Opinion
No. 02 C 247
June 25, 2002
MOTION
Russell A. Mysyk, Sr. and Cynthia Lee Mysyk (together, the "Mysyks") bring this action to challenge the debt collection practices of Fairbanks Capital Corp. ("Fairbankst"). Specifically, the Mysyks allege that Fairbanks violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692c (a)(2), and the Illinois Consumer Fraud Act ("ICFA"). 815 ILCS 505/2, by sending to the Mysyks two letters concerning their residential mortgage loan debt, which Fairbanks had acquired.
I turn first to the claims that confer federal jurisdiction on this matter. Section 1692v(a)(2) prohibits direct communications with a consumer "if the debt collector knows the consumer is represented by an attorney with respect to such debt. . . ." The FDCPA defines a "debt collector" as excluding:
an person collecting or attempting to collect any debt owed or due or asserted to be or asserted to he owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.
Fairbanks moves to dismiss the Mysyks's two claims pursuant to the FDCPA because the Mysyks failed to allege that they were in default when their loan was acquired by Fairbanks. The Mysyks argue that this is not a bright-line test as the plain language suggests and the Seventh Circuit has found. Baily v. Security Nail Servicing Corp., 154 F.3d 384, 387 (7th Cir. 1988) (Section 1692a(6)(F)(iii) plainly excludes from the definition of "debt collector" one who seeks to collect a debt that was not in default at the time such debt was obtained).
The Mysyks rely on Congress's intent to protect persons who are wrongly treated as in default because of mistaken identity or because debts bad already been paid. To protect such persons, Congress defined a "debt" to include an alleged obligation as well as an obligation. 15 U.S.C. § 1692a(5). The Mysyks argue that when the definition of "debt," which includes an alleged obligations is read into the definition of the debt collector exclusion, the "debt collector" exclusion only applies if the obligation was treated by the putative debt collector as current at the time of acquisition. I decline to cobble together a tortured meaning of "debt collector" that is contrary to the plain language of the FDCPA and Seventh Circuit's interpretation to find that Fairbanks is a "debt collector" Accordingly, Counts I and II are dismissed.
With the dismissal of the federal claims, there is no original jurisdiction over this action. The federal supplemental jurisdiction statute, 28 U.S.C. § 1367 (c), gives federal courts discretion to retain or relinquish jurisdiction where all claims over which a district court had original jurisdiction have been dismissed, and the Seventh Circuit counsels me to relinquish jurisdiction where the remaining state law claims would force me to address difficult issues of state law. Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993); Wentzka v. Gellman, 991 F.2d 423, 425-26 (7th Cir. 1993). As the Mysyks have put forth a creative argument on their state law claim, much as they did on their federal claim, I think it would be more appropriately considered by the state court and, accordingly, I dismiss Count III, the Mysyks's claim under the ICFA.
For the foregoing reasons, defendant's motion to dismiss plaintiffs' amended complaint [12-1] is GRANTED.