Zelkowitz v. Avant
- Susan Nelson
- 0:25-cv-00850
- U.S. District Court · District of Minnesota
- 8
In Zelkowitz v. Avant, LLC and WebBank, Judge Susan Richard Nelson dismissed the case with prejudice after finding that neither defendant qualifies as a 'debt collector' under the Fair Debt Collection Practices Act — a point the plaintiff himself conceded — meaning his lawsuit over an unauthorized $25 autopayment had no legal basis that could be fixed by repleading.
Pro se consumers who attempt to sue creditors or loan servicers under the Fair Debt Collection Practices Act (FDCPA) should be aware that the FDCPA generally covers only third-party 'debt collectors,' not the original lenders or creditors collecting their own debts. This ruling also affects Avant, LLC and WebBank, who are dismissed from the lawsuit entirely.
What happened
In Zelkowitz v. Avant, LLC and WebBank (Case No. 25-CV-850), pro se plaintiff Fred Michael Zelkowitz sued Avant and WebBank under the Fair Debt Collection Practices Act (FDCPA), a federal law that prohibits abusive debt collection practices. He alleged that after he turned off autopay on his Avant credit card, Avant still withdrew $25 from his bank account in February 2025 and then failed to return the money after promising to do so. He sought the $25 back plus $100,000 in punitive damages.
Both defendants moved to dismiss the lawsuit, arguing that they are not 'debt collectors' as defined by the FDCPA — a status that is required to bring a claim under that law. WebBank, as the bank that originally issued the credit card, is specifically excluded from the FDCPA's definition of debt collector. Avant, as the servicer or creditor collecting a debt owed to itself and not to any third party, also does not meet that definition. Critically, the plaintiff himself admitted in his response that he was not claiming either defendant was a debt collector under the FDCPA.
Judge Susan Richard Nelson granted both defendants' motions to dismiss and dismissed the entire case with prejudice, meaning Zelkowitz cannot refile these claims. Because the plaintiff conceded the threshold element of the FDCPA claim — that defendants must be debt collectors — no amount of repleading or additional evidence from discovery could fix the lawsuit. The plaintiff's own motion for summary judgment was denied as moot because the dismissal made it irrelevant.
The detailed version
- Fred Michael Zelkowitz v. Avant, LLC, and WebBank, Case No. 25-CV-850 (SRN/DLM)
- Susan Richard Nelson, United States District Judge
- November 20, 2025
Background
Pro se plaintiff (a person representing himself without a lawyer) Fred Michael Zelkowitz sued Avant, LLC ('Avant') and WebBank in March 2025. He brought a single claim under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., a federal statute designed to eliminate abusive debt collection practices. Zelkowitz alleged that he held an Avant credit card originally issued by WebBank, that he turned off autopay in January 2025, but that Avant nonetheless withdrew $25 from his Wells Fargo checking account on February 4, 2025. He claimed an Avant representative promised to reverse the payment but never did. He sought return of the $25 and $100,000 in punitive damages.
Defendants' Motions to Dismiss (Rule 12(b)(6))
Both defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) — a procedural mechanism allowing a court to dismiss a lawsuit before discovery if the complaint, even accepting all its facts as true, fails to state a legally valid claim. Defendants argued: 1. Neither qualifies as a 'debt collector' under the FDCPA, a required element of any FDCPA claim. 2. Even if they were debt collectors, accepting an autopayment on a valid existing debt is not conduct prohibited by the FDCPA. 3. The complaint failed to identify which specific provision of the FDCPA was allegedly violated. 4. WebBank was not alleged to have been involved in processing the autopayments at all.
Plaintiff's Response and Summary Judgment Motion
Zelkowitz responded that he was 'not implying' either defendant was a debt collector under the FDCPA, characterizing the FDCPA as supplementing rather than replacing other laws. He also filed his own motion for summary judgment (a request for judgment without trial based on undisputed facts), in which he simultaneously conceded, 'One thing is true in the Defendants' Motion to Dismiss: I don't have evidence to support my claim,' while arguing that defendants possessed the needed evidence.
Court's Analysis
FDCPA Elements: To succeed on an FDCPA claim, a plaintiff must establish: (1) the plaintiff was the subject of collection activity on a consumer debt; (2) the defendant is a 'debt collector' as defined by the FDCPA; and (3) the defendant engaged in conduct prohibited by the FDCPA. The FDCPA defines 'debt collector' as a person whose principal business purpose is collecting debts, or who regularly collects debts owed to another. 15 U.S.C. § 1692a(6).
WebBank: As the originator of the credit card debt, WebBank is explicitly excluded from the FDCPA's definition of 'debt collector' under 15 U.S.C. § 1692a(6)(F). The court cited a New Mexico federal court case reaching the same conclusion about WebBank specifically. Additionally, the complaint contained no allegations of any actionable conduct by WebBank at all.
Avant: The complaint failed to allege that Avant regularly collects debts owed to others (rather than to itself). The FDCPA distinguishes between creditors (who collect their own debts) and debt collectors (who collect for others), and generally does not regulate creditors. The court found Avant was collecting on a valid debt owed to itself, using its own name. To the extent Avant functioned as a loan servicer, servicers who begin servicing before a loan goes into default are not 'debt collectors' under the FDCPA, and there was no allegation that Zelkowitz's account was in default.
Plaintiff's Concession: The court noted that Zelkowitz himself agreed in his opposition brief that neither defendant was a 'debt collector' under the FDCPA, which was fatal to his claim. The court found no amount of repleading (revising and refiling the complaint) could cure this deficiency under the facts alleged, and Zelkowitz did not propose any such repleading.
Rulings
- Avant's Motion to Dismiss [Doc. No. 24]: GRANTED; Avant dismissed with prejudice. - WebBank's Motion to Dismiss [Doc. No. 29]: GRANTED; WebBank dismissed with prejudice. - Plaintiff's Motion for Summary Judgment [Doc. No. 36]: DENIED AS MOOT (because the dismissal of the case made it irrelevant). - The entire action was DISMISSED WITH PREJUDICE, meaning Zelkowitz cannot refile these same claims against these defendants.
Reviewer note from the AI+
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.