timing and manner for disputing the debt in the litigation context.
- The district court dismissed the FDCPA claim, holding Paragraph 12 was not misleading as a matter of law; plaintiffs appealed.
- The Seventh Circuit considered (1) whether § 1692e covers statements in legal pleadings and (2) whether Paragraph 12 is misleading to an unsophisticated consumer.
- The Seventh Circuit reversed, holding § 1692e applies to court filings and that Paragraph 12 was misleading as a matter of law because it could cause consumers to forfeit rights by misunderstanding the correct procedure and deadline for contesting the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 1692e apply to statements made in court filings? | § 1692e covers attorneys' litigating communications; pleadings are included. | § 1692e does not regulate content of state-court pleadings. | § 1692e applies to court filings; Heintz and post-Heintz amendment support coverage. |
| Was Paragraph 12 misleading about timing to respond to the lawsuit? | Yes — it shortens/displaces the statutory/pleading deadlines and may cause forfeiture. | No — it merely repeats debt-dispute rights and refers to the debt collector's assumption, not the court's. | Yes — misleading as matter of law; 30-day language could be read to bar later contest in answer. |
| Was Paragraph 12 misleading about the manner of disputing the debt? | Yes — it suggests disputing must follow the demand-letter procedures (contact collector) rather than answering in court. | No — disputing via answer remains available; Paragraph 12 only references debt-collector assumption. | Yes — it could lead unsophisticated consumers to forfeit court defenses by disputing only with the collector. |
| Proper disposition on Rule 12(b)(6)? | Dismissal inappropriate because statements are deceptive as a matter of law and pleadings suffice. | Dismissal proper; statements not plainly misleading. | Reversed district court; complaint survives because Paragraph 12 is plainly misleading. |
Key Cases Cited
- Heintz v. Jenkins, 514 U.S. 291 (1995) (FDCPA applies to attorneys' debt-collection activities, including litigation)
- McMillan v. Collection Professionals, Inc., 455 F.3d 754 (7th Cir.) (2006) (standards for evaluating misleading statements under FDCPA; caution about judging from court's perspective)
- Kaymark v. Bank of Am., N.A., 783 F.3d 168 (3d Cir. 2015) (pleadings can fall within § 1692e)
- Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291 (11th Cir. 2015) (court filings subject to FDCPA review)
- Ruth v. Triumph Partnerships, 577 F.3d 790 (7th Cir. 2009) (classification of deceptive-statement claims and when plaints need extrinsic evidence)