Opinion
01 C 2572
July, 17, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Renee Salgado brought a complaint against defendants Harvard Collection Services, Inc. ("Harvard") and Asta Funding Acquisition, Inc., ("Asta"), seeking recovery of attorney's fees and litigation costs as well as damages associated with Salgado's defense of an allegedly wrongful collection action brought against him. Count I of the complaint alleges that the defendants violated section 1692f of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA). Count II alleges that Harvard and Asta violated sections 9 (26), (29), and (30) of the Illinois Collection Agency Act, 225 ILCS 425/1 et seq. ("ICAA"). Harvard moves to dismiss both counts pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted, arguing that Salgado filed the complaint after the expiration of the FDCPA's statute of limitations. For the following reasons, we deny the motion.
FACTS
The following facts are taken from the pleadings. Both Harvard and Asta are debt collectors as defined in the FDCPA, 15 U.S.C. § 1692a (6). Harvard is also a collection agency as defined in the ICAA, 225 ILCS 425/2.02 and 425/3/. In the Spring of 1999, Salgado owed $860.53 to First Card Visa, which turned over the debt to Asta for collection. Asta then retained Harvard to actually collect the debt. Subsequently, Asta sold the debt, which was eventually purchased by Accounts Receivable Services, Inc. ("ARS") on October 8, 1999. Salgado remitted payment to Harvard for the entire amount on April 10, 2000. Harvard allegedly failed to both notify Asta that it had received the payment as well as remit the payment to Asta.
On May 15, 2000, ARS — unaware of Salgado's payment — sued Salgado in state court for the amount of the debt. Salgado then brought this suit against Harvard and Asta on April 12, 2001, alleging that Harvard's collection of the debt and subsequent failure to report such collection to Asta, the holder of the debt, was an unfair practice in violation of the FDCPA and was also an unfair collection under the ICAA.
Salgado alleges that Asta is liable for Harvard's actions as its principal.
Harvard argues that the violation occurred on April 10, 2000, the date Salgado paid the debt, and that because this date is more than a year before Salgado filed suit, we should dismiss the case. Salgado argues that the violation actually occurred on May 15, 2000, when ARS filed suit against him for nonpayment of the debt, and therefore, his suit is timely under the FDCPA's one year statute of limitations.
The purpose of a motion to dismiss under Fed, R.Civ.P, 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Tria/Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). When considering a motion to dismiss under Rule 12(b)(6), we take all facts contained in the complaint as true and draw all inferences from those facts in the light most favorable to the plaintiff. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994). We will deny the motion unless it is clear that the plaintiff can prove no set of facts which would support a claim upon which relief could be granted. Id.
Section 1692(d) of the FDCPA states:
(d) Jurisdiction An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs. 15 U.S.C. § 1692k (d).