Zelkowitz v. Avant
- Susan Nelson
- 0:25-cv-00850
- U.S. District Court · District of Minnesota
- 8
Counsel of record per CourtListener. Firm names are approximate and have been consolidated across spelling variants.
In Zelkowitz v. Avant, LLC, Judge Nelson dismissed with prejudice a pro se plaintiff's debt-collection lawsuit over an unauthorized $25 autopayment because neither defendant qualifies as a 'debt collector' under federal law.
Consumers who hold credit cards originated by banks like WebBank and serviced by companies like Avant, LLC, and who may wish to bring claims under the FDCPA. This ruling illustrates that the FDCPA generally does not cover original creditors or servicers collecting their own debts — only third-party debt collectors.
What happened
In Zelkowitz v. Avant, LLC and WebBank, pro se plaintiff Fred Michael Zelkowitz sued Avant, LLC and WebBank under the Fair Debt Collection Practices Act (FDCPA), a federal law regulating debt collection, after Avant processed a $25 autopayment he claims he had cancelled. He sought the return of his $25 and $100,000 in punitive damages, alleging the autopayment was unauthorized and that Avant broke a promise to reverse it. Both defendants moved to dismiss the case, arguing they are not 'debt collectors' as that term is defined under the FDCPA.
The court found that the FDCPA only applies to 'debt collectors' — entities whose principal business is collecting debts owed to others — not to the original lenders or creditors themselves. WebBank, as the originator of the credit card, is explicitly excluded from that definition by the statute. Avant, as the servicer or creditor collecting its own debt using its own name, likewise does not qualify. Critically, Mr. Zelkowitz himself conceded in his court filings that neither defendant is a 'debt collector' under the FDCPA, which fatally undermined his own claim.
Judge Susan Richard Nelson granted both defendants' motions to dismiss with prejudice, meaning the case is permanently closed and cannot be refiled. The court concluded that no amount of repleading or additional evidence obtained through discovery could fix the fundamental defect — that the FDCPA simply does not apply to these defendants under these facts. Mr. Zelkowitz's own summary judgment motion was denied as moot because the dismissal resolved the case entirely.
The detailed version
- Zelkowitz v. Avant · No. 0:25-cv-00850
- Susan Nelson
- Nov. 20, 2025
Background
Pro se plaintiff Fred Michael Zelkowitz filed this civil action in March 2025 against Avant, LLC and WebBank. He asserted 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. Mr. Zelkowitz alleged that he held an Avant credit card issued by WebBank, that he had been making monthly payments via autopay (an automatic recurring bank transfer), and that he discontinued autopay at some point before February 2025. He alleged that Avant nonetheless processed a $25 autopayment from his Wells Fargo checking account in February 2025, that an Avant representative agreed by phone to reverse the payment, but that the reversal never occurred. Mr. Zelkowitz sought return of the $25 and $100,000 in punitive damages.
Motions Before the Court
Both defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint fails to state a legally sufficient claim even if all alleged facts are accepted as true. Defendants argued: (1) neither Avant nor WebBank qualifies as a 'debt collector' under the FDCPA, a threshold element of any FDCPA claim; (2) even if they were debt collectors, processing an autopayment on a valid debt is not prohibited conduct under the FDCPA; and (3) the complaint failed to identify any specific provision of the FDCPA that was allegedly violated. WebBank additionally argued that the complaint contained no actionable allegations against it at all.
Mr. Zelkowitz filed a 'First Motion for Summary Judgment' (a request that the court rule in his favor based on the undisputed facts, without a full trial), largely repeating his opposition arguments. Notably, in that filing he conceded: 'One thing is true in the Defendants' Motion to Dismiss: I don't have evidence to support my claim,' though he argued that defendants possessed the relevant evidence. In his opposition to the motions to dismiss, Mr. Zelkowitz expressly stated he was 'not implying Avant [] or WebBank are 'debt collectors' as defined in the FDCPA.'
Legal Analysis
FDCPA 'Debt Collector' Requirement
To establish civil liability under the FDCPA, a plaintiff must prove three elements: (1) the plaintiff was the object of collection activity arising from a consumer debt; (2) the defendant is a 'debt collector' as defined by the FDCPA; and (3) the defendant engaged in an act or omission prohibited by the FDCPA. The statute defines 'debt collector' as a person or entity whose principal business purpose is collecting debts, or who regularly collects debts owed to another. Critically, creditors collecting their own debts are generally excluded from this definition.
WebBank
As the originator of the credit card, WebBank falls within the statutory exclusion from 'debt collector' status under 15 U.S.C. § 1692a(6)(F). The court also noted that the complaint contained no allegations of any actionable FDCPA conduct by WebBank, which was not involved in processing the autopayments.
Avant, LLC
The court found that the complaint failed to allege that Avant regularly attempts to collect debts owed to another party, as required by the FDCPA definition. The FDCPA distinguishes between creditors (who collect their own debts) and debt collectors (who collect debts on behalf of others), and generally does not regulate creditors. The court found that in processing Mr. Zelkowitz's autopayment, Avant was merely collecting on a valid debt owed to itself, using its own name — classic creditor conduct outside the FDCPA's scope.
To the extent Avant might be characterized as a loan servicer, servicers that begin servicing a loan before the debtor defaults are not 'debt collectors' under the FDCPA, and no allegation of default appeared in the complaint.
Plaintiff's Own Concession
The court specifically noted that Mr. Zelkowitz himself agreed in his filings that neither defendant is a 'debt collector' under the FDCPA. This concession, combined with the factual record, meant that the threshold element of an FDCPA claim could not be met. The court further concluded that no repleading could cure this defect and that discovery would not change the result, since the FDCPA's applicability turns on the defendants' legal status, not on additional facts about the autopayment itself.
Failure to Cite a Specific FDCPA Provision
In a footnote, the court also agreed with defendants that the complaint failed to cite any specific section of the FDCPA allegedly violated, a further pleading deficiency.
Disposition
Judge Nelson granted both defendants' motions to dismiss with prejudice, meaning the case is permanently ended and Mr. Zelkowitz cannot refile these claims against these defendants. Mr. Zelkowitz's summary judgment motion was denied as moot because the dismissal rendered it unnecessary to address.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.