DNF Associates, LLC v. Jeanette Wittmann

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 12, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP2283 Cir. Ct. No. 2023CV1061

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

DNF ASSOCIATES, LLC,

PLAINTIFF-RESPONDENT-CROSS-APPELLANT,

V.

JEANETTE WITTMANN,

DEFENDANT-APPELLANT-CROSS-RESPONDENT.

APPEAL and CROSS-APPEAL from an order of the circuit court
for Waukesha County: BRAD SCHIMEL, Judge. Affirmed.

Before Gundrum, Grogan, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP2283

¶1 PER CURIAM. Jeanette Wittmann appeals, and DNF Associates,
LLC cross-appeals, from the circuit court’s order granting DNF’s motion to
dismiss Wittmann’s counterclaims. The court of appeals’ recent decision in Plaza
Services LLC v. Burton, 2025 WI App 51, 418 Wis. 2d 123, 25 N.W.3d 556,
addressed the same three issues Wittmann raises on appeal. Applying the holding
in Plaza Services to this case, we affirm the dismissal of Wittmann’s
counterclaims.

¶2 In its cross-appeal, DNF argues that Wittmann’s counterclaims also
fail because DNF is not a “creditor” within the meaning of the Wisconsin
Consumer Act. Because we affirm the dismissal of Wittmann’s counterclaims on
other grounds, we will not address the merits of DNF’s argument. See Turner v.
Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (noting that
we need not address all issues when the resolution of one issue is dispositive);
State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)
(“[C]ases should be decided on the narrowest possible ground[.]”).

BACKGROUND

¶3 On May 9, 2023, DNF commenced a small claims action against
Wittmann to recover a defaulted credit card debt. Wittmann filed an answer on
June 2, 2023, along with counterclaims under the Wisconsin Consumer Act
(“WCA”) and Fair Debt Collection Practices Act (“FDCPA”). 15 U.S.C.
§§ 1692-1692p (2024). The parties stipulated to a voluntary dismissal of DNF’s
complaint, and DNF filed a motion to dismiss Wittmann’s counterclaims pursuant
to WIS. STAT. § 802.06(2)(a)6. (2023-24)1 for failure to state a claim. On
1
All references to the Wisconsin Statutes are to the 2023-24 version.

2
No. 2023AP2283

October 23, 2023, the circuit court entered an order dismissing both the complaint
and counterclaims.

DISCUSSION

¶4 Wittmann asks this court to determine: (1) whether a consumer can
sue under WIS. STAT. § 427.104(1)(k) of the WCA when an attorney is not
“meaningfully involved” in preparing the demand letters and complaint, and if so,
whether Wittmann sufficiently alleged a claim; (2) whether a consumer can
recover under WIS. STAT. ch. 427 of the WCA when a merchant intentionally or
willfully violates the pleading requirements set forth in WIS. STAT. § 425.109; and
(3) whether DNF’s failure to send Wittmann a notice of her right to cure default
prior to filing suit, in violation of WIS. STAT. § 425.105, gives rise to a cause of
action under the FDCPA. Based on the holding in Plaza Services and our
supreme court’s decision in Security Finance v. Kirsch, 2019 WI 42, 386 Wis. 2d
388, 926 N.W.2d 167, we reject Wittmann’s arguments and affirm the circuit
court’s order. 2

¶5 Whether a complaint or counterclaim states a claim upon which
relief can be granted is a question of law that we review de novo. Hermann v.
Town of Delavan, 215 Wis. 2d 370, 378, 572 N.W.2d 855 (1998). When
reviewing a motion to dismiss, we accept all factual allegations in the
counterclaim as true. Id. However, legal conclusions are not accepted as true, and

2
We may affirm on grounds different than those relied on by the trial court. Vanstone v.
Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995) (citing Liberty
Trucking Co. v. DILHR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973)).

3
No. 2023AP2283

they are insufficient to withstand a motion to dismiss. Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693.

¶6 Wittmann’s first counterclaim alleges that DNF’s attorney was not
“meaningfully involved” in preparing the demand letters and complaints served on
her, in violation of WIS. STAT. § 427.104(1)(k).3 Integral to this claim is
Wittmann’s contention that the “meaningful involvement” requirement recognized
in section 1692e(3) of the FDCPA should also be read into the WCA at
§ 427.104(1)(k). 15 U.S.C. § 1692e. Based on the plain language of the statute
and the ordinary meaning of words, the Plaza Services court rejected this
argument, explaining that “[t]he meaningful involvement requirement found in
15 U.S.C. § 1692e simply cannot likewise be read into [§] 427.104(1)(k) because
the language of the FDCPA and the WCA are not the same.” See Plaza Servs.,
418 Wis. 2d 123, ¶23. Accordingly, Wittmann’s “meaningful involvement” claim
must also fail, and we affirm the dismissal of that claim.

¶7 Wittmann’s next counterclaim, based on DNF’s alleged violation of
WIS. STAT. § 425.109’s pleading requirements, was also addressed in Plaza
Services. See Plaza Servs., 418 Wis. 2d 123, ¶28. In particular, Wittmann asserts
a cause of action under WIS. STAT. § 427.104 due to DNF’s “intentional or
willful” failure to include “detailed information about the figures necessary to
determine the amount owed” and “specific information about the exact default[.]”
The Plaza Services court relied on our supreme court’s interpretation of § 425.109

3
WISCONSIN STAT. § 427.104(1)(k) prohibits a debt collector from using “a
communication which … gives the appearance of being authorized, issued or approved by a[n] …
attorney-at-law when it is not.” Wittmann argues that because DNF’s attorney was not
“meaningfully involved” in drafting the demand letter and complaint, they were not actually
“authorized” by an attorney.

4
No. 2023AP2283

in Kirsch to conclude that failure to comply with the pleading requirements of
§ 425.109 does not give rise to a § 427.104 claim for damages. See Plaza Servs.,
418 Wis. 2d 123, ¶¶30-31 (citing Kirsch, 386 Wis. 2d 388, ¶¶2, 19 n.8). The court
further concluded that attorney fees may be awarded but “only if the debtor can
establish that the noncompliance was willful or intentional.” Plaza Servs., 418
Wis. 2d 123, ¶31 (citing § 425.109(4)). Wittmann’s allegation that DNF’s
attorney regularly files collection suits in Wisconsin and therefore “knows or
should know” of the WCA’s pleading requirements, was the same claim that Plaza
Services determined to be insufficient. See Plaza Servs., 418 Wis. 2d 123,
¶¶32-33. Therefore, we affirm dismissal of Wittmann’s claims arising from
§§ 425.109 and 427.104.

¶8 Wittmann’s final counterclaim alleges that DNF’s “demand for an
accelerated balance, and filing of this suit, without first ensuring that [Wittmann]
was provided a statutorily[-]compliant notice of right to cure default, violate[d] the
FDCPA by falsely and misleadingly claiming a right to payment in full and to sue
when no such right exists[.]” She further alleged that DNF’s actions constituted
“harassing and abusive conduct” and “unfair or unconscionable collection
practices.”

¶9 WISCONSIN STAT. § 425.105 of the WCA requires a creditor to
provide written notice of a consumer’s right to cure default before filing a
collection suit. Section 1692e(2)(A) of the FDCPA prohibits falsely representing
the “character, amount, or legal status of any debt.” 15 U.S.C. § 1692e(2)(A).
Wittmann argues that by filing suit without first giving her notice of right to cure,
DNF falsely represented that it had complied with § 425.105’s prerequisites,
thereby misrepresenting the debt’s “legal status.” Addressing an identical claim,
the Plaza Services court again relied on Kirsch to affirm dismissal. See Plaza

5
No. 2023AP2283

Servs., 418 Wis. 2d 123, ¶36. The Kirsch court determined that the creditor’s
failure to comply with the WCA’s right to cure procedure did not “disrupt” the
creditor’s right to payment—it merely entitled the consumer to dismissal of the
complaint. See Kirsch, 386 Wis. 2d 388, ¶30. Applying this determination, the
Plaza Services court affirmed dismissal, concluding that Plaza Services had not
misrepresented the legal status of the debt because it retained the right to collect.
See Plaza Servs., 418 Wis. 2d 123, ¶44. Based on the holding in Plaza Services,
we conclude that Wittmann did not state a claim for relief under the FDCPA and
affirm dismissal.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

6